9/20/2018 Philippine Reports Annotated Volume 065

9/20/2018 PHILIPPINE REPORTS ANNOTATED VOLUME 065
[No. 45685. November 16, 1937]
THE PEOPLE OF THE PHILIPPINE ISLANDS and THE

HONGKONG & SHANGHAI BANKING CORPORATION,
petitioners, vs. JOSE O. VERA, Judge ad interim of the
Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.
1. PROBATION ; AUTHORITY OF PROBATION COURT

TO LOOK INTO CIRCUMSTANCES OF OFFENSE;
SUPERIOR AND INFERIOR COURTS; LEGAL
RELATION AND ETHICAL STANDARD.—Probation
implies guilt by final judgment. While a probation court
hearing a probation case may look into the circumstances
attending the commission of the offense, this does not
authorize it to reverse the findings and conclusions of the
Supreme Court, either directly or indirectly, especially
where from its own admission reliance was merely had on
the printed briefs, averments, and pleadings of the
parties. As observed in Shioji vs. Harvey ([1922], 43 Phil.,
333, 337), and reiterated in subsequent cases," if each and
every Court of First Instance could enjoy the privilege of
overruling decisions of the Supreme Court, there would be
no end to litigation, and judicial chaos would result." A
becoming modesty of inferior courts demands conscious
realization of the position that they occupy in the
interrelation and operation of the integrated judicial
system of the nation.
2. CONSTITUTIONAL LAW; THE PRESIDENT AND HIS

VETO POWER; PRESIDENT'S VETO NOT BINDING ON
THE SUPREME COURT.—In vetoing a bill, the President
may express the reasons which he may deem proper, but
his reasons are not binding upon the Supreme Court in
the determination of actual controversies submitted to it
for determination. Whether or not the Executive should
express or in any manner insinuate his opinion on a
matter encompassed within his cons titutional pow er of
ve to
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People vs. Vera.
but which happens to be at the same time pending

determination before the Supreme Court is a question of
propriety for him exclusively to decide or determine.
Whatever opinion is expressed by him under these
circumstances, however, cannot sway the judgment of the
court one way or another and prevent it from taking what
in its opinion is the proper course of action to take in a
given case.
3. ID. ; INDEPENDENCE OF THE JUDICIARY.—If it is

ever necessary to make any vehement affirmance during
this formative period of our political history, it is that the
judiciary is independent of the Executive no less than of
the Legislative department of our government—
independent in the performance of its functions,
undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the
accomplishment of its sworn duty as it sees it and
understands it.
4. ID.; WHEN CONSTITUTIONALITY MAY BE RAISED.—

The constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly
raised and presented in appropriate cases and is necessary
to a determination of the case; i. e., the issue of
constitutionality must be the very lis mota presented.
5. ID. ; ID. ; RESORT TO EXTRAORDINARY LEGAL

REMEDIES; ADJUDICATED CASES.—The question of
the constitutionality of an Act of the legislature is
frequently raised in ordinary actions. Nevertheless, resort
may be made to extraordinary legal remedies, particularly
where the remedies in the ordinary course of law, even if
available, are not plain, speedy and adequate. Thus, in Cu
Unjieng vs. Patstone ([1922], 42 Phil., 818), the Supreme
Court held that the question of the constitutionality of a
statute may be raised by the petitioner in mandamus
proceedings (see also 12 C. }., p. 783); and in Government
of the Philippine Islands vs. Springer ([1927], 50 Phil.,
259, affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U. S., 189; 72 Law. ed.,
845), this court declared an act of the legislature
unconstitutional in an" action of., quo warranto brought in
the name of the Government of the Philippines. It has
also been. held "that the constitutionality of a statute may
be questioned in habeas corpus proceedings (12 C. 3., p.
783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117),
although there are authorities to the contrary; on an
application for injunction to restrain action under the
challenged statute (mandatory, see Cruz vs. Youngberg
[1931], 56 Phil., 234); and even on an application for

preliminary injunction where the determination of the
constitutional question is necessary to a decision of the
case. (12 C. J., p. 783.) The same may be said as regards
prohibition and certiorari. (Yu
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58 PHILIPPINE REPORTS ANNOTATED
People vs. Vera.
Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.

S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District
Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854;
6 Ann. Cas., 982; 1 L, R. A. [N. S.], 843, and cases cited.)
6. ID.; ; ID. ; ID. ; PROHIBITION ; RULE WHERE

JURISDICTION is EXCLUSIVELY DERIVED FROM
UNCONSTITUTIONAL STATUTE.—The writ of
prohibition is an extraordinary judicial writ issuing out of
a court of superior jurisdiction and directed to an inferior
court, for the purpose of preventing the inferior tribunal
from usurping a jurisdiction with which it is not legally
vested. The general rule, although there is a conflict in the
cases, is that the writ of prohibition will not lie where the
inferior court has jurisdiction independent of the statute
the constitutionality of which is questioned, because in
such cases the inferior court having jurisdiction may itself
determine the constitutionality of the statute, and its
decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy
by appeal without resort to the writ of prohibition. But
where the inferior court or tribunal derives its jurisdiction
exclusively from an unconstitutional statute, it may be
prevented by the writ of prohibition from enforcing that
statute.
7. ID. ; ID. ; ID. ; ID. ; ID. ; COURTS OF FIRST INSTANCE;

LIMITED JURISDICTION IN PROBATION CASES.—A
Court of First Instance sitting in probation proceedings is
a court of limited jurisdiction. Its jurisdiction in such
proceedings is conferred exclusively by Act No. 4221 of the
Philippine Legislature.
8. ID.; ID.; CONSTITUTIONALITY MUST BE RAISED AT

THE EARLIEST OPPORTUNITY; EXCEPTIONS.—As a
general rule, the question of constitutionality must be
raised at the earliest opportunity, so that if not raised by
the pleadings, ordinarily it may be raised at the trial, and
if not raised in the trial court, it will not be considered on
appeal. But the general rule admits of exceptions. Courts,

in the exercise of sound discretion, may determine the
time when a question affecting the constitutionality of a
statute should be presented. Thus, in. criminal cases,
although there is a very sharp conflict of authorities, it is
said that the question may be raised for the first time at
any stage of the proceedings, either in the trial court or on
appeal. Even in civil cases, it has been held that it is the
duty of a court to pass on the constitutional question,
though raised for the first time on appeal, if it appears
that a determination of the question is necessary to a
decision of the case. And it has been held that a
constitutional question will be considered by an appellate
court at any time, where it involves the jurisdiction of the
court below.
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People vs. Vera.
9. ID.; ID.; PERSONAL AND SUBSTANTIAL INTEREST

OF PARTY; RIGHT AND INTEREST OF THE PEOPLE
OF THE PHILIPPINES TO CHALLENGE
CONSTITUTIONALITY.—The person who impugns the
validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement. It goes
without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name
the present action is brought, has a substantial interest in
having it set aside. Of greater import than the damage
caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the wellsettled
rule that 'the state can challenge the validity of its own
laws.
10. ID. ; ID. ; RELIANCE ON PROBATION ACT; BY FISCAL

DOES NOT CONSTITUTE ESTOPPEL AGAINST THE
PEOPLE.—The mere fact that. the Probation Act has been
repeatedly relied upon in the past and all that time has
not been attacked as unconstitutional by the Fiscal of
Manila but, on the contrary, has been impliedly regarded
by him as constitutional, is no reason for considering the
People of the Philippines estopped from now assailing its
validity. For courts will pass upon a constitutional
question only when presented before it in bona fide cases
for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to
allow it to be raised later. The fiscal and all others are

justified in relying upon the statute and treating it as
valid until it is held void by the courts in proper cases.
11. ID.; ID. ; WHEN DETERMINATION OF

CONSTITUTIONALITY NECESSARY ; WAIVER IF
CASE CAN BE DECIDED ON OTHER POINTS.—While
the court will meet the question with firmness, where its
decision is indispensable, it is the part of wisdom, and a
just respect for the legislature, renders it proper, to waive
it, if the case in which it arises, can be decided on other
points. (Ex parte Randolph [1833], 20 F. Cas. No 11,558; 2
Brock., 447, Vide, also Hoover vs. Wood [1857], 9 Ind., 286,
287.) It has been held that the determination of a
constitutional question is necessary whenever it is
essential to the decision of the case, as where the right of a
party is founded solely on a statute the validity of which is
attacked. (12 C. J., p. 782.)
12. ID. ; ID. ; ID. ; REASONS OF PUBLIC POLICY

JUSTIFYING CONSTITUTIONAL INQUIRY.—The
Supreme Court will take cognizance of the fact that the
Probation Act is a new addition to our statute books and
its validity has never before been passed upon by the
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People vs. Vera.
courts; that many persons accused and convicted of crime

in the City of Manila have applied for probation; that
some of them are already on probation; that more people
will likely take advantage of the Probation Act in the
future; and that the respondent M. C. U, has been at large
for a period of about four years since his first conviction.
All await the decision of this court on the constitutional
question. Considering, therefore, the importance which
the instant case has assumed and to prevent muItiplicity
of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved.
13. ID. ; THE JUDICIARY; ITS DUTY TO ENFORCE THE

CONSTITUTION.—Under a doctrine peculiarly
American, it is the office and duty of the judiciary to
enforce the Constitution. The Supreme .Court, by clear
implication from the provisions of section 2, subsection 1,
and section 10, of Article VIII of the Constitution, may
declare an act of the National Legislature invalid because
in conflict with the fundamental law. It will not shirk from
its sworn duty to enforce the Constitution. And, in clear

cases, it will not hesitate to give effect to the supreme law
by setting aside a statute in conflict therewith. This is of
the essence of judicial duty.
14. ID.; ID.; STATUTORY CONSTRUCTION ;

PRESUMPTION IN FAVOR OF CONSTITUTIONALITY;
RATIONALE OF PRESUMPTION.—All reasonable
doubts should be resolved in favor of the constitutionality
of a statute. An act of the legislature approved by the
executive, is presumed to be within constitutional
limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the
legislature as well. "The question of the validity of every
statute is first determined by the legislative department of
the government itself." (U. S. vs. Ten Yu [1912], 24 Phil.,
1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil.,
250, 276; U. S. vs. Joson [1913], 26 Phil., 1.) And a statute
finally comes before the courts sustained by the sanction
of the executive. The members of the Legislature and the
Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been
true to this oath and that in enacting and sanctioning a
particular law they did not intend to violate the
Constitution. Then, there is that peculiar political
philosophy which bids the judiciary to reflect the wisdom
of the people as expressed through an elective Legislature
and an elective Chief Executive. It follows that the courts
will not set aside a law as violative of the Constitution
except in clear cases.
15. ID.; THE PARDONING POWER UNDER THE JONES

LAW AND THE CON
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People vs. Vera.
STITUTION OF THE PHILIPPINES.—Section 21 of the

Jones Law, in force at the time of the approval of Act No.
4221, vests in the GovernorGerieral of the Philippines
"the exclusive power to grant pardons and reprieves and
remit fines and forfeitures." This power is now vested in
the President of the Philippines. The provisions of the
Jones Law and the Constitution of the Philippines differ
in some respects. The adjective "exclusive" found in the
Jones Law has been omitted from the Constitution. Under
the Jones Law, as at common law, pardon could be
granted any time after the commission of the offense,
either before or after conviction. The GovernorGeneral of

the Philippines was thus empowered, like the President of
the United States, to pardon a person before the facts of
his case were fully brought to light. The framers of our
Constitution thought this undesirable and, following most
of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So too,
under the new Constitution, the pardoning power does not
extend to "cases of impeachment". This is also the rule
generally followed in the United States.
16. ID. ; ID.; ROYAL PARDON UNDER ENGLISH LAW;

POWER OF THE HOUSE OF LORDS.—The rule in
England is different. There, a royal pardon can not be
pleaded in bar of an impeachment; "but," says Blackstone,
"after the impeachment has been solemnly heard and
determined, it is not understood that the king's royal
grace is further restrained or abridged." The reason for the
distinction is obvious. In England, judgment on
impeachment is not confined to mere "removal from office
and disqualification to hold and enjoy any office of honor,
trust, or profit under the Government" but extends to the
whole punishment attached by law to the offense
committed. The House of Lords, on a conviction may, by
its sentence, inflict capital punishment, perpetual
banishment, fine or imprisonment, depending upon the
gravity of the offense committed, together with removal
from office and incapacity to hold office.
17. ID.; ID.; COMMUTATION AND AMNESTY UNDER THE

PHILIPPINE CONSTITUTION.—Our Constitution makes
specific mention of "commutation" and of the power of the
executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem
proper. Amnesty may be granted by the President under
the Constitution but only with the concurrence of the
National Assembly.
18. ID. ; ID.; EXCLUSIVE CHARACTER OF THE

PARDONING POWER.—The benign prerogative of mercy
reposed in the Executive cannot be taken away nor
fettered by any legislative restrictions, nor can like power
be given by the legislature to any other officer
62
People vs. Vera.
or authority. The coordinate departments of government

have nothing to do with the pardoning power, since no
person properly belonging to one, of the departments can
exercise any powers appertaining to either of the others
except in cases expressly provided for by the constitution.
(20 R. C. L., pp. 540, 541.) Where the pardoning power is
conferred on the executive without express or implied
limitations, the grant is exclusive, and the legislature can
neither exercise such power itself nor delegate it
elsewhere, nor interfere with or control the proper exercise
thereof (12 C. J., pp. 838, 839).
19. ID.; PROBATION; POWER OF THE PHILIPPINE

LEGISLATURE TO ENACT A PROBATION LAW.—The
Philippine Legislature, like the Congress of the United
States, may legally enact a probation law under its broad
power to fix the punishment of any and all penal offenses.
The legislative power to set punishment for crime is very
broad, and in the exercise of this power the legislature
may confer on trial judges, if it sees fit, the largest
discretion as to the sentence to be imposed, as to the
beginning and end of the punishment, and whether it
should be certain, or indeterminate, or conditional.
Indeed, the Philippine Legislature has defined all crimes
and fixed the penalties for their violation. Invariably, the
legislature has demonstrated the desire to vest in the
courts—particularly the trial courts—large discretion in
imposing the penalties which the law prescribes in
particular cases. It is believed that justice can best be
served by vesting this power in the courts, they being in a
position to best determine the penalties which an
individual convict, peculiarly circumstanced, should
suffer.
20. ID. ; ID. ; PROBATION AND PARDON NOT

COTERMINOUS; PROBATION DlSTINGUISHED FROM
REPRIEVE AND COMMUTATION.—Probation and
pardon are not coterminous; nor are they the same. They
are actually distinct and different from each other, both in
origin and in nature. In probation, the probationer is in no
true sense, as in pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the entire
punishment which the law inflicts. Under the Probation
Act, the probationer's case is not terminated by the mere
fact that he is placed on probation. The probationer,
during the period of probation, remains in legal custody—
subject to the control of the probation officer and of the
court, he may be rearrested upon the nonfulfillment of
the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally
imposed upon him. Probation should also be distinguished
from reprieve and from commutation of the sentence.
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People vs. Vera.
21. ID. ; ID.; ID. ; PROBATION NOT IN CONFLICT WITH

PARDONING POWER.—The Probation Act does not
conflict with the pardoning power of the Executive. The
pardoning power, in respect to those serving their
probationary sentences, remains as full and complete as if
the Probation Law had never been enacted. The President
may yet pardon the probationer and thus place it beyond
the power of the court to order his rearrest and
imprisonment.
22. ID.; DIVISION OF POWERS.—Under our constitutional

system, the powers of government are distributed among
three coordinate and substantially independent organs:
the legislative, the executive and the judicial. Each of
these departments of the government derives its authority
from the Constitution which, in turn, is the highest
expression of the popular will. Each has exclusive
cognizance of the matters within its jurisdiction, and is
supreme within its own sphere.
23. ID. ; ID. ; DELEGATION OF LEGISLATIVE

AUTHORITY; HISTORICAL DEVELOPMENT.—The
power to make laws—the legislative power—is vested in a
bicameral Legislature by the Jones Law and in a
unicameral National Assembly by the Constitution. The
Philippine Legislature or the National Assembly may not
escape its duties and responsibilities by delegating that
power to any other body or authority. Any attempt to
abdicate the power is unconstitutional and void, on the
principle that potestas delegata non delegare potest. This
principle is said to have originated with the glossators,
was introduced into English law through a misreading of
Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in
decisions forbidding the delegation of judicial power, and
found its way into America as an enlightened principle of
free government. It has since become an accepted corollary
of the principle of separation of powers.
24. ID.; ID.; ID.; RULE FORBIDDING DELEGATION OF

LEGISLATIVE AUTHORITY NOT INFLEXIBLE;
EXCEPTIONS.—The rule, however, which forbids the
delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exception sanctioned
by immemorial practice permits the central legislative
body to delegate legislative powers to local authorities. On

quite the same principle, Congress is empowered to
delegate legislative power to such agencies in the
territories of the United States as it may select, Courts
have also sustained the delegation of legislative power to
the people at large, though some authorities maintain that
this may not be done. Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14,
paragraph 2, of Article VI of the Constitution of the
Philippines ilippines provides that "The National As
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People vs. Vera.
limitations and restrictions as it may impose, to fix

within specified limits, tariff rates, import or export
quotas, and tonnage and wharfage dues." And section 16
of the Same article of the Constitution provides that "In
times of war or other national emergency, the National
Assembly may by law authorize the President, for a
limited period and subject to such restrictions as it may
prescribe, to promulgate rules and regulations to carry out
a declared national policy."
25. ID. ; ID. ; ID. ; TEST OF UNDUE DELEGATION ;

DETAILS OF EXECUTION.—In testing whether a
statute constitutes an undue delegation of legislative
power or not, it is usual to inquire whether the statute
was complete in all its terms and provisions when it left
the hands of the legislature so that nothing was left to the
judgment of any other appointee or delegate of the
legislature. In United States vs. Ang Tang Ho {[1922], 43
Phil., 1), the Supreme Court adhered to the foregoing rule.
The general rule, however, is limited by another rule that
to a certain extent matters of detail may be left to be filled
in by rules and regulations to be adopted or promulgated
by executive officers and administrative boards. As a rule,
an act of the legislature is incomplete and hence invalid if
it does not lay down any rule or definite standard by
which the administrative board may be guided in the
exercise of the discretionary powers delegated to it.
26. ID. ; ID. ; ID. ; PROBATION ACT MAKES VIRTUAL

SURRENDER OF LEGISLATIVE POWER TO
PROVINCIAL BOARDS.—The Probation Act does not, by
the 'force of any of its provisions, fix and impose upon the
provincial boards any standard or guide in the exercise of
their discretionary power. What is granted is a "roving
commission" which enables the provincial boards to

exercise arbitrary discretion. By section 11 of the Act, the
legislature does seemingly on its own authority extend the
benefits of the Probation Act to the provinces but in reality
leaves the entire matter for the various provincial boards
to determine. If a provincial board does not wish to have
the Act applied in its province, all that it has to do is to
decline to appropriate the needed amount for the salary of
a probation officer. This is a virtual surrender of
legislative power to the provincial boards.
27. ID.; ID.; ID.; TRUE DlSTINCTION BETWEEN POWER

TO MAKE LAW AND DlSCRETION AS. TO ITS
EXECUTION; ADJUDICATED CASES.—The true
distinction is between the delegation of power to make the
law, which necessarily involves a discretion as to what it
shall be, and conferring an authority or discretion as to its
execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid
objection
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People vs. Vera.
can be made. (Cincinnati, W. & Z. R. Co. vs. Clinton

County Comrs. [1852], 1 Ohio St., 77, 88. See also,
Sutherland on Statutory Construction, sec. 68.) To the
same effect are decisions of the Supreme Court in the
Municipality of Cardona vs. Municipality of Binañgonan
([1917], 36 Phil., 547); Rubi vs. Provincial Board of
Mindoro ([1919], 39 Phil., 660) ; and Cruz vs. Youngberg
([1931], 56 Phil., 234).
28. ID. ; ID.; ID.; CONDITIONAL ENFORCEMENT OF A

LAW; RELAXATION OF THE DOCTRINE.—Laws may
be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the
people of a particular community (6 R. C. L., 118, 170172;
Cooley, Constitutional Limitations, 8th ed., vol. I, p. 227).
In Wayman vs. Southard ([1825], 10 Wheat, 1; 6 Law. ed.,
253), the Supreme Court of the United States ruled that
the legisture may delegate a power not legislative which it
may itself rightfully exercise. The power to ascertain facts
is such a power which may be delegated. There is nothing
essentially legislative in ascertaining the existence of facts
or conditions as the basis of the taking into effect of a law.
That is a mental process common to all branches of the
government. Notwithstanding the apparent tendency to
relax the rule prohibiting delegation of legislative

authority on account of the complexity arising from social
and economic forces at work in this modern industrial age,
the orthodox pronouncement of Judge Cooley in his work
on Constitutional Limitations finds restatement in
Professor Willoughby's treatise on the Constitution of the
United States and is accepted.
29. ID.; ID.; ID.; OPERATION OF PROBATION ACT NOT

CONTINGENT ON SPECIFIED FACTS OR
CONDITIONS; DlSCRETION VESTED IN PROVINCIAL
BOARDS ARBITRARY.—The legislature has not made
the operation of the Probation Act contingent upon
specified facts or conditions to be ascertained by the
provincial board. It leaves the entire operation or non
operation of the law upon the provincial boards. The
discretion vested is arbitrary because it is absolute and
unlimited. A provincial board need not investigate
conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule—limited by
no principle of expediency announced by the legislature..
It may take into consideration certain facts or conditions;
and, again, it may not. It may have any purpose or no
purpose at all. It need not give any reason or have any
reason whatsoever for refusing or failing to appropriate
any funds for the salary of a. probation officer. This is a
matter which rests entirely at its pleasure.
30. ID. ; ID. ; ID. ; LOCAL OPTION LAWS ; EIGHT OF

LOCAL SELFGOVERN
66
People vs. Vera.
MENT; SUSPENSION OF OPERATION OF A GENERAL

LAW NOT COUNTENANCED.—The legislature may
enact laws for a particular locality different from those
applicable to other localities and, while recognizing the
force of the principle hereinabove expressed, courts in
many jurisdictions have sustained the constitutionality of
the submission of option laws to the vote of the people. (6
R. C. L., p. 171.) But option laws thus sustained treat of
subjects purely local in character which should receive
different treatment in different localities placed under
different circumstances. Without denying the right of local
selfgovernment and the propriety of leaving matters of
purely local concern in the hands of local authorities or for
the people of small communities to pass upon in matters of
general legislation like that which treats of criminals in

general, and as regards the general subject of probation,
discretion may not be vested in a manner so unqualified
and absolute as provided in Act No. 4221.
31. ID.; ID. ; ID. ; PROVINCIAL BOARDS EMPOWERED TO

SUSPEND OPERATION OF PROBATION ACT.—The
statute does not expressly state that the provincial boards
may suspend the operation of the Probation Act in
particular provinces but, considering that, in being vested
with the authority to appropriate or not the necessary
funds for the salaries of probation officers they thereby are
given absolute discretion to determine whether or not the
law should take effect or operate in their respective
provinces, the provincial boards are in reality empowered
by the legislature to suspend the operation of the
Probation Act in particular provinces, the Act to be held in
abeyance until the provincial boards should decide
otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done, but
by what may be done under its provisions. (Walter E.
Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil.,
259; 12 C. J., p. 786.)
32. ID. ; ID. ; ID. ; LEGISLATIVE POLICY; EXECUTION

THEREOF; CONSTITUTION BOTH A GRANT AND
LlMITATION OF POWER.—A great deal of latitude
should be granted to the legislature not only in the
expression of what may be termed legislative policy but in
the elaboration and execution thereof. "Without this
power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been
said that popular government lives because of the
unexhaustible reservoir of power behind it. It is
unquestionable that the mass of powers of government is
vested in the representatives of the people and that these
representatives are no further restrained under our
system than by the express language of the instrument
imposing the restraint, or by particular provisions which
by
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VOL. 65, NOVEMBER 16, 1937 67
People vs. Vera.
clear intendment, have that effect. But it should be borne

in mind that a constitution is both a grant and a
limitation. of power and one of these timehonored
limitations is that, subject to certain exceptions,

legislative power shall not be delegated.
33. ID.; EQUAL PROTECTION OF THE LAWS; CLASS

LEGISLATION; CLASSIFICATION ON REASONABLE
BASIS.—" * * * nor shall any person be denied the equal
protection of the laws." This basic individual right
sheltered by the Constitution is a restraint on all the three
grand departments of our government and on the
subordinate instrumentalities and subdivisions thereof,
and on many constitutional powers, like the police power,
taxation and eminent domain. What may be regarded as a
denial of the equal protection of the laws is a question not
always easily determined. No rule that will cover every
case can be formulated. Class legislation discriminating
against some and favoring others is prohibited. But
classification on a reasonable basis, and not made
arbitrarily or capriciously, is permitted. The classification,
however, to be reasonable must be based on substantial
distinctions which make real differences; it must be
germane to the purposes of the law; it must not be limited
to existing conditions only, and must apply equally to each
member of the class.
34. ID. ; ID. ; ID. ; RESULTANT INEQUALITY FROM

UNWARRANTED DELEGATION; PROBATION ACT
PERMITS DENIAL OF EQUAL PROTECTION.—In the
case of Act No. 4221, the resultant inequality may be said
to flow from the unwarranted delegation of legislative
power to the provincial boards. While inequality may
result in the application of the law and in the conferment
of the benefits therein provided, inequality is not in all
cases the necessary result. But whatever may be the case,
it is clear that section 11 of the Probation Act creates a
situation in which discrimination and inequality are
permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection
of the law before courts should assume the task of setting
aside a law vulnerable on that score, but premises and
circumstances considered, we are of the opinion that
section 11 of Act No. 4221 permits of the denial of the
equal protection of the law and is on that account bad. We
see no difference between a law which denies equal
protection and a law which permits of such denial. A law
may appear to be fair on its face and impartial in
appearance, yet, if it permits of unjust and illegal
discrimination, it is within the constitutional prohibition.
In other words, statutes may be adjudged unconstitutional
because of their effect in operation. If a law has the effect
of denying the equal protection of the law it is
unconstitutional.
68
People vs. Vera.
35. ID.; ID.; ID.; SECTION 11 OF PROBATION ACT;

GOVERNMENT OF LAWS; EQUALITY CLAUSE NOT
"A ROPE OF SAND".—Under section 11 of the Probation
Act, not only may said Act be in force in one or several
provinces and not be in force in the other provinces, but
one province may appropriate for the salary of a probation
officer of a given year—and have probation during that
year—and thereafter decline to make further
appropriation, and have no probation in subsequent years.
While this situation goes rather to the abuse of discretion
which delegation implies, it is here indicated to show that
the Probation Act sanctions a situation which is
intolerable in a government of laws, and to prove how easy
it is, under the Act, to make the guaranty of the equality
clause but "a rope of sand."
36. ID.; PARTIAL UNCONSTITUTIONALITY ;

PRESUMPTION AGAINST MUTILATION OF STATUTE.
—In seeking the legislative intent, the presumption is
against any mutilation of a statute, and the courts will
resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid, and
is so independent and separable that its removal will leave
the constitutional features and purposes of the act
substantially unaffected by the process.
37. ID. ; SECTION 11 OF PROBATION ACT INSEPARABLE

FROM REST OF ACT; PROBATION AND PROBATION
OFFICERS.—Section 11 of the Probation Act (No. 4221) is
inseparably linked with the other portions of the Act that
with the elimination of the section what would be left is
the bare idealism of the system, devoid of any practical
benefit to a large number of people who may be deserving
of the intended beneficial results of that system. The clear
policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the
application of the system dependent entirely upon the
affirmative action of the different provincial boards. If not
one of the provinces—and this is the actual situation now
—appropriates the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be
illusory. There can be no probation without a probation
officer. Neither can there be a probation officer without a
probation system.
38. ID.; ID.; PROBATION ACT ANALYZED; SECTIONS 10

AND 11 OF ACT; RULE OF STATUTORY
CONSTRUCTION.—The probation officers and the
administrative personnel referred to in section 10 are
clearly not those probation officers required to be
appointed for the provinces under section 11. It may be
said, reddendo singula singulis, that the probation officers
referred to in section 10 are to act as such, not in the
various provinces, but in the central office known as the
Probation Office established in the Depart
69
VOL. 65, NOVEMBER 16, 1937 69
People vs. Vera.
ment of Justice, under the supervision of a Chief

Probation Officer, When the law provides that "the
probation officer" shall investigate and make reports to
the court; that "the probation officer" shall supervise and
visit the probationer; that the probationer shall report to
the "probation officer", shall allow "the probation officer"
to visit him, shall truthfully answer any reasonable
inquiries on the part of "the probation officer" concerning
his conduct or condition; that the court shall notify "the
probation officer" in writing of the period and terms of
probation, it means the probation officer who is in charge
of a particular probationer in a particular province. It
never could have been the intention of the legislature, for
instance, to require a probationer in Batanes, to report to
a probation officer in the City of Manila, or to require a
probation officer in Manila to visit the probationer in the
said province of Batanes, to place him under his care, to
supervise his conduct, to instruct him concerning the
conditions of his probation or to perform such other
functions as are assigned to him by law.
39. ID.; ID.; ID.; ID.; WlSDOM AND PROPRIETY OF

LEGISLATION; PROGRESSIVE INTERPRETATION
AND JUDICIAL LEGISLATION.—That under section 10
the Secretary of Justice may appoint as many probation
officers as there are provinces or groups of provinces is, of
course, possible. But this would be arguing on what the
law may be or should be and not on what the law is.
Between is and ought there is a far cry. The wisdom and
propriety of legislation is not for us to pass upon. We may
think a law better otherwise than it is. But much as has
been said regarding progressive interpretation and
judicial legislation we decline to amend the law. We are
not permitted to read into the law matters and provisions
which are not there. Not for any purpose—not even to

save a statute from the doom of invalidity.
40. ID.; ID.; ID.; ID.; APPROPRIATION OF FUNDS;

APPOINTMENT OF PROBATION OFFICERS BY
SECRETARY OF JUSTICE; JUDICIAL NOTICE.—The
clear intention and policy of the law is not to make the
Insular Government defray the salaries of probation
officers in the provinces but to make the provinces defray
them should they desire to have the Probation Act apply
thereto. The sum of P50,000, appropriated "to carry out
the purposes of this Act", is to be applied, among other
things, for the salaries of probation officers in the central
office at Manila. These probation officers are to receive
such compensation as the Secretary of Justice may fix
"until such positions shall have been included in the
Appropriation Act". It was not the intention of the
legislature to empower the Secretary of Justice to fix the
salaries of probation officers in the provinces or later on.
to include said salaries in an appropriation act.
Considering, further, that
70
People vs. Vera.
the sum of P50,000, appropriated in section 10 is to cover,

among other things, the salaries of the administrative
personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even
nominal salaries to probation officers in the provinces, We
take judicial notice of the fact that there are 48 provinces
in the Philippines, and we do not think it is seriously
contended that, with the fifty thousand pesos appropriated
for the central office, there can be in. each province, as
intended, a probation officer with a salary not lower than
that of a provincial fiscal. If this is correct, the contention
that without section 11 of Act No. 4221 said act is
complete is an impracticable thing under the remainder of
the Act, unless it is conceded that there can be a system of
probation in the provinces without probation officers.
41. ID. ; PROBATION AS DEVELOPMENT OF MODERN

PENOLOGY; PROBATION ACT AS REPUGNANT TO
FUNDAMENTAL LAW.—Probation as a development of
modern penology is a commendable system. Probation
laws have been enacted, here and in other countries, to
permit what modern criminologists call the
"individualization of punishment", the adjustment of the
penalty to the character of 'the criminal and the

circumstances of his particular case. It provides a period of
grace in order to aid in the rehabilitation of a penitent
offender. It is believed that, in many cases, convicts may
be reformed and their development into hardened
criminals aborted. It, therefore, takes advantage of an
opportunity for reformation and avoids imprisonment so
long as the convict gives promise of reform. The welfare of
society is its chief end and aim. The benefit to the
individual convict is merely incidental. But while
probation is commendable as a system and' its
implantation into the Philippines should be welcomed, the
law is set aside because of repugnancy to the fundamental
law.
42. ID. ; CONSTITUTIONAL RELATIONS; RULES OF

STATUTORY CONSTRUCTION; DECISIONS OF
UNITED STATES COURTS; LOCAL CONDITIONS AND
ENVIRONMENT.—The constitutional relations between
the Federal and the State governments of the United
States and the dual character of the American
Government is a situation which does not obtain in the
Philippines. The situation of a state of the American
Union or of the District of Columbia with reference to the
Federal Government of the United States is not the
situation of a province with respect to the Insular
Government; the distinct federal and state judicial
organizations of the United States do not embrace the
integrated judicial system of the Philippines; "General
propositions do not decide concrete cases" and "to keep
pace with * * * new
71
VOL. 65, NOVEMBER 16, 1937 71
People vs. Vera.
developments of times and circumstances", fundamental

principles should be interpreted having in view existing
local conditions and environments.
ORIGINAL ACTION in the Supreme Court. Certiorari and

prohibition,
The facts are stated in the opinion of the court.
SolicitorGeneral Tuason and City Fiscal Diaz for the
Government.
DeWitt, Perkins & Ponce Enrile for the Hongkong &
Shanghai Banking Corporation. Vicente J. Francisco, Feria
& La O, Orense & Belmonte, and Gibbs & McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August

19, 1937, for the issuance of the writs of certiorari and of
prohibition to the Court of First Instance of Manila so that
this court may review the actuations of the aforesaid Court
of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et
al.", more particularly the application of the defendant
Mariano Cu Unjieng therein for probation under the
provisions of Act No. 4221, and thereafter prohibit the said
Court of First Instance from taking any further action or
entertaining further the aforementioned application for
probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in
accordance with the final judgment of conviction 1
rendered
by this court in said case (G. R. No. 41200). Petitioners
herein, the People of the Philippine Islands and the
Hongkong and Shanghai Banking Corporation, are
respectively the plaintiff and the offended party, and the
respondent herein Mariano Cu Unjieng is one of the
defendants, in the criminal case entitled "The People of the
______________
1 35 Off. Gaz., 738. See also Resolutions of December 17, 1935.
72

People vs. Vera.
Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal

case No. 42649 of the Court of First Instance of Manila and
G. R. No. 41200 of this court. Respondent herein, Hon. Jose
O. Vera, is the Judge ad interim of the seventh branch of
the Court of First Instance of Manila, who heard the
application of the defendant Mariano Cu Unjieng for
probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed
with the Court of First Instance of Manila on October 15,
1931, petitioner herein Hongkong and Shanghai Banking
Corporation in tervening in the case as private prosecutor,
After a protracted trial unparalleled in the annals of
Philippine jurisprudence both in the length of time spent
by the court as well as in the volume of the testimony and
the bulk of exhibits presented, the Court of First Instance
of Manila, on January 8, 1934, rendered a judgment of
conviction sentencing the defendant Mariano Cu Unjieng to
an indeterminate penalty ranging from four years and two

months of prisión correccional to eight years of prisión
mayor, to pay the costs and with reservation of civil action
to the offended party, the Hongkong and Shanghai
Banking Corporation. Upon appeal, the court, on March 26,
1935, modified the sentence to an indeterminate penalty of
from five years and six months of prisión correccional to
seven years, six months and twentyseven days of prisión
mayor, but affirmed the judgment in all other respects,
Mariano Cu Unjieng filed a motion for reconsideration and
four successive motions for new trial which were denied on
December 17,1935, and final judgment was accordingly
entered on December 18, 1935. The defendant thereupon
sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied
the petition for certiorari in November, 1936. This court, on
November 24, 1936, denied the petition subsequently filed
by the defendant for leave to file a second alternative
motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the
judgment.
The instant proceedings have to do with the application
73
VOL. 65, NOVEMBER 16, 1937 73

People vs. Vera.
for probation filed by the herein. respondent Mariano Cu

Unjieng on November 27, 1936, before the trial court,
under the provisions of Act No. 4221 of the defunct
Philippine Legislature. Herein respondent Mariano Cu
Unjieng states in his petition, inter alia, that he is innocent
of the crime of which he was convicted, that he has no
criminal record and that he would observe good conduct in
the future. The Court of First Instance of Manila, Judge
Pedro Tuason presiding, referred the application for
probation to the Insular Probation Office which
recommended denial of the same on June 18, 1937.
Thereafter, the Court of First Instance of Manila, seventh
branch, Judge Jose O. Vera presiding, set the petition for
hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an
opposition to the granting of probation to' the herein
respondent Mariano Cu Unjieng. The private prosecution
also filed an opposition on April 5, 1937, alleging, among
other things, that Act No. 4221, assuming that it has not
been repealed by section 2 of Article XV of the Constitution,
is nevertheless violative of section 1, subsection (1), Article
III of the Constitution guaranteeing equal protection of the
laws for the reason that its applicability is 'not uniform
throughout the Islands and because section 11 of said Act

No. 4221 endows the provincial boards with the power to
make said law effective or otherwise in their respective
provinces, The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating on
the alleged unconstitutionality of Act No. 4221, as an
undue delegation of legislative power to the provincial
boards of several provinces (sec. 1, Art. VI, Constitution).
The City Fiscal concurred in the opposition of the private
prosecution except with respect to the questions raised
concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera
promulgated a resolution with a finding that "las pruebas
no han establecido de una manera concluyente la
culpabilidad del peticionario y que todos los hechos
probados no son
74

People vs. Vera.
inconsistentes o incongruentes con su inocencia" and

concludes that the herein respondent Mariano Cu Unjieng
"es inocente por duda racional" of the crime for which he
stands convicted by this court in G, R, No. 41200, but
denying the latter's petition for probation for the reason
that:
" * * * Si este Juzgado concediera la probación solicitada por las

circunstancias y la historia social que se han expuesto en el
cuerpo de esta resolución, que hacen al peticionario acreedor "de
la misma, una parte de la opinion pública, atizada por los recelos
y las suspicacias, podría levantarse indignada contra un sistema
de probación que permite atisbar en los procedimientos ordinarios
de una causa criminal perturbando la quietud y la eficacia de las
decisiones ya recaídas al traer a la superficie conclusiones
enteramente diferentes, en menoscabo del interés público que
demanda el respeto de las leyes y del veredicto judicial."
On July 3, 1937, counsel for the herein respondent Mariano

Cu Unjieng filed an exception to the resolution denying
probation and a notice of intention to file a motion for
reconsideration. An alternative motion for reconsideration
or new trial was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for reconsideration
submitted on July 14, 1937. The aforesaid motions were set
for hearing on July 31, 1937, but said hearing was
postponed at the petition of counsel for the respondent
Mariano Cu Unjieng because a motion for leave to
intervene in the case as amici curiae signed by thirtythree
(thirtyfour) attorneys had just been filed with the trial
court. Attorney Eulalio Chaves whose signature appears in

the aforesaid motion subsequently filed a petition for leave
to withdraw his appearance as amicus curiae on the ground
that the motion for leave to intervene as amici curiae was
circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed
the same "without mature deliberation and purely as a
matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed
75
VOL. 65, NOVEMBER 16, 1937 75

People vs. Vera.
a motion with the trial court for the issuance of an order of

execution of the judgment of this court in said case and
forthwith to commit the herein respondent Mariano Cu
Unjieng to jail in obedience to said judgment.
On August 1, 1937, the private prosecution filed its
opposition to the motion for leave to intervene as amici
curiae aforementioned, asking that a date be set for the
hearing of the same and that, at all events, said motion
should be denied with respect to certain attorneys signing
the same who were members of the legal staff of the several
counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order
requiring all parties including the movants for intervention
as amici curiae to appear before the court on August 14,
1937. On the lastmentioned date, the Fiscal of the City of
Manila moved for the hearing of his motion for execution of
judgment in preference to the motion for leave to intervene
as amici curiae but, upon objection of counsel for Mariano
Cu Unjieng, he moved for the postponement of the hearing
of both motions. The respondent judge thereupon set the
hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene as
amici curiae as in order. Evidence as to the circumstances
under which said motion for leave to intervene as amici
curiae was signed and submitted to court was to have been
heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal
process to put an end to what they alleged was an
interminable proceeding in the Court of First Instance of
Manila which fostered "the campaign of the defendant
Mariano Cu Unjieng for delay in the execution of the
sentence imposed by this Honorable Court on him,
exposing the courts to criticism and ridicule because of the
apparent inability of the judicial machinery to make
effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was

accordingly suspended upon the issuance of a temporary
restraining order by this court on August 21, 1937.
76

People vs. Vera.
To support their petition for the issuance of the

extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted
without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to
place respondent Mariano Cu Unjieng under probation for
the following reasons:
(1) Under section 11 of Act No. 4221, the said Act of the
Philippine Legislature is made to apply only to the
provinces of the Philippines; it nowhere states that
it is to be made applicable to chartered cities like
the City of Manila.
(2) While section 37 of the Administrative Code
contains a proviso to the effect that in the absence
of a special provision, the term "province" may be
construed to include the City of Manila for the
purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a
law of general application because it is made to
apply only to those provinces in which the
respective provincial boards shall have provided for
the salary of a probation officer.
(3) Even if the City of Manila were considered to be a
province, still, Act No. 4221 would not be applicable
to it because it has not provided for the salary of a
probation officer as required by section 11 thereof;
it being immaterial that there is an Insular
Probation Office willing to act for the City of
Manila, said Probation Office provided for in section
10 of Act No. 4221 being different and distinct from
the Probation Officer provided for in section 11 of
the same Act.
II. Because even if the respondent judge originally had

jurisdiction to entertain the application for probation of the
respondent Mariano Cu Unjieng, he nevertheless acted
without jurisdiction or in excess thereof in continuing to
entertain the motion for reconsideration and by failing to
commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the

reason that:
77
VOL. 65, NOVEMBER 16, 1937 77

People vs. Vera.
(1) His jurisdiction and power in probation proceedings

is limited by Act No. 4221 to the granting or
denying of applications for probation.
(2) After he had issued the order denying Mariano Cu
Unjieng's petition for probation on June 28, 1937, it
became final and executory at the moment of Its
rendition.
(3) No right of appeal exists in such cases.
(4) The respondent judge lacks the power to grant a
rehearing of said order or to modify or change the
same.
III. Because the respondent judge made a finding that

Mariano Cu Unjieng is innocent of the crime for which he
was convicted by final judgment of this court, which finding
is not only presumptuous but without foundation in fact
and in law, and is furthermore in contempt of this court
and a violation of the respondents's oath of office as ad
interim judge of first instance.
IV. Because the respondent judge has violated and
continues to violate his duty, which became Imperative
when he issued his order of June 28, 1937, denying the
application for probation, to commit his corespondent to
jail.
Petitioners also aver that they have no other plain,
speedy and adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937,
the petitioner Hongkong and Shanghai Banking
Corporation further contends that Act No. 4221 of the
Philippine Legislature providing for a system of probation
for persons eighteen years of age or over who are convicted
of crime, is unconstitutional because it is violative of
section 1, subsection (1), Article III, of the Constitution of
the Philippines guaranteeing equal protection of the laws
because it confers upon the provincial board of each
province the absolute discretion to make said law operative
or otherwise in their respective provinces, because it
constitutes an unlawful and Improper delegation to the
provincial boards of. the several provinces of the legislative
power lodged by the Jones Law (section 8) in the Philippine
Legislature and by the Constitution (section 1, Art. VI) in
the National Assembly; and for the further reason that it
gives
78

People vs. Vera.
the provincial boards, in contravention of the Constitution

(section 2, Art. VIII) and the Jones Law (section 28), the
authority to enlarge the powers of the Courts of First
Instance of the different provinces without uniformity. In
another supplementary petition dated September 14, 1937,
the Fiscal of the City of Manila, in behalf of one of the
petitioners, the People of the Philippine Islands, concurs
for the first time with the issues raised by the other
petitioner regarding the constitutionality of Act No. 4221,
and in the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a f form of
reprieve and therefore Act No. 4221 is an encroachment on
the exclusive power of the Chief Executive to grant pardons
and reprieves. On October 1, 1937, the City Fiscal filed two
memorandums in which he contended that Act No. 4221
not only encroaches upon the pardoning power of the
executive, but also constitutes an unwarranted delegation
of legislative power and a denial of the equal protection of
the laws. On October 9, 1937, two memorandums, signed
jointly by the City Fiscal and the SolicitorGeneral, acting
in behalf of the People of the Philippine Islands, and by
counsel f or the other petitioner, the Hongkong and
Shanghai Banking Corporation, one sustaining the power
of the state to impugn the validity of its own laws and the
other contending that Act No. 4221 constitutes an
unwarranted delegation of legislative power, were
presented. Another joint memorandum was filed by the
same persons on the same day, October 9, 1937, alleging
that Act No. 4221 is unconstitutional because it denies the.
equal protection of the laws and constitutes an unlawfull
delegation of legislative power and, further, that the whole
Act is void; that the Commonwealth is not estopped from
questioning the validity of its laws; that the private
prosecution may intervene in probation proceedings and
may attack the probation law as unconstitutional; and that
this court may pass upon the constitutional question in
prohibition proceedings.
Respondents in their answer dated August 31, 1937, as
well as in their oral argument and memorandums,
challenge
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VOL. 65, NOVEMBER 16, 1937 79

People vs. Vera.
each and every one of the foregoing proposition raised by

the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts

sufficient in law to warrant the issuance of the writ
of certiorari or of prohibition.
(2) That the aforesaid petition is premature because
the remedy sought by the petitioners is the very
same remedy prayed for by them before the trial
court and was still pending resolution before the
trial court when the present petition was filed with
this court.
(3) That the petitioners having themselves raised the
question as to the execution of judgment before the
trial court, said trial court has acquired exclusive
jurisdiction to resolve the same under the theory
that its resolution denying probation is
unappealable.
(4) That upon the hypothesis that this court has
concurrent jurisdiction with the Court of First
Instance to decide the question as to whether or not
execution will lie, this court nevertheless cannot
exercise said jurisdiction while the Court of First
Instance has assumed jurisdiction over the same
upon motion of herein petitioners themselves.
(5) That the procedure followed by the herein
petitioners in seeking to deprive the trial court of
"its jurisdiction over the case and elevate the
proceedings to this court, should not be tolerated
because it impairs the authority and dignity of the
trial court which court while sitting in probation
cases is "a court of limited jurisdiction but of great
dignity."
(6) That under the supposition that this court has
jurisdiction to resolve the question submitted to
and pending resolution by the trial court, the
present action would not lie because the resolution
of the trial court denying probation is appealable;
for although the Probation Law does not specifically
provide that an applicant for probation may appeal
from a resolution of the Court of First Instance
denying probation, still it is a general rule in this
jurisdic
80

People vs. Vera.
tion that a final order, resolution or decision of an

inferior court is appealable to the superior court.
(7) That the resolution of the trial court denying
probation of herein respondent Mariano Cu Unjieng
being appealable, the same had not yet become final
and executory for the reason that the said
respondent had filed an alternative motion for
reconsideration and new trial within the requisite
period of fifteen days, which motion the trial court
was not able to resolve in view of the restraining
order improvidently and erroneously issued by this
court.
(8) That the Fiscal of the City of Manila had by
implication admitted that the resolution of the trial
court denying probation is not final and
unappealable when he presented his answer to the
motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
(9) That under the supposition that the order of the
trial court denying probation is not appealable, it is
incumbent upon the accused to file an action for the
issuance of the writ of certiorari with mandamus, it
appearing that the trial court, although it believed
that the accused was entitled to probation,
nevertheless denied probation for fear of criticism
because the accused is a rich man; and that, before
a petition for certiorari grounded on an irregular
exercise of jurisdiction by thetrial court could lie,
it is incumbent upon the petitioner to file a motion
for reconsideration specifying the error committed
so that the trial court could have an opportunity to
correct or cure the same.
(10) That on the hypothesis that the resolution of the
trial court is not appealable, the trial court retains
its jurisdiction within a reasonable time to correct
or modify it in accordance with law and justice; that
this power to alter or modify an order or resolution
is inherent in the courts and may be exercised
either motu proprio or upon petition of the proper
party, the petition in the latter case taking the form
of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the
trial court is appealable as respondents allege, said
court
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VOL. 65, NOVEMBER 16, 1937 81

People vs. Vera.
cannot order execution of the same while it is on

appeal, for then the appeal would not be availing
because the doors of probation would be closed from
the moment the accused commences to serve his
sentence (Act Not. 4221, sec. 1; U. S. vs. Cook, 19
Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel

for the respondents maintain that Act No. 4221 is
constitutional because, contrary to the allegations of the
petitioners, it does not constitute an undue delegation of
legislative power, does not infringe the equal protection
clause of the Constitution, and does not encroach upon the
pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the
respondents reiterate the view that section 11 of Act No.
4221 is free from constitutional objections and contend, in
addition, that the private prosecution may not intervene in
probation proceedings, much less question the validity of
Act No. 4221; that both the City Fiscal and the Solicitor
General are estopped from questioning the validity of the
Act; that the validity of the Act cannot be attacked for the
first time before this court; that prohibition is unavailable;
and that, in any event, section 11 of Act No. 4221 is
separable from the rest of the Act. The last memorandum
for the respondent Mariano Cu Unjieng was denied for
having been filed out of time but was admitted by
resolution of this court and filed anew on November 5,
1937. This memorandum elaborates on some of the points
raised by the respondents and refutes those brought up by
the petitioners.
In the scrutiny of the pleadings and examination of the
various aspects of the present case, we noted that the court
below, in passing upon the merits of the application of the
respondent Mariano Cu Unjieng and in denying the said
application assumed the task not only of considering the
merits of the application, but of passing upon the
culpability of the applicant, notwithstanding the final
pronouncement of guilt by this court. (G. R. No. 41200.)
Probation implies guilt by final judgment. While a
probation court hearing a probation case may look into the
82

People vs. Vera.
circumstances attending the commission of the offense, this

does not authorize it to reverse the findings and
conclusions of this court, either directly or indirectly,
especially where from its own admission reliance was
merely had on the printed briefs, averments, and pleadings

of the parties. As already observed by this.court in Shioji
vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in
subsequent cases, "if each and every Court of First
Instance could enjoy the privilege of overruling decisions of
the Supreme Court, there would be no end to litigation, and
judicial chaos would result." A becoming modesty of inferior
courts demands conscious realization of the position that
they occupy in the interrelation and operation of the
integrated judicial system of the nation.
After threshing carefully the multifarious issues raised
by both counsel for the petitioners and the respondents,
this court prefers to cut the Gordian knot and take up at
once the two fundamental questions presented, namely, (1)
whether or not the constitutionality of Act No. 4221 has
been properly raised in these proceedings; and (2) in the
affirmative, whether or not said Act is constitutional.
Consideration of these issues will involve a discussion of
certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question,
resort to certain guiding principles is necessary. It is a
wellsettled rule that the constitutionality of an act of the
legislature will not be determined by the courts unless that
question is properly raised\and presented in appropriate
cases and is necessary to a determination of the case; i. e.,
the issue of constitutionality must be the very lis mota
presented. (McGirr vs. Hamilton and Abreu [1915], 30
Phil., 563, 568; 6 R. C.L., pp. 76, 77; 12 C. J., pp. 780782,
783.)
The question of the constitutionality of an act of the
legislature is frequently raised in ordinary actions.
Nevertheless, resort may be made to extraordinary legal
remedies, particularly where the remedies in the ordinary
course of law even if available, are not plain, speedy and
83
VOL. 65, NOVEMBER 16, 1937 83

People vs. Vera.
adequate. Thus, in Cu Unjieng vs. Patstone ([1922], 42

Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the
petitioner in mandamus proceedings (see, also, 12 C. J., p.
783); and in Government of the Philippine Islands vs.
Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S.,
189; 72 Law. ed., 845]), this court declared an act of the
legislature unconstitutional in an action of quo warranto
brought in the name of the Government of the Philippines.
It has also been held that the constitutionality of a statute
may be questioned in habeas corpus proceedings (12 C. J.,

p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117),
although there are authorities to the contrary; on an
application for injunction to restrain action under the
challenged statute (mandatory, see Cruz vs. Youngberg
[1931], 56 Phil., 234) ; and even on an application for
preliminary injunction where the determination of the
constitutional question is necessary to a decision of the
case. (12 C. J., p. 783.) The same may be said as regards
prohibition and certiorari. (Yu Cong Eng vs. Trinidad
[1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed.,
1059; Bell vs. First Judicial District Court [1905], 28 Nev.,
280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L.
R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng
vs. Trinidad, supra, decided by this court twelve years ago
was, like the present one, an original action for certiorari
and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was
there challenged by the petitioners, and the constitutional
issue was met squarely by the respondents in a demurrer.
A point was raised "relating to the propriety of the
constitutional question being decided in original
proceedings in prohibition." This court decided to take up
the constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional. The
case was elevated on writ of certiorari to the Supreme
Court of the United States which reversed the judgment of
this court and held that the Act was invalid. (271 U. S.,
84

People vs. Vera.
500; 70 Law. ed., 1059.) On the question of jurisdiction,

however, the Federal Supreme Court, though its Chief
Justice, said:
"By the Code of Civil Procedure of the Philippine Islands, section

516, the Philippine supreme court is granted concurrent
jurisdiction in prohibition with courts of first instance over
inferior tribunals or persons, and original jurisdiction over courts
of first instance, when such courts are exercising functions
without or in excess of their jurisdiction. It has been held by that
court that) the question of the validity of a criminal statute must
usually be raised by a defendant in the trial court and be carried
regularly in review to the Supreme Court. (CadwalladerGibson
Lumber Co. vs. Del Rosario, 26 Phil., 192.) But in this case where
a new act seriously affected numerous persons and extensive
property rights, and was likely to cause a multiplicity of actions,
the Supreme Court exercised its discretion to bring the issue of
the act's validity promptly before it and decide it in the interest of
the orderly administration of justice. The court relied by analogy

upon the cases of Ex parte Young (209 U. S., 123; 52 Law. ed.,
714; 13 L. R. A. [N. S.], 932; 28 Sup. Ct. Rep., 441; 14 Ann. Cas.,
764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A.
1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and
Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E,
938; 37 Sup. Ct. Rep., 298; Ann. Cas., 1918A, 1024). Although
objection to the jurisdiction was raised by demurrer to the
petition, this is now disclaimed on behalf of the respondents, and
both parties ask a decision on the merits. In view of broad powers
in prohibition granted to that court under the Island Code, we
acquiesce in the desire of the parties."
The writ of prohibition is an extraordinary judicial writ

issuing out of a court of superior jurisdiction and directed
to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it
is not legally vested.) (High, Extraordinary Legal
Remedies, p. 705.) The general rule, although there
85
VOL. 65, NOVEMBER 16, 1937 85

People vs. Vera.
is a conflict in the cases, is that the Writ of prohibition will

not lie where the inferior court has jurisdiction
independent of the statute the constitutionality of which is
questioned, because in such cases the inferior court having
jurisdiction may itself determine the constitutionality of
the statute, and its decision may be subject to review, and
consequently the complainant in such cases ordinarily has
adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives
its jurisdiction exclusively from an unconstitutional statute,
it may be prevented by the writ of prohibition from
enforcing that statute. (50 C. J., 670; Ex parte Roundtree
[1874], 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365;
Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799;
Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs.
Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings
derive their jurisdiction solely from Act No. 4221 which
prescribes in detailed manner the procedure for granting
probation to accused persons after their conviction has
become final and before they have served their sentence. It
is true that at common law the authority of the courts to
suspend temporarily the execution of a sentence is
recognized and, according to a number of state courts,
including those of Massachusetts, Michigan, New York,
and Ohio, the power is inherent in the courts
(Commonwealth vs. Dowdican's Bail [1874], 115 Mass.,

133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W.,
497; People ex rel. Forsyth vs. Court of Sessions [1894], 141
N. Y., 288; Weber vs. State [1898], 58 Ohio St, 616). But, in
the leading case of Ex parte United States ([1916], 242 U.
S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the
United States expressed the opinion that under the
common law the power of the court was limited to
temporary suspension, and brushed aside the contention as
to inherent judicial power saying, through Chief Justice
White:
86

People vs. Vera.
"Indiputably under our conctitutional system the right to try

offenses against the criminal laws and upon conviction to impose
the punishment provided by law is judicial, and it is equally to be
conceded that, in exerting the powers vested in them on such
subject, courts inherently possess ample right to exercise
reasonable, that is, judicial, discretion to enable them to wisely
exert their authority. But these concessions afford no ground for
the contention as to power here made, since it must rest upon the
proposition that the power to enforce begets Inherently a
discretion to permanently refuse to do so. And the effect of the
proposition urged upon the distribution of powers made by the
Constitution will become apparent when it is observed that
indisputable also is it that the authority to define and fix the
punishment for crime is legislative and includes the right in
advance to bring within judicial discretion, for the purpose of
executing the statute, elements of consideration which would be
otherwise beyond the scope of judicial authority, and that the
right to relieve from the punishment, fixed by law and ascertained
according' to the methods by it provided belongs to the executive
department."
Justice Carson, in his illuminating concurring opinion in

the case of Director of Prisons vs. Judge of First Instance of
Cavite (29 Phil., 265), decided by this court in 1915, also
reached the conclusion that the power to suspend the
execution of sentences pronounced in criminal cases is not
inherent in the judicial function. "All are agreed", he said,
"that in the absence of statutory authority, it does not lie
within the power of the courts to grant.such suspensions."
(at p. 278.) Both petitioners and respondents are correct,
therefore, when they argue that a Court of First Instance
sitting in probation proceedings is a court of limited
jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine

Legislature.
It is, of course, true that the constitutionality of a
statute will not be considered on application for prohibition
87
VOL. 65, NOVEMBER 16, 1937 87

People vs. Vera.
where the question has not been properly brought to the

attention of the court by objection of some kind (Hill vs.
Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly
vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case
at bar, it is unquestionable that the constitutional issue
has been squarely presented not only before this court by
the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O. Vera, however,
acting as judge of the court below, declined to pass upon
the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may
not raise said question. The respondent judge cited Cooley
on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec.
177, pp. 760 and 762), and McGlue vs. Essex County
([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for
the proposition that a court will not consider any attack
made on the constitutionality of a statute by one who has
no interest in defeating it because his rights are not
affected by its operation. The respondent judge further
stated that it may not motu proprio take up the
constitutional question and, agreeing with Cooley that "the
power to declare a legislative enactment void is one which
the judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official
oath decline the responsibility" (Constitutional Limitations,
8th ed., Vol. I, p. 332), proceeded on the assumption that
Act No. 4221 is constitutional. While, therefore, the court a
quo admits that the constitutional question was raised
before it, it refused to consider the question solely because
it was not raised by a proper party. Respondents herein
reiterate this view. The argument is advanced that the
private prosecution has no personality to appear in the
hearing of the application for probation of defendant
Mariano Cu Unjieng in criminal case No. 42648 of the
Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court,
Al
88

People vs. Vera.
though, as a general rule, only those who are parties to a

suit may question the constitutionality of a statute
involved in a judicial decision, it has been held that since
the decree pronounced by a court without jurisdiction is
void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of
constitutionality will be considered on its being brought to
the attention of the court by persons interested in the effect
to be given the statute. (12 C. J., sec. 184, p. 766.) And,
even if we were to concede that the issue was not properly
raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original
action of certiorari and prohibition. It is true that, as a
general rule, the question of constitutionality must be
raised at the earliest opportunity, so that if not raised by
the pleadings, ordinarily it may not be raised at the trial,
and if not raised in the trial court, it will not be considered
on appeal. (12 C. J., p. 786. See, also, CadwalladerGibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193195.) But we
must state that the general rule admits of exceptions.
Courts, in the exercise of sound discretion, may determine
the time when a question affecting the constitutionality of
a statute should be presented. (In re Woolsey [1884], 95 N.
Y., 135, 144.) Thus, in criminal cases, although there is a
very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the
proceedings, either in the trial court or on appeal. (12 C. J.,
p. 786.) Even in civil cases, it has been held that it is the
duty of a court to pass on the constitutional question,
though raised for the first time on appeal, if it appears that
a determination of the question is necessary to a decision of
the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co.
[1910], 136 Ky., 674; 124 S. W., ,892; Lohmeyer vs. St.
Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87
S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court below
(State vs.
89
VOL. 65, NOVEMBER 16, 1937 89

People vs. Vera.
Burke [1911], 175 Ala., 561; 57 S., 870,) As to the power of

this court to consider the constitutional question raised for
the first time before this court in these proceedings, we
turn again and point with emphasis to the case of Yu Cong

Eng vs. Trinidad, supra. And on the hypothesis that the
Hongkong & Shanghai Banking Corporation, represented
by the private prosecution, is not the proper party to raise
the constitutional question here—a point we do not now
have to decide—we are of the opinion that the People of the
Philippines, represented by the SolicitorGeneral and the
Fiscal of the City of Manila, is such a proper party in the
present proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of
Its enforcement. It goes without saying that if Act No. 4221
really violates the Constitution, the People of the
Philippines, in whose name the present action is brought,
has a substantial interest in having it set aside. Of greater
import than the damage caused by the illegal expenditure
of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute.
Hence, the wellsettled rule that the state can challenge
the validity of its own laws. In Government of the
Philippine Islands vs. Springer ([1927], 50 Phil, 259
(affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U. S., 189; 72 Law. ed., 845), this court
declared an act of the legislature unconstitutional in an
action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73
Mich, 303, 311, 312; 41 N. W. 426, 428, 429), the State of
Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under
which the respondents base their right was
unconstitutional because it impaired the obligation of
contracts. The capacity of the chief law officer of the state
to question the constitutionality of the statute was
90

People vs. Vera.
itself questioned. Said the Supreme Court of Michigan,

through Champlin, J.:
"* * * The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives;
that to an accusation by the people of Michigan of usurpation
upon their government, a statute enacted by the people of
Michigan is an adequate answer. The last proposition is true, but,
if the statute relied on in justification is unconstitutional, it is a
statute only in form, and lacks the force of law, and is of no more
saving effect to justify action under it than if it had never been
enacted. The constitution is the supreme law, and to its behests

the courts, the legislature, and the people must bow. * * * The
legislature and the respondents are not the only parties in
interest upon such. constitutional questions. As was remarked by
Mr. Justice Story, in speaking of an acquiescence by a party
affected by an unconstitutional act of the legislature: 'The people
have a deep and vested interest in maintaining all the
constitutional limitations upon the exercise of legislative powers.'
(Allen vs. Mckeen, 1 Sum., 314.)"
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40),
an original action (mandamus) was brought by the
AttorneyGeneral of Kansas to test the constitutionality of
a statute of the state. In disposing of the question whether
or not the state may bring the action, 'the Supreme Court
of Kansas said:
"* * * The state is a proper party—indeed, the proper party—to

bring this action. The state is always interested where the
integrity of its Constitution or statutes is involved.
" 'lt has an interest in seeing that the will of the Legislature is
not disregarded, and need not, as an individual plaintiff must,
show grounds of fearing more specific injury. (State vs. Kansas
City, GO Kan., 518 [57 Pac., 118]'). (State vs. Lawrence, 80 Kan.,
707; 103 Pac., 839.)
"Where the constitutionality of a statute is in doubt the state's
law officer, its AttorneyGeneral, or county attor
91
VOL. 65, NOVEMBER 16, 1937 91

People vs. Vera.
ney, may exercise his best judgment as to what sort of action he

will bring to have the matter determined, either by quo warranto
to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac.,
1068; 49 L. R. A., 662), by mandamus to compel obedience to its
terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by
injunction to restrain proceedings under its questionable
provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45
Pac., 122)."
Other courts have reached the same conclusion (See State

vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs.
S. H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley
[1935], 181 La., 597; 160 S., 91; State vs. Board of County
Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of
Brooklyn vs. State [1917], 221 N. Y., 295; 116 N. E., 1020;
Bush vs. State [1918], 187 Ind., 339; 119 N. E., 417; State
vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the
case last cited, the Supreme Court of Louisiana said:
"It is contended by counsel for Herbert Watkins that a

district attorney, being charged with the duty of enforcing
the laws, has no right to plead that a law is
unconstitutional. In support of the argument, three
decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann.,
1222) ; State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 La. Ann., 156; 6 So., 592) ; and
State ex rel. Banking Co., etc. vs. Heard, Auditor (47 La.
Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions
do not forbid a district attorney to plead that a statute is
unconstitutional if he finds it in conflict with one which it
is his duty to enforce. In State ex rel. Hall, District
Attorney, vs. Judge, etc., the ruling was that the judge
should not, merely because he believed a certain statute to
be unconstitutional, forbid the district attorney to file a bill
of information charging a person with a violation of the
statute. In other words, a judge should not judicially
declare a statute unconstitutional until the question of
constitutionality is tendered f or decision, and unless it
must be decided in order to determine the right of a party
litigant. State ex rel.
92

People vs. Vera.
Nicholls, Governor, etc., is authority for the proposition

merely that an officer on whom a statute imposes the duty
of enforcing its provisions cannot avoid the duty upon the
ground that he considers the statute unconstitutional, and
hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex
rel. Banking Co., etc., is authority for the proposition
merely that executive officers, e. g., the state auditor and
state treasurer, should not decline to perform ministerial
duties imposed upon them by a statute, on the ground that
they believe the statute is unconstitutional.
"It is the duty of a district attorney to enforce the criminal laws of

the state, and, above all, to support the Constitution of the state.
If, in the performance of his duty he finds two statutes in conflict
with each other, or one which repeals another, and if, in his
judgment, one of the two statutes is unconstitutional, it is his
duty to enforce the other; and, in order to do so, he is compelled to
submit to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the Legislature
would be free from constitutional limitations in the enactment of
criminal laws."
The respondents do not seem to doubt seriously the

correctness of the general proposition that the state may
impugn the validity of its laws. They have not cited any
authority running clearly in the opposite direction. In f act,
they appear to have proceeded on the assumption that the
rule as stated is sound but that it has no application in the
present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the
validity of the Probation Act cannot be attacked for the
first time before this court, that the City Fiscal is estopped
from attacking the validity of the Act and, not being
authorized to enforce laws outside of the City of Manila,
cannot challenge the validity of the Act in its application
outside said city. (Additional memorandum of respondents,
October 23, 1937, pp. 8, 10, 17 and 23.)
93
VOL. 65, NOVEMBER 16, 1937 93

People vs. Vera.
The mere fact that the Probation Act has been repeatedly
relied upon in the past and all that time has not been
attacked as unconstitutional by the Fiscal of Manila but, on
the contrary, has been impliedly regarded by him as
constitutional, is no reason for considering the People of
the Philippines estopped from now assailing its validity.
For courts will pass upon a constitutional question only
when presented before it in bona fide cases for
determination, and the fact that the question has not been
raised before is not a valid reason for refusing to allow it to
be raised later. The fiscal and all others are justified in
relying upon the statute and treating it as valid until it is
held void by the courts in proper cases.
It remains to consider whether the determination of the
constitutionality of Act No. 4221 is necessary to the
resolution of the instant case. For, "* * * while the court
will meet the question with firmness, where its decision is
indispensable, it is the part of wisdom, and a just respect
for the legislature, renders it proper, to waive it, if the case
in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11,558; 2 Brock. 447.
Vide, also, Hoover vs. Wood [1857], 9 Ind., 286, 287.) It has
been held that the determination of a constitutional
question is necessary whenever it is essential to the
decision of the case (12 C. J., p. 782, citing Long Sault Dev.
Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y.
Supp., 454 [aff. 212 N. Y., 1; 105 N. E., 849; Ann. Cas.
1915D, 56; and app dism 242 U. S., 272] ; Hesse vs.
Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22
Gratt [63 Va.], 458; Union Line Co. vs. Wisconsin R.

Commn., 146 Wis., 523; 129 N. W., 605), as where the right
of a party is? founded solely on a statute, the validity of
which is attacked. (12 C. J., p. 782, citing Central Glass Co.
vs. Niagara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs.
Beverly, 188 Mass., 81; 74 N. E., 306). There is no doubt
that the respondent Cu Unjieng draws his privilege to
probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, this court will
94

People vs. Vera.
also take cognizance of the fact that the Probation Act is a

new addition to our statute books and its validity has
never before been passed upon by the courts; that many
persons accused and convicted of crime in the City of
Manila have applied for probation; that some of them are
already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a
period of about four years since his first conviction. All
await the decision of this court on the constitutional
question. Considering, therefore, the importance which the
instant case has assumed and to prevent multiplicity of
suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong
Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S.,
500; 70 Law. ed., 1059. See 6 R. C. L., pp. 77, 78; People vs.
Kennedy [1913], 207 N. Y., 533; 101 N. E., 442, 444; Ann.
Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis.,
327; 133 N. W., 209, 211; 37 L. R. A. [N. S.], 489; Dimayuga
and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu
Cong Eng vs. Trinidad, supra, an analogous situation
confronted us. We said: "Inasmuch as the property and
personal rights of nearly twelve thousand merchants are
affected by these proceedings, and inasmuch as Act No.
2972 is a new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement of
public policy, we have determined to overrule the defense of
want of jurisdiction in order that we may decide the main
issue. We have here an extraordinary situation which calls
for a relaxation of the general rule." Our ruling on this
point was sustained by the Supreme Court of the United
States. A more binding authority in support of the view we
have taken can not be found.
We have reached the conclusion that the question of the
constitutionality of Act No. 4221 has been properly raised.
Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and

duty of the judiciary to enforce the' Constitution. This
95
VOL. 65, NOVEMBER 16, 1937 95

People vs. Vera.
court, by clear implication from the provisions of section 2,

subsection 1, and section 10, of Article VIII of the
Constitution, may declare an act of the national legislature
invalid because in conflict with the fundamental law. It will
not shirk from its sworn duty to enforce the Constitution.
And, in clear cases, it will not hesitate to give effect to the
supreme law by setting aside a statute in conflict
therewith. This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria
in cases of this nature that all reasonable doubts should be
resolved in favor of the constitutionality of a statute. An act
of the legislature approved by the executive, is presumed to
be within constitutional Iimitations. The responsibility of
upholding the Constitution. .rests not on the courts alone
but on the legislature as well. "The question of the validity
of every statute is first determined by the legislative
department of the government itself." (U. S. vs. Ten Yu,
[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser
[1913], 24 Phil., 250, 276; U. S. vs. Joson [1913], 26 Phil.,
1.) And a statute finally comes before the courts sustained
by the sanction of the executive. The members of the
Legislature and. the Chief Executive have taken an oath. to
support the Constitution and it must be presumed that
they have been true to this oathand that in enacting and
sanctioning a particular law they, did not intend to violate
the Constitution. The courts cannot but cautiously exercise
its power to overturn the solemn declarations of two of the
three grand departments of the government. (6 R. G. L., p.
101.) Then, there is that peculiar political philosophy which
bids the judiciary to reflect the wisdom of the people as
expressed through an elective Legislature and an elective
Chief Executive. It follows, therefore, that the courts will
not set aside a law as violative of the Constitution except in
a clear case. This is a proposition too plain to require a
citation of authorities.
One of the counsel for respondents, in the course of his
impassioned argument, called attention to the fact that the
President of the Philippines had already expressed his
opinion against the constitutionality of the Probation Act,
96

People vs. Vera.
adverting that as to the Executive the resolution of this

question was a foregone conclusion. Counsel, however,
reiterated his confidence in the integrity and independence
of this court. We take notice of the fact that the President
in his message dated September 1, 1937, recommended to
the National Assembly the immediate repeal of the
Probation Act (No. 4221) ; that this message resulted in the
approval of Bill No. 2417 of the National Assembly
repealing the Probation Act, subject to certain conditions
therein mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his wish,
"to have stricken out from the statute books of the
Commonwealth a law * * * unfair and very likely
unconstitutional."' It is sufficient to observe in this
connection that, in vetoing the bill referred to, the
President exercised his constitutional prerogative. He may
express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the
determination of actual controversies submitted for our
determination. Whether or not the Executive should
express or in any manner insinuate his opinion on a matter
encompassed within his broad constitutional power of veto
but which happens to be at the same time pending
determination in this court is a question of propriety for
him exclusively to decide or determine. Whatever opinion is
expressed by him under these circumstances, however,
cannot sway our judgment one way or another and prevent
us from taking what in our opinion is the proper course of
action to take in a given case. If it is ever necessary for us
to make any vehement affirmance during this formative
period of our political history, it is that we are independent
of the Executive no less than of the Legislative department
of our government—independent in the performance of our
functions, undeterred by any consideration, free from
politics, indifferent to popularity, and unafraid of criticism
in the accomplishment of our sworn duty as we see it and
as we understand it.
The constitutionality of Act No. 4221 is challenged on
three principal grounds: (1) That said Act encroaches
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People vs. Vera.
upon the pardoning power of the Executive; (2) that it

constitutes an undue delegation of legislative power; and
(3) that it denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916,

commonly known as the Jones Law, in force at the time of
the approval of Act No. 4221, otherwise known as the
Probation Act, vests in the GovernorGeneral of the
Philippines "the exclusive power to grant pardons and
reprieves and remit fines and forfeitures". This power is
now vested in the President of the Philippines. (Art. VII,
sec. 11, subsec. 6.) The provisions of the Jones Law and the
Constitution differ in some respects. The adjective
"exclusive" found in the Jones Law has been omitted from
the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of
the offense, either before or after conviction (Vide
Constitution of the United States, Art. II, sec. 2; In re
Lontok [1922], 43 Phil., 293). The GovernorGeneral of the
Philippines was thus empowered, like the President of the
United States, to pardon a person before the facts of the
case were fully brought to light. The framers of our
Constitution thought this undesirable and, following most
of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So, too,
under the new Constitution, the pardoning power does not
extend to "cases of impeachment". This is also the rule
generally followed in the United States (Vide Constitution
of the United States, Art. II, sec. 2). The rule in England is
different. There, a royal pardon can not be pleaded in bar of
an impeachment; "but," says Blackstone, "after the
impeachment has been solemnly heard and determined, it
is not understood that the king's royal grace is further
restrained or abridged." (Vide, Ex parte Wells [1856], 18
How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109
Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29
Ohio St., 457; 23 Am. Rep., 762.) The reason for the
distinction is obvious. In England, judgment on
impeachment is not confined to mere "removal from
98

People vs. Vera.
office and disqualification to hold and enjoy any office of

honor, trust, or profit under the Government" (Art. IX, sec.
4, Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The
House of Lords, on a conviction may, by its sentence, inflict
capital punishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense
committed, together with removal from office and
incapacity to hold office. (Com. vs. Lockwood, supra.) Our
Constitution also makes specific mention of "commutation"
and of the power of the executive to impose, in the pardons

he may grants such conditions, restrictions and limitations
as he may deem proper, Amnesty may be granted by the
President under the Constitution but only with the
concurrence of the National Assembly. We need not dwell
at length on the significance of these fundamental changes.
It is sufficient for our purposes to state that the pardoning
power has remained essentially the same. The question is:
Has the pardoning power of the Chief Executive under the
Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning
power exclusively in the Chief Executive. The exercise of
the power may not, therefore, be vested in anyone else. " * *
* The benign prerogative of mercy reposed in the executive
cannot be taken away nor fettered by any legislative
restrictions, nor can like power be given by the legislature
to any other officer or authority. The coordinate
departments of government have nothing to do with the
pardoning power, since no person properly belonging to one
of the departments can exercise any powers appertaining to
either of the others except in cases expressly provided for
by the constitution." (20 R. C. L,, pp. 540, 541, and cases
cited.) "* * * where the pardoning power is conferred on the
executive without express or implied limitations, the grant
is exclusive, and the legislature can neither exercise such
power itself nor delegate It elsewhere, nor interfere with or
control the proper exer
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VOL. 65, NOVEMBER 16, 1937 99

People vs. Vera.
cise thereof, * * *." (12 C. J., pp. 838, 839, and cases cited.)
If Act No. 4221, then, confers any pardoning power upon
the courts it is for that reason unconstitutional and void.
But does it?
In the famous Killitts decision involving an
embezzlement case, the Supreme Court of the United
States ruled in 1916 that an order indefinitely suspending
sentence was void. (Ex parte United States [1916], 242 U.
S., 27; 61 Law. ed., 129; L. R. A. 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann, Cas. 1917B, 355.) Chief Justice White, after
an exhaustive review of the authorities, expressed the
opinion of the court that under the common law the power
of the court was limited to temporary suspension and that
the right to suspend sentence absolutely and permanently
was vested in the executive branch of the government and
not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through
its Chief Justice: " * * * and so far as the future is
concerned, that is, the causing of the imposition of

penalties as fixed to be subject, by probation legislation or
such other means as the legislative mind may devise, to
such judicial discretion as may be adequate to enable
courts to meet by the exercise of an enlarged but wise
discretion the infinite variations which may be presented to
them for judgment, recourse must be had to Congress
whose legislative power on the subject is in the very nature
of things adequately complete." ('Quoted in Riggs vs.
United States [1926], 14 F. [2d], 5, 6.) This decision led the
National Probation Association and others to agitate for
the enactment by Congress of a federal probation law. Such
action was finally taken on March 4, 1925 (chap. 521, 43
Stat. at L. 1259, U. S. C. title 18, sec. 724). This was
followed by an appropriation to defray the salaries and
expenses of a certain number of probation officers chosen
by civil service. (Johnson, Probation for Juveniles and
Adults, p. 14.)
In United States vs. Murray ([1925], 275 U. S., 347; 48
Sup. Ct. Rep;., 146; 72 Law. ed., 309), the Supreme Court
100

People vs. Vera.
of the United States, through Chief Justice Taft, held that

when a person sentenced to imprisonment by a district
court has begun to serve his sentence, that court has no
power under the Probation Act of March 4, 1925 to grant
him probation even though the term at which sentence was
imposed had not yet expired. In this case of Murray, the
constitutionality of the Probation Act was not considered
but was assumed. The court traced the history of the Act
and, quoted from the report of the Committee on the
Judiciary of the United States House of Representatives
(Report No. 1377, 68th Congress, 2d Session) the following
statement:
"Prior to the socalled Killitts case, rendered in December, 1916,

the district courts exercised a form of probation either by
suspending sentence or by placing the defendants under state
probation officers or volunteers. In this case, however (Ex parte
United States, 242 U. S., 27; 61 L. ed., 129; L. R. A., 1917E, 1178;
37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court
denied the right of the district courts to suspend sentence. In the
same opinion the court pointed out the necessity for action by
Congress if the courts were to exercise probation powers in the
future. * * *
"Since this decision was rendered, two attempts have been
made to enact probation legislation. In 1917, a bill was favorably
reported by the. Judiciary Committee and passed the House. In
1920, the Judiciary Committee again favorably reported a

probation bill to the House, but it was never reached for definite
action.
"If this bill is enacted into law, it will bring the policy of the
Federal government with reference to its treatment of those
convicted of violations of its criminal laws in harmony with that of
the states of the Union. At the present time every state has a
probation law, and in all but twelve states the law applies both to
adult and juvenile offenders." (See, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has
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VOL. 65, NOVEMBER 16, 1937 101

People vs. Vera.
been sustained by inferior federal courts. In Riggs vs.

United States supra, the Circuit Court of Appeals of the
Fourth Circuit said:
"Since the passage of the Probation Act of March 4, 1925, the

questions under consideration have been reviewed by the Circuit
Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the
constitutionality of the act fully sustained, and the same held in
no manner to encroach upon the pardoning power of the
President. This case will be f found to contain an able and
comprehensive review of the law applicable here. It arose under
the act we have to consider, and to it and the authorities cited
therein special reference is made (Nix vs. James, 7 F. [2d], 590,
594), as is also to a decision of the Circuit Court of Appeals of the
Seventh Circuit (Kriebel vs. U. S., 10 F. [2d], 762), likewise
construing the Probation Act."
We have seen that in 1916 the Supreme Court of the

United States; in plain and unequivocal language, pointed
to Congress as possessing the requisite power to enact
probation laws, that a federal probation law was actually
enacted in 1925, and that the constitutionality of the Act
has been assumed by the Supreme Court of the United
States in 1928 and consistently sustained by the inferior
federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature,
like the Congress of the United States, may legally enact a
probation law under its broad power to fix the punishment
of any and all penal offenses. This conclusion is supported
by other authorities. In Ex parte Bates ([1915], 20 N. M.,
542; L. R. A. 1916A, 1285; 151 Pac., 698, the court said: "It
is clearly within the province of the Legislature to
denominate and define all classes of crime, and to prescribe
for each a minimum and maximum punishment." And in
State vs. Abbott ([1910], 87 S. C., 466; 33 L, R. A. [N. S.],

112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said:
"The legislative power to set punishment for crime is very
broad, and in the exercise of this power the general
102

People vs. Vera.
assembly may confer on trial judges, if it fit, the largest

discretion as to the sentence to be imposed, as to the
beginning and end of the punishment and whether it
should be certain or indeterminate or conditional." (Quoted
in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.)
Indeed, the Philippine Legislature has defined all crimes
and fixed the penalties for their violation. Invariably, the
legislature has demonstrated the desire to vest in the
courts—particularly the trial courts—large discretion in
imposing the penalties which the law prescribes in
particular cases. It is believed that justice can best be
served by vesting this power in the courts, they being in a
position to best determine the penalties which an
individual convict, peculiarly circumstanced, should suffer.
Thus, while courts are not allowed to refrain from imposing
a sentence merely because, taking into consideration the
degree of malice and the injury caused by the offense, the
penalty provided by law is clearly excessive, the courts
being allowed in such. cases to submit to the Chief
Executive, through the Department of Justice, such
statement as it may deem proper (see art. 5, Revised Penal
Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a, crime
and the law provides for a penalty composed of two
indivisible penalties, the courts may allow such
circumstances to offset one another in consideration of
their number and importance, and to apply the penalty
according to the result of such compensation. (Art. 63, rule
4, Revised Penal Code; U. S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the
Revised Penal Code empowers the courts to determine,
within the limits of each period, in case the penalty
prescribed by law contains three periods, the extent of the
penalty according to the number and nature of the
aggravating and mitigating circumstances and the extent
of the evil produced by the crime. In the imposition of fines,
the courts are allowed to fix any amount within the limits
established by law, considering not only the mitigating and
aggravating circumstances, but more
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VOL. 65, NOVEMBER 16, 1937 103

People vs. Vera.
particularly the wealth or means of the culprit. (Art. 66,

Revised Penal Code.) Article 68, paragraph 1, of the same
Code provides that "a discretionary penalty shall be
imposed" upon a person under fifteen but over nine years of
age, who has not acted without discernment, but always
lower by two degrees at least than that prescribed by law
for the crime which he has committed. Article 69 of the
same Code provides that in case of "incomplete self
defense", i. e., when the crime committed is not wholly
excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal
liability in the several cases mentioned in articles 11 and
12 of the Code, "the courts shall Impose the penalty in the
period which may be deemed proper, in view of the number
and nature of the conditions of exemption present or
lacking." And. in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social
danger and the degree of criminality shown by the
offender," shall impose upon him either arresto mayor or a
fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal
Code.)
Under our' Revised Penal Code, also, onehalf of the
period of preventive imprisonment is deducted from the
entire term of imprisonment, except in certain cases
expressly mentioned (art. 29) ; the death penalty is not
imposed when the guilty person is more than seventy years
of age, or where upon appeal or revision of the case by the
Supreme Court, all the members thereof are not
unanimous in their voting' as to the propriety of the
imposition of the death penalty (art. 47, see also, sec. 133,
Revised Administrative Code, as amended by
Commonwealth Act No. 3) ; the death sentence is not to be
inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant,
or upon any person over seventy years of age (art, 83) ; and
when a convict shall become insane or an imbecile after
final sentence has been pronounced, or while he is serving
his sentence, the execution of said sentence shall be
suspended with regard to the
104

People vs. Vera.
personal penalty during the period of such insanity or

imbecility (art. 79).
But the desire of the legislature to relax what might

result in the undue harshness of the penal laws is more
clearly demonstrated in various other enactments,
including the probation Act. There is the Indeterminate
Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a
system of parole (secs. 5 to 10) and granting the courts
large discretion in imposing the penalties of the law.
Section 1 of the law as amended provides: "Hereafter, in
imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under
the rules of the said Code, and to a minimum which shall
be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is
punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law
and the minimum shall not be less than the minimum term
prescribed by the same." Certain classes of convicts are, by
section 2 of the law, excluded from the operation thereof.
The Legislature has also enacted the Juvenile Delinquency
Law (Act No. 3203) which was subsequently amended by
Act No. 3559. Section 7 of the original Act and section 1 of
the amendatory Act have become article 80 of the Revised
Penal Code, amended by Act No. 4117 of the Philippine
Legislature and recently reamended by Commonwealth Act
No. 99, of the National Assembly. Finally came the (Adult)
Probation Act now in question. In this Act is again
manifested the intention of the legislature to "humanize"
the penal laws. It allows, in effect, the modification in
particular cases of the penalties prescribed by law by
permitting the suspension of the execution of the judgment
in the discretion of the trial court, after due hearing and
after investigation of the par
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VOL. 65, NOVEMBER 16, 1937 105

People vs. Vera.
ticular circumstances of the offense, the criminal record, if

any, of the convict, and his social history. The Legislature
has in reality decreed that in certain cases no punishment
at all shall be suffered by the convict as long as the
conditions of probation are faithfully observed. If this be so,
then, it cannot be said that the Probation Act comes in
conflict with the power of the Chief Executive to grant
pardons and reprieves, because, to use the language of the
Supreme Court of New Mexico, "the element of punishment

or the penalty for the commission of a wrong, while to be
declared by the courts as a judicial function under and
within the limits of law as announced by legislative acts,
concerns solely the procedure and conduct of criminal
causes, with which the executive can have nothing to do,"
(Ex parte Bates, supra.) In Williams vs. State ([1926], 162
Ga., 327; 133 S. E., 843), the court upheld the
constitutionality of the Georgia probation statute against
the contention that it attempted to delegate to the courts
the pardoning power lodged by the constitution in the
governor of the state and observed that "while the governor
alone is vested with the power to pardon after final
sentence has been imposed by the courts, the power of the
courts to impose any penalty which may be from time to
time prescribed by law and in such manner as may be
defined cannot be questioned."
We realize, of course, the conflict which the American
cases disclose. Some cases hold it unlawful for the
legislature to vest in the courts the power to suspend the
operation of a sentence, by probation or otherwise, as to do
so would encroach upon the pardoning power of the
executive. (In re Webb [1895], 89 Wis.( 354; 27 L. R. A.,
356; 46 Am. St. Rep., 846; 62 N. W., 177; 9 Am. Crim. Rep.,
702; State ex rel. Summerfield vs. Moran [1919], 43 Nev.,
150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla.,
103; 1 Okla. Crim. Rep., 227; 19 L. R. A. [N. S.], 1041; 132
Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903],
202 111., 287; 67 N. E., 23; 63 L. R. A., 82; 95 Am. St. Rep.,
230; Snodgrass vs. State [1912], 67 Tex. Crim.
106

People vs. Vera.
Rep., 615; 41 L. R. A. [N, S.], 1144; 150 S. W., 162; Ex parte

Shelor [1910], 33 Nev., 361; 111 Pac., 291; Neal vs. State
[1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175;
30 S. E., 858; State ex rel Payne vs. Anderson [1921], 43 S.
D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19
N. W., 571; State vs. Dalton [1903], 109 Tenn., 544; 72 S,
W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925;
C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.],
10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A.
4th], 14]) [2d], 5; Murphy vs. State [1926], 171 Ark., 620;
286 3. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal.
App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal.
App., 730; 300 Pac., 874; People vs. Patrick [1897], 118
Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo.,

60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91
A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327;
133 S. E., 843; People vs. Heise [1913], 257 111., 443; 100
N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E.,
179; 23 L. R. A., 859; St. Hilarie, Petitioner [1906], 101 Me.,
522; 64 Atl., 882; People vs. Stickle (1909], 156 Mich., 557;
121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529;
State ex rel. Bottomnly vs. District Court [1925], 73 Mont,
541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399;
79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel Buckley
vs. Drew [1909], 75 N. H., 402; 74 Atl, 875; State vs.
Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte
Bates [1915], 20' N. M., 542; L. R. A., 1916 A, 1285; 151
Pac., 698; People ex rel. Forsyth vs. Court of Sessions
[1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15
Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn
[1907], 55 Misc., 639; 106' N. Y. Supp., 928; People vs.
Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn
[1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart
[1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568;
Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P.,
781;
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People vs. Vera.
State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs.
Abbot [1910], 87 S. C., 466; 33 L. R. A. [N. S.], 112; 70 S. E.,
6; Ann. Cas., 1912B, 1189; Fults vs. State [1854], 34 Tenn.,
232; Woods vs. State [1814], 180 Tenn., 100; 169 S. W., 558;
Baker vs. State. [1913], 70 Tex., Crim. Rep., 618; 158 S. W.,
998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S.
W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162
S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211;
54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24;
Richardson vs. Com. [1921], 131 Va., 802; 109 S. E., 460;
State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42;
State ex rel Tingstad vs. Starwich [1922], 119 Wash., 561;
206' Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this
long catena of authorities holding that the courts may be
legally authorized by the legislature to suspend sentence by
the establishment of a system of probation however
characterized. State ex rel. Tingstad vs. Starwich ([1922],
119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921
which provided for the suspension of the execution of a
sentence until otherwise ordered by the court, and required
that the convicted person be placed under the charge of a
parole or peace officer during the term of such suspension,

on such terms as the court may determine, was held
constitutional and as not giving the court a power in
violation of the constitutional provision vesting the
pardoning power in the chief executive of the state. (Vide,
also, Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they
the same. They are actually distinct and different from
each other, both in origin and in nature. In People ex rel
Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294;
36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep.,
675), the Court of Appeals of New York said:
"* * * The power to suspend sentence and the power to
grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and different
108

People vs. Vera.
in their origin and nature. The former was always a part of

the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it,
and all civil disabilities, remain and become operative
when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the
offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the
offender is as innocent as if he had never committed the
offense. It removes the penalties and disabilities, and
restores him to all his civil rights. It makes him, as it were,
a new man, and gives him a new credit and capacity. (Ex
parte Garland, 71 U, S., 4 Wall, 333; 18 Law ed., 366; U. S.
vs. Klein, 80 U. S., 13 Wall, 128; 20 Law. ed., 519; Knote vs.
U. S., 95 U. S., 149; 24 Law. ed., 442.)
"The framers of the federal and state constitutions were perfectly

familiar with the principles governing the power to grant pardons,
and it was conferred by these instruments upon the executive
with full knowledge of the law upon the subject, and the words of
the constitution were used to express the authority formerly
exercised by the English crown, or by its representatives in the
colonies. (Ex parte Wells, 59 U. S., 18 How,, 307; 15 Law. ed.,
421.) As this power was understood, it did not comprehend any
part of the judicial functions to suspend sentence, and it was
never intended that the authority to grant reprieves and pardons
should abrogate, or in any degree restrict, the exercise of that
power in regard to its own judgments, that criminal courts had so
long maintained. The two powers, so distinct and different in
their nature and character, were still left separate and distinct,
the one to be exercised by the executive, and .the other by the
judicial department. We therefore conclude that a statute which,
in terms, authorizes courts of criminal jurisdiction to suspend
sentence in certain cases after conviction,—a power inherent in
such courts at common law, which was understood when the
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People vs. Vera.
constitution was adopted to be an ordinary judicial function, and

which, ever since its adoption, has been exercised by the courts, is
a valid exercise of legislative power under the constitution. It does
not encroach, in any just sense, upon the powers of the executive,
as they have been understood and practiced from the earliest
times." (Quoted with approval in Director of Prisons vs. Judge of
First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in

pardon, a free man. He is not finally and completely
exonerated. He is not exempt from the entire punishment
which the law inflicts. Under the Probation Act, the
probationer's case is not terminated by the mere fact that
he is placed on probation. Section 4 of the Act provides that
the probation may be definitely terminated and the
probationer finally discharged from supervision only after
the period of probation shall have been terminated and the
probation officer shall have submitted a report, and the
court shall have found that the probationer has complied
with the conditions of probation. The probationer, then,
during the period of probation, remains in legal custody—
subject to the control of the probation officer and of the
court; and, he may be rearrested upon the nonfulfillment
of the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally
imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
"The probation described in the act is not pardon. It is not

complete liberty, and may be far from it. It is really a new mode of
punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and fine prescribed by the
criminal laws, For this reason its application is as purely a
judicial act as any other sentence carrying out the law deemed
applicable to the offense. The executive act of pardon, on the
contrary, is against the criminal law, which binds and directs the
judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible
unconstitutionality
110

People vs. Vera.
of the Probation Act for this cause." (Archer vs. Snook [1926], 10
F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and

from commutation of the. sentence. Snodgrass vs. State
([1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144;
150 S. W.; 16'2), is relied upon most strongly by the
petitioners as authority in support of their contention that
the power to grant pardons and reprieves, having been
vested exclusively upon the Chief Executive by the Jones
Law, may not be conferred by the legislature upon the
courts by means of a probation law authorizing the
indefinite judicial suspension of sentence. We have
examined that case and found that although the Court of
Criminal Appeals of Texas held that the probation statute
of the state in terms conferred on the district courts the
power to grant pardons to persons convicted of crime, it
also distinguished between suspension of sentence on the
one hand, and reprieve and commutation of sentence on the
other. Said the court, through Harper, J.:
"That the power to suspend the sentence does not conflict with the
power of the Governor to grant reprieves is settled by the
decisions of the various courts; it being held that the distinction
between a 'reprieve' and a suspension of sentence is that a
reprieve postpones the execution of the sentence to a day certain,
whereas a suspension is for an indefinite time. (Carnal vs. People,
1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E.,
883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This
law cannot be held in conflict with the power confiding in the
Governor to grant commutations of punishment, for a
commutation is but to change the punishment assessed to a less
punishment."
In State ex rel Bottomly vs. District Court ([1925], 73

Mont., 541; 237 Pac., 525), the Supreme Court of Montana
had under consideration the validity of the adult probation
law of the state enacted in 1913, now found in sections
1207812086, Revised Codes of 1921. The court held the
law valid as not impinging upon the pardoning
111
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People vs. Vera.
power of the executive. In a unanimous decision penned by

Justice Holloway, the court said:
"* * * the terms 'pardon,' 'commutation,' and 'respite' each had a

wellunderstood meaning at the time our Constitution was
adopted, and no one of them was intended to comprehend the
suspension of the execution of a judgment as that phrase is
employed in sections 1207812086. A 'pardon' is an act of grace,
proceeding from the power intrusted with the execution of the
laws which exempts the individual on whom it is bestowed from
the punishment the law inflicts for a crime he has committed
(United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640) ; It is a
remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a
forgiveness of the offense (Cook vs. Middlesex County, 26 N. J.
Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71).
'Commutation' is a remission of a part of the punishment; a
substitution of a less penalty for the one originally imposed (Lee
vs. Murphy, 22 Grat. [Va.], 789; 12 Am. Rep., 563; Rich vs.
Chamberlain, 107 Mich., 381; 65 N. W., 235). A 'reprieve' or
'respite' is the withholding of a sentence for an interval of time (4
Blackstone's Commentaries, 394), a postponement of execution
(Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary
suspension of execution (Butler us. State, 97 Ind., 373).
"Few adjudicated cases are to be found in which the validity of
a statute similar to our section 12078 has been determined; but
the same objections have been urged against parole statutes
which vest the power to parole in persons other than those to
whom the power of pardon is granted, and these statutes have
been upheld quite uniformly, as a reference to the numerous cases
cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,
558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20
R. C. L., 524.)"
We conclude that the Probation Act does not conflict with

the pardoning power of the Executive. The pardoning
power, in respect to those serving their probationary
sentences, remains as full and complete as if the Probation
112

People vs. Vera.
don the probationer and thus place it beyond the power of

the court to order his rearrest and imprisonment. (Riggs
vs. United States [1926], 14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon
the pardoning power of the executive and is not for that
reason void, does section 11 thereof constitute, as conrended,
an undue delegation of legislative power?
Under our constitutional system, the powers of
government are distributed among three coordinate and
substantially independent organs: the legislative, the

executive and the judicial. Each of these departments of
the government derives its authority from the Constitution
which, in turn, is the highest expression of popular will.
Each has exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere.
The power to make laws—the legislative power—is
vested in a bicameral Legislature by the Jones Law (sec.
12) and in a unicameral National Assembly by the
Constitution (Art. VI, sec. 1, Constitution of the
Philippines). The Philippine Legislature or the National
Assembly may not escape its duties and responsibilities by
delegating that power to any other body or authority. Any
attempt to abdicate the power is unconstitutional and void,
on the principle that potestas delegata non delegare potest.
This principle is said to have originated with the
glossators, was introduced into English law through a
misreading of Bracton, there developed as a principle of
agency, was established by Lord Coke in the English public
law in decisions forbidding the delegation of judicial power,
and found its way into America as an enlightened principle
of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc.
of the Social Sciences, p. 66'.) The classic statement of the
rule is that of Locke, namely: "The legislative neither must
nor can transfer the power of making laws to anybody else,
or place it anywhere but where the people have." (Locke on
Civil Government, sec. 142.) Judge Cooley enunciates the
doctrine in the fol
113
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People vs. Vera.
lowing oftquoted language: "One of the settled maxims in

constitutional law is, that the power conferred upon the
legislature to make laws cannot be delegated by that
department to any other body or authority. Where the
sovereign power of the state has located the authority,
there it must remain; and by the constitutional agency
alone the laws must be made until the Constitution itself is
changed. The power to whose judgment, wisdom, and
patriotism this high prerogative has been intrusted cannot
relieve itself of the responsibility by choosing other
agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any
other body for those to which alone the people have seen fit
to confide this sovereign trust." (Cooley on Constitutional
Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in
U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the
doctrine "on the ethical principle that such a delegated

power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of his
own judgment acting immediately upon the matter of
legislation and not through the intervening mind of
another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of
legislative power is not absolute and inflexible. It admits of
exceptions. An exception sanctioned by immemorial
practice permits the central legislative body to delegate
legislative powers to local authorities. (Rubi vs. Provincial
Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria
[1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129
U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs.
Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of
our system of government, that local affairs shall be
managed by local authorities, and general affairs by the
central authority; and hence while the rule is also
fundamental that the power. to make laws cannot be
delegated, the creation of municipalities exercising local
self government has never been held to trench upon that
rule. Such legislation is not regarded as a transfer of
general
114

People vs. Vera.
legislative power, but rather as the grant of the authority

to prescribe local regulations, according to immemorial
practice, subject of course to the interposition of the
superior in cases of necessity." (Stoutenburgh vs. Hennick,
supra.) On quite the same principle, Congress is
empowered to delegate legislative power to such agencies
in the territories of the United States as it may select. A
territory stands in the same relation to Congress as a
municipality or city to the state government. (United
States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep.,
742.; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United
States [1904], 195 U. S., 138; 24 Sup. Ct. Rep., 808; 49 Law.
ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the
delegation of legislative power to the people at large. Some
authorities maintain that this may not be done (12 C. J.,
pp. 841, ,842; 6 R. C. L., p. 164, citing People vs. Kennedy
[1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C,
616). However, the question of whether or not a state has
ceased to be republican in form because of its adoption of
the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel.
Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32
Sup. Ct. Rep., 224), and as the constitutionality of such

laws has been looked upon with favor by certain
progressive courts, the sting of the decisions of the more
conservative courts has been pretty well drawn. (Opinions
of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L.
R. A,. 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111
Pac., 379; 112 Pac., ',02; 37 L. R. A. [N. S.], 332; Pacific
States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also,
legislative power may be delegated by the Constitution
itself. Section 14, paragraph 2, of article VI of the
Constitution of the Philippines provides that "The National
Assembly may by law authorize the President, subject to
such limitations and restrictions as it may impose, to fix
within specified limits, tariff rates, import or export quotas,
and tonnage and wharfage dues." And section 16 of the
same article of the Constitution provides that "In times of
war or other
115
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People vs. Vera.
national emergency, the National Assembly may by law

authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to promulgate rules
and regulations to carry out a declared national policy." It
is beyond the scope of this decision to determine whether or
not, in the absence of the foregoing constitutional
provisions, the President could be authorized to exercise
the powers thereby vested in him. Upon the other hand,
whatever doubt may have existed has been removed by the
Constitution itself.
The case before us does not fall under any of the
exceptions hereinabove mentioned.
The challenged section of Act No. 4221 is section 11
which reads as follows:
"This Act shall apply only in those provinces in which. the

respective provincial boards have provided for the salary of a
probation officer at rates not lower than those now provided for
provincial fiscals. Said probation officers shall be appointed by the
Secretary of Justice and shall be subject to the direction of the
Probation Office." (Underscoring ours.)
In testing whether a statute constitutes an undue

delegation of legislative power or not, it is usual to inquire
whether the statute was complete in all its terms and
provisions when it left the hands of the legislature so that
nothing was left to the judgment of any other appointee or
delegate of the legislature. (6 R. C. L., p. 165.) In United
States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the

legislature void in so far as it undertook to authorize the
GovernorGeneral, in his discretion, to issue a proclamation
fixing the price of rice and to make the sale of it in violation
of the proclamation a crime. (See and cf. Compañía General
de Tabacos vs. Board of Public Utility Commissioners
[1916], 34 Phil., 136.) The general rule, however, is limited
by another rule that to a certain extent matters of detail
may be left to be filled in by rules and regulations to be
adopted or promulgated by executive
116

People vs. Vera.
officers and administrative boards. (6 R. C. L., pp. 177179.)

For the purposes of the Probation Act, the provincial
boards may be regarded as administrative bodies endowed
with power to determine when the Act should take effect in
their respective provinces. They are the agents or delegates
of the legislature in this respect. The rules governing
delegation of legislative power to administrative and
executive officers are applicable or are at least indicative of
the rule which should be here adopted. An examination of a
variety of cases on delegation of power to administrative
bodies will show that the ratio decidendi is at variance but,
it can be broadly asserted that the rationale revolves
around the presence or absence of a standard or rule of
action—or the sufficiency thereof—in the statute, to aid the
delegate in exercising the granted discretion. In some
cases, it is held that the standard is sufficient; in others
that it is insufficient; and in still others that it is entirely
lacking. As a rule, an act of the legislature is incomplete
and hence invalid if it does not lay down any rule or
definite standard by which the administrative officer or
board may be guided in the exercise of the discretionary
powers delegated to it. (See Schecter vs. United States
[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep.,
837; 97 A. L. R., 947; People ex rel, Rice vs. Wilson Oil Co.
[1936], 364 111., 406; 4 N. E. [2d], 847; 107 A. L. R., 1500
and cases cited. See also R. C. L., title "Constitutional
Law", sec. 174.) In the case at bar, what rules are to guide
the provincial boards in the exercise of their discretionary
power to determine whether or not the Probation Act shall
apply in their respective provinces ? What standards are
fixed by the Act? We do not find any and none has been
pointed to us by the respondents. The probation Act does
not, by the force of any of its provisions, fix and impose
upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, if we
may use the language of Justice Cardozo in the recent case

of Schecter, supra, is a "roving commission"
117
VOL. 65, NOVEMBER 16, 1937 117

People vs. Vera.
which enables the provincial boards to exercise arbitrary

discretion. By section 11 of the Act, the legislature does
seemingly on its own authority extend the benefits of the
Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to
determine. In other words, the provincial boards of the
various provinces are to determine for themselves, whether
the Probation Law shall apply to their provinces or not at
all. The applicability and application of the Probation Act
are entirely placed in the hands of the provincial boards. If
a provincial board does not wish to have the Act applied in
its province, all that it has to do is to decline to appropriate
the needed amount for the salary of a probation officer. The
plain language of the Act is not susceptible of any other
interpretation. This, to our minds, is a virtual surrender of
legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the

delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the latter no
valid objection can be made." (Cincinnati, W. & Z. R. Co. vs.
Clinton County Comrs. [1852] ; 1 Ohio St., 77, 88. See also,
Sutherland on Statutory Construction, sec. 68.) To the same effect
are decisions of this court in Municipality of Cardona vs.
Municipality of Binangonan ([1917], 36 Phil., 547) ; Rubi vs.
Provincial Board of Mindoro ([1919], 39 Phil., 660), and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this
court sustained the validity of a law conferring upon the
GovernorGeneral authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the
legislature to direct nonChristian inhabitants to take up their
habitation on unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In the third case,
it was held proper for the legislature to vest in the Governor
General authority to suspend or not, at his discretion, the
prohibition of the
118

People vs. Vera.
importation of foreign cattle, such prohibition to be raised "if the

conditions of the country make this advisable or if disease among
foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."
It should be observed that in the case at bar we are not

concerned with the simple transference of details of
execution or the promulgation by executive or
administrative officials of rules and regulations to carry
into effect the provisions of a law. If we were, recurrence to
our own decisions would be sufficient. (U. S. vs. Barrias
[1908], 11 Phil., 327; U. S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu
Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs.
Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660.)
It is contended, however, that a legislative act may be
made to the effect as law after it leaves the hands of the
legislature. It is true that laws may be made effective on
certain contingencies, as by proclamation of the executive
or the adoption by the people of a particular community (6
R. C. L., 116, 170172; Cooley, Constitutional Limitations,
8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10
Wheat. 1; 6 Law. ed., 253), the Supreme Court of the
United States ruled that the legislature may delegate a
power not legislative which it may itself rightfully exercise.
(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis.,
63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain
facts is such a power which may be delegated. There is
nothing essentially legislative in ascertaining the existence
of facts or conditions as the basis of the taking into effect of
a law. That is a mental process common to all branches of
the government. (Dowling vs. Lancashire Ins. Co., supra; ln
re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.
W., 1033; 33 L. R. A., 938; Nash vs. Fries [1906], 129 Wis.,
120; 108 N. W., 210; Field vs. Clark [1892], 143 U. S., 649;
12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the
apparent tendency, however, to relax the rule prohibiting
delegation of legislative authority on
119
VOL. 65, NOVEMBER 16, 1937 119

People vs. Vera.
account of the complexity arising from social and economic

forces at work in this modern industrial age (Petitioner,
Public Administration [1936] ch. XX; Laski, "The Mother of
Parliaments", Foreign Affairs, July, 1931, Vol. IX, No. 4,
pp. 569579; Beard, "SquirtGun Politics", in Harper's
Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152),
the orthodox pronouncement of Judge Cooley in his work

on Constitutional Limitations finds restatement in Prof.
Willoughby's treatise on the Constitution of the United
States in the following language—speaking of declaration
of legislative power to administrative agencies: "The
principle which permits the legislature to provide that the
administrative agent may determine when the
circumstances are such as require the application of a law
is defended upon the ground that at the time this authority
is granted, the rule of public policy, which is the essence of
the legislative act, is determined by the legislature. In
other words, the legislature, as it is its duty to do,
determines that, under given circumstances, certain
executive or administrative action is to be taken, and that,
under other circumstances, different or no action at all is to
be taken. What is thus left to the administrative official is
not the legislative determination of what public policy
demands, but simply the ascertainment of what the facts of
the case' require to be done according to the terms of the
law by which he is governed." (Willoughby on the
Constitution of the United States, 2nd ed., Vol. III, p.
1637.) In Miller vs. Mayer, etc., of New York ([1883], 109 U.
S., 385; 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was
said: "The efficiency of an Act as a declaration of legislative
will must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act shall
take effect may be left to such agencies as it may
designate." (See, also, 12 G. J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343,
358.) The legislature, then, may provide that a law shall
take effect upon the happening of future specified
contingencies leaving to some other person or body the
power to determine when the specified contingency has
120

People vs. Vera.
arisen. But, in the case at bar, the legislature has not made
the operation of the Probation Act contingent upon
specified facts or conditions to be ascertained by the
provincial board. It leaves, as we have already said, the
entire operation or nonoperation of the law upon the
provincial boards. The discretion vested is arbitrary
because it is absolute and unlimited. A provincial board
need not investigate conditions or find any fact, or await
the happening of any specified contingency. It is bound by
no rule,—limited by no principle of expediency announced
by the legislature. It may take into consideration certain
facts or conditions; and, again, it may not. It may have any
purpose or no purpose at all. It need not give any reason or

have any reason whatsoever for refusing or failing to
appropriate any funds for the salary of a probation officer.
This is a matter which rests entirely at Its pleasure. The
fact that at some future time—we cannot say when—the
provincial boards may appropriate funds for the salaries of
probation officers and thus put the law into operation in
the various provinces will not save the statute. The time of
its taking into effect, we reiterate, would yet be based
solely upon the will of the provincial boards and not upon
the happening of a certain specified contingency, or upon
the ascertainment of certain facts or conditions by a person
or body other than the legislature itself.
The various provincial boards are, in practical effect,
endowed with the power of suspending the operation of the
Probation Law in their respective provinces. In some
jurisdictions, constitutions provide that laws may be
suspended only by the legislature or by its authority. Thus,
section 28, article I of the Constitution of Texas provides
that "No power of suspending laws in this state shall be
exercised except by the legislature"; and section 26, article
I of the Constitution of Indiana provides "That the
operation of the laws shall never be suspended, except by
authority of the General Assembly." Yet, even provisions of
this sort do not confer absolute power of suspension upon
the legislature. While it may be undoubted that the
legislature
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VOL. 65, NOVEMBER 16, 1937 121

People vs. Vera.
may suspend a law, or the execution or operation of a law,

a law may not be suspended as to certain individuals only,
leaving the law to be enjoyed by others. The suspension
must be general, and cannot be made for individual cases
or for particular localities. In Holden vs. James ([1814], 11
Mass., 396; 6 Am. Dec., 174, 177, 178), it was said:
"By the twentieth article of the declaration of rights in the

constitution of this commonwealth, it is declared that the power of
suspending the laws, or the execution of the laws, ought never to
be exercised but by the legislature, or by authority derived from
it, to be exercised in such particular cases only as the legislature
shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta of
England, and from the bill of rights passed in the reign of William
and Mary. The bill of rights contains an enumeration of the
oppressive acts of James II, tending to subvert and extirpate the
protestant religion, and the laws and liberties of the kingdom; and
the first of them is the assuming and exercising a power of
dispensing with and suspending the laws, and the execution of

the laws without consent of parliament. The first article in the
claim or declaration of rights contained in the statute is, that the
exercise of such power, by regal authority without consent of
parliament, is illegal. In the tenth section of the same statute it is
further declared and enacted, that 'No dispensation by non
obstante of or to any statute, or any part thereof, should be
allowed; but the same should be held void and of no effect, except
a dispensation be allowed of in such statute.' There is an implied
reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English
Constitution, 'that absolute despotic power, which must in all
governments reside somewhere,' is intrusted to the parliament: 1
BI. Com., 160.
"The principles of our government are widely different in this
particular. Here the sovereign and absolute power resides in the
people; and the legislature can only exercise what is delegated to
them according to the constitution.
122

People vs. Vera.
It is obvious that the exercise of the power in question would be

equally oppressive to the subject, and subversive of his right to
protection, 'according to standing" laws,' whether exercised by one
man or by a number of men. It cannot be supposed that the people
when adopting this general principle from the English bill of
rights and inserting it in our constitution, intended to bestow by
implication on the general court one of the most odious and
oppressive prerogatives of the ancient kings of England. It is
manifestly contrary to the first principles of civil liberty and
natural justice, and to the spirit of our constitution and laws, that
any one citizen should enjoy privileges and advantages which are
denied to all others under like circumstances; or that any one
should be subject to losses, damages, suits, or actions from which
all others under like circumstances are exempted,"
To illustrate the principle: A section of a statute relative to

dogs made the owner of any dog liable to the owner of
domestic animals wounded by it for the damages without
proving a knowledge of its vicious disposition, By a
provision of the act, power was given to the board of
supervisors to determine whether or not during the current
year their county should be governed by the provisions of
the act of which that section constituted a part. It was held
that the legislature could not confer that power. The court
observed that it could no more confer such a power than to
authorize the board of supervisors of a county to abolish in
such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman
[1875], 38 Wis., 504.) A similar statute in Missouri was

held void for the same reason in State vs. Field ([1853], 17
Mo., 529; 59 Am. Dec., 275.) In that case a general statute
formulating a road system contained a provision that "if
the county court of any county should be of opinion that the
provisions of the act should not be enforced, they might, in
their discretion, suspend the operation of the same f or any
specified length of time, and thereupon the act should
become inoperative in such county for
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People vs. Vera.
the period specified in such order; and thereupon order the

roads to be opened and kept in good repair, under the laws
theretofore in force." Said the court: "* * * this act, by its
own provisions, repeals the inconsistent provisions of a
former act, and yet it, is left to the county court to say
which act shall be in force in their county. The act does not
submit the question to the county court as an original
question, to be decided by that tribunal, whether the act
shall commence its operation within the county; but it
became by its own terms a law in every county not excepted
by name in the act. It did not, then, require the county
court to do any act in order to give it effect. But being the
law in the county, and having by its provisions superseded
and abrogated the inconsistent provisions of previous laws,
the county court is * * * empowered, to suspend this act
and revive the repealed provisions of the former act. When
the question is before the county court for that tribunal to
determine which law shall be in force, it is urged before us
that the power then to be exercised by the court is strictly
legislative power, which under our constitution, cannot be
delegated to that tribunal or to any other body of men in
the state. In the present case, the question is not presented
in the abstract, for the county court of Saline county, after
the act had been for several months in force in that county,
did by order suspend its operation; and during that
suspension the offense was committed which is the subject
of the present indictment * * *." (See Mitchell vs. State
[1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular
locality different from those applicable to other localities
and, while recognizing the force of the principle
hereinabove expressed, courts in many jurisdictions have
sustained the constitutionality of the submission of option
laws to the vote of the people. (6 R. C. L., p. 171.) But
option laws thus sustained treat of subjects purely local in
character which should receive different treatment in
different localities placed under different circumstances.

"They
124

People vs. Vera.
relate to subjects which, like the retailing of intoxicating

drinks, or the running at large of cattle in the highways,
may be differently regarded in different localities, and they
are sustained on what seems to us the impregnable ground,
that the subject, though not embraced within the ordinary
powers of municipalities to make byIaws and ordinances,
is nevertheless within the class of public regulations, in
respect to which it is proper that the local judgment should
control." (Cooley on Constitutional Limitations, 5th ed., p.
148.) So that, while we do not deny the right of local self
government and the propriety of leaving matters of purely
local concern in the hands of local authorities or for the
people of small communities to pass upon, we believe that
in matters of general legislation like that which treats of
criminals in general, and as regards the general subject of
probation, discretion may not be vested in a manner so
unqualified and absolute as provided in Act No. 4221. True,
the statute does not expressly state that the provincial
boards may suspend the operation of the Probation Act in
particular provinces but, considering that, in being vested
with the authority to appropriate or not the necessary
funds for the salaries of probation officers, they thereby are
given absolute discretion to determine whether or not the
law should take effect or operate in their respective
provinces, the provincial boards are in reality empowered
by the legislature to suspend the operation of the Probation
Act in particular provinces, the Act to be held in abeyance
until the provincial boards should decide otherwise by
appropriating the necessary funds. The validity of a law is
not tested by what has been done but by what may be done
under its provisions. (Walter E. Olsen & Co. vs. Aldanese
and Trinidad [1922], 43 Phil., 259; 12 C. 3., p. 786.)
It is conceded that a great deal of latitude should be
granted to the legislature not only in the expression of
what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power,
legislation would become oppressive and yet imbecile."
(People vs. Reynolds, 5 Gilman, 1.) It has been said that
popular
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VOL. 65, NOVEMBER 16, 1937 125

People vs. Vera.
government lives because of the inexhaustible reservoir of

power behind it. It is unquestionable that the mass of
powers of government is vested in the representatives of
the people and that these representatives are no further
restrained under our system than by the express language
of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect.
(Angara vs. Electoral Commission [1936], 35 Off. Gaz., 23;
Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.)
But, it should be borne in mind that a constitution is both a
grant and a limitation of power and one of these
timehonored limitations is. that, subject to certain
exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes
an improper and unlawful delegation of legislative
authority to the provincial boards and is, for this reason,
unconstitutional and void.
3. It is also contended that the Probation Act violates, the
provision of our Bill of Rights which prohibits the denial to
any person of the equal protection of the laws (Art. III, sec.
1, subsec. 1, Constitution of the Philippines.)
This basic individual right sheltered by the Constitution
is a restraint on all the three grand departments of our
government and on the subordinate instrumentalities and
subdivisions thereof, and on many constitutional powers,
like the police power, taxation and eminent domain. The
equal protection of the laws, sententiously observes the
Supreme Court of the United States, "is a pledge of the
protection of equal laws." (Yick Wo vs. Hopkins [1886], 118
U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley
vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63
Law. ed., 735.) Of course, what may be regarded as a denial
of the equal protection of the laws is a question not always
easily determined. No rule that will cover every case can be
formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184
U. S., 540; 22 Sup. Ct. Rep., 431; 46 Law. ed., 679.) Class
legislation discriminating against some and favoring others
is prohibited. But classification on a
126

People vs. Vera.
reasonable basis, and not made arbitrarily or capriciously,

is permitted. (Finely vs. California [1911], 222 U. S., 28; 56
Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co.
vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil.,
136.) The classification, however, to be reasonable must be

based on substantial distinctions which make real
differences; it must be germane to the purposes of the law;
it must not be limited to existing conditions only, and must
apply equally to each member of the class. (Borgnis vs.
Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C.
C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56
Minn., 540; 530552; 58 N. W., 150; Lindsley vs. Natural
Carbonic Gas Co. [1911], 220 U. S., 61, 79, 55 Law. ed.,
369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160;
Lake Shore & M. S. R. Co. vs. Clough [1917], 242, U. 3.,
375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry.
Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287;
54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan
[1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality
may be said to flow from the unwarranted delegation of
legislative power, although perhaps this is not necessarily
the result in every case. Adopting the example given by one
of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary
fund to defray the salary of a probation officer, while
another province may refuse or fail to do so. In such a case,
the Probation Act would be in operation in the former
province but not in the latter. This means that a person
otherwise coming within the purview of the law would be
liable to enjoy the benefits of probation in one province
while another person similarly situated in another province
would be denied those same benefits. This is obnoxious
discrimination. Contrariwise, it is also possible for all the
provincial boards to appropriate the necessary funds
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People vs. Vera.
for the salaries of the probation officers in their respective

provinces, in which case no inequality would result for the
obvious reason that probation would be in operation in
each and every province by the affirmative action of
appropriation by all the provincial boards. On that
hypothesis, every person coming within the purview of the
Probation Act would be entitled to avail of the benefits of
the Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate
any amount for the salary of the probation officer—which is
the situation now—and, also, it' we accept the contention
that, for the purposes of the Probation Act, the City of
Manila should be considered as a province and that the
municipal board of said city has not made any
appropriation for the salary of a, probation officer. These

different situations suggested show, indeed, that while
inequality may result in the application of the law and in
the conferment of the benefits therein provided, inequality
is not in all cases the necessary result. But whatever may
be the case, it is clear that section 11 of the Probation Act
creates a situation in which discrimination and inequality
are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection
of the law before courts should assume the task of setting
aside a law vulnerable on that score, but premises and
circumstances considered, we are of the opinion that
section 11 of Act No. 4221, permits of the denial of the
equal protection of the law and is on that account bad. We
see no difference between a law which denies equal
protection and a law which permits of such denial. A law
may appear to be fair on its face and impartial in
appearance, yet, if it permits of unjust and illegal
discrimination, it is within the constitutional prohibition.
(By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275;
23 Law, ed., 550; Henderson vs. Mayor [1876], 92 U. S.,
259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S.,
339; 25 Law ed., 676; Neal vs. Delaware [1881], 103 U. S.,
370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U.
S., 703; 28
128

People vs. Vera.
Law. ed., 1145; Yick Wo vs. Hopkins [1886], 118 U. S., 356;
30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S.,
218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs.
Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55
Law. ed., 191; Sunday Lake Iron Co. vs. Wakefield [1918],
247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In
other words, statutes may be adjudged unconstitutional
because of their effect in operation (General Oil Co. vs.
Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law.
ed., 754; State vs. Clement Nat Bank [1911], 84 Vt., 167; 78
Atl., 944; Ann. Cas., 1912D, 22). If a law has the effect of
denying the equal protection of the law it is
unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109
U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs.
Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl.,
165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N.
W., 1104; 36 A. S. R., 948; 19 L. R. A,, 858.) Under section
11 of the Probation Act, not only may said Act be in force in
one or several provinces and not be in force in the other
provinces, but one province may appropriate for the salary
of a probation officer of a given year—and have probation

during that year—and thereafter decline to make further
appropriation, and have no probation in subsequent years.
While this situation goes rather to the abuse of discretion
which delegation implies, it is here indicated to show that
the Probation Act sanctions a situation which is intolerable
in a government of laws, and to prove how easy it is, under
the Act, to make the guaranty of the equality clause but "a
rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis
[1897], 165 U. S., 150, 154; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255.)
Great reliance is placed by counsel for the respondents
on the case of Ocampo vs. United States ([1914], 234 U. S.,
91; 58 Law. ed., 1231). In that case, the Supreme Court of
the United States affirmed the decision of this court (18
Phil., 1) by declining to uphold the contention that there
was a denial of the equal protection of the laws because, as
held in Missouri vs. Lewis (Bowman vs. Lewis) decided
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People vs. Vera.
in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of

the equality clause does not require territorial uniformity,,
It should be observed, however, that this case concerns the
right to preliminary investigations in criminal cases
originally granted by General Orders No. 58. No question
of legislative authority was involved and the alleged denial
of the equal protection of the laws was the result of the
subsequent enactment of Act No. 612, amending the
charter of the City of Manila (Act No. 813) and providing in
section 2 thereof that "in cases triable only in the court of
first instance of the City of Manila, the defendant * * *
shall not be entitled as of right to a preliminary
examination in any case where the prosecuting attorney
after a due investigation of the facts * * * shall have
presented an information. against him in proper form * *
*." Upon the other hand, an analysis of the arguments and
the decision indicates that the investigation by the
prosecuting attorney—although not in the form had in the
provinces—was considered a reasonable substitute for the
City of Manila, considering the peculiar conditions of the
city as found and taken into account by the legislature
itself.
Reliance is also placed on the case of Missouri vs. Lewis,
supra. That case has reference to a situation where the
constitution of Missouri permits appeals to the Supreme
Court of the state from final judgments of any circuit court,
except those in certain counties for which counties the
constitution establishes a separate court of appeals called

the St. Louis Court of Appeals. The provision complained
of, then, is found in the constitution itself and it is the
constitution that makes the apportionment of territorial
jurisdiction.
We are of the opinion that section 11 of the Probation
Act is unconstitutional and void because it is also
repugnant to the equalprotection clause of our
Constitution. Section 11 of the Probation Act being
unconstitutional and void for the reasons already stated,
the next inquiry is whether or not the entire Act should be
avoided.
130

People vs. Vera.
"In seeking the legislative intent, the presumption is against any

mutilation of a statute, and the courts will resort to elimination
only where an unconstitutional provision is interjected into a
statute otherwise valid, and is so independent and separable that
its removal will leave the constitutional features and purposes of
the act substantially unaffected by the process." (Riccio vs.
Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109,
quoted in Williams vs. Standard Oil Co. [1929], 278 U. S., 235,
240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.)
In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated
the wellestablished rule concerning partial invalidity of statutes
in the following language:
" * * * where part Of a statute is void, as repugnant to the
Organic Law, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. But in
order to do this, the valid portion must be so far independent of
the invalid portion that it is fair to presume that the Legislature
would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. (Mutual Loan Co. vs.
Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446;
Supervisors of Holmes Co. vs. Black Creek Drainage District, 99
Miss., 739; 55 Sou., 963.) Enough must remain to make a
complete, intelligible, and valid statute, which carries out the
legislative intent. (Pearson vs. Bass, 132 Ga., 117; 63 S. E., 798.)
The void provisions must be eliminated without causing results
affecting the main purpose of the Act, in a manner contrary to the
intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla.,
617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou.,
226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co.,
184 U. S., 540, 565; People vs. Strassheim, 240 111., 279, 300; 88
N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La.,
414; 50 Sou., 439.) The language used in the invalid part of a
statute can have no legal force or efficacy for any purpose
whatever, and what remains must express the legislative will,

independently of the void part, since
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People vs. Vera.
the court has no power to legislate. (State vs. Junkin, 85 Neb., 1;

122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also, U. S. vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and
Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15
Sup. Ct. Rep., 912; 6 R. C. L., 121.)"
It is contended that even if section 11, which makes the

Probation Act applicable only in those provinces in which
the respective provincial boards have provided for the
salaries of probation officers were inoperative on
constitutional grounds, the remainder of the Act would still
be valid and may be enforced. We should be inclined to
accept the suggestion but for the fact that said section is, in
our opinion, so inseparably linked with the other portions
of the Act that with the elimination of the section what
would be left is the bare idealism of the system, devoid of
any practical benefit to a large number of people who may
be deserving of the intended beneficial results of that
system. The clear policy of the law, as may be gleaned from
a careful examination of the whole context, is to make the
application of the system dependent entirely upon the
affirmative action of the different provincial boards
through appropriation of the salaries for probation officers
at rates not lower than those provided for provincial fiscals.
Without such action on the part of the various boards, no
probation officers would be appointed by the Secretary of
Justice to act in the provinces. The Philippines is divided or
subdivided into provinces and it needs no argument to
show that if not one of the provinces—and this is the actual
situation now—appropriates the necessary fund for the
salary of a probation officer, probation under Act No. 4221
would be illusory. There can be no probation without a
probation officer. Neither can there be a probation officer
without a probation system.
Section 2 of the Act provides that the probation officer
shall supervise and visit the probationer. Every probation
officer is given, as to the persons placed in probation under
his care, the powers of a police officer.' It is the
132

People vs. Vera.
duty of probation officers to see that the conditions which

are imposed by the court upon the probationer under his
care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:
"That the probationer (a) shall indulge in no injurious or vicious

habits;
"(b) Shall avoid places or persons of disreputable or harmful

character;
" (c) Shall report to the probation officer as directed by the
court or probation officers;
" (d) Shall permit the probation officer to visit him at
reasonable times at his place of abode or elsewhere;
"(e) Shall truthfully answer any reasonable inquiries on the
part of the probation officer concerning his conduct or
condition;
"(h) Shall endeavor to be employed regularly;
" (g) Shall remain or reside within a specified place or locality;
"(h) Shall make reparation or restitution to the aggrieved
parties for actual damages or losses caused by his offense;
"(i) Shall support his wife and children;
"(j) Shall comply with such orders as the court may from time
to time make; and
"(k) Shall refrain from violating any law, statute, ordinance, or
any bylaw or regulation, promulgated in accordance with
law."
The court is required to notify the probation officer in

writing of the period and terms of probation. Under section
4, it is only after the period of probation, the submission of
a report of the probation officer and appropriate finding of
the court that the probationer has complied with the
conditions of probation that probation may be definitely
terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is
noncompliance with said conditions, as reported by the
probation officer, it may issue a warrant for the arrest of
the probationer and said probationer may be committed
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People vs. Vera.
with or without bail. Upon arraignment and after an

opportunity to be heard, the court may revoke, continue or
modify the probation, and if revoked, the court shall order
the execution of the sentence originally imposed. Section 6
prescribes the duties of probation officers: "It shall be the
duty of every probation officer to furnish to all persons

placed on probation under his supervision a statement of
the period and conditions of their probation, and to instruct
them concerning the same; to keep informed concerning
their conduct and condition; to aid and encourage them by
friendly advice and admonition, and by such other
measures, not inconsistent with the conditions imposed by
the court as may seem most suitable, to bring about
improvement in their conduct and condition; to report in
writing to the court having jurisdiction over.said
probationers at least once every two months concerning
their conduct and condition; to keep records of their work;
to make such reports as are necessary for the information
of the Secretary of Justice and as the latter may require;
and to perform such other duties as are consistent with the
functions of the probation officer and as the court or judge
may direct. The probation officers provided for in this Act
may act as parole officers for any penal or reformatory
institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice,
shall act as parole officer of persons released on parole
under Act Numbered Fortyone Hundred and Three,
without any additional compensation,"
It is argued, however, that even without section 11
probation officers may be appointed in the provinces under
section 10 of the Act which provides as follows:
"There is hereby created in the Department of Justice and subject

to its supervision and control, a Probation Office under the
direction of a Chief Probation Officer to be appointed by the
GovernorGeneral with the advise and consent of the Senate who
shall receive a salary of four thousand eight hundred pesos per
annum. To carry out the purposes of this Act, there is hereby
appropriated out
134

People vs. Vera.
of any funds in the Insular Treasury not otherwise appropriated,

the sum of fifty thousand pesos to be disbursed by the Secretary of
Justice, who is hereby authorized to appoint probation officers
and the administrative personnel of the probation office under
civil service regulations from among those who possess the
qualifications, training and experience prescribed by the Bureau
of Civil Service, and shall fix the compensation of such probation
officers and administrative personnel until such positions shall
have been included in the Appropriation Act."
But the probation officers and the administrative personnel

referred to in the foregoing section are clearly not those
probation officers required to be appointed for the

provinces under section 11. It may be said, reddendo
singula, singulis, that the probation officers referred to in
section 10 abovequoted are to act as such, not in the
various provinces, but in the central office known as the
Probation Office established in the Department of Justice,
under the supervision of a Chief Probation Officer. When
the law provides that "the probation officer" shall
investigate and make reports to the court (secs. 1 and 4) ;
that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d) ; that the probationer
shall report to the "probation officer" (sec. 3, par. c.), shall
allow "the probation officer" to visit him (sec. 3, par. d),
shall truthfully answer any reasonable inquiries on the
part of "the probation officer" concerning his conduct or
condition (sec. 3, par. 4); that the court shall notify "the
probation officer" in writing of the period and terms of
probation (sec. 3, last par.), it means the probation officer
who is in charge of a particular probationer in a particular
province. It never could have been the intention of the
legislature, for instance, to require a probationer in
Batanes, to report to a probation officer in the City of
Manila, or to require a probation officer in Manila to visit
the probationer in the said province of Batanes, to place
him under his care, to supervise his conduct, to instruct
him concerning the
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VOL. 65, NOVEMBER 16, 1937 135

People vs. Vera.
conditions of his probation or to perform such other

functions as are assigned to him by law.
That under section 10 the Secretary of Justice may
appoint as many probation officers as there are provinces
or groups of provinces is, of course, possible. But this would
be arguing on what the law may be or should be and not on
what the law is. Between is and ought there is a far cry.
The wisdom and propriety of legislation is not for us to pass
upon. We may think a law better otherwise than it is. But
much .as has been. said regarding progressive
interpretation and judicial legislation we decline to amend
the law. We are not permitted to read into the law matters
and provisions which are not there. Not for any purpose—
not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of
the law is not to make the Insular Government defray the
salaries of probation officers in the provinces but to make
the provinces defray them should they desire to have the
Probation Act apply thereto. The sum of P50,000,
appropriated "to carry outthe purposes of this Act", is to be

applied, among other things, for the salaries of probation
officers in' the central office at Manila. These probation
officers are to receive such compensations as the Secretary
of Justice may fix "until such positions shall have been
included in the Appropriation Act". It was not the intention
of the legislature to empower the Secretary of Justice to fix
the salaries of probation officers in the provinces or later on
to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated
in section 10 is to cover, among other things, the salaries of
the administrative personnel of the Probation Office, what
would be left of the amount can hardly be said to be
sufficient to pay even nominal salaries to probation officers
in the provinces. We take judicial notice of the fact that
there are 48 provinces in the Philippines and we do not
think it is seriously contended that, with the fifty thousand
pesos appropriated for the central office, there can be in
136

People vs. Vera.
each provin ce, as intended, a probation officer with a

salary not lower than that of a provincial fiscal. If this is
correct, the contention that without section 11 of Act No.
4221 said act is complete is an impracticable thing under
the remainder of the Act, unless it is conceded that in our
case there can be a system of probation in the provinces
without probation officers.
Probation as a development of modern penology is a
commendable system. Probation laws have been enacted,
here and in other countries, to permit what modern
criminologists call the "individualization of punishment",
the adjustment of the penalty to the character of the
criminal and the circumstances of his particular case. It
provides a period of grace in order to aid in the
rehabilitation of a penitent offender. It is believed that, in
any cases, convicts may be reformed and their development
into hardened criminals aborted. It, therefore, takes
advantage of an opportunity for reformation and avoids
imprisonment so long as the convict gives promise of
reform. (United States vs. Murray' [1925], 275 U. S., 347,
357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146;
Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The welfare of
society is its chief end and aim. The benefit to the
individual convict is merely incidental. But while we
believe that probation is commendable as a system and its
implantation into the Philippines should be welcomed, we
are forced by our inescapable duty to set the law aside

because of repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to
consider the different aspects presented by able counsel for
both parties, as well in their memorandums as in their oral
argument. We have examined the cases brought to our
attention, and others we have been able to reach in the
short time at our command for the study and deliberation
of this case. In the examination of the cases and in the
analysis of the legal principles involved we have inclined to
adopt the line of action which in our opinion, is' supported
by better reasoned authorities and is more conducive to
137
VOL. 65, NOVEMBER 16, 1937 137

People vs. Vera.
the general welfare. (Smith, Bell & Co. vs. Natividad

[1919], 40 Phil., 136.) Realizing the conflict of authorities,
we have declined to be bound by certain adjudicated cases
brought to our attention, except where the point or the
principle is settled directly or by clear implication by the
more authoritative pronouncements of the Supreme Court
of the United States. This line of approach is justified
because:
(a.) The constitutional relations between the Federal

and the State governments of the United States and
the dual character of the American Government is a
situation which does not obtain in the Philippines;
(b) The. situation of a state of the American Union or of
the District of Columbia with reference to the
Federal Government of the. United States is not the
situation of a province with respect to the Insular
Government (Art, I, sec. 8, cl. 17, and 10th
Amendments Constitution of the United States;
Sims vs. Rives, 84 Fed. [2d], 871);
(c) The distinct federal and state judicial organizations
of the United States do not embrace the integrated
judicial system of the Philippines (Schneckenburger
vs. Moran [1936], 35 Off. Gaz., p. 1317) ;
(d) "General propositions do not decide concrete cases"
(Justice Holmes in Lochner vs. New York [1904],
198 U. S., 45, 76; 49 Law, ed., 937, 949) and, "to
keep pace with
* * * new developments of times and circumstances"
(Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24
Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2,
Dec. 1919, 141, 142), fundamental principles should
be interpreted having in view existing local

conditions and environments.
Act No. 4221 is hereby declared unconstitutional and void

and the writ of prohibition is, accordingly, granted.
Without any pronouncement regarding costs. So ordered.
Avanceña, C. J., Imperial, Diaz, and Concepcion, JJ.,

concur.
VILLAREAL and ABAD SANTOS, JJ.:
We concur in the result.

Act No. 4221 declared unconstitutional; writ granted.
138

El Hogar Filipino vs. De Santos
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9/20/2018 PHILIPPINE REPORTS ANNOTATED VOLUME 065

[No. 45685. November 16, 1937]

THE PEOPLE OF THE PHILIPPINE ISLANDS and THE

1. PROBATION ; AUTHORITY OF PROBATION COURT

2. CONSTITUTIONAL LAW; THE PRESIDENT AND HIS

VOL. 65, NOVEMBER 16, 1937 57

People vs. Vera.

but which happens­ to be at the same time pending

3. ID. ; INDEPENDENCE OF THE JUDICIARY.—If it is

4. ID.; WHEN CONSTITUTIONALITY MAY BE RAISED.—

5. ID. ; ID. ; RESORT TO EXTRAORDINARY LEGAL

[1931], 56 Phil., 234); and even on an application for

58 PHILIPPINE REPORTS ANNOTATED

People vs. Vera.

Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.

6. ID.; ; ID. ; ID. ; PROHIBITION ; RULE WHERE

7. ID. ; ID. ; ID. ; ID. ; ID. ; COURTS OF FIRST INSTANCE;

8. ID.; ID.; CONSTITUTIONALITY MUST BE RAISED AT

appeal. But the general rule admits of exceptions. Courts,

VOL. 65, NOVEMBER 16, 1937 59

People vs. Vera.

9. ID.; ID.; PERSONAL AND SUBSTANTIAL INTEREST

10. ID. ; ID. ; RELIANCE ON PROBATION ACT; BY FISCAL

allow it to be raised later. The fiscal and all others are

11. ID.; ID. ; WHEN DETERMINATION OF

12. ID. ; ID. ; ID. ; REASONS OF PUBLIC POLICY

60 PHILIPPINE REPORTS ANNOTATED

People vs. Vera.

courts; that many persons accused and convicted of crime

13. ID. ; THE JUDICIARY; ITS DUTY TO ENFORCE THE

its sworn duty to enforce the Constitution. And, in clear

14. ID.; ID.; STATUTORY CONSTRUCTION ;

15. ID.; THE PARDONING POWER UNDER THE JONES

VOL. 65, NOVEMBER 16, 1937 61

People vs. Vera.

STITUTION OF THE PHILIPPINES.—Section 21 of the

either before or after conviction. The Governor­General of

16. ID. ; ID.; ROYAL PARDON UNDER ENGLISH LAW;

17. ID.; ID.; COMMUTATION AND AMNESTY UNDER THE

18. ID. ; ID.; EXCLUSIVE CHARACTER OF THE

62 PHILIPPINE REPORTS ANNOTATED

People vs. Vera.

or authority. The coordinate departments of government

19. ID.; PROBATION; POWER OF THE PHILIPPINE

20. ID. ; ID. ; PROBATION AND PARDON NOT

VOL. 65, NOVEMBER 16, 1937 63

People vs. Vera.

21. ID. ; ID.; ID. ; PROBATION NOT IN CONFLICT WITH

22. ID.; DIVISION OF POWERS.—Under our constitutional

23. ID. ; ID. ; DELEGATION OF LEGISLATIVE

24. ID.; ID.; ID.; RULE FORBIDDING DELEGATION OF

body to delegate legislative powers to local authorities. On

64 PHILIPPINE REPORTS ANNOTATED

People vs. Vera.

limitations and restrictions as it may impose, ­to fix

25. ID. ; ID. ; ID. ; TEST OF UNDUE DELEGATION ;

26. ID. ; ID. ; ID. ; PROBATION ACT MAKES VIRTUAL

commission" which enables the provincial boards to

27. ID.; ID.; ID.; TRUE DlSTINCTION BETWEEN POWER

VOL. 65, NOVEMBER 16, 1937 65

People vs. Vera.

can be made. (Cincinnati, W. & Z. R. Co. vs. Clinton

28. ID. ; ID.; ID.; CONDITIONAL ENFORCEMENT OF A

but which happens to be at the same time pending

either before or after conviction. The GovernorGeneral of

limitations and restrictions as it may impose, to fix