Republic of the Philippines SUPREME COURT Manila Ponce Enrile for the Hongkong and Shanghai Banking Corporation

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http://www.lawphil.net/judjuris/juri1937/nov1937/gr_l-45685_1937.html 1/13

Today is Wednesday, November 12, 2014

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-45685 November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION,petitioners, vs.JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent CuUnjieng.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 writ of certiorari and ofprohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaidCourt of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano CuUnjieng, et al.", more particularly the application of the defendant Mariano Cu Unjieng therein for probation underthe provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any furtheraction or entertaining further the aforementioned application for probation, to the end that the defendant MarianoCu Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction rendered bythis court in said case (G. R. No. 41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, arerespectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of thedefendants, in the criminal case entitled "The People of the 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. Respondentherein, 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 intervening in the case as privateprosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of timespent by the court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court ofFirst Instance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the defendant MarianoCu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight yearsof prision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong andShanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to anindeterminate penalty of from five years and six months of prision correccional to seven years, six months andtwenty-seven days of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed amotion 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 thecase elevated on certiorari to the Supreme Court of the United States but the latter denied the petition forcertiorari in November, 1936. This court, on November 24, 1936, denied the petition subsequentlyfiled by the defendant for leave to file a second alternative motion for reconsideration or new trial and thereafterremanded the case to the court of origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein respondent Mariano CuUnjieng on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunctPhilippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of

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the crime of which he was convicted, that he has no criminal record and that he would observe good conduct inthe future. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application forprobation of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, theCourt of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing onApril 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the hereinrespondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, amongother things, that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of theConstitution, is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equalprotection of the laws for the reason that its applicability is not uniform throughout the Islands and because section11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in theirrespective or otherwise in their respective provinces. The private prosecution also filed a supplementaryopposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an unduedelegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The CityFiscal concurred in the opposition of the private prosecution except with respect to the questions raisedconcerning the constitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "laspruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechosprobados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondentMariano Cu Unjieng "es inocente por duda racional" of the crime of 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 poblacion solicitada por las circunstancias y la historia social que se hanexpuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de laopinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema deprobacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando laquietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramentedifferentes, en menoscabo del interes publico 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 resolutiondenying probation and a notice of intention to file a motion for reconsideration. An alternative motion forreconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by an additional motionfor reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, butsaid hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motionfor leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filedwith the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed apetition for leave to withdraw his appearance as amicus curiae on the ground that the motion for leave to interveneas 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 personwho invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order ofexecution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano CuUnjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiaeaforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should bedenied with respect to certain attorneys signing the same who were members of the legal staff of the severalcounsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an orderrequiring all parties including the movants for intervention as amici curiae to appear before the court on August14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion forexecution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection ofcounsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondentjudge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider themotion for leave to intervene as amici curiae as in order. Evidence as to the circumstances under which saidmotion for leave to intervene as amici curiae was signed and submitted to court was to have been heard onAugust 19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put anend 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 thisHonorable Court on him, exposing the courts to criticism and ridicule because of the apparent inability of thejudicial 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 temporaryrestraining order by this court on August 21, 1937.

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To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitionersallege 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 underprobation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to applyonly to the provinces of the Philippines; it nowhere states that it is to be made applicable tochartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect that in theabsence of a special provision, the term "province" may be construed to include the City ofManila 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 inwhich 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 beapplicable to it because it has provided for the salary of a probation officer as required bysection 11 thereof; it being immaterial that there is an Insular Probation Officer willing to act forthe City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 beingdifferent 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 forprobation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or inexcess thereof in continuing to entertain the motion for reconsideration and by failing to commitMariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denyingMariano Cu Unjieng's application for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to thegranting or denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June28, 1937, it became final and executory at the moment of its rendition.

(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to modify orchange the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime forwhich he was convicted by final judgment of this court, which finding is not only presumptuous butwithout foundation in fact and in law, and is furthermore in contempt of this court and a violation of therespondent'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 becameimperative when he issued his order of June 28, 1937, denying the application for probation, tocommit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinarycourse of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and ShanghaiBanking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for asystem of probation for persons eighteen years of age or over who are convicted of crime, isunconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of thePhilippines guaranteeing equal protection of the laws because it confers upon the provincial board ofits province the absolute discretion to make said law operative or otherwise in their respectiveprovinces, because it constitutes an unlawful and improper delegation to the provincial boards of theseveral provinces of the legislative power lodged by the Jones Law (section 8) in the PhilippineLegislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for the furtherreason that it gives the provincial boards, in contravention of the Constitution (section 2, Art. VIII) andthe Jones Law (section 28), the authority to enlarge the powers of the Court of First Instance ofdifferent 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 other petitioner regarding the constitutionality of ActNo. 4221, and on the oral argument held on October 6, 1937, further elaborated on the theory thatprobation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive

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power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filedtwo memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoningpower to the executive, but also constitute an unwarranted delegation of legislative power and adenial of the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly bythe City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine Islands, andby counsel for the petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining thepower of the state to impugn the validity of its own laws and the other contending that Act No. 4221constitutes an unwarranted delegation of legislative power, were presented. Another jointmemorandum 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 unlawfuldelegation of legislative power and, further, that the whole Act is void: that the Commonwealth is notestopped from questioning the validity of its laws; that the private prosecution may intervene inprobation proceedings and may attack the probation law as unconstitutional; and that this court maypass upon the constitutional question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument andmemorandums, challenge 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 thewrit of certiorari or of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the petitioners isthe very same remedy prayed for by them before the trial court and was still pending resolutionbefore 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 judgmentbefore the trial court, said trial court has acquired exclusive jurisdiction to resolve the sameunder the theory that its resolution denying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of FirstInstance to decide the question as to whether or not the execution will lie, this courtnevertheless cannot exercise said jurisdiction while the Court of First Instance has assumedjurisdiction over the same upon motion of herein petitioners themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trialcourt of its jurisdiction over the case and elevate the proceedings to this court, should not betolerated because it impairs the authority and dignity of the trial court which court while sitting inthe 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 submittedto and pending resolution by the trial court, the present action would not lie because theresolution of the trial court denying probation is appealable; for although the Probation Lawdoes not specifically provide that an applicant for probation may appeal from a resolution of theCourt of First Instance denying probation, still it is a general rule in this jurisdiction that a finalorder, 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 CuUnjieng being appealable, the same had not become final and executory for the reason that thesaid respondent had filed an alternative motion for reconsideration and new trial within therequisite period of fifteen days, which motion the trial court was able to resolve in view of therestraining order improvidently and erroneously issued by this court. la w p h i1 . n e t

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of thetrial court denying probation is not final and unappealable when he presented his answer to themotion 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 notappealable, it is incumbent upon the accused to file an action for the issuance of the writ ofcertiorari with mandamus, it appearing that the trial court, although it believed that the accusedwas entitled to probation, nevertheless denied probation for fear of criticism because theaccused is a rich man; and that, before a petition for certiorari grounded on an irregularexercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file amotion for reconsideration specifying the error committed so that the trial court could have anopportunity to correct or cure the same.

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(10) That on hypothesis that the resolution of this court is not appealable, the trial court retainsits 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 beexercise either motu proprio or upon petition of the proper party, the petition in the latter casetaking the form of a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as respondentallege, said court cannot order execution of the same while it is on appeal, for then the appealwould not be availing because the doors of probation will be closed from the moment theaccused commences to serve his sentence (Act No. 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 isconstitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation oflegislative power, does not infringe the equal protection clause of the Constitution, and does not encroach uponthe pardoning power of the Executive. In an additional memorandum filed on the same date, counsel for therespondents 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 thevalidity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning thevalidity of the Act; that the validity of Act cannot be attacked for the first time before this court; that probation inunavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The lastmemorandum for the respondent Mariano Cu Unjieng was denied for having been filed out of time but wasadmitted by resolution of this court and filed anew on November 5, 1937. This memorandum elaborates onsome 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 thecourt below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denyingsaid application assumed the task not only of considering the merits of the application, but of passing upon theculpability of the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.)Probation implies guilt be final judgment. While a probation case may look into the circumstances attending thecommission of the offense, this does not authorize it to reverse the findings and conclusive of this court, eitherdirectly or indirectly, especially wherefrom 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 privilegeof 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 theinterrelation and operation of the intergrated 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) inthe affirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion ofcertain 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 well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless thatquestion is properly raised and presented inappropriate 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], 30Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 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 ordinarycourse of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42Phil., 818), this court held that the question of the constitutionality of a statute may be raised by the petitioner inmandamus 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; 72Law. ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto broughtin the name of the Government of the Philippines. It has also been held that the constitutionality of a statute maybe 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 thechallenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application forpreliminary 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 CongEng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original action for

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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 not met squarely by the respondent in ademurrer. A point was raised "relating to the propriety of the constitutional question being decided in originalproceedings in prohibition." This court decided to take up the constitutional question and, with two justicesdissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to the SupremeCourt of the United States which reversed the judgment of this court and held that the Act was invalid. (271 U. S.,500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme Court, though its ChiefJustice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court isgranted 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 inexcess of their jurisdiction. It has been held by that court that the question of the validity of the criminalstatute must usually be raised by a defendant in the trial court and be carried regularly in review to theSupreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where anew act seriously affected numerous persons and extensive property rights, and was likely to cause amultiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validitypromptly before it and decide in the interest of the orderly administration of justice. The court relied byanalogy 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. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36Sup. 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 raiseby demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask adecision on the merits. In view of the broad powers in prohibition granted to that court under the IslandCode, 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 toan inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is notlegally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in thecases, is that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of thestatute the constitutionality of which is questioned, because in such cases the interior court having jurisdiction mayitself determine the constitutionality of the statute, and its decision may be subject to review, and consequently thecomplainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. Butwhere the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may beprevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [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], 5Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 whichprescribes in detailed manner the procedure for granting probation to accused persons after their conviction hasbecome final and before they have served their sentence. It is true that at common law the authority of the courtsto suspend temporarily the execution of the 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 Session [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 thatunder the common law the power of the court was limited to temporary suspension, and brushed aside thecontention as to inherent judicial power saying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the criminal laws and uponconviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, inexerting the powers vested in them on such subject, courts inherently possess ample right to exercisereasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessionsafford no ground for the contention as to power here made, since it must rest upon the proposition that thepower to enforce begets inherently a discretion to permanently refuse to do so. And the effect of theproposition urged upon the distribution of powers made by the Constitution will become apparent when it isobserved that indisputable also is it that the authority to define and fix the punishment for crime is legislativeand 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 rightto relieve from the punishment, fixed by law and ascertained according to the methods by it providedbelongs to the executive department.

Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instanceof Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the

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execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", hesaid, "that in the absence of statutory authority, it does not lie within the power of the courts to grant suchsuspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Court ofFirst Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings isconferred 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 wherethe 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 atbar, it is unquestionable that the constitutional issue has been squarely presented not only before this court by thepetitioners 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 judgecited 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 notconsider any attack made on the constitutionality of a statute by one who has no interest in defeating it becausehis rights are not affected by its operation. The respondent judge further stated that it may not motu proprio takeup the constitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void isone which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any casewhere 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 considerthe question solely because it was not raised by a proper party. Respondents herein reiterates this view. Theargument is advanced that the private prosecution has no personality to appear in the hearing of the applicationfor 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. Although, as a general rule,only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, ithas been held that since the decree pronounced by a court without jurisdiction is void, where the jurisdiction of thecourt depends on the validity of the statute in question, the issue of the constitutionality will be considered on itsbeing 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 theproper party, it does not follow that the issue may not be here raised in an original action of certiorari andprohibitions. It is true that, as a general rule, the question of constitutionality must be raised at the earliestopportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in thetrial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. DelRosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in theexercise of sounds discretion, may determine the time when a question affecting the constitutionality of a statuteshould be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a verysharp conflict of authorities, it is said that the question may be raised for the first time at any stage of theproceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it isthe duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appearsthat 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 aconstitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of thecourt below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider theconstitutional question raised for the first time before this court in these proceedings, we turn again and point withemphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & ShanghaiBanking Corporation, represented by the private prosecution, is not the proper party to raise the constitutionalquestion here — a point we do not now have to decide — we are of the opinion that the People of the Philippines,represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the presentproceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personaland substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of itsenforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of thePhilippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of graterimport than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon thefundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challengethe validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed inSpringer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared anact of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. InAttorney 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 amining corporation, alleging that the statute under which the respondents base their right was unconstitutionalbecause it impaired the obligation of contracts. The capacity of the chief law officer of the state to question theconstitutionality of the statute was though, as a general rule, only those who are parties to a suit may question theconstitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a

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court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the statute inquestion, the issue of constitutionality will be considered on its being brought to the attention of the court bypersons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concedethat the issue was not properly raised in the court below by the proper party, it does not follow that the issue maynot be here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question ofconstitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it maynot be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786.See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that thegeneral rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when aquestion affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135,144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question maybe raised for the first time at any state 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, thoughraised for first time on appeal, if it appears that a determination of the question is necessary to a decision of thecase. (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. Burke [1911], 175 Ala., 561; 57 S., 870.) As to thepower of this court to consider the constitutional question raised for the first time before this court in theseproceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on thehypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not theproper party to raise the constitutional question here — a point we do not now have to decide — we are of theopinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City ofManila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugnsthe validity of a statute must have a personal and substantial interest in the case such that he has sustained, orwill sustain, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates theConstitution, the People of the Philippines, in whose name the present action is brought, has a substantial interestin having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is themortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settledrule 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; 72Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of theGovernment of the Philippines. In Attorney General vs. Perkings([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 theright of the respondents to renew a mining corporation, alleging that the statute under which the respondents basetheir right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officerof the state to question the constitutionality of the statute was itself questioned. Said the Supreme Court ofMichigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a law enacted bytheir representatives; that to an accusation by the people of Michigan of usurpation their government, astatute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if thestatute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law, and isof no more saving effect to justify action under it than if it had never been enacted. The constitution is thesupreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislature andthe respondents are not the only parties in interest upon such constitutional questions. As was remarked byMr. Justice Story, in speaking of an acquiescence by a party affected by an unconstitutional act of thelegislature: "The people have a deep and vested interest in maintaining all the constitutional limitations uponthe 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 theAttorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the questionwhether 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 alwaysinterested where the integrity of its Constitution or statutes is involved.

"It has an interest in seeing that the will of the Legislature is not disregarded, and need not, asan individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City60 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 Attorney-General, or countyattorney, may exercise his bet 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 byinjunction to restrain proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3

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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], 211 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; 147S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said:

It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty ofenforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument threedecisions 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 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 if inconflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., theruling was the judge should not, merely because he believed a certain statute to be unconstitutional forbidthe district attorney to file a bill of information charging a person with a violation of the statute. In otherwords, a judge should not judicially declare a statute unconstitutional until the question of constitutionality istendered for decision, and unless it must be decided in order to determine the right of a party litigant. Stateex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a statuteimposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers thestatute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute beunconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executiveofficers, e.g., the state auditor and state treasurer, should not decline to perform ministerial duties imposedupon 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 theConstitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, orone which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty toenforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea, that oneof the statutes is unconstitutional. If it were not so, the power of the Legislature would be free fromconstitutional limitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the state mayimpugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact,they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application inthe present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of thepetitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estoppedfrom attacking the validity of the Act and, not authorized challenge the validity of the Act in its application outsidesaid city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)

The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not beenattacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him asconstitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity.For courts will pass upon a constitutional questions only when presented before it in bona fide cases fordetermination, and the fact that the question has not been raised before is not a valid reason for refusing to allowit to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it isheld void by the courts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to theresolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision isindispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the casein 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 aconstitutional question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citingLong 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), aswhere the right of a party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citingCentral Glass Co. vs. Niagrara 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. 4221now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is anew addition to our statute books and its validity has never before been passed upon by the courts; that maypersons accused and convicted of crime in the City of Manila have applied for probation; that some of them arealready on probation; that more people will likely take advantage of the Probation Act in the future; and that the

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respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All waitthe decision of this court on the constitutional question. Considering, therefore, the importance which the instantcase has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that theconstitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271U.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 analogoussituation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousandmerchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted bythe courts, in the interest of the public welfare and for the advancement of public policy, we have determined tooverrule the defense of want of jurisdiction in order that we may decide the main issue. We have here anextraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained bythe Supreme Court of the United States. A more binding authority in support of the view we have taken can not befound.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properlyraised. 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. Thiscourt, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of theConstitution, may declare an act of the national legislature invalid because in conflict with the fundamental lay. Itwill not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect tothe 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 beresolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, ispresumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on thecourts alone but on the legislature as well. "The question of the validity of every statute is first determined by thelegislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Healthand Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before thecourts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive havetaken an oath to support the Constitution and it must be presumed that they have been true to this oath and thatin enacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot butcautiously exercise its power to overturn the solemn declarations of two of the three grand departments of thegovernments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflectthe 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 aproposition 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 thatthe President of the Philippines had already expressed his opinion against the constitutionality of the ProbationAct, 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 thatthe President in his message dated September 1, 1937, recommended to the National Assembly the immediaterepeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the NationalityAssembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoedby the President on September 13, 1937, much against his wish, "to have stricken out from the statute books ofthe Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connectionthat, in vetoing the bill referred to, the President exercised his constitutional prerogative. He may express thereasons which he may deem proper for taking such a step, but his reasons are not binding upon us in thedetermination of actual controversies submitted for our determination. Whether or not the Executive shouldexpress or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power ofveto but which happens to be at the same time pending determination in this court is a question of propriety forhim exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances,however, cannot sway our judgment on way or another and prevent us from taking what in our opinion is theproper course of action to take in a given case. It if is ever necessary for us to make any vehement affirmanceduring this formative period of our political history, it is that we are independent of the Executive no less than ofthe Legislative department of our government — independent in the performance of our functions, undeterred byany consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of oursworn 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 uponthe pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) thatit 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

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of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of thePhilippines "the exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is nowvested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and theConstitution differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from theConstitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission ofthe offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok[1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of theUnited States, to pardon a person before the facts of the case were fully brought to light. The framers of ourConstitution thought this undesirable and, following most of the state constitutions, provided that the pardoningpower can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does notextend to "cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution ofthe United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in barof an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it isnot 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 onimpeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office ofhonor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to thewhole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by itssentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment,depending upon the gravity of the offense committed, together with removal from office and incapacity to holdoffice. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of thepower of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as hemay deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrenceof the National Assembly. We need not dwell at length on the significance of these fundamental changes. It issufficient 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 thepower may not, therefore, be vested in anyone else. ". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by anylegislative restrictions, nor can like power be given by the legislature to any other officer or authority. Thecoordinate departments of government have nothing to do with the pardoning power, since no person properlybelonging to one of the departments can exercise any powers appertaining to either of the others except in casesexpressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power isconferred on the executive without express or implied limitations, the grant is exclusive, and the legislature canneither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercisethereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon thecourts 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 in1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after anexhaustive review of the authorities, expressed the opinion of the court that under the common law the power ofthe court was limited to temporary suspension and that the right to suspend sentenced absolutely andpermanently was vested in the executive branch of the government and not in the judiciary. But, the right ofCongress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so faras the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probationlegislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequateto enable courts to meet by the exercise of an enlarged but wise discretion the infinite variations which may bepresented to them for judgment, recourse must be had Congress whose legislative power on the subject is in thevery nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) Thisdecision led the National Probation Association and others to agitate for the enactment by Congress of a federalprobation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec.724). This was followed by an appropriation to defray the salaries and expenses of a certain number of probationofficers 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 ofthe United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a districtcourt has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to granthim 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 theAct and quoted from the report of the Committee on the Judiciary of the United States House of Representatives(Report No. 1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of

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probation either, by suspending sentence or by placing the defendants under state probation officers orvolunteers. 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 tosuspend sentenced. In the same opinion the court pointed out the necessity for action by Congress if thecourts were to exercise probation powers in the future . . .

Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, abill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciaryCommittee again favorably reported a probation bill to the House, but it was never reached for definiteaction.

If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatmentof those convicted of violations of its criminal laws in harmony with that of the states of the Union. At thepresent time every state has a probation law, and in all but twelve states the law applies both to adult andjuvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. UnitedStates 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 beenreviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of theact fully sustained, and the same held in no manner to encroach upon the pardoning power of thePresident. This case will be found to contain an able and comprehensive review of the law applicable here. Itarose under the act we have to consider, and to it and the authorities cited therein special reference ismade (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of theSeventh 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 toCongress as possessing the requisite power to enact probation laws, that a federal probation law as actuallyenacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the UnitedStates 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 aprobation law under its broad power to fix the punishment of any and all penal offenses. This conclusion issupported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, thecourt said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and toprescribe 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 crimeis very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, thelargest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether itshould 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, thelegislature has demonstrated the desire to vest in the courts — particularly the trial courts — large discretion inimposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served byvesting this power in the courts, they being in a position to best determine the penalties which an individualconvict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing asentence merely because, taking into consideration the degree of malice and the injury caused by the offense, thepenalty provided by law is clearly excessive, the courts being allowed in such case to submit to the ChiefExecutive, through the Department of Justice, such statement as it may deem proper (see art. 5, Revised PenalCode), in cases where both mitigating and aggravating circumstances are attendant in the commission of a crimeand the law provides for a penalty composed of two indivisible penalties, the courts may allow such circumstancesto offset one another in consideration of their number and importance, and to apply the penalty according to theresult of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, withinthe limits of each periods, in case the penalty prescribed by law contains three periods, the extent of the evilproduced by the crime. In the imposition of fines, the courts are allowed to fix any amount within the limitsestablished by law, considering not only the mitigating and aggravating circumstances, but more particularly thewealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code providesthat "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who hasnot acted without discernment, but always lower by two degrees at least than that prescribed by law for the crimewhich he has committed. Article 69 of the same Code provides that in case of "incomplete self-defense", i.e., whenthe crime committed is not wholly excusable by reason of the lack of some of the conditions required to justify thesame or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of the Code, "thecourts shall impose the penalty in the period which may be deemed proper, in view of the number and nature ofthe 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

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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, one-half of the period of preventive imprisonment is deducted form theentire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is notimposed when the guilty person is more than seventy years of age, or where upon appeal or revision of the caseby the Supreme Court, all the members thereof are not unanimous in their voting as to the propriety of theimposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended byCommonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the three years nextfollowing 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 heis serving his sentenced, the execution of said sentence shall be suspended with regard to the personal penaltyduring 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 clearlydemonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Lawenacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole(secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the law. Section 1 of the law asamended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised PenalCode, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term ofwhich shall be that which, in view of the attending circumstances, could be properly imposed under the rules of thesaid Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by theCode for the offense; and if the offense is punished by any other law, the court shall sentence the accused to anindeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and theminimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, bysection 2 of the law, excluded from the operation thereof. The Legislature has also enacted the JuvenileDelinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Actand 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.In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, themodification in particular cases of the penalties prescribed by law by permitting the suspension of the execution ofthe judgment in the discretion of the trial court, after due hearing and after investigation of the particularcircumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislaturehas in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as theconditions of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes inconflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the language of theSupreme Court of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while tobe 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 theconstitutionality of the Georgia probation statute against the contention that it attempted to delegate to the courtsthe pardoning power lodged by the constitution in the governor alone is vested with the power to pardon after finalsentence has been imposed by the courts, the power of the courts to imposed any penalty which may be from timeto 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 thelegislature to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, asto 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], 43Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 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 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. 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; States 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. States [1926], 171 Ark.,620; 286 S. 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; Peoplevs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A.,859; St. Hillarie, 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

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Republic of the Philippines SUPREME COURT Manila Ponce Enrile for the Hongkong and Shanghai Banking Corporation