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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 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 writ 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 rendered by this court in said case (G. R. No.41200).1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai BankingCorporation, 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
Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of FirstInstance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is
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the Judge ad interimof 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 private prosecutor. After a protracted trial unparalleled in the annals ofPhilippine jurisprudence both in the length of time spent by the court as well as in the volume in
the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on
January 8, 1934, rendered a judgment of conviction sentencing the defendant Mariano CuUnjieng to indeterminate penalty ranging from four years and two months of prision correccional
to eight years of prision 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 sixmonths ofprision correccional to seven years, six months and twenty-seven days ofprision
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 defendantthereupon sought to have the case elevated on certiorarito the Supreme Court of the United
States but the latter denied the petition for certiorariin November, 1936. This court,on November 24, 1936, denied the petition subsequently filed by the defendant for leaveto 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 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 CuUnjieng 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 of the Insular Probation Office which recommended denial of the same 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 ithas 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 the said Act endows the provincial boards with the power to make said law effective orotherwise in their respective or otherwise in their respective provinces. The private prosecution
also filed a supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative power to theprovincial 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.
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On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a
finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad del
peticionario y que todos los hechos probados no son inconsistentes o incongrentes con suinocencia" and concludes that the herein respondent Mariano 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 han expuesto en el cuerpo de esta resolucion, que hacen alpeticionario acreedor de la misma, una parte de la opinion publica, atizada por los recelos
y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite
atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud 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 exceptionto 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 thirty-three (thirty-four) attorneys had just beenfiled 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 banquetgiven 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 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 tocommit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave tointervene as amici curiae aforementioned, asking that a date be set for a 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 themovants for intervention as amici curiaeto appear before the court on August 14, 1937. On the
last-mentioned 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 curiaebut,
upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of thehearing 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 curiaeas in order. Evidence as to the circumstances under which said motion for leave to
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intervene as amici curiaewas 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 Instanceof 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 makeeffective 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 issuanceof a temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorariandprohibition, 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 reason:
(1) Under section 11 of Act No. 4221, the said 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 toinclude 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 provided for the salary of a
probation officer as required by section 11 thereof; it being immaterial that there
is an Insular Probation Officer willing to act for the City of Manila, said Probation
Officer provided for in section 10 of Act No. 4221 being different and distinctfrom 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 applicationfor 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:
(1) His jurisdiction and power in probation proceedings is limited by Act No.4221 to the granting or denying of applications for probation.
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(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 on 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 onlypresumptuous but without foundation in fact and in law, and is furthermore in contempt of this
court and a violation of the respondent's oath of office as ad interimjudge 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, to
commit his co-respondent to jail.
Petitioners also avers 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 Legislatureproviding 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 its province the absolute discretion to make said law operative or
otherwise in their respective provinces, because it constitutes an unlawful and improperdelegation 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 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 Court of First Instance of different provinces without
uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the City ofManila, 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 Act No.
4221, and on the oral argument held on October 6, 1937, further elaborated on the theory that
probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusivepower of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal
filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the
pardoning power to the executive, but also constitute an unwarranted delegation of legislativepower and a denial of the equal protection of the laws. On October 9, 1937, two memorandums,
signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the
Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai BankingCorporation, 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,
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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 unlawful 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 constitutionalquestion 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 theissuance of the writ of certiorarior of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by thepetitioners 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 exclusivejurisdiction 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 theCourt of First Instance to decide the question as to whether or not the execution
will lie, this court nevertheless cannot exercise said jurisdiction while the Court ofFirst Instance has assumed jurisdiction over the same upon motion of herein
petitioners themselves.
(5) That upon 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 the probation cases is "a court oflimited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve thequestion 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 anapplicant for probation may appeal from a resolution of the Court of First Instance
denying probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior court.
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(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and
executory for the reason that the said respondent had filed an alternative motionfor reconsideration and new trial within the requisite period of fifteen days, which
motion the trial court was 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 whenhe 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 certiorariwith 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, beforea petition for certiorarigrounded on an irregular exercise of jurisdiction by the
trial court could lie, it is incumbent upon the petitioner to file a motion forreconsideration specifying the error committed so that the trial court could have
an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this 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 exercise either motu proprio orupon 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
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probationwill be closed from the moment the accused 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 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 protectionclause 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 thevalidity 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 Act cannot be attacked for the first time
before this court; that probation in unavailable; and that, in any event, section 11 of the Act No.4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu
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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
regardsprohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271U. 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 certiorariand prohibition. The constitutionality of Act No. 2972, popularlyknown as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided in original proceedings inprohibition." 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., 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, thePhilippine supreme court is granted concurrent jurisdiction in prohibition with courts of
first instance over inferior tribunals or persons, and original jurisdiction over courts offirst 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 the criminal
statute must usually be raised by a defendant in the trial court and be carried regularly in
review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26Phil., 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 to the act's validity promptly before it and
decide in the interest of the orderly administration of justice. The court relied by analogyupon the cases ofEx 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; 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 raise 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 the broad powers in prohibition granted to that courtunder 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 is a conflict in the cases, is that the merit ofprohibition will not lie whether the inferior court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such cases the interior 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 adequateremedy 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
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by the writ of prohibition from enforcing that statute. (50 C. J., 670;Ex parteRound tree [1874,
51 Ala., 42;In reMacfarland, 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 derived their jurisdiction solelyfrom 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 theexecution 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 ofEx parteUnited 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 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 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 ofDirector of Prisons vs.
Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached theconclusion 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 petitioner and respondents are correct, therefore, when they argue that a Court of FirstInstance 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 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
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with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the
Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the
proper party to raise the constitutional question herea 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 present proceedings. 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 aresult 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 grater import than the damage caused by the illegalexpenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled 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; 72Law. 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 AttorneyGeneral, 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 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 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 by persons interested in the effect to begin 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 ofcertiorari 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 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 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 statuteshould 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 may be 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 theconstitutional question, though raised for 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. Burke [1911], 175 Ala., 561;
57 S., 870.) As to the power of this court to consider the constitutional question raised for thefirst time before this court in these proceedings, we turn again and point with emphasis to the
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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 opinionthat 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 present proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must have a personal and substantial interest in thecase such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goeswithout 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 mortalwound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the
well-settled 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 thelegislature unconstitutional in an action instituted in behalf of the Government 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 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 itself questioned. Said the Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validityof a law enacted by their representatives; that to an accusation by the people of Michigan
of usurpation 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 statute only in form, and lacks the force of law, and is of no moresaving 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 anacquiescence 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 Attorney-General 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 partyindeed, the proper party to bring this action.
The state is always interested 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, as an individual plaintiff must, show grounds of
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fearing more specific injury. (State vs. Kansas City 60 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 county attorney, 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 itsvalidity (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. Cityof 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], 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; 147 S., 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, beingcharged 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 exrel. 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 in conflict with one which it is his duty to enforce.In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should
not, merely because he believed a certain statute to be unconstitutional forbid the districtattorney to file a bill of information charging a person with a violation of the statute. Inother words, a judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it must be decided in
order to determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., isauthority 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., isauthority 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 hisjudgment, 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
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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 fact, they appear to have proceeded on the assumption thatthe 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 before this court, that the City Fiscal is estopped fromattacking the validity of the Act and, not authorized 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.)
The mere fact that the Probation Act has been repeatedly relied upon 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 nor assailing its validity. For courts will pass upon a constitutionalquestions only when presented before it in bona fidecases 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 just respect for
the legislature, renders it proper, to waive it, if the case in which it arises, can be decided onother points." (Ex parteRandolph [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, 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 LineCo., 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. 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 probationsolely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the factthat the Probation Act is a new addition to our statute books and its validity has never before
been passed upon by the courts; that may 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 CuUnjieng has been at large for a period of about four years since his first conviction. All wait 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
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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 ofnearly 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 situationwhich 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 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 lay. 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 thelegislature 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 aswell. "The question of the validity of every statute is first determined by the legislativedepartment 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 theLegislature 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. The courts cannot but cautiously 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 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 ofauthorities.
One of the counsel for respondents, in the course of his impassioned argument, calledattention to the fact that the President of the Philippines had already expressed his opinion
against the constitutionality of the Probation Act, adverting that as to the Executive the
resolution of this question was a foregone conclusion. Counsel, however, reiterated his
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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 ofBill No. 2417 of the Nationality 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 Commonwealtha 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 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, cannotsway our judgment on way or another and prevent us from taking what in our opinion is the
proper course of action to take in a given case. It if is ever necessary for us to make any
vehement affirmance during this formative period of our political history, it is that we areindependent 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) Thatsaid Act encroaches upon the pardoning power of the Executive; (2) that its 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 Governor-General 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 thePhilippines. (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 timeafter the commission of the offense, either before or after conviction (VideConstitution of the
United States, Art. II, sec. 2;In reLontok [1922], 43 Phil., 293). The Governor-General of the
Philippines was thus empowered, like the President of the United States, to pardon a personbefore 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 theUnited States (VideConstitution 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 parteWells[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
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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" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the wholepunishment attached by law to the offense committed. The House of Lords, on a conviction may,
by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense committed, together with removal fromoffice and incapacity to hold office. (Com. vs. Lockwood,supra.) Our Constitution also makesspecific 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 NationalAssembly. 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 officeror authority. The coordinate departments of government have nothing to do with the pardoningpower, 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., , and cases cited.) " . . . where the pardoning power is conferred on the executivewithout 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, 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 sentenced was void. (Ex parteUnited 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 limitedto temporary suspension and that the right to suspend sentenced 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 forjudgment, recourse must be had 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. L. 159, U.S.C. title 18, sec. 724). This was followed by an appropriation to defray
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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 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 courthas 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 thehistory 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, 2 Session) the following
statement:
Prior to the so-called 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
sentenced. In the same opinion the court pointed out the necessity for action by Congressif the courts were to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probationlegislation. 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 inharmony with that of the states of the Union. At the present time every state has aprobation 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 been sustained by inferior federal
courts. In Riggs vs. United Statessupra, 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 nomanner to encroach upon the pardoning power of the President. This case will be 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 ismade (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.
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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 as actually enacted in 1925, and that the constitutionality of theAct 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. InEx parteBates ([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 powerto set punishment for crime is very broad, and in the exercise of this power the general assembly
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." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, thePhilippine 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 thetrial courtslarge 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 asentence 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
case 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 andaggravating 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 andAsuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code
empowers the courts to determine, within the limits of each periods, in case the penalty
prescribed by law contains three periods, the extent of the evil produced by the crime. In theimposition 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 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 fifteenbut 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 committedis 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 article 11 and 12 of
the Code, "the courts shall impose the penalty in the period which may be deemed proper, inview 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
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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, one-half of the period of preventive imprisonment is
deducted form 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); thedeath 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 sentenced, the execution of said sentence shall be suspended withregard to the 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 probationAct. 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 100 and granting the courtslarge discretion in imposing the penalties of the law. Section 1 of the law as amended provides;
"hereafter, in imposing a prison sentence for an offenses 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 properlyimposed 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, themaximum 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. In this Act is againmanifested 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 afterinvestigation of the particular circumstances of the offenses, 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. It this be so, then, it cannot be said that the Probation Act comes in conflictwith 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 andconduct of criminal causes, with which the executive can have nothing to do." (Ex parteBates,
supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the
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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 alone is
vested with the power to pardon after final sentence has been imposed by the courts, the powerof the courts to imposed 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
sentenced, by probation or otherwise, as to do so would encroach upon the pardoning power ofthe 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 parteClendenning [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; 67N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep.,
615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162;Ex parteShelor [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, 54Mich., 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; 265Pac., 392;Ex parteDe 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; 133S. E., 843; People vs. 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; Statevs. 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 vs. exrel. Forsyth vs. Court of Session [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; 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. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn.,100; 169 S. W., 558; Baker vs. State [1814], 130 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., 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;
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State ex rel. Tingstand 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 probationhowever characterized. State ex rel. Tingstand 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 officerduring 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,ReGiannini [1912],18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are actually districtand 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 in theirnature. 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 the
civil disabilities, remain and become operative when judgment is rendered. A pardonreaches 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 thepenalties 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 parteGarland, 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 the state constitutions were perfectly familiar withthe 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 parteWells, 59 U. S., 18How., 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 has so longmaintained. 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, authorizescourts 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
constitution was adopted to be an ordinary judicial function, and which, ever since its
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adoption, has been exercised 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 Directors ofPrisons 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 isplaced 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 non-
fulfillment 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 maybe 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 find 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, isagainst 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 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 thesentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S.
W., 162), 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 uponthe Chief Executive by the Jones Law, may not be conferred by the legislature upon the courts by
means of 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 pardonsto persons convicted of crime, it also distinguished between suspensions 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 anindefinite 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
hold in conflict with the power confiding in the Governor to grant commutations of
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punishment, for a commutations is not but to change the punishment assessed to a less
punishment.
In State ex rel. Bottomnly 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 12078-12086, Revised Codes of 1921. The courtheld the law valid as not impinging upon the pardoning power of the executive. In a unanimous
decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood
meaning at the time our Constitution was adopted, and no one of them was intended to
comprehend the suspension of the execution of the judgment as that phrase is employedin sections 12078-12086. 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, 26N. 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 oneoriginally 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 the 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 temporarysuspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar toour 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 thepower of pardon is granted, and these statutes have been upheld quite uniformly, as areference 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 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. (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 contended, anundue delegation of legislative power?
Under the constitutional system, the powers of government are distributed among three
coordinate and substantially independent organs: the legislative, the executive and the judicial.
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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 unicamiral National Assembly by the Constitution (Act. 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 thatpotestasdelegata non delegare potest. This principle is said to have originated with the glossators, was
introduced into English law through a misreading of Bracton, the