[No. 45685.

November 16, 1937] THE PEOPLE OF THE PHILIPPINE ISLANDS and THE HONGKONG & SHANGHAI BANKING CORPORATION, petitioners, vs. JOSE O. VERA, Judge ad interim of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents. 1.PROBATION ; AUTHORITY OF PROBATION COURT TO LOOK INTO CIRCUMSTANCES OF OFFENSE; SUPERIOR AND INFERIOR COURTS; LEGAL RELATION AND ETHICAL STANDARD.Probation implies guilt by final judgment. While a probation court hearing a probation case may look into the circumstances attending the commission of the offense, this does not authorize it to reverse the findings and conclusions of the Supreme Court, either directly or indirectly, especially where from its own admission reliance was merely had on the printed briefs, averments, and pleadings of the parties. As observed in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases," if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the integrated judicial system of the nation. 2.CONSTITUTIONAL LAW; THE PRESIDENT AND HIS VETO POWER; PRESIDENT'S VETO NOT BINDING ON THE SUPREME COURT.In vetoing a bill, the President may express the reasons which he may deem proper, but his reasons are not binding upon the Supreme Court in the determination of actual controversies submitted to it for determination. Whether or not the Executive should express or in any manner insinuate his opinion on a matter encompassed within his constitutional power of veto but which happens- to be at the same time pending determination before the Supreme Court is a question of propriety for him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances, however, cannot sway the judgment of the court one way or another and prevent it from taking what in its opinion is the proper course of action to take in a given case.

3.ID. ; INDEPENDENCE OF THE JUDICIARY.If it is ever necessary to make any vehement affirmance during this formative period of our political history, it is that the judiciary is independent of the Executive no less than of the Legislative department of our governmentindependent in the performance of its functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of its sworn duty as it sees it and understands it. 4.ID.; WHEN CONSTITUTIONALITY MAY BE RAISED.The constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i. e., the issue of constitutionality must be the very lis mota presented. 5.ID. ; ID. ; RESORT TO EXTRAORDINARY LEGAL REMEDIES; ADJUDICATED CASES.The question of the constitutionality of an Act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law, even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922], 42 Phil., 818), the Supreme Court held that the question of the constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see also 12 C. }., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259, affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U. S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an" action of., quo warranto brought in the name of- the Government of the Philippines. It has also been. held "that the constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. 3., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari. (YuCong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed.,

1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L, R. A. [N. S.], 843, and cases cited.) 6.ID.; ; ID. ; ID. ; PROHIBITION ; RULE WHERE JURISDICTION is EXCLUSIVELY DERIVED FROM UNCONSTITUTIONAL STATUTE.The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. The general rule, although there is a conflict in the cases, is that the writ of prohibition will not lie where the inferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the inferior court having jurisdiction may itself determine the constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. 7.ID. ; ID. ; ID. ; ID. ; ID. ; COURTS OF FIRST INSTANCE; LIMITED JURISDICTION IN PROBATION CASES.A Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature. 8.ID.; ID.; CONSTITUTIONALITY MUST BE RAISED AT THE EARLIEST OPPORTUNITY; EXCEPTIONS.As a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may be raised at the trial, and if not raised in the trial court, it will not be considered on appeal. But the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. Thus, in. criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a

decision of the case. And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below. 9.ID.; ID.; PERSONAL AND SUBSTANTIAL INTEREST OF PARTY; RIGHT AND INTEREST OF THE PEOPLE OF THE PHILIPPINES TO CHALLENGE CONSTITUTIONALITY.The person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that 'the state can challenge the validity of its own laws. 10.ID. ; ID. ; RELIANCE ON PROBATION ACT; BY FISCAL DOES NOT CONSTITUTE ESTOPPEL AGAINST THE PEOPLE.The mere fact that. the Probation Act has been repeatedly relied upon in the past and all that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no reason for considering the People of the Philippines estopped from now assailing its validity. For courts will pass upon a constitutional question only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases. 11.ID.; ID. ; WHEN DETERMINATION OF CONSTITUTIONALITY NECESSARY ; WAIVER IF CASE CAN BE DECIDED ON OTHER POINTS.While the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and a just respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points. (Ex parte Randolph [1833], 20 F. Cas. No 11,558; 2 Brock., 447, Vide, also Hoover vs. Wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is

necessary whenever it is essential to the decision of the case, as where the right of a party is founded solely on a statute the validity of which is attacked. (12 C. J., p. 782.) 12.ID. ; ID. ; ID. ; REASONS OF PUBLIC POLICY JUSTIFYING CONSTITUTIONAL INQUIRY.The Supreme Court will take cognizance of the fact that the Probation Act is a new addition to our statute books and its validity has never before been passed upon by the courts; that many persons accused and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage of the Probation Act in the future; and that the respondent M. C. U, has been at large for a period of about four years since his first conviction. All await the decision of this court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent muItiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. 13.ID. ; THE JUDICIARY; ITS DUTY TO ENFORCE THE CONSTITUTION.Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. The Supreme .Court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the National Legislature invalid because in conflict with the fundamental law. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to- the supreme law by setting aside a statute in conflict therewith. This is of the essence of judicial duty. 14.ID.; ID.; STATUTORY CONSTRUCTION ; PRESUMPTION IN FAVOR OF CONSTITUTIONALITY; RATIONALE OF PRESUMPTION.All reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of every statute is first determined by the legislative department of the government itself." (U. S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U. S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the executive. The members

of the Legislature and the Chief Executive have taken an oath to support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not intend to violate the Constitution. Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It follows that the courts will not set aside a law as violative of the Constitution except in clear cases. 15.ID.; THE PARDONING POWER UNDER THE JONES LAW AND THE CONSTITUTION OF THE PHILIPPINES.Section 21 of the Jones Law, in force at the time of the approval of Act No. 4221, 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 the Philippines. The provisions of the Jones Law and the Constitution of the Philippines differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction. The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of his case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". So too, under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in the United States. 16.ID. ; ID.; ROYAL PARDON UNDER ENGLISH LAW; POWER OF THE HOUSE OF LORDS.The rule in England is different. There, a royal pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged." The reason for the distinction is obvious. In England, judgment on impeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government" but extends to the whole punishment attached by law to the offense committed. The House of Lords, on a

conviction may, by its sentence, inflict capital punishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed, together with removal from office and incapacity to hold office. 17.ID.; ID.; COMMUTATION AND AMNESTY UNDER THE PHILIPPINE CONSTITUTION.Our Constitution makes specific mention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of the National Assembly. 18.ID. ; ID.; EXCLUSIVE CHARACTER OF THE PARDONING POWER.The benign prerogative of mercy reposed in the Executive cannot be taken away nor fettered by any legislative restrictions, nor can like power be given by the legislature to any other officer or authority. The coordinate departments of government have nothing to do with the pardoning power, since no person properly belonging to one, of the departments can exercise any powers appertaining to either of the others except in cases expressly provided for by the constitution. (20 R. C. L., pp. 540, 541.) Where the pardoning power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof (12 C. J., pp. 838, 839). 19.ID.; PROBATION; POWER OF THE PHILIPPINE LEGISLATURE TO ENACT A PROBATION LAW.The Philippine Legislature, like the Congress of the United States, may legally enact a probation law under its broad power to fix the punishment of any and all penal offenses. The legislative power to set punishment for crime is very broad, and in the exercise of this power the legislature may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment, and whether it should be certain, or indeterminate, or conditional. Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courtsparticularly the trial 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. 20.ID. ; ID. ; PROBATION AND PARDON NOT COTERMINOUS; PROBATION Distinguished FROM REPRIEVE AND COMMUTATION.Probation and pardon are not coterminous; nor are they the same. They are actually distinct and different from each other, both in origin and in nature. In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation. The probationer, during the period of probation, remains in legal custodysubject to the control of the probation officer and of the court, 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. Probation should also be distinguished from reprieve and from commutation of the sentence. 21.ID. ; ID.; ID. ; PROBATION NOT IN CONFLICT WITH PARDONING POW-ER.The Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his rearrest and imprisonment. 22.ID.; DIVISION OF POWERS.Under our constitutional system, the powers of government are distributed among three coordinate and substantially independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives its authority from the Constitution which, in turn, is the highest expression of the popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. 23.ID. ; ID. ; DELEGATION OF LEGISLATIVE AUTHORITY; HISTORICAL DEVELOPMENT.The power to make lawsthe legislative poweris vested in a

bicameral Legislature by the Jones Law and in a unicameral National Assembly by the Constitution. The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of separation of powers. 24.ID.; ID.; ID.; RULE FORBIDDING DELEGATION OF LEGISLATIVE AUTHORITY NOT INFLEXIBLE; EXCEPTIONS.The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to local authorities. On quite the same principle, Congress is empowered to delegate legislative power to such agencies in the territories of the United States as it may select. Courts have also sustained the delegation of legislative power to the people at large, though some authorities maintain that this may not be done. Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of Article VI of the Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such limitations and restrictions as it may impose, -to fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And section 16 of the Same article of the Constitution provides that "In times of war or other national emergency, the National Assembly may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy." 25.ID. ; ID. ; ID. ; TEST OF UNDUE DELEGATION ; DETAILS OF EXECUTION.In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and

provisions when it left the hands of the legislature so -that nothing was left to the judgment of any other appointee or delegate of the legislature. In United States vs. Ang Tang Ho {[1922], 43 Phil., 1), the Supreme Court adhered to the foregoing rule. The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative board may be guided in the exercise of the discretionary powers delegated to it. 26.ID. ; ID. ; ID. ; PROBATION ACT MAKES VIRTUAL SURRENDER OF LEGISLATIVE POWER TO PROVINCIAL BOARDS.The Probation Act does not, by the 'force of any of its provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their discretionary power. What is granted is a "roving commission" which enables the provincial boards to exercise arbitrary discretion. By section 11 of the Act, the legislature does seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. If a provincial board does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. This is a virtual surrender of legislative power to the provincial boards. 27.ID.; ID.; ID.; TRUE DlSTINCTION BETWEEN POWER TO MAKE LAW AND DlSCRETION AS. TO ITS EXECUTION; ADJUDICATED CASES.The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be can be made. (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852], 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec. 68.) To the same effect are decisions of the Supreme Court in the Municipality of Cardona vs. Municipality of Binagonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919], 39 Phil., 660) ; and Cruz vs. Youngberg ([1931], 56 Phil., 234). 28.ID. ; ID.; ID.; CONDITIONAL ENFORCEMENT OF A LAW; RELAXATION OF THE DOCTRINE.Laws may be made effective on certain contingencies, as by

proclamation of the executive or the adoption by the people of a particular community (6 R. C. L., 118, 170172; Cooley, Constitutional Limitations, 8th ed., vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat, 1; 6 Law. ed., 253), the Supreme Court of the United States ruled that the legisture may delegate a power not legislative which it may itself rightfully exercise. The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government. Notwithstanding the apparent tendency to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from social and economic forces at work in this modern industrial age, the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Professor Willoughby's treatise on the Constitution of the United States and is accepted. 29.ID.; ID.; ID.; OPERATION OF PROBATION ACT NOT CONTINGENT ON SPECIFIED FACTS OR CONDITIONS; DlSCRETION VESTED IN PROVINCIAL BOARDS ARBITRARY.The legislature has not made the operation of the Probation Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves the entire operation or non-operation of the law upon the provincial boards. The discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate conditions or find any- fact, or await the happening of any specified contingency. It is bound by no rulelimited by no principle of expediency announced by the legislature.. It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason or have any reason whatsoever for refusing or failing to appropriate any funds for the salary of a. probation officer. This is a matter which rests entirely at its pleasure. 30.ID. ; ID. ; ID. ; LOCAL OPTION LAWS ; EIGHT OF LOCAL SELF-GOVERNMENT; SUSPENSION OF OPERATION OF A GENERAL LAW NOT COUNTENANCED.The legislature may enact laws for a particular locality different from those applicable to other localities and, while recognizing the force of the principle hereinabove expressed, courts in many jurisdictions have sustained the constitutionality of the

submission of option laws to the vote of the people. (6 R. C. L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should receive different treatment in different localities placed under different circumstances. Without denying the right of local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for the people of small communities to pass upon in matters of general legislation like that which treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in Act No. 4221. 31.ID.; ID. ; ID. ; PROVINCIAL BOARDS EMPOWERED TO SUSPEND OPERATION OF PROBATION ACT.The statute does not expressly state that the provincial boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with the authority to appropriate or not the necessary funds for the salaries of probation officers they thereby are given absolute discretion to determine whether or not the law should take effect or operate in their respective provinces, the provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the necessary funds. The validity of a law is not tested by what has been done, but by what may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.) 32.ID. ; ID. ; ID. ; LEGISLATIVE POLICY; EXECUTION THEREOF; CONSTITUTION BOTH A GRANT AND LlMITATION OF POWER.A great deal of latitude should be granted to the legislature not only in the expression of what may be termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the unexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in the representatives of the people and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular

provisions which by clear intendment, have that effect. But it should be borne in mind that a constitution is both a grant and a limitation. of power and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not be delegated. 33.ID.; EQUAL PROTECTION OF THE LAWS; CLASS LEGISLATION; CLASSIFICATION ON REASONABLE BASIS." * * * nor shall any person be denied the equal protection of the laws." This basic individual right sheltered by the Constitution is a restraint on all the three grand departments of our government and on the subordinate instrumentalities and subdivisions thereof, and on many constitutional powers, like the police power, taxation and eminent domain. What may be regarded as a denial of the equal protection of the laws is a question not always easily determined. No rule that will cover every case can be formulated. Class legislation discriminating against some and favoring others is prohibited. But classification on a reasonable basis, and not made arbitrarily or capriciously, is permitted. The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. 34.ID. ; ID. ; ID. ; RESULTANT INEQUALITY FROM UNWARRANTED DELEGATION; PROBATION ACT PERMITS DENIAL OF EQUAL PROTECTION.In the case of Act No. 4221, the resultant inequality may be said to flow from the unwarranted delegation of legislative power to the provincial boards. While inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear that section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities requiring actual denial of the equal protection of the law before courts should assume the task of setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which denies equal protection and a law which permits of such denial. A law may appear to be

fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibition. In other words, statutes may be adjudged unconstitutional because of their effect in operation. If a law has the effect of denying the equal protection of the law it is unconstitutional. 35.ID.; ID.; ID.; SECTION 11 OF PROBATION ACT; GOVERNMENT OF LAWS; EQUALITY CLAUSE NOT "A ROPE OF SAND".Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be in force in the other provinces, but one province may appropriate for the salary of a probation officer of a given yearand have probation during that yearand thereafter decline to make further appropriation, and have no probation in subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand." 36.ID.; PARTIAL UNCONSTITUTIONALITY ; PRESUMPTION AGAINST MUTILATION OF STATUTE.In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process. 37.ID. ; SECTION 11 OF PROBATION ACT INSEPARABLE FROM REST OF ACT; PROBATION AND PROBATION OFFICERS.Section 11 of the Probation Act (No. 4221) is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial results of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon the affirmative action of the different provincial boards. If not one of the provincesand this is the actual situation nowappropriates the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no

probation without a probation officer. Neither can there be a probation officer without a probation system. 38.ID.; ID.; PROBATION ACT ANALYZED; SECTIONS 10 AND 11 OF ACT; RULE OF STATUTORY CONSTRUCTION.The probation officers and the administrative personnel referred to in section 10 are clearly not those probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10 are to act as such, not in the various provinces, but in the central office known as the Probation Office established in the Department of Justice, under the supervision of a Chief Probation Officer, When the law provides that "the probation officer" shall investigate and make reports to the court; that "the probation officer" shall supervise and visit the probationer; that the probationer shall report to the "probation officer", shall allow "the probation officer" to visit him, shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or condition; that the court shall notify "the probation officer" in writing of the period and terms of probation, it means the probation officer who is in charge of a particular probationer in a particular province. It never could have been the intention of the legislature, for instance, to require a probationer in Batanes, to report to a probation officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are assigned to him by law. 39.ID.; ID.; ID.; ID.; WlSDOM AND PROPRIETY OF LEGISLATION; PROGRESSIVE INTERPRETATION AND JUDICIAL LEGISLATION.That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of provinces is, of course, possible. But this would be arguing on what the law may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But much as has been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are not permitted to read into the law matters and provisions

which are not there. Not for any purposenot even to save a statute from the doom of invalidity. 40.ID.; ID.; ID.; ID.; APPROPRIATION OF FUNDS; APPOINTMENT OF PROBATION OFFICERS BY SECRETARY OF JUSTICE; JUDICIAL NOTICE.The clear intention and policy of the law is not to make the Insular Government defray the salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such compensation as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act". It was not the intention of the legislature to empower the Secretary of Justice to fix the salaries of probation officers in the provinces or later on. to include said salaries in an appropriation act. Considering, further, that the sum of P50,000, appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the provinces, We take judicial notice of the fact that there are 48 provinces in the Philippines, and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in. each province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this is correct, the contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that there can be a system of probation in the provinces without probation officers. 41.ID. ; PROBATION AS DEVELOPMENT OF MODERN PENOLOGY; PROBATION ACT AS REPUGNANT TO FUNDAMENTAL LAW.Probation as a development of modern penology is a commendable system. Probation laws have been enacted, here and in other countries, to permit what modern criminologists call the "individualization of punishment", the adjustment of the penalty to the character of 'the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed

that, in many cases, convicts may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convict gives promise of reform. The welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while probation is commendable as a system and' its implantation into the Philippines should be welcomed, the law is set aside because of repugnancy to the fundamental law. 42.ID. ; CONSTITUTIONAL RELATIONS; RULES OF STATUTORY CONSTRUCTION; DECISIONS OF UNITED STATES COURTS; LOCAL CONDITIONS AND ENVIRONMENT.The constitutional relations between the Federal and the State governments of the United States and the dual character of the American Government is a situation which does not obtain in the Philippines. The situation of a state of the American Union or of the District of Columbia with reference to the Federal Government of the United States is not the situation of a province with respect to the Insular Government; the distinct federal and state judicial organizations of the United States do not embrace the integrated judicial system of the Philippines; "General propositions do not decide concrete cases" and "to keep pace with * * * new developments of times and circumstances", fundamental principles should be interpreted having in view existing local conditions and environments.