Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI

BANKING CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent 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 Banking
Corporation, are respectively the plaintiff and the offended party, and the respondent herein
Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the
Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First
Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is
the Judge ad interim of the seventh branch of the Court of First Instance of Manila, who heard
the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance of
Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation
intervening in the case as private prosecutor. After a protracted trial unparalleled in the annals of
Philippine jurisprudence both in the length of time spent by the court as well as in the volume 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 Cu
Unjieng 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 six
months of prision correccional to seven years, six months and twenty-seven days of prision
mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for
reconsideration and four successive motions for new trial which were denied on December 17,
1935, and final judgment was accordingly entered on December 18, 1935. The defendant
thereupon sought to have the case elevated on certiorari to the Supreme Court of the United
States but the latter denied the petition for certiorari in November, 1936. This court, on
November 24, 1936, denied the petition subsequently filed by the defendant for leave to
file a second alternative motion for reconsideration or new trial and thereafter remanded the case
to the court of origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein
respondent Mariano Cu Unjieng on November 27, 1936, before the trial court, under the
provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu
Unjieng states in his petition, inter alia, that he is innocent of the crime of which he was
convicted, that he has no criminal record and that he would observe good conduct in the future.
The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for
probation 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 it has not been
repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1,
subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the
reason that its applicability is not uniform throughout the Islands and because section 11 of the
said Act endows the provincial boards with the power to make said law effective or otherwise 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 the provincial boards of several
provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the
private prosecution except with respect to the questions raised concerning the constitutionality of
Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding
that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y
que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" 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 al peticionario
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 enteramente
differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del
veredicto judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the
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 been
filed with the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid
motion subsequently filed a petition for leave to withdraw his appearance as amicus curiae on
the ground that the motion for leave to intervene as amici curiae was circulated at a banquet
given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the
same "without mature deliberation and purely as a matter of courtesy to the person who invited
me (him)."

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

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to
intervene as amici curiae aforementioned, asking that a date be set for 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 the
movants for intervention as amici curiae to 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 curiae but,
upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the
hearing of both motions. The respondent judge thereupon set the hearing of the motion for
execution on August 21, 1937, but proceeded to consider the motion for leave to intervene
as amici curiae as in order. Evidence as to the circumstances under which said motion for leave
to intervene as amici curiae was signed and submitted to court was to have been heard on August
19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process
to put an end to what they alleged was an interminable proceeding in the Court of First Instance
of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the
execution of the sentence imposed by this Honorable Court on him, exposing the courts to
criticism and ridicule because of the apparent inability of the judicial machinery to make
effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition,
herein petitioners allege that the respondent judge has acted without jurisdiction or in excess of
his jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under
probation for the following 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 to
include the City of Manila for the purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a law of general application
because it is made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No.
4221 would not be applicable to it because it has 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 distinct
from the Probation Officer provided for in section 11 of the same Act.

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

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

(2) After he had issued the order denying Mariano Cu Unjieng's petition for
probation on June 28, 1937, it became final and executory at the moment of its
rendition.

(3) No right 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 only
presumptuous 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 interim judge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which became
imperative when he issued his order of June 28, 1937, denying the application for probation, to
commit his 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 Legislature providing
for a system of probation for persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution
of the Philippines guaranteeing equal protection of the laws because it confers upon the
provincial board of its province the absolute discretion to make said law operative or otherwise
in their respective provinces, because it constitutes an unlawful and improper delegation to the
provincial boards of the several provinces of the legislative power lodged by the Jones Law
(section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the
National Assembly; and for the further reason that it gives 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 of
Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the
first time with the issues raised by other petitioner regarding the constitutionality of 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 exclusive
power 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 legislative
power and a denial of the equal protection of the laws. On October 9, 1937, two memorandums,
signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the
Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking
Corporation, one sustaining the power of the state to impugn the validity of its own laws and the
other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power,
were presented. Another joint memorandum was filed by the same persons on the same day,
October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal
protection of the laws and constitutes an 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 constitutional
question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the
petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and
was still pending resolution before the trial court when the present petition was
filed with this court.

(3) That the petitioners having themselves raised the question as to the execution
of judgment before the trial court, said trial court has acquired exclusive
jurisdiction to resolve the same under the theory that its resolution denying
probation is unappealable.

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

(5) That 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 of
limited jurisdiction but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the
question submitted to and pending resolution by the trial court, the present action
would not lie because the resolution of the trial court denying probation is
appealable; for although the Probation Law does not specifically provide that an
applicant for probation may appeal from a resolution of the Court of First Instance
denying probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and
executory for the reason that the said respondent had filed an alternative motion
for reconsideration and new trial within the requisite period of fifteen days, which
 motion the trial court was able to resolve in view of the restraining order
improvidently and erroneously issued by this court.lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when
he presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is
not appealable, it is incumbent upon the accused to file an action for the issuance
of the writ of certiorari with mandamus, it appearing that the trial court, although
it believed that the accused was entitled to probation, nevertheless denied
probation for fear of criticism because the accused is a rich man; and that, before
a petition for certiorari grounded on an irregular exercise of jurisdiction by the
trial court could lie, it is incumbent upon the petitioner to file a motion for
reconsideration specifying the error committed so that the trial court could have
an opportunity to correct or cure the same.

(10) That on 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 or
upon petition of the proper party, the petition in the latter case taking the form of
a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as
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 probation
will 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 protection clause
of the Constitution, and does not encroach upon the pardoning power of the Executive. In an
additional memorandum filed on the same date, counsel for the respondents reiterate the view
that section 11 of Act No. 4221 is free from constitutional objections and contend, in addition,
that the private prosecution may not intervene in probation proceedings, much less question the
validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from
questioning the validity of the Act; that the validity of 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
Unjieng was denied for having been filed out of time but was admitted by resolution of this court
and filed anew on November 5, 1937. This memorandum elaborates on some of the
points raised by the respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present case, we
noted that the court below, in passing upon the merits of the application of the respondent
Mariano Cu Unjieng and in denying said application assumed the task not only of considering
the merits of the application, but of passing upon the culpability of the applicant, notwithstanding
the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final
judgment. While a probation case may look into the circumstances attending the commission of
the offense, this does not authorize it to reverse the findings and conclusive of this court, either
directly or indirectly, especially wherefrom its own admission reliance was merely had on the
printed briefs, averments, and pleadings of the parties. As already observed by this court in Shioji
vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every
Court of First Instance could enjoy the 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 intergrated judicial system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been
properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a discussion of certain incidental
questions raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles is
necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised and presented inappropriate cases
and is necessary to a determination of the case; i.e., the issue of constitutionality must be the
very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L.,
pp. 76, 77; 12 C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in ordinary
actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the
remedies in the ordinary course of law even if available, are not plain, speedy and adequate.
Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also,
12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259
[affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law.
ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo
warranto brought in the name of the Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783;
Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on
an application for injunction to restrain action under the challenged statute (mandatory, see Cruz
vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction
where the determination of the constitutional question is necessary to a decision of the case. (12
C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial
District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A.
[N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this court
twelve years ago was, like the present one, an original action for certiorari and prohibition. The
constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there
challenged by the petitioners, and the constitutional issue was 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 in prohibition." This court decided to take up the constitutional
question and, with two justices dissenting, held that Act No. 2972 was constitutional. The case
was elevated on writ of certiorari to the Supreme Court of the United States which reversed the
judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On
the question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine
supreme court is granted concurrent jurisdiction in prohibition with courts of first
instance over inferior tribunals or persons, and original jurisdiction over courts of first
instance, when such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the validity of 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, 26
Phil., 192). But in this case where a new act seriously affected numerous persons and
extensive property rights, and was likely to cause a multiplicity of actions, the Supreme
Court exercised its discretion to bring the issue to the act's validity promptly before it and
decide in the interest of the orderly administration of justice. The court relied by analogy
upon the cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.]
932; 28 Sup. Ct. Rep., 441; 14 Ann. 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 court
under the Island Code, we acquiesce in the desire of the parties.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal
from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal
Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of
prohibition 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 adequate
remedy by appeal without resort to the writ of prohibition. But where the inferior court or
tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented
by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874,
51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84
A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54;
46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from
Act No. 4221 which prescribes in detailed manner the procedure for granting probation to
accused persons after their conviction has become final and before they have served their
sentence. It is true that at common law the authority of the courts to suspend temporarily the
execution of the sentence is recognized and, according to a number of state courts, including
those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts
(Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156
Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States
([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355), the Supreme Court of the United States expressed the opinion that under the
common law the power of the court was limited to temporary suspension, and brushed aside the
contention as to inherent judicial power saying, through Chief Justice White:

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

It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs.
Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the
constitutional issue has been squarely presented not only before this court by the petitioners but
also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera,
however, acting as judge of the court below, declined to pass upon the question on the ground
that the private prosecutor, not being a party whose rights are affected by the statute, may not
raise said question. The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p.
339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59;
113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack
made on the constitutionality of a statute by one who has no interest in defeating it because his
rights are not affected by its operation. The respondent judge further stated that it may not motu
proprio take up the constitutional question and, agreeing with Cooley that "the power to declare
a legislative enactment void is one which the judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where he can conscientiously and with due
regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed.,
Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore,
the court a quo admits that the constitutional question was raised before it, it refused to consider
the question solely because it was not raised by a proper party. Respondents herein reiterates this
view. The argument is advanced that the private prosecution has no personality to appear in the
hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case No.
42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was not
properly raised in the lower court. Although, as a general rule, only those who are parties to a
suit may question the constitutionality of a statute involved in a judicial decision, it has been held
that since the decree pronounced by a court without jurisdiction is void, where the jurisdiction of
the court depends on the validity of the statute in question, the issue of the constitutionality will
be considered on its being brought to the attention of the court by persons interested in the effect
to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue
was not properly raised in the court below by the proper party, it does not follow that the issue
may not be here raised in an original action of certiorari and prohibitions. It is true that, as a
general rule, the question of constitutionality must be raised at the earliest opportunity, so that if
not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial
court, it will not 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 sounds discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y.,
135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said
that the question may be raised for the first time at any stage of the proceedings, either in the trial
court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a
court to pass on the constitutional question, though raised for the first time on appeal, if it
appears that a determination of the question is necessary to a decision of the case. (McCabe's
Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St.
Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co.,
[1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be
considered by an appellate court at any time, where it involves the jurisdiction of the court below
(State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the
constitutional question raised for the first time before this court in these proceedings, we turn
again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the
hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here — a point we do not
now have to decide — we are of the opinion that the People of the Philippines, represented by
the 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 the case such that he has sustained, or will sustained,
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 grater 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. In Government of the Philippine Islands vs. Springer ([1927]), 50
Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189;
72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins
([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its
Attorney General, instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the respondents base their right
was unconstitutional because it impaired the obligation of contracts. The capacity of the chief
law officer of the state to question the constitutionality of the statute was 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 in
question, the issue of constitutionality will be considered on its being brought to the attention of
the court by persons interested in the effect to 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 of
certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must
be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be
raised 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 statute
should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said that the question 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 the
constitutional 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 the
first time before this court in these proceedings, we turn again and point with emphasis to the
case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai
Banking Corporation, represented by the private prosecution, is not the proper party to raise the
constitutional question here — a point we do not now have to decide — we are of the opinion
that the People of the Philippines, represented by the 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 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. In Government of the
Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of
the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the
legislature unconstitutional in an action instituted in behalf of the Government of the Philippines.
In Attorney General vs. 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 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 itself questioned. Said the Supreme Court of Michigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a
law enacted by their representatives; that to an accusation by the people of Michigan of
usurpation 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 more
saving effect to justify action under it than if it had never been enacted. The constitution
is the supreme law, and to its behests the courts, the legislature, and the people must bow
. . . The legislature and the respondents are not the only parties in interest upon such
constitutional questions. As was remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional act of the legislature: "The people
have a deep and vested interest in maintaining all the constitutional limitations upon the
exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was
brought by the 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 party — indeed, 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
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 its validity
(State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to
 compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by
injunction to restrain proceedings under its questionable provisions (State ex rel. vs. City
of Neodesha, 3 Kan. App., 319; 45 Pac., 122).

Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917],
197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181
La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const.
Co. of Brooklyn vs. State [1917], 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, being charged with
the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In
support of the argument three decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 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 district
attorney to file a bill of information charging a person with a violation of the statute. In
other words, a judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it must be decided in
order to determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is
authority for the proposition merely that an officer on whom a statute imposes the duty of
enforcing its provisions cannot avoid the duty upon the ground that he considers the
statute unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is
authority for the proposition merely that executive officers, e.g., the state auditor and
state treasurer, should not decline to perform ministerial duties imposed upon them by a
statute, on the ground that they believe the statute is unconstitutional.

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

The respondents do not seem to doubt seriously the correctness of the general proposition that
the state may impugn the validity of its laws. They have not cited any authority running clearly
in the opposite direction. In fact, they appear to have proceeded on the assumption that the rule
as stated is sound but that it has no application in the present case, nor may it be invoked by the
City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal
reasons being that the validity before this court, that the City Fiscal is estopped from attacking
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 constitutional
questions only when presented before it in bona fide cases for determination, and the fact that the
question has not been raised before is not a valid reason for refusing to allow it to be raised later.
The fiscal and all others are justified in relying upon the statute and treating it as valid until it is
held void by the courts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221 is
necessary to the resolution of the instant case. For, ". . . while the court will meet the question
with firmness, where its decision is indispensable, it is the part of wisdom, and just respect for
the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on
other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also
Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a
constitutional question is necessary whenever it is essential to the decision of the case (12 C. J.,
p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp.,
454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse
vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line
Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is
founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass
Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74
N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation
solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the
Probation Act is a new addition to our statute books and its validity has never before been passed
upon by the courts; that 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 Cu Unjieng
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 policy
demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad
[1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People
vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs.
Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and
Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous
situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve
thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new
law not yet interpreted by the courts, in the interest of the public welfare and for the
advancement of public policy, we have determined to overrule the defense of want of jurisdiction
in order that we may decide the main issue. We have here an extraordinary situation which calls
for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court
of the United States. A more binding authority in support of the view we have taken can not be
found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has
been properly raised. Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the
Constitution. This 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 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. The courts cannot but cautiously exercise its power to overturn
the solemn declarations of two of the three grand departments of the governments. (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 of
authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention
to the fact that the President of the Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the Executive the resolution of this
question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity
and independence of this court. We take notice of the fact that the President in his message dated
September 1, 1937, recommended to the National Assembly the immediate repeal of the
Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the
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 Commonwealth a law . . . unfair and
very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill
referred to, the President exercised his constitutional prerogative. He may express the reasons
which he may deem proper for taking such a step, but his reasons are not binding upon us in the
determination of actual controversies submitted for our determination. Whether or not the
Executive should express or in any manner insinuate his opinion on a matter encompassed within
his broad constitutional power of veto but which happens to be at the same time pending
determination in this court is a question of propriety for him exclusively to decide or determine.
Whatever opinion is expressed by him under these circumstances, however, cannot sway our
judgment 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 are independent of the
Executive no less than of the Legislative department of our government — independent in the
performance of our functions, undeterred by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as
we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches 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 the Philippines. (Art.
VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in some
respects. The adjective "exclusive" found in the Jones Law has been omitted from the
Constitution. Under the Jones Law, as at common law, pardon could be granted any time after
the commission of the offense, either before or after conviction (Vide Constitution of the United
States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the
Philippines was thus empowered, like the President of the United States, to pardon a person
before the facts of the case were fully brought to light. The framers of our Constitution thought
this undesirable and, following most of the state constitutions, provided that the pardoning power
can only be exercised "after conviction". So, too, under the new Constitution, the pardoning
power does not extend to "cases of impeachment". This is also the rule generally followed in the
United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in England is
different. There, a royal pardon can not be pleaded in bar of an impeachment; "but," says
Blackstone, "after the impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells
[1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am.
Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal
from office and disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The House of Lords, on a conviction may,
by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense committed, together with removal from
office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes
specific mention of "commutation" and of the power of the executive to impose, in the pardons
he may 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. We need not dwell at length on the significance of these fundamental changes. It is
sufficient for our purposes to state that the pardoning power has remained essentially the same.
The question is: Has the pardoning power of the Chief Executive under the Jones Law been
impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive.
The exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered
by any legislative restrictions, nor can like power be given by the legislature to any other officer
or authority. The coordinate departments of government have nothing to do with the pardoning
power, since no person properly belonging to one of the departments can exercise any powers
appertaining to either of the others except in cases expressly provided for by the constitution."
(20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the executive
without express or implied limitations, the grant is exclusive, and the legislature can neither
exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper
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 parte United
States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann.
Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed
the opinion of the court that under the common law the power of the court was limited to
temporary suspension and that the right to suspend 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 for
judgment, 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
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 court has no
power under the Probation Act of March 4, 1925 to grant him probation even though the term at
which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of
the probation Act was not considered but was assumed. The court traced the history of the Act
and quoted from the report of the Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 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 Congress
if the courts were to exercise probation powers in the future . . .

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

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

The constitutionality of the federal probation law has been sustained by inferior federal courts. In
Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under
consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7
F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President. This case will be found
to contain an able and comprehensive review of the law applicable here. It arose under
the act we have to consider, and to it and the authorities cited therein special reference is
made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of
Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the
Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal
language, pointed to Congress as possessing the requisite power to enact probation laws, that a
federal probation law as actually enacted in 1925, and that the constitutionality of the Act has
been assumed by the Supreme Court of the United States in 1928 and consistently sustained by
the inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States,
may legally enact a probation law under its broad power to fix the punishment of any and all
penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20
N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province
of the Legislature to denominate and define all classes of crime, and to prescribe for each a
minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A.
[N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set
punishment for crime is very broad, and in the exercise of this power the general 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, the
Philippine Legislature has defined all crimes and fixed the penalties for their violation.
Invariably, the legislature has demonstrated the desire to vest in the courts — particularly the
trial courts — large discretion in imposing the penalties which the law prescribes in particular
cases. It is believed that justice can best be served by vesting this power in the courts, they being
in a position to best determine the penalties which an individual convict, peculiarly
circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the degree of malice and the injury caused by
the offense, the penalty provided by law is clearly excessive, the courts being allowed in such
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 and
aggravating circumstances are attendant in the commission of a crime and the law provides for a
penalty composed of two indivisible penalties, the courts may allow such circumstances to offset
one another in consideration of their number and importance, and to apply the penalty according
to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and
Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code
empowers the courts to determine, within the limits of each periods, in case the penalty
prescribed by law contains three periods, the extent of the evil produced by the crime. In the
imposition of fines, the courts are allowed to fix any amount within the limits established by law,
considering not only the mitigating and aggravating circumstances, but more particularly the
wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the
same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen
but over nine years of age, who has not acted without discernment, but always lower by two
degrees at least than that prescribed by law for the crime which he has committed. Article 69 of
the same Code provides that in case of "incomplete self-defense", i.e., when the crime committed
is not wholly excusable by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of
the Code, "the courts shall impose the penalty in the period which may be deemed proper, in
view of the number and nature of the conditions of exemption present or lacking." And, in case
the commission of what are known as "impossible" crimes, "the court, having in mind the social
danger and the degree of criminality shown by the offender," shall impose upon him either
arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, 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);
the death sentence is not to be inflicted upon a woman within the three years next following the
date of the sentence or while she is pregnant, or upon any person over seventy years of age (art.
83); and when a convict shall become insane or an imbecile after final sentence has been
pronounced, or while he is serving his sentenced, the execution of said sentence shall be
suspended with regard 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 probation Act.
There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently
amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts
large discretion in imposing the penalties of the law. Section 1 of the law as amended provides;
"hereafter, in imposing a prison sentence for an 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 properly
imposed under the rules of the said Code, and to a minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense; and if the offense is
punished by any other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by the same." Certain classes of convicts are, by
section 2 of the law, excluded from the operation thereof. The Legislature has also enacted the
Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559.
Section 7 of the original Act and section 1 of the amendatory Act have become article 80 of the
Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently
reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again
manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, the
modification in particular cases of the penalties prescribed by law by permitting the suspension
of the execution of the judgment in the discretion of the trial court, after due hearing and after
investigation of the 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 conflict
with the power of the Chief Executive to grant pardons and reprieves, because, to use the
language of the Supreme Court of New Mexico, "the element of punishment or the penalty for
the commission of a wrong, while to be declared by the courts as a judicial function under and
within the limits of law as announced by legislative acts, concerns solely the procedure and
conduct of criminal causes, with which the executive can have nothing to do." (Ex
parteBates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld
the constitutionality of the Georgia probation statute against the contention that it attempted to
delegate to the courts the pardoning power lodged by the constitution in the governor alone is
vested with the power to pardon after final sentence has been imposed by the courts, the power
of 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 of
the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W.,
177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182
Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A.
[N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67
N.E., 23; 63 L.R.A., 82; 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 parte Shelor [1910], 33 Nev., 361;111 Pac.,
291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858;
State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54
Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer
vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d],
5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini
[1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac.,
392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118
Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo
[1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E.,
843; 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; State
vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley
vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl.
424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex
rel. 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;
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 probation
however 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 officer
during the term of such suspension, on such terms as the court may determine, was held
constitutional and as not giving the court a power in violation of the constitutional provision
vesting the pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912],
18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually district and
different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of
Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep.,
675), the Court of Appeals of New York said:

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

The framers of the federal and the state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these
instruments upon the executive with full knowledge of the law upon the subject, and the
words of the constitution were used to express the authority formerly exercised by the
English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18
How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any
part of the judicial functions to suspend sentence, and it was never intended that the
authority to grant reprieves and pardons should abrogate, or in any degree restrict, the
exercise of that power in regard to its own judgments, that criminal courts has so long
maintained. The two powers, so distinct and different in their nature and character, were
still left separate and distinct, the one to be exercised by the executive, and the other by
the judicial department. We therefore conclude that a statute which, in terms, authorizes
courts of criminal jurisdiction to suspend sentence in certain cases after conviction, — a
power inherent in such courts at common law, which was understood when the
constitution was adopted to be an ordinary judicial function, and which, ever since its
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 of
Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring,
at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the entire punishment which the law inflicts.
Under the Probation Act, the probationer's case is not terminated by the mere fact that he is
placed on probation. Section 4 of the Act provides that the probation may be definitely
terminated and the probationer finally discharged from supervision only after the period of
probation shall have been terminated and the probation officer shall have submitted a report, and
the court shall have found that the probationer has complied with the conditions of probation.
The probationer, then, during the period of probation, remains in legal custody — subject to the
control of the probation officer and of the court; and, he may be rearrested upon the 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 may be far
from it. It is really a new mode of punishment, to be applied by the judge in a proper
case, in substitution of the imprisonment and 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, is
against the criminal law, which binds and directs the judges, or rather is outside of and
above it. There is thus no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F.
[2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 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 upon the 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 pardons to 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 an indefinite
time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E.,
883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in
conflict with the power confiding in the Governor to grant commutations of 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 court held 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 employed
in 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, 26
N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a
remission of a part of the punishment; a substitution of a less penalty for the one
originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs.
Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of 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 temporary
suspension of execution (Butler vs. State, 97 Ind., 373).

Few adjudicated cases are to be found in which the validity of a statute similar to our
section 12078 has been determined; but the same objections have been urged against
parole statutes which vest the power to parole in persons other than those to whom the
power of pardon is granted, and these statutes have been upheld quite uniformly, as a
reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100;
169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L.,
524.)

We conclude that the Probation Act does not conflict with the pardoning power of the Executive.
The pardoning power, in respect to those serving their probationary sentences, remains as full
and complete as if the Probation 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, an undue
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.
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 that potestas
delegata non delegare potest. This principle is said to have originated with the glossators, was
introduced into English law through a misreading of Bracton, there developed as a principle of
agency, was established by Lord Coke in the English public law in decisions forbidding the
delegation of judicial power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of separation of powers.
(5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke,
namely: "The legislative neither must nor can transfer the power of making laws to anybody else,
or place it anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge
Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims
in constitutional law is, that the power conferred upon the legislature to make laws cannot be
delegated by that department to any other body or authority. Where the sovereign power of the
state has located the authority, there it must remain; and by the constitutional agency alone the
laws must be made until the Constitution itself is charged. The power to whose judgment,
wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the
responsibilities by choosing other agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th
ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court
posits the doctrine "on the ethical principle that such a delegated power constitutes not only a
right but a duty to be performed by the delegate by the instrumentality of his own judgment
acting immediately upon the matter of legislation and not through the intervening mind of
another. (U. S. vs. Barrias, supra, at p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits the
central legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial
Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh
vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes
[1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs
shall be managed by local authorities, and general affairs by the central authorities; and hence
while the rule is also fundamental that the power to make laws cannot be delegated, the creation
of the municipalities exercising local self government has never been held to trench upon that
rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the
grant of the authority to prescribed local regulations, according to immemorial practice, subject
of course to the interposition of the superior in cases of necessity." (Stoutenburgh vs.
Hennick, supra.) On quite the same principle, Congress is powered to delegate legislative power
to such agencies in the territories of the United States as it may select. A territory stands in the
same relation to Congress as a municipality or city to the state government. (United States vs.
Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr
vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas.,
697.) Courts have also sustained the delegation of legislative power to the people at large. Some
authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing
People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However,
the question of whether or not a state has ceased to be republican in form because of its adoption
of the initiative and referendum has been held not to be a judicial but a political question (Pacific
States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep.,
224), and as the constitutionality of such laws has been looked upon with favor by certain
progressive courts, the sting of the decisions of the more conservative courts has been pretty well
drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113;
Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.],
332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be
delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of
the Philippines provides that "The National Assembly may by law authorize the President,
subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff
rates, import or export quotas, and tonnage and wharfage dues." And section 16 of the same
article of the Constitution provides that "In times of war or other national emergency, the
National Assembly may by law authorize the President, for a limited period and subject to such
restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared
national policy." It is beyond the scope of this decision to determine whether or not, in the
absence of the foregoing constitutional provisions, the President could be authorized to exercise
the powers thereby vested in him. Upon the other hand, whatever doubt may have existed has
been removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards
have provided for the salary of a probation officer at rates not lower than those now
provided for provincial fiscals. Said probation officer shall be appointed by the Secretary
of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it is usual
to inquire whether the statute was complete in all its terms and provisions when it left the hands
of the legislature so that nothing was left to the judgment of any other appointee or delegate of
the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1),
this court adhered to the foregoing rule when it held an act of the legislature void in so far as it
undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the
price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf.
Compañia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.)
The general rule, however, is limited by another rule that to a certain extent matters of detail may
be left to be filled in by rules and regulations to be adopted or promulgated by executive officers
and administrative boards. (6 R. C. L., pp. 177-179.)

For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies
endowed with power to determine when the Act should take effect in their respective provinces.
They are the agents or delegates of the legislature in this respect. The rules governing delegation
of legislative power to administrative and executive officers are applicable or are at least
indicative of the rule which should be here adopted. An examination of a variety of cases on
delegation of power to administrative bodies will show that the ratio decidendi is at variance but,
it can be broadly asserted that the rationale revolves around the presence or absence of a standard
or rule of action — or the sufficiency thereof — in the statute, to aid the delegate in exercising
the granted discretion. In some cases, it is held that the standard is sufficient; in others that is
insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is
incomplete and hence invalid if it does not lay down any rule or definite standard by which the
administrative officer or board may be guided in the exercise of the discretionary powers
delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup.
Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N.
E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec
174.) In the case at bar, what rules are to guide the provincial boards in the exercise of their
discretionary power to determine whether or not the Probation Act shall apply in their respective
provinces? What standards are fixed by the Act? We do not find any and none has been pointed
to us by the respondents. The probation Act does not, by the force of any of its provisions, fix
and impose upon the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of Justice Cardozo in the
recent case of Schecter, supra, is a "roving commission" which enables the provincial boards to
exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its
own authority extend the benefits of the Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to determine. In other words, the provincial boards
of the various provinces are to determine for themselves, whether the Probation Law shall apply
to their provinces or not at all. The applicability and application of the Probation Act are entirely
placed in the hands of the provincial boards. If the provincial board does not wish to have the
Act applied in its province, all that it has to do is to decline to appropriate the needed amount for
the salary of a probation officer. The plain language of the Act is not susceptible of any other
interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial
boards.

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

It should be observed that in the case at bar we are not concerned with the simple transference of
details of execution or the promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were, recurrence to our own
decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29
Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus
[1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660.)

It is connected, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community (6 R. C.
L., 116, 170-172; 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 State ruled
that the legislature may delegate a power not legislative which it may itself rightfully
exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L.
R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is
nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of
the taking into effect of a law. That is a mental process common to all branches of the
government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896],
93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W.,
210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding
the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority
on account of the complexity arising from social and economic forces at work in this modern
industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of
Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun
Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in
Prof. Willoughby's treatise on the Constitution of the United States in the following language —
speaking of declaration of legislative power to administrative agencies: "The principle which
permits the legislature to provide that the administrative agent may determine when the
circumstances are such as require the application of a law is defended upon the ground that at the
time this authority is granted, the rule of public policy, which is the essence of the legislative act,
is determined by the legislature. In other words, the legislature, as it its duty to do, determines
that, under given circumstances, certain executive or administrative action is to be taken, and
that, under other circumstances, different of no action at all is to be taken. What is thus left to the
administrative official is not the legislative determination of what public policy demands, but
simply the ascertainment of what the facts of the case require to be done according to the terms
of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd
ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep.,
228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative
will must, of course, come from Congress, but the ascertainment of the contingency upon which
the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p.
864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The
legislature, then may provide that a contingencies leaving to some other person or body the
power to determine when the specified contingencies has arisen. But, in the case at bar, the
legislature has not made the operation of the Prohibition Act contingent upon specified facts or
conditions to be ascertained by the provincial board. It leaves, as we have already said, the entire
operation or non-operation of the law upon the provincial board. the discretion vested is arbitrary
because it is absolute and unlimited. A provincial board need not investigate conditions or find
any fact, or await the happening of any specified contingency. It is bound by no rule, — limited
by no principle of expendiency 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 whatsoever for refusing or failing to appropriate any funds for the
salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact that at
some future time — we cannot say when — the provincial boards may appropriate funds for the
salaries of probation officers and thus put the law into operation in the various provinces will not
save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon
the will of the provincial boards and not upon the happening of a certain specified contingency,
or upon the ascertainment of certain facts or conditions by a person or body other than legislature
itself.

The various provincial boards are, in practical effect, endowed with the power of suspending the
operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions
provided that laws may be suspended only by the legislature or by its authority. Thus, section 28,
article I of the Constitution of Texas provides that "No power of suspending laws in this state
shall be exercised except by the legislature"; and section 26, article I of the Constitution of
Indiana provides "That the operation of the laws shall never be suspended, except by authority of
the General Assembly." Yet, even provisions of this sort do not confer absolute power of
suspension upon the legislature. While it may be undoubted that the legislature may suspend a
law, or the execution or operation of a law, a law may not be suspended as to certain individuals
only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be
made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396;
6 Am. Dec., 174, 177, 178), it was said:

By the twentieth article of the declaration of rights in the constitution of this

commonwealth, it is declared that the power of suspending the laws, or the execution of
the laws, ought never to be exercised but by the legislature, or by authority derived from
it, to be exercised in such particular cases only as the legislature shall expressly provide
for. Many of the articles in that declaration of rights were adopted from the Magna Charta
of England, and from the bill of rights passed in the reign of William and Mary. The bill
of rights contains an enumeration of the oppressive acts of James II, tending to subvert
and extirpate the protestant religion, and the laws and liberties of the kingdom; and the
first of them is the assuming and exercising a power of dispensing with and suspending
the laws, and the execution of the laws without consent of parliament. The first article in
the claim or declaration of rights contained in the statute is, that the exercise of such
power, by legal authority without consent of parliament, is illegal. In the tenth section of
the same statute it is further declared and enacted, that "No dispensation by non
obstante of or to any statute, or part thereof, should be allowed; but the same should be
held void and of no effect, except a dispensation be allowed of in such statute." There is
an implied reservation of authority in the parliament to exercise the power here
mentioned; because, according to the theory of the English Constitution, "that absolute
despotic power, which must in all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.

The principles of our government are widely different in this particular. Here the
sovereign and absolute power resides in the people; and the legislature can only exercise
 what is delegated to them according to the constitution. It is obvious that the exercise of
the power in question would be equally oppressive to the subject, and subversive of his
right to protection, "according to standing laws," whether exercised by one man or by a
number of men. It cannot be supposed that the people when adopting this general
principle from the English bill of rights and inserting it in our constitution, intended to
bestow by implication on the general court one of the most odious and oppressive
prerogatives of the ancient kings of England. It is manifestly contrary to the first
principles of civil liberty and natural justice, and to the spirit of our constitution and laws,
that any one citizen should enjoy privileges and advantages which are denied to all others
under like circumstances; or that ant one should be subject to losses, damages, suits, or
actions from which all others under like circumstances are exempted.

To illustrate the principle: A section of a statute relative to dogs made the owner of any dog
liable to the owner of domestic animals wounded by it for the damages without proving a
knowledge of it vicious disposition. By a provision of the act, power was given to the board of
supervisors to determine whether or not during the current year their county should be governed
by the provisions of the act of which that section constituted a part. It was held that the
legislature could not confer that power. The court observed that it could no more confer such a
power than to authorize the board of supervisors of a county to abolish in such county the days of
grace on commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman
[1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State
vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road
system contained a provision that "if the county court of any county should be of opinion that the
provisions of the act should not be enforced, they might, in their discretion, suspend the
operation of the same for any specified length of time, and thereupon the act should become
inoperative in such county for the period specified in such order; and thereupon order the roads
to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . .
this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is
left to the county court to say which act shall be enforce in their county. The act does not submit
the question to the county court as an original question, to be decided by that tribunal, whether
the act shall commence its operation within the county; but it became by its own terms a law in
every county not excepted by name in the act. It did not, then, require the county court to do any
act in order to give it effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to determine which law shall be in force, it is
urge before us that the power then to be exercised by the court is strictly legislative power, which
under our constitution, cannot be delegated to that tribunal or to any other body of men in the
state. In the present case, the question is not presented in the abstract; for the county court of
Saline county, after the act had been for several months in force in that county, did by order
suspend its operation; and during that suspension the offense was committed which is the subject
of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those applicable to
other localities and, while recognizing the force of the principle hereinabove expressed, courts in
may jurisdiction have sustained the constitutionality of the submission of option laws to the vote
of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in
character which should receive different treatment in different localities placed under different
circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the
running at large of cattle in the highways, may be differently regarded in different localities, and
they are sustained on what seems to us the impregnable ground, that the subject, though not
embraced within the ordinary powers of municipalities to make by-laws and ordinances, is
nevertheless within the class of public regulations, in respect to which it is proper that the local
judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while
we do not deny the right of local self-government and the propriety of leaving matters of purely
local concern in the hands of local authorities or for the people of small communities to pass
upon, we believe that in matters of general of general legislation like that which treats of
criminals in general, and as regards the general subject of probation, discretion may not be
vested in a manner so unqualified and absolute as provided in Act No. 4221. True, the statute
does not expressly state that the provincial boards may suspend the operation of the Probation
Act in particular provinces but, considering that, in being vested with the authority to appropriate
or not the necessary funds for the salaries of probation officers, they thereby are given absolute
discretion to determine whether or not the law should take effect or operate in their respective
provinces, the provincial boards are in reality empowered by the legislature to suspend the
operation of the Probation Act in particular provinces, the Act to be held in abeyance until the
provincial boards should decide otherwise by appropriating the necessary funds. The validity of a
law is not tested by what has been done but by what may be done under its provisions. (Walter E.
Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet imbecile." (People vs.
Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the
inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that these representatives are no
further restrained under our system than by the express language of the instrument imposing the
restraint, or by particular provisions which by clear intendment, have that effect. (Angara vs.
Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz.,
1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of
power and one of these time-honored limitations is that, subject to certain exceptions, legislative
power shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which
prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1.
Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on all the tree grand
departments of our government and on the subordinate instrumentalities and subdivision thereof,
and on many constitutional power, like the police power, taxation and eminent domain. The
equal protection of laws, sententiously observes the Supreme Court of the United States, "is a
pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law.
ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep.,
357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of
the laws in a question not always easily determined. No rule that will cover every case can be
formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431;
46 Law. ed., 679.) Class legislation discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is
permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13;
Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255;
Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be
reasonable must be based on substantial distinctions which make real differences; it must be
germane to the purposes of the law; it must not be limited to existing conditions only, and must
apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353;
133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540;
530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55
Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co.
vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs.
Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247;
Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted
delegation of legislative power, although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary fund to defray the salary of a probation
officer, while another province may refuse or fail to do so. In such a case, the Probation Act
would be in operation in the former province but not in the latter. This means that a person
otherwise coming within the purview of the law would be liable to enjoy the benefits of
probation in one province while another person similarly situated in another province would be
denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for
all the provincial boards to appropriate the necessary funds for the salaries of the probation
officers in their respective provinces, in which case no inequality would result for the obvious
reason that probation would be in operation in each and every province by the affirmative action
of appropriation by all the provincial boards. On that hypothesis, every person coming within the
purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will
there be any resulting inequality if no province, through its provincial board, should appropriate
any amount for the salary of the probation officer — which is the situation now — and, also, if
we accept the contention that, for the purpose of the Probation Act, the City of Manila should be
considered as a province and that the municipal board of said city has not made any
appropriation for the salary of the probation officer. These different situations suggested show,
indeed, that while inequality may result in the application of the law and in the conferment of the
benefits therein provided, inequality is not in all cases the necessary result. But whatever may be
the case, it is clear that in 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 court 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 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
prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550;
Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U.
S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon
Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118
U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep.,
583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55
Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62
Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their
effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52
Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D,
22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6
R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo
vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs.
Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of
the Probation Act, not only may said Act be in force in one or several provinces and not be in
force in other provinces, but one province may appropriate for the salary of the probation officer
of a given year — and have probation during that year — and thereafter decline to make further
appropriation, and have no probation is subsequent years. While this situation goes rather to the
abuse of discretion which delegation implies, it is here indicated to show that the Probation Act
sanctions a situation which is intolerable in a government of laws, and to prove how easy it is,
under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf
C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep.,
255.)lawph!1.net

Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States
([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there
was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman
vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause
does not require territorial uniformity. It should be observed, however, that this case concerns the
right to preliminary investigations in criminal cases originally granted by General Orders No. 58.
No question of legislative authority was involved and the alleged denial of the equal protection
of the laws was the result of the subsequent enactment of Act No. 612, amending the charter of
the City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in
the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right
to a preliminary examination in any case where the prosecuting attorney, after a due
investigation of the facts . . . shall have presented an information against him in proper form . . .
." Upon the other hand, an analysis of the arguments and the decision indicates that the
investigation by the prosecuting attorney — although not in the form had in the provinces — was
considered a reasonable substitute for the City of Manila, considering the peculiar conditions of
the city as found and taken into account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a
situation where the constitution of Missouri permits appeals to the Supreme Court of the state
from final judgments of any circuit court, except those in certain counties for which counties the
constitution establishes a separate court of appeals called St. Louis Court of Appeals. The
provision complained of, then, is found in the constitution itself and it is the constitution that
makes the apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it
is also repugnant to equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated,
the next inquiry is whether or not the entire Act should be avoided.

In seeking the legislative intent, the presumption is against any mutilation of a statute,
and the courts will resort to elimination only where an unconstitutional provision is
interjected into a statute otherwise valid, and is so independent and separable that its
removal will leave the constitutional features and purposes of the act substantially
unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A.,
485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240;
73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning
partial invalidity of statutes in the following language:

. . . where part of the a statute is void, as repugnant to the Organic Law, while another
part is valid, the valid portion, if separable from the valid, may stand and be enforced.
But in order to do this, the valid portion must be in so far independent of the invalid
portion that it is fair to presume that the Legislative would have enacted it by itself if they
had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs.
Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs.
Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to
make a complete, intelligible, and valid statute, which carries out the legislative intent.
(Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated
without causing results affecting the main purpose of the Act, in a manner contrary to the
intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969;
Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs.
Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88
N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.)
The language used in the invalid part of a statute can have no legal force or efficacy for
any purpose whatever, and what remains must express the legislative will, independently
of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1;
122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil.,
759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed.,
1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable only in those
provinces in which the respective provincial boards provided for the salaries of probation
officers were inoperative on constitutional grounds, the remainder of the Act would still be valid
and may be enforced. We should be inclined to accept the suggestions but for the fact that said
section is, in our opinion, 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
result of that system. The clear policy of the law, as may be gleaned from a careful examination
of the whole context, is to make the application of the system dependent entirely upon the
affirmative action of the different provincial boards through appropriation of the salaries for
probation officers at rates not lower than those provided for provincial fiscals. Without such
action on the part of the various boards, no probation officers would be appointed by the
Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into
provinces and it needs no argument to show that if not one of the provinces — and this is the
actual situation now — appropriate 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 the probation system.

Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer.
Every probation officer is given, as to the person placed in probation under his care, the powers
of the police officer. It is the duty of the probation officer to see that the conditions which are
imposed by the court upon the probationer under his care are complied with. Among those
conditions, the following are enumerated in section 3 of the Act:

That the probationer (a) shall indulge in no injurious or vicious habits;

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

(c) Shall report to the probation officer as directed by the court or probation officers;

(d) Shall permit the probation officer to visit him at reasonable times at his place of abode
or elsewhere;

(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g)
Shall remain or reside within a specified place or locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or
losses caused by his offense;

(g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law.

The court is required to notify the probation officer in writing of the period and terms of
probation. Under section 4, it is only after the period of probation, the submission of a report of
the probation officer and appropriate finding of the court that the probationer has complied with
the conditions of probation that probation may be definitely terminated and the probationer
finally discharged from supervision. Under section 5, if the court finds that there is non-
compliance with said conditions, as reported by the probation officer, it may issue a warrant for
the arrest of the probationer and said probationer may be committed with or without bail. Upon
arraignment and after an opportunity to be heard, the court may revoke, continue or modify the
probation, and if revoked, the court shall order the execution of the sentence originally imposed.
Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation
officer to furnish to all persons placed on probation under his supervision a statement of the
period and conditions of their probation, and to instruct them concerning the same; to keep
informed concerning their conduct and condition; to aid and encourage them by friendly advice
and admonition, and by such other measures, not inconsistent with the conditions imposed by
court as may seem most suitable, to bring about improvement in their conduct and condition; to
report in writing to the court having jurisdiction over said probationers at least once every two
months concerning their conduct and condition; to keep records of their work; make such report
as are necessary for the information of the Secretary of Justice and as the latter may require; and
to perform such other duties as are consistent with the functions of the probation officer and as
the court or judge may direct. The probation officers provided for in this Act may act as parole
officers for any penal or reformatory institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."

It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its supervision and
control, a Probation Office under the direction of a Chief Probation Officer to be
appointed by the Governor-General with the advise and consent of the Senate who shall
receive a salary of four eight hundred pesos per annum. To carry out this Act there is
hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated,
the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby
authorized to appoint probation officers and the administrative personnel of the probation
officer under civil service regulations from among those who possess the qualifications,
training and experience prescribed by the Bureau of Civil Service, and shall fix the
compensation of such probation officers and administrative personnel until such positions
shall have been included in the Appropriation Act.

But the probation officers and the administrative personnel referred to in the foregoing section
are clearly not those probation officers required to be appointed for the provinces under section
11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10
above-quoted 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 the Chief
Probation Officer. When the law provides that "the probation officer" shall investigate and make
reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer"
(sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully
answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or
condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the
period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of
a particular probationer in a particular province. It never could have been intention of the
legislature, for instance, to require the probationer in Batanes, to report to a probationer 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.

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

Upon the other hand, the clear intention and policy of the law is not to make the Insular
Government defray the salaries of probation officers in the provinces but to make the provinces
defray them should they desire to have the Probation Act apply thereto. The sum of P50,000,
appropriated "to carry 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 compensations as the Secretary of Justice may fix "until such positions shall have
been included in the Appropriation Act". It was the intention of the legislature to empower the
Secretary of Justice to fix the salaries of the 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 a correct, the contention that without section 11 of Act No. 4221 said act is
complete is an impracticable thing under the remainder of the Act, unless it is conceded that in
our case there can be a system of probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system. Probation laws

have been enacted, here and in other countries, to permit what modern criminologist call the
"individualization of the punishment", the adjustment of the penalty to the character of the
criminal and the circumstances of his particular case. It provides a period of grace in order to aid
in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be
reformed and their development into hardened criminals aborted. It, therefore, takes advantage of
an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of
reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313;
48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief
end and aim. The benefit to the individual convict is merely incidental. But while we believe that
probation is commendable as a system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy
to our fundamental law.

In arriving at this conclusion, we have endeavored to consider the different aspects presented by
able counsel for both parties, as well in their memorandums as in their oral argument. We have
examined the cases brought to our attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this case. In the examination of the cases
and in then analysis of the legal principles involved we have inclined to adopt the line of action
which in our opinion, is supported better reasoned authorities and is more conducive to the
general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of
authorities, we have declined to be bound by certain adjudicated cases brought to our attention,
except where the point or principle is settled directly or by clear implication by the more
authoritative pronouncements of the Supreme Court of the United States. This line of approach is
justified because:

(a) The constitutional relations between the Federal and the State governments of the
United States and the dual character of the American Government is a situation which
does not obtain in the Philippines;

(b) The situation of s state of the American Union of the District of Columbia with
reference to the Federal Government of the United States is not the situation of the
province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th
Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs.
New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . .
new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel.
Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law
Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be
interpreted having in view existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is,
accordingly, granted. Without any pronouncement regarding costs. So ordered.

Avanceña, C.J., Imperial, Diaz and Concepcion, JJ., concur.

Villa-real and Abad Santos, JJ., concur in the result.

The Lawphil Project - Arellano Law Foundation

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2044 August 26, 1949

J. ANTONIO ARANETA, petitioner,

vs.
RAFAEL DINGLASAN, Judge of First Instance of Manila, and JOSE P. BENGZON,
Fiscal of City of Manila,respondents.

x---------------------------------------------------------x

G.R. No. L-2756 August 26, 1949

J. ANTONIO ARANETA and GREGORIO VILLAMOR, petitioners,

vs.
EUGENIO ANGELES, Fiscal of City of Manila, respondent.

x---------------------------------------------------------x

G.R. No. L-3054 August 26, 1949

EULOGIO RODRIGUEZ, Sr., por si y como Presidente del Partido

Nacionalista, recurrente,
vs.
EL TESORERO DE FILIPINAS, recurrido.

x---------------------------------------------------------x

G.R. No. L-3055 August 26, 1949

LEON MA. GURRERO, petitioner,

vs.
THE COMMISSIONER OF CUSTOMS and THE ADMINISTRATOR, SUGAR QUOTA
OFFICE, DEPARTMENT OF COMMERCE AND INDUSTRY, respondents.

x---------------------------------------------------------x

G.R. No. L-3056 August 26, 1949

ANTONIO BARREDO, in his own behalf and on behalf of all taxpayers similarly
situated, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE AUDITOR GENERAL and THE INSULAR
TREASURER OF THE PHILIPPINES, respondents.

L-2044
Paredes, Diaz and Poblador, Jesus G. Barrera, Vicente Hilado, and Araneta and Araneta for
petitioner.
Office of the Solicitor General Felix Bautista Angelo, Assistant Solicitor General Ruperto
Kapunan, Jr., Solicitor Martiniano P. Vico and Assistant City Fiscal Julio Villamor for
respondents.
Claro M. Recto and Padilla, Carlos and Fernando as amici curiae.

L-2756
Araneta and Araneta and Jesus G. Barrera for petitioners.
Assistant City Fiscal Luis B. Reyes for respondent.
Claro M. Recto as amici curiae.

L-3054
Claro M. Recto, Ramon Diokno, Jose O. Vera, Alejo Mabanag, Jose B. Laurel, Jr. and Antonio
Barredo for petitioner.
Office of the Solicitor General Felix Bautista Angelo for respondent.
Vicente de Vera, Chairman, Commission on Elections.
Alfonso Ponce Enrile, Alva J. Hill and Honorio Poblador, Jr. and Emiliano R. Navarro as amici
curiae.
Jesus G. Barrera, Enrique M. Fernando, Ramon Sunico, and Francisco A. Rodrigo also as amici
curiae.

L-3055
Claro M. Recto and Leon Ma. Guerrero for petitioner.
Office of the Solicitor General Felix Bautista Angelo for respondents.
V. G. Bunuan, Administrator, Sugar Quota Office.
Jesus G. Barrera, Felixberto M. Serrano, Enrique; Honorio Poblador, Jr. and Emiliano R.
Navarro as amici curiae.

L-3056
Claro M. Recto and Antonio Barredo for petitioner.
Office of the Solicitor General Felix Bautista Angelo for respondents.
Vicente de Vera, Chairman, Commission on Elections.
Alfonso Ponce Enrile, Alva J. Hill, Jesus G. Barrera, Enrique M. Fernando, Ramon Sunico and
Francisco A. Rodrigo; Honorio Poblador, Jr. and Emiliano R. Navarro as amici curiae.

TUASON, J.:

Three of these cases were consolidated for argument and the other two were argued separately on
other dates. Inasmuch as all of them present the same fundamental question which, in our view,
is decisive, they will be disposed of jointly. For the same reason we will pass up the objection to
the personality or sufficiency of interest of the petitioners in case G. R. No. L-3054 and case G.
R. No. L-3056 and the question whether prohibition lies in cases Nos. L-2044 and L-2756. No
practical benefit can be gained from a discussion of the procedural matters since the decision in
the cases wherein the petitioners' cause of action or the propriety of the procedure followed is not
in dispute, will be controlling authority on the others. Above all, the transcendental importance
to the public of these cases demands that they be settled promptly and definitely, brushing aside,
if we must, technicalities of procedure. (Avelino vs. Cuenco, G. R. No. L-2821.) The petitions
challenge the validity of executive orders of the President avowedly issued in virtue of
Commonwealth Act No. 671. Involved in cases Nos. L-2044 and L-2756 is Executive Order No.
62, which regulates rentals for houses and lots for residential buildings. The petitioner, J.
Antonio Araneta, is under prosecution in the Court of First Instance of Manila for violation of
the provisions of this Executive Order, and prays for the issuance of the writ of prohibition to the
judge and the city fiscal. Involved in case L-3055 is Executive Order No. 192, which aims to
control exports from the Philippines. In this case, Leon Ma. Guerrero seeks a writ
of mandamus to compel the Administrator of the Sugar Quota Office and the Commissioner of
Customs to permit the exportation of shoes by the petitioner. Both official refuse to issue the
required export license on the ground that the exportation of shoes from the Philippines is
forbidden by this Executive Order. Case No. L-3054 relates to Executive Order No. 225, which
appropriates funds for the operation of the Government of the Republic of the Philippines during
the period from July 1, 1949 to June 30, 1950, and for other purposes. The petitioner Eulogio
Rodriguez, Sr., as a tax-payer, an elector, and president of the Nacionalista Party, applies for a
writ of prohibition to restrain the Treasurer of the Philippines from disbursing this Executive
Order. Affected in case No. L-3056 is Executive Order No. 226, which appropriates P6,000,000
to defray the expenses in connection with, and incidental to, the hold lug of the national elections
to be held in November, 1949. The petitioner, Antonio Barredo, as a citizen, tax-payer and voter,
asks this Court to prevent "the respondents from disbursing, spending or otherwise disposing of
that amount or any part of it."

Notwithstanding allegations in the petitions assailing the constitutionally of Act No. 671, the
petitioners do not press the point in their oral argument and memorandum. They rest their case
chiefly on the proposition that the Emergency Powers Act (Commonwealth Act No. 671) has
ceased to have any force and effect. This is the basic question we have referred to, and it is to
this question that we will presently address ourselves and devote greater attention. For the
purpose of this decision, only, the constitutionality of Act No. 671 will be taken for granted, and
any dictum or statement herein which may appear contrary to that hypothesis should be
understood as having been made merely in furtherance of the main thesis.

Act No. 671 in full is as follows:

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF

WAR INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULES AND REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted by the National Assembly of the Philippines:

 SECTION 1. The existence of war between the United States and other countries of
Europe and Asia, which involves the Philippines, makes it necessary to invest the
President with extraordinary powers in order to meet the resulting emergency.

"SEC. 2. Pursuant to the provisions of Article VI, section 26, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate such
rules and regulations as he may deem necessary to carry out the national policy declared
in section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer the
seat of the Government or any of its subdivisions, branches, departments, offices,
agencies or instrumentalities; (b) to reorganize the Government of the Commonwealth
including the determination of the order of precedence of the heads of the Executive
Department; (c) to create new subdivisions, branches, departments, agencies or
instrumentalities of government and to abolish any of those already existing; (d) to
continue in force laws and appropriations which would lapse or otherwise become
inoperative, and to modify or suspend the operation or application of those of an
administrative character; (e) to impose new taxes or to increase, reduce, suspend or
abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise,
and to authorize the expenditure of the proceeds thereof; (g) to authorize the national,
provincial, city or municipal governments to incur in overdrafts for purposes that he may
approve; (h) to declare the suspension of the collection of credits or the payment of debts;
and (i) to exercise such other powers as he may deem to enable the Government to fulfill
its responsibities and to maintain and enforce the authority.

SEC. 3. The President of the Philippines shall as soon as practicable upon the convening
of the Congress of the Philippines report thereto all the rules and regulations promulgated
by him under the powers herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations
promulgated hereunder shall be in force and effect until the Congress of the Philippines
shall otherwise provide.

Section 26 of Article VI of the Constitution provides:

In time of war or other national emergency, the Congress 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.

Commonwealth Act No. 671 does not in term fix the duration of its effectiveness. The intention
of the Act has to be sought for in its nature, the object to be accomplish, the purpose to be
subserved, and its relation to the Constitution. The consequences of the various constructions
offered will also be resorted to as additional aid to interpretation. We test a rule by its results.

Article VI of the Constitution provides that any law passed by virtue thereof should be "for a
limited period." "Limited" has been defined to mean "restricted; bounded; prescribed; confined
within positive bounds; restrictive in duration, extent or scope." (Encyclopedia Law Dictionary,
3rd ed., 669; Black's Law Dictionary, 3rd ed., 1120.) The words "limited period" as used in the
Constitution are beyond question intended to mean restrictive in duration. Emergency, in order to
justify the delegation of emergency powers, "must be temporary or it can not be said to be an
emergency." (First Trust Joint Stock Land Bank of Chicago vs. Adolph P. Arp, et al., 120 A. L.
R., 937, 938.).

It is to be presumed that Commonwealth Act No. 671 was approved with this limitation in view.
The opposite theory would make the law repugnant to the Constitution, and is contrary to the
principle that the legislature is deemed to have full knowledge of the constitutional scope of its
powers. The assertion that new legislation is needed to repeal the act would not be in harmony
with the Constitution either. If a new and different law were necessary to terminate the
delegation, the period for the delegation, it has been correctly pointed out, would be unlimited,
indefinite, negative and uncertain; "that which was intended to meet a temporary emergency may
become permanent law," (Peck vs. Fink, 2 Fed. [2d], 912); for Congress might not enact the
repeal, and even if it would, the repeal might not meet the approval of the President, and the
Congress might not be able to override the veto. Furthermore, this would create the anomaly that,
while Congress might delegate its powers by simple majority, it might not be able to recall them
except by a two-third vote. In other words, it would be easier for Congress to delegate its powers
than to take them back. This is not right and is not, and ought not to be, the law. Corwin,
President: Office and Powers, 1948 ed., p. 160, says:

It is generally agreed that the maxim that the legislature may not delegate its powers
signifies at the very least that the legislature may not abdicate its powers: Yet how, in
view of the scope that legislative delegations take nowadays, is the line between
delegation and abdication to be maintained? Only, I urge, by rendering the delegated
powers recoverable without the consent of the delegate; . . . .

Section 4 goes far to settle the legislative intention of this phase of Act No. 671. Section 4
stipulates that "the rules and regulations promulgated thereunder shall be in full force and effect
until the Congress of the Philippines shall otherwise provide." The silence of the law regarding
the repeal of the authority itself, in the face of the express provision for the repeal of the rules
and regulations issued in pursuance of it, a clear manifestation of the belief held by the National
Assembly that there was no necessity to provide for the former. It would be strange if having no
idea about the time the Emergency Powers Act was to be effective the National Assemble failed
to make a provision for this termination in the same way that it did for the termination of the
effects and incidents of the delegation. There would be no point in repealing or annulling the
rules and regulations promulgated under a law if the law itself was to remain in force, since, in
that case, the President could not only make new rules and regulations but he could restore the
ones already annulled by the legislature.

More anomalous than the exercise of legislative function by the Executive when Congress is in
the unobstructed exercise of its authority is the fact that there would be two legislative bodies
operating over the same field, legislating concurrently and simultaneously, mutually nullifying
each other's actions. Even if the emergency powers of the President, as suggested, be suspended
while Congress was in session and be revived after each adjournment, the anomaly would not be
limited. Congress by a two-third vote could repeal executive orders promulgated by the President
during congressional recess, and the President in turn could treat in the same manner, between
sessions of Congress, laws enacted by the latter. This is not a fantastic apprehension; in two
instances it materialized. In entire good faith, and inspired only by the best interests of the
country as they saw them, a former President promulgated an executive order regulating house
rentals after he had vetoed a bill on the subject enacted by Congress, and the present Chief
Executive issued an executive order on export control after Congress had refused to approve the
measure.

Quiet apart from these anomalies, there is good basis in the language of Act No. 671 for the
inference that the National Assembly restricted the life of the emergency powers of the President
to the time the Legislature was prevented from holding sessions due to enemy action or other
causes brought on by the war. Section 3 provides:

The President of the Philippines shall as soon as practicable upon the convening of the
Congress of the Philippines report thereto all the rules and regulations promulgated by
him under the powers herein granted.

The clear tenor of this provision is that there was to be only one meeting of Congress at which
the President was to give an account of his trusteeship. The section did not say each meeting,
which it could very well have said if that had been the intention. If the National Assembly did
not think that the report in section 3 was to be the first and last Congress Act No. 671 would
lapsed, what reason could there be for its failure to provide in appropriate and clear terms for the
filing of subsequent reports? Such reports, if the President was expected to continue making laws
in the forms of rules, regulations and executive orders, were as important, of as unimportant, as
the initial one.

As a contemporary construction, President Quezon's statement regarding the duration of Act No.
671 is enlightening and should carry much weight, considering his part in the passage and in the
carrying out of the law. Mr. Quezon, who called the National Assembly to a special session, who
recommended the enactment of the Emergency Powers Act, if indeed he was not its author, and
who was the very President to be entrusted with its execution, stated in his autobiography, "The
Good Fight," that Act No. 671 was only "for a certain period" and "would become invalid unless
reenacted." These phrases connote automatical extinction of the law upon the conclusion of a
certain period. Together they denote that a new legislation was necessary to keep alive (not to
repeal) the law after the expiration of that period. They signify that the same law, not a different
one, had to be repassed if the grant should be prolonged.

What then was the contemplated period? President Quezon in the same paragraph of his
autobiography furnished part of the answer. He said he issued the call for a special session of the
National Assembly "when it became evident that we were completely helpless against air attack,
and that it was most unlikely the Philippine Legislature would hold its next regular session which
was to open on January 1, 1942." (Emphasis ours.) It can easily be discerned in this statement
that the conferring of enormous powers upon the President was decided upon with specific view
to the inability of the National Assembly to meet. Indeed no other factor than this inability could
have motivated the delegation of powers so vast as to amount to an abdication by the National
Assembly of its authority. The enactment and continuation of a law so destructive of the
foundations of democratic institutions could not have been conceived under any circumstance
short of a complete disruption and dislocation of the normal processes of government. Anyway,
if we are to uphold the constitutionality of the act on the basis of its duration, we must start with
the premise that it fixed a definite, limited period. As we have indicated, the period that best
comports with constitutional requirements and limitations, with the general context of the law
and with what we believe to be the main if not the sole raison d'etre for its enactment, was a
period coextensive with the inability of Congress to function, a period ending with the
conventing of that body.

It is our considered opinion, and we so hold, that Commonwealth Act No. 671 became
inoperative when Congress met in regular session on May 25, 1946, and that Executive Orders
Nos. 62, 192, 225 and 226 were issued without authority of law. In setting the session of
Congress instead of the first special session preceded it as the point of expiration of the Act, we
think giving effect to the purpose and intention of the National Assembly. In a special session,
the Congress may "consider general legislation or only such as he (President) may designate."
(Section 9, Article VI of the Constitution.) In a regular session, the power Congress to legislate is
not circumscribed except by the limitations imposed by the organic law.

Having arrived at this conclusion, we are relieved of the necessity of deciding the question as to
which department of government is authorized to inquire whether the contingency on which the
law is predicated still exists. The right of one or another department to declare the emergency
terminated is not in issue. As a matter of fact, we have endeavored to find the will of the
National Assembly—call that will, an exercise of the police power or the war power — and,
once ascertained, to apply it. Of course, the function of interpreting statutes in proper cases, as in
this, will not be denied the courts as their constitutional prerogative and duty. In so far as it is
insinuated that the Chief Executive has the exclusive authority to say that war not ended, and
may act on the strength of his opinion and findings in contravention of the law as the courts have
construed it, no legal principle can be found to support the proposition. There is no pretense that
the President has independent or inherent power to issue such executive orders as those under
review. we take it that the respondents, in sustaining the validity of these executive orders rely on
Act No. 600, Act No. 620, or Act No. 671 of the former Commonwealth and on no other source.
To put it differently, the President's authority in this connection is purely statutory, in no sense
political or directly derived from the Constitution.

Act No. 671, as we have stressed, ended ex proprio vigore with the opening of the regular
session of Congress on May 25, 1946. Acts Nos. 600 and 620 contain stronger if not conclusive
indication that they were self-liquidating. By express provision the rules and regulations to be
eventually made in pursuance of Acts Nos. 600 and 620, respectively approved on August 19,
1940 and June 6, 1941, were to be good only up to the corresponding dates of adjournment of the
following sessions of the Legislature, "unless sooner amended or repealed by the National
Assembly." The logical deduction to be drawn from this provision is that in the mind of the
lawmakers the idea was fixed that the Acts themselves would lapse not latter than the rules and
regulations. The design to provide for the automatic repeal of those rules and regulations
necessarily was predicated on the consciousness of a prior or at best simultaneous repeal of their
source. Were not this the case, there would arise the curious spectacle, already painted, and
easily foreseen, of the Legislature amending or repealing rules and regulations of the President
while the latter was empowered to keep or return them into force and to issue new ones
independently of the National Assembly. For the rest, the reasoning heretofore adduced against
the asserted indefinite continuance of the operation of Act No. 671 equally applies to Acts Nos.
600 and 620.

The other corollary of the opinion we have reached is that the question whether war, in law or in
fact, continues, is irrelevant. If we were to that actual hostilities between the original belligerents
are still raging, the elusion would not be altered. After the convening of Congress new legislation
had to be approved if the continuation of the emergency powers, or some of them, was desired.
In the light of the conditions surrounding the approval of the Emergency Power Act, we are of
the opinion that the "state of total emergency as a result of war" envisaged in the preamble
referred to the impending invasion and occupation of the Philippines by the enemy and the
consequent total disorganization of the Government, principally the impossibility for the
National Assembly to act. The state of affairs was one which called for immediate action and
with which the National Assembly would would not be able to cope. The war itself and its
attendant chaos and calamities could not have necessitated the delegation had the National
Assembly been in a position to operate.

After all the criticism that have been made against the efficiency of the system of the separation
of powers, the fact remains that the Constitution has set up this form of government, with all its
defects and shortcomings, in preference to the commingling of powers in one man or group of
men. The Filipino people by adopting parliamentary government have given notice that they
share the faith of other democracy-loving people in this system, with all its faults, as the ideal.
The point is, under this framework of government, legislation is preserved for Congress all the
time, not expecting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have the specific
functions of the legislative branch of enacting laws been surrendered to another department —
unless we regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was engaged in a
life-and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances "the
various branches, executive, legislative, and judicial," given the ability to act, are called upon "to
the duties and discharge the responsibilities committed to them respectively."

These observations, though beyond the issue as formulated in this decision, may, we trust, also
serve to answer the vehement plea that for the good of the Nation, the President should retain his
extraordinary powers as long asturmoil and other ills directly or indirectly traceable to the late
war harass the Philippines.

Upon the foregoing considerations, the petitions will be granted. In order to avoid any possible
disruption and interruption in the normal operation of the Government, we have deemed it best to
depart in these cases from the ordinary rule to the period for the effectivity of decisions, and to
decree, as it is hereby decreed, that this decision take effect fifteen days from the date of the
entry of final judgment provided in section 8 of Rule 53 of the Rules of Court in relation to
section 2 of Rule 35. No costs will be charged.

Ozaeta, J., concurs.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-6266 February 2, 1953

EULOGIO RODRIGUEZ, SR., ETC., ET AL., petitioners,

vs.
VICENTE GELLA, ETC., ET AL., respondents.

Eulogio Rodriguez, Sr., Lorenzo M. Tañada, Claro M. Recto, Jose P. Laurel, Jesus Barrera and
Leon Ma. Guerrero for petitioner.
Office of the Solicitor General Juan R. Liwag and Solicitor Martiniano P. Vivo for respondents.

PARAS, C.J.:

As a fitting foreword, it may be recalled that on a previous occasion, on August 26, 1949 to be
exact, this court had already passed upon the status of Commonwealth Act No. 671, approved on
December 16, 1941, "declaring a state of total emergency as a result of war involving the
Philippines and authorizing the President to promulgate rules and regulations to meet such
emergency." Five members held that the Act ceased to be operative in its totality, on May 25,
1946 (when the Congress convened in special session) according to Chief Justice Moran. Justice
Bengzon, Padilla, Montemayor, Reyes and Torres in effect concluded that the powers delegated
to the President had been withdrawn as to matters already legislated upon by the Congress or on
which the latter had demonstrated its readiness or ability to act. Executive Orders No. 62 (dated
June 21, 1947) regulating house and lot rentals, No. 192 (dated December 24, 1948) regulating
exports, Nos. 225 and 226 (dated June 15,1949) the first appropriation funds for the operation of
the Government from July 1, 1949 to June 30, 1950, and the second appropriating funds for
election expenses in November 1949, were therefore declared null and void for having been
issued after Act No. 671 had lapsed and/or after the Congress had enacted legislation on the
same subjects.1

More or less the same considerations that influenced our pronouncement of August 26, 1949 are
and should be controlling in the case now before us, wherein the petitioners seek to invalidate
Executive Orders Nos. 545 and 546 issued on November 10, 1952, the first appropriating the
sum of P37,850,500 for urgent and essential public works, and the second setting aside the sum
of P11,367,600 for relief in the provinces and cities visited by typhoons, floods, droughts,
earthquakes, volcanic action and other calamities.
Section 26 of Article VI of the Constitution provides that "in times of war or other national
emergency, the Congress 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." Accordingly the National Assembly passed Commonwealth Act No. 671,
declaring (in section 1) the national policy that "the existence of war between the United States
and other countries of Europe and Asia, which involves the Philippines makes it necessary to
invest the President with extraordinary powers in order to meet the resulting emergency," and (in
section 2) authorizing the President, "during the existence of the emergency, to promulgate such
rules and regulations as he may deem necessary to carry out the national policy declared in
section 1."

As the Act was expressly in pursuance of the constitutional provision, it has to be assumed that
the National Assembly intended it to be only for a limited period. If it be contended that the Act
has not yet been duly repealed, and such step is necessary to a cessation of the emergency
powers delegated to the President, the result would be obvious unconstitutionality, since it may
never be repealed by the Congress, or if the latter ever attempts to do so, the President may wield
his veto. This eventuality has in fact taken place when the President disapproved House Bill No.
727, repealing all Emergency Powers Acts. The situation will make the Congress and the
President or either as the principal authority to determine the indefinite duration of the delegation
of legislative powers, — in palpable repugnance to the constitutional provision that any grant
thereunder must be for a limited period, necessarily to be fixed in the law itself and not
dependent upon the arbitrary or elastic will of either the Congress or the President.

Although House Bill No. 727, had been vetoed by the President and did not thereby become a
regular statute, it may at least be considered as a concurrent resolution of the Congress formally
declaring the termination of the emergency powers. To contend that the Bill needed presidential
acquiescence to produce effect, would lead to the anomalous, if not absurd, situation that, "while
Congress might delegate its power by a simple majority, it might not be able to recall them
except by two-third vote. In other words, it would be easier for Congress to delegate its powers
than to take them back. This is not right and is not, and ought not to be the law."2

Act No. 671 may be likened to an ordinary contract of agency, whereby the consent of the agent
is necessary only in the sense that he cannot be compelled to accept the trust, in the same way
that the principal cannot be forced to keep the relation in eternity or at the will of the agent.
Neither can it be suggested that the agency created under the Act is coupled with interest.

The logical view consistent with constitutionality is to hold that the powers lasted only during
the emergency resulting from the last world war which factually involved the Philippines when
Act No. 671 was passed on December 16, 1941. That emergency, which naturally terminated
upon the ending of the last world war, was contemplated by the members of the National
Assembly on the foresight that the actual state of war could prevent it from holding its next
regular session. This is confirmed by the following statement of President Quezon: "When it
became evident that we were completely helpless against air attack and that it was most unlikely
the Philippine Legislature would hold its next regular session which was to open on January 1,
1942, the National Assembly passed into history approving a resolution which reaffirmed the
abiding faith of the Filipino people in, and their loyalty to, the United States. The Assembly also
enacted a law granting the President of the Philippines all the powers that under the Philippine
Constitution may be delegated to him in time of war."3 When President Quezon said "in time of
war", he an doubtedly meant such factual war as that then raging.

As early as July 26, 1948, the Congress categorically declared that "since liberation conditions
have gradually returned to normal, but not so with regard to those who have suffered the ravages
of war and who have not received any relief for the loss and destruction resulting therefrom," and
that "the emergency created by the last war as regards these war sufferers being still existent, it is
the declared policy of the state that as to them the debt moratorium should be continued in force
in a modified form."4 It is important to remember that Republic Act No. 342 in which this
declaration was made bore the approval of the President. Indeed, the latter in his speech
delivered on July 4, 1949, plainly proclaimed that "what emergencies it (the Republic) faces
today are incidental passing rains artificially created by seasonal partisanship, very common
among democracies but will disappear with the rains that follow the thunderclaps not later than
November 8 of this year," — an admission, that such emergencies not only are not total but are
not the result of the last war as envisaged in Act No. 671.

If more is necessary to demonstrate the unmistakable stand of the legislative department on the
alleged existence of emergency, reference may be had to House Bill No. 727, hereinbefore
referred to, repealing all Emergency Powers Acts.

Moreover, section 26 of Article VI of the constitution, in virtue of which Act No. 671 was
passed, authorizes the delegation of powers by the Congress (1) in times of war or (2) other
national emergency. The emergency expressly spoken of in the title and in section 1 of the Act is
one "in time of war," as distinguished from "other national emergency" that may arise as an
after-effect of war or from natural causes such as widespread earthquakes, typhoons, floods, and
the like. Certainly the typhoons that hit some provinces and cities in 1952 not only did not result
from the last world war but were and could not have been contemplated by the legislators. At any
rate, the Congress is available for necessary special sessions, and it cannot let the people down
without somehow being answerable thereover.

As a matter of fact, the President, in returning to the Congress without his signature House Bill
No. 727, did not invoke any emergency resulting from the last world war, but only called
attention to an impending emergency that may be brought about by present complicated and
troubled world conditions, and to the fact that our own soldiers are fighting and dying in Korea
in defense of democracy and freedom and for the preservation of our Republic. The emergency
thus feared cannot, however, be attributed to the war mentioned in Act No. 671 and fought
between Germany and Japan on one side and the Allied Powers on the other; and indications are
that in the next world war, if any, the communist countries will be aligned against the
democracies. No departure can be made from the national policy declared in section 1 of Act No.
671. New powers may be granted as often as emergencies contemplated in the Constitution arise.

There is no point in the argument that the Philippines is still technically at war with Japan
pending the ratification of the peace treaty. In the first place, Act No. 671 referred to a factual
war. In the second place, the last world war was between the United States and Japan, the
Philippines being involved only because it was then under American sovereignty. In the third
place, the United States had already signed the peace treaty with Japan, and the Philippines has
become an independent country since July 4, 1946.

It is pointed out that the passage of House Bill No. 727 is inconsistent with the claim that the
emergency powers are non-existent. But, from the debates in the House, it is patent that the Bill
had to be approved merely to remove all doubts, especially because this Court had heretofore
failed, for lack of necessary majority, to declare Act No. 671 entirely inoperative.

Reliance is placed on the petition of about seventy Congressmen and Senators and on House
Resolution No. 99, urging the President to release and appropriate funds for essential and urgent
public works and for relief in the typhoon-stricken areas. It is enough to state, in reply, that the
said petition and resolution cannot prevail over the force and effect of House Bill No. 727
formally passed by two chambers of the Congress. If faith can be accorded to the resolution of
one house, there is more reason for accepting the solemn declarations of two houses.

Even under the theory of some members of this court that insofar as the Congress had shown its
readiness or ability to act on a given matter, the emergency powers delegated to the President
had been pro tanto withdrawn, Executive Orders Nos. 545 and 546 must be declared as having
no legal anchorage. We can take judicial notice of the fact that the Congress has since liberation
repeatedly been approving acts appropriating funds for the operation of the Government, public
works, and many others purposes, with the result that as to such legislative task the Congress
must be deemed to have long decided to assume the corresponding power itself and to withdraw
the same from the President. If the President had ceased to have powers with regards to general
appropriations, none can remain in respect of special appropriations; otherwise he may
accomplish indirectly what he cannot do directly. Besides, it is significant that Act No. 671
expressly limited the power of the President to that continuing "in force" appropriations which
would lapse or otherwise become inoperative, so that, even assuming that the Act is still
effective, it is doubtful whether the President can by executive orders make new appropriations.
The specific power "to continue in force laws and appropriations which would lapse or otherwise
become inoperative" is a limitation on the general power "to exercise such other powers as he
may deem necessary to enable the Government to fulfill its responsibilities and to maintain and
enforce its authority." Indeed, to hold that although the Congress has, for about seven years since
liberation, been normally functioning and legislating on every conceivable field, the President
still has any residuary powers under the Act, would necessarily lead to confusion and
overlapping, if not conflict.

Shelter may not be sought in the proposition that the President should be allowed to exercise
emergency powers for the sake of speed and expediency in the interest and for the welfare of the
people, because we have the Constitution, designed to establish a government under a regime of
justice, liberty and democracy. In line with such primordial objective, our Government is
democratic in form and based on the system of separation of powers. Unless and until changed or
amended, we shall have to abide by the letter and spirit of the Constitution and be prepared to
accept the consequences resulting from or inherent in disagreements between, inaction or even
refusal of the legislative and executive departments. Much as it is imperative in some cases to
have prompt official action, deadlocks in and slowness of democratic processes must be
preferred to concentration of powers in any one man or group of men for obvious reasons. The
framers of the Constitution, however, had the vision of and were careful in allowing delegation
of legislative powers to the President for a limited period "in times of war or other national
emergency." They had thus entrusted to the good judgment of the Congress the duty of coping
with any national emergency by a more efficient procedure; but it alone must decide because
emergency in itself cannot and should not create power. In our democracy the hope and survival
of the nation lie in the wisdom and unselfish patriotism of all officials and in their faithful
adherence to the Constitution.

Wherefore, Executive Orders Nos. 545 and 546 are hereby declared null and void, and the
respondents are ordered to desist from appropriating, releasing, allotting, and expending the
public funds set aside therein. So ordered, without costs.

Feria, Pablo and Tuason, JJ., concur.

Bengzon, J., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14078 March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,

vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.

D. R. Williams & Filemon Sotto for plaintiff.

Office of the Solicitor-General Paredes for defendant.

MALCOLM, J.:

In one of the cases which denote a landmark in American Constitutional History

(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of
American jurisprudence, began his opinion (relating to the status of an Indian) with words which,
with a slight change in phraseology, can be made to introduce the present opinion — This cause,
in every point of view in which it can be placed, is of the deepest interest. The legislative power
of state, the controlling power of the constitution and laws, the rights if they have any, the
political existence of a people, the personal liberty of a citizen, are all involved in the subject
now to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to
introduce the facts and the issues, next to give a history of the so called "non-Christians," next to
compare the status of the "non-Christians" with that of the American Indians, and, lastly, to
resolve the constitutional questions presented.

I. INTRODUCTION.

This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province
of Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the
provincial officials of that province. Rubi and his companions are said to be held on the
reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held
under the custody of the provincial sheriff in the prison at Calapan for having run away form the
reservation.

The return of the Solicitor-General alleges:

1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25
which is as follows:

The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:

"Whereas several attempts and schemes have been made for the advancement of
the non-Christian people of Mindoro, which were all a failure,

"Whereas it has been found out and proved that unless some other measure is
taken for the Mangyan work of this province, no successful result will be obtained
toward educating these people.

"Whereas it is deemed necessary to obliged them to live in one place in order to

make a permanent settlement,

"Whereas the provincial governor of any province in which non-Christian

inhabitants are found is authorized, when such a course is deemed necessary in
the interest of law and order, to direct such inhabitants to take up their habitation
on sites on unoccupied public lands to be selected by him and approved by the
provincial board.

"Whereas the provincial governor is of the opinion that the sitio of Tigbao on
Lake Naujan is a place most convenient for the Mangyanes to live on, Now,
therefore be it

"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public
land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent
settlement of Mangyanes in Mindoro subject to the approval of the Honorable Secretary
of the Interior, and
 "Resolved further, That Mangyans may only solicit homesteads on this reservation
providing that said homestead applications are previously recommended by the provincial
governor."

2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was
approved by the Secretary of the Interior of February 21, 1917.

3. That on December 4, 1917, the provincial governor of Mindoro issued executive order
No. 2 which says:

"Whereas the provincial board, by Resolution No. 25, current series, has selected
a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of
Mangyanes in Mindoro.

"Whereas said resolution has been duly approve by the Honorable, the Secretary
of the Interior, on February 21, 1917.

"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to

the provisions of section 2145 of the revised Administrative Code, do hereby
direct that all the Mangyans in the townships of Naujan and Pola and the
Mangyans east of the Baco River including those in the districts of Dulangan and
Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan
Lake, not later than December 31, 1917.

"Any Mangyan who shall refuse to comply with this order shall upon conviction
be imprisoned not exceed in sixty days, in accordance with section 2759 of the
revised Administrative Code."

4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the
executive order of the governor of the same province copied in paragraph 3, were
necessary measures for the protection of the Mangyanes of Mindoro as well as the
protection of public forests in which they roam, and to introduce civilized customs among
them.

5. That Rubi and those living in his rancheria have not fixed their dwelling within the
reservation of Tigbao and are liable to be punished in accordance with section 2759 of
Act No. 2711.

6. That the undersigned has not information that Doroteo Dabalos is being detained by
the sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of
articles Nos. 2145 and 2759 of Act No. 2711.

It thus appears that the provincial governor of Mindoro and the provincial board thereof directed
the Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake
Naujan, selected by the provincial governor and approved by the provincial board. The action
was taken in accordance with section 2145 of the Administrative Code of 1917, and was duly
approved by the Secretary of the Interior as required by said action. Petitioners, however,
challenge the validity of this section of the Administrative Code. This, therefore, becomes the
paramount question which the court is called upon the decide.

Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor.

— With the prior approval of the Department Head, the provincial governor of any
province in which non-Christian inhabitants are found is authorized, when such a course
is deemed necessary in the interest of law and order, to direct such inhabitants to take up
their habitation on sites on unoccupied public lands to be selected by him an approved by
the provincial board.

In connection with the above-quoted provisions, there should be noted section 2759 of the same
Code, which read as follows:

SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-

Christian who shall refuse to comply with the directions lawfully given by a provincial
governor, pursuant to section two thousand one hundred and forty-five of this Code, to
take up habitation upon a site designated by said governor shall upon conviction be
imprisonment for a period not exceeding sixty days.

The substance of what is now found in said section 2145 is not new to Philippine law. The
genealogical tree of this section, if we may be permitted to use such terminology, would read:
Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various
special provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section
69, Act No. 387.

Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will
later be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order
to put the phrase in its proper category, and in order to understand the policy of the Government
of the Philippine Islands with reference to the uncivilized elements of the Islands, it is well first
of all to set down a skeleton history of the attitude assumed by the authorities towards these
"non-Christians," with particular regard for the legislation on the subject.

II. HISTORY.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand are compiled
in Book VI, Title III, in the following language.

LAW I.

The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip
II at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In
 the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San
Lorenzo, on May 20, 1578,

THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).

In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical
law, and in order that they may forget the blunders of their ancient rites and ceremonies
to the end that they may live in harmony and in a civilized manner, it has always been
endeavored, with great care and special attention, to use all the means most convenient to
the attainment of these purposes. To carry out this work with success, our Council of the
Indies and other religious persons met at various times; the prelates of new Spain
assembled by order of Emperor Charles V of glorious memory in the year one thousand
five hundred and forty-six — all of which meetings were actuated with a desire to serve
God an our Kingdom. At these meetings it was resolved that indios be made to live in
communities, and not to live in places divided and separated from one another by sierras
and mountains, wherein they are deprived of all spiritual and temporal benefits and
wherein they cannot profit from the aid of our ministers and from that which gives rise to
those human necessities which men are obliged to give one another. Having realized that
convenience of this resolution, our kings, our predecessors, by different orders, have
entrusted and ordered the viceroys, presidents, and governors to execute with great care
and moderation the concentration of the indios into reducciones; and to deal with their
doctrine with such forbearance and gentleness, without causing inconveniences, so that
those who would not presently settle and who would see the good treatment and the
protection of those already in settlements would, of their own accord, present themselves,
and it is ordained that they be not required to pay taxes more than what is ordered.
Because the above has been executed in the greater part of our Indies, we hereby order
and decree that the same be complied with in all the remaining parts of the Indies, and
the encomederos shall entreat compliance thereof in the manner and form prescribed by
the laws of this title.

xxx xxx xxx

LAW VIII.

Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.

THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF

THIS LAW.

The places wherein the pueblos and reducciones shall be formed should have the
facilities of waters. lands, and mountains, ingress and egress, husbandry and passageway
of one league long, wherein the indios can have their live stock that they may not be
mixed with those of the Spaniards.

LAW IX.
 Philip II at Toledo, on February 19, 1956.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS

PREVIOUSLY HELD BY THEM.

With more good-will and promptness, the indios shall be concentrated in reducciones.
Provided they shall not be deprived of the lands and granaries which they may have in the
places left by them. We hereby order that no change shall be made in this respect, and
that they be allowed to retain the lands held by them previously so that they may cultivate
them and profit therefrom.

xxx xxx xxx

LAW XIII.

THE SAME AS ABOVE.

THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING,

VICEROY, OR COURT.

No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or
to remove thepueblos or the reducciones once constituted and founded, without our
express order or that of the viceroy, president, or the royal district court, provided,
however, that the encomenderos, priests, or indios request such a change or consent to it
by offering or giving information to that en. And, because these claims are often made for
private interests and not for those of the indios, we hereby order that this law be always
complied with, otherwise the change will be considered fraudulently obtained. The
penalty of one thousand pesos shall be imposed upon the judge or encomendero who
should violate this law.

LAW XV.

Philip III at Madrid, on October 10, 1618.

THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL

BE "INDIOS."

We order that in each town and reduccion there be a mayor, who should be an indio of
the same reduccion; if there be more than eighty houses, there should be two mayors and
two aldermen, also indios; and, even if the town be a big one, there should, nevertheless,
be more than two mayors and four aldermen, If there be less than eighty indios but not
less than forty, there should be not more than one mayor and one alderman, who should
annually elect nine others, in the presence of the priests , as is the practice in town
inhabited by Spaniards and indios.

LAW XXI.
 Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8,
1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip
IV, at Madrid, on October 1 and December 17, 1646. For this law and the one following,
see Law I, Tit. 4, Book 7.

THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS,

NEGROES, "MESTIZOS," AND MULATTOES.

We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live
in the reduccionesand towns and towns of the indios, because it has been found that some
Spaniards who deal, trade, live, and associate with the indios are men of troublesome
nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to
avoid the wrongs done them, the indios would leave their towns and provinces; and the
negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services,
contaminate them with their bad customs, idleness, and also some of their blunders and
vices which may corrupt and pervert the goal which we desire to reach with regard to
their salvation, increase, and tranquillity. We hereby order the imposition of grave
penalties upon the commission of the acts above-mentioned which should not be tolerated
in the towns, and that the viceroys, presidents, governors, and courts take great care in
executing the law within their powers and avail themselves of the cooperation of the
ministers who are truly honest. As regards the mestizos and Indian and Chinese half-
breeds (zambaigos), who are children of indiasand born among them, and who are to
inherit their houses and haciendas, they all not be affected by this law, it appearing to be
a harsh thing to separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229,
230, 231.)

A clear exposition of the purposes of the Spanish government, in its efforts to improve the
condition of the less advanced inhabitants of the Islands by concentrating them in "reducciones,"
is found in the Decree of the Governor-General of the Philippine Islands of January 14, 1881,
reading as follows:

It is a legal principle as well as a national right that every inhabitant of a territory

recognized as an integral part of a nation should respect and obey the laws in force
therein; while, on other hand, it is the duty to conscience and to humanity for all
governments to civilize those backward races that might exist in the nation, and which
living in the obscurity of ignorance, lack of all the nations which enable them to grasp the
moral and material advantages that may be acquired in those towns under the protection
and vigilance afforded them by the same laws.

It is equally highly depressive to our national honor to tolerate any longer the separation
and isolation of the non-Christian races from the social life of the civilized and Christian
towns; to allow any longer the commission of depredations, precisely in the Island of
Luzon wherein is located the seat of the representative of the Government of the,
metropolis.
It is but just to admit the fact that all the governments have occupied themselves with this
most important question, and that much has been heretofore accomplished with the help
and self-denial of the missionary fathers who have even sacrificed their lives to the end
that those degenerate races might be brought to the principles of Christianity, but the
means and the preaching employed to allure them have been insufficient to complete the
work undertaken. Neither have the punishments imposed been sufficient in certain cases
and in those which have not been guarded against, thus giving and customs of isolation.

As it is impossible to consent to the continuation of such a lamentable state of things,

taking into account the prestige which the country demands and the inevitable duty which
every government has in enforcing respect and obedience to the national laws on the part
of all who reside within the territory under its control, I have proceeded in the premises
by giving the most careful study of this serious question which involves important
interests for civilization, from the moral and material as well as the political standpoints.
After hearing the illustrious opinions of all the local authorities, ecclesiastics, and
missionaries of the provinces of Northern Luzon, and also after finding the unanimous
conformity of the meeting held with the Archbishop of Manila, the Bishops of Jaro and
Cebu, and the provincial prelates of the orders of the Dominicans, Agustinians,
Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities,
held for the object so indicated, I have arrived at an intimate conviction of the inevitable
necessity of proceeding in a practical manner for the submission of the said pagan and
isolated races, as well as of the manner and the only form of accomplishing such a task.

For the reasons above stated and for the purpose of carrying out these objects, I hereby
promulgate the following:

DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be
governed by the common law, save those exceptions prescribed in this decree which are
bases upon the differences of instructions, of the customs, and of the necessities of the
different pagan races which occupy a part of its territory.

2. The diverse rules which should be promulgated for each of these races — which may
be divided into three classes; one, which comprises those which live isolated and roaming
about without forming a town nor a home; another, made up of those subdued pagans
who have not as yet entered completely the social life; and the third, of those mountain
and rebellious pagans — shall be published in their respective dialects, and the officials,
priests, and missionaries of the provinces wherein they are found are hereby entrusted in
the work of having these races learn these rules. These rules shall have executive
character, beginning with the first day of next April, and, as to their compliance, they
must be observed in the manner prescribed below.

3. The provincial authorities in conjunction with the priests shall proceed, from now on,
with all the means which their zeal may suggest to them, to the taking of the census of the
inhabitants of the towns or settlement already subdued, and shall adopt the necessary
regulations for the appointment of local authorities, if there be none as yet; for the
construction of courts and schools, and for the opening or fixing up of means of
communication, endeavoring, as regards the administrative organization of the said towns
or settlements, that this be finished before the first day of next July, so that at the
beginning of the fiscal year they shall have the same rights and obligations which affect
the remaining towns of the archipelago, with the only exception that in the first two years
they shall not be obliged to render personal services other than those previously
indicated.

4. So long as these subdued towns or settlements are located infertile lands appropriate
for cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses;
and only in case of absolute necessity shall a new residence be fixed for them, choosing
for this purpose the place most convenient for them and which prejudices the least their
interest; and, in either of these cases, an effort must be made to establish their homes with
the reach of the sound of the bell.

5. For the protection and defense of these new towns, there shall be established an armed
force composed precisely of native Christian, the organization and service of which shall
be determined in a regulations based upon that of the abolished Tercios de
Policia (division of the Guardia Civil).

6. The authorities shall see to it that the inhabitants of the new towns understand all the
rights and duties affecting them and the liberty which they have as to where and now they
shall till their lands and sell the products thereof, with the only exception of the tobacco
which shall be bought by the Hacienda at the same price and conditions allowed other
producers, and with the prohibition against these new towns as well as the others from
engaging in commerce of any other transaction with the rebellious indios, the violation of
which shall be punished with deportation.

7. In order to properly carry out this express prohibition, the limits of the territory of the
rebellious indios shall be fixed; and whoever should go beyond the said limits shall be
detained and assigned governmentally wherever convenient.

8. For the purpose of assisting in the conversion of the pagans into the fraternity of the
Catholic Church, all by this fact along be exempt for eight years from rendering personal
labor.

9. The authorities shall offer in the name of the State to the races not subdued (aetas and
mountains igorrots the following advantages in returns for their voluntary submission: to
live in towns; unity among their families; concession of good lands and the right to
cultivate them in the manner they wish and in the way them deem most productive;
support during a year, and clothes upon effecting submission; respect for their habits and
customs in so far as the same are not opposed to natural law; freedom to decide of their
own accord as to whether they want to be Christians or not; the establishment of missions
and families of recognized honesty who shall teach, direct, protect, and give them
security and trust them; the purchase or facility of the sale of their harvests; the
 exemption from contributions and tributes for ten years and from the quintas (a kind of
tax) for twenty years; and lastly, that those who are governed by the local authorities as
the ones who elect such officials under the direct charge of the authorities of the province
or district.

10. The races indicated in the preceding article, who voluntarily admit the advantages
offered, shall, in return, have the obligation of constituting their new towns, of
constructing their town hall, schools, and country roads which place them in
communication with one another and with the Christians; provided, the location of these
towns be distant from their actual residences, when the latter do not have the good
conditions of location and cultivations, and provided further the putting of families in a
place so selected by them be authorized in the towns already constituted.

11. The armed force shall proceed to the prosecution and punishment of the tribes, that,
disregarding the peace, protection, and advantages offered them, continue in their
rebellious attitude on the first of next April, committing from now on the crimes and
vexations against the Christian towns; and for the this purposes, the Captain General's
Office shall proceed with the organization of the divisions of the Army which, in
conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such
tribes. On the expiration of the term, they shall destroy their dwelling-houses, labors, and
implements, and confiscate their products and cattle. Such a punishment shall necessarily
be repeated twice a year, and for this purpose the military headquarters shall immediately
order a detachment of the military staff to study the zones where such operations shall
take place and everything conducive to the successful accomplishment of the same.

12. The chiefs of provinces, priests, and missioners, local authorities, and other
subordinates to my authorities, local authorities, and other subordinates to may authority,
civil as well as military authorities, shall give the most effective aid and cooperation to
the said forces in all that is within the attributes and the scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the provinces in the
southern part of the Archipelago, which I intend to visit, the preceding provisions shall
conveniently be applied to them.

14. There shall be created, under my presidency as Governor-General, Vice-Royal

Patron, a council or permanent commission which shall attend to and decide all the
questions relative to the application of the foregoing regulations that may be brought to it
for consultations by the chiefs of provinces and priests and missionaries.

15. The secondary provisions which may be necessary, as a complement to the foregoing,
in brining about due compliance with this decree, shall be promulgated by the respective
official centers within their respective jurisdictions. (Gaceta de Manila, No. 15)
(Diccionario de la Administracion, vol. 7, pp. 128-134.)

B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.

Ever since the acquisition of the Philippine Islands by the United States, the question as to the
best method for dealing with the primitive inhabitants has been a perplexing one.

1. Organic law.

The first order of an organic character after the inauguration of the American Government in the
Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later
expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1,
1902. Portions of these instructions have remained undisturbed by subsequent congressional
legislation. One paragraph of particular interest should here be quoted, namely:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the
same course followed by Congress in permitting the tribes of our North American Indians
to maintain their tribal organization and government and under which many of these
tribes are now living in peace and contentment, surrounded by civilization to which they
are unable or unwilling to conform. Such tribal governments should, however, be
subjected to wise and firm regulation; and, without undue or petty interference, constant
and active effort should be exercised to prevent barbarous practices and introduce
civilized customs.

Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic
Act for the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a
legislative body and, with this end in view, to name the prerequisites for the organization of the
Philippine Assembly. The Philippine Legislature, composed of the Philippine Commission and
the Philippine Assembly, was to have jurisdiction over the Christian portion of the Islands. The
Philippine Commission was to retain exclusive jurisdiction of that part of said Islands inhabited
by Moros or other non-Christian tribes.

The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress
of August 29, 1916, commonly known as the Jones Law. This transferred the exclusive
legislative jurisdiction and authority theretofore exercised by the Philippine Commission, to the
Philippine Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts,
the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the
Department of Mindanao and Sulu. The Governor-General of the Philippine Islands was
authorized to appoint senators and representatives for the territory which, at the time of the
passage of the Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth
district (sec. 16). The law establish a bureau to be known as the "Bureau of non-Christian Tribes"
which shall have general supervision over the public affairs of the inhabitants which are
represented in the Legislature by appointed senators and representatives( sec. 22).

Philippine organic law may, therefore, be said to recognized a dividing line between the territory
not inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-
Christian tribes, and the territory which is inhabited by Moros or other non-Christian tribes.

2. Statute law.
Local governments in the Philippines have been provided for by various acts of the Philippine
Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province
of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial
Government Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for
the organization and government of the Moro Province; Act No. 1396, the Special Provincial
Government Act; Act No. 1397, the Township Government Act; Act No. 1667, relating to the
organization of settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic
Act of the Department of Mindanao and Sulu. The major portion of these laws have been carried
forward into the Administrative Codes of 1916 an d1917.

Of more particular interest are certain special laws concerning the government of the primitive
peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United
States Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos.
4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for
the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc,
Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and
Zambales. As an example of these laws, because referring to the Manguianes, we insert Act No.
547:

No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL

CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF
MINDORO.

By authority of the United States, be it enacted by the Philippine Commission, that:

SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed
sufficiently in civilization to make it practicable to bring them under any form of
municipal government, the provincial governor is authorized, subject to the approval of
the Secretary of the Interior, in dealing with these Manguianes to appoint officers from
among them, to fix their designations and badges of office, and to prescribe their powers
and duties: Provided, That the powers and duties thus prescribed shall not be in excess of
those conferred upon township officers by Act Numbered Three hundred and eighty-
seven entitled "An Act providing for the establishment of local civil Governments in the
townships and settlements of Nueva Vizcaya."

SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is
further authorized, when he deems such a course necessary in the interest of law and
order, to direct such Manguianes to take up their habitation on sites on unoccupied public
lands to be selected by him and approved by the provincial board. Manguianes who
refuse to comply with such directions shall upon conviction be imprisonment for a period
not exceeding sixty days.

SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province
to acquire the knowledge and experience necessary for successful local popular
government, and his supervision and control over them shall be exercised to this end, an
to the end that law and order and individual freedom shall be maintained.
 SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may be
organized under the provisions of sections one to sixty-seven, inclusive, of Act
Numbered three hundred and eighty-seven, as a township, and the geographical limits of
such township shall be fixed by the provincial board.

SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the
same is hereby expedited in accordance with section two of 'An Act prescribing the order
of procedure by the Commission in the enactment of laws,' passed September twenty-
sixth, nineteen hundred.

SEC. 6. This Act shall take effect on its passage.

Enacted, December 4, 1902.

All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396
and 1397. The last named Act incorporated and embodied the provisions in general language. In
turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative
Codes retained the provisions in questions.

These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and
consistent practice with reference to the methods to be followed for their advancement.

C. TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying forms.

"Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission.

The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words
are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are
also to be found in Act No. 253 of the Philippines Commission, establishing a Bureau of non-
Christian Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections
701-705 of the Administrative Code of 1917, reestablishing this Bureau. Among other laws
which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550,
1397, 1639, and 2551.

"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the
favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a
Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394,
Administrative Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917;
and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No.
1667 of the Philippine Commission.
The Administrative Code specifically provides that the term "non-Christian" shall include
Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative
Code of 1916, taken from Act No. 2408, sec. 3.)

D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of course result in
giving to it a religious signification. Obviously, Christian would be those who profess the
Christian religion, and non-Christians, would be those who do not profess the Christian religion.
In partial corroboration of this view, there could also be cited section 2576 of the last
Administrative Code and certain well-known authorities, as Zuñiga, "Estadismo de las Islas
Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M.
Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands,"
1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p.
107.)

Not content with the apparent definition of the word, we shall investigate further to ascertain
what is its true meaning.

In one sense, the word can have a geographical signification. This is plainly to be seen by the
provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine
Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other non-
Christian tribes. Again, the Jones Law confers similar recognition in the authorization of the
twelfth senatorial district for the "territory not now represented in the Philippine Assembly." The
Philippines Legislature has, time and again, adopted acts making certain other acts applicable to
that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes.

Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first
section of this article, preceding section 2145, makes the provisions of the article applicable only
in specially organized provinces. The specially organized provinces are the Mountain Province,
Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine
Legislature has never seen fit to give all the powers of local self-government. They do not,
however, exactly coincide with the portion of the Philippines which is not granted popular
representation. Nevertheless, it is still a geographical description.

It is well-known that within the specially organized provinces, there live persons some of who
are Christians and some of whom are not Christians. In fact, the law specifically recognizes this.
( Sec. 2422, Administrative Code of 1917, etc.)

If the religious conception is not satisfactory, so against the geographical conception is likewise
inadquate. The reason it that the motive of the law relates not to a particular people, because of
their religion, or to a particular province because of its location, but the whole intent of the law is
predicated n the civilization or lack of civilization of the inhabitants.

At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually

introduce the term. "The so-called non-Christian" is a favorite expression. The Secretary of the
Interior who for so many years had these people under his jurisdiction, recognizing the difficulty
of selecting an exact designation, speaks of the "backward Philippine peoples, commonly known
as the 'non-Christian tribes."' (See Hearings before the Committee on the Philippines, United
States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare the purpose
of the People of the United States as to the future political status of the Philippine Islands and to
provide a more autonomous government for the Islands, pp. 346, 351; letter of the Secretary of
the Interior of June 30, 1906, circulated by the Executive Secretary.)

The idea that the term "non-Christian" is intended to relate to degree of civilization, is
substantiated by reference to legislative, judicial, and executive authority.

The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et
seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253
charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference
to non-Christian tribes . . . with special view to determining the most practicable means for
bringing about their advancement in civilization and material property prosperity."

As authority of a judicial nature is the decision of the Supreme Court in the case of United
States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a
tribal marriage in connection with article 423 of the Penal code concerning the husband who
surprises his wife in the act of adultery. In discussing the point, the court makes use of the
following language:

. . . we are not advised of any provision of law which recognizes as legal a tribal marriage
of so-called non-Christians or members of uncivilized tribes, celebrated within that
province without compliance with the requisites prescribed by General Orders no. 68. . . .
We hold also that the fact that the accused is shown to be a member of an uncivilized
tribe, of a low order of intelligence, uncultured and uneducated, should be taken into
consideration as a second marked extenuating circumstance.

Of much more moment is the uniform construction of execution officials who have been called
upon to interpret and enforce the law. The official who, as a member of the Philippine
Commission, drafted much of the legislation relating to the so-called Christians and who had
these people under his authority, was the former Secretary of the Interior. Under date of June 30,
1906, this official addressed a letter to all governor of provinces, organized under the Special
Provincial Government Act, a letter which later received recognition by the Governor-General
and was circulated by the Executive Secretary, reading as follows:

Sir: Within the past few months, the question has arisen as to whether people who were
originally non-Christian but have recently been baptized or who are children of persons
who have been recently baptized are, for the purposes of Act 1396 and 1397, to be
considered Christian or non-Christians.

It has been extremely difficult, in framing legislation for the tribes in these islands which
are not advanced far in civilization, to hit upon any suitable designation which will fit all
cases. The number of individual tribes is so great that it is almost out of the question to
 enumerate all of them in an Act. It was finally decided to adopt the designation 'non-
Christians' as the one most satisfactory, but the real purpose of the Commission was not
so much to legislate for people having any particular religious belief as for those lacking
sufficient advancement so that they could, to their own advantage, be brought under the
Provincial Government Act and the Municipal Code.

The mere act of baptism does not, of course, in itself change the degree of civilization to
which the person baptized has attained at the time the act of baptism is performed. For
practical purposes, therefore, you will give the member of so-called "wild tribes" of your
province the benefit of the doubt even though they may recently have embraced
Christianity.

The determining factor in deciding whether they are to be allowed to remain under the
jurisdiction of regularly organized municipalities or what form of government shall be
afforded to them should be the degree of civilization to which they have attained and you
are requested to govern yourself accordingly.

I have discussed this matter with the Honorable, the Governor-General, who concurs in
the opinion above expressed and who will have the necessary instructions given to the
governors of the provinces organized under the Provincial Government Act. (Internal
Revenue Manual, p. 214.)

The present Secretary of the Interior, in a memorandum furnished a member of this court, has the
following to say on the subject:

As far as names are concerned the classification is indeed unfortunate, but while no other
better classification has as yet been made the present classification should be allowed to
stand . . . I believe the term carries the same meaning as the expressed in the letter of the
Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of
civilization rather than of religious denomination, for the hold that it is indicative of
religious denomination will make the law invalid as against that Constitutional guaranty
of religious freedom.

Another official who was concerned with the status of the non-Christians, was the Collector of
Internal Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos
and the Aetas. Thereupon, the view of the Secretary of the Interior was requested on the point,
who, by return indorsement, agreed with the interpretation of the Collector of Internal Revenue.
This Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of
the Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue
Manual, p. 214):

The internal revenue law exempts "members of non-Christian tribes" from the payment
of cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to
mean not that persons who profess some form of Christian worship are alone subject to
the cedula tax, and that all other person are exempt; he has interpreted it to mean that all
persons preserving tribal relations with the so-called non-Christian tribes are exempt
 from the cedula tax, and that all others, including Jews, Mohammedans, Confucians,
Buddists, etc., are subject to said tax so long as they live in cities or towns, or in the
country in a civilized condition. In other words, it is not so much a matter of a man's form
of religious worship or profession that decides whether or not he is subject to the cedula
tax; it is more dependent on whether he is living in a civilized manner or is associated
with the mountain tribes, either as a member thereof or as a recruit. So far, this question
has not come up as to whether a Christian, maintaining his religious belief, but throwing
his lot and living with a non-Christian tribe, would or would not be subject to the cedula
tax. On one occasion a prominent Hebrew of Manila claimed to this office that he was
exempt from the cedula tax, inasmuch as he was not a Christian. This Office, however,
continued to collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen, etc.,
residing in Manila. Quite a large proportion of the cedula taxes paid in this city are paid
by men belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite
widely scattered throughout the Islands, and a condition similar to that which exist in
Manila also exists in most of the large provincial towns. Cedula taxes are therefore being
collected by this Office in all parts of these Islands on the broad ground that civilized
people are subject to such taxes, and non-civilized people preserving their tribal relations
are not subject thereto.

(Sgd.) JNO. S. HORD,

Collector of Internal Revenue.

On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327,
approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part
reads:

In view of the many questions that have been raised by provincial treasurers regarding
cedula taxes due from members of non-Christian tribes when they come in from the hills
for the purposes of settling down and becoming members of the body politic of the
Philippine Islands, the following clarification of the laws governing such questions and
digest of rulings thereunder is hereby published for the information of all concerned:

Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the
fact that they do not profess Christianity, but because of their uncivilized mode of life and
low state of development. All inhabitants of the Philippine Islands classed as members of
non-Christian tribes may be divided into three classes in so far as the cedula tax law is
concerned . . .

Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of
life, severs whatever tribal relations he may have had and attaches himself civilized
community, belonging a member of the body politic, he thereby makes himself subject to
precisely the same law that governs the other members of that community and from and
after the date when he so attaches himself to the community the same cedula and other
taxes are due from him as from other members thereof. If he comes in after the expiration
of the delinquency period the same rule should apply to him as to persons arriving from
foreign countries or reaching the age of eighteen subsequent to the expiration of such
 period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished
him without penalty and without requiring him to pay the tax for former years.

In conclusion, it should be borne in mind that the prime factors in determining whether or
not a man is subject to the regular cedula tax is not the circumstance that he does or does
not profess Christianity, nor even his maintenance of or failure to maintain tribal relations
with some of the well known wild tribes, but his mode of life, degree of advancement in
civilization and connection or lack of connection with some civilized community. For
this reason so called "Remontados" and "Montescos" will be classed by this office as
members of non-Christian tribes in so far as the application of the Internal Revenue Law
is concerned, since, even though they belong to no well recognized tribe, their mode of
life, degree of advancement and so forth are practically the same as those of the Igorrots
and members of other recognized non-Christina tribes.

Very respectfully,

(Sgd.) ELLIS CROMWELL,

Collector of Internal Revenue,

Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.

The two circular above quoted have since been repealed by Bureau of Internal Revenue
Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue,
and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and
Justice. Section 30 of the regulations is practically a transcript of Circular Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of Constabulary
request the opinion of the Attorney-General as to the status of a non-Christian who has been
baptized by a minister of the Gospel. The precise questions were these: "Does he remain non-
Christian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors,
does he commit an infraction of the law and does the person selling same lay himself liable
under the provision of Act No. 1639?" The opinion of Attorney-General Avanceña, after quoting
the same authorities hereinbefore set out, concludes:

In conformity with the above quoted constructions, it is probable that is probable that the
person in question remains a non-Christian, so that, in purchasing intoxicating liquors
both he and the person selling the same make themselves liable to prosecution under the
provisions of Act No. 1639. At least, I advise you that these should be the constructions
place upon the law until a court shall hold otherwise.

Solicitor-General Paredes in his brief in this case says:

With respect to the meaning which the phrase non-Christian inhabitants has in the
provisions of the Administrative code which we are studying, we submit that said phrase
 does not have its natural meaning which would include all non-Christian inhabitants of
the Islands, whether Filipino or strangers, civilized or uncivilized, but simply refers to
those uncivilized members of the non-Christian tribes of the Philippines who, living
without home or fixed residence, roam in the mountains, beyond the reach of law and
order . . .

The Philippine Commission in denominating in its laws that portion of the inhabitants of
the Philippines which live in tribes as non-Christian tribes, as distinguished from the
common Filipinos which carry on a social and civilized life, did not intended to establish
a distinction based on the religious beliefs of the individual, but, without dwelling on the
difficulties which later would be occasioned by the phrase, adopted the expression which
the Spanish legislation employed to designate the uncivilized portion of the inhabitants of
the Philippines.

The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of
Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of
uncivilized tribes of the Philippines, not only because this is the evident intention of the
law, but because to give it its lateral meaning would make the law null and
unconstitutional as making distinctions base the religion of the individual.

The Official Census of 1903, in the portion written by no less an authority than De. David P.
Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population in the
Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine
Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio
Villamor, writes that the classification likely to be used in the Census now being taken is:
"Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary of
the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a sub-division
under the title non-Christian tribes is, "Physical and Political Characteristics of the non-Christian
Tribes," which sufficiently shows that the terms refers to culture and not to religion.

In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive
officials, specifically, join in the proposition that the term "non-Christian" refers, not to religious
belief, but, in a way , to geographical area, and, more directly, to natives of the Philippine Islands
of a law grade of civilization, usually living in tribal relationship apart from settled communities.

E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine Census
of 1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of
Mindoro.

Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los
nombres de Rozas de Filipinas, says:

In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan,"

"negro." It may be that the use of this word is applicable to a great number of Filipinos,
 but nevertheless it has been applied only to certain inhabitants of Mindoro. Even in
primitive times without doubt this name was given to those of that island who bear it to-
day, but its employed in three Filipino languages shows that the radical ngian had in all
these languages a sense to-day forgotten. In Pampango this ending still exists and
signifies "ancient," from which we can deduce that the name was applied to men
considered to be the ancient inhabitants, and that these men were pushed back into the
interior by the modern invaders, in whose language they were called the "ancients."

The Manguianes are very low in culture. They have considerable Negrito blood and have not
advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-
nomadic people. They number approximately 15,000. The manguianes have shown no desire for
community life, and, as indicated in the preamble to Act No. 547, have not progressed
sufficiently in civilization to make it practicable to bring them under any form of municipal
government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)

III. COMPARATIVE — THE AMERICAN INDIANS.

Reference was made in the Presidents' instructions to the Commission to the policy adopted by
the United States for the Indian Tribes. The methods followed by the Government of the
Philippines Islands in its dealings with the so-called non-Christian people is said, on argument, to
be practically identical with that followed by the United States Government in its dealings with
the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the
American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated as "in a
state of pupilage." The recognized relation between the Government of the United States and the
Indians may be described as that of guardian and ward. It is for the Congress to determine when
and how the guardianship shall be terminated. The Indians are always subject to the plenary
authority of the United States.

Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells
how the Congress passed an Act in 1819 "for promoting those humane designs of civilizing the
neighboring Indians." After quoting the Act, the opinion goes on — "This act avowedly
contemplates the preservation of the Indian nations as an object sought by the United States, and
proposes to effect this object by civilizing and converting them from hunters into agriculturists."

A leading case which discusses the status of the Indians is that of the United States vs. Kagama
([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution
which gives Congress "power to regulate commerce with foreign nations, and among the several
States, and with the Indian tribes." The court then proceeds to indicate a brief history of the
position of the Indians in the United States (a more extended account of which can be found in
Marshall's opinion in Worcester vs. Georgia, supra), as follows:

The relation of the Indian tribes living within the borders of the United States, both
before and since the Revolution, to the people of the United States, has always been an
anomalous one and of a complex character.
 Following the policy of the European Governments in the discovery of American towards
the Indians who were found here, the colonies before the Revolution and the States and
the United States since, have recognized in the Indians a possessory right to the soil over
which they roamed and hunted and established occasional villages. But they asserted an
ultimate title in the land itself, by which the Indian tribes were forbidden to sell or
transfer it to other nations or peoples without the consent of this paramount authority.
When a tribe wished to dispose of its lands, or any part of it, or the State or the United
States wished to purchase it, a treaty with the tribe was the only mode in which this could
be done. The United States recognized no right in private persons, or in other nations, to
make such a purchase by treaty or otherwise. With the Indians themselves these relation
are equally difficult to define. They were, and always have been, regarded as having a
semi-independent position when they preserved their tribal relations; not as States, not as
nation not a possessed of the fall attributes of sovereignty, but as a separate people, with
the power of regulating their internal and social relations, and thus far not brought under
the laws of the Union or of the State within whose limits they resided.

The opinion then continues:

It seems to us that this (effect of the law) is within the competency of Congress. These
Indian tribes are the wards of the nation. The are communities dependent on the United
States. dependent largely for their daily food. Dependent for their political rights. They
owe no allegiance to the States, and receive from the no protection. Because of the local
ill feeling, the people of the States where they are found are often their deadliest enemies.
From their very weakness and helplessness, so largely due to the course of dealing of the
Federal Government with them and the treaties in which it has been promised, there arise
the duty of protection, and with it the power. This has always been recognized by the
Executive and by Congress, and by this court, whenever the question has arisen . . . The
power of the General Government over these remnants of race once powerful, now weak
and diminished in numbers, is necessary to their protection, as well as to the safety of
those among whom they dwell. it must exist in that government, because it never has
existed anywhere else, because the theater of its exercise is within the geographical limits
of the United States, because it has never been denied, and because it alone can enforce
its laws on all the tribes.

In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be
considered was whether the status of the Pueblo Indians and their lands was such that Congress
could prohibit the introduction of intoxicating liquor into those lands notwithstanding the
admission of New Mexico to statehood. The court looked to the reports of the different
superintendent charged with guarding their interests and founds that these Indians are dependent
upon the fostering care and protection of the government "like reservation Indians in general."
Continuing, the court said "that during the Spanish dominion, the Indians of the pueblos were
treated as wards requiring special protection, where subjected to restraints and official
supervisions in the alienation of their property." And finally, we not the following: "Not only
does the Constitution expressly authorize Congress to regulate commerce with the Indians tribes,
but long-continued legislative and executive usage and an unbroken current of judicial decisions
have attributed to the United States as a superior and civilized nation the power and the duty of
exercising a fostering care and protection over all dependent Indian communities within its
borders, whether within its original territory or territory subsequently acquired, and whether
within or without the limits of a state."

With reference to laws affecting the Indians, it has been held that it is not within the power of the
courts to overrule the judgment of Congress. For very good reason, the subject has always been
deemed political in nature, not subject to the jurisdiction of the judicial department of the
government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278;
U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the
Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs.Gay
[1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams
[1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co.
[1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla,
281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart any public land as
an Indian reservation, it has full authority to pass such laws and authorize such measures as may
be necessary to give to the Indians thereon full protection in their persons and property.
(U.S. vs.Thomas [1894], 151 U.S., 577.)

All this borne out by long-continued legislative and executive usage, and an unbroken line of
judicial decisions.

The only case which is even remotely in point and which, if followed literally, might result in the
issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This
was a hearing upon return to a writ of habeas corpus issued against Brigadier General George
Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe
of Indians. The petition alleged in substance that the relators are Indians who have formerly
belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some
time previously withdrawn from the tribe, and completely severed their tribal relations therewith,
and had adopted the general habits of the whites, and were then endeavoring to maintain
themselves by their own exertions, and without aid or assistance from the general government;
that whilst they were thus engaged, and without being guilty of violating any of the laws of the
United States, they were arrested and restrained of their liberty by order of the respondent,
George Crook. The substance of the return to the writ was that the relators are individual
members of, and connected with, the Ponca tribe of Indians; that they had fled or escaped form a
reservation situated some place within the limits of the Indian Territory — had departed
therefrom without permission from the Government; and, at the request of the Secretary of the
Interior, the General of the Army had issued an order which required the respondent to arrest and
return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had
caused the relators to be arrested on the Omaha Indian Territory.

The first question was whether an Indian can test the validity of an illegal imprisonment
by habeas corpus. The second question, of much greater importance, related to the right of the
Government to arrest and hold the relators for a time, for the purpose of being returned to the
Indian Territory from which it was alleged the Indian escaped. In discussing this question, the
court reviewed the policy the Government had adopted in its dealing with the friendly tribe of
Poncase. Then, continuing, the court said: "Laws passed for the government of the Indian
country, and for the purpose of regulating trade and intercourse with the Indian tribes, confer
upon certain officers of the Government almost unlimited power over the persons who go upon
the reservations without lawful authority . . . Whether such an extensive discretionary power is
wisely vested in the commissioner of Indian affairs or not , need not be questioned. It is enough
to know that the power rightfully exists, and, where existing, the exercise of the power must be
upheld." The decision concluded as follows:

The reasoning advanced in support of my views, leads me to conclude:

1. that an Indian is a 'person' within the meaning of the laws of the United States, and has,
therefore, the right to sue out a writ of habeas corpus in a federal court, or before a
federal judge, in all cases where he may be confined or in custody under color of
authority of the United States or where he is restrained of liberty in violation of the
constitution or laws of the United States.

2. That General George Crook, the respondent, being commander of the military
department of the Platte, has the custody of the relators, under color of authority of the
United States, and in violation of the laws therefore.

3. That n rightful authority exists for removing by force any of the relators to the Indian
Territory, as the respondent has been directed to do.

4. that the Indians possess the inherent right of expatriation, as well as the more fortunate
white race, and have the inalienable right to "life, liberty, and the pursuit of happiness,"
so long as they obey the laws and do not trespass on forbidden ground. And,

5. Being restrained of liberty under color of authority of the United States, and in
violation of the laws thereof, the relators must be discharged from custody, and it is so
ordered.

As far as the first point is concerned, the decision just quoted could be used as authority to
determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands,
is a "person" within the meaning of the Habeas Corpus Act, and as such, entitled to sue out a
writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide.

As to the second point the facts in the Standing Bear case an the Rubi case are not exactly
identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do
exist in the United States, that Indians have been taken from different parts of the country and
placed on these reservation, without any previous consultation as to their own wishes, and that,
when once so located, they have been made to remain on the reservation for their own good and
for the general good of the country. If any lesson can be drawn form the Indian policy of the
United States, it is that the determination of this policy is for the legislative and executive
branches of the government and that when once so decided upon, the courts should not interfere
to upset a carefully planned governmental system. Perhaps, just as may forceful reasons exists
for the segregation as existed for the segregation of the different Indian tribes in the United
States.
 IV. CONSTITUTIONAL QUESTIONS.

A. DELEGATION OF LEGISLATIVE POWER.

The first constitutional objection which confronts us is that the Legislature could not delegate
this power to provincial authorities. In so attempting, it is contended, the Philippine Legislature
has abdicated its authority and avoided its full responsibility.

That the maxim of Constitutional Law forbidding the delegation of legislative power should be
zealously protected, we agree. An understanding of the rule will, however, disclose that it has not
bee violated in his instance.

The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney,
and since followed in a multitude of case, namely: "The true distinction therefore is between the
delegation of power to make the law, which necessarily involves a discretion as to what it shall
be, and conferring an authority or discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the later no valid objection can be made."
(Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as
held by Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be
committed by the Legislature to an executive department or official. The Legislature may make
decisions of executive departments of subordinate official thereof, to whom t has committed the
execution of certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.)
The growing tendency in the decision is to give prominence to the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the enactment of
section 21454 of the Administrative Code? Has not the Legislature merely conferred upon the
provincial governor, with the approval of the provincial board and the Department Head,
discretionary authority as to the execution of the law? Is not this "necessary"?

The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the
Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by
the relator out of the lands ceded to the United States by the Wichita and affiliated bands of
Indians. Section 463 of the United States Revised Statutes provided: "The Commissioner of
Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such
regulations as the President may prescribe, have the management of all Indian affairs, and of all
matters arising out to the Indian relations." Justice Holmes said: "We should hesitate a good deal,
especially in view of the long established practice of the Department, before saying that this
language was not broad enough to warrant a regulation obviously made for the welfare of the
rather helpless people concerned. The power of Congress is not doubted. The Indians have been
treated as wards of the nation. Some such supervision was necessary, and has been exercised. In
the absence of special provisions naturally it would be exercised by the Indian Department." (See
also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S..,
364, reviewing the previous decisions of the United States Supreme Court: U.S. vs. Lane [1914],
232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An exception to the
general rule. sanctioned by immemorial practice, permits the central legislative body to delegate
legislative powers to local authorities. The Philippine Legislature has here conferred authority
upon the Province of Mindoro, to be exercised by the provincial governor and the provincial
board.

Who but the provincial governor and the provincial board, as the official representatives of the
province, are better qualified to judge "when such as course is deemed necessary in the interest
of law and order?" As officials charged with the administration of the province and the
protection of its inhabitants, who but they are better fitted to select sites which have the
conditions most favorable for improving the people who have the misfortune of being in a
backward state?

Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative
power by the Philippine Legislature to provincial official and a department head.

B. RELIGIOUS DISCRIMINATION

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his
unknown clients, says that — "The statute is perfectly clear and unambiguous. In limpid English,
and in words as plain and unequivocal as language can express, it provides for the segregation of
'non-Christians' and none other." The inevitable result, them, is that the law "constitutes an
attempt by the Legislature to discriminate between individuals because of their religious beliefs,
and is, consequently, unconstitutional."

Counsel's premise once being conceded, his arguments is answerable — the Legislature must be
understood to mean what it has plainly expressed; judicial construction is then excluded;
religious equality is demanded by the Organic Law; the statute has violated this constitutional
guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the
long continued meaning given to a common expression, especially as classification of inhabitants
according to religious belief leads the court to what it should avoid, the nullification of
legislative action. We hold that the term "non-Christian" refers to natives of the Philippines
Islands of a low grade of civilization, and that section 2145 of the Administrative Code of 1917,
does not discriminate between individuals an account of religious differences.

C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.

The third constitutional argument is grounded on those portions of the President's instructions of
to the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be
enacted in said Islands which shall deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equal protection of the laws." This
constitutional limitation is derived from the Fourteenth Amendment to the United States
Constitution — and these provisions, it has been said "are universal in their application, to all
persons within the territorial jurisdiction, without regard to any differences of race, of color, or of
nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the
individual is then as much for the non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:

Every man may claim the fullest liberty to exercise his faculties, compatible with the
possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)

Liberty is the creature of law, essentially different from that authorized licentiousness
that trespasses on right. That authorized licentiousness that trespasses on right. It is a
legal and a refined idea, the offspring of high civilization, which the savage never
understood, and never can understand. Liberty exists in proportion to wholesome
restraint; the more restraint on others to keep off from us, the more liberty we have . . .
that man is free who is protected from injury. (II Webster's Works, p. 393.)

Liberty consists in the ability to do what one caught to desire and in not being forced to
do what one ought not do desire. (Montesque, spirit of the Laws.)

Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to
one's own will. It is only freedom from restraint under conditions essential to the equal
enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137
U.S., 86.)

Liberty does not import "an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold restraints to which every
person is necessarily subject for the common good. On any other basis, organized society
could not exist with safety to its members. Society based on the rule that each one is a
law unto himself would soon be confronted with disorder and anarchy. Real liberty for all
could not exist under the operation of a principle which recognizes the right of each
individual person to use his own, whether in respect of his person or his property,
regardless of the injury that may be done to others . . . There is, of course, a sphere with
which the individual may asserts the supremacy of his own will, and rightfully dispute
the authority of any human government — especially of any free government existing
under a written Constitution — to interfere with the exercise of that will. But it is equally
true that in very well-ordered society charged with the duty of conserving the safety of its
members, the rights of the individual in respect of his liberty may at times, under the
pressure of great dangers, be subjected to such restraint to be enforced by reasonable
regulations, as the safety of the general public may demand." (Harlan, J., In
Jacobson vs. Massachusetts [1905] 197 U.S., 11.)

Liberty is freedom to do right and never wrong; it is ever guided by reason and the
upright and honorable conscience of the individual. (Apolinario Mabini.)

Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized
community, consistently with the peaceful enjoyment of like freedom in others. The right to
Liberty guaranteed by the Constitution includes the right to exist and the right to be free from
arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy
the faculties with which he has been endowed by this Creator, subject only to such restraints as
are necessary for the common welfare. As enunciated in a long array of authorities including
epoch-making decisions of the United States Supreme Court, Liberty includes the right of the
citizens to be free to use his faculties in all lawful ways; to live an work where he will; to earn
his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to enter into all
contracts which may be proper, necessary, and essential to his carrying out these purposes to a
successful conclusion. The chief elements of the guaranty are the right to contract, the right to
choose one's employment, the right to labor, and the right of locomotion.

In general, it may be said that Liberty means the opportunity to do those things which are
ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277;
Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274;
Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6
R.C.L., 258, 261.)

One thought which runs through all these different conceptions of Liberty is plainly apparent. It
is this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law."
Implied in the term is restraint by law for the good of the individual and for the greater good of
the peace and order of society and the general well-being. No man can do exactly as he pleases.
Every man must renounce unbridled license. The right of the individual is necessarily subject to
reasonable restraint by general law for the common good. Whenever and wherever the natural
rights of citizen would, if exercises without restraint, deprive other citizens of rights which are
also and equally natural, such assumed rights must yield to the regulation of law. The Liberty of
the citizens may be restrained in the interest of the public health, or of the public order and
safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-Jones
[1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)

None of the rights of the citizen can be taken away except by due process of law. Daniel
Webster, in the course of the argument in the Dartmouth College Case before the United States
Supreme Court, since a classic in forensic literature, said that the meaning of "due process of
law" is, that "every citizen shall hold his life, liberty, property, an immunities under the
protection of the general rules which govern society." To constitute "due process of law," as has
been often held, a judicial proceeding is not always necessary. In some instances, even a hearing
and notice are not requisite a rule which is especially true where much must be left to the
discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due
Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty. "Any
legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly
devised in the discretion of the legislative power, in furtherance of the public good, which
regards and preserves these principles of liberty and justice, must be held to be due process of
law." (Hurtado vs.California [1883], 110, U.S., 516.) "Due process of law" means simply . . .
"first, that there shall be a law prescribed in harmony with the general powers of the legislative
department of the Government; second, that this law shall be reasonable in its operation; third,
that it shall be enforced according to the regular methods of procedure prescribed; and fourth,
that it shall be applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling
Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What is
due process of law depends on circumstances. It varies with the subject-matter and necessities of
the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not infringed by a
statute which is applicable to all of a class. The classification must have a reasonable basis and
cannot be purely arbitrary in nature.

We break off with the foregoing statement, leaving the logical deductions to be made later on.

D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the
United States Constitution particularly as found in those portions of Philippine Organic Law
providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist
except as a punishment for crime whereof the party shall have been duly convicted." It is quite
possible that the Thirteenth Amendment, since reaching to "any place subject to" the
"jurisdiction" of the United States, has force in the Philippine. However this may be, the
Philippine Legislature has, by adoption, with necessary modifications, of sections 268 to 271
inclusive of the United States Criminal Code, prescribed the punishment for these crimes.
Slavery and involuntary servitude, together wit their corollary, peonage, all denote "a condition
of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The
term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in
fact involuntary, no matter under what form such servitude may have been disguised.
(Bailey vs. Alabama [1910], 219 U.S., 219.)

So much for an analysis of those constitutional provisions on which petitioners rely for their
freedom. Next must come a description of the police power under which the State must act if
section 2145 is to be held valid.

E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note at this
moment is the farreaching scope of the power, that it has become almost possible to limit its
weep, and that among its purposes is the power to prescribe regulations to promote the health,
peace, morals, education, and good order of the people, and to legislate so as to increase the
industries of the State, develop its resources and add to is wealth and prosperity. (See
Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is the right of the
government to restrain liberty by the exercise of the police power.

"The police power of the State," one court has said, . . . "is a power coextensive with self-
protection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be that
inherent and plenary power in the State which enables it to prohibit all things hurtful to the
comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill.,
191.) Carried onward by the current of legislation, the judiciary rarely attempt to dam the on
rushing power of legislative discretion, provided the purposes of the law do not go beyond the
great principles that mean security for the public welfare or do not arbitrarily interfere with the
right of the individual.
The Government of the Philippine Islands has both on reason and authority the right to exercise
the sovereign police power in the promotion of the general welfare and the public interest.
"There can be not doubt that the exercise of the police power of the Philippine Government
belongs to the Legislature and that this power is limited only by the Acts of Congress and those
fundamental principles which lie at the foundation of all republican forms of government."
(Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)

With the foregoing approximation of the applicable basic principles before us, before finally
deciding whether any constitutional provision has indeed been violated by section 2145 of the
Administrative Code, we should endeavor to ascertain the intention of the Legislature in enacting
this section. If legally possible, such legislative intention should be effectuated.

F. LEGISLATIVE INTENT.

The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao
reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The
failure of former attempts for the advancement of the non-Christian people of the province; and
(2) the only successfully method for educating the Manguianes was to oblige them to live in a
permanent settlement. The Solicitor-General adds the following; (3) The protection of the
Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of
introducing civilized customs among the Manguianes.

The present Secretary of the Interior says of the Tigbao reservation and of the motives for its
selection, the following:

To inform himself of the conditions of those Manguianes who were taken together to
Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place.
There he found that the site selected is a good one; that creditable progress has been made
in the clearing of forests, construction of buildings, etc., that there appears to be
encouraging reaction by the boys to the work of the school the requirements of which
they appear to meet with enthusiastic interest after the first weeks which are necessarily a
somewhat trying period for children wholly unaccustomed to orderly behaviour and habit
of life. He also gathered the impression that the results obtained during the period of less
than one year since the beginning of the institution definitely justify its continuance and
development.

Of course, there were many who were protesting against that segregation. Such was
naturally to be expected. But the Secretary of the Interior, upon his return to Manila,
made the following statement to the press:

"It is not deemed wise to abandon the present policy over those who prefer to live
a nomadic life and evade the influence of civilization. The Government will
follow its policy to organize them into political communities and to educate their
children with the object of making them useful citizens of this country. To permit
them to live a wayfaring life will ultimately result in a burden to the state and on
account of their ignorance, they will commit crimes and make depredation, or if
 not they will be subject to involuntary servitude by those who may want to abuse
them."

The Secretary of the Interior, who is the official charged with the supervision of all the non-
Christian people, has adopted as the polaris of his administration — "the advancement of the
non-Christian elements of our population to equality and unification with the highly civilized
Christian inhabitants." This is carried on by the adoption of the following measures:

(a) Pursuance of the closer settlement policy whereby people of seminomadic race are
induced to leave their wild habitat and settle in organized communities.

(b) The extension of the public school system and the system of public health throughout
the regions inhabited by the non-Christian people.

(c) The extention of public works throughout the Mohammedan regions to facilitate their
development and the extention of government control.

(d) Construction of roads and trials between one place and another among non-Christians,
to promote social and commercial intercourse and maintain amicable relations among
them and with the Christian people.

(e) Pursuance of the development of natural economic resources, especially agriculture.

( f ) The encouragement of immigration into, and of the investment of private capital in,
the fertile regions of Mindanao and Sulu.

The Secretary adds:

To attain the end desired, work of a civilizing influence have been continued among the
non-Christian people. These people are being taught and guided to improve their living
conditions in order that they may fully appreciate the benefits of civilization. Those of
them who are still given to nomadic habits are being persuaded to abandon their wild
habitat and settle in organized settlements. They are being made to understand that it is
the purpose of the Government to organize them politically into fixed and per manent
communities, thus bringing them under the control of the Government, to aid them to live
and work, protect them from involuntary servitude and abuse, educate their children, and
show them the advantages of leading a civilized life with their civilized brothers. In short,
they are being impressed with the purposes and objectives of the Government of leading
them to economic, social, and political equality, and unification with the more highly
civilized inhabitants of the country. (See Report of the Department for 1917.)

The fundamental objective of governmental policy is to establish friendly relations with the so-
called non-Christians, and to promote their educational, agricultural, industrial, and economic
development and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674
in reestablishing the Bureau of non-Christian Tribes, defines the aim of the Government towards
the non-Christian people in the following unequivocal terms:
 It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos and
foster by all adequate means and in a systematical, rapid, and complete manner the moral,
material, economic, social, and political development of those regions, always having in
view the aim of rendering permanent the mutual intelligence between, and complete
fusion of, all the Christian and non-Christian elements populating the provinces of the
Archipelago. (Sec. 3.)

May the Manguianes not be considered, as are the Indians in the United States, proper wards of
the Filipino people? By the fostering care of a wise Government, may not these unfortunates
advance in the "habits and arts of civilization?" Would it be advisable for the courts to intrude
upon a plan, carefully formulated, and apparently working out for the ultimate good of these
people?

In so far as the Manguianes themselves are concerned, the purpose of the Government is evident.
Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making
depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing
nothing for the advancement of the Philippine Islands. What the Government wished to do by
bringing than into a reservation was to gather together the children for educational purposes, and
to improve the health and morals — was in fine, to begin the process of civilization. this method
was termed in Spanish times, "bringing under the bells." The same idea adapted to the existing
situation, has been followed with reference to the Manguianes and other peoples of the same
class, because it required, if they are to be improved, that they be gathered together. On these
few reservations there live under restraint in some cases, and in other instances voluntarily, a few
thousands of the uncivilized people. Segregation really constitutes protection for the manguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we know that
the axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men
are free, and they are not the equals of their more fortunate brothers. True, indeed, they are
citizens, with many but not all the rights which citizenship implies. And true, indeed, they are
Filipinos. But just as surely, the Manguianes are citizens of a low degree of intelligence, and
Filipinos who are a drag upon the progress of the State.

In so far as the relation of the Manguianes to the State is concerned, the purposes of the
Legislature in enacting the law, and of the executive branch in enforcing it, are again plain.
Settlers in Mindoro must have their crops and persons protected from predatory men, or they will
leave the country. It is no argument to say that such crimes are punished by the Penal Code,
because these penalties are imposed after commission of the offense and not before. If
immigrants are to be encouraged to develop the resources of the great Islands of Mindoro, and
its, as yet, unproductive regions, the Government must be in a position to guarantee peace and
order.

Waste lands do not produce wealth. Waste people do not advance the interest of the State.
Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself from
destruction must prod on the laggard and the sluggard. The great law of overwhelming necessity
is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:

Living a nomadic and a wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the
forests and making illegal caiñgins thereon. Not bringing any benefit to the State but
instead injuring and damaging its interests, what will ultimately become of these people
with the sort of liberty they wish to preserve and for which they are now fighting in
court? They will ultimately become a heavy burden to the State and on account of their
ignorance they will commit crimes and make depredations, or if not they will be
subjected to involuntary servitude by those who may want to abuse them.

There is no doubt in my mind that this people a right conception of liberty and does not
practice liberty in a rightful way. They understand liberty as the right to do anything they
will — going from one place to another in the mountains, burning and destroying forests
and making illegal caiñgins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they
allege that they are being deprived thereof without due process of law?

xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty
without due process of law' apply to a class of persons who do not have a correct idea of
what liberty is and do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should
not adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people should be let along in the mountains and in a
permanent state of savagery without even the remotest hope of coming to understand
liberty in its true and noble sense.

In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of
civilization. The latter measure was adopted as the one more in accord with humanity and
with national conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens. The
progress of those people under the tutelage of the Government is indeed encouraging and
the signs of the times point to a day which is not far distant when they will become useful
citizens. In the light of what has already been accomplished which has been winning the
gratitude of most of the backward people, shall we give up the noble work simply
because a certain element, believing that their personal interests would be injured by such
 a measure has come forward and challenged the authority of the Government to lead this
people in the pat of civilization? Shall we, after expending sweat, treasure, and even
blood only to redeem this people from the claws of ignorance and superstition, now
willingly retire because there has been erroneously invoked in their favor that
Constitutional guaranty that no person shall be deprived of his liberty without due
process of law? To allow them to successfully invoke that Constitutional guaranty at this
time will leave the Government without recourse to pursue the works of civilizing them
and making them useful citizens. They will thus left in a permanent state of savagery and
become a vulnerable point to attack by those who doubt, nay challenge, the ability of the
nation to deal with our backward brothers.

The manguianes in question have been directed to live together at Tigbao. There they are
being taught and guided to improve their living conditions. They are being made to
understand that they object of the government is to organize them politically into fixed
and permanent communities. They are being aided to live and work. Their children are
being educated in a school especially established for them. In short, everything is being
done from them in order that their advancement in civilization and material prosperity
may be assured. Certainly their living together in Tigbao does not make them slaves or
put them in a condition compelled to do services for another. They do not work for
anybody but for themselves. There is, therefore, no involuntary servitude.

But they are compelled to live there and prohibited from emigrating to some other places
under penalty of imprisonment. Attention in this connection is invited to the fact that this
people, living a nomadic and wayfaring life, do not have permanent individual property.
They move from one place to another as the conditions of living warrants, and the entire
space where they are roving about is the property of the nation, the greater part being
lands of public domain. Wandering from one place to another on the public lands, why
can not the government adopt a measure to concentrate them in a certain fixed place on
the public lands, instead of permitting them to roam all over the entire territory? This
measure is necessary both in the interest of the public as owner of the lands about which
they are roving and for the proper accomplishment of the purposes and objectives of the
government. For as people accustomed to nomadic habit, they will always long to return
to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you
can not make them live together and the noble intention of the Government of organizing
them politically will come to naught.

G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to reach
a general conclusion.

In the first place, it is argued that the citizen has the right, generally speaking, to go where he
pleases. Could be not, however, be kept away from certain localities ? To furnish an example
from the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian
reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the
same law provided for the apprehension of marauding Indians. Without any doubt, this law and
other similar were accepted and followed time and again without question.

It is said that, if we hold this section to be constitutional, we leave this weak and defenseless
people confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be
the remedy of any oppressed Manguian? The answer would naturally be that the official into
whose hands are given the enforcement of the law would have little or not motive to oppress
these people; on the contrary, the presumption would all be that they would endeavor to carry out
the purposes of the law intelligently and patriotically. If, indeed, they did ill-treat any person thus
confined, there always exists the power of removal in the hands of superior officers, and the
courts are always open for a redress of grievances. When, however, only the validity of the law is
generally challenged and no particular case of oppression is called to the attention of the courts,
it would seems that the Judiciary should not unnecessarily hamper the Government in the
accomplishment of its laudable purpose.

The question is above all one of sociology. How far, consistently with freedom, may the right
and liberties of the individual members of society be subordinated to the will of the
Government? It is a question which has assailed the very existence of government from the
beginning of time. Now purely an ethical or philosophical subject, nor now to be decided by
force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an issue,
the Judiciary must realize that the very existence of government renders imperatives a power to
restrain the individual to some extent, dependent, of course, on the necessities of the class
attempted to be benefited. As to the particular degree to which the Legislature and the Executive
can go in interfering with the rights of the citizen, this is, and for a along time to come will be,
impossible for the courts to determine.

The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of
economics and political theory, are of the past. The modern period has shown as widespread
belief in the amplest possible demonstration of governmental activity. The courts unfortunately
have sometimes seemed to trial after the other two branches of the government in this
progressive march.

Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that
the Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that
power. But a great malady requires an equally drastic remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered without when the
degree of civilization of the Manguianes is considered. They are restrained for their own good
and the general good of the Philippines. Nor can one say that due process of law has not been
followed. To go back to our definition of due process of law and equal protection of the law,
there exists a law ; the law seems to be reasonable; it is enforced according to the regular
methods of procedure prescribed; and it applies alike to all of a class.

As a point which has been left for the end of this decision and which, in case of doubt, would
lead to the determination that section 2145 is valid. it the attitude which the courts should assume
towards the settled policy of the Government. In a late decision with which we are in full accord,
Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the
Supreme Court of Tennessee writes:

We can seen objection to the application of public policy as a ratio decidendi. Every really new
question that comes before the courts is, in the last analysis, determined on that theory, when not
determined by differentiation of the principle of a prior case or line of cases, or by the aid of
analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to
tip the scales which the court believes will best promote the public welfare in its probable
operation as a general rule or principle. But public policy is not a thing inflexible. No court is
wise enough to forecast its influence in all possible contingencies. Distinctions must be made
from time to time as sound reason and a true sense of justice may dictate."

Our attempt at giving a brief history of the Philippines with reference to the so-called non-
Christians has been in vain, if we fail to realize that a consistent governmental policy has been
effective in the Philippines from early days to the present. The idea to unify the people of the
Philippines so that they may approach the highest conception of nationality. If all are to be equal
before the law, all must be approximately equal in intelligence. If the Philippines is to be a rich
and powerful country, Mindoro must be populated, and its fertile regions must be developed. The
public policy of the Government of the Philippine Islands is shaped with a view to benefit the
Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be
confined for a time, as we have said, for their own good and the good of the country.

Most cautiously should the power of this court to overrule the judgment of the Philippine
Legislature, a coordinate branch, be exercised. The whole tendency of the best considered case is
toward non-interference on the part of the courts whenever political ideas are the moving
consideration. Justice Holmes, in one of the aphorisms for which he is justly famous, said that
"constitutional law, like other mortal contrivances, has to take some chances." (Blinn vs.Nelson
[1911], 222 U.S., 1.) If in the final decision of the many grave questions which this case
presents, the courts must take "a chance," it should be with a view to upholding the law, with a
view to the effectuation of the general governmental policy, and with a view to the court's
performing its duty in no narrow and bigoted sense, but with that broad conception which will
make the courts as progressive and effective a force as are the other departments of the
Government.

We are of the opinion that action pursuant to section 2145 of the Administrative Code does not
deprive a person of his liberty without due process of law and does not deny to him the equal
protection of the laws, and that confinement in reservations in accordance with said section does
not constitute slavery and involuntary servitude. We are further of the opinion that section 2145
of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to
the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is
constitutional.

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can,
therefore, not issue. This is the true ruling of the court. Costs shall be taxes against petitioners.
So ordered.
Arellano, C.J., Torres and Avanceña, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10202 March 29, 1916

THE GOVERNMENT OF THE PHILIPPINE ISLANDS Ex Rel. THE MUNICIPALITY

OF CARDONA, plaintiff,
vs.
THE MUNICIPALITY OF BINANGONAN, ET AL., defendants.

Modesto Reyes and Eliseo Ymzon for plaintiff.

Office of the Solicitor-General Corpus and Roberto Moreno for defendants.

MORELAND, J.:

This is an action by the municipality of Cardona to prohibit perpetually the municipality of

Binangonan from exercising municipal authority over the barrios of Tatala, Balatik, Nambug,
Tutulo, Mahabang Parang, Nagsulo, and Bonot.

The complaint alleges that the municipality of Binangonan is now exercising governmental
authority over the barrios named, to the exclusion of the municipality of Cardona; that such
authority is exercised by the municipality of Binangonan by reason of Executive Order No. 66,
series of 1914, issued by the Governor-General of the Philippine Islands on the 1st day of July,
1914, which reads as follows:

Pursuant to the provisions of section one of Act Numbered seventeen hundred and forty-
eight, the boundary line between the municipalities of Binangonan and Cardona, in the
Province of Rizal, is hereby defined and fixed as follows, viz:

On the mainland, beginning on the north at the intersection of the Morong River
and the existing Binangonan boundary, thence in a southerly and westerly
direction to Mapulanglupa (otherwise called Santol), where a partially destroyed
monument now exists; thence in a direct southeasterly line to the summit of
Mountain Tutulo; and thence to the Laguna de Bay; thus embracing within the
limits of the municipality of Binangonan the barrios or sitios of Tatala, Balatik,
Nambug, Tutulo, Mahabang Parang, Nagsulo, Sampad, and Bonot.
 On the Island of Talim, that portion of the island embraced within points known
as Kaymaralina and Virgen-Bato, on the eastern coast and extending to the
summits of the range of hills geographically dividing the land, is hereby
confirmed as being embraced within the jurisdiction of the municipality of
Cardona; and the remainder of the island, including the small off-lying islands of
Bunga, Olahipan, and Malake, as being embrace within the jurisdiction of the
municipality of Binangonan.

Action will at once be taken to survey the boundary line herein fixed and to
establish monuments demarcating same.

The plaintiff further alleges that the executive order referred to and above quoted and the Act
under which it was issued are "unconstitutional" in that said Act confers on the Governor-
General legislative authority; and that the Governor-General in promulgating said order usurped
legislative functions. Plaintiff also claims that the order is void because it does not contain a
statement that the change in the division line between the said municipalities was required by the
public good; and that it does not appear in said order itself that there was a present urgency
requiring the promulgation of such an order.

The defendant municipality demurrer to the complaint on the ground that it did not state facts
sufficient to constitute a cause of action. The question before us is that presented by the
demurrer.

We do not think that plaintiff's objections are well founded. No reason has been given why the
Act is unconstitutional and no argument or citation of authorities has been presented on that
subject. Every Act of the legislature is presumed to be constituted until the contrary is clearly
shown; and no showing of unconstitutionality having been made in this case, the objection to the
order of the Governor-General based on that ground must be overruled. The other two objections
are frivolous. Although it be admitted, for the sake of argument, that the Governor-General ought
not to make such an order unless the public good requires it, that fact need not be stated in the
order. The same may be said with regard to its urgency. The Governor-General having full
authority to promulgate such an order this court will assume, if it should act on the matter at all,
that there was public necessity therefor and that the matter was of such urgency as properly to
evoke action by the Chief Executive.

The demurrer to the complaint is sustained and unless an amendment thereof is made within five
days from the service of a copy of this order eliminating the objections stated in this decision, the
action will be dismissed on the merits. So ordered.

Torres, Trent and Araullo, JJ., concur.

Johnson, J., concurs in the result.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 47065 June 26, 1940

PANGASINAN TRANSPORTATION CO., INC., petitioner,

vs.
THE PUBLIC SERVICE COMMISSION, respondent.

C. de G. Alvear for petitioner.

Evaristo R. Sandoval for respondent.

LAUREL, J.:

The petitioner has been engaged for the past twenty years in the business of transporting
passengers in the Province of Pangasinan and Tarlac and, to a certain extent, in the Province of
Nueva Ecija and Zambales, by means of motor vehicles commonly known as TPU buses, in
accordance with the terms and conditions of the certificates of public convenience issued in its
favor by the former Public Utility Commission in cases Nos. 24948, 30973, 36830, 32014 and
53090. On August 26, 1939, the petitioner filed with the Public Service Commission an
application for authorization to operate ten additional new Brockway trucks (case No. 56641), on
the ground that they were needed to comply with the terms and conditions of its existing
certificates and as a result of the application of the Eight Hour Labor Law. In the decision of
September 26, 1939, granting the petitioner's application for increase of equipment, the Public
Service Commission ordered:

Y de acuerdo con que se provee por el articulo 15 de la ley No. 146 del Commonwealth,
tal como ha sido enmendada por el articulo 1 de la Ley No. 454, por la presente se
enmienda las condiciones de los certificados de convenciencia publica expedidos en los
expedientes Nos. 24948, 30973, 36831, 32014 y la authorizacion el el expediente No.
53090, asi que se consideran incorporadas en los mismos las dos siguientes condiciones:

Que los certificados de conveniencia publica y authorizacion arriba mencionados seran

validos y subsistentes solamente durante de veinticinco (25) anos, contados desde la
fecha de la promulgacion de esta decision.

Que la empresa de la solicitante porda ser adquirida por el Commonwealth de Filipinas o

por alguna dependencia del mismo en cualquier tiempo que lo deseare previo pago del
precio d costo de su equipo util, menos una depreciacion razonable que se ha fijar por la
Comision al tiempo de su adquisicion.

Not being agreeable to the two new conditions thus incorporated in its existing certificates, the
petitioner filed on October 9, 1939 a motion for reconsideration which was denied by the Public
Service Commission on November 14, 1939. Whereupon, on November 20, 1939, the present
petition for a writ of certiorari was instituted in this court praying that an order be issued
directing the secretary of the Public Service Commission to certify forthwith to this court the
records of all proceedings in case No. 56641; that this court, after hearing, render a decision
declaring section 1 of Commonwealth Act No. 454 unconstitutional and void; that, if this court
should be of the opinion that section 1 of Commonwealth Act No. 454 is constitutional, a
decision be rendered declaring that the provisions thereof are not applicable to valid and
subsisting certificates issued prior to June 8, 1939. Stated in the language of the petitioner, it is
contended:

1. That the legislative powers granted to the Public Service Commission by section 1 of
Commonwealth Act No. 454, without limitation, guide or rule except the unfettered
discretion and judgment of the Commission, constitute a complete and total abdication by
the Legislature of its functions in the premises, and for that reason, the Act, in so far as
those powers are concerned, is unconstitutional and void.

2. That even if it be assumed that section 1 of Commonwealth Act No. 454, is valid
delegation of legislative powers, the Public Service Commission has exceeded its
authority because: (a) The Act applies only to future certificates and not to valid and
subsisting certificates issued prior to June 8, 1939, when said Act took effect, and (b) the
Act, as applied by the Commission, violates constitutional guarantees.

Section 15 of Commonwealth Act No. 146, as amended by section 1 of Commonwealth Act No.
454, invoked by the respondent Public Service Commission in the decision complained of in the
present proceedings, reads as follows:

With the exception to those enumerated in the preceding section, no public service shall
operate in the Philippines without possessing a valid and subsisting certificate from the
Public Service Commission, known as "certificate of public convenience," or "certificate
of convenience and public necessity," as the case may be, to the effect that the operation
of said service and the authorization to do business will promote the public interests in a
proper and suitable manner.

The Commission may prescribed as a condition for the issuance of the certificate
provided in the preceding paragraph that the service can be acquired by the
Commonwealth of the Philippines or by any instrumentality thereof upon payment of the
cost price of its useful equipment, less reasonable depreciation; and likewise, that the
certificate shall valid only for a definite period of time; and that the violation of any of
these conditions shall produce the immediate cancellation of the certificate without the
necessity of any express action on the part of the Commission.

In estimating the depreciation, the effect of the use of the equipment, its actual condition,
the age of the model, or other circumstances affecting its value in the market shall be
taken into consideration.
 The foregoing is likewise applicable to any extension or amendment of certificates
actually force and to those which may hereafter be issued, to permits to modify itineraries
and time schedules of public services and to authorization to renew and increase
equipment and properties.

Under the first paragraph of the aforequoted section 15 of Act No. 146, as amended, no public
service can operate without a certificate of public convenience or certificate of convenience and
public necessity to the effect that the operation of said service and the authorization to do
business will "public interests in a proper and suitable manner." Under the second paragraph, one
of the conditions which the Public Service Commission may prescribed the issuance of the
certificate provided for in the first paragraph is that "the service can be acquired by the
Commonwealth of the Philippines or by any instrumental thereof upon payment of the cost price
of its useful equipment, less reasonable depreciation," a condition which is virtually a
restatement of the principle already embodied in the Constitution, section 6 of Article XII, which
provides that "the State may, in the interest of national welfare and defense, establish and operate
industries and means of transportation and communication, and, upon payment of just
compensation, transfer to public ownership utilities and other private enterprises to be operated
by the Government. "Another condition which the Commission may prescribed, and which is
assailed by the petitioner, is that the certificate "shall be valid only for a definite period of time."
As there is a relation between the first and second paragraphs of said section 15, the two
provisions must be read and interpreted together. That is to say, in issuing a certificate, the
Commission must necessarily be satisfied that the operation of the service under said
certificate during a definite period fixed therein "will promote the public interests in a proper and
suitable manner." Under section 16 (a) of Commonwealth Act. No. 146 which is a complement
of section 15, the Commission is empowered to issue certificates of public convenience
whenever it "finds that the operation of the public service proposed and the authorization to do
business will promote the public interests in a proper and suitable manner." Inasmuch as the
period to be fixed by the Commission under section 15 is inseparable from the certificate itself,
said period cannot be disregarded by the Commission in determining the question whether the
issuance of the certificate will promote the public interests in a proper and suitable manner.
Conversely, in determining "a definite period of time," the Commission will be guided by
"public interests," the only limitation to its power being that said period shall not exceed fifty
years (sec. 16 (a), Commonwealth Act No. 146; Constitution, Art. XIII, sec. 8.) We have already
ruled that "public interest" furnishes a sufficient standard. (People vs. Fernandez and Trinidad, G.
R. No. 45655, promulgated June 15, 1938; People vs. Rosenthal and Osmeña, G. R. Nos. 46076
and 46077, promulgated June 12, 1939, citing New York Central Securities
Corporation vs. U.S.A., 287 U.S. 12, 24, 25, 77 Law. ed. 138, 145, 146; Schenchter Poultry
Corporation vs. I.S., 295, 540, 79 Law. ed. 1570, 1585; Ferrazzini vs. Gsell, 34 Phil., 697, 711-
712.)

Section 8 of Article XIII of the Constitution provides, among other things, that no franchise,
certificate, or any other form of authorization for the operation of a public utility shall be "for a
longer period than fifty years," and when it was ordained, in section 15 of Commonwealth Act
No. 146, as amended by Commonwealth Act No. 454, that the Public Service Commission may
prescribed as a condition for the issuance of a certificate that it "shall be valid only for a definite
period of time" and, in section 16 (a) that "no such certificates shall be issued for a period of
more than fifty years," the National Assembly meant to give effect to the aforesaid constitutional
mandate. More than this, it has thereby also declared its will that the period to be fixed by the
Public Service Commission shall not be longer than fifty years. All that has been delegated to the
Commission, therefore, is the administrative function, involving the use discretion, to carry out
the will of the National Assembly having in view, in addition, the promotion of "public interests
in a proper and suitable manner." The fact that the National Assembly may itself exercise the
function and authority thus conferred upon the Public Service Commission does not make the
provision in question constitutionally objectionable.

The theory of the separation of powers is designed by its originators to secure action and at the
same time to forestall overaction which necessarily results from undue concentration of powers,
and thereby obtain efficiency and prevent deposition. Thereby, the "rule of law" was established
which narrows the range of governmental action and makes it subject to control by certain
devices. As a corollary, we find the rule prohibiting delegation of legislative authority, and from
the earliest time American legal authorities have proceeded on the theory that legislative power
must be exercised by the legislature alone. It is frankness, however, to confess that as one delves
into the mass of judicial pronouncement, he finds a great deal of confusion. One thing, however,
is apparent in the development of the principle of separation of powers and that is that the maxim
of delegatus non potest delegari or delegata potestas non potest delegari, attributed to Bracton
(De Legius et Consuetedinious Angliae, edited by G. E. Woodbine, Yale University Press, 1922,
vol. 2, p. 167) but which is also recognized in principle in the Roman Law (D. 17.18.3), has been
made to adapt itself to the complexities of modern governments, giving rise to the adoption,
within certain limits, of the principle of "subordinate legislation," not only in the United States
and England but in practically all modern governments. (People vs. Rosenthal and Osmeña, G.
R. Nos. 46076 and 46077, promulgated June 12, 1939.) Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly growing tendency toward the
delegation of greater powers by the legislature, and toward the approval of the practice by the
court. (Dillon Catfish Drainage Dist, v. Bank of Dillon, 141 S. E. 274, 275, 143 S. Ct. 178;
State vs. Knox County, 54 S. W. 2d. 973, 976, 165 Tenn. 319.) In harmony with such growing
tendency, this Court, since the decision in the case of Compañia General de Tabacos de
Filipinas vs. Board of Public Utility Commissioner (34 Phil., 136), relied upon by the petitioner,
has, in instances, extended its seal of approval to the "delegation of greater powers by the
legislature." (Inchausti Steamship Co. vs. Public Utility Commissioner, 44 Phil., Autobus
Co. vs. De Jesus, 56 Phil., 446; People vs. Fernandez & Trinidad, G. R. No. 45655, promulgated
June 15, 1938; People vs. Rosenthal & Osmeña, G. R. Nos. 46076, 46077, promulgated June 12,
1939; and Robb and Hilscher vs. People, G. R. No. 45866, promulgated June 12, 1939.).

Under the fourth paragraph of section 15 of Commonwealth Act No. 146, as amended by
Commonwealth Act No. 454, the power of the Public Service Commission to prescribed the
conditions "that the service can be acquired by the Commonwealth of the Philippines or by any
instrumentality thereof upon payment of the cost price of its useful equipment, less reasonable,"
and "that the certificate shall be valid only for a definite period of time" is expressly made
applicable "to any extension or amendment of certificates actually in force" and "to
authorizations to renew and increase equipment and properties." We have examined the
legislative proceedings on the subject and have found that these conditions were purposely made
applicable to existing certificates of public convenience. The history of Commonwealth Act No.
454 reveals that there was an attempt to suppress, by way of amendment, the sentence "and
likewise, that the certificate shall be valid only for a definite period of time," but the attempt
failed:

xxx xxx xxx

Sr. CUENCO. Señor Presidente, para otra enmienda. En la misma pagina, lineas 23 y 24,
pido que se supriman las palabras 'and likewise, that the certificate shall be valid only for
a definite period time.' Esta disposicion del proyecto autoriza a la Comision de Servicios
Publicos a fijar un plazo de vigencia certificado de conveniencia publica. Todo el mundo
sabe que bo se puede determinar cuando los intereses del servicio publico requiren la
explotacion de un servicio publico y ha de saber la Comision de Servisios, si en un
tiempo determinado, la explotacion de algunos buses en cierta ruta ya no tiene de ser,
sobre todo, si tiene en cuenta; que la explotacion de los servicios publicos depende de
condiciones flutuantes, asi como del volumen como trafico y de otras condiciones.
Ademas, el servicio publico se concede por la Comision de Servicios Publicos el interes
publico asi lo exige. El interes publico no tiene duracion fija, no es permanente; es un
proceso mas o menos indefinido en cuanto al tiempo. Se ha acordado eso en el caucus de
anoche.

EL PRESIDENTE PRO TEMPORE. ¿Que dice el Comite?

Sr. ALANO. El Comite siente tener que rechazar esa enmienda, en vista de que esto
certificados de conveniencia publica es igual que la franquicia: sepuede extender. Si los
servicios presentados por la compañia durante el tiempo de su certificado lo require,
puede pedir la extension y se le extendera; pero no creo conveniente el que nosotros
demos un certificado de conveniencia publica de una manera que podria pasar de
cincuenta anos, porque seria anticonstitucional.

xxx xxx xxx

By a majority vote the proposed amendment was defeated. (Sesion de 17 de mayo de 1939,
Asamblea Nacional.)

The petitioner is mistaken in the suggestion that, simply because its existing certificates had been
granted before June 8, 1939, the date when Commonwealth Act No. 454, amendatory of section
15 of Commonwealth Act No. 146, was approved, it must be deemed to have the right of holding
them in perpetuity. Section 74 of the Philippine Bill provided that "no franchise, privilege, or
concession shall be granted to any corporation except under the conditions that it shall be subject
to amendment, alteration, or repeal by the Congress of the United States." The Jones Law,
incorporating a similar mandate, provided, in section 28, that "no franchise or right shall be
granted to any individual, firm, or corporation except under the conditions that it shall be subject
to amendment, alteration, or repeal by the Congress of the United States." Lastly, the
Constitution of the Philippines provided, in section 8 of Article XIII, that "no franchise or right
shall be granted to any individual, firm, or corporation, except under the condition that it shall be
subject to amendment, alteration, or repeal by the National Assembly when the public interest so
requires." The National Assembly, by virtue of the Constitution, logically succeeded to the
Congress of the United States in the power to amend, alter or repeal any franchise or right
granted prior to or after the approval of the Constitution; and when Commonwealth Acts Nos.
146 and 454 were enacted, the National Assembly, to the extent therein provided, has declared
its will and purpose to amend or alter existing certificates of public convenience.

Upon the other hand, statutes enacted for the regulation of public utilities, being a proper
exercise by the state of its police power, are applicable not only to those public utilities coming
into existence after its passage, but likewise to those already established and in operation.

Nor is there any merit in petitioner's contention, that, because of the establishment of
petitioner's operations prior to May 1, 1917, they are not subject to the regulations of the
Commission. Statutes for the regulation of public utilities are a proper exercise by the
state of its police power. As soon as the power is exercised, all phases of operation of
established utilities, become at once subject to the police power thus called into
operation. Procedures' Transportation Co. v. Railroad Commission, 251 U. S. 228, 40
Sup. Ct. 131, 64 Law. ed. 239, Law v. Railroad Commission, 184 Cal. 737, 195 Pac. 423,
14 A. L. R. 249. The statute is applicable not only to those public utilities coming into
existence after its passage, but likewise to those already established and in operation. The
'Auto Stage and Truck Transportation Act' (Stats. 1917, c. 213) is a statute passed in
pursuance of the police power. The only distinction recognized in the statute between
those established before and those established after the passage of the act is in the method
of the creation of their operative rights. A certificate of public convenience and necessity
it required for any new operation, but no such certificate is required of any transportation
company for the operation which was actually carried on in good faith on May 1, 1917,
This distinction in the creation of their operative rights in no way affects the power of the
Commission to supervise and regulate them. Obviously the power of the Commission to
hear and dispose of complaints is as effective against companies securing their operative
rights prior to May 1, 1917, as against those subsequently securing such right under a
certificate of public convenience and necessity. (Motor Transit Co. et al. v. Railroad
Commission of California et al., 209 Pac. 586.)

Moreover, Commonwealth Acts Nos. 146 and 454 are not only the organic acts of the Public
Service Commission but are "a part of the charter of every utility company operating or seeking
to operate a franchise" in the Philippines. (Streator Aqueduct Co. v. et al., 295 Fed. 385.) The
business of a common carrier holds such a peculiar relation to the public interest that there is
superinduced upon it the right of public regulation. When private property is "affected with a
public interest it ceased to be juris privati only." When, therefore, one devotes his property to a
use in which the public has an interest, he, in effect, grants to the public an interest in that use,
and must submit to be controlled by the public for the common good, to the extent of the interest
he has thus created. He may withdraw his grant by discounting the use, but so long as he
maintains the use he must submit to control. Indeed, this right of regulation is so far beyond
question that it is well settled that the power of the state to exercise legislative control over
public utilities may be exercised through boards of commissioners. (Fisher vs. Yangco Steamship
Company, 31 Phil., 1, citing Munn vs. Illinois, 94 U.S. 113; Georgia R. & Bkg. Co. vs. Smith,
128 U.S. 174; Budd vs. New York, 143 U.S. 517; New York etc. R. Co. vs. Bristol 151 U.S. 556,
571; Connecticut etc. R. Co. vs. Woodruff, 153 U.S. 689; Louisville etc. Ry Co. vs. Kentucky,
161 U.S. 677, 695.) This right of the state to regulate public utilities is founded upon the police
power, and statutes for the control and regulation of utilities are a legitimate exercise thereof, for
the protection of the public as well as of the utilities themselves. Such statutes are, therefore, not
unconstitutional, either impairing the obligation of contracts, taking property without due
process, or denying the equal protection of the laws, especially inasmuch as the question whether
or not private property shall be devoted to a public and the consequent burdens assumed is
ordinarily for the owner to decide; and if he voluntarily places his property in public service he
cannot complain that it becomes subject to the regulatory powers of the state. (51 C. J., sec. 21,
pp. 9-10.) in the light of authorities which hold that a certificate of public convenience
constitutes neither a franchise nor contract, confers no property right, and is mere license or
privilege. (Burgess vs. Mayor & Alderman of Brockton, 235 Mass. 95, 100, 126 N. E. 456;
Roberto vs. Commisioners of Department of Public Utilities, 262 Mass. 583, 160 N. E. 321;
Scheible vs. Hogan, 113 Ohio St. 83, 148 N. E. 581; Martz vs. Curtis [J. L.] Cartage Co. [1937],
132 Ohio St. 271, 7 N. E. [d] 220; Manila Yellow Taxicab Co. vs. Sabellano, 59 Phil., 773.)

Whilst the challenged provisions of Commonwealth Act No. 454 are valid and constitutional, we
are, however, of the opinion that the decision of the Public Service Commission should be
reversed and the case remanded thereto for further proceedings for the reason now to be stated.
The Public Service Commission has power, upon proper notice and hearing, "to amend, modify
or revoke at any time any certificate issued under the provisions of this Act, whenever the facts
and circumstances on the strength of which said certificate was issued have been misrepresented
or materially changed." (Section 16, par. [m], Commonwealth Act No. 146.) The petitioner's
application here was for an increase of its equipment to enable it to comply with the conditions
of its certificates of public convenience. On the matter of limitation to twenty five (25) years of
the life of its certificates of public convenience, there had been neither notice nor opportunity
given the petitioner to be heard or present evidence. The Commission appears to have taken
advantage of the petitioner to augment petitioner's equipment in imposing the limitation of
twenty-five (25) years which might as well be twenty or fifteen or any number of years. This is,
to say the least, irregular and should not be sanctioned. There are cardinal primary rights which
must be respected even in proceedings of this character. The first of these rights is the right to a
hearing, which includes the right of the party interested or affected to present his own case and
submit evidence in support thereof. In the language of Chief Justice Hughes, in Morgan v.
U.S., (304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129), "the liberty and property of the citizen
shall be protected by the rudimentary requirements of fair play." Not only must the party be
given an opportunity to present his case and to adduce evidence tending to establish the rights
which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in
Morgan vs. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 :Law. ed. 1288.) In the language of this Court
in Edwards vs. McCoy (22 Phil., 598), "the right to adduce evidence, without the corresponding
duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the
person or persons to whom the evidence is presented can thrust it aside without or
consideration." While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having something to support
its decision. A decision with absolutely nothing to support it is a nullity, at least when directly
attacked. (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental
principle that the genius of constitutional government is contrary to the vesting of unlimited
power anywhere. Law is both a grant and a limitation upon power.

The decision appealed from is hereby reversed and the case remanded to the Public Service
Commission for further proceedings in accordance with law and this decision, without any
pronouncement regarding costs. So ordered.

Avanceña, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.

[ G.R. No. 47800, December 02, 1940 ]

MAXIMO CALALANG, PETITIONER, VS. A. D. WILLIAMS, ET AL., RESPONDENTS.

DECISION

LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before
this court this petition for a writ of prohibition, against the respondents, A. D. Williams, as
Chairman of the National Traffic Commission; Vicente Fragante, as Director of Public Works;
Sergio Bayan, as Acting Secretary of Public Works and Communications; Eulogio Rodriguez, as
Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of Police of Manila.

It is alleged in the petition that the National Traffic Commission, in its resolution of July 17,
1940, resolved to recommend to the Director of Public Works and to the Secretary of Public
Works and Communications that animal-drawn vehicles be prohibited from passing along
Rosario Street extending from Plaza Calderon de la Barca to Dasmarinas Street, from 7:30 a. m.
to 12:30 p. m. and from 1:30 p. m. to 5:30 p. m.; and along Rizal Avenue extending from the
railroad crossing at Antipolo Street to' Echague Street, from 7 a. m. to 11 p.m., for a period of
one year from the date of the opening of the Colgante Bridge to traffic; that the Chairman of the
National Traffic Commission, on July 18, 1940, recommended to the Director of Public Works
the adoption of the measure proposed in the resokjfeion aforementioned, in pursuance of the
provisions orCommonwealth Act No. 548 which authorizes said Director of Public Works, with
the approval of the Secretary of Public Works and Communications, to promulgate rules and
regulations to regulate and control the use of and traffic on national roads^fiiat on August 2,
1940, the Director of Public Works, in his first indorsement to the Secretary of Public Works and
Communications, recommended to the latter the approval of the recommendation made by the
Chairman of the National Traffic Commission as aforesaid, with the modification that the closing
of Rizal Avenue to traffic of animal-drawn vehicles be limited to the portion thereof extending
from the railroad crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940, the
Secretary of Public Works and Communications, in his second indorsement addressed to the
Director of Public Works, approved the recommendation of the latter that Rosario Street and
Rizal Avenue be closed to traffic of animal-drawn vehicles, between the points and during the
hours as above indicated, for a period of one year from the date of the opening of the Colgante
Bridge to traffic; that the Mayor of Manila and the Acting Chief of Police of Manila have
enforced and caused to be enforced the rules and regulations thus adopted; that as a consequence
of such enforcement, all animal-drawn vehicles are not now allowed to pass and pick up
passengers in the places above-mentioned to the detriment not only of their owners but of the
riding public as well.

It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of
Public Works, with the approval of the Secretary of Public Works and Communications, is
authorized to promulgate rules and regulations for the regulation and control of the use of and
traffic on national roads and streets is unconstitutional because it constitutes an undue delegation
of legislative power. This contention is untenable. As was observed by this court in Rubi vs.
Provincial Board of Mindoro (39 Phil, 660, 700), "The rule has nowhere been better stated than
in the early Ohio case decided by Judge Ranney, and since followed in a multitude of cases,
namely: 'The true distinction therefore is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot
be done; to the latter no valid objection can be made.' (Cincinnati, W. & Z. R. Co. vs. Comm'rs.
Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief Justice Marshall in Wayman vs.
Southard (10 Wheat., 1) may be committed by the Legislature to an executive department or
official. The Legislature may make decisions of executive departments or subordinate officials
thereof, to whom it has committed the execution of certain acts, final on questions of fact. (U. S.
vs. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to give prominence to the
'necessity' of the case."

Section 1 of Commonwealth Act No. 548 reads as follows:

"Section 1. To promote safe transit upon, and avoid obstructions on, roads and streets designated
as national roads by acts of the National Assembly or by executive orders of the President of the
Philippines, the Director of Public Works, with the approval of the Secretary of Public Works
and Communications, shall promulgate the necessary rules and regulations to regulate and
control the use of and traffic on such roads and streets. Such rules and regulations, with the
approval of the President, may contain provisions controlling or regulating the construction of
buildings or other structures within a reasonable distance from along the national roads. Such
roads may be temporarily closed to any or all classes of traffic by the Director of Public Works
and his duly authorized representatives whenever the condition of the road or the traffic thereon
makes such action necessary or advisable in the public convenience and interest, or for a
specified period, with the approval of the Secretary of Public Works and Communications."
The above provisions of law do not confer legislative pOwer upon the Director of Public Works
and the Secretary of Public Works and Communications. The authority therein conferred upon
them and under which they promulgated the rules and regulations now complained of is not to
determine what public policy demands but merely to carry out the legislative policy laid down by
the National Assembly in said Act, to wit, "to promote safe transit upon and avoid obstructions
on, roads and streets designated as national roads by acts of the National Assembly or by
executive orders of the President of the Philippines" and to close them temporarily to any or all
classes of traffic "whenever the condition of the road or the trafh'c makes such action necessary
or advisable in the public convenience and interest."-/ The delegated power, if at all, therefore, is
not the determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To promulgate rules
and regulations on the use of national roads and to determine when and how long a national road
should be closed to traffic, in view of the condition of the road or the traffic thereon and the
requirements of public convenience and interest, is an administrative function which cannot be
directly discharged by the National Assembly. It must depend on the discretion of some other
government official to whom is confided the duty of determining whether the proper occasion
exists for executing the law. But it cannot be said that the exercise of such discretion is the
making of the law. As was said in Locke's Appeal (72 Pa. 491) : "To assert that a law is less than
a law, because it is made to depend on a future event or act, is to rob the Legislature of the power
to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet
developed, or to things future and impossible to fully know." The proper distinction the court
said was this: "The Legislature cannot delegate its power to make the law; but it can make a law
to delegate a power to determine some fact or state of things upon which the law makes, or
intends to make, its own action depend. To deny this would be to stop the wheels of government.
There are many things upon which wise and useful legislation must depend which cannot be
known to the law-making power, and, must, therefore, be a subject of inquiry and determination
outside of the halls of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)

In the case of People vs. Rosenthal and Osmeiia, G. it. Nos. 46076 and 46077, promulgated June
12, 1939, and in Pangasinan Transportation vs. The Public Service Commission, G. R. No.
47065, promulgated June 26, 1940, this Court had occasion to observe that the principle of
separation of powers has been made to adapt itself to the complexities of modern governments,
giving rise to the adoption, within certain limits, of the principle of "subordinate legislation," not
only in the United States and England but in practically all modern governments. Accordingly,
with the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the laws, the rigidity of the theory of
separation of governmental powers has, to a large extent, been relaxed by permitting the
delegation of greater powers by the legislative and vesting a larger amount of discretion in
administrative and executive officials, not only in the execution of the laws, but also in the
promulgation of certain rules and regulations calculated to promote public interest.

The petitioner further contends that the rules and regulations promulgated by the respondents
pursuant to the provisions of Commonwealth Act No. 548 constitute an unlawful interference
with legitimate business or trade and abridge the right to personal liberty and freedom of
locomotion. Commonwealth Act No. 548 was passed by the National Assembly in the exercise
of the paramount police power of the state.

Said Act, by virtue of which the rules and regulations icomplained of were promulgated, aims to
promote safe 'transit upon_and avoid obstructions on national roads, in the interest and
convenience of the public. In enacting said law, therefore, the National Assembly was prompted
by considerations of public convenience and welfare. It was inspired by a desire to relieve
congestion of traffic. which is, to say the least, a menace to public safety. Public welfare, then,
lies at_ the bottom of the enactment of said law, and the state in order to promote the general
welfare may interfere with personal liberty, with property, and with business and occupations.
Persons and property may be subjected to all kinds of restraints and burdens, in order to secure
the general comfort, health, and prosperity.,piJlje_state (U. S. vs. Gomez Jesus, 31 Phil., 218).
To this fundamental aim of our Government the rights of the individual are subordinated. Liberty
is a blessing without which life is a misery, but liberty should not be made to prevail over
authority because then society will fall into anarchy. Neither should authority be made to prevail
over liberty because then the individual will fall into slavery. The citizen should achieve the
required balance of liberty and authority in his mind through education and personal discipline,
so that there may be established the resultant equilibrium, which means peace and order and
happiness for all. The moment greater authority is conferred upon the government, logically so
much is withdrawn from the residuum of liberty which resides in the people. The paradox lies in
the fact that the apparent curtailment of liberty is precisely the very means of insuring its
preservation.

The scope of police power keeps expanding as civilization advances. As was said in the case of
Dobbins vs. Los Angeles (195 U. S. 223, 238; 49 L. ed. 169), "the right to exercise the police
power is a continuing one, and a business lawful today may in the future, because of the changed
situation, the growth of population or other causes, become a menace to the public health and
welfare, and be required to yield to the public good." And in People vs. Pomar (46 Phil., 440), it
was observed that "advancing civilization is bringing within the police power of the state today
things which were not thought of as being within such power yesterday. The development of
civilization, the rapidly increasing population, the growth of public opinion, with an increasing
desire on the part of the masses and of the government to look after and care for the interests of
the individuals of the state, have brought within the police power many questions for regulation
which formerly were not so considered."

The petitioner finally avers that the rules and regulations complained of infringe upon the
constitutional precept regarding the promotion of social justice to insure the well-bring and
economic security of all the people. The promotion of social justice, however, is to be achieved
not through a mistaken sympathy towards any given group. Social justice is "neither
communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the
equalization of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated. Social justice means the promotion
of the welfare of ill the people, the adoption by the Government of measures calculated to insure
economic stability of all the competent elements of society, through the maintenance of a proper
economic and social equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally,
through the exercise of rowers underlying the existence of all governments on th$ time-honored
principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and economic life, consistent
with the fundamental and paramount objective of the state of promoting the health, comfort, and
quiet of all persons, and of bringing about "the greatest good to the greatest number."

In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against
the petitioner. So ordered.

Avanceña, C.J., Imperial, Diaz, and Horrilleno, JJ., concur.

Writ denied.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4043 May 26, 1952

CENON S. CERVANTES, petitioner,

vs.
THE AUDITOR GENERAL, respondent.

Cenon Cervantes in his own behalf.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for respondent.

REYES, J.:

This is a petition to review a decision of the Auditor General denying petitioner's claim for
quarters allowance as manager of the National Abaca and Other Fibers Corporation, otherwise
known as the NAFCO.

It appears that petitioner was in 1949 the manager of the NAFCO with a salary of P15,000 a
year. By a resolution of the Board of Directors of this corporation approved on January 19 of that
year, he was granted quarters allowance of not exceeding P400 a month effective the first of that
month. Submitted the Control Committee of the Government Enterprises Council for approval,
the said resolution was on August 3, 1949, disapproved by the said Committee on strenght of the
recommendation of the NAFCO auditor, concurred in by the Auditor General, (1) that quarters
allowance constituted additional compensation prohibited by the charter of the NAFCO, which
fixes the salary of the general manager thereof at the sum not to exceed P15,000 a year, and (2)
that the precarious financial condition of the corporation did not warrant the granting of such
allowance.

On March 16, 1949, the petitioner asked the Control Committee to reconsider its action and
approve his claim for allowance for January to June 15, 1949, amounting to P1,650. The claim
was again referred by the Control Committee to the auditor General for comment. The latter, in
turn referred it to the NAFCO auditor, who reaffirmed his previous recommendation and
emphasized that the fact that the corporation's finances had not improved. In view of this, the
auditor General also reiterated his previous opinion against the granting of the petitioner's claim
and so informed both the Control Committee and the petitioner. But as the petitioner insisted on
his claim the Auditor General Informed him on June 19, 1950, of his refusal to modify his
decision. Hence this petition for review.

The NAFCO was created by the Commonwealth Act No. 332, approved on June 18, 1939, with a
capital stock of P20,000,000, 51 per cent of which was to be able to be subscribed by the
National Government and the remainder to be offered to provincial, municipal, and the city
governments and to the general public. The management the corporation was vested in a board of
directors of not more than 5 members appointed by the president of the Philippines with the
consent of the Commission on Appointments. But the corporation was made subject to the
provisions of the corporation law in so far as they were compatible with the provisions of its
charter and the purposes of which it was created and was to enjoy the general powers mentioned
in the corporation law in addition to those granted in its charter. The members of the board were
to receive each a per diem of not to exceed P30 for each day of meeting actually attended, except
the chairman of the board, who was to be at the same time the general manager of the
corporation and to receive a salary not to exceed P15,000 per annum.

On October 4, 1946, Republic Act No. 51 was approved authorizing the President of the
Philippines, among other things, to effect such reforms and changes in government owned and
controlled corporations for the purpose of promoting simplicity, economy and efficiency in their
operation Pursuant to this authority, the President on October 4, 1947, promulgated Executive
Order No. 93 creating the Government Enterprises Council to be composed of the President of
the Philippines as chairman, the Secretary of Commerce and Industry as vice-chairman, the
chairman of the board of directors and managing heads of all such corporations as ex-officio
members, and such additional members as the President might appoint from time to time with the
consent of the Commission on Appointments. The council was to advise the President in the
excercise of his power of supervision and control over these corporations and to formulate and
adopt such policy and measures as might be necessary to coordinate their functions and
activities. The Executive Order also provided that the council was to have a Control Committee
composed of the Secretary of Commerce and Industry as chairman, a member to be designated
by the President from among the members of the council as vice-chairman and the secretary
as ex-officio member, and with the power, among others —

(1) To supervise, for and under the direction of the President, all the corporations owned
or controlled by the Government for the purpose of insuring efficiency and economy in
their operations;

(2) To pass upon the program of activities and the yearly budget of expenditures
approved by the respective Boards of Directors of the said corporations; and

(3) To carry out the policies and measures formulated by the Government Enterprises
Council with the approval of the President. (Sec. 3, Executive Order No. 93.)

With its controlling stock owned by the Government and the power of appointing its directors
vested in the President of the Philippines, there can be no question that the NAFCO is
Government controlled corporation subject to the provisions of Republic Act No. 51 and the
executive order (No. 93) promulgated in accordance therewith. Consequently, it was also subject
to the powers of the Control Committee created in said executive order, among which is the
power of supervision for the purpose of insuring efficiency and economy in the operations of the
corporation and also the power to pass upon the program of activities and the yearly budget of
expenditures approved by the board of directors. It can hardly be questioned that under these
powers the Control Committee had the right to pass upon, and consequently to approve or
disapprove, the resolution of the NAFCO board of directors granting quarters allowance to the
petitioners as such allowance necessarily constitute an item of expenditure in the corporation's
budget. That the Control Committee had good grounds for disapproving the resolution is also
clear, for, as pointed out by the Auditor General and the NAFCO auditor, the granting of the
allowance amounted to an illegal increase of petitioner's salary beyond the limit fixed in the
corporate charter and was furthermore not justified by the precarious financial condition of the
corporation.

It is argued, however, that Executive Order No. 93 is null and void, not only because it is based
on a law that is unconstitutional as an illegal delegation of legislature power to executive, but
also because it was promulgated beyond the period of one year limited in said law.

The second ground ignores the rule that in the computation of the time for doing an act, the first
day is excluded and the last day included (Section 13 Rev. Ad. Code.) As the act was approved
on October 4, 1946, and the President was given a period of one year within which to promulgate
his executive order and that the order was in fact promulgated on October 4, 1947, it is obvious
that under the above rule the said executive order was promulgated within the period given.

As to the first ground, the rule is that so long as the Legislature "lays down a policy and a
standard is established by the statute" there is no undue delegation. (11 Am. Jur. 957). Republic
Act No. 51 in authorizing the President of the Philippines, among others, to make reforms and
changes in government-controlled corporations, lays down a standard and policy that the purpose
shall be to meet the exigencies attendant upon the establishment of the free and independent
government of the Philippines and to promote simplicity, economy and efficiency in their
operations. The standard was set and the policy fixed. The President had to carry the mandate.
This he did by promulgating the executive order in question which, tested by the rule above
cited, does not constitute an undue delegation of legislative power.

It is also contended that the quarters allowance is not compensation and so the granting of it to
the petitioner by the NAFCO board of directors does not contravene the provisions of the
NAFCO charter that the salary of the chairman of said board who is also to be general manager
shall not exceed P15,000 per anum. But regardless of whether quarters allowance should be
considered as compensation or not, the resolution of the board of the directors authorizing
payment thereof to the petitioner cannot be given effect since it was disapproved by the Control
Committee in the exercise of powers granted to it by Executive Order No. 93. And in any event,
petitioner's contention that quarters allowance is not compensation, a proposition on which
American authorities appear divided, cannot be insisted on behalf of officers and employees
working for the Government of the Philippines and its Instrumentalities, including, naturally,
government-controlled corporations. This is so because Executive Order No. 332 of 1941, which
prohibits the payment of additional compensation to those working for the Government and its
Instrumentalities, including government-controlled corporations, was in 1945 amended by
Executive Order No. 77 by expressly exempting from the prohibition the payment of quarters
allowance "in favor of local government officials and employees entitled to this under existing
law." The amendment is a clear indication that quarters allowance was meant to be included in
the term "additional compensation", for otherwise the amendment would not have expressly
excepted it from the prohibition. This being so, we hold that, for the purpose of the executive
order just mentioned, quarters allowance is considered additional compensation and, therefore,
prohibited.

In view of the foregoing, the petition for review is dismissed, with costs.

Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor and Bautista Angelo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23825 December 24, 1965

EMMANUEL PELAEZ, petitioner,

vs.
THE AUDITOR GENERAL, respondent.

Zulueta, Gonzales, Paculdo and Associates for petitioner.

Office of the Solicitor General for respondent.

CONCEPCION, J.:

During the period from September 4 to October 29, 1964 the President of the Philippines,
purporting to act pursuant to Section 68 of the Revised Administrative Code, issued Executive
Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-three (33) municipalities enumerated
in the margin.1 Soon after the date last mentioned, or on November 10, 1964 petitioner
Emmanuel Pelaez, as Vice President of the Philippines and as taxpayer, instituted the present
special civil action, for a writ of prohibition with preliminary injunction, against the Auditor
General, to restrain him, as well as his representatives and agents, from passing in audit any
expenditure of public funds in implementation of said executive orders and/or any disbursement
by said municipalities.

Petitioner alleges that said executive orders are null and void, upon the ground that said Section
68 has been impliedly repealed by Republic Act No. 2370 and constitutes an undue delegation of
legislative power. Respondent maintains the contrary view and avers that the present action is
premature and that not all proper parties — referring to the officials of the new political
subdivisions in question — have been impleaded. Subsequently, the mayors of several
municipalities adversely affected by the aforementioned executive orders — because the latter
have taken away from the former the barrios composing the new political subdivisions —
intervened in the case. Moreover, Attorneys Enrique M. Fernando and Emma Quisumbing-
Fernando were allowed to and did appear as amici curiae.

The third paragraph of Section 3 of Republic Act No. 2370, reads:

Barrios shall not be created or their boundaries altered nor their names changed except
under the provisions of this Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions
hereof.

Upon petition of a majority of the voters in the areas affected, a new barrio may be
created or the name of an existing one may be changed by the provincial board of the
province, upon recommendation of the council of the municipality or municipalities in
which the proposed barrio is stipulated. The recommendation of the municipal council
shall be embodied in a resolution approved by at least two-thirds of the entire
membership of the said council: Provided, however, That no new barrio may be created if
its population is less than five hundred persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not
be created or their boundaries altered nor their names changed" except by Act of Congress or of
the corresponding provincial board "upon petition of a majority of the voters in the areas
affected" and the "recommendation of the council of the municipality or municipalities in which
the proposed barrio is situated." Petitioner argues, accordingly: "If the President, under this new
law, cannot even create a barrio, can he create a municipality which is composed of
several barrios, since barrios are units of municipalities?"

Respondent answers in the affirmative, upon the theory that a new municipality can be created
without creating new barrios, such as, by placing old barrios under the jurisdiction of the new
municipality. This theory overlooks, however, the main import of the petitioner's argument,
which is that the statutory denial of the presidential authority to create a new barrio implies a
negation of the bigger power to create municipalities, each of which consists of several barrios.
The cogency and force of this argument is too obvious to be denied or even questioned. Founded
upon logic and experience, it cannot be offset except by a clear manifestation of the intent of
Congress to the contrary, and no such manifestation, subsequent to the passage of Republic Act
No. 2379, has been brought to our attention.

Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive
orders are based, provides:

The (Governor-General) President of the Philippines may by executive order define the
boundary, or boundaries, of any province, subprovince, municipality, [township]
 municipal district, or other political subdivision, and increase or diminish the territory
comprised therein, may divide any province into one or more subprovinces, separate any
political division other than a province, into such portions as may be required, merge any
of such subdivisions or portions with another, name any new subdivision so created, and
may change the seat of government within any subdivision to such place therein as the
public welfare may require: Provided, That the authorization of the (Philippine
Legislature) Congress of the Philippines shall first be obtained whenever the boundary of
any province or subprovince is to be defined or any province is to be divided into one or
more subprovinces. When action by the (Governor-General) President of the Philippines
in accordance herewith makes necessary a change of the territory under the jurisdiction of
any administrative officer or any judicial officer, the (Governor-General) President of the
Philippines, with the recommendation and advice of the head of the Department having
executive control of such officer, shall redistrict the territory of the several officers
affected and assign such officers to the new districts so formed.

Upon the changing of the limits of political divisions in pursuance of the foregoing
authority, an equitable distribution of the funds and obligations of the divisions thereby
affected shall be made in such manner as may be recommended by the (Insular Auditor)
Auditor General and approved by the (Governor-General) President of the Philippines.

Respondent alleges that the power of the President to create municipalities under this section
does not amount to an undue delegation of legislative power, relying upon Municipality of
Cardona vs. Municipality of Binañgonan (36 Phil. 547), which, he claims, has settled it. Such
claim is untenable, for said case involved, not the creation of a new municipality, but a
mere transfer of territory — from an already existing municipality (Cardona) to another
municipality (Binañgonan), likewise, existing at the time of and prior to said transfer (See Gov't
of the P.I. ex rel. Municipality of Cardona vs. Municipality, of Binañgonan [34 Phil. 518, 519-
5201) — in consequence of the fixing and definition, pursuant to Act No. 1748, of the common
boundaries of two municipalities.

It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid
or settle conflicts of jurisdiction between adjoining municipalities, may partake of
an administrative nature — involving, as it does, the adoption of means and ways to carry into
effect the law creating said municipalities — the authority to create municipal corporations is
essentially legislative in nature. In the language of other courts, it is "strictly a legislative
function" (State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely
and exclusively the exercise of legislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d 347-
349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs. Stewart,
February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of
statutes."

Although1a Congress may delegate to another branch of the Government the power to fill in the
details in the execution, enforcement or administration of a law, it is essential, to forestall a
violation of the principle of separation of powers, that said law: (a) be complete in itself — it
must set forth therein the policy to be executed, carried out or implemented by the delegate2 —
and (b) fix a standard — the limits of which are sufficiently determinate or determinable — to
which the delegate must conform in the performance of his functions.2a Indeed, without a
statutory declaration of policy, the delegate would in effect, make or formulate such policy,
which is the essence of every law; and, without the aforementioned standard, there would be no
means to determine, with reasonable certainty, whether the delegate has acted within or beyond
the scope of his authority.2b Hence, he could thereby arrogate upon himself the power, not only
to make the law, but, also — and this is worse — to unmake it, by adopting measures
inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the
principle of separation of powers and the system of checks and balances, and, consequently,
undermining the very foundation of our Republican system.

Section 68 of the Revised Administrative Code does not meet these well settled requirements for
a valid delegation of the power to fix the details in the enforcement of a law. It does not
enunciate any policy to be carried out or implemented by the President. Neither does it give a
standard sufficiently precise to avoid the evil effects above referred to. In this connection, we do
not overlook the fact that, under the last clause of the first sentence of Section 68, the President:

... may change the seat of the government within any subdivision to such place therein as
the public welfare may require.

It is apparent, however, from the language of this clause, that the phrase "as the public welfare
may require" qualified, not the clauses preceding the one just quoted, but only the place to which
the seat of the government may be transferred. This fact becomes more apparent when we
consider that said Section 68 was originally Section 1 of Act No. 1748,3 which provided that,
"whenever in the judgment of the Governor-General the public welfare requires, he may, by
executive order," effect the changes enumerated therein (as in said section 68), including the
change of the seat of the government "to such place ... as the public interest requires." The
opening statement of said Section 1 of Act No. 1748 — which was not included in Section 68 of
the Revised Administrative Code — governed the time at which, or the conditions under which,
the powers therein conferred could be exercised; whereas the last part of the first sentence of said
section referred exclusively to the place to which the seat of the government was to be
transferred.

At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we
assumed that the phrase "as the public welfare may require," in said Section 68, qualifies all
other clauses thereof. It is true that in Calalang vs. Williams (70 Phil. 726) and People vs.
Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and "public interest,"
respectively, as sufficient standards for a valid delegation of the authority to execute the law.
But, the doctrine laid down in these cases — as all judicial pronouncements — must be
construed in relation to the specific facts and issues involved therein, outside of which they do
not constitute precedents and have no binding effect.4 The law construed in the Calalang case
conferred upon the Director of Public Works, with the approval of the Secretary of Public Works
and Communications, the power to issue rules and regulations to promote safe transitupon
national roads and streets. Upon the other hand, the Rosenthal case referred to the authority of
the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the
sale of speculative securities. Both cases involved grants to administrative officers of powers
related to the exercise of their administrative functions, calling for the determination of questions
of fact.

Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of
municipalities, is not an administrative function, but one which is essentially and eminently
legislative in character. The question of whether or not "public interest" demands the exercise of
such power is not one of fact. it is "purely a legislativequestion "(Carolina-Virginia Coastal
Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or a political question
(Udall vs. Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly
characterized it, "the question as to whether incorporation is for the best interest of the
community in any case is emphatically a question of public policy and statecraft" (In re Village
of North Milwaukee, 67 N.W. 1033, 1035-1037).

For this reason, courts of justice have annulled, as constituting undue delegation of legislative
powers, state laws granting the judicial department, the power to determine whether certain
territories should be annexed to a particular municipality (Udall vs. Severn, supra, 258-359); or
vesting in a Commission the right to determine the plan and frame of government of proposed
villages and what functions shall be exercised by the same, although the powers and functions of
the village are specifically limited by statute (In re Municipal Charters, 86 Atl. 307-308); or
conferring upon courts the authority to declare a given town or village incorporated, and
designate its metes and bounds, upon petition of a majority of the taxable inhabitants thereof,
setting forth the area desired to be included in such village (Territory ex rel Kelly vs. Stewart, 23
Pac. 405-409); or authorizing the territory of a town, containing a given area and population, to
be incorporated as a town, on certain steps being taken by the inhabitants thereof and on certain
determination by a court and subsequent vote of the inhabitants in favor thereof, insofar as the
court is allowed to determine whether the lands embraced in the petition "ought justly" to be
included in the village, and whether the interest of the inhabitants will be promoted by such
incorporation, and to enlarge and diminish the boundaries of the proposed village "as justice may
require" (In re Villages of North Milwaukee, 67 N.W. 1035-1037); or creating a Municipal
Board of Control which shall determine whether or not the laying out, construction or operation
of a toll road is in the "public interest" and whether the requirements of the law had been
complied with, in which case the board shall enter an order creating a municipal corporation and
fixing the name of the same (Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority,
74 S.E. 2d. 310).

Insofar as the validity of a delegation of power by Congress to the President is concerned, the
case of Schechter Poultry Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at
bar. The Schechter case involved the constitutionality of Section 3 of the National Industrial
Recovery Act authorizing the President of the United States to approve "codes of fair
competition" submitted to him by one or more trade or industrial associations or corporations
which "impose no inequitable restrictions on admission to membership therein and are truly
representative," provided that such codes are not designed "to promote monopolies or to
eliminate or oppress small enterprises and will not operate to discriminate against them, and will
tend to effectuate the policy" of said Act. The Federal Supreme Court held:
 To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without
precedent. It supplies no standards for any trade, industry or activity. It does not
undertake to prescribe rules of conduct to be applied to particular states of fact
determined by appropriate administrative procedure. Instead of prescribing rules of
conduct, it authorizes the making of codes to prescribe them. For that legislative
undertaking, Sec. 3 sets up no standards, aside from the statement of the general aims of
rehabilitation, correction and expansion described in Sec. 1. In view of the scope of that
broad declaration, and of the nature of the few restrictions that are imposed, the discretion
of the President in approving or prescribing codes, and thus enacting laws for the
government of trade and industry throughout the country, is virtually unfettered. We
think that the code making authority thus conferred is an unconstitutional delegation of
legislative power.

If the term "unfair competition" is so broad as to vest in the President a discretion that is
"virtually unfettered." and, consequently, tantamount to a delegation of legislative power, it is
obvious that "public welfare," which has even a broader connotation, leads to the same result. In
fact, if the validity of the delegation of powers made in Section 68 were upheld, there would no
longer be any legal impediment to a statutory grant of authority to the President to do anything
which, in his opinion, may be required by public welfare or public interest. Such grant of
authority would be a virtual abdication of the powers of Congress in favor of the Executive, and
would bring about a total collapse of the democratic system established by our Constitution,
which it is the special duty and privilege of this Court to uphold.

It may not be amiss to note that the executive orders in question were issued after the legislative
bills for the creation of the municipalities involved in this case had failed to pass Congress. A
better proof of the fact that the issuance of said executive orders entails the exercise of purely
legislative functions can hardly be given.

Again, Section 10 (1) of Article VII of our fundamental law ordains:

The President shall have control of all the executive departments, bureaus, or offices,
exercise general supervision over all local governments as may be provided by law, and
take care that the laws be faithfully executed.

The power of control under this provision implies the right of the President to interfere in the
exercise of such discretion as may be vested by law in the officers of the executive departments,
bureaus, or offices of the national government, as well as to act in lieu of such officers. This
power is denied by the Constitution to the Executive, insofar as local governments are
concerned. With respect to the latter, the fundamental law permits him to wield no more
authority than that of checking whether said local governments or the officers thereof perform
their duties as provided by statutory enactments. Hence, the President cannot interfere with local
governments, so long as the same or its officers act Within the scope of their authority. He may
not enact an ordinance which the municipal council has failed or refused to pass, even if it had
thereby violated a duty imposed thereto by law, although he may see to it that the corresponding
provincial officials take appropriate disciplinary action therefor. Neither may he vote, set aside
or annul an ordinance passed by said council within the scope of its jurisdiction, no matter how
patently unwise it may be. He may not even suspend an elective official of a regular municipality
or take any disciplinary action against him, except on appeal from a decision of the
corresponding provincial board.5

Upon the other hand if the President could create a municipality, he could, in effect, remove any
of its officials, by creating a new municipality and including therein the barrio in which the
official concerned resides, for his office would thereby become vacant.6 Thus, by merely
brandishing the power to create a new municipality (if he had it), without actually creating it, he
could compel local officials to submit to his dictation, thereby, in effect, exercising over them the
power of control denied to him by the Constitution.

Then, also, the power of control of the President over executive departments, bureaus or offices
implies no more than the authority to assume directly the functions thereof or to interfere in the
exercise of discretion by its officials. Manifestly, such control does not include the authority
either to abolish an executive department or bureau, or to create a new one. As a consequence,
the alleged power of the President to create municipal corporations would necessarily connote
the exercise by him of an authority even greater than that of control which he has over the
executive departments, bureaus or offices. In other words, Section 68 of the Revised
Administrative Code does not merely fail to comply with the constitutional mandate above
quoted. Instead of giving the President less power over local governments than that vested in him
over the executive departments, bureaus or offices, it reverses the process and does the exact
opposite, by conferring upon him more power over municipal corporations than that which he
has over said executive departments, bureaus or offices.

In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said
Section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must be
deemed repealed by the subsequent adoption of the Constitution, in 1935, which is utterly
incompatible and inconsistent with said statutory enactment.7

There are only two (2) other points left for consideration, namely, respondent's claim (a) that
"not all the proper parties" — referring to the officers of the newly created municipalities —
"have been impleaded in this case," and (b) that "the present petition is premature."

As regards the first point, suffice it to say that the records do not show, and the parties do not
claim, that the officers of any of said municipalities have been appointed or elected and assumed
office. At any rate, the Solicitor General, who has appeared on behalf of respondent Auditor
General, is the officer authorized by law "to act and represent the Government of the Philippines,
its offices and agents, in any official investigation, proceeding or matter requiring the services of
a lawyer" (Section 1661, Revised Administrative Code), and, in connection with the creation of
the aforementioned municipalities, which involves a political, not proprietary, function, said
local officials, if any, are mere agents or representatives of the national government. Their
interest in the case at bar has, accordingly, been, in effect, duly represented.8

With respect to the second point, respondent alleges that he has not as yet acted on any of the
executive order & in question and has not intimated how he would act in connection therewith. It
is, however, a matter of common, public knowledge, subject to judicial cognizance, that the
President has, for many years, issued executive orders creating municipal corporations and that
the same have been organized and in actual operation, thus indicating, without peradventure of
doubt, that the expenditures incidental thereto have been sanctioned, approved or passed in audit
by the General Auditing Office and its officials. There is no reason to believe, therefore, that
respondent would adopt a different policy as regards the new municipalities involved in this
case, in the absence of an allegation to such effect, and none has been made by him.

WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and
the respondent permanently restrained from passing in audit any expenditure of public funds in
implementation of said Executive Orders or any disbursement by the municipalities above
referred to. It is so ordered.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and Dizon, JJ., concur.

Zaldivar, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-19850 January 30, 1964

VIGAN ELECTRIC LIGHT COMPANY, INC., petitioner,

vs.
THE PUBLIC SERVICE COMMISSION, respondent.

Raymundo A. Armovit for petitioner.

Federico S. Arlos and P. H. del Pilar for respondent.

CONCEPCION, J.:

This is an original action for certiorari to annul an order of respondent Public Service
Commission. Upon the filing of the petition and the submission and approval of the
corresponding bond, we issued a writ of injunction restraining said respondent from enforcing
the order complained of Republic Act No. 316, approved on June 19, 1948, granted petitioner
Vigan Electric Light Company, Inc., a franchise to construct, maintain and operate an electric
light, heat and/or power plant for the purpose of generating and distributing light, heat and/or
power, for sale within the limits of several municipalities of the province of Ilocos Sur.
Accordingly, petitioner secured from respondent on May 31, 1950, a certificate of public
convenience to render electric light, heat and/or power services in said municipalities and to
charge its customers and/or consumers the following rates:

FLAT RATE

1 — 20 watt bulb per month ............................................................ P2.30

1 — 25 watt bulb per month ............................................................ 3.00
1 — 40 watt bulb per month ............................................................ 4.50
1 — 50 watt bulb per month ............................................................ 5.50
1 — 60 watt bulb per month ............................................................ 6.50
1 — 75 watt bulb per month ............................................................ 7.50
1 — 80 watt bulb per month ............................................................ 8.00
1 — 100 watt bulb per month ............................................................ 9.00
1 — 150 watt bulb per month ............................................................ 13.00
1 — 200 watt bulb per month ............................................................ 17.00

METER RATE

For the first 15

For the first 15 Kw. hrs. ............................................................ P0.40
For the next 35 Kw. hrs. ............................................................ .30
For the next 50 Kw. hrs. ............................................................ .25
For all over 100 Kw. hrs. ............................................................ .20
Minimum Charge: P6.00 per month for connection of 200 watts
or less; plus P0.01 per watt per month for connection in excess
of 200 watts.

TEMPORARY RATE

P0.01 per watt per night.

On May 22, 1957, petitioner, acting with respondent's approval, entered into a contract for the
purchase of electric power and energy from the National Power Corporation, for resale, in the
course of the business of said petitioner, to its customers, to whom, in fact, petitioner resold said
electric power and energy, in accordance with the above schedule of rates. About five (5) years
later, or on January 16, 1962, respondent advised petitioner of a conference to be held on
February 12, 1962 for the purpose of revising its authorized rates. Soon thereafter, petitioner
received a letter of respondent informing the former of an alleged letter-petition of
"Congressman Floro Crisologo and 107 alleged residents of Vigan Ilocos Sur", charging the
following:

We also denounce the sale of TWO THOUSAND (2,000) ELECTRIC METERS in

blackmarket by the Vigan Electric Light Company to Avegon Co., as anomalous and
illegal. Said electric meters were imported from Japan by the Vigan Electric Light
Company in behalf of the consumers of electric current from said electric company. The
Vigan Electric Light Company has commercialized these privilege which property belong
to the people.

We also report that the electric meters in Vigan used by the consumers had been installed
in bad faith and they register excessive rates much more than the actual
consumption.1äwphï1.ñët

and directing the petitioner to comment on these charges. In reply to said communications,
petitioner's counsel wrote to respondent, on February 1, 1962, a letter asking that the conference
scheduled for February 12 be postponed to March 12, and another letter stating inter alia:

In connection therewith, please be informed that my client, the Vigan Electric Light Co.,
Inc., has not had any dealing with the Avegon Co., Inc., relative to the 2,000 electric
meter mentioned in the petition. Attached hereto as Annex "1" and made an integral part
thereof is a certification to that effect by Avegon Co., Inc.

Furthermore, as counsel for Vigan Electric Light Co., Inc., I wish to inform this
Honorable Commission that the charge that said company installed the electric meters in
bad faith and that said meters registered excessive rates could have no valid basis because
all of these meters have been inspected checked, tested and sealed by your office.

On March 15, 1962, petitioner received a communication form the General Auditing Office
notifying him that one Mr. Cesar A. Damole had "been instructed to make an audit and
examination of the books and other records of account" of said petitioner, "under the provisions
of Commonwealth Act No. 325 and in accordance with the request of the Public Service
Commission contained in its letter dated March 12, 1962", and directing petitioner to cooperate
with said Mr. Damole "for the successful accomplishment of his work". Subsequently,
respondent issued a subpoena duces tecum requiring petitioner to produce before the former,
during a conference scheduled for April 10, 1962, certain books of account and financial
statements specified in said process. On the date last mentioned petitioner moved to quash
the subpoena duces tecum. The motion was not acted upon in said conference of April 10, 1962.
However, it was then decided that the next conference be held on April 30, 1962, which was later
postponed to May 21, 1962. When petitioner's representatives appeared before respondent, on
the date last mentioned, they were advised by the latter that the scheduled conference had been
cancelled, that the petition to quash the subpoena duces tecum had been granted, and that, on
May 17, 1962, respondent had issued an order, from which we quote:
 We now have the audit report of the General Auditing Office dated May 4, 1962,
covering the operation of the Vigan Electric Light Co., Inc. in Vigan, Bantay and
Cagayan, Ilocos Sur, for the period from January 1 to December 31, 1961. We find from
the report that the total invested capital of the utility as of December 31, 1961, entitled to
return amounted to P118,132.55, and its net operating income for rate purposes of
P53,692.34 represents 45.45% of its invested capital; that in order to earn 12% per
annum, the utility should have a computed revenue by rates of P182,012.78; and that
since it realized an actual revenue by rates of P221,529.17, it had an excess revenue by
rates of P39,516.39, which is 17.84% of the actual revenue by rates and 33.45% of the
invested capital. In other words, the present rates of the Vigan Electric Light Co., Inc.
may be reduced by 17.84%, or in round figure, by 18%.

Upon consideration of the foregoing, and finding that the Vigan Electric Light Co., Inc. is
making a net operating profit in excess of the allowable return of 12% on its invested
capital, we believe that it is in the public interest and in consonance with Section 3 of
Republic Act No. 3043 that reduction of its rates to the extent of its excess revenue be put
into effect immediately.

WHEREFORE, Vigan Electric Light Co., Inc. is hereby ordered to reduce the present
meter rates for its electric service effective upon the billing for the month of June, 1962,
to wit:

METER RATE — 24-HOUR SERVICE

For the first 15 kwh per month at P0.328 per kwh

For the next 35 kwh per month at P0.246 per kwh

For the next 50 kwh per month at P0.205 per kwh

For all over 100 kwh per month at P0.164 per kwh

Minimum Charge: P4.90 per month for connection of 200 was or less plus P0.01
per watt per month for connection in excess of 200 watts.

TEMPORARY LIGHTING

P0.01 per watt per night.

Minimum Charge: P1.00

Billings to customers shall be made to the nearest multiple of five centavos. The above rates may
be revised, modified or altered at anytime for any just cause and/or in the public service.

Soon later, or on June 25, 1962, petitioner herein instituted the present action for certiorari to
annul said order of May 17, 1962, upon the ground that, since its Corporate inception in 1948,
petitioner it "never was able to give and never made a single dividend declaration in favor of its
stockholders" because its operation from 1949 to 1961 had resulted in an aggregate loss of
P113,351.523; that in the conference above mentioned petitioner had called the attention of
respondent to the fact that the latter had not furnished the former a "copy of the alleged letter-
petition of Congressman Crisologo and others"; that respondent then expressed the view that
there was no necessity of serving copy of said letter to petitioner, because respondent was merely
holding informal conferences to ascertain whether petitioner would consent to the reduction of
its rates; that petitioner objected to said reduction without a hearing, alleging that its rates could
be reduced only if proven by evidence validly adduced to be excessive; that petitioner offered to
introduce evidence to show the reasonableness of its aforementioned rates, and even the fairness
of its increase; that petitioner was then assured that it would be furnished a copy of the
aforementioned letter-petition and that a hearing would be held, if a reduction of its rates could
not be agreed upon; that petitioner had not even been served a copy of the auditor's report upon
which the order complained of is based; that such order had been issued without notice and
hearing; and that, accordingly, petitioner had been denied due process.

In its answer respondent admitted some allegations of the complaint and denied other allegations
thereof, particularly the conclusions drawn by petitioner. Likewise, respondent alleged that it
granted petitioner's motion to quash the aforementioned subpoena duces tecum because the
documents therein referred to had already been audited and examined by the General Auditing
Office, the report on which was on file with said respondent; that the latter had directed that
petitioner be served a copy of said report; and that, although this has not, as yet, been actually
done, petitioner could have seen and examined said report had it really wanted to do so. By way
of special defenses, respondent, moreover, alleged that the disputed order had been issued under
its delegated legislative authority, the exercise of which does not require previous notice and
hearing; and that petitioner had not sought a reconsideration of said order, and had, accordingly,
failed to exhaust all administrative remedies.

In support of its first special defense respondent maintains that rate-fixing is a legislative
function; that legislative or rule-making powers may constitutionally be exercised without
previous notice of hearing; and that the decision in Ang Tibay vs. Court of Industrial
Relations (69 Phil., 635) — in which we held that such notice and hearing are essential to the
validity of a decision of the Public Service Commission — is not in point because, unlike the
order complained of — which respondent claims to be legislative in nature — the Ang Tibay
case referred to a proceeding involving the exercise of judicial functions.

At the outset, it should be noted, however, that, consistently with the principle of separation of
powers, which underlies our constitutional system, legislative powers may not be delegated
except to local governments, and only to matters purely of local concern (Rubi vs. Provincia
Board, 39 Phil., 660; U.S. vs. Heinszen, 206 U.S. 370). However, Congress may delegate to
administrative agencies of the government the power to supply the details in
the execution or enforcement of a policy laid down by a which is complete in itself (Calalang vs.
Williams, 70 Phil. 726; Pangasinan Trans. Co. vs. Public Service Commission, 70 Phil., 221;
People vs. Rosenthal, 68 Phil., 328; People vs. Vera, 65 Phil., 56; Cruz vs. Youngberg, 56 Phil.
234; Alegre vs. Collector of Customs, 53 Phil., 394; U.S. vs. Ang Tang Ho 43 Phil., 1; Schechter
vs. U.S., 295 U.S., 495 Mulford vs. Smith, 307 U.S., 38; Bowles vs. Willingham, 321 U.S., 503).
Such law is not deemed complete unless it lays down a standard or pattern sufficiently fixed or
determinate, or, at least, determinable without requiring another legislation, to guide the
administrative body concerned in the performance of its duty to implement or enforce said Policy
(People vs. Lim Ho, L-12091, January 28, 1960; Araneta vs. Gatmaitan, L-8895, April 30, 1957;
Cervantes vs. Auditor General, L-4043, May 26, 1952; Philippine Association of Colleges vs.
Secretary of Education, 51 Off. Gaz., 6230; People vs. Arnault, 48 Off. Gaz., 4805; Antamok
Gold Fields vs. Court of Industrial Relations, 68 Phil., 340; U.S. vs. Barrias, 11 Phil., 327; Yakus
vs. White, 321 U.S., 414; Ammann vs. Mallonce, 332 U.S., 245; U.S. vs. Rock Royal Corp. 307
U.S., 533; Mutual Film Corp. vs. Industrial Commission, 276 U.S., 230). Otherwise, there would
be no reasonable means to ascertain whether or not said body has acted within the scope of its
authority, and, as a consequence, the power of legislation would eventually be exercised by a
branch of the Government other than that in which it is lodged by the Constitution, in violation,
not only of the allocation of powers therein made, but, also, of the principle of separation of
powers. Hence, Congress his not delegated, and cannot delegate legislative powers to the Public
Service Commission.

Moreover, although the rule-making power and even the power to fix rates — when such rules
and/or rates are meant to apply to all enterprises of a given kind throughout the Philippines —
may partake of a legislative character, such is not the nature of the order complained of. Indeed,
the same applies exclusively to petitioner herein. What is more, it is predicated upon the finding
of fact — based upon a report submitted by the General Auditing Office — that petitioner is
making a profit of more than 12% of its invested capital, which is denied by petitioner.
Obviously, the latter is entitled to cross-examine the maker of said report, and to introduce
evidence to disprove the contents thereof and/or explain or complement the same, as well as to
refute the conclusion drawn therefrom by the respondent. In other words, in making said finding
of fact, respondent performed a function partaking of a quasi-judicial character the valid
exercise of which demands previous notice and hearing.

Indeed, sections 16(c) and 20 (a) of Commonwealth Act No. 146, explicitly require notice
Indeed hearing. The pertinent parts thereof provide:

SEC. 16. The Commission shall have the power, upon proper notice and hearing in
accordance with the rules and provision of this Act, subject to the limitations and
exception mentioned and saving provisions to the contrary:

xxx xxx xxx

(c) To fix and determine individual or joint rates, tolls charges, classifications, or
schedules thereof, as well as commutation, mileage kilometrage, and other special rates
which shall be imposed, observed, and followed thereafter by any public
service: Provided, That the Commission may in its discretion approve rates proposed by
public services provisionally and without necessity of any hearing; but it shall call a
hearing thereof within thirty days thereafter, upon publication and notice to the concerns
operating in the territory affected: Provided, further, That in case the public service
equipment of an operator is use principally or secondarily for the promotion of a private
business the net profits of said private business shall be considered in relation with the
public service of such operator for the purpose of fixing the rates.
 SEC. 20. Acts requiring the approval of the Commission. — Subject to established
limitations and exception and saving provisions to the contrary, it shall be unlawful for
any public service or for the owner, lessee or operator thereof, without the approval and
authorization of the Commission previously had —

(a) To adopt, establish, fix, impose, maintain, collect or carry into effect any individual or
joint rates, commutation mileage or other special rate, toll, fare, charge, classification or
itinerary. The Commission shall approve only those that are just and reasonable and not
any that are unjustly discriminatory or unduly preferential, only upon reasonable notice
to the public services and other parties concerned, giving them reasonable opportunity to
be heard, ... . (Emphasis supplied.)

Since compliance with law must be presumed, it should be assumed that petitioner's current rates
were fixed by respondent after proper notice and hearing. Hence, modification of such rates
cannot be made, over petitioner's objection, without such notice and hearing, particularly
considering that the factual basis of the action taken by respondent is assailed by petitioner. The
rule applicable is set forth in the American Jurisprudence the following language:

Whether notice and a hearing in proceedings before a public service commission are
necessary depends chiefly upon statutory or constitutional provisions applicable to such
proceedings, which make notice and hearing, prerequisite to action by the commission,
and upon the nature and object of such proceedings, that is, whether the proceedings, are,
on the one hand, legislative and rule-making in character, or are, on the other hand,
determinative and judicial or quasi-judicial, affecting the rights an property of private or
specific persons. As a general rule, a public utility must be afforded some opportunity to
be heard as to the propriety and reasonableness of rates fixed for its services by a public
service commission.(43 Am. Jur. 716; Emphasis supplied.)

Wherefore, we hold that the determination of the issue involved in the order complained of
partakes of the nature of a quasi-judicial function and that having been issued without previous
notice and hearing said order is clearly violative of the due process clause, and, hence, null and
void, so that a motion for reconsideration thereof is not an absolute prerequisite to the institution
of the present action for certiorari (Ayson vs. Republic. 50 Off. Gaz., 5810). For this reason
considering that said order was being made effective on June 1, 1962, or almost immediately
after its issuance (on May 17, 1962), we find that petitioner was justified in commencing this
proceedings without first filing said motion (Guerrero vs. Carbonell, L-7180, March 15, 1955).

WHEREFORE, the writ prayed for is granted and the preliminary injunction issued by this Court
hereby made permanent. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon, Regala and
Makalintal, JJ., concur.
Barrera, J., took no part.