You are on page 1of 120

G.R. No.

L-5270

January 15, 1910

THE UNITED STATES, plaintiff-appellee, vs.H. N. BULL,


defendant-appellant.
Bruce & Lawrence, for appellant. Office of the SolicitorGeneral Harvey, for appellee.
ELLIOTT, J.:
The appellant was convicted in the Court of First Instance of
a violation of section 1 of Act No. 55, as amended by section
1 of Act No. 275, and from the judgment entered thereon
appealed to this court, where under proper assignments of
error he contends: (1) that the complaint does not state
facts sufficient to confer jurisdiction upon the court; (2) that
under the evidence the trial court was without jurisdiction to
hear and determine the case; (3) that Act No. 55 as
amended is in violation of certain provisions of the
Constitution of the United States, and void as applied to the
facts of this case; and (4) that the evidence is insufficient to
support the conviction.

city of Manila, aboard said vessel, from the port of Ampieng,


Formosa, six hundred and seventy-seven (677) head of
cattle and carabaos, without providing suitable means for
securing said animals while in transit, so as to avoid cruelty
and unnecessary suffering to the said animals, in this, to wit,
that the said H. N. Bull, master, as aforesaid, did then and
there fail to provide stalls for said animals so in transit and
suitable means for trying and securing said animals in a
proper manner, and did then and there cause some of said
animals to be tied by means of rings passed through their
noses, and allow and permit others to be transported loose
in the hold and on the deck of said vessel without being tied
or secured in stalls, and all without bedding; that by reason
of the aforesaid neglect and failure of the accused to
provide suitable means for securing said animals while so in
transit, the noses of some of said animals were cruelly torn,
and many of said animals were tossed about upon the decks
and hold of said vessel, and cruelly wounded, bruised, and
killed.
All contrary to the provisions of Acts No. 55 and No. 275 of
the Philippine Commission.

The information alleges:

Section 1 of Act No. 55, which went into effect January 1,


1901, provides that

That on and for many months prior to the 2d day of


December, 1908, the said H. N. Bull was then and there
master of a steam sailing vessel known as the steamship
Standard, which vessel was then and there engaged in
carrying and transporting cattle, carabaos, and other
animals from a foreign port and city of Manila, Philippine
Islands; that the said accused H. N. Bull, while master of
said vessel, as aforesaid, on or about the 2d day of
December, 1908, did then and there willfully, unlawfully,
and wrongly carry, transport, and bring into the port and

The owners or masters of steam, sailing, or other vessels,


carrying or transporting cattle, sheep, swine, or other
animals, from one port in the Philippine Islands to another,
or from any foreign port to any port within the Philippine
Islands, shall carry with them, upon the vessels carrying
such animals, sufficient forage and fresh water to provide
for the suitable sustenance of such animals during the
ordinary period occupied by the vessel in passage from the
port of shipment to the port of debarkation, and shall cause
such animals to be provided with adequate forage and fresh

water at least once in every twenty-four hours from the time


that the animals are embarked to the time of their final
debarkation.
By Act No. 275, enacted October 23, 1901, Act No. 55 was
amended by adding to section 1 thereof the following:
The owners or masters of steam, sailing, or other vessels,
carrying or transporting cattle, sheep, swine, or other
animals from one port in the Philippine Islands to another, or
from any foreign port to any port within the Philippine
Islands, shall provide suitable means for securing such
animals while in transit so as to avoid all cruelty and
unnecessary suffering to the animals, and suitable and
proper facilities for loading and unloading cattle or other
animals upon or from vessels upon which they are
transported, without cruelty or unnecessary suffering. It is
hereby made unlawful to load or unload cattle upon or from
vessels by swinging them over the side by means of ropes
or chains attached to the thorns.
Section 3 of Act No. 55 provides that
Any owner or master of a vessel, or custodian of such
animals, who knowingly and willfully fails to comply with the
provisions of section one, shall, for every such failure, be
liable to pay a penalty of not less that one hundred dollars
nor more that five hundred dollars, United States money, for
each offense. Prosecution under this Act may be instituted in
any Court of First Instance or any provost court organized in
the province or port in which such animals are disembarked.
1. It is contended that the information is insufficient because
it does not state that the court was sitting at a port where
the cattle were disembarked, or that the offense was
committed on board a vessel registered and licensed under

the laws of the Philippine Islands.


Act No. 55 confers jurisdiction over the offense created
thereby on Courts of First Instance or any provost court
organized in the province or port in which such animals are
disembarked, and there is nothing inconsistent therewith in
Act No. 136, which provides generally for the organization of
the courts of the Philippine Islands. Act No. 400 merely
extends the general jurisdiction of the courts over certain
offenses committed on the high seas, or beyond the
jurisdiction of any country, or within any of the waters of the
Philippine Islands on board a ship or water craft of any kind
registered or licensed in the Philippine Islands, in
accordance with the laws thereof. (U.S. vs. Fowler, 1 Phil.
Rep., 614.) This jurisdiction may be exercised by the Court
of First Instance in any province into which such ship or
water upon which the offense or crime was committed shall
come after the commission thereof. Had this offense been
committed upon a ship carrying a Philippine registry, there
could have been no doubt of the Jurisdiction of the court,
because it is expressly conferred, and the Act is in
accordance with well recognized and established public law.
But the Standard was a Norwegian vessel, and it is
conceded that it was not registered or licensed in the
Philippine Islands under the laws thereof. We have then the
question whether the court had jurisdiction over an offense
of this character, committed on board a foreign ship by the
master thereof, when the neglect and omission which
constitutes the offense continued during the time the ship
was within the territorial waters of the United States. No
court of the Philippine Islands had jurisdiction over an
offenses or crime committed on the high seas or within the
territorial waters of any other country, but when she came
within 3 miles of a line drawn from the headlines which
embrace the entrance to Manila Bay, she was within
territorial waters, and a new set of principles became

applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105;


Bonfils, Le Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch.
1.) The ship and her crew were then subject to the
jurisdiction of the territorial sovereign subject through the
proper political agency. This offense was committed within
territorial waters. From the line which determines these
waters the Standard must have traveled at least 25 miles
before she came to anchor. During that part of her voyage
the violation of the statue continued, and as far as the
jurisdiction of the court is concerned, it is immaterial that
the same conditions may have existed while the vessel was
on the high seas. The offense, assuming that it originated at
the port of departure in Formosa, was a continuing one, and
every element necessary to constitute it existed during the
voyage across the territorial waters. The completed
forbidden act was done within American waters, and the
court therefore had jurisdiction over the subject-matter of
the offense and the person of the offender.
The offense then was thus committed within the territorial
jurisdiction of the court, but the objection to the jurisdiction
raises the further question whether that jurisdiction is
restricted by the fact of the nationality of the ship. Every.
Every state has complete control and jurisdiction over its
territorial waters. According to strict legal right, even public
vessels may not enter the ports of a friendly power without
permission, but it is now conceded that in the absence of a
prohibition such ports are considered as open to the public
ship of all friendly powers. The exemption of such vessels
from local jurisdiction while within such waters was not
established until within comparatively recent times. In 1794,
Attorney-General Bradford, and in 1796 Attorney-General
Lee, rendered opinions to the effect that "the laws of nations
invest the commander of a foreign ship of war with no
exemption from the jurisdiction of the country into which he
comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was

also supported by Lord Stowell in an opinion given by him to


the British Government as late as 1820. In the leading case
of the Schooner Exchange vs. McFadden (7 Cranch (U.S.),
116, 144), Chief Justice Marshall said that the implied
license under which such vessels enter a friendly port may
reasonably be construed as "containing exemption from the
jurisdiction of the sovereign within whose territory she
claims the rights of hospitality." The principle was accepted
by the Geneva Arbitration Tribunal, which announced that
"the priviledge of exterritoriality accorded to vessels of war
has been admitted in the law of nations; not as an absolute
right, but solely as a proceeding founded on the principle of
courtesy and mutual deference between nations." (2 Moore,
Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55;
Taylor, Int. Law, sec. 256; Ortolan, Dip de la Mer, 2. C.X.)
Such vessels are therefore permitted during times of peace
to come and go freely. Local official exercise but little control
over their actions, and offenses committed by their crew are
justiciable by their own officers acting under the laws to
which they primarily owe allegiance. This limitation upon the
general principle of territorial sovereignty is based entirely
upon comity and convenience, and finds its justification in
the fact that experience shows that such vessels are
generally careful to respect local laws and regulation which
are essential to the health, order, and well-being of the port.
But comity and convenience does not require the extension
of the same degree of exemption to merchant vessels. There
are two well-defined theories as to extent of the immunities
ordinarily granted to them, According to the French theory
and practice, matters happening on board a merchant ship
which do not concern the tranquillity of the port or persons
foreign to the crew, are justiciable only by the court of the
country to which the vessel belongs. The French courts
therefore claim exclusive jurisdiction over crimes committed
on board French merchant vessels in foreign ports by one

member of the crew against another. (See Bonfils, Le Droit


Int. (quat. ed.), secs. 624-628; Martens, Le Droit Int., tome 2,
pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse,
Droit Int., tome 2, p. 63.) Such jurisdiction has never been
admitted or claim by Great Britain as a right, although she
has frequently conceded it by treaties. (Halleck, Int. Law
(Baker's ed.), vol. 1, 231; British Territorial Waters Act,
1878.) Writers who consider exterritoriality as a fact instead
of a theory have sought to restrict local jurisdiction, but Hall,
who is doubtless the leading English authority, says that
It is admitted by the most thoroughgoing asserters of the
territoriality of merchant vessels that so soon as the latter
enter the ports of a foreign state they become subject to the
local jurisdiction on all points in which the interests of the
country are touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that
when a merchant vessel enters a foreign port it is subject to
the jurisdiction of the local authorities, unless the local
sovereignty has by act of acquiescence or through treaty
arrangements consented to waive a portion of such
jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law
Dig., sec. 204; article by Dean Gregory, Mich. Law Review,
Vol. II, No. 5.) Chief Justice Marshall, in the case of the
Exchange, said that
When merchant vessels enter for the purpose of trade, in
would be obviously in convinient and dangerous to society
and would subject the laws to continual infraction and the
government to degradation if such individual merchants did
not owe temporary and local allegiance, and were not
amendable to the jurisdiction of the country.
The Supreme Court of the United States has recently said
that the merchant vessels of one country visiting the ports

of another for the purpose of trade, subject themselves to


the laws which govern the ports they visit, so long as they
remain; and this as well in war as in peace, unless otherwise
provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)
Certain limitations upon the jurisdiction of the local courts
are imposed by article 13 of the treaty of commerce and
navigation between Sweden and Norway and the United
States, of July 4, 1827, which concedes to the consul, viceconsuls, or consular agents of each country "The right to sit
as judges and arbitrators in such differences as may arise
between the captains and crews of the vessels belonging to
the nation whose interests are committed to their charge,
without the interference of the local authorities, unless the
conduct of the crews or of the captains should disturb the
order or tranquillity of the country." (Comp. of Treaties in
Force, 1904, p. 754.) This exception applies to controversies
between the members of the ship's company, and
particularly to disputes regarding wages. (2 Moore, Int. Law
Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.)
The order and tranquillity of the country are affected by
many events which do not amount to a riot or general public
disturbance. Thus an assault by one member of the crew
upon another, committed upon the ship, of which the public
may have no knowledge whatever, is not by this treaty
withdrawn from the cognizance of the local authorities.
In 1876 the mates of the Swedish bark Frederike and
Carolina engaged in a "quarrel" on board the vessel in the
port of Galveston, Texas. They were prosecuted before a
justice of the peace, but the United States district attorney
was instructed by the Government to take the necessary
steps to have the proceedings dismissed, and the aid of the
governor of Texas was invoked with the view to "guard
against a repetition of similar proceedings." (Mr. Fish,
Secretary of State, to Mr. Grip, Swedish and Norwegian

charged, May 16, 1876; Moore, Int. Law Dig.) It does not
appear that this "quarrel" was of such a nature as to amount
to a breach of the criminal laws of Texas, but when in 1879
the mate for the Norwegian bark Livingston was prosecuted
in the courts of Philadelphia County for an assault and
battery committed on board the ship while lying in the port
of Philadelphia, it was held that there was nothing in the
treaty which deprived the local courts of jurisdiction.
(Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.)
Representations were made through diplomatic channels to
the State Department, and on July 30, 1880, Mr. Evarts,
Secretary of State, wrote to Count Lewenhaupt, the Swedish
and Norwegian minister, as follows:
I have the honor to state that I have given the matter
careful consideration in connection with the views and
suggestion of your note and the provisions of the thirteenth
article of the treaty of 1827 between the United States and
Sweden and Norway. The stipulations contained in the last
clause of that article . . . are those under which it is
contended by you that jurisdiction is conferred on the
consular officers, not only in regard to such differences of a
civil nature growing out of the contract of engagement of
the seamen, but also as to disposing of controversies
resulting from personal violence involving offense for which
the party may be held amenable under the local criminal
law.
This Government does not view the article in question as
susceptible of such broad interpretation. The jurisdiction
conferred upon the consuls is conceived to be limited to
their right to sit as judges or abitrators in such differences
as may arise between captains and crews of the vessels,
where such differences do not involve on the part of the
captain or crew a disturbance of the order or tranquillity of
the country. When, however, a complaint is made to a local

magistrate, either by the captain or one or more of the crew


of the vessel, involving the disturbance of the order or
tranquillity of the country, it is competent for such
magistrate to take cognizance of the matter in furtherance
of the local laws, and under such circumstances in the
United States it becomes a public duty which the judge or
magistrate is not at liberty voluntarily to forego. In all such
cases it must necessarily be left to the local judicial
authorities whether the procedure shall take place in the
United States or in Sweden to determine if in fact there had
been such disturbance of the local order and tranquillity,
and if the complaint is supported by such proof as results in
the conviction of the party accused, to visit upon the
offenders such punishment as may be defined against the
offense by the municipal law of the place." (Moore, Int. Law
Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of
jurisdiction over offenses committed on board a merchant
vessel by one member of the crew against another which
amount to a disturbance of the order or tranquillity of the
country, and a fair and reasonable construction of the
language requires un to hold that any violation of criminal
laws disturbs the order or traquillity of the country. The
offense with which the appellant is charged had nothing to
so with any difference between the captain and the crew. It
was a violation by the master of the criminal law of the
country into whose port he came. We thus find that neither
by reason of the nationality of the vessel, the place of the
commission of the offense, or the prohibitions of any treaty
or general principle of public law, are the court of the
Philippine Islands deprived of jurisdiction over the offense
charged in the information in this case.
It is further contended that the complaint is defective
because it does not allege that the animals were

disembarked at the port of Manila, an allegation which it is


claimed is essential to the jurisdiction of the court sitting at
that port. To hold with the appellant upon this issue would
be to construe the language of the complaint very strictly
against the Government. The disembarkation of the animals
is not necessary in order to constitute the completed
offense, and a reasonable construction of the language of
the statute confers jurisdiction upon the court sitting at the
port into which the animals are bought. They are then within
the territorial jurisdiction of the court, and the mere fact of
their disembarkation is immaterial so far as jurisdiction is
concerned. This might be different if the disembarkation of
the animals constituted a constitutional element in the
offense, but it does not.
It is also contended that the information is insufficient
because it fails to allege that the defendant knowingly and
willfully failed to provide suitable means for securing said
animals while in transit, so as to avoid cruelty and
unnecessary suffering. The allegation of the complaint that
the act was committed willfully includes the allegation that
it was committed knowingly. As said in Woodhouse vs. Rio
Grande R.R. Company (67 Texas, 416), "the word 'willfully'
carries the idea, when used in connection with an act
forbidden by law, that the act must be done knowingly or
intentionally; that, with knowledge, the will consented to,
designed, and directed the act." So in Wong vs. City of
Astoria (13 Oregon, 538), it was said: "The first one is that
the complaint did not show, in the words of the ordinance,
that the appellant 'knowingly' did the act complained of.
This point, I think, was fully answered by the respondent's
counsel that the words 'willfully' and 'knowingly'
conveyed the same meaning. To 'willfully' do an act implies
that it was done by design done for a certain purpose;
and I think that it would necessarily follow that it was
'knowingly' done." To the same effect is Johnson vs. The

People (94 Ill., 505), which seems to be on all fours with the
present case.
The evidence shows not only that the defendant's acts were
knowingly done, but his defense rests upon the assertion
that "according to his experience, the system of carrying
cattle loose upon the decks and in the hold is preferable and
more secure to the life and comfort of the animals." It was
conclusively proven that what was done was done knowingly
and intentionally.
In charging an offense under section 6 of General Orders,
No. 58, paragraph 3, it is only necessary to state the act or
omission complained of as constituting a crime or public
offense in ordinary and concise language, without repitition.
It need not necessarily be in the words of the statute, but it
must be in such form as to enable a person of common
understanding to know what is intended and the court to
pronounce judgment according to right. A complaint which
complies with this requirement is good. (U.S. vs. Sarabia, 4
Phil. Rep., 556.)
The Act, which is in the English language, impose upon the
master of a vessel the duty to "provide suitable means for
securing such animals while in transit, so as to avoid all
cruelty and unnecessary suffering to the animals." The
allegation of the complaint as it reads in English is that the
defendant willfully, unlawfully, and wrongfully carried the
cattle "without providing suitable means for securing said
animals while in transit, so as to avoid cruelty and
unnecessary suffering to the said animals in this . . . that by
reason of the aforesaid neglect and failure of the accused to
provide suitable means for securing said animals were
cruelty torn, and many of said animals were tossed about
upon the decks and hold of said vessels, and cruelty
wounded, bruised, and killed."

The appellant contends that the language of the Spanish


text of the information does not charge him with failure to
provide "sufficient" and "adequate" means. The words used
are "medios suficientes" and "medios adecuados." In view of
the fact that the original complaint was prepared in English,
and that the word "suitable" is translatable by the words
"adecuado," "suficiente," and "conveniente," according to
the context and circumstances, we determine this point
against the appellant, particularly in view of the fact that the
objection was not made in the court below, and that the
evidence clearly shows a failure to provide "suitable means
for the protection of the animals."
2. The appellant's arguments against the constitutionality of
Act No. 55 and the amendment thereto seems to rest upon a
fundamentally erroneous conception of the constitutional
law of these Islands. The statute penalizes acts and
ommissions incidental to the transportation of live stock
between foreign ports and ports of the Philippine Islands,
and had a similar statute regulating commerce with its ports
been enacted by the legislature of one of the States of the
Union, it would doubtless have been in violation of Article I,
section 3, of the Constitution of the United States. (Stubbs
vs. People (Colo.), 11 L. R. A., N. S., 1071.)
But the Philippine Islands is not a State, and its relation to
the United States is controlled by constitutional principles
different from those which apply to States of the Union. The
importance of the question thus presented requires a
statement of the principles which govern those relations,
and consideration of the nature and extent of the legislative
power of the Philippine Commission and the Legislature of
the Philippines. After much discussion and considerable
diversity of opinion certain applicable constitutional
doctrines are established.

The Constitution confers upon the United States the express


power to make war and treaties, and it has the power
possessed by all nations to acquire territory by conquest or
treaty. Territory thus acquired belongs to the United States,
and to guard against the possibility of the power of Congress
to provide for its government being questioned, the framers
of the Constitution provided in express terms that Congress
should have the power "to dispose of and make all needful
rules and regulations respecting territory and other property
belonging to the United States." (Art. IV, sec. 3, par. 3.)
Upon the acquisition of the territory by the United States,
and until it is formally incorporated into the Union, the duty
of providing a government therefor devolves upon Congress.
It may govern the territory by its direct acts, or it may
create a local government, and delegate thereto the
ordinary powers required for local government. (Binns vs. U.
S., 194 U. S., 486.) This has been the usual procedure.
Congress has provided such governments for territories
which were within the Union, and for newly acquired
territory not yet incorporated therein. It has been customary
to organize a government with the ordinary separation of
powers into executive, legislative, and judicial, and to
prescribe in an organic act certain general conditions in
accordance with which the local government should act. The
organic act thus became the constitution of the government
of the territory which had not been formally incorporated
into the Union, and the validity of legislation enacted by the
local legislature was determined by its conformity with the
requirements of such organic act. (National Bank vs.
Yankton, 11 Otto (U. S.), 129.) To the legislative body of the
local government Congress has delegated that portion of
legislative power which in its wisdom it deemed necessary
for the government of the territory, reserving, however, the
right to annul the action of the local legislature and itself
legislate directly for the territory. This power has been
exercised during the entire period of the history of the
United States. The right of Congress to delegate such

legislative power can no longer be seriously questioned.


(Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S.,
370, 385.)
The Constitution of the United States does not by its own
force operate within such territory, although the liberality of
Congress in legislating the Constitution into contiguous
territory tended to create an impression upon the minds of
many people that it went there by its own force. (Downes
vs. Bidwell, 182 U. S., 289.) In legislating with reference to
this territory, the power of Congress is limited only by those
prohibitions of the Constitution which go to the very root of
its power to act at all, irrespective of time or place. In all
other respects it is plenary. (De Lima vs. Bidwell, 182 U. S.,
1; Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi,
190 U. S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen
vs. U. S., 197 U. S., 516.)
This power has been exercised by Congress throughout the
whole history of the United States, and legislation founded
on the theory was enacted long prior to the acquisition of
the present Insular possessions. Section 1891 of the Revised
Statutes of 1878 provides that "The Constitution and all laws
of the United States which are not locally inapplicable shall
have the same force and effect within all the organized
territories, and in every Territory hereafter organized, as
elsewhere within the United States." When Congress
organized a civil government for the Philippines, it expressly
provided that this section of the Revised Statutes should not
apply to the Philippine Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was
acquired by the United States as a result of the war with
Spain, the executive and legislative authorities have
consistently proceeded in conformity with the principles
above state. The city of Manila was surrendered to the

United States on August 13, 1898, and the military


commander was directed to hold the city, bay, and harbor,
pending the conclusion of a peace which should determine
the control, disposition, and government of the Islands. The
duty then devolved upon the American authorities to
preserve peace and protect person and property within the
occupied territory. Provision therefor was made by proper
orders, and on August 26 General Merritt assumed the
duties of military governor. The treaty of peace was signed
December 10, 1898. On the 22d of December, 1898, the
President announced that the destruction of the Spanish
fleet and the surrender of the city had practically effected
the conquest of the Philippine Islands and the suspension of
the Spanish sovereignty therein, and that by the treaty of
peace the future control, disposition, and government of the
Islands had been ceded to the United States. During the
periods of strict military occupation, before the treaty of
peace was ratified, and the interim thereafter, until
Congress acted (Santiago vs. Noueral, 214 U.S., 260), the
territory was governed under the military authority of the
President as commander in chief. Long before Congress took
any action, the President organized a civil government
which, however, had its legal justification, like the purely
military government which it gradually superseded, in the
war power. The military power of the President embraced
legislative, executive personally, or through such military or
civil agents as he chose to select. As stated by Secretary
Root in his report for 1901
The military power in exercise in a territory under military
occupation includes executive, legislative, and judicial
authority. It not infrequently happens that in a single order
of a military commander can be found the exercise of all
three of these different powers the exercise of the
legislative powers by provisions prescribing a rule of action;
of judicial power by determination of right; and the

executive power by the enforcement of the rules prescribed


and the rights determined.
President McKinley desired to transform military into civil
government as rapidly as conditions would permit. After full
investigation, the organization of civil government was
initiated by the appointment of a commission to which civil
authority was to be gradually transferred. On September 1,
1900, the authority to exercise, subject to the approval of
the President. "that part of the military power of the
President in the Philippine Islands which is legislative in its
character" was transferred from the military government to
the Commission, to be exercised under such rules and
regulations as should be prescribed by the Secretary of War,
until such time as complete civil government should be
established, or congress otherwise provided. The legislative
power thus conferred upon the Commission was declared to
include "the making of rules and orders having the effect of
law for the raising of revenue by taxes, customs duties, and
imposts; the appropriation and expenditure of public funds
of the Islands; the establishment of an educational system
to secure an efficient civil service; the organization and
establishment of courts; the organization and establishment
of municipal and departmental government, and all other
matters of a civil nature which the military governor is now
competent to provide by rules or orders of a legislative
character." This grant of legislative power to the
Commission was to be exercised in conformity with certain
declared general principles, and subject to certain specific
restrictions for the protection of individual rights. The
Commission were to bear in mind that the government to be
instituted was "not for our satisfaction or for the expression
of our theoretical views, but for the happiness, peace, and
prosperity of the people of the Philippine Island, and the
measures adopted should be made to conforms to their
customs, their habits, and even their prejudices, to the

fullest extent consistent with the accomplishment of the


indispensable requisites of just and effective government."
The specific restrictions upon legislative power were found
in the declarations that "no person shall be deprived of life,
liberty, or property without due process of law; that private
property shall not be taken for public use without just
compensation; that in all criminal prosecutions the accused
shall enjoy the right to a speedy and public trial, to be
informed of the nature and cause of the accusation, to be
confronted with the witnesses against him, to have
compulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense; that
excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted; that
no person shall be put twice in jeopardy for the same
offense or be compelled in any criminal case to be a witness
against himself; that the right to be secure against
unreasonable searches and seizures shall not be violated;
that neither slavery nor involuntary servitude shall exist
except as a punishment for crime; that no bill of attainder or
ex post facto law shall be passed; that no law shall be
passed abridging the freedom of speech or of the press or of
the rights of the people to peaceably assemble and petition
the Government for a redress of grievances; that no law
shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that the free
exercise and enjoyment of religious profession and worship
without discrimination or preference shall forever be
allowed."
To prevent any question as to the legality of these
proceedings being raised, the Spooner amendment to the
Army Appropriation Bill passed March 2, 1901, provided that
"all military, civil, and judicial powers necessary to govern
the Philippine Islands . . . shall until otherwise provided by
Congress be vested in such person and persons, and shall

be exercised in such manner, as the President of the United


States shall direct, for the establishment of civil
government, and for maintaining and protecting the
inhabitants of said Islands in the free enjoyment of their
liberty, property, and religion." Thereafter, on July 4, 1901,
the authority, which had been exercised previously by the
military governor, was transferred to that official. The
government thus created by virtue of the authority of the
President as Commander in Chief of the Army and Navy
continued to administer the affairs of the Islands under the
direction of the President until by the Act of July 1, 1902,
Congress assumed control of the situation by the enactment
of a law which, in connection with the instructions of April 7,
1900, constitutes the organic law of the Philippine Islands.
The Act of July 1, 1902, made no substancial changes in the
form of government which the President had erected.
Congress adopted the system which was in operation, and
approved the action of the President in organizing the
government. Substantially all the limitations which had been
imposed on the legislative power by the President's
instructions were included in the law, Congress thus
extending to the Islands by legislative act nor the
Constitution, but all its provisions for the protection of the
rights and privileges of individuals which were appropriate
under the conditions. The action of the President in creating
the Commission with designated powers of government, in
creating the office of the Governor-General and ViceGovernor-General, and through the Commission establishing
certain executive departments, was expressly approved and
ratified. Subsequently the action of the President in
imposing a tariff before and after the ratification of the
treaty of peace was also ratified and approved by Congress.
(Act of March 8, 1902; Act of July 1, 1902; U.S. vs. Heinszen,
206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until
otherwise provided by law the Islands were to continue to be

governed "as thereby and herein provided." In the future the


enacting clause of all statutes should read "By authority of
the United States" instead of "By the authority of the
President." In the course of time the legislative authority of
the Commission in all parts of the Islands not inhabited by
Moros or non-Christian tribes was to be transferred to a
legislature consisting of two houses the Philippine
Commission and the Philippine Assembly. The government
of the Islands was thus assumed by Congress under its
power to govern newly acquired territory not incorporated
into the United States.
This Government of the Philippine Islands is not a State or a
Territory, although its form and organization somewhat
resembles that of both. It stands outside of the
constitutional relation which unites the States and Territories
into the Union. The authority for its creation and
maintenance is derived from the Constitution of the United
States, which, however, operates on the President and
Congress, and not directly on the Philippine Government. It
is the creation of the United States, acting through the
President and Congress, both deriving power from the same
source, but from different parts thereof. For its powers and
the limitations thereon the Government of the Philippines
looked to the orders of the President before Congress acted
and the Acts of Congress after it assumed control. Its
organic laws are derived from the formally and legally
expressed will of the President and Congress, instead of the
popular sovereign constituency which lies upon any subject
relating to the Philippines is primarily in Congress, and when
it exercise such power its act is from the viewpoint of the
Philippines the legal equivalent of an amendment of a
constitution in the United States.
Within the limits of its authority the Government of the
Philippines is a complete governmental organism with

executive, legislative, and judicial departments exercising


the functions commonly assigned to such departments. The
separation of powers is as complete as in most
governments. In neither Federal nor State governments is
this separation such as is implied in the abstract statement
of the doctrine. For instance, in the Federal Government the
Senate exercises executive powers, and the President to
some extent controls legislation through the veto power. In a
State the veto power enables him to exercise much control
over legislation. The Governor-General, the head of the
executive department in the Philippine Government, is a
member of the Philippine Commission, but as executive he
has no veto power. The President and Congress framed the
government on the model with which Americans are
familiar, and which has proven best adapted for the
advancement of the public interests and the protection of
individual rights and priviliges.
In instituting this form of government of intention must have
been to adopt the general constitutional doctrined which are
inherent in the system. Hence, under it the Legislature must
enact laws subject to the limitations of the organic laws, as
Congress must act under the national Constitution, and the
States under the national and state constitutions. The
executive must execute such laws as are constitutionally
enacted. The judiciary, as in all governments operating
under written constitutions, must determine the validity of
legislative enactments, as well as the legality of all private
and official acts. In performing these functions it acts with
the same independence as the Federal and State judiciaries
in the United States. Under no other constitutional theory
could there be that government of laws and not of men
which is essential for the protection of rights under a free
and orderly government.
Such being the constitutional theory of the Government of

the Philippine Islands, it is apparent that the courts must


consider the question of the validity of an act of the
Philippine Commission or the Philippine Legislature, as a
State court considers an act of the State legislature. The
Federal Government exercises such powers only as are
expressly or impliedly granted to it by the Constitution of
the United States, while the States exercise all powers which
have not been granted to the central government. The
former operates under grants, the latter subject to
restrictions. The validity of an Act of Congress depends upon
whether the Constitution of the United States contains a
grant of express or implied authority to enact it. An act of a
State legislature is valid unless the Federal or State
constitution expressly or impliedly prohibits its enaction. An
Act of the legislative authority of the Philippines
Government which has not been expressly disapproved by
Congress is valid unless its subject-matter has been covered
by congressional legislation, or its enactment forbidden by
some provision of the organic laws.
The legislative power of the Government of the Philippines is
granted in general terms subject to specific limitations. The
general grant is not alone of power to legislate on certain
subjects, but to exercise the legislative power subject to the
restrictions stated. It is true that specific authority is
conferred upon the Philippine Government relative to certain
subjects of legislation, and that Congress has itself
legislated upon certain other subjects. These, however,
should be viewed simply as enactments on matters wherein
Congress was fully informed and ready to act, and not as
implying any restriction upon the local legislative authority
in other matters. (See Opinion of Atty. Gen. of U. S., April 16,
1908.)
The fact that Congress reserved the power to annul specific
acts of legislation by the Government of the Philippine tends

strongly to confirm the view that for purposes of


construction the Government of the Philippines should be
regarded as one of general instead of enumerated
legislative powers. The situation was unusual. The new
government was to operate far from the source of its
authority. To relieve Congress from the necessity of
legislating with reference to details, it was thought better to
grant general legislative power to the new government,
subject to broad and easily understood prohibitions, and
reserve to Congress the power to annul its acts if they met
with disapproval. It was therefore provided "that all laws
passed by the Government of the Philippine Islands shall be
reported to Congress, which hereby reserves the power and
authority to annul the same." (Act of Congress, July 1, 1902,
sec. 86.) This provision does not suspend the acts of the
Legislature of the Philippines until approved by Congress, or
when approved, expressly or by acquiescence, make them
the laws of Congress. They are valid acts of the Government
of the Philippine Islands until annulled. (Miners Bank vs.
Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then
ascertain whether the Legislature has been expressly or
implication forbidden to enact it. Section 3, Article IV, of the
Constitution of the United States operated only upon the
States of the Union. It has no application to the Government
of the Philippine Islands. The power to regulate foreign
commerce is vested in Congress, and by virtue of its power
to govern the territory belonging to the United States, it
may regulate foreign commerce with such territory. It may
do this directly, or indirectly through a legislative body
created by it, to which its power in this respect if delegate.
Congress has by direct legislation determined the duties
which shall be paid upon goods imported into the
Philippines, and it has expressly authorized the Government
of the Philippines to provide for the needs of commerce by

improving harbors and navigable waters. A few other


specific provisions relating to foreign commerce may be
found in the Acts of Congress, but its general regulation is
left to the Government of the Philippines, subject to the
reserved power of Congress to annul such legislation as
does not meet with its approval. The express limitations
upon the power of the Commission and Legislature to
legislate do not affect the authority with respect to the
regulation of commerce with foreign countries. Act No. 55
was enacted before Congress took over the control of the
Islands, and this act was amended by Act No. 275 after the
Spooner amendment of March 2, 1901, was passed. The
military government, and the civil government instituted by
the President, had the power, whether it be called legislative
or administrative, to regulate commerce between foreign
nations and the ports of the territory. (Cross vs. Harrison, 16
How. (U.S.), 164, 190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73,
87.) This Act has remained in force since its enactment
without annulment or other action by Congress, and must
be presumed to have met with its approval. We are
therefore satisfied that the Commission had, and the
Legislature now has, full constitutional power to enact laws
for the regulation of commerce between foreign countries
and the ports of the Philippine Islands, and that Act No. 55,
as amended by Act No. 275, is valid.
3. Whether a certain method of handling cattle is suitable
within the meaning of the Act can not be left to the
judgment of the master of the ship. It is a question which
must be determined by the court from the evidence. On
December 2, 1908, the defendant Bull brought into and
disembarked in the port and city of Manila certain cattle,
which came from the port of Ampieng, Formosa, without
providing suitable means for securing said animals while in
transit, so as to avoid cruelty and unnecessary suffering to
said animals, contrary to the provisions of section 1 of Act

No. 55, as amended by section 1 of Act No. 275. The trial


court found the following facts, all of which are fully
sustained by the evidence:
That the defendant, H. N. Bull, as captain and master of the
Norwegian steamer known as the Standard, for a period of
six months or thereabouts prior to the 2d day of December,
1908, was engaged in the transportation of cattle and
carabaos from Chines and Japanese ports to and into the
city of Manila, Philippine Islands.
That on the 2d day of December, 1908, the defendant, as
such master and captain as aforesaid, brought into the city
of Manila, aboard said ship, a large number of cattle, which
ship was anchored, under the directions of the said
defendant, behind the breakwaters in front of the city of
Manila, in Manila Bay, and within the jurisdiction of this
court; and that fifteen of said cattle then and there had
broken legs and three others of said cattle were dead,
having broken legs; and also that said cattle were
transported and carried upon said ship as aforesaid by the
defendant, upon the deck and in the hold of said ship,
without suitable precaution and care for the transportation
of said animals, and to avoid danger and risk to their lives
and security; and further that said cattle were so
transported abroad said ship by the defendant and brought
into the said bay, and into the city of Manila, without any
provisions being made whatever upon said decks of said
ship and in the hold thereof to maintain said cattle in a
suitable condition and position for such transportation.
That a suitable and practicable manner in which to transport
cattle abroad steamship coming into Manila Bay and
unloading in the city of Manila is by way of individual stalls
for such cattle, providing partitions between the cattle and
supports at the front sides, and rear thereof, and cross-

cleats upon the floor on which they stand and are


transported, of that in case of storms, which are common in
this community at sea, such cattle may be able to stand
without slipping and pitching and falling, individually or
collectively, and to avoid the production of panics and
hazard to the animals on account or cattle were transported
in this case. Captain Summerville of the steamship Taming,
a very intelligent and experienced seaman, has testified, as
a witness in behalf of the Government, and stated positively
that since the introduction in the ships with which he is
acquainted of the stall system for the transportation of
animals and cattle he has suffered no loss whatever during
the last year. The defendant has testified, as a witness in his
own behalf, that according to his experience the system of
carrying cattle loose upon the decks and in the hold is
preferable and more secure to the life and comfort of the
animals, but this theory of the case is not maintainable,
either by the proofs or common reason. It can not be urged
with logic that, for instance, three hundred cattle supports
for the feet and without stalls or any other protection for
them individually can safely and suitably carried in times of
storm upon the decks and in the holds of ships; such a
theory is against the law of nature. One animal falling or
pitching, if he is untied or unprotected, might produce a
serious panic and the wounding of half the animals upon the
ship if transported in the manner found in this case.
The defendant was found guilty, and sentenced to pay a fine
of two hundred and fifty pesos, with subsidiary
imprisonment in case of insolvency, and to pay the costs.
The sentence and judgment is affirmed. So ordered.
Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ.,
concur.
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.

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.

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 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:

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

. . . 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 (thirtyfour) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the
aforesaid motion subsequently filed a petition for leave to
withdraw his appearance as amicus curiae on the ground
that the motion for leave to intervene as amici curiae was
circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed
the same "without mature deliberation and purely as a
matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed 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 AttorneyGeneral of Kansas to test the constitutionality of a statute of
the state. In disposing of the question whether or not the
state may bring the action, the Supreme Court of Kansas
said:
. . . the state is a proper party indeed, the proper party
to bring this action. The state is always interested where the
integrity of its Constitution or statutes is involved.
"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 selfdefense", 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 parte Bates, supra.) In Williams vs. State
([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the
constitutionality of the Georgia probation statute against the
contention that it attempted to delegate to the courts the
pardoning power lodged by the constitution in the governor
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 1207812086. A "pardon" is an act of grace, proceeding from the
power intrusted with the execution of the laws which
exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed
(United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a
remission of guilt (State vs. Lewis, 111 La., 693; 35 So.,

816), a forgiveness of the offense (Cook vs. Middlesex


County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49
Am. Rep., 71). "Commutation" is a remission of a part of the
punishment; a substitution of a less penalty for the one
originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12
Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N.
W., 235). A "reprieve" or "respite" is the withholding of 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. Compaia 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 selfgovernment and the propriety of leaving matters of purely
local concern in the hands of local authorities or for the
people of small communities to pass upon, 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 abovequoted are to act as such, not in the various provinces, but
in the central office known as the Probation Office
established in the Department of Justice, under the

supervision of 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.
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.

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-2044Paredes, 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-2756Araneta and Araneta and Jesus G. Barrera for
petitioners.Assistant City Fiscal Luis B. Reyes for
respondent.Claro M. Recto as amici curiae.
L-3054Claro 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-3055Claro 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-3056Claro 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. L3056 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.

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.

Be it enacted by the National Assembly of the Philippines:

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.

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

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
Assemblycall 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.
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. Taada, 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.
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.:

1. That on February 1, 1917, the provincial board of Mindoro


adopted resolution No. 25 which is as follows:

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 "nonChristians," next to compare the status of the "nonChristians" 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:

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.

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.

3. That on December 4, 1917, the provincial governor of


Mindoro issued executive order No. 2 which says:

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.

"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.

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.

"Whereas said resolution has been duly approve by the


Honorable, the Secretary of the Interior, on February 21,
1917.

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.

"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."

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.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED


STATES.

In connection with the above-quoted provisions, there


should be noted section 2759 of the same Code, which read
as follows:

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.

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.

LAW I.

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.

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 the pueblos 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
"REDUCTIONES," WHO SHALL BE "INDIOS."

IN

THE

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.

We hereby prohibit and forbid Spaniards, negroes,


mulattores, or mestizos to live to live in the reducciones and
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 indias and 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.)

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.

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 nonChristian 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 nonChristian 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 GovernorGeneral 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. LepantoBontoc, 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 sixtyseven, inclusive, of Act Numbered three hundred and eightyseven, 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.

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.

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.

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.)

C. TERMINOLOGY.

D. MEANING OF TERM "NON-CHRISTIAN."

The terms made use of by these laws, organic and statutory,


are found in varying forms.
"Uncivilized tribes" is the denomination
McKinley's instruction to the Commission.

in

President

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 nonChristian 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

If we were to follow the literal meaning of the word "nonChristian," 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 Zuiga, "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 nonChristian 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 nonChristians 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 nonChristians.
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 'nonChristians' 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 nonChristian 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 socalled 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 nonChristian 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 Avancea, 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 nonChristian 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 nonChristian 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 'nonChristians' 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.

unification with the highly civilized Christian inhabitants."


This is carried on by the adoption of the following measures:

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:

(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.

"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."

(e) Pursuance of the development of natural economic


resources, especially agriculture.

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

(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.

( 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.

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 caigins thereon.

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.

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 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 caigins 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.

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

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 Avancea, JJ., concur.

Separate Opinions
CARSON, J., concurring:
I fully concur in the reasoning and the conclusions of Justice
Malcolm as set forth in the prevailing, opinion.
The words "non-Christian' have a clear, definite and well
settled signification when used in the Philippine statutebook as a descriptive adjective, applied to "tribes," "people,"
or "inhabitants," dwelling in more or less remote districts
and provinces throughout the Islands.

results in a mode of life within the tribe, such that it is


feasible and practicable to extend to, and enforce upon its
membership
the
general
laws
and
regulations,
administrative, legislative, and judicial, which control the
conduct of the admitted civilized inhabitants of the Islands;
a made of life, furthermore, which does not find expression
in tribal customs or practices which tend to brutalize or
debauch the members of the tribe indulging in such customs
or practices, or to expose to loss or peril the lives or
property of those who may be brought in contact with
members of the tribe.

Justice Malcolm, as I think, correctly finds that these words,


as used in this connection in our statute-book, denote the
'low grace of civilization" of the individuals included in the
class to which they are applied. To this I would add that the
tests for the determination of the fact that an individual or
tribes is, or is not of the "non-Christian" are, and throughout
the period of American occupation always have been, "the
mode of life, the degree of advancement in civilization, and
connection or lack of connection with some civilized
community." (Cf. letter of Collector of Internal Revenue
dated September 17, 1910, and set out in the principal
opinion.)

So the standard of civilization to which any given number or


group of inhabitants of particular province in these Islands,
or any individual member of such a group, must be found to
have advanced, in order to remove such group or individual
from the class embraced within the statutory description of
"non-Christian," is that degree of civilization which would
naturally and normally result in the withdrawal by such
persons of permanent allegiance or adherence to a "nonChristian" tribe, had they at any time adhered to or
maintained allegiance to such a tribe; and which would
qualify them whether they reside within or beyond the
habitat of a "non-Christian" tribe, not only to maintain a
mode of life independent of a apart from that maintain by
such tribe, but a mode of life as would not be inimical to the
lives or property or general welfare of the civilized
inhabitants of the Islands with whom they are brought in
contact.

The legislative and administrative history of the Philippine


Islands clearly discloses that the standard of civilization to
which a specific tribe must be found to have advanced, to
justify its removal from the class embraces with the
descriptive term "non-Christian," as that term is used in the
Philippine statute-book, is that degree of civilization which

The contention that, in this particular case, and without


challenging the validity of the statute, the writ should issue
because of the failure to give these petitioners, as well as
the rest of the fifteen thousand Manguianes affected by the
reconcentration order, an opportunity to be heard before
any attempt was made to enforce it, begs the question and

is, of course, tantamount to a contention that there is no


authority in law for the issuance of such an order.
If the fifteen thousand manguianes affected by the order
complained of had attained that degree of civilization which
would have made it practicable to serve notice upon, and
give an opportunity for a real hearing, to all the members of
the tribe affected by the order, it may well be doubted
whether the provincial board and the Secretary of the
Interior would have been justified in its enforcement By
what proceeding known to the law, or to be specially
adopted in a particular case, could the offices of any
province provide for a genuine hearing upon a proposal to
issue a reconcentration order upon a head-hunting tribe in
the north of the Island of Luzon; or upon one of the nomadic
tribes whose habitat is in the mountain fastnesses of
Mindanao, and whose individual members have no fixed or
known place of residence, or upon the fifteen thousand
Manguianes roaming in the wilds of Mindoro.
Of course, friendly headmen or chief might and, as a rule,
should be consulted, after the practice in the United States
when tribes or groups of American Indians have been placed
upon reservations; but since non-Christian head men and
chiefs in the Philippines have no lawful authority to bind
their acts or their consent, the objection based on lack of a
hearing, would have the same force whether the issuance of
a reconcentration order was or was not preceded by a powwow of this kind.
The truth of the mater is that the power to provide for the
issuance of such orders rests upon analogous principles to
those upon which the liberty and freedom or action of
children and persons of unsound minds is restrained,
without consulting their wishes, but for their own good and
the general welfare. The power rests upon necessity, that

"great master of all things," and is properly exercised only


where certain individuals or groups of individual are found to
be of such a low grade of civilization that their own wishes
cannot be permitted to determine their mode of life or place
of residence.
The status of the non-Christian inhabitants of these Islands,
and the special and necessarily paternal attitude assume
toward them by the Insular Government is well illustrated by
the following provisions found in the Administrative Code of
1917:
SEC. 705. Special duties and purposes of Bureau (of nonChristian tribes). It shall be the duty of the Bureau of nonChristian tribes to continue the work for advancement and
liberty in favor of the regions inhabited by non-Christian
Filipinos and to foster by all adequate means and in a
systematic, rapid, and completely 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. 2116. Township and settlement fund. There shall be
maintained in the provincial treasuries of the respective
specially organized provinces a special fund to be known as
the township and settlement fund, which shall be available,
exclusively, for expenditures for the benefit of the townships
and settlements of the province, and non-Christian
inhabitants of the province, upon approval of the Secretary
of the Interior.
As I understand it, the case at bar does not raise any real
question as to the jurisdiction of the courts of these Islands
in habeas corpus proceedings, to review the action of the

administrative
authorities
in
the
enforcement
of
reconcentration orders issued, under authority of section
2145 of the Administrative Code, against a petitioner
challenging the alleged fact that he is a "non-Christian" as
that term is used in the statute. I, therefore, express no
opinion on that question at this time.

JOHNSON, J., dissenting:


I dissent. The petitioners were deprived of their liberty
without a hearing. That fact is not denied. I cannot give my
consent to any act which deprives the humblest citizen of
his just liberty without a hearing, whether he be a Christian
or non-Christian. All persons in the Philippine Islands are
entitled to a hearing, at least, before they are deprived of
their liberty.

G.R. No. L-10202 March 27, 1917


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. Moreno and
Guevara for defendants.
MORELAND, J.:
The plaintiff amended his complaint in this action after a
demurrer thereto had been sustained. No new or additional
facts have been alleged and the case stands precisely where
it stood before the amended complaint was filed. A
demurrer having been offered to the amended complaint,
that also must be sustained.chanroblesvirtualawlibrary
chanrobles virtual law library
The plaintiff still insists with great vigor that section 1 of Act
No. 1748; entitled "An Act authorizing the adjustment of
provincial and municipal boundaries and authorizing the
change of capitals of provinces and subprovinces, as may be
necessary from time to time to serve the public convenience
and interest," is in violation of the Act of Congress of July 1,
1902, in that it delegates legislative powers to the GovernorGeneral, whereas the Act of Congress referred to lodges
those powers in the Philippine
Legislature.chanroblesvirtualawlibrary chanrobles virtual law
library
Section 1 of the Act referred to provides in substance that,
whenever in the judgment of the Governor-General the

public welfare requires, he may, by executive order, enlarge,


contract, or otherwise change the boundary of any province,
subprovince, municipality, or township or other political
subdivision, or separate any such subdivision into such
portions as may be requires, merge any of such subdivisions
with another, divide, any province into one or more
subdivisions as may be required, name any new subdivision
so created, change the seat of government within any
subdivision existing or created thereunder, to such place
therein as the public interests require, and shall fix in such
executive order the date when the change, merger,
separation or other action shall take effect. The section also
provides that whenever the Governor-General creates a new
political subdivision he shall appoint such officers for the
new subdivision with such powers and duties as may be
required by the existing provisions of law applicable to the
case and fix their salaries; and that such appointees shall
hold office until their successors are appointed or elected
and qualify. Successors to the elective offices shall be
elected at the next general election following such
appointment.chanroblesvirtualawlibrary chanrobles virtual
law library
The contention of the plaintiff is not well founded. The
delegation of the power referred to on the Governor-General
does not involve an abdication of legislative functions on the
part of the legislature with regard to the particular subjectmatter with which it authorizes the Governor-General to
deal. It is simply a transference of certain details with
respect to provinces, municipalities, and townships, many of
them newly created, and all of them subject to more or less
rapid change both in development and centers of
population, the proper regulation of which might require not
only prompt action but action of such a detailed character
as not to permit the legislative body, as such, to take it
efficiently. We find no provision of the Act applicable so far

as it touches this case which is in violation of the Act of


Congress of July 1, 1902.chanroblesvirtualawlibrary
chanrobles virtual law library
The demurrer is sustained and the complaint is finally
dismissed, with costs. So ordered.chanroblesvirtualawlibrary
chanrobles virtual law library
Torres, Carson, Trent and Araullo, JJ., concur.

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:

G.R. No. 47065

June 26, 1940

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 Osmea, 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
Osmea, 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 Compaia 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 & Osmea, 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. Seor 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 compaia 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. 910.) 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.

General Pompeyo Diaz and Solicitor Felix V. Makasiar for


respondent.

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.

REYES, J.:

Avancea, C.J., Imperial, Diaz, Concepcion and Moran, JJ.,


concur.

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.

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

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,
governmentcontrolled 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.

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 QuisumbingFernando 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 twothirds 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 Binagonan (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 (Binagonan), 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 Binagonan [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 transit upon 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 legislative question
"(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.

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 ............................................................
1 25 watt bulb per month ............................................................
1 40 watt bulb per month ............................................................
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.

1 50 watt bulb per month ............................................................


1 60 watt bulb per month ............................................................
1 75 watt bulb per month ............................................................
1 80 watt bulb per month ............................................................
1 100 watt bulb per month ............................................................
1 150 watt bulb per month ............................................................
1 200 watt bulb per month ............................................................
METER RATE
For the first 15
For the first 15 Kw. hrs. ............................................................

For the next 35 Kw. hrs. ............................................................


For the next 50 Kw. hrs. ............................................................

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.1wph1.t

For all over 100 Kw. hrs. ............................................................


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.

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:

reduction of its rates to the extent of its excess revenue be


put into effect immediately.

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%.

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

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

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 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 quasijudicial, 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.

You might also like