EQUAL PROTECTION

Two Aspects
1. Yick Wo vs Hopkins ( 118 US 356)

U.S. Supreme Court

Yick Wo v. Hopkins, 118 U.S. 356 (1886)
Submitted April 14, 1886
Decided May 10, 1886
118 U.S. 356
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES
FOR THE DISTRICT OF CALIFORNIA
Syllabus
In a suit brought to this court from a State court which involves the constitutionality of
ordinances made by a municipal corporation in the State, this court will, when
necessary, put its own independent construction upon the ordinances.
A municipal ordinance to regulate the carrying on of public laundries within the limits of
the municipality violates the provisions of the Constitution of the United States if it
confers upon the municipal authorities arbitrary power, at their own will, and without
regard to discretion in the legal sense of the term, to give or withhold consent as to
persons or places, without regard to the competency of the persons applying, or the
propriety of the place selected, for the carrying on of the business.
An administration of a municipal ordinance for the carrying on of a lawful business
within the corporate limits violates the provisions of the Constitution of the United States
if it makes arbitrary and unjust discriminations, founded on differences of race between
persons otherwise in similar circumstances.
The guarantees of protection contained in the Fourteenth Amendment to the
Constitution extend to all persons within the territorial jurisdiction of the United States,
without regard to differences of race, of color, or of nationality.

Those subjects of the Emperor of China who have the right to temporarily or
permanently reside within the United States, are entitled to enjoy the protection
guaranteed by the Constitution and afforded by the laws.
These two cases were argued as one, and depended upon precisely the same state of
facts; the first coming here upon a writ of error to the Supreme Court of the State of
California, the second on appeal from the Circuit Court of the United States for that
district. The plaintiff in error, Yick Wo, on August 4, 1885, petitioned the Supreme Court
of California for a writ of habeas corpus, alleging that he was illegally deprived of his
personal
Page 118 U. S. 357
liberty by the defendant as sheriff of the city and county of San Francisco.
The sheriff made return to the writ that he held the petitioner in custody by virtue of a
sentence of the Police Judges Court, No. 2, of the city and county of San Francisco,
whereby he was found guilty of a violation of certain ordinances of the board of
supervisors of that county, and adjudged to pay a fine of $10, and, in default of
payment, be imprisoned in the county jail at the rate of one day for each dollar of fine
until said fine should be satisfied, and a commitment in consequence of nonpayment of
said fine.
The ordinances for the violation of which he had been found guilty were set out as
follows:
Order No. 156, passed May 26, 1880, prescribing the kind of buildings in which
laundries may be located.
"The people of the city and county of San Francisco do ordain as follows:"
"SEC. 1. It shall be unlawful, from and after the passage of this order, for any person or
persons to establish, maintain, or carry on a laundry within the corporate limits of the
city and county of San Francisco without having first obtained the consent of the board
of supervisors, except the same be located in a building constructed either of brick or
stone."
"SEC. 2. It shall be unlawful for any person to erect, build, or maintain, or cause to be
erected, built, or maintained, over or upon the roof of any building now erected or which

may hereafter be erected within the limits of said city and county, any scaffolding without
first obtaining the written permission of the board of supervisors, which permit shall
state fully for what purpose said scaffolding is to be erected and used, and such
scaffolding shall not be used for any other purpose than that designated in such permit."
"SEC. 3. Any person who shall violate any of the provisions of this order shall be
deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a
fine of not more than one thousand dollars, or by imprisonment in the county jail not
more than six months, or by both such fine and imprisonment. "
Page 118 U. S. 358
Order No. 1587, passed July 28, 1880, the following section:
"SEC. 68. It shall be unlawful, from and after the passage of this order, for any person or
persons to establish, maintain, or carry on a laundry within the corporate limits of the
city and county of San Francisco without having first obtained the consent of the board
of supervisors, except the same be located in a building constructed either of brick or
stone."
The following facts were also admitted on the record: that petitioner is a native of China
and came to California in 1861, and is still a subject of the Emperor of China; that he
has been engaged in the laundry business in the same premises and building for
twenty-two years last past; that he had a license from the board of fire wardens, dated
March 3, 1884, from which it appeared
"that the above described premises have been inspected by the board of fire wardens,
and upon such inspection said board found all proper arrangements for carrying on the
business; that the stoves, washing and drying apparatus, and the appliances for heating
smoothing irons are in good condition, and that their use is not dangerous to the
surrounding property from fire, and that all proper precautions have been taken to
comply with the provisions of order No. 1617, defining 'the fire limits of the city and
county of San Francisco and making regulations concerning the erection and use of
buildings in said city and county,' and of order No. 1670, 'prohibiting the kindling,
maintenance, and use of open fires in houses;' that he had a certificate from the health
officer that the same premises had been inspected by him, and that he found that they
were properly and sufficiently drained, and that all proper arrangements for carrying on
the business of a laundry, without injury to the sanitary condition of the neighborhood,

had been complied with; that the city license of the petitioner was in force and expired
October 1st, 1885, and that the petitioner applied to the board of supervisors, June 1st,
1885, for consent of said board to maintain and carry on his laundry, but that said board,
on July 1st, 1885, refused said consent."
It is also admitted to be true, as alleged in the petition, that, on February 24, 1880,
"there were about 320 laundries in the city and county of San Francisco, of which
Page 118 U. S. 359
about 240 were owned and conducted by subjects of China, and of the whole
number,viz., 320, about 310 were constructed of wood, the same material that
constitutes nine-tenths of the houses in the city of San Francisco. The capital thus
invested by the subjects of China was not less than two hundred thousand dollars, and
they paid annually for rent, license, taxes, gas, and water about one hundred and eighty
thousand dollars."
It was alleged in the petition, that
"your petitioner and more than one hundred and fifty of his countrymen have been
arrested upon the charge of carrying on business without having such special consent,
while those who are not subjects of China, and who are conducting eighty odd laundries
under similar conditions, are left unmolested and free to enjoy the enhanced trade and
profits arising from this hurtful and unfair discrimination. The business of your petitioner,
and of those of his countrymen similarly situated, is greatly impaired, and in many cases
practically ruined, by this system of oppression to one kind of men and favoritism to all
others."
The statement therein contained as to the arrest, &c., was admitted to be true, with the
qualification only that the eighty odd laundries referred to are in wooden buildings
without scaffolds on the roofs.
It was also admitted
"that petitioner and 200 of his countrymen similarly situated petitioned the board of
supervisors for permission to continue their business in the various houses which they
had been occupying and using for laundries for more than twenty years, and such

petitions were denied, and all the petitions of those who were not Chinese, with one
exception of Mrs. Mary Meagles, were granted."
By section 2 of article I of the Constitution of California, it is provided that
"any county, city town, or township may make and enforce within its limits all such local,
police, sanitary, and other regulations as are not in conflict with general laws."
By section 74 of the Act of April 19, 1856, usually known as the consolidation act, the
board of supervisors is empowered, among other things,
"to provide by regulation for the prevention and summary removal of nuisances to public
health, the
Page 118 U. S. 360
prevention of contagious diseases; . . . to prohibit the erection of wooden buildings
within any fixed limits where the streets shall have been established and graded; . . . to
regulate the sale, storage, and use of gunpowder or other explosive or combustible
materials and substances, and make all needful regulations for protection against fire; to
make such regulations concerning the erection and use of buildings as may be
necessary for the safety of the inhabitants."
The Supreme Court of California, in the opinion pronouncing the judgment in this case,
said:
"The board of supervisors, under the several statutes conferring authority upon them,
has the power to prohibit or regulate all occupations which are against good morals,
contrary to public order and decency, or dangerous to the public safety. Clothes washing
is certainly not opposed to good morals or subversive of public order or decency, but,
when conducted in given localities, it may be highly dangerous to the public safety. Of
this fact, the supervisors are made the judges, and, having taken action in the premises,
we do not find that they have prohibited the establishment of laundries, but that they
have, as they well might do, regulated the places at which they should be established,
the character of the buildings in which they are to be maintained, etc. The process of
washing is not prohibited by thus regulating the places at which and the surroundings by
which it must be exercised. The order No. 1569 and section 68 of order No. 1587 are

not in contravention of common right or unjust, unequal, partial, or oppressive in such

sense as authorizes us in this proceeding to pronounce them invalid."
After answering the position taken in behalf of the petitioner, that the ordinances in
question had been repealed, the court added:
"We have not deemed it necessary to discuss the question in the light of supposed
infringement of petitioner's rights under the Constitution of the United States, for the
reason that we think the principles upon which contention on that head can be based
have in effect been set at rest by the cases of Barbier v. Connolly,113 U. S. 27,
andSoon Hing v. Crowley,113 U. S. 703."
The writ was accordingly discharged, and the prisoner remanded.
Page 118 U. S. 361
In the other case, the appellant, Wo Lee, petitioned for his discharge from an alleged
illegal imprisonment upon a state of facts shown upon the record precisely similar to
that in the case of Yick Wo. In disposing of the application, the learned Circuit Judge,
Sawyer, in his opinion, 26 Fed.Rep. 471, after quoting the ordinance in question,
proceeded at length as follows:
"Thus, in a territory some ten miles wide by fifteen or more miles long, much of it still
occupied as mere farming and pasturage lands and much of it unoccupied sand banks,
in many places without a building within a quarter or half a mile of each other, including
the isolated and almost wholly unoccupied Goat Island, the right to carry on this, when
properly guarded, harmless and necessary occupation, in a wooden building is not
made to depend upon any prescribed conditions giving a right to anybody complying
with them, but upon the consent or arbitrary will of the board of supervisors. In threefourths of the territory covered by the ordinance, there is no more need of prohibiting or
regulating laundries than if they were located in any portion of the farming regions of the
State. Hitherto, the regulation of laundries has been limited to the thickly settled portions
of the city. Why this unnecessary extension of the limits affected, if not designed to
prevent the establishment of laundries, after a compulsory removal from their present
locations, within practicable reach of the customers or their proprietors? And the
uncontradicted petition shows that all Chinese applications are, in fact, denied, and
those of Caucasians granted -- thus, in fact, making the discriminations in the
administration of the ordinance, which its terms permit. The fact that the right to give

consent is reserved in the ordinance shows that carrying on the laundry business in
wooden buildings is not deemed, of itself, necessarily dangerous. It must be apparent to
every well informed mind that a fire, properly guarded, for laundry purposes, in a
wooden building, is just as necessary, and no more dangerous, than a fire for cooking
purposes or for warming a house. If the ordinance under consideration is valid, then the
board of supervisors can pass a valid ordinance preventing the maintenance, in a
wooden
Page 118 U. S. 362
building, of a cooking stove, heating apparatus, or a restaurant, within the boundaries of
the city and county of San Francisco, without the consent of that body, arbitrarily given
or withheld, as their prejudices or other motives may dictate. If it is competent for the
board of supervisors to pass a valid ordinance prohibiting the inhabitants of San
Francisco from following any ordinary, proper, and necessary calling within the limits of
the city and county except at its arbitrary and unregulated discretion and special
consent, and it can do so if this ordinance is valid, then it seems to us that there has
been a wide departure from the principles that have heretofore been supposed to guard
and protect the rights, property, and liberties of the American people. And if, by an
ordinance, general in its terms and form like the one in question, by reserving an
arbitrary discretion in the enacting body to grant or deny permission to engage in a
proper and necessary calling, a discrimination against any class can be made in its
execution, thereby evading and, in effect, nullifying the provisions of the National
Constitution, then the insertion of "
brk:
provisions to guard the rights of every class and person in that instrument was a vain
and futile act. The effect of the execution of this ordinance in the manner indicated in the
record would seem to be necessarily to close up the many Chinese laundries now
existing, or compel their owners to pull down their present buildings and reconstruct of
brick or stone, or to drive them outside the city and county of San Francisco to the
adjoining counties, beyond the convenient reach of customers, either of which results
would be little short of absolute confiscation of the large amount of property shown to be
now, and to have been for a long time, invested in these occupations. If this would not
be depriving such parties of their property without due process of law, it would be
difficult to say what would effect that prohibited result. The necessary tendency, if not

the specific purpose, of this ordinance, and of enforcing it in the manner indicated in the
record, is to drive out of business all the numerous small laundries, especially those
owned by Chinese, and give a monopoly of the business to the large institutions
established and carried on by means of large associated Caucasian capital. If the facts
appearing on the face
Page 118 U. S. 363
of the ordinance, on the petition and return, and admitted in the case and shown by the
notorious public and municipal history of the times indicate a purpose to drive out the
Chinese laundrymen, and not merely to regulate the business for the public safety, does
it not disclose a case of violation of the provisions of the Fourteenth Amendment to the
National Constitution, and of the treaty between the United States and China, in more
than one particular? . . . If this means prohibition of the occupation and destruction of
the business and property of the Chinese laundrymen in San Francisco -- and it seems
to us this must be the effect of executing the ordinance -- and not merely the proper
regulation of the business, then there is discrimination and a violation of other highly
important rights secured by the Fourteenth Amendment and the treaty. That it does
mean prohibition as to the Chinese it seems to us must be apparent to every citizen of
San Francisco who has been here long enough to be familiar with the cause of an
active and aggressive branch of public opinion and of public notorious events. Can a
court be blind to what must be necessarily known to every intelligent person in the
State? See Ah Kow v. Nunan, 5 Sawyer, 552, 560;Sparrow v. Strong, 3 Wall. 97, 70 U.
S. 104; Brown v. Piper,91 U. S. 37, 91 U. S. 42.
But, in deference to the decision of the Supreme Court of California in the case ofYick
Wo, and contrary to his own opinion as thus expressed, the circuit judge discharged the
writ and remanded the prisoner.
Page 118 U. S. 365
Mr. JUSTICE MATTHEWS delivered the opinion of the court.
In the case of the petitioner, brought here by writ of error to the Supreme Court of
California, our jurisdiction is limited to the question whether the plaintiff in error has
been denied a right in violation of the Constitution, laws, or treaties of the United States.
The question whether his imprisonment is illegal under the constitution and lass of the
State is not open to us. And although that question might have been considered

Page 118 U. S. 366

in the Circuit Court in the application made to it, and by this court on appeal from its
order, yet judicial propriety is best consulted by accepting the judgment of the State
court upon the points involved in that inquiry.
That, however, does not preclude this court from putting upon the ordinances of the
supervisors of the county and city of San Francisco an independent construction, for the
determination of the question whether the proceedings under these ordinances and in
enforcement of them are in conflict with the Constitution and laws of the United States
necessarily involves the meaning of the ordinance, which, for that purpose, we are
required to ascertain and adjudge.
We are consequently constrained, at the outset, to differ from the Supreme Court of
California upon the real meaning of the ordinances in question. That court considered
these ordinances as vesting in the board of supervisors a not unusual discretion in
granting or withholding their assent to the use of wooden buildings as laundries, to be
exercised in reference to the circumstances of each case with a view to the protection of
the public against the dangers of fire. We are not able to concur in that interpretation of
the power conferred upon the supervisors. There is nothing in the ordinances which
points to such a regulation of the business of keeping and conducting laundries. They
seem intended to confer, and actually do confer, not a discretion to be exercised upon a
consideration of the circumstances of each case, but a naked and arbitrary power to
give or withhold consent not only as to places, but as to persons. So that, if an applicant
for such consent, being in every way a competent and qualified person and having
complied with every reasonable condition demanded by any public interest, should,
failing to obtain the requisite consent of the supervisors to the prosecution of his
business, apply for redress by the judicial process of mandamus to require the
supervisors to consider and act upon his case, it would be a sufficient answer for them
to say that the law had conferred upon them authority to withhold their assent without
reason and without responsibility. The power given to them is not confided to their
discretion in the legal sense of that term, but is granted
Page 118 U. S. 367
to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint.

This erroneous view of the ordinances in question led the Supreme Court of California
into the further error of holding that they were justified by the decisions of this court in
the cases of Barbier v. Connolly,113 U. S. 27, and Soon Hing v. Crowley,113 U. S. 703.
In both of these cases, the ordinance involved was simply a prohibition to carry on the
washing and ironing of clothes in public laundries and washhouses within certain
prescribed limits of the city and county of San Francisco from ten o'clock at night until
six o'clock in the morning of the following day. This provision was held to be purely a
police regulation within the competency of any municipality possessed of the ordinary
powers belonging to such bodies, a necessary measure of precaution in a city
composed largely of wooden buildings like San Francisco, in the application of which
there was no invidious discrimination against anyone within the prescribed limits, all
persons engaged in the same business being treated alike, and subject to the same
restrictions and entitled to the same privileges under similar conditions.
For these reasons, that ordinance was adjudged not to be within the prohibitions of the
Fourteenth Amendment to the Constitution of the United States, which, it was said in the
first case cited,
"undoubtedly intended not only that there should be no arbitrary deprivation of life or
liberty, or arbitrary spoliation of property, but that equal protection and security should
be given to all under like circumstances in the enjoyment of their personal and civil
rights; that all persons should be equally entitled to pursue their happiness and acquire
and enjoy property; that they should have like access to the courts of the country for the
protection of their persons and property, the prevention and redress of wrongs, and the
enforcement of contracts; that no impediment should be interposed to the pursuits of
anyone except as applied to the same pursuits by others under like circumstances; that
no greater burdens should be laid upon one than are laid upon others in the same
calling and condition; and that, in the administration of criminal justice no different or
higher punishment should be imposed upon
Page 118 U. S. 368
one than such as is prescribed to all for like offences. . . . Class legislation,
discriminating against some and favoring others, is prohibited, but legislation which, in
carrying out a public purpose, is limited in its application if, within the sphere of its
operation, it affects alike all persons similarly situated, is not within the amendment."

The ordinance drawn in question in the present case is of a very different character. It
does not prescribe a rule and conditions for the regulation of the use of property for
laundry purposes to which all similarly situated may conform. It allows without restriction
the use for such purposes of buildings of brick or stone, but, as to wooden buildings,
constituting nearly all those in previous use, it divides the owners or occupiers into two
classes, not having respect to their personal character and qualifications for the
business, nor the situation and nature and adaptation of the buildings themselves, but
merely by an arbitrary line, on one side of which are those who are permitted to pursue
their industry by the mere will and consent of the supervisors, and on the other those
from whom that consent is withheld at their mere will and pleasure. And both classes
are alike only in this, that they are tenants at will, under the supervisors, of their means
of living. The ordinance, therefore, also differs from the not unusual case where
discretion is lodged by law in public officers or bodies to grant or withhold licenses to
keep taverns, or places for the sale of spirituous liquors, and the like, when one of the
conditions is that the applicant shall be a fit person for the exercise of the privilege,
because, in such cases, the fact of fitness is submitted to the judgment of the officer,
and calls for the exercise of a discretion of a judicial nature.
The rights of the petitioners, as affected by the proceedings of which they complain, are
not less because they are aliens and subjects of the Emperor of China. By the third
article of the treaty between this Government and that of China, concluded November
17, 1880, 22 Stat. 827, it is stipulated:
"If Chinese laborers, or Chinese of any other class, now either permanently or
temporarily residing in the territory of the United States, meet with ill treatment at the
hands of any other persons,
Page 118 U. S. 369
the Government of the United States will exert all its powers to devise measures for
their protection, and to secure to them the same rights, privileges, immunities and
exemptions as may be enjoyed by the citizens or subjects of the most favored nation,
and to which they are entitled by treaty."
The Fourteenth Amendment to the Constitution is not confined to the protection of
citizens. It says:

"Nor shall any State deprive any person of life, liberty, or property without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws."
These provisions are universal in their application to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality, and the
equal protection of the laws is a pledge of the protection of equal laws. It is accordingly
enacted by 1977 of the Revised Statutes, that
"all persons within the jurisdiction of the United States shall have the same right in every
State and Territory to make and enforce contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
The questions we have to consider and decide in these cases, therefore, are to be
treated as invoking the rights of every citizen of the United States equally with those of
the strangers and aliens who now invoke the jurisdiction of the court.
It is contended on the part of the petitioners that the ordinances for violations of which
they are severally sentenced to imprisonment are void on their face as being within the
prohibitions of the Fourteenth Amendment, and, in the alternative, if not so, that they are
void by reason of their administration, operating unequally so as to punish in the present
petitioners what is permitted to others as lawful, without any distinction of circumstances
-- an unjust and illegal discrimination, it is claimed, which, though not made expressly by
the ordinances, is made possible by them.
When we consider the nature and the theory of our institutions of government, the
principles upon which they are supposed
Page 118 U. S. 370
to rest, and review the history of their development, we are constrained to conclude that
they do not mean to leave room for the play and action of purely personal and arbitrary
power. Sovereignty itself is, of course, not subject to law, for it is the author and source
of law; but, in our system, while sovereign powers are delegated to the agencies of
government, sovereignty itself remains with the people, by whom and for whom all
government exists and acts. And the law is the definition and limitation of power. It is,
indeed, quite true that there must always be lodged somewhere, and in some person or

body, the authority of final decision, and in many cases of mere administration, the
responsibility is purely political, no appeal lying except to the ultimate tribunal of the
public judgment, exercised either in the pressure of opinion or by means of the suffrage.
But the fundamental rights to life, liberty, and the pursuit of happiness, considered as
individual possessions, are secured by those maxims of constitutional law which are the
monuments showing the victorious progress of the race in securing to men the
blessings of civilization under the reign of just and equal laws, so that, in the famous
language of the Massachusetts Bill of Rights, the government of the commonwealth
"may be a government of laws, and not of men." For the very idea that one man may be
compelled to hold his life, or the means of living, or any material right essential to the
enjoyment of life at the mere will of another seems to be intolerable in any country
where freedom prevails, as being the essence of slavery itself.
There are many illustrations that might be given of this truth, which would make
manifest that it was self-evident in the light of our system of jurisprudence. The case of
the political franchise of voting is one. Though not regarded strictly as a natural right,
but as a privilege merely conceded by society according to its will under certain
conditions, nevertheless it is regarded as a fundamental political right, because
preservative of all rights.
In reference to that right, it was declared by the Supreme Judicial Court of
Massachusetts, in Capen v. Foster, 12 Pick. 485, 489, in the words of Chief Justice
Shaw,
"that, in all
Page 118 U. S. 371
cases where the constitution has conferred a political right or privilege, and where the
constitution has not particularly designated the manner in which that right is to be
exercised, it is clearly within the just and constitutional limits of the legislative power to
adopt any reasonable and uniform regulations, in regard to the time and mode of
exercising that right, which are designed to secure and facilitate the exercise of such
right, in a prompt, orderly, and convenient manner;"
nevertheless,

"such a construction would afford no warrant for such an exercise of legislative power
as, under the pretence and color of regulating, should subvert or injuriously restrain the
right itself."
It has accordingly been held generally in the States that, whether the particular
provisions of an act of legislation establishing means for ascertaining the qualifications
of those entitled to vote, and making previous registration in lists of such, a condition
precedent to the exercise of the right were or were not reasonable regulations, and
accordingly valid or void, was always open to inquiry as a judicial question. See Daggett
v. Hudson, 1 Western Reporter 9, decided by the Supreme Court of Ohio, where many
of the cases are collected; Monroe v. Collins, 17 Ohio St. 665.
The same principle has been more freely extended to the quasi-legislative acts of
inferior municipal bodies, in respect to which it is an ancient jurisdiction of judicial
tribunals to pronounce upon the reasonableness and consequent validity of their by
laws. In respect to these, it was the doctrine that every bylaw must be reasonable, not
inconsistent with the charter of the corporation, nor with any statute of Parliament, nor
with the general principles of the common law of the land, particularly those having
relation to the liberty of the subject or the rights of private property. Dillon on Municipal
Corporations, 3d ed., 319, and cases cited in notes. Accordingly, in the case of The
State of Ohio ex rel. &c. v. The Cincinnati Gas-Light and Coke Company, 18 Ohio St.
232, 300, an ordinance of the city council purporting to fix the price to be charged for
gas, under an authority of law giving discretionary power to do so, was held to be bad, if
passed in bad faith, fixing an unreasonable price, for the fraudulent purpose of
compelling
Page 118 U. S. 372
the gas company to submit to an unfair appraisement of their works. And a similar
question, very pertinent to the one in the present cases, was decided by the Court of
Appeals of Maryland in the case of the City of Baltimore v. Radecke, 49 Maryland 217.
In that case, the defendant had erected and used a steam engine in the prosecution of
his business as a carpenter and box-maker in the city of Baltimore, under a permit from
the mayor and city council, which contained a condition that the engine was "to be
removed after six months' notice to that effect from the mayor." After such notice and
refusal to conform to it, a suit was instituted to recover the penalty provided by the

ordinance, to restrain the prosecution of which a bill in equity was filed. The court
holding the opinion that
"there may be a case in which an ordinance, passed under grants of power like those
we have cited, is so clearly unreasonable, so arbitrary, oppressive, or partial, as to raise
the presumption that the legislature never intended to confer the power to pass it, and to
justify the courts in interfering and setting it aside as a plain abuse of authority,"
it proceeds to speak, with regard to the ordinance in question, in relation to the use of
steam engines, as follows:
"It does not profess to prescribe regulations for their construction, location, or use, nor
require such precautions and safeguards to be provided by those who own and use
them as are best calculated to render them less dangerous to life and property, nor
does it restrain their use in box factories and other similar establishments within certain
defined limits, nor in any other way attempt to promote their safety and security without
destroying their usefulness. But it commits to the unrestrained will of a single public
officer the power to notify every person who now employs a steam engine in the
prosecution of any business in the city of Baltimore to cease to do so, and, by providing
compulsory fines for every day's disobedience of such notice and order of removal,
renders his power over the use of steam in that city practically absolute, so that he may
prohibit its use altogether. But if he should not choose to do this, but only to act in
particular cases, there is nothing in the ordinance to guide or control his action. It lays
down no
Page 118 U. S. 373
rules by which its impartial execution can be secured or partiality and oppression
prevented. It is clear that giving and enforcing these notices may, and quite likely will,
bring ruin to the business of those against whom they are directed, while others, from
whom they are withheld, may be actually benefited by what is thus done to their
neighbors; and, when we remember that this action or nonaction may proceed from
emnity or prejudice, from partisan zeal or animosity, from favoritism and other improper
influences and motives easy of concealment and difficult to be detected and exposed, it
becomes unnecessary to suggest or to comment upon the injustice capable of being
brought under cover of such a power, for that becomes apparent to everyone who gives
to the subject a moment's consideration. In fact, an ordinance which clothes a single

individual with such power hardly falls within the domain of law,and we are constrained
to pronounce it inoperative and void."
This conclusion, and the reasoning on which it is based, are deductions from the face of
the ordinance, as to its necessary tendency and ultimate actual operation. In the
present cases, we are not obliged to reason from the probable to the actual, and pass
upon the validity of the ordinances complained of, as tried merely by the opportunities
which their terms afford, of unequal and unjust discrimination in their administration. For
the cases present the ordinances in actual operation, and the facts shown establish an
administration directed so exclusively against a particular class of persons as to warrant
and require the conclusion that, whatever may have been the intent of the ordinances
as adopted, they are applied by the public authorities charged with their administration,
and thus representing the State itself, with a mind so unequal and oppressive as to
amount to a practical denial by the State of that equal protection of the laws which is
secured to the petitioners, as to all other persons, by the broad and benign provisions of
the Fourteenth Amendment to the Constitution of the United States. Though the law
itself be fair on its face and impartial in appearance, yet, if it is applied and administered
by public authority with an evil eye and an unequal
Page 118 U. S. 374
hand, so as practically to make unjust and illegal discriminations between persons in
similar circumstances, material to their rights, the denial of equal justice is still within the
prohibition of the Constitution. This principle of interpretation has been sanctioned by
this court in Henderson v. Mayor of New York,92 U. S. 259; Chy Lung v. Freeman,92 U.
S. 275; Ex parte Virginia,100 U. S. 339; Neal v. Delaware,103 U. S. 370, and SSoon
Hing v. Crowley,113 U. S. 703.
The present cases, as shown by the facts disclosed in the record, are within this class.
It appears that both petitioners have complied with every requisite deemed by the law or
by the public officers charged with its administration necessary for the protection of
neighboring property from fire or as a precaution against injury to the public health. No
reason whatever, except the will of the supervisors, is assigned why they should not be
permitted to carry on, in the accustomed manner, their harmless and useful occupation,
on which they depend for a livelihood. And while this consent of the supervisors is
withheld from them and from two hundred others who have also petitioned, all of whom
happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to

carry on the same business under similar conditions. The fact of this discrimination is
admitted. No reason for it is shown, and the conclusion cannot be resisted that no
reason for it exists except hostility to the race and nationality to which the petitioners
belong, and which, in the eye of the law, is not justified. The discrimination is, therefore,
illegal, and the public administration which enforces it is a denial of the equal protection
of the laws and a violation of the Fourteenth Amendment of the Constitution. The
imprisonment of the petitioners is, therefore, illegal, and they must be discharged. To
this end,
The judgment of the Supreme Court of California in the case of Yick Wo, and that of the
Circuit Court of the United States for the District of California in the case of Wo Lee, are
severally reversed, and the cases remanded, each to the proper court, with directions to
discharge the petitioners from custody and imprisonment.
2. People vs Vera (65 Phil 56)
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 forcertiorari in
November, 1936. This court, on
November 24, 1936, denied the petition subsequently filed
by the defendant for leave to file a second alternative motion for reconsideration or new trial and
thereafter remanded the case to the court of origin for execution of the judgment.
The instant proceedings have to do with the application for probation filed by the herein respondent
Mariano Cu Unjieng on
November 27, 1936, before the trial court, under the provisions of Act
No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal
record and that he would observe good conduct in the future. The Court of First Instance of Manila,
Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of
Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an
undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI,

Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding
that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y
que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and
concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition
for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia
social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario
acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar
en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia
de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes,
en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto
judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid
motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of
counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a
petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for
leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation
and purely as a matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance
of an order of execution of the judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene
as amici curiaeaforementioned, 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
ofcertiorari 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
warrantobrought 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 ofYu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the
present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided in original proceedings in

prohibition." This court decided to take up the constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to
the Supreme Court of the United States which reversed the judgment of this court and held that the
Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme
court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior
tribunals or persons, and original jurisdiction over courts of first instance, when such courts
are exercising functions without or in excess of their jurisdiction. It has been held by that
court that the question of the validity of the criminal statute must usually be raised by a
defendant in the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a
new act seriously affected numerous persons and extensive property rights, and was likely to
cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue
to the act's validity promptly before it and decide in the interest of the orderly administration
of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52
Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs.
Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas.,
1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37
Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad powers in prohibition granted to
that court under the Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The
general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie
whether the inferior court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an
unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50
C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs.
Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec.,
669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No.
4221 which prescribes in detailed manner the procedure for granting probation to accused persons
after their conviction has become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution of the sentence is
recognized and, according to a number of state courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],

115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States
expressed the opinion that under the common law the power of the court was limited to temporary
suspension, and brushed aside the contention as to inherent judicial power saying, through Chief
Justice White:
Indisputably under our constitutional system the right to try offenses against the criminal laws
and upon conviction to impose the punishment provided by law is judicial, and it is equally to
be conceded that, in exerting the powers vested in them on such subject, courts inherently
possess ample right to exercise reasonable, that is, judicial, discretion to enable them to
wisely exert their authority. But these concessions afford no ground for the contention as to
power here made, since it must rest upon the proposition that the power to enforce begets
inherently a discretion to permanently refuse to do so. And the effect of the proposition urged
upon the distribution of powers made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to define and fix the punishment for
crime is legislative and includes the right in advance to bring within judicial discretion, for the
purpose of executing the statute, elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed
by law and ascertained according to the methods by it provided belongs to the executive
department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of
First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion
that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in
the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not
lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional
issue has been squarely presented not only before this court by the petitioners but also before the
trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of
the court below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The respondent
judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the constitutionality of a statute by one
who has no interest in defeating it because his rights are not affected by its operation. The
respondent judge further stated that it may not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge,

conscious of the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is
constitutional. While therefore, the court a quo admits that the constitutional question was raised
before it, it refused to consider the question solely because it was not raised by a proper party.
Respondents herein reiterates this view. The argument is advanced that the private prosecution has
no personality to appear in the hearing of the application for probation of defendant Mariano Cu
Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is
true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity,
so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in
the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also,Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the proceedings, either in the trial court or on
appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on
the constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville
& B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214
Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.)
And it has been held that a constitutional question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57
S., 870.) As to the power of this court to consider the constitutional question raised for the first time
before this court in these proceedings, we turn again and point with emphasis to the case of Yu
Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is not the proper party to raise the constitutional
question here a point we do not now have to decide we are of the opinion that the People of
the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a
proper party in the present proceedings. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if
Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state
can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277

U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73
Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining
corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer
of the state to question the constitutionality of the statute was though, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction in void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality
will be considered on its being brought to the attention of the court by persons interested in the effect
to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was
not properly raised in the court below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario,
26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question affecting the constitutionality
of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said that the question may be raised for the
first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even
in civil cases, it has been held that it is the duty of a court to pass on the constitutional question,
though raised for first time on appeal, if it appears that a determination of the question is necessary
to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S.
W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs.
St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any time, where it involves the jurisdiction of the
court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to
consider the constitutional question raised for the first time before this court in these proceedings,
we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here a point we do not now
have to decide we are of the opinion that the People of the Philippines, represented by the
Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of
the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;

41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through
Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity of a law
enacted by their representatives; that to an accusation by the people of Michigan of
usurpation their government, a statute enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving
effect to justify action under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party
affected by an unconstitutional act of the legislature: "The people have a deep and vested
interest in maintaining all the constitutional limitations upon the exercise of legislative
powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was
brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the action, the Supreme Court of
Kansas said:
. . . the state is a proper party indeed, the proper party to bring this action. The state is
always interested where the integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded,
and need not, as an individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General,
or county attorney, may exercise his bet judgment as to what sort of action he will bring to
have the matter determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience
to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197
S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La.,
597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of
Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119

N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the
Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged with the
duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of
the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of
Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs.
Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with
one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the
ruling was the judge should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant. Stateex 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 parteBates [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 parteGarland, 71 U. S., 4 Wall., 333; 18 Law. ed.,
366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149;
24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar 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 decidendiis 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)
andCruz 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 reVillage 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.

Scope of Equality
A. Economic
1. Ichong vs Hernandez
G.R. No. L-7995

May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
Manila,respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses questions
of due process, police power and equal protection of the laws. It also poses an important issue of
fact, that is whether the conditions which the disputed law purports to remedy really or actually exist.
Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to
protect citizen and country from the alien retailer. Through it, and within the field of economy it
regulates, Congress attempts to translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival and welfare, into a concrete and
tangible measures designed to free the national retailer from the competing dominance of the alien,
so that the country and the nation may be free from a supposed economic dependence and
bondage. Do the facts and circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the
retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not
citizens of the Philippines, and against associations, partnerships, or corporations the capital of
which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the
retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said
business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are
forfeited in accordance with the law, until their death or voluntary retirement in case of natural
persons, and for ten years after the approval of the Act or until the expiration of term in case of
juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of
the laws on nationalization, control weights and measures and labor and other laws relating to trade,
commerce and industry; (5) a prohibition against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches of retail business, (6) a provision
requiring aliens actually engaged in the retail business to present for registration with the proper
authorities a verified statement concerning their businesses, giving, among other matters, the nature
of the business, their assets and liabilities and their offices and principal offices of judicial entities;
and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to
continue such business for a period of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to
obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance
and all other persons acting under him, particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien
residents the equal protection of the laws and deprives of their liberty and property without due
process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3)
the Act violates international and treaty obligations of the Republic of the Philippines; (4) the
provisions of the Act against the transmission by aliens of their retail business thru hereditary
succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to
engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of
Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was
passed in the valid exercise of the police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the Act has only one subject embraced
in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is not impaired, and the institution
of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power.
There is no question that the Act was approved in the exercise of the police power, but petitioner
claims that its exercise in this instance is attended by a violation of the constitutional requirements of
due process and equal protection of the laws. But before proceeding to the consideration and
resolution of the ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict
between police power and the guarantees of due process and equal protection of the laws. What is
the scope of police power, and how are the due process and equal protection clauses related to it?
What is the province and power of the legislature, and what is the function and duty of the courts?
These consideration must be clearly and correctly understood that their application to the facts of the
case may be brought forth with clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible
to limit its sweep. As it derives its existence from the very existence of the State itself, it does not
need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and
survival, and as such it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern democratic framework where
the demands of society and of nations have multiplied to almost unimaginable proportions; the field
and scope of police power has become almost boundless, just as the fields of public interest and
public welfare have become almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this
constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of
police power by which and through which the State seeks to attain or achieve interest or welfare. So
it is that Constitutions do not define the scope or extent of the police power of the State; what they
do is to set forth the limitations thereof. The most important of these are the due process clause and
the equal protection clause.

b. Limitations on police power.

The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of
law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220,
226.)
c. The, equal protection clause.
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by territory within which is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exists for making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. Is there public interest, a public purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable,
arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative power? Can the aims conceived
be achieved by the means used, or is it not merely an unjustified interference with private interest?
These are the questions that we ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the guarantees
are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means
for the attainment of legitimate aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for
that would mean license and anarchy. So the State can deprive persons of life, liberty and property,
provided there is due process of law; and persons may be classified into classes and groups,
provided everyone is given the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. And if distinction and classification has
been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must
not be overlooked, in the first place, that the legislature, which is the constitutional repository of

police power and exercises the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law
promulgated in the exercise of the police power, or of the measures adopted to implement the public
policy or to achieve public interest. On the other hand, courts, although zealous guardians of
individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of
the legislative prerogative. They have done so early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved.
If the disputed legislation were merely a regulation, as its title indicates, there would be no question
that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its
subject is a common, trade or occupation, as old as society itself, which from the immemorial has
always been open to residents, irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation.
In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing an infinite number of things they
do not produce, the dealer comes into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is enhanced. Under modern conditions
and standards of living, in which man's needs have multiplied and diversified to unlimited extents
and proportions, the retailer comes as essential as the producer, because thru him the infinite variety
of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail
dealers perform the functions of capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets
and things needed for home and daily life. He provides his customers around his store with the rice
or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell,
even the needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore,
from the lowly peddler, the owner of a small sari-sari store, to the operator of a department store or,
a supermarket is so much a part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale in
the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance.
There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In
big cities and centers of population he has acquired not only predominance, but apparent control
over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
sugar, flour, garlic, and scores of other goods and articles. And were it not for some national
corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal
foods and products would easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is
said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is
merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an
element of control; also so many unmanageable factors in the retail business make control virtually
impossible. The first argument which brings up an issue of fact merits serious consideration. The
others are matters of opinion within the exclusive competence of the legislature and beyond our
prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders with fears and misgivings, and the
year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade,
as witness the following tables:

Assets

Year and
Retailers
Nationality

No.Establishment
s

Pesos

Gross Sales

Per cent
Distributio
n

Pesos

Per cent
Distribution

1941
:

Filipino ..
........

106,671 200,323,13
8

55.82 174,181,92
4

51.74

Chinese
...........

15,356 118,348,692

32.98 148,813,23

44.21

Others ..
..........

1,646 40,187,090

11.20 13,630,239

4.05

Filipino ..
........

111,107 208,658,94
6

65.05 279,583,33
3

57.03

Chinese
...........

13,774 106,156,21
8

33.56 205,701,13
4

41.96

1947
:

Others ..
.........

354

8,761,260

.49

4,927,168

1.01

1948 (Census
:
)

Filipino ..
........

113,631 213,342,26
4

67.30 467,161,66
7

60.51

Chinese
..........

12,087 93,155,459

29.38 294,894,22
7

38.20

Others ..
........

422 10,514,675

Filipino ..

113,659 213,451,60

3.32

9,995,402

1.29

60.89 462,532,90

53.47

1949
:

........

Chinese
..........

16,248 125,223,33
6

35.72 392,414,87
5

45.36

Others ..
........

486 12,056,365

3.39 10,078,364

1.17

Filipino ..
.......

119,352 224,053,62
0

61.09 466,058,05
2

53.07

Chinese
..........

17,429 134,325,30
3

36.60 404,481,38
4

46.06

1951
:

Others ..
........

347

8,614,025

2.31

7,645,327

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT

Year and Retailer's

Nationality

1941:

Item
Assets
(Pesos)

Gross
Sales
(Pesos)

87

Filipino .............................................

1,878

1,633

Chinese ............................................
..

7,707

9,691

Others ..............................................
.

24,415

8,281

Filipino .............................................

1,878

2,516

Chinese ...........................................

7,707

14,934

Others ..............................................

24,749

13,919

Filipino .............................................

1,878

4,111

Chinese ............................................
.

7,707

24,398

Others ..............................................

24,916

23,686

1947:

1948:

1949:

(Census)

Filipino .............................................

1,878

4,069

Chinese ............................................
..

7,707

24,152

Others ..............................................

24,807

20,737

Filipino .............................................

1,877

3,905

Chinese ............................................
.

7,707

33,207

Others ..............................................
.

24,824

22,033

1951:

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through their
assests and gross sales which average between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and
sells six to seven times more, and gains much more. The same official report, pointing out to the
known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were
largely engaged in minor retailer enterprises. As observed by respondents, the native investment is
thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and
supply.
d. Alien control and threat, subject of apprehension in Constitutional convention.

It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted.
The framers of our Constitution also believed in the existence of this alien dominance and control
when they approved a resolution categorically declaring among other things, that "it is the sense of
the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego,
The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was
twenty-two years ago; and the events since then have not been either pleasant or comforting. Dean
Sinco of the University of the Philippines College of Law, commenting on the patrimony clause of the
Preamble opines that the fathers of our Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from alien interests that had already brought under their
control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th
ed., p. 114); and analyzing the concern of the members of the constitutional convention for the
economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he
says:
But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but of
recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of the
nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it
(the Constitution) envisages an organized movement for the protection of the nation not only
against the possibilities of armed invasion but also against its economic subjugation by alien
interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution No.
1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar
resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and
Producers. The man in the street also believes, and fears, alien predominance and control; so our
newspapers, which have editorially pointed out not only to control but to alien stranglehold. We,
therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt
by all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or articles to be made available in the
market, and even the choice of the goods or articles they would or would not patronize or distribute,
that fears of dislocation of the national economy and of the complete subservience of national
economy and of the consuming public are not entirely unfounded. Nationals, producers and
consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an
article of daily use is desired to be prescribed by the aliens, because the producer or importer does
not offer them sufficient profits, or because a new competing article offers bigger profits for its
introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from
their stocks, offering the new one as a substitute. Hence, the producers or importers of the

prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly overlook or ignore in the interests of
truth and justice, that there exists a general feeling on the part of the public that alien participation in
the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of
which would suffice for our purposes; that at some time or other they have cornered the market of
essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and
prejudice of the consuming public, so much so that the Government has had to establish the
National Rice and Corn Corporation to save the public from their continuous hoarding practices and
tendencies; that they have violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168),
authorizing their immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation of the law of supply
and demand; that they have connived to boycott honest merchants and traders who would not cater
or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed
by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in derision and contempt of lawful authority.
It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly
causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government and by their own lawful diplomatic
representatives, action which impliedly admits a prevailing feeling about the existence of many of the
above practices.
The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of war or other calamity. We do not
have here in this country isolated groups of harmless aliens retailing goods among nationals; what
we have are well organized and powerful groups that dominate the distribution of goods and
commodities in the communities and big centers of population. They owe no allegiance or loyalty to
the State, and the State cannot rely upon them in times of crisis or emergency. While the national
holds his life, his person and his property subject to the needs of his country, the alien may even
become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is
not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate
desire and determination of the people, thru their authorized representatives, to free the nation from
the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its
disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and
indisputably falls within the scope of police power, thru which and by which the State insures its
existence and security and the supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now poses solution is,
Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage

is the root and cause of the distinction between the alien and the national as a trader. The alien
resident owes allegiance to the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we
admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of
regard, sympathy and consideration for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the
alien go back to his beloved country and his beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such utter disregard for his customers and the people on
whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may
seem.
Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in industries that would help the country's economy
and increase national wealth. The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting the very important function of retail
distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the
nationals, show the existence of real and actual, positive and fundamental differences between an
alien and a national which fully justify the legislative classification adopted in the retail trade
measure. These differences are certainly a valid reason for the State to prefer the national over the
alien in the retail trade. We would be doing violence to fact and reality were we to hold that no
reason or ground for a legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.
The above objectionable characteristics of the exercise of the retail trade by the aliens, which are
actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals
and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer,
that this is the prerogative of the law-making power. Since the Court finds that the classification is
actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said
that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the
legislature acted within its legitimate prerogative and it can not declare that the act transcends the
limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative power
admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only
when the classification is without reasonable basis. In addition to the authorities we have earlier
cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369,
which clearly and succinctly defined the application of equal protection clause to a law sought to be
voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the exercise of the
wide scope of discretion in that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary. 2. A classification having some

reasonable basis does not offend against that clause merely because it is not made with
mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be
conceived that would sustain it, the existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United States.
In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the
Philippine Legislature was in issue, because of a condition therein limiting the ownership of vessels
engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or the United
States, thus denying the right to aliens, it was held that the Philippine Legislature did not violate the
equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law had as
ultimate purpose the encouragement of Philippine shipbuilding and the safety for these Islands from
foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions
are in favor of its constitutionality. In substance, we held that the limitation of domestic ownership of
vessels engaged in coastwise trade to citizens of the Philippines does not violate the equal
protection of the law and due process or law clauses of the Philippine Bill of Rights. In rendering said
decision we quoted with approval the concurring opinion of Justice Johnson in the case of Gibbons
vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is
distinctly of that character, and forms part of an extensive system, the object of which is to
encourage American shipping, and place them on an equal footing with the shipping of other
nations. Almost every commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American shipping is contemplated,
in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to
the act of her enrollment. But it is to confer on her American privileges, as contra
distinguished from foreign; and to preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American commercial marine, as well as frauds
upon the revenue in the trade coastwise, that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That
would be requiring a higher degree of protection for aliens as a class than for similar classes
than for similar classes of American citizens. Broadly speaking, the difference in status
between citizens and aliens constitutes a basis for reasonable classification in the exercise
of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of
hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared
his intention, to become a citizen of the United States, was held valid, for the following reason: It
may seem wise to the legislature to limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the court cannot question this

judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which
prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not
to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was
based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life
as to enable him to appreciate the relation of this particular business to our entire social fabric", and
was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115
(1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may
not bear in some instances such a relation to a legitimate object of legislation as to be made the
basis of permitted classification, and that it could not state that the legislation is clearly wrong; and
that latitude must be allowed for the legislative appraisement of local conditions and for the
legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124
N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawn brooking was considered as having tendencies injuring
public interest, and limiting it to citizens is within the scope of police power. A similar statute denying
aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that
aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty,
hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool, billiard,
card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State
Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's findings that the exercise of
the business by the aliens does not in any way affect the morals, the health, or even the
convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947),
a California statute banning the issuance of commercial fishing licenses to person ineligible to
citizenship was held void, because the law conflicts with Federal power over immigration, and
because there is no public interest in the mere claim of ownership of the waters and the fish in them,
so there was no adequate justification for the discrimination. It further added that the law was the
outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices dissented
on the theory that fishing rights have been treated traditionally as natural resources. In Fraser vs.
McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on
every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void
because the court found that there was no reason for the classification and the tax was an arbitrary
deduction from the daily wage of an employee.
d. Authorities contra explained.
It is true that some decisions of the Federal court and of the State courts in the United States hold
that the distinction between aliens and citizens is not a valid ground for classification. But in this
decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or
were the result or product of racial antagonism and hostility, and there was no question of public
interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States
Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in
any language other than English, Spanish or any other local dialect, but the main reasons for the
decisions are: (1) that if Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be
deprived of their right to be advised of their business and to direct its conduct. The real reason for
the decision, therefore, is the court's belief that no public benefit would be derived from the
operations of the law and on the other hand it would deprive Chinese of something indispensable for
carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring
powers on officials to withhold consent in the operation of laundries both as to persons and place,
was declared invalid, but the court said that the power granted was arbitrary, that there was no

reason for the discrimination which attended the administration and implementation of the law, and
that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a
law prohibiting aliens to engage as hawkers and peddlers was declared void, because the
discrimination bore no reasonable and just relation to the act in respect to which the classification
was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do
not naturally possess the sympathetic consideration and regard for the customers with whom they
come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far
as it enhances their profit, nor the loyalty and allegiance which the national owes to the land. These
limitations on the qualifications of the aliens have been shown on many occasions and instances,
especially in times of crisis and emergency. We can do no better than borrow the language of Anton
vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between
the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is
likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental environment
and control have been engendered and formed under entirely different regimes and political
systems, have not the same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of the government itself.
Further enlargement, is unnecessary. I have said enough so that obviously it cannot be
affirmed with absolute confidence that the Legislature was without plausible reason for
making the classification, and therefore appropriate discriminations against aliens as it
relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power. It has been stated
by the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law
shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a
real and substantial relation to the subject sought to be attained. . . . .
xxx

xxx

xxx

So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may reasonably be
deemed to promote public welfare, and to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to declare such policy, or, when it is declared
by the legislature, to override it. If the laws passed are seen to have a reasonable relation to
a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of
due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the restriction
it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not
whether it imposes any restrictions on such rights. . . .
xxx

xxx

xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not
be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular
class, require such interference; and second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive,
and capricious use of that power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges
long ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful
and honest occupation and therefore beyond the power of the legislature to prohibit and penalized.
This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e.,
that in this country where the occupation is engaged in by petitioner, it has been so engaged by him,
by the alien in an honest creditable and unimpeachable manner, without harm or injury to the
citizens and without ultimate danger to their economic peace, tranquility and welfare. But the
Legislature has found, as we have also found and indicated, that the privilege has been so grossly
abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys
a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's
economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is
clear. The law in question is deemed absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and dominance. It is not necessarily
unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of
reasonableness of a law is the appropriateness or adequacy under all circumstances of the means
adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation, which is not

merely reasonable but actually necessary, must be considered not to have infringed the
constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill,
which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are
not citizens of the Philippines from having a strangle hold upon our economic life. If the
persons who control this vital artery of our economic life are the ones who owe no allegiance
to this Republic, who have no profound devotion to our free institutions, and who have no
permanent stake in our people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who
are not citizens of the Philippines of their means of livelihood. While this bill seeks to take
away from the hands of persons who are not citizens of the Philippines a power that can be
wielded to paralyze all aspects of our national life and endanger our national security it
respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none
the less legitimate. Freedom and liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of their own race or country. The
removal and eradication of the shackles of foreign economic control and domination, is one of the
noblest motives that a national legislature may pursue. It is impossible to conceive that legislation
that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of
a legitimate aspiration of a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
The framers of the Constitution could not have intended to impose the constitutional restrictions of
due process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have given to
the legislature full authority and power to enact legislation that would promote the supreme
happiness of the people, their freedom and liberty. On the precise issue now before us, they
expressly made their voice clear; they adopted a resolution expressing their belief that the legislation
in question is within the scope of the legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of
retail trade; but it abstain from approving the amendment introduced by the Delegate for
Manila, Mr. Araneta, and others on this matter because it is convinced that the National
Assembly is authorized to promulgate a law which limits to Filipino and American citizens the
privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution,
quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the
nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that
"no franchise, certificate, or any other form of authorization for the operation of the public utility shall
be granted except to citizens of the Philippines." The nationalization of the retail trade is only a

continuance of the nationalistic protective policy laid down as a primary objective of the Constitution.
Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions
of the Constitution is unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the Legislature
was in duty bound to face the problem and meet, through adequate measures, the danger and threat
that alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable.
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or privilege is denied
to those only upon conviction of certain offenses. In the deliberations of the Court on this case,
attention was called to the fact that the privilege should not have been denied to children and heirs
of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and
purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It is well
settled that the Court will not inquire into the motives of the Legislature, nor pass upon general
matters of legislative judgment. The Legislature is primarily the judge of the necessity of an
enactment or of any of its provisions, and every presumption is in favor of its validity, and though the
Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not
palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a
violation of due process, is not its reasonableness, but its unreasonableness, and we find the
provisions are not unreasonable. These principles also answer various other arguments raised
against the law, some of which are: that the law does not promote general welfare; that thousands of
aliens would be thrown out of employment; that prices will increase because of the elimination of
competition; that there is no need for the legislation; that adequate replacement is problematical; that
there may be general breakdown; that there would be repercussions from foreigners; etc. Many of
these arguments are directed against the supposed wisdom of the law which lies solely within the
legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to
be violated in Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be
expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the
provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not
and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which
terms express the two main purposes and objectives of the law. But "regulate" is a broader term than

either prohibition or nationalization. Both of these have always been included within the term
regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page
41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc."
sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and
to persons in the habit of getting intoxicated; such matters being properly included within the
subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of
Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the thing to be regulated. While word
regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it
should not have such meaning when used in delegating police power in connection with a
thing the best or only efficacious regulation of which involves suppression. (State vs. Morton,
162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See.
4803, p. 345.) The above rule was followed the title of the Act in question adopted the more general
term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules
for the regulation of the retail trade which may not be included in the terms "nationalization" or
"prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have
been many provisions not falling within the scope of the title which would have made the Act invalid.
The use of the term "regulate", therefore, is in accord with the principle governing the drafting of
statutes, under which a simple or general term should be adopted in the title, which would include all
other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is
to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or
of the public. In the case at bar it cannot be claimed that the legislators have been appraised of the
nature of the law, especially the nationalization and the prohibition provisions. The legislators took
active interest in the discussion of the law, and a great many of the persons affected by the
prohibitions in the law conducted a campaign against its approval. It cannot be claimed, therefore,
that the reasons for declaring the law invalid ever existed. The objection must therefore, be
overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United
Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a
mere recommendation or a common standard of achievement for all peoples and all nations (Id. p.
39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights
can be inferred the fact that members of the United Nations Organizations, such as Norway and

Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws
against foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18,
1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But
the nationals of China are not discriminating against because nationals of all other countries, except
those of the United States, who are granted special rights by the Constitution, are all prohibited from
engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty
is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of the police power of the State
(plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own
personality and insures its security and future; that the law does not violate the equal protection
clause of the Constitution because sufficient grounds exist for the distinction between alien and
citizen in the exercise of the occupation regulated, nor the due process of law clause, because the
law is prospective in operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry
out its objectives appear to us to be plainly evident as a matter of fact it seems not only
appropriate but actually necessary and that in any case such matter falls within the prerogative of
the Legislature, with whose power and discretion the Judicial department of the Government may
not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no
duplicity and has not misled the legislators or the segment of the population affected; and that it
cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually
been entered into on the subject and the police power may not be curtailed or surrendered by any
treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been
made less harsh in its impact on the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the time comes for them to close. Our
legal duty, however, is merely to determine if the law falls within the scope of legislative authority and
does not transcend the limitations of due process and equal protection guaranteed in the
Constitution. Remedies against the harshness of the law should be addressed to the Legislature;
they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.

2. Villegas vs Hui Chiong Tsai Pao Ho (86 SCRA 270)

G.R. No. L-29646 November 10, 1978

MAYOR ANTONIO J. VILLEGAS, petitioner,

vs.
HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents.
Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta for petitioner.
Sotero H. Laurel for respondents.

FERNANDEZ, J.:
This is a petition for certiorari to review tile decision dated September 17, 1968 of respondent Judge
Francisco Arca of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the
dispositive portion of winch reads.
Wherefore, judgment is hereby rendered in favor of the petitioner and against the
respondents, declaring Ordinance No. 6 37 of the City of Manila null and void. The
preliminary injunction is made permanent. No pronouncement as to cost.
SO ORDERED.
Manila, Philippines, September 17, 1968.
(SGD.)
FRAN
CISCO
ARCA
Judge 1
The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22,
1968 and signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968. 2
City Ordinance No. 6537 is entitled:
AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF
THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO
BE ENGAGED IN ANY KIND OF TRADE, BUSINESS OR OCCUPATION WITHIN
THE CITY OF MANILA WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT
FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES. 3
Section 1 of said Ordinance No. 6537 4 prohibits aliens from being employed or to engage or participate
in any position or occupation or business enumerated therein, whether permanent, temporary or casual,
without first securing an employment permit from the Mayor of Manila and paying the permit fee of P50.00
except persons employed in the diplomatic or consular missions of foreign countries, or in the technical

assistance programs of both the Philippine Government and any foreign government, and those working
in their respective households, and members of religious orders or congregations, sect or denomination,
who are not paid monetarily or in kind.

Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six
(6) months or fine of not less than P100.00 but not more than P200.00 or both such fine and
imprisonment, upon conviction.5
On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho who was employed in Manila, filed a
petition with the Court of First Instance of Manila, Branch I, denominated as Civil Case No. 72797,
praying for the issuance of the writ of preliminary injunction and restraining order to stop the
enforcement of Ordinance No. 6537 as well as for a judgment declaring said Ordinance No. 6537
null and void. 6
In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the
ordinance declared null and void:
1) As a revenue measure imposed on aliens employed in the City of Manila,
Ordinance No. 6537 is discriminatory and violative of the rule of the uniformity in
taxation;
2) As a police power measure, it makes no distinction between useful and non-useful
occupations, imposing a fixed P50.00 employment permit, which is out of proportion
to the cost of registration and that it fails to prescribe any standard to guide and/or
limit the action of the Mayor, thus, violating the fundamental principle on illegal
delegation of legislative powers:
3) It is arbitrary, oppressive and unreasonable, being applied only to aliens who are
thus, deprived of their rights to life, liberty and property and therefore, violates the
due process and equal protection clauses of the Constitution. 7
On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17,
1968 rendered judgment declaring Ordinance No. 6537 null and void and making permanent the writ
of preliminary injunction. 8
Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the
present petition on March 27, 1969. Petitioner assigned the following as errors allegedly committed
by respondent Judge in the latter's decision of September 17,1968: 9
I
THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF
LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE
OF UNIFORMITY OF TAXATION.
II

RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR

OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE
AGAINST UNDUE DESIGNATION OF LEGISLATIVE POWER.
III
RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT
ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE
PROCESS AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTION.
Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the
ground that it violated the rule on uniformity of taxation because the rule on uniformity of taxation
applies only to purely tax or revenue measures and that Ordinance No. 6537 is not a tax or revenue
measure but is an exercise of the police power of the state, it being principally a regulatory measure
in nature.
The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal
purpose is regulatory in nature has no merit. While it is true that the first part which requires that the
alien shall secure an employment permit from the Mayor involves the exercise of discretion and
judgment in the processing and approval or disapproval of applications for employment permits and
therefore is regulatory in character the second part which requires the payment of P50.00 as
employee's fee is not regulatory but a revenue measure. There is no logic or justification in exacting
P50.00 from aliens who have been cleared for employment. It is obvious that the purpose of the
ordinance is to raise money under the guise of regulation.
The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid
substantial differences in situation among individual aliens who are required to pay it. Although the
equal protection clause of the Constitution does not forbid classification, it is imperative that the
classification should be based on real and substantial differences having a reasonable relation to the
subject of the particular legislation. The same amount of P50.00 is being collected from every
employed alien whether he is casual or permanent, part time or full time or whether he is a lowly
employee or a highly paid executive
Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise
of his discretion. It has been held that where an ordinance of a municipality fails to state any policy
or to set up any standard to guide or limit the mayor's action, expresses no purpose to be attained by
requiring a permit, enumerates no conditions for its grant or refusal, and entirely lacks standard, thus
conferring upon the Mayor arbitrary and unrestricted power to grant or deny the issuance of building
permits, such ordinance is invalid, being an undefined and unlimited delegation of power to allow or
prevent an activity per se lawful. 10
In Chinese Flour Importers Association vs. Price Stabilization Board, 11 where a law granted a
government agency power to determine the allocation of wheat flour among importers, the Supreme
Court ruled against the interpretation of uncontrolled power as it vested in the administrative officer an
arbitrary discretion to be exercised without a policy, rule, or standard from which it can be measured or
controlled.

It was also held in Primicias vs. Fugoso 12 that the authority and discretion to grant and refuse permits of
all classes conferred upon the Mayor of Manila by the Revised Charter of Manila is not uncontrolled
discretion but legal discretion to be exercised within the limits of the law.
Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide
the mayor in the exercise of the power which has been granted to him by the ordinance.
The ordinance in question violates the due process of law and equal protection rule of the
Constitution.
Requiring a person before he can be employed to get a permit from the City Mayor of Manila who
may withhold or refuse it at will is tantamount to denying him the basic right of the people in the
Philippines to engage in a means of livelihood. While it is true that the Philippines as a State is not
obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life
without due process of law. This guarantee includes the means of livelihood. The shelter of
protection under the due process and equal protection clause is given to all persons, both aliens and
citizens. 13
The trial court did not commit the errors assigned.
WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs.
SO ORDERED.

3. Tatad vs Secretary of Energy: GR No. 124360

G.R. No. 124360 November 5, 1997
FRANCISCO S. TATAD, petitioner,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENERGY AND THE SECRETARY OF THE
DEPARTMENT OF FINANCE, respondents.
G.R. No. 127867 November 5, 1997
EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE GARCIA, WIGBERTO TANADA, FLAG
HUMAN RIGHTS FOUNDATION, INC., FREEDOM FROM DEBT COALITION (FDC),
SANLAKAS, petitioners,
vs.
HON. RUBEN TORRES in his capacity as the Executive Secretary, HON. FRANCISCO VIRAY,
in his capacity as the Secretary of Energy, CALTEX Philippines, Inc., PETRON Corporation
and PILIPINAS SHELL Corporation, respondents.

PUNO, J.:

The petitions at bar challenge the constitutionality of Republic Act No. 8180 entitled "An Act
Deregulating the Downstream Oil Industry and For Other Purposes". 1 R.A. No. 8180 ends twenty six
(26) years of government regulation of the downstream oil industry. Few cases carry a surpassing
importance on the life of every Filipino as these petitions for the upswing and downswing of our economy
materially depend on the oscillation of oil.
First, the facts without the fat. Prior to 1971, there was no government agency regulating the oil
industry other than those dealing with ordinary commodities. Oil companies were free to enter and
exit the market without any government interference. There were four (4) refining companies (Shell,
Caltex, Bataan Refining Company and Filoil Refining) and six (6) petroleum marketing companies
(Esso, Filoil, Caltex, Getty, Mobil and Shell), then operating in the country. 2
In 1971, the country was driven to its knees by a crippling oil crisis. The government, realizing that
petroleum and its products are vital to national security and that their continued supply at reasonable
prices is essential to the general welfare, enacted the Oil Industry Commission Act. 3 It created the Oil
Industry Commission (OIC) to regulatethe business of importing, exporting, re-exporting, shipping,
transporting, processing, refining, storing, distributing, marketing and selling crude oil, gasoline, kerosene,
gas and other refined petroleum products. The OIC was vested with the power to fix the market prices of
petroleum products, to regulate the capacities of refineries, to license new refineries and to regulate the
operations and trade practices of the industry. 4
In addition to the creation of the OIC, the government saw the imperious need for a more active role
of Filipinos in the oil industry. Until the early seventies, the downstream oil industry was controlled by
multinational companies. All the oil refineries and marketing companies were owned
by foreigners whose economic interests did not always coincide with the interest of the Filipino.
Crude oil was transported to the country by foreign-controlled tankers. Crude processing was done
locally by foreign-owned refineries and petroleum products were marketed through foreign-owned
retail outlets. On November 9, 1973, President Ferdinand E. Marcos boldly created the Philippine
National Oil Corporation (PNOC) to break the control by foreigners of our oil industry. 5 PNOC
engaged in the business of refining, marketing, shipping, transporting, and storing petroleum. It acquired
ownership of ESSO Philippines and Filoil to serve as its marketing arm. It bought the controlling shares of
Bataan Refining Corporation, the largest refinery in the country. 6 PNOC later put up its own marketing
subsidiary Petrophil. PNOC operated under the business name PETRON Corporation. For the first
time, there was a Filipino presence in the Philippine oil market.
In 1984, President Marcos through Section 8 of Presidential Decree No. 1956, created the Oil Price
Stabilization Fund (OPSF) to cushion the effects of frequent changes in the price of oil caused by
exchange rate adjustments or increase in the world market prices of crude oil and imported
petroleum products. The fund is used (1) to reimburse the oil companies for cost increases in crude
oil and imported petroleum products resulting from exchange rate adjustment and/or increase in
world market prices of crude oil, and (2) to reimburse oil companies for cost underrecovery incurred
as a result of the reduction of domestic prices of petroleum products. Under the law, the OPSF may
be sourced from:
1. any increase in the tax collection from ad valorem tax or customs duty imposed on
petroleum products subject to tax under P.D. No. 1956 arising from exchange rate
adjustment,

2. any increase in the tax collection as a result of the lifting of tax exemptions of
government corporations, as may be determined by the Minister of Finance in
consultation with the Board of Energy,
3. any additional amount to be imposed on petroleum products to augment the
resources of the fund through an appropriate order that may be issued by the Board
of Energy requiring payment of persons or companies engaged in the business of
importing, manufacturing and/or marketing petroleum products, or
4. any resulting peso costs differentials in case the actual peso costs paid by oil
companies in the importation of crude oil and petroleum products is less than the
peso costs computed using the reference foreign exchange rate as fixed by the
Board of Energy. 7
By 1985, only three (3) oil companies were operating in the country Caltex, Shell and the
government-owned PNOC.
In May, 1987, President Corazon C. Aquino signed Executive Order No. 172 creating the Energy
Regulatory Board to regulate the business of importing, exporting, re-exporting, shipping,
transporting, processing, refining, marketing and distributing energy resources "when warranted and
only when public necessity requires." The Board had the following powers and functions:
1. Fix and regulate the prices of petroleum products;
2. Fix and regulate the rate schedule or prices of piped gas to
be charged by duly franchised gas companies which
distribute gas by means of underground pipe system;
3. Fix and regulate the rates of pipeline concessionaries
under the provisions of R.A. No. 387, as amended . . . ;
4. Regulate the capacities of new refineries or additional
capacities of existing refineries and license refineries that
may be organized after the issuance of (E.O. No. 172) under
such terms and conditions as are consistent with the national
interest; and
5. Whenever the Board has determined that there is a
shortage of any petroleum product, or when public interest so
requires, it may take such steps as it may consider
necessary, including the temporary adjustment of the levels of
prices of petroleum products and the payment to the Oil Price
Stabilization Fund . . . by persons or entities engaged in the
petroleum industry of such amounts as may be determined by
the Board, which may enable the importer to recover its cost
of importation. 8

On December 9, 1992, Congress enacted R.A. No. 7638 which created the Department of Energy to
prepare, integrate, coordinate, supervise and control all plans, programs, projects, and activities of
the government in relation to energy exploration, development, utilization, distribution and
conservation. 9 The thrust of the Philippine energy program under the law was toward privatization of
government agencies related to energy, deregulation of the power and energy industry and reduction of
dependency on oil-fired plants. 10 The law also aimed to encourage free and active participation and
investment by the private sector in all energy activities. Section 5(e) of the law states that "at the end of
four (4) years from the effectivity of this Act, the Department shall, upon approval of the President,
institute the programs and timetable of deregulation of appropriate energy projects and activities of the
energy industry."
Pursuant to the policies enunciated in R.A. No. 7638, the government approved the privatization of
Petron Corporation in 1993. On December 16, 1993, PNOC sold 40% of its equity in Petron
Corporation to the Aramco Overseas Company.
In March 1996, Congress took the audacious step of deregulating the downstream oil industry. It
enacted R.A.No. 8180, entitled the "Downstream Oil Industry Deregulation Act of 1996." Under the
deregulated environment, "any person or entity may import or purchase any quantity of crude oil and
petroleum products from a foreign or domestic source, lease or own and operate refineries and other
downstream oil facilities and market such crude oil or use the same for his own requirement," subject
only to monitoring by the Department of
Energy. 11
The deregulation process has two phases: the transition phase and the full deregulation phase.
During the transition phase, controls of the non-pricing aspects of the oil industry were to be lifted.
The following were to be accomplished: (1) liberalization of oil importation, exportation,
manufacturing, marketing and distribution, (2) implementation of an automatic pricing mechanism,
(3) implementation of an automatic formula to set margins of dealers and rates of haulers, water
transport operators and pipeline concessionaires, and (4) restructuring of oil taxes. Upon full
deregulation, controls on the price of oil and the foreign exchange cover were to be lifted and the
OPSF was to be abolished.
The first phase of deregulation commenced on August 12, 1996.
On February 8, 1997, the President implemented the full deregulation of the Downstream Oil
Industry through E.O. No. 372.
The petitions at bar assail the constitutionality of various provisions of R.A No. 8180 and E.O. No.
372.
In G.R. No. 124360, petitioner Francisco S. Tatad seeks the annulment of section 5(b) of R.A. No.
8180. Section 5(b) provides:
b) Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff
duty shall be imposed and collected on imported crude oil at the rate of three percent (3%)
and imported refined petroleum products at the rate of seven percent (7%), except fuel oil
and LPG, the rate for which shall be the same as that for imported crude oil: Provided, That

beginning on January 1, 2004 the tariff rate on imported crude oil and refined petroleum
products shall be the same: Provided, further, That this provision may be amended only by
an Act of Congress.
The petition is anchored on three arguments:
First, that the imposition of different tariff rates on imported crude oil and imported refined petroleum
products violates the equal protection clause. Petitioner contends that the 3%-7% tariff differential
unduly favors the three existing oil refineries and discriminates against prospective investors in the
downstream oil industry who do not have their own refineries and will have to source refined
petroleum products from abroad.
Second, that the imposition of different tariff rates does not deregulate the downstream oil industry
but instead controls the oil industry, contrary to the avowed policy of the law. Petitioner avers that the
tariff differential between imported crude oil and imported refined petroleum products bars the entry
of other players in the oil industry because it effectively protects the interest of oil companies with
existing refineries. Thus, it runs counter to the objective of the law "to foster a truly competitive
market."
Third, that the inclusion of the tariff provision in section 5(b) of R.A. No. 8180 violates Section 26(1)
Article VI of the Constitution requiring every law to have only one subject which shall be expressed
in its title. Petitioner contends that the imposition of tariff rates in section 5(b) of R.A. No. 8180 is
foreign to the subject of the law which is the deregulation of the downstream oil industry.
In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo, Enrique Garcia, Wigberto
Tanada, Flag Human Rights Foundation, Inc., Freedom from Debt Coalition (FDC) and Sanlakas
contest the constitutionality of section 15 of R.A. No. 8180 and E.O. No. 392. Section 15 provides:
Sec. 15. Implementation of Full Deregulation. Pursuant to Section 5(e) of Republic Act No.
7638, the DOE shall, upon approval of the President, implement the full deregulation of the
downstream oil industry not later than March 1997. As far as practicable, the DOE shall time
the full deregulation when the prices of crude oil and petroleum products in the world market
are declining and when the exchange rate of the peso in relation to the US dollar is stable.
Upon the implementation of the full deregulation as provided herein, the transition phase is
deemed terminated and the following laws are deemed repealed:
xxx xxx xxx
E.O. No. 372 states in full, viz.:
WHEREAS, Republic Act No. 7638, otherwise known as the "Department of Energy Act of
1992," provides that, at the end of four years from its effectivity last December 1992, "the
Department (of Energy) shall, upon approval of the President, institute the programs and
time table of deregulation of appropriate energy projects and activities of the energy sector;"

WHEREAS, Section 15 of Republic Act No. 8180, otherwise known as the "Downstream Oil
Industry Deregulation Act of 1996," provides that "the DOE shall, upon approval of the
President, implement full deregulation of the downstream oil industry not later than March,
1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude
oil and petroleum products in the world market are declining and when the exchange rate of
the peso in relation to the US dollar is stable;"
WHEREAS, pursuant to the recommendation of the Department of Energy, there is an
imperative need to implement the full deregulation of the downstream oil industry because of
the following recent developments: (i) depletion of the buffer fund on or about 7 February
1997 pursuant to the Energy Regulatory Board's Order dated 16 January 1997; (ii) the prices
of crude oil had been stable at $21-$23 per barrel since October 1996 while prices of
petroleum products in the world market had been stable since mid-December of last year.
Moreover, crude oil prices are beginning to soften for the last few days while prices of some
petroleum products had already declined; and (iii) the exchange rate of the peso in relation
to the US dollar has been stable for the past twelve (12) months, averaging at around
P26.20 to one US dollar;
WHEREAS, Executive Order No. 377 dated 31 October 1996 provides for an institutional
framework for the administration of the deregulated industry by defining the functions and
responsibilities of various government agencies;
WHEREAS, pursuant to Republic Act No. 8180, the deregulation of the industry will foster a
truly competitive market which can better achieve the social policy objectives of fair prices
and adequate, continuous supply of environmentally-clean and high quality petroleum
products;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by
the powers vested in me by law, do hereby declare the full deregulation of the downstream
oil industry.
In assailing section 15 of R.A. No. 8180 and E.O. No. 392, petitioners offer the following
submissions:
First, section 15 of R.A. No. 8180 constitutes an undue delegation of legislative power to the
President and the Secretary of Energy because it does not provide a determinate or determinable
standard to guide the Executive Branch in determining when to implement the full deregulation of the
downstream oil industry. Petitioners contend that the law does not define when it is practicable for
the Secretary of Energy to recommend to the President the full deregulation of the downstream oil
industry or when the President may consider it practicable to declare full deregulation. Also, the law
does not provide any specific standard to determine when the prices of crude oil in the world market
are considered to be declining nor when the exchange rate of the peso to the US dollar is
considered stable.

Second, petitioners aver that E.O. No. 392 implementing the full deregulation of the downstream oil
industry is arbitrary and unreasonable because it was enacted due to the alleged depletion of the
OPSF fund a condition not found in R.A. No. 8180.
Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the formation of a de facto cartel among
the three existing oil companies Petron, Caltex and Shell in violation of the constitutional
prohibition against monopolies, combinations in restraint of trade and unfair competition.
Respondents, on the other hand, fervently defend the constitutionality of R.A. No. 8180 and E.O. No.
392. In addition, respondents contend that the issues raised by the petitions are not justiciable as
they pertain to the wisdom of the law. Respondents further aver that petitioners have no locus
standi as they did not sustain nor will they sustain direct injury as a result of the implementation of
R.A. No. 8180.
The petitions were heard by the Court on September 30, 1997. On October 7, 1997, the Court
ordered the private respondents oil companies "to maintain the status quo and to cease and desist
from increasing the prices of gasoline and other petroleum fuel products for a period of thirty (30)
days . . . subject to further orders as conditions may warrant."
We shall now resolve the petitions on the merit. The petitions raise procedural and substantive
issues bearing on the constitutionality of R.A. No. 8180 and E.O. No. 392. The procedural
issues are: (1) whether or not the petitions raise a justiciable controversy, and (2) whether or not the
petitioners have the standing to assail the validity of the subject law and executive order.
The substantive issues are: (1) whether or not section 5 (b) violates the one title one subject
requirement of the Constitution; (2) whether or not the same section violates the equal protection
clause of the Constitution; (3) whether or not section 15 violates the constitutional prohibition on
undue delegation of power; (4) whether or not E.O. No. 392 is arbitrary and unreasonable; and (5)
whether or not R.A. No. 8180 violates the constitutional prohibition against monopolies,
combinations in restraint of trade and unfair competition.
We shall first tackle the procedural issues. Respondents claim that the avalanche of arguments of
the petitioners assail the wisdom of R.A. No. 8180. They aver that deregulation of the downstream
oil industry is a policy decision made by Congress and it cannot be reviewed, much less be reversed
by this Court. In constitutional parlance, respondents contend that the petitions failed to raise a
justiciable controversy.
Respondents' joint stance is unnoteworthy. Judicial power includes not only the duty of the courts to
settle actual controversies involving rights which are legally demandable and enforceable, but also
the duty to determine whether or not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government. 12 The courts, as
guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the
legislature transcends the limit imposed by the fundamental law. Where a statute violates the Constitution,
it is not only the right but the duty of the judiciary to declare such act as unconstitutional and void. 13 We
held in the recent case of Tanada v. Angara: 14
xxx xxx xxx

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is
judicial rather than political. The duty to adjudicate remains to assure that the supremacy of
the Constitution is upheld. Once a controversy as to the application or interpretation of a
constitutional provision is raised before this Court, it becomes a legal issue which the Court
is bound by constitutional mandate to decide.
Even a sideglance at the petitions will reveal that petitioners have raised constitutional issues which
deserve the resolution of this Court in view of their seriousness and their value as precedents. Our
statement of facts and definition of issues clearly show that petitioners are assailing R.A. No. 8180
because its provisions infringe the Constitution and not because the law lacks wisdom. The principle
of separation of power mandates that challenges on the constitutionality of a law should be resolved
in our courts of justice while doubts on the wisdom of a law should be debated in the halls of
Congress. Every now and then, a law may be denounced in court both as bereft of wisdom and
constitutionally infirmed. Such denunciation will not deny this Court of its jurisdiction to resolve the
constitutionality of the said law while prudentially refusing to pass on its wisdom.
The effort of respondents to question the locus standi of petitioners must also fall on barren ground.
In language too lucid to be misunderstood, this Court has brightlined its liberal stance on a
petitioner's locus standi where the petitioner is able to craft an issue of transcendental significance to
the people. 15 In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 16 we stressed:
xxx xxx xxx
Objections to taxpayers' suit for lack of sufficient personality, standing or interest are,
however, in the main procedural matters. Considering the importance to the public of the
cases at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine
whether or not the other branches of government have kept themselves within the limits of
the Constitution and the laws and that they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and has taken cognizance of these
petitions.
There is not a dot of disagreement between the petitioners and the respondents on the far reaching
importance of the validity of RA No. 8180 deregulating our downstream oil industry. Thus, there is no
good sense in being hypertechnical on the standing of petitioners for they pose issues which are
significant to our people and which deserve our forthright resolution.
We shall now track down the substantive issues. In G.R. No. 124360 where petitioner is Senator
Tatad, it is contended that section 5(b) of R.A. No. 8180 on tariff differential violates the provision 17 of
the Constitution requiring every law to have only one subject which should be expressed in its title. We do
not concur with this contention. As a policy, this Court has adopted a liberal construction of the one title
one subject rule. We have consistently ruled 18that the title need not mirror, fully index or catalogue all
contents and minute details of a law. A law having a single general subject indicated in the title may
contain any number of provisions, no matter how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject

by providing for the method and means of carrying out the general subject. 19 We hold that section 5(b)
providing for tariff differential is germane to the subject of R.A. No. 8180 which is the deregulation of the
downstream oil industry. The section is supposed to sway prospective investors to put up refineries in our
country and make them rely less on imported petroleum. 20 We shall, however, return to the validity of this
provision when we examine its blocking effect on new entrants to the oil market.

We shall now slide to the substantive issues in G.R. No. 127867. Petitioners assail section 15 of
R.A. No. 8180 which fixes the time frame for the full deregulation of the downstream oil industry. We
restate its pertinent portion for emphasis, viz.:
Sec. 15. Implementation of Full Deregulation Pursuant to section 5(e) of Republic Act No.
7638, the DOE shall, upon approval of the President, implement the full deregulation of the
downstream oil industry not later than March 1997. As far as practicable, the DOE shall time
the full deregulation when the prices of crude oil and petroleum products in the world market
are declining and when the exchange rate of the peso in relation to the US dollar
is stable . . .
Petitioners urge that the phrases "as far as practicable," "decline of crude oil prices in the world
market" and "stability of the peso exchange rate to the US dollar" are ambivalent, unclear and
inconcrete in meaning. They submit that they do not provide the "determinate or determinable
standards" which can guide the President in his decision to fully deregulate the downstream oil
industry. In addition, they contend that E.O. No. 392 which advanced the date of full deregulation is
void for it illegally considered the depletion of the OPSF fund as a factor.
The power of Congress to delegate the execution of laws has long been settled by this Court. As
early as 1916 inCompania General de Tabacos de Filipinas vs. The Board of Public Utility
Commissioners, 21 this Court thru, Mr. Justice Moreland, held that "the true distinction is between the
delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and
conferring 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." Over the years, as the legal
engineering of men's relationship became more difficult, Congress has to rely more on the practice of
delegating the execution of laws to the executive and other administrative agencies. Two tests have been
developed to determine whether the delegation of the power to execute laws does not involve the
abdication of the power to make law itself. We delineated the metes and bounds of these tests in Eastern
Shipping Lines, Inc. VS. POEA, 22 thus:
There are two accepted tests to determine whether or not there is a valid delegation of
legislative power,viz: the completeness test and the sufficient standard test. Under the first
test, the law must be complete in all its terms and conditions when it leaves the legislative
such that when it reaches the delegate the only thing he will have to do is to enforce it.
Under the sufficient standard test, there must be adequate guidelines or limitations in the law
to map out the boundaries of the delegate's authority and prevent the delegation from
running riot. Both tests are intended to prevent a total transference of legislative authority to
the delegate, who is not allowed to step into the shoes of the legislature and exercise a
power essentially legislative.

The validity of delegating legislative power is now a quiet area in our constitutional landscape. As
sagely observed, delegation of legislative power has become an inevitability in light of the increasing
complexity of the task of government. Thus, courts bend as far back as possible to sustain the
constitutionality of laws which are assailed as unduly delegating legislative powers.
Citing Hirabayashi v. United States 23 as authority, Mr. Justice Isagani A. Cruz states "that even if the law
does not expressly pinpoint the standard, the courts will bend over backward to locate the same
elsewhere in order to spare the statute, if it can, from constitutional infirmity." 24
Given the groove of the Court's rulings, the attempt of petitioners to strike down section 15 on the
ground of undue delegation of legislative power cannot prosper. Section 15 can hurdle both the
completeness test and the sufficient standard test. It will be noted that Congress expressly provided
in R.A. No. 8180 that full deregulation will start at the end of March 1997, regardless of the
occurrence of any event. Full deregulation at the end of March 1997 is mandatory and the Executive
has no discretion to postpone it for any purported reason. Thus, the law is complete on the question
of the final date of full deregulation. The discretion given to the President is to advance the date of
full deregulation before the end of March 1997. Section 15 lays down the standard to guide the
judgment of the President he is to time it as far as practicable when the prices of crude oil and
petroleum products in the world market are declining and when the exchange rate of the peso in
relation to the US dollar isstable.
Petitioners contend that the words "as far as practicable," "declining" and "stable" should have been
defined in R.A. No. 8180 as they do not set determinate or determinable standards. The stubborn
submission deserves scant consideration. The dictionary meanings of these words are well settled
and cannot confuse men of reasonable intelligence. Webster defines "practicable" as meaning
possible to practice or perform, "decline" as meaning to take a downward direction, and "stable" as
meaning firmly established. 25 The fear of petitioners that these words will result in the exercise of
executive discretion that will run riot is thus groundless. To be sure, the Court has sustained the validity of
similar, if not more general standards in other cases. 26
It ought to follow that the argument that E.O. No. 392 is null and void as it was based on
indeterminate standards set by R.A. 8180 must likewise fail. If that were all to the attack against the
validity of E.O. No. 392, the issue need not further detain our discourse. But petitioners further posit
the thesis that the Executive misapplied R.A. No. 8180 when it considered the depletion of the OPSF
fund as a factor in fully deregulating the downstream oil industry in February 1997. A perusal of
section 15 of R.A. No. 8180 will readily reveal that it only enumerated two factors to be considered
by the Department of Energy and the Office of the President, viz.: (1) the time when the prices of
crude oil and petroleum products in the world market are declining, and (2) the time when the
exchange rate of the peso in relation to the US dollar is stable. Section 15 did not mention the
depletion of the OPSF fund as a factor to be given weight by the Executive before ordering full
deregulation. On the contrary, the debates in Congress will show that some of our legislators wanted
to impose as a pre-condition to deregulation a showing that the OPSF fund must not be in
deficit. 27 We therefore hold that the Executive department failed to follow faithfully the standards set by
R.A. No. 8180 when it considered the extraneous factor of depletion of the OPSF fund. The
misappreciation of this extra factor cannot be justified on the ground that the Executive department
considered anyway the stability of the prices of crude oil in the world market and the stability of the
exchange rate of the peso to the dollar. By considering another factor to hasten full deregulation, the
Executive department rewrote the standards set forth in R.A. 8180. The Executive is bereft of any right to

alter either by subtraction or addition the standards set in R.A. No. 8180 for it has no power to make laws.
To cede to the Executive the power to make law is to invite tyranny, indeed, to transgress the principle of
separation of powers. The exercise of delegated power is given a strict scrutiny by courts for the delegate
is a mere agent whose action cannot infringe the terms of agency. In the cases at bar, the Executive comingled the factor of depletion of the OPSF fund with the factors of decline of the price of crude oil in the
world market and the stability of the peso to the US dollar. On the basis of the text of E.O. No. 392, it is
impossible to determine the weight given by the Executive department to the depletion of the OPSF fund.
It could well be the principal consideration for the early deregulation. It could have been accorded an
equal significance. Or its importance could be nil. In light of this uncertainty, we rule that the early
deregulation under E.O. No. 392 constitutes a misapplication of R.A. No. 8180.

We now come to grips with the contention that some provisions of R.A. No. 8180 violate section 19
of Article XII of the 1987 Constitution. These provisions are:
(1) Section 5 (b) which states "Any law to the contrary notwithstanding and starting with
the effectivity of this Act, tariff duty shall be imposed and collected on imported crude oil at
the rate of three percent (3%) and imported refined petroleum products at the rate of seven
percent (7%) except fuel oil and LPG, the rate for which shall be the same as that for
imported crude oil. Provided, that beginning on January 1, 2004 the tariff rate on imported
crude oil and refined petroleum products shall be the same. Provided, further, that this
provision may be amended only by an Act of Congress."
(2) Section 6 which states "To ensure the security and continuity of petroleum crude and
products supply, the DOE shall require the refiners and importers to maintain a minimum
inventory equivalent to ten percent (10%) of their respective annual sales volume or forty
(40) days of supply, whichever is lower," and
(3) Section 9 (b) which states "To ensure fair competition and prevent cartels and
monopolies in the downstream oil industry, the following acts shall be prohibited:
xxx xxx xxx
(b) Predatory pricing which means selling or offering to sell any product at a
price unreasonably below the industry average cost so as to attract
customers to the detriment of competitors.
On the other hand, section 19 of Article XII of the Constitution allegedly violated by the aforestated
provisions of R.A. No. 8180 mandates: "The State shall regulate or prohibit monopolies when the
public interest so requires. No combinations in restraint of trade or unfair competition shall be
allowed."
A monopoly is a privilege or peculiar advantage vested in one or more persons or companies,
consisting in the exclusive right or power to carry on a particular business or trade, manufacture a
particular article, or control the sale or the whole supply of a particular commodity. It is a form of
market structure in which one or only a few firms dominate the total sales of a product or
service. 28 On the other hand, a combination in restraint of trade is an agreement or understanding
between two or more persons, in the form of a contract, trust, pool, holding company, or other form of

association, for the purpose of unduly restricting competition, monopolizing trade and commerce in a
certain commodity, controlling its, production, distribution and price, or otherwise interfering with freedom
of trade without statutory authority. 29 Combination in restraint of trade refers to the means while monopoly
refers to the end. 30

Article 186 of the Revised Penal Code and Article 28 of the New Civil Code breathe life to this
constitutional policy. Article 186 of the Revised Penal Code penalizes monopolization and creation of
combinations in restraint of
trade, 31 while Article 28 of the New Civil Code makes any person who shall engage in unfair competition
liable for damages. 32
Respondents aver that sections 5(b), 6 and 9(b) implement the policies and objectives of R.A. No.
8180. They explain that the 4% tariff differential is designed to encourage new entrants to invest in
refineries. They stress that the inventory requirement is meant to guaranty continuous domestic
supply of petroleum and to discourage fly-by-night operators. They also submit that the prohibition
against predatory pricing is intended to protect prospective entrants. Respondents manifested to the
Court that new players have entered the Philippines after deregulation and have now captured 3%
5% of the oil market.
The validity of the assailed provisions of R.A. No. 8180 has to be decided in light of the letter and
spirit of our Constitution, especially section 19, Article XII. Beyond doubt, the Constitution committed
us to the free enterprise system but it is a system impressed with its own distinctness. Thus, while
the Constitution embraced free enterprise as an economic creed, it did not prohibit per se the
operation of monopolies which can, however, be regulated in the public interest. 33 Thus too, our free
enterprise system is not based on a market of pure and unadulterated competition where the State
pursues a strict hands-off policy and follows the let-the-devil devour the hindmost rule. Combinations in
restraint of trade and unfair competitions are absolutely proscribed and the proscription is directed both
against the State as well as the private sector. 34 This distinct free enterprise system is dictated by the
need to achieve the goals of our national economy as defined by section 1, Article XII of the Constitution
which are: more equitable distribution of opportunities, income and wealth; a sustained increase in the
amount of goods and services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the underprivileged. It also calls for the
State to protect Filipino enterprises against unfair competition and trade practices.
Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses competition.
The desirability of competition is the reason for the prohibition against restraint of trade, the reason
for the interdiction of unfair competition, and the reason for regulation of unmitigated monopolies.
Competition is thus the underlying principle of section 19, Article XII of our Constitution which cannot
be violated by R.A. No. 8180. We subscribe to the observation of Prof. Gellhorn that the objective of
anti-trust law is "to assure a competitive economy, based upon the belief that through competition
producers will strive to satisfy consumer wants at the lowest price with the sacrifice of the fewest
resources. Competition among producers allows consumers to bid for goods and services, and thus
matches their desires with society's opportunity costs." 35 He adds with appropriateness that there is a
reliance upon "the operation of the 'market' system (free enterprise) to decide what shall be produced,
how resources shall be allocated in the production process, and to whom the various products will be
distributed. The market system relies on the consumer to decide what and how much shall be produced,
and on competition, among producers to determine who will manufacture it."

Again, we underline in scarlet that the fundamental principle espoused by section 19, Article XII of
the Constitution is competition for it alone can release the creative forces of the market. But the
competition that can unleash these creative forces is competition that is fighting yet is fair. Ideally,
this kind of competition requires the presence of not one, not just a few but several players. A market
controlled by one player (monopoly) or dominated by a handful of players (oligopoly) is hardly the
market where honest-to-goodness competition will prevail. Monopolistic or oligopolistic markets
deserve our careful scrutiny and laws which barricade the entry points of new players in the market
should be viewed with suspicion.
Prescinding from these baseline propositions, we shall proceed to examine whether the provisions of
R.A. No. 8180 on tariff differential, inventory reserves, and predatory prices imposed substantial
barriers to the entry and exit of new players in our downstream oil industry. If they do, they have to
be struck down for they will necessarily inhibit the formation of a truly competitive market.
Contrariwise, if they are insignificant impediments, they need not be stricken down.
In the cases at bar, it cannot be denied that our downstream oil industry is operated and controlled
by an oligopoly, a foreign oligopoly at that. Petron, Shell and Caltex stand as the only major league
players in the oil market. All other players belong to the lilliputian league. As the dominant players,
Petron, Shell and Caltex boast of existing refineries of various capacities. The tariff differential of 4%
therefore works to their immense benefit. Yet, this is only one edge of the tariff differential. The other
edge cuts and cuts deep in the heart of their competitors. It erects a high barrier to the entry of new
players. New players that intend to equalize the market power of Petron, Shell and Caltex by
building refineries of their own will have to spend billions of pesos. Those who will not build refineries
but compete with them will suffer the huge disadvantage of increasing their product cost by 4%.
They will be competing on an uneven field. The argument that the 4% tariff differential is desirable
because it will induce prospective players to invest in refineries puts the cart before the horse. The
first need is to attract new players and they cannot be attracted by burdening them with heavy
disincentives. Without new players belonging to the league of Petron, Shell and Caltex, competition
in our downstream oil industry is an idle dream.
The provision on inventory widens the balance of advantage of Petron, Shell and Caltex against
prospective new players. Petron, Shell and Caltex can easily comply with the inventory requirement
of R.A. No. 8180 in view of their existing storage facilities. Prospective competitors again will find
compliance with this requirement difficult as it will entail a prohibitive cost. The construction cost of
storage facilities and the cost of inventory can thus scare prospective players. Their net effect is to
further occlude the entry points of new players, dampen competition and enhance the control of the
market by the three (3) existing oil companies.
Finally, we come to the provision on predatory pricing which is defined as ". . . selling or offering to
sell any product at a price unreasonably below the industry average cost so as to attract customers
to the detriment of competitors." Respondents contend that this provision works against Petron,
Shell and Caltex and protects new entrants. The ban on predatory pricing cannot be analyzed in
isolation. Its validity is interlocked with the barriers imposed by R.A. No. 8180 on the entry of new
players. The inquiry should be to determine whether predatory pricing on the part of the dominant oil
companies is encouraged by the provisions in the law blocking the entry of new players. Text-writer
Hovenkamp, 36 gives the authoritative answer and we quote:

xxx xxx xxx

The rationale for predatory pricing is the sustaining of losses today that will give a firm
monopoly profits in the future. The monopoly profits will never materialize, however, if the
market is flooded with new entrants as soon as the successful predator attempts to raise its
price. Predatory pricing will be profitable only if the market contains significant barriers to
new entry.
As aforediscsussed, the 4% tariff differential and the inventory requirement are significant barriers
which discourage new players to enter the market. Considering these significant barriers established
by R.A. No. 8180 and the lack of players with the comparable clout of PETRON, SHELL and
CALTEX, the temptation for a dominant player to engage in predatory pricing and succeed is a
chilling reality. Petitioners' charge that this provision on predatory pricing is anti-competitive is not
without reason.
Respondents belittle these barriers with the allegation that new players have entered the market
since deregulation. A scrutiny of the list of the alleged new players will, however, reveal that not one
belongs to the class and category of PETRON, SHELL and CALTEX. Indeed, there is no showing
that any of these new players intends to install any refinery and effectively compete with these
dominant oil companies. In any event, it cannot be gainsaid that the new players could have been
more in number and more impressive in might if the illegal entry barriers in R.A. No. 8180 were not
erected.
We come to the final point. We now resolve the total effect of the untimely deregulation, the
imposition of 4% tariff differential on imported crude oil and refined petroleum products, the
requirement of inventory and the prohibition on predatory pricing on the constitutionality of R.A. No.
8180. The question is whether these offending provisions can be individually struck down without
invalidating the entire R.A. No. 8180. The ruling case law is well stated by author Agpalo, 37 viz.:
xxx xxx xxx
The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself if it had supposed that it could
not constitutionally enact the other. Enough must remain to make a complete, intelligible and
valid statute, which carries out the legislative intent. . . .
The exception to the general rule is that when the parts of a statute are so mutually
dependent and connected, as conditions, considerations, inducements, or compensations for
each other, as to warrant a belief that the legislature intended them as a whole, the nullity of
one part will vitiate the rest. In making the parts of the statute dependent, conditional, or
connected with one another, the legislature intended the statute to be carried out as a whole
and would not have enacted it if one part is void, in which case if some parts are

unconstitutional, all the other provisions thus dependent, conditional, or connected must fall
with them.
R.A. No. 8180 contains a separability clause. Section 23 provides that "if for any reason, any section
or provision of this Act is declared unconstitutional or invalid, such parts not affected thereby shall
remain in full force and effect." This separability clause notwithstanding, we hold that the offending
provisions of R.A. No. 8180 so permeate its essence that the entire law has to be struck down. The
provisions on tariff differential, inventory and predatory pricing are among the principal props of R.A.
No. 8180. Congress could not have deregulated the downstream oil industry without these
provisions. Unfortunately, contrary to their intent, these provisions on tariff differential, inventory and
predatory pricing inhibit fair competition, encourage monopolistic power and interfere with the free
interaction of market forces. R.A. No. 8180 needs provisions to vouchsafe free and fair competition.
The need for these vouchsafing provisions cannot be overstated. Before deregulation, PETRON,
SHELL and CALTEX had no real competitors but did not have a free run of the market because
government controls both the pricing and non-pricing aspects of the oil industry. After deregulation,
PETRON, SHELL and CALTEX remain unthreatened by real competition yet are no longer subject to
control by government with respect to their pricing and non-pricing decisions. The aftermath of R.A.
No. 8180 is a deregulated market where competition can be corrupted and where market forces can
be manipulated by oligopolies.
The fall out effects of the defects of R.A. No. 8180 on our people have not escaped Congress. A lot
of our leading legislators have come out openly with bills seeking the repeal of these odious and
offensive provisions in R.A. No. 8180. In the Senate, Senator Freddie Webb has filed S.B. No. 2133
which is the result of the hearings conducted by the Senate Committee on Energy. The hearings
revealed that (1) there was a need to level the playing field for the new entrants in the downstream
oil industry, and (2) there was no law punishing a person for selling petroleum products at
unreasonable prices. Senator Alberto G. Romulo also filed S.B. No. 2209 abolishing the tariff
differential beginning January 1, 1998. He declared that the amendment ". . . would mean that
instead of just three (3) big oil companies there will be other major oil companies to provide more
competitive prices for the market and the consuming public." Senator Heherson T . Alvarez, one of
the principal proponents of R.A. No. 8180, also filed S.B. No. 2290 increasing the penalty for
violation of its section 9. It is his opinion as expressed in the explanatory note of the bill that the
present oil companies are engaged in cartelization despite R.A. No. 8180,viz,:
xxx xxx xxx
Since the downstream oil industry was fully deregulated in February 1997, there have been
eight (8) fuel price adjustments made by the three oil majors, namely: Caltex Philippines,
Inc.; Petron Corporation; and Pilipinas Shell Petroleum Corporation. Very noticeable in the
price adjustments made, however, is the uniformity in the pump prices of practically all
petroleum products of the three oil companies. This, despite the fact, that their selling rates
should be determined by a combination of any of the following factors: the prevailing pesodollar exchange rate at the time payment is made for crude purchases, sources of crude,
and inventory levels of both crude and refined petroleum products. The abovestated factors
should have resulted in different, rather than identical prices.

The fact that the three (3) oil companies' petroleum products are uniformly priced suggests
collusion, amounting to cartelization, among Caltex Philippines, Inc., Petron Corporation and
Pilipinas Shell Petroleum Corporation to fix the prices of petroleum products in violation of
paragraph (a), Section 9 of R.A. No. 8180.
To deter this pernicious practice and to assure that present and prospective players in the
downstream oil industry conduct their business with conscience and propriety, cartel-like
activities ought to be severely penalized.
Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a uniform tariff rate on imported
crude oil and refined petroleum products. In the explanatory note of the bill, he declared in no
uncertain terms that ". . . the present set-up has raised serious public concern over the way the three
oil companies have uniformly adjusted the prices of oil in the country, an indication of a possible
existence of a cartel or a cartel-like situation within the downstream oil industry. This situation is
mostly attributed to the foregoing provision on tariff differential, which has effectively discouraged
the entry of new players in the downstream oil industry."
In the House of Representatives, the moves to rehabilitate R.A. No. 8180 are equally
feverish. Representative Leopoldo E. San Buenaventura has filed H.B. No. 9826 removing the tariff
differential for imported crude oil and imported refined petroleum products. In the explanatory note of
the bill, Rep. Buenaventura explained:
xxx xxx xxx
As we now experience, this difference in tariff rates between imported crude oil and imported
refined petroleum products, unwittingly provided a built-in-advantage for the three existing oil
refineries in the country and eliminating competition which is a must in a free enterprise
economy. Moreover, it created a disincentive for other players to engage even initially in the
importation and distribution of refined petroleum products and ultimately in the putting up of
refineries. This tariff differential virtually created a monopoly of the downstream oil industry
by the existing three oil companies as shown by their uniform and capricious pricing of their
products since this law took effect, to the great disadvantage of the consuming public.
Thus, instead of achieving the desired effects of deregulation, that of free enterprise and a
level playing field in the downstream oil industry, R.A. 8180 has created an environment
conducive to cartelization, unfavorable, increased, unrealistic prices of petroleum products in
the country by the three existing refineries.
Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981 to prevent collusion among the present
oil companies by strengthening the oversight function of the government, particularly its ability to
subject to a review any adjustment in the prices of gasoline and other petroleum products. In the
explanatory note of the bill, Rep. Punzalan, Jr., said:
xxx xxx xxx

To avoid this, the proposed bill seeks to strengthen the oversight function of government,
particularly its ability to review the prices set for gasoline and other petroleum products. It
grants the Energy Regulatory Board (ERB) the authority to review prices of oil and other
petroleum products, as may be petitioned by a person, group or any entity, and to
subsequently compel any entity in the industry to submit any and all documents relevant to
the imposition of new prices. In cases where the Board determines that there exist collusion,
economic conspiracy, unfair trade practice, profiteering and/or overpricing, it may take any
step necessary to protect the public, including the readjustment of the prices of petroleum
products. Further, the Board may also impose the fine and penalty of imprisonment, as
prescribed in Section 9 of R.A. 8180, on any person or entity from the oil industry who is
found guilty of such prohibited acts.
By doing all of the above, the measure will effectively provide Filipino consumers with a
venue where their grievances can be heard and immediately acted upon by government.
Thus, this bill stands to benefit the Filipino consumer by making the price-setting process
more transparent and making it easier to prosecute those who perpetrate such prohibited
acts as collusion, overpricing, economic conspiracy and unfair trade.
Representative Sergio A.F . Apostol filed H.B. No. 10039 to remedy an omission in R.A. No. 8180
where there is no agency in government that determines what is "reasonable" increase in the prices
of oil products.Representative Dente O. Tinga, one of the principal sponsors of R.A. No. 8180, filed
H.B. No. 10057 to strengthen its anti-trust provisions. He elucidated in its explanatory note:
xxx xxx xxx
The definition of predatory pricing, however, needs to be tightened up particularly with
respect to the definitive benchmark price and the specific anti-competitive intent. The
definition in the bill at hand which was taken from the Areeda-Turner test in the United States
on predatory pricing resolves the questions. The definition reads, "Predatory pricing means
selling or offering to sell any oil product at a price below the average variable cost for the
purpose of destroying competition, eliminating a competitor or discouraging a competitor
from entering the market."
The appropriate actions which may be resorted to under the Rules of Court in conjunction
with the oil deregulation law are adequate. But to stress their availability and dynamism, it is
a good move to incorporate all the remedies in the law itself. Thus, the present bill formalizes
the concept of government intervention and private suits to address the problem of antitrust
violations. Specifically, the government may file an action to prevent or restrain any act of
cartelization or predatory pricing, and if it has suffered any loss or damage by reason of the
antitrust violation it may recover damages. Likewise, a private person or entity may sue to
prevent or restrain any such violation which will result in damage to his business or property,
and if he has already suffered damage he shall recover treble damages. A class suit may
also be allowed.

To make the DOE Secretary more effective in the enforcement of the law, he shall be given
additional powers to gather information and to require reports.
Representative Erasmo B. Damasing filed H.B. No. 7885 and has a more unforgiving view of R.A.
No. 8180. He wants it completely repealed. He explained:
xxx xxx xxx
Contrary to the projections at the time the bill on the Downstream Oil Industry Deregulation
was discussed and debated upon in the plenary session prior to its approval into law, there
aren't any new players or investors in the oil industry. Thus, resulting in practically a cartel or
monopoly in the oil industry by the three (3) big oil companies, Caltex, Shell and Petron. So
much so, that with the deregulation now being partially implemented, the said oil companies
have succeeded in increasing the prices of most of their petroleum products with little or no
interference at all from the government. In the month of August, there was an increase of
Fifty centavos (50) per liter by subsidizing the same with the OPSF, this is only temporary
as in March 1997, or a few months from now, there will be full deregulation (Phase II)
whereby the increase in the prices of petroleum products will be fully absorbed by the
consumers since OPSF will already be abolished by then. Certainly, this would make the
lives of our people, especially the unemployed ones, doubly difficult and unbearable.
The much ballyhooed coming in of new players in the oil industry is quite remote considering
that these prospective investors cannot fight the existing and well established oil companies
in the country today, namely, Caltex, Shell and Petron. Even if these new players will come
in, they will still have no chance to compete with the said three (3) existing big oil companies
considering that there is an imposition of oil tariff differential of 4% between importation of
crude oil by the said oil refineries paying only 3% tariff rate for the said importation and 7%
tariff rate to be paid by businessmen who have no oil refineries in the Philippines but will
import finished petroleum/oil products which is being taxed with 7% tariff rates.
So, if only to help the many who are poor from further suffering as a result of unmitigated
increase in oil products due to deregulation, it is a must that the Downstream Oil Industry
Deregulation Act of 1996, or R.A. 8180 be repealed completely.
Various resolutions have also been filed in the Senate calling for an immediate and comprehensive
review of R.A. No. 8180 to prevent the downpour of its ill effects on the people. Thus, S. Res. No.
574 was filed by Senator Gloria M. Macapagal entitled Resolution "Directing the Committee on
Energy to Inquire Into The Proper Implementation of the Deregulation of the Downstream Oil
Industry and Oil Tax Restructuring As Mandated Under R.A. Nos. 8180 and 8184, In Order to Make
The Necessary Corrections In the Apparent Misinterpretation Of The Intent And Provision Of The
Laws And Curb The Rising Tide Of Disenchantment Among The Filipino Consumers And Bring About
The Real Intentions And Benefits Of The Said Law." Senator Blas P. Ople filed S. Res. No. 664
entitled resolution "Directing the Committee on Energy To Conduct An Inquiry In Aid Of Legislation
To Review The Government's Oil Deregulation Policy In Light Of The Successive Increases In
Transportation, Electricity And Power Rates, As well As Of Food And Other Prime Commodities And
Recommend Appropriate Amendments To Protect The Consuming Public." Senator Ople observed:

xxx xxx xxx

WHEREAS, since the passage of R.A. No. 8180, the Energy Regulatory Board (ERB) has
imposed successive increases in oil prices which has triggered increases in electricity and
power rates, transportation fares, as well as in prices of food and other prime commodities to
the detriment of our people, particularly the poor;
WHEREAS, the new players that were expected to compete with the oil cartel-Shell, Caltex
and Petron-have not come in;
WHEREAS, it is imperative that a review of the oil deregulation policy be made to consider
appropriate amendments to the existing law such as an extension of the transition phase
before full deregulation in order to give the competitive market enough time to develop;
WHEREAS, the review can include the advisability of providing some incentives in order to
attract the entry of new oil companies to effect a dynamic competitive market;
WHEREAS, it may also be necessary to defer the setting up of the institutional framework for
full deregulation of the oil industry as mandated under Executive Order No. 377 issued by
President Ramos last October 31, 1996 . . .
Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution "Directing the Committees on
Energy and Public Services In Aid Of Legislation To Assess The Immediate Medium And Long Term
Impact of Oil Deregulation On Oil Prices And The Economy." Among the reasons for the resolution is
the finding that "the requirement of a 40-day stock inventory effectively limits the entry of other oil
firms in the market with the consequence that instead of going down oil prices will rise."
Parallel resolutions have been filed in the House of Representatives. Representative Dante
O. Tinga filed H. Res. No. 1311 "Directing The Committee on Energy To Conduct An Inquiry, In Aid of
Legislation, Into The Pricing Policies And Decisions Of The Oil Companies Since The
Implementation of Full Deregulation Under the Oil Deregulation Act (R.A. No. 8180) For the Purpose
of Determining In the Context Of The Oversight Functions Of Congress Whether The Conduct Of
The Oil Companies, Whether Singly Or Collectively, Constitutes Cartelization Which Is A Prohibited
Act Under R.A. No. 8180, And What Measures Should Be Taken To Help Ensure The Successful
Implementation Of The Law In Accordance With Its Letter And Spirit, Including Recommending
Criminal Prosecution Of the Officers Concerned Of the Oil Companies If Warranted By The
Evidence, And For Other Purposes." Representatives Marcial C. Punzalan, Jr. Dante O. Tinga and
Antonio E. Bengzon III filed H.R. No. 894 directing the House Committee on Energy to inquire into
the proper implementation of the deregulation of the downstream oil industry. House Resolution No.
1013 was also filed by Representatives Edcel C. Lagman, Enrique T . Garcia, Jr. and Joker
P. Arroyo urging the President to immediately suspend the implementation of E.O. No. 392.
In recent memory there is no law enacted by the legislature afflicted with so much constitutional
deformities as R.A. No. 8180. Yet, R.A. No. 8180 deals with oil, a commodity whose supply and price
affect the ebb and flow of the lifeblood of the nation. Its shortage of supply or a slight, upward spiral
in its price shakes our economic foundation. Studies show that the areas most impacted by the

movement of oil are food manufacture, land transport, trade, electricity and water. 38 At a time when
our economy is in a dangerous downspin, the perpetuation of R.A. No. 8180 threatens to multiply the
number of our people with bent backs and begging bowls. R.A. No. 8180 with its anti-competition
provisions cannot be allowed by this Court to stand even while Congress is working to remedy its defects.
The Court, however, takes note of the plea of PETRON, SHELL and CALTEX to lift our restraining
order to enable them to adjust upward the price of petroleum and petroleum products in view of the
plummeting value of the peso. Their plea, however, will now have to be addressed to the Energy
Regulatory Board as the effect of the declaration of unconstitutionality of R.A. No. 8180 is to revive
the former laws it repealed. 39 The length of our return to the regime of regulation depends on Congress
which can fasttrack the writing of a new law on oil deregulation in accord with the Constitution.
With this Decision, some circles will chide the Court for interfering with an economic decision of
Congress. Such criticism is charmless for the Court is annulling R.A. No. 8180 not because it
disagrees with deregulation as an economic policy but because as cobbled by Congress in its
present form, the law violates the Constitution. The right call therefor should be for Congress to write
a new oil deregulation law that conforms with the Constitution and not for this Court to shirk its duty
of striking down a law that offends the Constitution. Striking down R.A. No. 8180 may cost losses in
quantifiable terms to the oil oligopolists. But the loss in tolerating the tampering of our Constitution is
not quantifiable in pesos and centavos. More worthy of protection than the supra-normal profits of
private corporations is the sanctity of the fundamental principles of the Constitution. Indeed when
confronted by a law violating the Constitution, the Court has no option but to strike it down dead.
Lest it is missed, the Constitution is a covenant that grants and guarantees both the political
and economic rights of the people. The Constitution mandates this Court to be the guardian not only
of the people's political rights but their economic rights as well. The protection of the economic rights
of the poor and the powerless is of greater importance to them for they are concerned more with the
exoterics of living and less with the esoterics of liberty. Hence, for as long as the Constitution reigns
supreme so long will this Court be vigilant in upholding the economic rights of our people especially
from the onslaught of the powerful. Our defense of the people's economic rights may appear
heartless because it cannot be half-hearted.
IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is declared unconstitutional and E.O.
No. 372 void.
SO ORDERED.

B. Political
1. Ceniza vs COMELEC (95 SCRA 763)
G.R. No. L-52304 January 28, 1980
RAMON B. CENIZA, FEDERICO C. CABILAO, JR., NELSON J. ROSAL and ALEJANDRO R.
ALINSUG,petitioners,
vs.
COMMISSION ON ELECTIONS, COMMISSION ON AUDIT, and NATIONAL
TREASURER, respondents.

CONCEPCION JR., J.:

Petition for prohibition and mandamus moth a prayer for a writ of preliminary injunction.
On December 22. 1979, the Interim Batasang Pambansa enacted Batas Blg. 51 providing for local
elections on January 30, 1980. Section of the statute provides:
SEC. 3. Cities. There shall be in each city such elective local officials as provided
in their respective charters, including the city mayor, the city vice-mayor, and the
elective members of the sangguniang panglungsod, all of whom shall' be elected by
the qualified voters in the city. In addition thereto, there shall be appointive
sangguniang panglungsod members consisting of the of the city association of
barangay councils, the President of the city federation of the kabataang barangay,
and one representative each from the agricultural and industrial labor sectors who
shall be appointed by the President (Prime Minister) whenever, as de by the
sangguniang panglungsod, said sectors are of sufficient number in the city to warrant
representation.
Until cities are reclassified into highly urbanized and component cities in accordance
with the standards established in the Local Government Code as provided for in
Article XI, Section 4(1) of the Constitution. any city now existing with an annual
regular derived from infrastructure and general funds of not less than forty million
pesos (P40,000,000.00) at the time of the approval of this Act shag be classified as a
highly urbanized city. All other cities shall be considered components of the provinces
where they are geographically located.
The City of Baguio, because of its special functions as the summer capital of the
Philippines, shall be classified as a highly urbanized city irrespective of its income.
The registered voters of a component city may be entitled to vote in the election of
the officials of the province of which that city is a component, if its charter so
provides. However, voters registered in a highly urbanized city, as hereinabove
defined shall not participate nor vote in the election of the officials of the province in
which the highly urbanized city is geographically located.
To implement this Act, the Commission on Elections (COMELEC, for short) adopted Resolution No.
1421, which reads as follows:
WHEREAS, Batas Pambansa Blg. 51 in calling for the election of the provincial
governor, provincial vice-governor and members of the Sangguniang Panlalawigan in
each province classified the chartered cities of the Philippines into "highly urbanized"
and "component" cities based on the annual regular income of each city, and
provided that "the registered voter of a component city may be entitled to vote in the
election of the officials of the province of which that city is a component, if its charter
provides", but that "voters registered in a highly urbanized city, shall not participate
nor vote in the election of the officials of the province in which the highly urbanized
city is geographically located";

WHEREAS, inasmuch as the charters of the different cities vary with respect to the
right of their registered voters to vote for the provincial officials of the provinces
where they are located, there is need to study the various charters of the cities and
determine what cities shall and shall not vote for provincial officials pursuant to Batas
Pambansa Blg. 51;
WHEREAS, the voters in the cities should be accordingly informed if they are going
to vote for provincial officials or not, for their proper guidance;
NOW, THEREFORE, the Commission on Elections, by virtue of the powers conferred
upon it by the Constitution, the 1978 Election Code and Batas Pambansa Blg. 52
(51) RESOLVED, as it hereby RESOLVES, that the qualified voters in each city shall
or shall not be entitled to vote for the provincial officials of the province where they
are geographically located, to wit:
A. Cities not entitled to participate in the election of pro- provincial
officials

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Because the City of Cebu has an income of P51,603,147,64, it is classified as a highly urbanized city
and the voters thereof cannot take part in the election of the elective provincial officials of the
province of Cebu, although the Charter of Cebu City 1 allows the qualified voters of the city to vote in
the election of the provincial officials of the Province of Cebu.
The City of Mandaue, not having an annual regular income of not less than ?40 million, is classified
as a component city. But the registered voters of the city cannot vote for the provincial elective
officials because its Charter 2 expressly provides that the registered voters of the city cannot participate
in the election of the provincial officials of the Province of Cebu, except to be a candidate therefor.
The petitioners filed the instant suit as taxpayers and registered voters in the Cities of Cebu and
Mandaue. They are members of a civic and non-partisan group known as D-O-E-R-S (an accronym
for "DEMOCRACY OR EXTINCTION: RESOLVED TO SUCCEED) which counts lawyers among its
members, and extends free legal assistance to citizens regardless of economic and social status in

meritorious cases involving violation of civil liberties and basic human rights. They vigorously assail
Section 3 of Batas Pambansa Blg. 51, which uses the annual income of a given city as the basis for
classification of whether or not a particular city is a highly urbanized city whose voters may not
participate in the election of provincial officials of the province where the city is geographically
located; and Republic Act No. 5519, otherwise known as the Charter of Mandaue City, which went
into effect without the benefit of ratification by the residents of Mandaue in a plebiscite or
referendum. They pray that upon filing of the instant petition, a restraining order be issued
"temporarily prohibiting the holding of election for Provincial Governor and other elective provincial
officials in the province where the 18 cities listed by the respondent COMELEC are located,
particularly Cebu City and Mandaue City, and temporarily prohibiting the National Treasurer to
release public funds and the COA to pass in audit said funds in connection with and for the purpose
of holding local elections in said provinces; and after hearing, to make the injunction permanent
declaring unconstitutional and therefore void Section 96, Art. XVIII of the Charter of Mandaue,
otherwise known as RA 5519," and should the stopping of the provincial elections in the provinces
concerned be not possible, the respondent COMELEC be directed "to allow the qualified registered
voters in the cities listed by said respondent, particularly Cebu City and Mandaue City, to participate
in the election of, and vote for, the Provincial Governor and other elective provincial officials and
preparing the corresponding official ballots for this purpose which shall provide spaces therein for
Provincial Governor and other elective provincial officials of the provinces concerned, particularly the
province of Cebu."
The petitioners contend that "Section 3 of Batas Blg. 885 3 insofar as it classifies cities including Cebu
city as highly urbanized as the only basis for not allowing its electorate to vote for the provincial officials is
inherently and palpably unconstitutional in that such classification is not based on substantial distinctions
germane to the purpose of the law which in effect provides for and regulates the exercise of the right of
suffrage, and therefore such unreasonable classification amounts to a denial of equal protection."
We find no merit in the petition. The thrust of the 1973 Constitution is towards the fullest autonomy of
local government units. In the Declaration of Principles and State Policies, it is stated that "The state
shall guarantee and promote the autonomy of local government units, especially the barrio, to
ensure their fullest development as self-reliant communities." 4 To this end, the Constitution directs the
National Assembly to "enact a local government code which may not thereafter be amended except by
the majority vote of all its members, defining a more responsive and accountable local government
structure with an effective system of recall, allocating among the different local governments their powers,
responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries,
powers, functions, and duties of local officials, and all other matters relating to the organization and
operation of local government units," 5 and empowered local government units "to create its own sources
of revenue and to levy taxes, subject to limitations as may be provided by law." 6 Art. XI, Section 4(1) of
the said Constitution places highly urbanized cities outside the supervisory power of the province where
they are geographically located. This is as it should be because of the complex and varied problems in a
highly urbanized city due to a bigger population and greater economic activity which require greater
autonomy.
Corollary to independence however, is the concomitant loss of the right to participate in provincial
affairs, more particularly the selection of elective provincial officials since these provincial officials
have ceased to exercise any governmental jurisdiction and authority over said city. Thus, in the case
of Teves vs. Commission on Election 7this Court, in holding that the registered voters of the City of
Dumaguete cannot vote for the provincial officials of Negros Oriental because the charter of the city does
not expressly allow the voters in the city to do so, ruled:
The creation of Dumaguete City has made it a political entity separate from and
independent of the province of Negros Oriental. The purpose of an election is to
enable the electorate to choose the men that will run their government, whether

national, provincial, municipal or city. It so, no useful end will be served by allowing
in the absence of express legislative preference the voters of a city to ceased
to have any governmental jurisdiction and authority over said city.
To confirm our view that the city of Dumaguete has been segregated from the
province of Oriental Negros for purposes of provincial elections, we should point to
the penultimate section of the charter providing that "until otherwise provided by law,
the City of Dumaguete shall continue as part of the first representative district of the
Province of Oriental Negros." This is an express exception to the general effect of
separation an exception that serves to reiterate or even establish the rule. In other
words, the Congress meant that the inhabitants of the city may not vote for provincial
officials, but may vote for their representative in Congress.
The classification of cities into highly urbanized cities and component cities on the basis of their
regular annual income is based upon substantial distinction. The revenue of a city would show
whether or not it is capable of existence and development as a relatively independent social,
economic, and political unit. It would also show whether the city has sufficient economic or industrial
activity as to warrant its independence from the province where it is geographically situated. Cities
with smaller income need the continued support of the provincial government thus justifying the
continued participation of the voters in the election of provincial officials in some instances.
The petitioners also contend that the voters in Mandaue City are denied equal protection of the law
since the voters in other component cities are allowed to vote for provincial officials. The contention
is without merit. The practice of allowing voters in one component city to vote for provincial officials
and denying the same privilege to voters in another component city is a matter of legislative
discretion which violates neither the Constitution nor the voter's right of suffrage. In the case
of Teves v. Commission on Election 8 the Court said.
Petitioners' contention is that, as the Charter of Dumaguete City is silent as to the
right of its qualified voters to participate in the election of provincial officials of Negros
Oriental and as said voters are residents of the province, they are clearly entitled to
vote for said provincial officials.
The charters of other recently formed cities are articulate on the matter. Thus, in the
case of Bacolod, Cabanatuan Legaspi Naga, and Ormoc, their charters expressly
prohibit the residents therein from voting for provincial officials of the province to
which said cities formerly belonged. Upon the other hand, the charters of Cagayan
de Oro, Butuan, Cavite, Iloilo, Calbayog Lipa San Pablo, and Dagupan contain
provisions extending their part in the election of the provincial official cities were
previously included.
The question that presents itself has reference to the effect of the omission in the
charter of Dumaguete City of an express provision on the right of its residents to vote
for provincial officials of Negros Oriental, in the light of the legislative practice that,
when desired, the right is either recognized or withdrawn expressly. We are inclined
to overrule petitioners' position.
The equal protection of the law contemplates equality in the enjoyment of similar rights and
privileges granted by law. It would have been discriminatory and a denial of the equal protection of
the law if the statute prohibited an individual or group of voters in the city from voting for provincial
officials while granting it to another individual or groups of voters in the same city.

Neither can it be considered an infringement upon the petitioners' rights of suffrage since the
Constitution confers no right to a voter in a city to vote for the provincial officials of the province
where the city is located. Their right is limited to the right to vote for elective city officials in local
elections which the questioned statues neither withdraw nor restrict.
The petitioners further claim that to prohibit the voters in a city from voting for elective provincial
officials would impose a substantial requirement on the exercise of suffrage and would violate the
sanctity of the ballot, contrary to the provisions of Art. VI, Section 1 of the Constitution. The
prohibition contemplated in the Constitution, however, has reference to such requirements, as the
Virginia poll tax, invalidated in Harper vs. Virginia Board of Elections, 9 or the New York requirement
that to be eligible to vote in a school district, one must be a parent of a child enrolled in a local public
school, nullified in Kramer vs. Union Free School District, 395 U.S. 621, which impose burdens on the
right of suffrage without achieving permissible estate objectives. In this particular case, no such burdens
are imposed upon the voters of the cities of Cebu and Mandaue. They are free to exercise their rights
without any other requirement, save that of being registered voters in the cities where they reside and the
sanctity of their ballot is maintained.
It is also contended that the prohibition would subvert the principle of republicanism as it would
deprive a citizen his right to participate in the conduct of the affairs of the government unit through
the exercise of his right of suffrage. It has been pointed out, however, that the provincial government
has no governmental supervision over highly urbanized cities. These cities are independent of the
province in the administration of their affairs. Such being the case, it is but just and proper to limit the
selection and election of the provincial officials to the voters of the province whose interests are
vitally affected and exclude therefrom the voters of highly urbanized cities.
Petitioners assail the charter of the City of Mandaue as unconstitutional for not having been ratified
by the residents of the city in a plebiscite. This contention is untenable. The Constitutional
requirement that the creation, division, merger, abolition, or alteration of the boundary of a province,
city, municipality, or barrio should be subject to the approval by the majority of the votes cast in a
plebiscite in the governmental unit or units affected 10is a new requirement that came into being only
with the 1973 Constitution. It is prospective 11 in character and therefore cannot affect the creation of the
City of Mandaue which came into existence on June 21, 1969.
Finally, the petitioners claim that political and gerrymandering motives were behind the passage of
Batas Blg. 51 and Section 96 of the Charter of Mandaue City. They contend that the Province of
Cebu is politically and historically known as an opposition bailiwick and of the total 952,716
registered voters in the province, 234,582 are from Cebu City and 44,358 come from Mandaue City,
so that 278,940 electors, or close to one-third (1/3) of the entire province of Cebu would be barred
from voting for the provincial officials of the province of Cebu. Such charge has no factual and legal
basis. "Gerrymandering" is a "term employed to describe an apportionment of representative districts
so contrived as to give an unfair advantage to the party in power. 12 The questioned statutes in this
particular case do not apportion representative districts. The said representative districts remain the
same. Nor has it been shown that there is an unfair advantage in favor of the candidates of the party in
power. As the Solicitor General pointed out, it may even be that the majority of the city voters are
supporters of the administration candidates, so that the enactment of the questioned statutes will work to
their disadvantage.
WHEREFORE, the petition should be, as it is hereby dismissed. Costs against the petitioners.
SO ORDERED.

2. Nuez vs Sandiganbayan (111 SCRA 433)

G.R. Nos. L-50581-50617 January 30, 1982
RUFINO V. NUEZ petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
FERNANDO, C.J.:
In categorical and explicit language, the Constitution provided for but did not create a special Court,
theSandiganbayan with "jurisdiction over criminal and civil cases involving graft and corrupt practices
and such other offenses committed by public officers and employees, including those in governmentowned or controlled corporations, in relation to their office as may be determined by law." 1 It came
into existence with the issuance in 1978 of a Presidential Decree. 2 Even under the 1935 Constitution, to
be precise, in 1955, an anti-graft statute was passed, 3 to be supplemented five years later by another
act, 4 the validity of which was upheld in Morfe v. Mutuc, 5 a 1968 decision. As set forth in the opinion of
the Court: "Nothing can be clearer therefore than that the AntiGraft Act of 1960 like the earlier statute was
precisely aimed at curtailing and minimizing the opportunities for official corruption and maintaining a
standard of honesty in the public service. It is intended to further promote morality in public administration.
A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued
commands the assent of all. The conditions then prevailing called for norms of such character. The times
demanded such a remedial device." 6 It should occasion no surprise, therefore, why the 1971
Constitutional Convention, with full awareness of the continuity need to combat the evils of graft and
corruption, included the above-cited provision.
Petitioner in this certiorari and prohibition proceeding assails the validity of the Presidential Decree
creating the Sandiganbayan, He was accused before such respondent Court of estafa through
falsification of public and commercial documents committed in connivance with his other coaccused, all public officials, in several cases. 7 The informations were filed respectively on February 21
and March 26, 1979. Thereafter, on May 15 of that year, upon being arraigned, he filed a motion to quash
on constitutional and jurisdictional grounds. 8 A week later. respondent Court denied such motion. 9 There
was a motion for reconsideration filed the next day; it met the same fate. 10 Hence this petition for certiorari
and prohibition It is the claim of petitioner that Presidential Decree No. 1486, as amended, creating the
respondent Court is violative of the due process, 11 equal protection, 12 and ex post facto 13 clauses of the
Constitution. 14
The overriding concern, made manifest in the Constitution itself, to cope more effectively with
dishonesty and abuse of trust in the public service whether committed by government officials or not,

with the essential cooperation of the private citizens with whom they deal, cannot of itself justify any
departure from or disregard of constitutional rights. That is beyond question. With due recognition,
however, of the vigor and persistence of counsel of petitioner 15 in his pleadings butressed by scholarly
and diligent research, the Court, equally aided in the study of the issues raised by the exhaustive
memorandum of the Solicitor General, 16 is of the view that the invalidity of Presidential Decree No, 1486
as amended, creating respondent Court has not been demonstrated.
The petition then cannot be granted. The unconstitutionality of such Decree cannot be adjudged.
1. It is to be made clear that the power of the then President and Prime Minister Ferdinand E.
Marcos to create the Sandiganbayan in 1978 is not challenged in this proceeding. While such
competence under the 1973 Constitution contemplated that such an act should come from the
National Assembly, the 1976 Amendments made clear that he as incumbent President "shall
continue to exercise legislative powers until martial law shall have been lifted. " 17 Thus, there is an
affirmation of the ruling of this Court in Aquino Jr. v. Commission on Elections 18 decided in 1975. In the
language of the ponente, Justice Makasiar, it dissipated "all doubts as to the legality of such law-making
authority by the President during the period of Martial Law, ... . 19 As the opinion went on to state: "It is not
a grant of authority to legislate, but a recognition of such power as already existing in favor of the
incumbent President during the period of Martial Law. " 20
2. Petitioner in his memorandum invokes the guarantee of equal protection in seeking to nullify
Presidential Decree No. 1486. What does it signify? To quote from J. M. Tuason & Co. v. Land
Tenure Administration: 21 "The Ideal situation is for the law's benefits to be available to all, that none be
placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs
of men governed by that serene and impartial uniformity which is of the very essence of the Idea of
law." 22 There is recognition, however, in the opinion that what in fact exists "cannot approximate the Ideal.
Nor is the law susceptible to the reproach that it does not take into account the realities of the situation.
The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact
exist .To assure that the general welfare be promoted, which is the end of law, a regulatory measure may
cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke
the equal protection clause only if they can show that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason. " 23 Classification is thus not ruled out, it being sufficient to
quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the conditions not being
different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be given to every person
under circumstances which, if not Identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on
some in the group equally binding on the rest." 24
3. The premise underlying petitioner's contention on this point is set forth in his memorandum thus: "
1. The Sandiganbayan proceedings violates petitioner's right to equal protection, because - appeal
as a matter of right became minimized into a mere matter of discretion; - appeal likewise was shrunk
and limited only to questions of law, excluding a review of the facts and trial evidence; and - there is
only one chance to appeal conviction, by certiorari to the Supreme Court, instead of the traditional
two chances; while all other estafa indictees are entitled to appeal as a matter of right covering both
law and facts and to two appellate courts, i.e., first to the Court of Appeals and thereafter to the

Supreme Court."25 ,that is hardly convincing, considering that the classification satisfies the test
announced by this Court through Justice Laurel in People v. Vera 26 requiring that it "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. 27 To
repeat, the Constitution specifically makes mention of the creation of a special court, the Sandiganbayan
4 precisely in response to a problem, the urgency of which cannot be denied, namely, dishonesty in the
public service. It follows that those who may thereafter be tried by such court ought to have been aware
as far back as January 17, 1973, when the present Constitution came into force, that a different
procedure for the accused therein, whether a private citizen as petitioner is or a public official, is not
necessarily offensive to the equal protection clause of the Constitution. Petitioner, moreover, cannot be
unaware of the ruling of this Court in Co Chiong v. Cuaderno 28 a 1949 decision, that the general
guarantees of the Bill of Rights, included among which are the due process of law and equal protection
clauses must "give way to [a] specific provision, " in that decision, one reserving to "Filipino citizens of the
operation of public services or utilities." 29 The scope of such a principle is not to be constricted. It is
certainly broad enough to cover the instant situation.
4. The contention that the challenged Presidential Decree is contrary to the ex post facto provision of
the Constitution is similarly premised on the allegation that "petitioner's right of appeal is being
diluted or eroded efficacy wise ... ." 30 A more searching scrutiny of its rationale would demonstrate the
lack of permisiveness of such an argument. The Kay Villegas Kami 31 decision promulgated in 1970, cited
by petitioner, supplies the most recent and binding pronouncement on the matter. To quote from
the ponencia of Justice Makasiar: "An ex post facto law is one which: (1) makes criminal an act done
before the passage of the law and which was innocent when done, and punishes such an act; (2)
aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and
inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules
of evidences, and authorizes conviction upon less or different testimony . than the law required at the time
of the commission to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a
right for something which when done was lawful, and (6) deprives a person accused of a crime of some
lawful protection to which he has become entitled, such as the protection of a former conviction or
acquittal, or a proclamation of amnesty." 32 Even the most careful scrutiny of the above definition fails to
sustain the claim of petitioner. The "lawful protection" to which an accused "has become entitled" is
qualified, not given a broad scope. It hardly can be argued that the mode of procedure provided for in the
statutory right to appeal is therein embraced. This is hardly a controversial matter. This Court has spoken
in no uncertain terms. In People v. Vilo 33 a 1949 decision, speaking through the then Justice, later Chief
Justice Paras, it made clear that seven of the nine Justices then composing this Court, excepting only
the ponente himself and the late Justice Perfecto, were of the opinion that Section 9 of the Judiciary Act of
1948, doing away with the requirement of unanimity under Article 47 of the Revised Penal Code with eight
votes sufficing for the imposition of the death sentence, does not suffer from any constitutional infirmity.
For them its applicability to crimes committed before its enactment would not make the law ex post facto.
5. It may not be amiss to pursue the subject further. The first authoritative exposition of what is
prohibited by the ex post facto clause is found in Mekin v. Wolfe, 34 decided in 1903. Thus: "An ex post
factolaw has been defined as one - (a) Which makes an action done before the passing of the law and
which was innocent when done criminal, and punishes such action; or (b) Which aggravates a crime or
makes it greater than it was when committed; or (c) Which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was committed; or (d) Which alters the legal rules
of evidence and receives less or different testimony than the law required at the time of the commission of
the offense in order to convict the defendant. " 35There is relevance to the next paragraph of the opinion of

Justice Cooper: "The case clearly does not come within this definition, nor can it be seen in what way the
act in question alters the situation of petitioner to his disadvantage. It gives him, as well as the
Government, the benefit of the appeal, and is intended

First Instance may commit error in his favor and wrongfully discharge him appears to be the only
foundation for the claim. A person can have no vested right in such a possibility. 36
6. Mekin v. Wolfe is traceable to Calder v. Bull, 37 a 1798 decision of the United States Supreme Court.
Even the very language as to what falls with the category of this provision is well-nigh Identical. Thus: "I
will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. Ist.
Every law that makes an action done before the passing of the law, and which was innocent when done,
criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it
was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed. 4th Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law required at the time of the commission of the
offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and
oppressive." 38 The opinion of Justice Chase who spoke for the United States Supreme Court went on to
state: "The expressions 'ex post facto laws,' are technical, they had been in use long before the
Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. The
celebrated and judicious Sir William Blackstone in his commentaries, considers an ex post facto law
precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson and by
the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of
the true principle of government. " 39
7. Petitioner relies on Thompson v. Utaha. 40 As it was decided by the American Supreme Court in April
of 1898 - the very same year when the Treaty of Paris, by virtue of which, American sovereignty over the
Philippines was acquired - it is understandable why he did so. Certainly, the exhaustive opinion of the first
Justice Harlan, as was mentioned by an author, has a cutting edge, but it cuts both ways. It also renders
clear why the obstacles to declaring unconstitutional the challenged Presidential Decree are well-nigh
insuperable. After a review of the previous pronouncements of the American Supreme Court on this
subject, Justice Harlan made this realistic appraisal: "The difficulty is not so much as to the soundness of
the general rule that an accused has no vested right in particular modes of procedure as in determining
whether particular statutes by their operation take from an accused any right that was regarded, at the
time of the adoption of the constitution, as vital for the protection of life and liberty, and which he enjoyed
at the time of the commission of the offense charged against him." 41 An 1894 decision of the American
Supreme Court, Duncan v. Missouri 42 was also cited by petitioner, The opinion of the then Chief Justice
Fuller, speaking for the Court, is to the same effect. It was categorically stated that "the prescribing of
different modes of procedure and the abolition of courts and the creation of new ones, leaving untouched
all the substantial protections with which the existing laws surrounds the person accused of crime, are not
considered within the constitutional inhibition." 43
8. Even from the standpoint then of the American decisions relied upon, it cannot be successfully
argued that there is a dilution of the right to appeal. Admittedly under Presidential Decree No. 1486,
there is no recourse to the Court of Appeals, the review coming from this Court. The test as to
whether the ex post facto clause is disregarded, in the language of Justice Harlan in the justcited Thompson v. Utahdecision taking "from an accused any right that was regarded, at the time of
the adoption of the constitution as vital for the protection of life and liberty, and which he enjoyed at
the time of the commission of the offense charged against him." The crucial words are "vital for the

protection of life and liberty" of a defendant in a criminal case. Would the omission of the Court of
Appeals as an intermediate tribunal deprive petitioner of a right vital to the protection of his liberty?
The answer must be in the negative. In the first place, his innocence or guilt is passed upon by the
three-judge court of a division of respondent Court. Moreover, a unanimous vote is required, failing
which "the Presiding Justice shall designate two other justices from among the members of the
Court to sit temporarily with them, forming a division of five justices, and the concurrence of a
majority of such division shall be necessary for rendering judgment. " 44 Then if convicted, this Court
has the duty if he seeks a review to see whether any error of law was committed to justify a reversal of
the judgment. Petitioner makes much, perhaps excessively so as is the wont of advocates, of the fact that
there is no review of the facts. What Cannot be too sufficiently stressed is that this Court in determining
whether or not to give due course to the petition for review must be convinced that the constitutional
presumption of innocence 45 has been overcome. In that sense, it cannot be said that on the appellate
level there is no way of scrutinizing whether the quantum of evidence required for a finding of guilt has
been satisfied. The standard as to when there is proof of such weight to justify a conviction is set forth in
People v. Dramayo. 46 Thus: "Accusation is not, according to the fundamental law, as synonymous with
guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even
called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of
proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To
such a standard, this Court has always been committed. There is need, therefore, for the most careful
scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense, is
offered by the accused. Only if the judge below and thereafter the appellate tribunal could arrive at a
conclusion that the crime had been committed precisely by the person on trial under such an exacting test
should the sentence be one of conviction. It is thus required that every circumstance favoring his
innocence be duly taken into account. The proof against him must survive the test of reason; the
strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on
the defendant could be laid the responsibility for the offense charged: that not only did he perpetrate the
act but that it amounted to a crime. What is required then is moral certainty." 47 This Court has repeatedly
reversed convictions on a showing that this fundamental and basic right to De presumed innocent has
been disregarded. 48 It does seem farfetched and highly unrealistic to conclude that the omission of the
Court of Appeals as a reviewing authority results in the loss "vital protection" of liberty.
9. The argument based on denial of due process has much less to recommend it. In the exhaustive
forty-two page memorandum of petitioner, only four and a half pages were devoted to its discussion.
There is the allegation of lack of fairness. Much is made of what is characterized as "the tenor and
thrust" of the leading American Supreme Court decision, Snyder v. Massachusetts. 49 Again this
citation cuts both ways. With his usual felicitous choice of words, Justice Cardozo, who penned the
opinion, emphasized: "The law, as we have seen, is sedulous in maintaining for a defendant charged with
crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so
fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of
reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of
incriminating proof. But justice, though due to the accused, is due to the accuser also, The concept of
fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." 50 What is
required for compliance with the due process mandate in criminal proceedings? In Arnault v.
Pecson, 51 this Court with Justice Tuason as ponente, succinctly Identified it with "a fair and impartial trial
and reasonable opportunity for the preparation of defense." 52 In criminal proceedings then, due process is
satisfied if the accused is "informed as to why he is proceeded against and what charge he has to meet,
with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for
him to rebut it and the sentence being imposed in accordance with a valid law. It is assumed, of course,

that the court that rendered the decision is one of competent jurisdiction." 53 The above formulation is a
reiteration of what was decided by the American Supreme Court in a case of Philippine origin, Ong Chang
Wing v. United States 54 decided during the period of American rule, 1910 to be precise. Thus: "This court
has had frequent occasion to consider the requirements of due process of law as applied to criminal
procedure, and, generally speaking, it may be said that if an accused has been heard in a court of
competent jurisdiction, and proceeded against under the orderly processes of law, and only punished
after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment
awarded within the authority of a constitutional law, then he has had due process of law." 55

10. This Court holds that petitioner has been unable to make a case calling for a declaration of
unconstitutionality of Presidential Decree No. 1486 as amended by Presidential Decree No. 1606.
The decision does not go as far as passing on any question not affecting the right of petitioner to a
trial with all the safeguards of the Constitution. It is true that other Sections of the Decree could have
been worded to avoid any constitutional objection. As of now, however, no ruling is called for. The
view is given expression in the concurring and dissenting opinion of Justice Makasiar that in such a
case to save the Decree from the dire fate of invalidity, they must be construed in such a way as
preclude any possible erosion on the powers vested in this Court by the Constitution. That is a
proposition too plain to be contested. It commends itself for approval. Nor should there be any doubt
either that a review by certiorari of a decision of conviction by the Sandiganbayan calls for strict
observance of the constitutional presumption of innocence.
WHEREFORE, the petition is dismissed. No costs.

3. PASEI vs Drilon (163 SCRA 386)

G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D.
ACHACOSO, as Administrator of the Philippine Overseas Employment
Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged
principally in the recruitment of Filipino workers, male and female, for overseas
placement," 1 challenges the Constitutional validity of Department Order No. 1, Series of 1988, of the
Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD
WORKERS," in this petition for certiorari and prohibition. Specifically, the measure is assailed for
"discrimination against males or females;" 2 that it "does not apply to all Filipino workers but only to
domestic helpers and females with similar skills;" 3 and that it is violative of the right to travel. It is held
likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not
executive, in character.

In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution,
providing for worker participation "in policy and decision-making processes affecting their rights and
benefits as may be provided by law." 4 Department Order No. 1, it is contended, was passed in the
absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-impairment
clause, in addition to the "great and irreparable injury" that PASEI members face should the Order be
further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and
Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the
Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states
of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In
submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the Philippine State.

It is admitted that Department Order No. 1 is in the nature of a police power measure. The only
question is whether or not it is valid under the Constitution.
The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." 5 As defined, it consists of (1) an imposition of restraint upon liberty or property, (2)
in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled
in general terms to underscore its all-comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the
Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood
and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most
vital functions of governance. Marshall, to whom the expression has been credited, 7 refers to it
succinctly as the plenary power of the State "to govern its citizens." 8
"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly
termed the "law of overwhelming 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." 9
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare." 10 Significantly, the Bill of Rights itself does not
purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of all
rights, is not unrestricted license to act according to one's will." 11 It is subject to the far more overriding
demands and requirements of the greater number.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all its
awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that

event, it defeats the purpose for which it is exercised, that is, to advance the public good. Thus,
when the power is used to further private interests at the expense of the citizenry, there is a clear
misuse of the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and convincing
evidence to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure should be nullified.
There is no question that Department Order No. 1 applies only to "female contract workers," 14 but it
does not thereby make an undue discrimination between the sexes. It is well-settled that "equality before
the law" under the Constitution 15 does not import a perfect Identity of rights among all men and women. It
admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are
germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply
equally to all members of the same class. 16
The Court is satisfied that the classification made-the preference for female workers rests on
substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our
female labor force abroad, especially domestic servants, amid exploitative working conditions
marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment
suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by
testimonies of returning workers, are compelling motives for urgent Government action. As precisely
the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In
fulfilling that duty, the Court sustains the Government's efforts.
The same, however, cannot be said of our male workers. In the first place, there is no evidence that,
except perhaps for isolated instances, our men abroad have been afflicted with an Identical
predicament. The petitioner has proffered no argument that the Government should act similarly with
respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that
men are superior to women. What the Court is saying is that it was largely a matter of evidence (that
women domestic workers are being ill-treated abroad in massive instances) and not upon some
fanciful or arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of
unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the
same thing as far as men are concerned. There is simply no evidence to justify such an inference.
Suffice it to state, then, that insofar as classifications are concerned, this Court is content that
distinctions are borne by the evidence. Discrimination in this case is justified.
As we have furthermore indicated, executive determinations are generally final on the Court. Under
a republican regime, it is the executive branch that enforces policy. For their part, the courts decide,
in the proper cases, whether that policy, or the manner by which it is implemented, agrees with the
Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body, the
judiciary has great respect for determinations of the Chief Executive or his subalterns, especially
when the legislature itself has specifically given them enough room on how the law should be
effectively enforced. In the case at bar, there is no gainsaying the fact, and the Court will deal with

this at greater length shortly, that Department Order No. 1 implements the rule-making powers
granted by the Labor Code. But what should be noted is the fact that in spite of such a fiction of
finality, the Court is on its own persuaded that prevailing conditions indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to the purpose behind the measure.
Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for
Filipino female overseas workers" 17 this Court has no quarrel that in the midst of the terrible
mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and
welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely
so long as those conditions exist. This is clear from the Order itself ("Pending review of the
administrative and legal measures, in the Philippines and in the host countries . . ." 18), meaning to say
that should the authorities arrive at a means impressed with a greater degree of permanency, the ban
shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability, depending on the
circumstances of each case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. The Secretary of Labor and Employment (DOLE)
may, upon recommendation of the Philippine Overseas Employment Administration
(POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and
protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas
workers. That it does not apply to "all Filipina workers" 20 is not an argument for unconstitutionality. Had
the ban been given universal applicability, then it would have been unreasonable and arbitrary. For
obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the
singling out of a select person or group of persons within an existing class, to the prejudice of such a
person or group or resulting in an unfair advantage to another person or group of persons. To apply the
ban, say exclusively to workers deployed by A, but not to those recruited by B, would obviously clash with
the equal protection clause of the Charter. It would be a classic case of what Chase refers to as a law that
"takes property from A and gives it to B." 21 It would be an unlawful invasion of property rights and freedom
of contract and needless to state, an invalid act. 22 (Fernando says: "Where the classification is based on
such distinctions that make a real difference as infancy, sex, and stage of civilization of minority groups,
the better rule, it would seem, is to recognize its validity only if the young, the women, and the cultural
minorities are singled out for favorable treatment. There would be an element of unreasonableness if on
the contrary their status that calls for the law ministering to their needs is made the basis of discriminatory
legislation against them. If such be the case, it would be difficult to refute the assertion of denial of equal
protection." 23 In the case at bar, the assailed Order clearly accords protection to certain women workers,
and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment.
From scattered provisions of the Order, it is evident that such a total ban has hot been contemplated.
We quote:

5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers

of similar skills defined herein to the following [sic] are authorized under these
guidelines and are exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads of State
and Government;
5.2 Hirings by Minister, Deputy Minister and the other senior
government officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly
accredited international organizations.
5.4 Hirings by employers in countries with whom the Philippines have
[sic] bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS-Vacationing domestic helpers and/or workers of similar skills shall be allowed to
process with the POEA and leave for worksite only if they are returning to the same
employer to finish an existing or partially served employment contract. Those
workers returning to worksite to serve a new employer shall be covered by the
suspension and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE)
may, upon recommendation of the Philippine Overseas Employment Administration
(POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure
the welfare and protection of Filipino workers. 24
xxx xxx xxx

The consequence the deployment ban has on the right to travel does not impair the right. The right
to travel is subject, among other things, to the requirements of "public safety," "as may be provided
by law." 25 Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic
policy to "afford protection to labor," 26pursuant to the respondent Department of Labor's rule-making
authority vested in it by the Labor Code. 27 The petitioner assumes that it is unreasonable simply because
of its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed
Order is a valid qualification thereto.

Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of
legislative power. It is true that police power is the domain of the legislature, but it does not mean
that such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself
vests the Department of Labor and Employment with rulemaking powers in the enforcement
whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and
decision-making processes affecting their rights and benefits" 29 is not well-taken. The right granted by
this provision, again, must submit to the demands and necessities of the State's power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment
opportunities for all. 30
"Protection to labor" does not signify the promotion of employment alone. What concerns the
Constitution more paramountly is that such an employment be above all, decent, just, and humane.
It is bad enough that the country has to send its sons and daughters to strange lands because it
cannot satisfy their employment needs at home. Under these circumstances, the Government is
duty-bound to insure that our toiling expatriates have adequate protection, personally and
economically, while away from home. In this case, the Government has evidence, an evidence the
petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its
duty, it has precisely ordered an indefinite ban on deployment.
The Court finds furthermore that the Government has not indiscriminately made use of its authority.
It is not contested that it has in fact removed the prohibition with respect to certain countries as
manifested by the Solicitor General.
The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier
purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other freedoms, is
not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as
a controlling economic way of life.
This Court understands the grave implications the questioned Order has on the business of
recruitment. The concern of the Government, however, is not necessarily to maintain profits of
business firms. In the ordinary sequence of events, it is profits that suffer as a result of Government
regulation. The interest of the State is to provide a decent living to its citizens. The Government has
convinced the Court in this case that this is its intent. We do not find the impugned Order to be
tainted with a grave abuse of discretion to warrant the extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.

4. International School Alliance vs Quisumbing (333 SCRA 13)

G.R. No. 128845

June 1, 2000

INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner,

vs.
HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor and
Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary of
Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of
International School-Manila; and INTERNATIONAL SCHOOL, INC., respondents.
KAPUNAN, J.:
Receiving salaries less than their counterparts hired abroad, the local-hires of private respondent
School, mostly Filipinos, cry discrimination. We agree. That the local-hires are paid more than their
colleagues in other schools is, of course, beside the point. The point is that employees should be
given equal pay for work of equal value. That is a principle long honored in this jurisdiction. That is a
principle that rests on fundamental notions of justice. That is the principle we uphold today.
1wphi1.nt

Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree
732, is a domestic educational institution established primarily for dependents of foreign diplomatic
personnel and other temporary residents.1 To enable the School to continue carrying out its
educational program and improve its standard of instruction, Section 2(c) of the same decree
authorizes the School to employ its own teaching and management personnel selected by it either
locally or abroad, from Philippine or other nationalities, such personnel being exempt from otherwise
applicable laws and regulations attending their employment, except laws that have been or will be
enacted for the protection of employees.
Accordingly, the School hires both foreign and local teachers as members of its faculty, classifying
the same into two: (1) foreign-hires and (2) local-hires. The School employs four tests to determine
whether a faculty member should be classified as a foreign-hire or a local hire:
a. What is one's domicile?
b. Where is one's home economy?
c. To which country does one owe economic allegiance?
d. Was the individual hired abroad specifically to work in the School and was the School
responsible for bringing that individual to the Philippines?2
Should the answer to any of these queries point to the Philippines, the faculty member is classified
as a local hire; otherwise, he or she is deemed a foreign-hire.
The School grants foreign-hires certain benefits not accorded local-hires. These include housing,
transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires are also paid a
salary rate twenty-five percent (25%) more than local-hires. The School justifies the difference on
1avvphi1

two "significant economic disadvantages" foreign-hires have to endure, namely: (a) the "dislocation
factor" and (b) limited tenure. The School explains:
A foreign-hire would necessarily have to uproot himself from his home country, leave his
family and friends, and take the risk of deviating from a promising career path all for the
purpose of pursuing his profession as an educator, but this time in a foreign land. The new
foreign hire is faced with economic realities: decent abode for oneself and/or for one's family,
effective means of transportation, allowance for the education of one's children, adequate
insurance against illness and death, and of course the primary benefit of a basic
salary/retirement compensation.
Because of a limited tenure, the foreign hire is confronted again with the same economic
reality after his term: that he will eventually and inevitably return to his home country where
he will have to confront the uncertainty of obtaining suitable employment after along period in
a foreign land.
The compensation scheme is simply the School's adaptive measure to remain competitive
on an international level in terms of attracting competent professionals in the field of
international education.3
When negotiations for a new collective bargaining agreement were held on June 1995, petitioner
International School Alliance of Educators, "a legitimate labor union and the collective bargaining
representative of all faculty members"4 of the School, contested the difference in salary rates
between foreign and local-hires. This issue, as well as the question of whether foreign-hires should
be included in the appropriate bargaining unit, eventually caused a deadlock between the parties.
On September 7, 1995, petitioner filed a notice of strike. The failure of the National Conciliation and
Mediation Board to bring the parties to a compromise prompted the Department of Labor and
Employment (DOLE) to assume jurisdiction over the dispute. On June 10, 1996, the DOLE Acting
Secretary, Crescenciano B. Trajano, issued an Order resolving the parity and representation issues
in favor of the School. Then DOLE Secretary Leonardo A. Quisumbing subsequently denied
petitioner's motion for reconsideration in an Order dated March 19, 1997. Petitioner now seeks relief
in this Court.
Petitioner claims that the point-of-hire classification employed by the School is discriminatory to
Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination.
The School disputes these claims and gives a breakdown of its faculty members, numbering 38 in
all, with nationalities other than Filipino, who have been hired locally and classified as local
hires.5 The Acting Secretary of Labor found that these non-Filipino local-hires received the same
benefits as the Filipino local-hires.
The compensation package given to local-hires has been shown to apply to all, regardless of
race. Truth to tell, there are foreigners who have been hired locally and who are paid equally
as Filipino local hires.6

The Acting secretary upheld the point-of-hire classification for the distinction in salary rates:
The Principle "equal pay for equal work" does not find applications in the present case. The
international character of the School requires the hiring of foreign personnel to deal with
different nationalities and different cultures, among the student population.
We also take cognizance of the existence of a system of salaries and benefits accorded to
foreign hired personnel which system is universally recognized. We agree that certain
amenities have to be provided to these people in order to entice them to render their
services in the Philippines and in the process remain competitive in the international market.
Furthermore, we took note of the fact that foreign hires have limited contract of employment
unlike the local hires who enjoy security of tenure. To apply parity therefore, in wages and
other benefits would also require parity in other terms and conditions of employment which
include the employment which include the employment contract.
A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for salary
and professional compensation wherein the parties agree as follows:
All members of the bargaining unit shall be compensated only in accordance with
Appendix C hereof provided that the Superintendent of the School has the discretion
to recruit and hire expatriate teachers from abroad, under terms and conditions that
are consistent with accepted international practice.
Appendix C of said CBA further provides:
The new salary schedule is deemed at equity with the Overseas Recruited Staff
(OSRS) salary schedule. The 25% differential is reflective of the agreed value of
system displacement and contracted status of the OSRS as differentiated from the
tenured status of Locally Recruited Staff (LRS).
To our mind, these provisions demonstrate the parties' recognition of the difference in the
status of two types of employees, hence, the difference in their salaries.
The Union cannot also invoke the equal protection clause to justify its claim of parity. It is an
established principle of constitutional law that the guarantee of equal protection of the laws is
not violated by legislation or private covenants based on reasonable classification. A
classification is reasonable if it is based on substantial distinctions and apply to all members
of the same class. Verily, there is a substantial distinction between foreign hires and local
hires, the former enjoying only a limited tenure, having no amenities of their own in the
Philippines and have to be given a good compensation package in order to attract them to
join the teaching faculty of the School.7
We cannot agree.

That public policy abhors inequality and discrimination is beyond contention. Our Constitution and
laws reflect the policy against these evils. The Constitution 8 in the Article on Social Justice and
Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect
and enhance the right of all people to human dignity, reduce social, economic, and political
inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of
his rights and in the performance of his duties, [to] act with justice, give everyone his due, and
observe honesty and good faith.
International law, which springs from general principles of law,9 likewise proscribes discrimination.
General principles of law include principles of equity, 10 i.e., the general principles of fairness and
justice, based on the test of what is reasonable. 11 The Universal Declaration of Human Rights, 12 the
International Covenant on Economic, Social, and Cultural Rights, 13 the International Convention on
the Elimination of All Forms of Racial Discrimination, 14 the Convention against Discrimination in
Education, 15 the Convention (No. 111) Concerning Discrimination in Respect of Employment and
Occupation 16 all embody the general principle against discrimination, the very antithesis of
fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part
of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of capital,
inequality and discrimination by the employer are all the more reprehensible.
The Constitution 17 specifically provides that labor is entitled to "humane conditions of work." These
conditions are not restricted to the physical workplace the factory, the office or the field but
include as well the manner by which employers treat their employees.
The Constitution 18 also directs the State to promote "equality of employment opportunities for all."
Similarly, the Labor Code 19 provides that the State shall "ensure equal work opportunities regardless
of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the
State, in spite of its primordial obligation to promote and ensure equal employment opportunities,
closes its eyes to unequal and discriminatory terms and conditions of employment. 20
Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for
example, prohibits and penalizes 21 the payment of lesser compensation to a female employee as
against a male employee for work of equal value. Article 248 declares it an unfair labor practice for
an employer to discriminate in regard to wages in order to encourage or discourage membership in
any labor organization.
Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7
thereof, provides:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of just and favourable conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions of
work not inferior to those enjoyed by men, with equal pay for equal work;
xxx

xxx

xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism
of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort
and responsibility, under similar conditions, should be paid similar salaries. 22 This rule applies to the
School, its "international character" notwithstanding.
The School contends that petitioner has not adduced evidence that local-hires perform work equal to
that of foreign-hires. 23 The Court finds this argument a little cavalier. If an employer accords
employees the same position and rank, the presumption is that these employees perform equal
work. This presumption is borne by logic and human experience. If the employer pays one employee
less than the rest, it is not for that employee to explain why he receives less or why the others
receive more. That would be adding insult to injury. The employer has discriminated against that
employee; it is for the employer to explain why the employee is treated unfairly.
The employer in this case has failed to discharge this burden. There is no evidence here that
foreign-hires perform 25% more efficiently or effectively than the local-hires. Both groups have
similar functions and responsibilities, which they perform under similar working conditions.
The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the
distinction in salary rates without violating the principle of equal work for equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for services
performed." Similarly, the Philippine Legal Encyclopedia states that "salary" is the "[c]onsideration
paid at regular intervals for the rendering of services." In Songco v. National Labor Relations
Commission, 24 we said that:
"salary" means a recompense or consideration made to a person for his pains or industry in
another man's business. Whether it be derived from "salarium," or more fancifully from "sal,"
the pay of the Roman soldier, it carries with it the fundamental idea of compensation for
services rendered. (Emphasis supplied.)
While we recognize the need of the School to attract foreign-hires, salaries should not be used as an
enticement to the prejudice of local-hires. The local-hires perform the same services as foreign-hires
and they ought to be paid the same salaries as the latter. For the same reason, the "dislocation
factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the distinction in
salary rates. The dislocation factor and limited tenure affecting foreign-hires are adequately
compensated by certain benefits accorded them which are not enjoyed by local-hires, such as
housing, transportation, shipping costs, taxes and home leave travel allowances.
The Constitution enjoins the State to "protect the rights of workers and promote their welfare," 25 "to
afford labor full protection." 26 The State, therefore, has the right and duty to regulate the relations

between labor and capital.27 These relations are not merely contractual but are so impressed with
public interest that labor contracts, collective bargaining agreements included, must yield to the
common good. 28 Should such contracts contain stipulations that are contrary to public policy, courts
will not hesitate to strike down these stipulations.
In this case, we find the point-of-hire classification employed by respondent School to justify the
distinction in the salary rates of foreign-hires and local hires to be an invalid classification. There is
no reasonable distinction between the services rendered by foreign-hires and local-hires. The
practice of the School of according higher salaries to foreign-hires contravenes public policy and,
certainly, does not deserve the sympathy of this Court.
1avvphi1

We agree, however, that foreign-hires do not belong to the same bargaining unit as the local-hires.
A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of
the entire body of employees, consistent with equity to the employer, indicate to be the best suited to
serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the
law." 29 The factors in determining the appropriate collective bargaining unit are (1) the will of the
employees (Globe Doctrine); (2) affinity and unity of the employees' interest, such as substantial
similarity of work and duties, or similarity of compensation and working conditions (Substantial
Mutual Interests Rule); (3) prior collective bargaining history; and (4) similarity of employment
status. 30 The basic test of an asserted bargaining unit's acceptability is whether or not it is
fundamentally the combination which will best assure to all employees the exercise of their collective
bargaining rights. 31
It does not appear that foreign-hires have indicated their intention to be grouped together with localhires for purposes of collective bargaining. The collective bargaining history in the School also
shows that these groups were always treated separately. Foreign-hires have limited tenure; localhires enjoy security of tenure. Although foreign-hires perform similar functions under the same
working conditions as the local-hires, foreign-hires are accorded certain benefits not granted to localhires. These benefits, such as housing, transportation, shipping costs, taxes, and home leave travel
allowance, are reasonably related to their status as foreign-hires, and justify the exclusion of the
former from the latter. To include foreign-hires in a bargaining unit with local-hires would not assure
either group the exercise of their respective collective bargaining rights.
WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART.
The Orders of the Secretary of Labor and Employment dated June 10, 1996 and March 19, 1997,
are hereby REVERSED and SET ASIDE insofar as they uphold the practice of respondent School of
according foreign-hires higher salaries than local-hires.
SO ORDERED.

C. Social (no given case)