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[No. 1179. January 8, 1913.]

In re application of MARIO GUARlÑA for admission

to the bar.

1. STATUTORY CONSTRUCTION ; ACT No. 1597;

ADMISSION TO PRACTICE LAW.—Whether the word
"may" in a statute is to be construed as mandatory and
imposing a duty, or merely as permissive and conferring
discretion, is to be determined in each case from the
apparent intention of the statute as gathered from the
context as well as from the language of the particular
provision. The question in each case is whether, taken as a
whole and viewed in the light of surrounding
circumstances, it can be said that a purpose existed on the
part of a legislator to enact a law mandatory in its
character.

2. ID. ; ID. ; ID. ; AUTHORITY OF THE SUPREME COURT.

—This court is vested with authority and charged with the
duty to pass upon the "moral character" and the
"qualifications and ability" of all candidates for admission
to the bar
.

3. ID.; ID.; ID.; LIMIT UPON LEGISLATIVE POWER.—Any

Act of the Philippine Legislature repugnant to the Act of
Congress which created it, or which is repugnant to any
other lawful Act of Congress defining, prescribing or
limiting its authority is invalid and void as transcending
its rightful limits and authority.

4. ID.; ID.; ID.; BASIS OF LEGISLATIVE AUTHORITY.—

The various Acts of .Congress conferring power upon the
Philippine Legislature, and defining, prescribing and
limiting this power, especially the Act of Congress of July
1, 1902, are to that Legislature in the nature of an organic
act with its amendments, binding on it

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38 PHILIPPINE REPORTS ANNOTATED

In re Guariña.

in like manner as is the Constitution of the United States

upon Congress itself.

5. ID.; ID.; ID.; SOURCE OF GOVERNMENTAL

AUTHORITY.—The Acts of Congress of the United States
are to the Commission, or rather to all the Departments of
the Philippine Government, what a law is to individuals;
they constitute not only a rule of action to the various
branches of the Government, but it is from them that the
very existence of the power of the Government flows, and
it is by virtue of the Acts of Congress that the powers (or
portions of the right to govern) which may have been
committed to this Government are prescribed.

6. ID. ; ID. ; ID. ; SUPREME COURT CANNOT BE

DEPRIVED OF ITS POWERS.—Section 9 of the Act of
Congress of July 1, 1902, placed it beyond the power of the
Philippine Legislature to deprive the Supreme Court of
the Philippine Islands of the jurisdiction or power
theretofore granted to it; leaving, however, to local
legislative authority the right to confer additional
jurisdiction or to change the practice and the method of
procedure.

7. ID.; ID.; ID.; DUTY OF COURTS IN CONSTRUING

LAWS.—It is the duty of the courts in construing a statute
enacted by the Philippine Commission, not to give it a
construction which would be repugnant to an Act of
Congress, if the language of the statute is fairly
susceptible of another construction not in conflict with the
higher law; and in doing so, contentions touching the
apparent intention of the legislator will be disregarded
which would lead to the conclusion that the Commission
intended to enact a law in violation of an Act of Congress.

8. ID.; ID.; ID.; DOUBTFUL LANGUAGE OF A STATUTE.

—If there is doubt or uncertainty as to the meaning of the
legislator, if the words or provisions of the statute are
obscure, or if the enactment is fairly susceptible of two or
more constructions, that interpretation will be adopted
which will avoid the effect of unconstitutionality, even
though it may be necessary, for this purpose, to disregard
the more usual or apparent import of the language
employed. (Black on Interpretation of Laws, p. 93.)

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ID.; ID.; ID.; CONSTRUCTION OF THE WORD "MAY,"

9. ACT No 1597.—The word "may" as used in the concluding
paragraph of section 2 of Act No. 1597, construed so as to
give it its permissive and not its mandatory effect; and as
conferring a discretion and not as imposing a duty upon
the Supreme Court. to grant licenses to the officials
mentioned in the Act to practice law in the courts of the
Philippine Islands without taking the examination
prescribed by general rule.

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VOL. 24, JANUARY 8, 1913. 39

In re Guariña.

ORIGINAL APPLICATION for admission to the bar:

The facts are stated in the opinion of the court.
Mario Guariña in his behalf.

CARSON, J.:

Relying upon the provisions of section 2 of Act No. 1597,

the applicant in this case seeks admission to the bar,
without taking the prescribed examination, on the ground
that he holds the office of provincial fiscal for the
Province of Batanes.
Section 2 of Act No. 1597, enacted February 28, 1907, is
as follows:

"SEC. 2. Paragraph one of section thirteen of Act Numbered One

hundred and ninety, entitled 'An Act providing a Code of
Procedure in Civil Actions and Special Proceedings in the
Philippine Islands,' is hereby amended to read as follows:
" '1. Those who have been duly licensed under the laws and
orders of the Islands under the sovereignty of Spain or of the
United States and are in good and regular standing as members
of the bar of the Philippine Islands at the time of the adoption
of this code: Provided, That any person who, prior to the passage
of this Act, or at any time thereafter, shall have held, under the
authority of the United States, the position of justice of the
Supreme Court, judge of the Court of First Instance, or judge or
associate judge of the Court of Land Registration, of the
Philippine Islands, or the position of Attorney-General, Solicitor-
General, Assistant Attorney-General, assistant attorney in the
office of the Attorney-General, prosecuting attorney for the city
of Manila, assistant prosecuting attorney for the city of Manila,
city attorney of Manila, assistant city attorney of Manila,
provincial fiscal, attorney for the Moro Province, or assistant

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attorney f or the Moro Province, may be licensed to practice law

in the courts of the Philippine Islands without an examination,
upon motion before the Supreme Court and establishing such fact
to the satisfaction of said court.'"

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40 PHILIPPINE REPORTS ANNOTATED

In re Guariña.

The records of this court disclose that on a former occasion

this applicant took, and failed to pass the prescribed
examination. The report of the examining board, dated
March 23, 1907, shows that he received an average of only
71 per cent in the various branches of legal learning upon
which he was examined, thus falling four points short of
the required percentage of 75. We would be delinquent in
the performance of our duty to the public and to the bar,
if, in the f face of this affirmative indication of the
deficiency of the applicant in the required qualifications
of learning in the law at the time when he presented his f
ormer application for admission to the bar, we should
grant him a license to practice law in the courts of these
Islands, without first satisfying ourselves that despite his
failure to pass the examination on that occasion, he now
"possesses the necessary qualifications of learning and
ability."
But it is contended that under the provisions of the
above-cited statute the applicant is entitled as of right to
be admitted to the bar without taking the prescribed
examination "upon motion before the Supreme Court"
accompanied by satisfactory proof that he has held and now
holds the office of provincial fiscal of the Province of
Batanes. It is urged that having in mind the object which
the legislator apparently sought to attain in enacting the
abovecited amendment to the earlier statute, and in view
of the context generally and especially of the f fact that
the amendment was inserted as a proviso in that section
of the original Act which specifically provides for the
admission of certain candidates without examination, the
clause "may be licensed to practice law in the courts of
the Philippine Islands without and examination" should be
construed so as to mean "shall be licensed to practice law
in the Philippine Islands without an examination." It is
contended that this mandatory construction is imperatively
required in order to give effect to the apparent intention
of the legislator, and to the candidate's claim de jure to
have the power exercised.
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It must be confessed that were the inquiry limited

strictly
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VOL. 24, JANUARY 8, 1913. 41

In re Guariña.

to the provisions of local law touching this matter, the

contentions of the applicant would have great weight. For
it is well settled that in statutory interpretation the word
"may" should be read "shall" where such construction is
necessary to give effect to the apparent intention of the
legislator. In Rock Island County Supervisors vs. United
States (71 U. S., 435, 446), Mr. Justice Swayne says:

"The conclusion to be deduced from the authorities is that where

power is given to public officers, in the language of the Act
before us, or in equivalent language, whenever the public interest
or individual rights call for its exercise, the language used,
though permissive in form, is in fact peremptory. What they are
empowered to do for a third person the law requires shall be
done. The power is given, not for their benefit, but for his. It is
placed with the depositary to meet the demands of right, and to
prevent a failure of justice. It is given as a remedy to those
entitled to invoke its aid, and who would otherwise be remediless.
In all such cases it is held that the intent of the Legislature,
which is the test, was not to devolve a mere discretion, but to
impose a positive and absolute duty."

Whether the word "may" in a statute is to be construed as

mandatory and imposing a duty, or merely as permissive
and conferring discretion, is to be determined in each case
from the apparent intention of the statute as gathered
from the context, as well as f from the language of the
particular provision. The question in each case is whether,
taken as a whole and viewed in the light of surrounding
circumstances, it can be said that a purpose existed on the
part of the legislator to enact a law mandatory in its
character. If it can, then it should be given a mandatory
effect; if not, then it should be given its ordinary permissive
effect. (Colby University vs. Village of Canandaigua (U. S.),
69 Fed., 671, 673; Kansas Pacific Ry. Co. vs. Reynolds, 8
Kan., 623, 628; Kemble vs. McPhaill, 60 Pac., 1092, 1093,
128 Cal., 444; Inhabitants of Worcester County vs.
Schlesinger, 82 Mass. (16 Gray), 166, 168; People vs.
Sanitary Dist. of Chicago,

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42 PHILIPPINE REPORTS ANNOTATED

In re Guariña.

56 N. E., 953, 956, 184 111., 597; State vs. Withrow (Mo.),
24 S. W., 638, 641; Leavenworth & D. M. ,R. Co. vs. Platte
County Court, 42 Mo., 171, 174.)
Applying these canons of construction to the statute
under consideration, and limiting ourselves strictly to the
provisions of local law touching the admission of
candidates to the bar, we might, as we have said, be
inclined to give the statute the mandatory effect which
applicant claims should be placed upon it. But we are of
opinion that such a construction is precluded by the
provisions of the Act of Congress enacted July 1, 1902,
which confirm and secure to this court the jurisdiction
theretofore conferred upon it. Section 9 of that Act is as
follows:

"That the Supreme Court and the Courts of First Instance of the
Philippine Islands shall possess and exercise jurisdiction as
heretofore provided and such additional jurisdiction as shall
hereafter be prescribed by the Government of said Islands,
subject to the power of said Government to change the practice
and method of procedure. The municipal courts of said Islands
shall possess and exercise jurisdiction as heretofore provided by
the Philippine Commission, subject in all matters to such
alteration and amendment as may be hereafter enacted by law;
and the Chief Justice and Associate Justices of the Supreme
Court shall hereafter be appointed by the President, by and with
the advice and consent of the Senate, and shall receive the
compensation heretofore prescribed by the Commission until
otherwise provided by Congress. The judges of the Court of First
Instance shall be appointed by the Civil Governor, by and with
the advice and consent of the Philippine Commission: Provided,
That the admiralty jurisdiction of the Supreme Court and Courts
of First Instance shall not be changed except by Act of Congress."

Prior to the passage of this Act the power and jurisdiction

of this court in relation to the admission of candidates
to the bar of the Philippine Islands had been fixed by the
provisions of the Organic Act (No. 136) and the Code of
Civil Procedure (Act No. 190); and as we understand
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In re Guariña.

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these provisions this court was vested thereby with

authority, and charged with a duty to pass upon the
"moral character" and the "qualifications and ability" of all
candidates for admission to the bar.
The pertinent provisions of these statutes are as
follows:

(Act No. 136.) "SEC. 2. Constitution of judiciary.—The judicial

power of the Government of the Philippine Islands shall be
vested in a Supreme Court, Courts of First Instance, and courts
of justices of the peace, together with such special jurisdictions
of municipal courts, and other special tribunals as now are or
hereafter may be authorized by law. The two courts first named
shall be courts of record.
(Act No. 136.) "SEC. 16. Jurisdiction of the Supreme Court.—
The jurisdiction of the Supreme Court shall be of two kinds:

"1. Original; and

"2. Appellate.

"SEC. 17. Its original jurisdiction.—The Supreme Court shall

have original jurisdiction to issue writs of mandamus, certiorari,
prohibition, habeas corpus, and quo warranto in the cases and in
the manner prescribed in the Code of Civil Procedure, and to
hear and determine the controversies thus brought before it, and
in other cases provided by law.
(Act No. 190.) "SEC. 13. Who may practice as lawyers.—The
following persons, if not specially declared ineligible, are entitled
to practice law in the courts of the Philippine Islands:

"1. Those who have been duly licensed under the laws and
orders of the Islands under the sovereignty of Spain or of
the United States and are in good and regular standing
as members of the bar of the Philippine Islands at the
time of the adoption of this Code;
"2. Those who are hereafter licensed in the manner herein
prescribed.

"SEC. 14. Qualifications of applicants.—Any resident of the

Philippine Islands, not a subject or citizen of any foreign
government, of the age of twenty-three years, of good moral

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character, and who possesses the necessary qualifications of

learning and ability, is entitled to admission as a member of the
bar of the Islands and to practice as such in all their courts.
"SEC. 15. Certificate of good character required.—Every
applicant for admission as a member of the bar must produce
before the Supreme Court satisfactory testimonials of good moral
character, and must satisfactorily pass a proper examination
upon all the codes of law and procedure in force in the
Philippine Islands, and upon such other branches of legal
learning as the Supreme Court by general rule shall provide. * * *
"SEC. 16. Place and manner of examinations.—Such
examinations shall be conducted at Manila, by the judges of the
Supreme Court or by a committee of competent lawyers by them
to be appointed, and shall be held at such times as the judges of
that court shall provide by general or special rules."

Manifestly, the jurisdiction thus conferred upon this court

by the Commission and confirmed to it by the Act of
Congress would be limited and restricted, and in a case
such as that under consideration wholly destroyed, by
giving the word "may," as used in the above citation from
Act No. 1597, a mandatory rather than a permissive effect.
But any Act of the Commission which has the effect of
setting at naught in whole or in part the' Act of Congress
of July 1,1902, or of any Act of Congress prescribing,
defining or limiting the power conferred upon the
Commission is to that extent invalid and void, as
transcending its rightful limits and authority.
The Act of Congress was the creator of the
Commission and indeed of the Government of these
Islands, which is the creature of its creator. Its powers are
defined, prescribed and limited by the Act which created it,
and by such other lawful acts of its creator as may further
define, prescribe, limit or expand these powers. It cannot
lawfully transcend or inf fringe upon the limits thus
prescribed, and any Act of

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In re Guariña.

the Commission repugnant to the Act of Congress which

created it, or which is repugnant to any other lawful Act of
its creator defining, prescribing or limiting its authority is
void and invalid. The various Acts of Congress conferring
power upon the Philippine Legislature, and defining,
prescribing and limiting this power, especially the Act of
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Congress of July 1, 1902, are to that Legislature in the

nature of an organic act with its amendments, binding on
it in like manner as is the Constitution of the United
States upon Congress itself.
In the great case of Marbury vs. Madison (1 Cranch,
175), the Supreme Court of the United States, in a
decision written by Chief Justice Marshall, laid down the
doctrine in this regard which has been followed by that
court unhesitatingly ever since. In that case the court held
that an Act of Congress repugnant to the Constitution
cannot become law, and that the courts of the United
States are bound to take notice of the Constitution.
Applying the reasoning of that case to the question of
the validity of an Act of the Philippine Commission
enacted since the date of the passage of the Philippine
Bill which is found to be in conflict with the provisions of
the Act of Congress dealing with the same subject matter,
and especially with the provisions of the Philippine! Bill
itself, we think there can be no doubt as to the result. The
Act of the Commission in so far as it is in conflict with or
in any wise repugnant to the various Acts of Congress
dealing with the same subject matter must be held to be
void and of no effect. Paraphrasing slightly the language
used in the early case of Kemper vs. Hawkins (1 Va.
Cases, 20-24), it may be said that the Acts of the Congress
of the United States are to the Commission, or rather to
all the departments of the Philippine Government, what a
law is to individuals; nay, they constitute not only a rule of
action to the various branches of the Government, but it
is from them that the very existence of the power of the
Government flows, and it is by virtue of the Acts of
Congress that the powers (or

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In re Guariña.

portions of the right to govern) which may have been

committed to this Government are prescribed. The Act of
Congress was the Commission's commission; nay, it was its
creator.
Section 9 of the Act of Congress, set out above, placed it
beyond the power of the local Legislature to deprive this
court of the jurisdiction or power theretofore granted to it;
leaving however, to local legislative authority the right to
confer additional jurisdiction, or to change the practice
and method of procedure. The above-cited provisions of
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Act No. 190, in force at the time when the Act of Congress
was enacted, conferred upon this court the power and
jurisdiction to deny admission to candidates for the bar
unless, in addition to certain other prescribed conditions,
they satisfy the court that they possess the necessary
learning in the law, by passing an examination prescribed
by general rule. It seems clear, therefore, that the
Commission, while it was undoubtedly authorized to
modify the provision requiring the holding of
examinations under general rules (that being merely the
prescribed mode of procedure whereby the court was
required to ascertain the qualifications of the candidate),
had no authority to deprive this court of its power to deny
admission to any candidate who fails to satisfy it that he
possesses the necessary qualifications for admission to
the bar of the Philippine Islands.
In construing a statute enacted by the Philippine
Commission we deem it our duty not to give it a
construction which would be repugnant to an Act of
Congress, if the language of the statute is fairly
susceptible of another construction not in conflict with the
higher law. In doing so, we think we should not hesitate to
disregard contentions touching the apparent intention of
the legislator which would lead to the conclusion that the
Commission intended to enact a law in violation of the Act
of Congress. However specious the argument may be in
favor of one of two possible constructions, it must be
disregarded" if on examination it is found to rest on the
contention that the legislator designed an attempt to
transcend the rightful limits

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In re Guariña.

of his authority, and that his apparent intention was to

enact an invalid law.
Black on Interpretation of Laws at page 87 says: "In
construing a doubtful or ambiguous statute, the courts will
presume that it was the intention of the legislature to
enact a valid, sensible, and just law, and one which should
change the prior law no further than may be necessary to
effectuate the specific purpose of the act in question. The
construction should be in harmony with this assumption
whenever possible."
The same author, at pages 93 and 94, says: "Hence it
follows that the courts will not so construe the law as to
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make it conflict with the constitution, but will rather put

such an interpretation upon it as will avoid conflict with
the constitution and give it full force and effect, if this can
be done without extravagance. If there is doubt or
uncertainty as to the meaning of the legislature, if the
words or provisions of the statute are obscure, or if the
enactment is fairly susceptible of two or more
constructions, that interpretation will be adopted which
will avoid the effect of unconstitutionality, even though it
may be necessary, for this purpose, to disregard the more
usual or apparent import of the language employed."
Without undue straining of the language used in the
statute under consideration, the word "may" may be
construed as either mandatory or permissive in its effect.
But to construe it as mandatory would bring it in direct
conflict with the Act of Congress, and we conclude
therefore, despite the contentions of the applicant as to
the apparent intention of the legislator, that it should be
given its permissive and not its mandatory effect, and that
the true intention of the legislator was to leave it within
the discretion of the court to admit to the bar without
examination the officials mentioned in the Act in any case
wherein the court is otherwise satisfied that they possess
the necessary qualifications.
Ordinarily, and in the absence of any showing to the
contrary, it may fairly be assumed that an applicant who

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48 PHILIPPINE REPORTS ANNOTATED

In re Guariña.

has held one of the offices mentioned in the statute, and

who, prior to his appointment, had been admitted to the
practice of law in the courts of these Islands under the
former sovereign or in some other jurisdiction is duly
qualified for admission to the bar of these Islands. In
the case In re Du Fresne (20 Phil. Rep., 488, 492),
speaking of the provisions of this Act, we said:

"Appointments to the positions mentioned in Act No. 1597 are

made either by the President of the United States by and with
the advice and consent of the Senate, or by the Governor-
General of the Philippine Islands by and with the advice and
consent of the Philippine Commission, and the legislator
evidently conceived that the fact that such an appointment is
made is a sufficient guaranty that after due inquiry the appointee

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has been found to be possessed of at least the necessary

qualifications for admission to the bar."

In the various cases wherein applications for admission

to the bar under the provisions of this statute have been
considered heretofore, we have accepted the fact that such
appointments had been made as satisfactory evidence of
the qualifications of the applicant. But in all of those
cases we had reason to believe that the applicants had
been practicing attorneys prior to the date of their
appointment.
In the case under consideration, however, it
affirmatively appears that the applicant was not and never
had been a practicing- attorney in this or any other
jurisdiction prior to the date of his appointment as
provincial fiscal, and it further affirmatively appears that
he was deficient in the required qualifications at the time
when he last applied for admission to the bar.
In the light of this affirmative proof of his deficiency on
that occasion, we do not think that his appointment to the
office' of provincial fiscal is in itself satisfactory proof of
his possession of the necessary qualifications of learning
and ability. We conclude therefore that this application
for license to practice in the courts of the Philippines
should be denied.
In view, however, of the fact that when he took the
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VOL. 24, JANUARY 9, 1913. 49

Molina vs. Somes.

examination he fell only four points short of the necessary

grade to entitle him to a license to practice; and in view
also of the fact that since that time he has held the
responsible office of governor of the Province of Sorsogon
and presumably gave evidence of such marked ability in
the performance of the duties of that office that the Chief
Executive, with the consent and approval of the
Philippine Commission, sought to retain him in the
Government service by appointing him to the office of
provincial fiscal, we think we would be justified under the
above-cited provisions of Act No. 1597 in waiving in his
case the ordinary examination prescribed by general rule,
provided he offers satisfactory evidence of his proficiency
in a special examination which will be given him by a
committee of the court upon his application therefor,
without prejudice to his right, if he desires so to do, to
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present himself at any of the ordinary examinations

prescribed by general rule. So ordered.

Arellano, C. J., Torres, Mapa, and Trent, JJ., concur.

Application admitted upon condition.

____________

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