[G.R. No. 1179. January 8, 1913.

]
In re application of MARIO GUARIÑA for admission to the bar.
Mario Guariña in his behalf.

SYLLABUS
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 in 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 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 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 of 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.)

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

DECISION

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: jgc:chanroble s.com.ph

"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: jgc:chanrobles.com.ph

"‘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 attorney for 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.’"
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 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 former 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."
cralaw virtua1aw library

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 above-cited amendment to the earlier statute, and in
view of the context generally and especially of the 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.

It must be confessed that were the inquiry limited strictly 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 v. United States (71 U. S., 435, 446),
Mr. Justice Swayne says: jgc:chanrobles.com.ph

"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." cralaw virtua1aw library

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 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 v. Village of
Canandaigua (U.S.) , 69 Fed., 671, 673; Kansas Pacific Ry. Co. v. Reynolds, 8 Kan.,
623, 628; Kemble v. McPhaill, 60 Pac., 1092, 1093, 128 Cal., 444; Inhabitants of
Worcester County v. Schlesinger, 82 Mass. (16 Gray), 166, 168; People v. Sanitary
Dist. of Chicago, 56 N. E., 953, 956, 184 Ill., 597; State v. Withrow (Mo.) , 24 S. W.,
638, 641; Leavenworth & D. M. R. Co. v. 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 therefore
conferred upon it. Section 9 of that Act is as follows:jgc:chanrobles.com.ph

"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 amendments 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." cralaw virtua1aw library

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 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: chanrob1es virtual 1aw library

(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: jgc:chanrobles.com.ph

"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: jgc:chanroble s.com.ph

"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 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." cralaw virtua1aw library

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 infringe upon the limits thus prescribed, and any Act of
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 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 v. 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 v. 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; may, 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. 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 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 of
his authority, and that his apparent intention was to enact an invalid 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."cralaw virtua1aw library

The same author, at pages 93 and 94, says: "Hence it follows that the courts will not
so construe the law as to 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." cralaw virtua1aw library

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 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: jgc:chanroble s.com.ph

"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 has been found to be possessed of at least the necessary
qualifications for admission to the bar." cralaw virtua1aw library

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 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 therefore, without prejudice to his right, if
he desires so to do, to present himself at any of the ordinary examinations
prescribed by general rule. So ordered.

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