Finding that only legal issues are involved in the instant case, the  Court of Appeals certified the same to this Court for disposition.

Gilbert R. Brehm is an  American citizen, serving  the U.S. Navy with temporary assignment at Subic  Bay.  On October 9, 1958, he married Ester Mira, a Filipina citizen, who had   a daughter Elizabeth, by another man, also  of the  American  navy, who  left the  country  in  1952, and never  heard from since then.  After  the   marriage, the couple established residence at  Intramuros, Manila, and the minor Elizabeth had always been under their care and support of Brehm.

On January 28, 1959, the spouses  filed a Joint Petition with the Juvenile and Domestic Relations Court for the adoption of the minor Elizabeth, claiming that they have mutually given   their consent to the  adoption, not only  to promote her best  interest and  well-being, but also to give her a legitimate status.  They prayed that after the proper proceedings,  judgment be entered, freeing the child Elizabeth Mira from  all legal obligations of obedience and maintenance with respect  to  her natural father, and  be, for all legal intents and purposes,  the child of the petitioners, with all the rights  pertinent thereto.

An opposition to the petition with respect  to  Gilbert R. Brehm was registered by the Republic of the Philippines, it appearing that Brehm testified that his residence in the Philippines  was merely  temporary  same being effective only for purposes of his tour of duty with the Navy, thus disqualifying him from making an adoption  (Art. 335 [4], New Civil  Code;  Sec. 2, Rule 100, Rules of Court), and that being a non-resident alien, the Court has no jurisdiction over him.

A reply to the opposition was presented by petitioners. They claim  that Art335 does not apply in  the case, reasoning out that it covers only adoptions for the purpose of establishing  a relationship of paternity and filiation, where none  existed, but  not where  the  adopting parents are not total strangers to said child; that there is already a relation between the child and Brehm, created by affinity and that Art. 338 of the New Civil Code,  expressly authorizes the adoption of a  step-child by a step-father, in which category petitioner Brehm falls.  Petitioners contend that the records show their residence in Manila, for while Brehm works at Subic, he always goes home to Manila, during week ends and manifested that he intends to reside in the Philippines  permanently, after his tour  of duty with the U.S. Naval  Forces.

The Juvenile and Domestic Relations Court  rendered the pertinent portions of which read

" * *  Since residence  is principally a matter of  intention, the Court is of the opinion  that notwithstanding  the  nature  of  petitioner Gilbert  R.  Brehm's  coming to the  Philippines, his subsequent acts, coupled with his declared intention of permanently  residing herein,  have cured the legal defect on the point of  residence.

Finally, we  must consider the status of the minor Elizabeth  Mira whose welfare deserves paramount consideration.  Being a natural child of the petitioning wife, it cannot be in conscience be expected that when petitioners married, the mother would reduce her responsibility  and  her affection toward her child. * * *

Wherefore, finding that the principal allegations of the petitioners are true, it  is hereby  adjudged that henceforth the minor Elizabeth is freed from all obligations of obedience   and maintenance  with respect  to her natural  father, and  is, to all legal intents and  purposes, the child of the petitioners Gilbert R.  Brehm and Ester Mira Brehm,  said minor's surname being changed from 'Mira  to 'Mira Brehm."

The  Solicitor General took exception from the judgment, claiming that it was error for the Court in  adjudging the minor  Elizabeth Mira the adopted child of petitioner  Gilbert R. Brehm.  The appeal,  however, did  not assail the right of petitioner Ester Mira Brehm, the natural mother of the  minor, to adopt her.

There is no  question that petitioner Gilbert R. Brehm  is a non-resident alien.   By his own testimony, he supplied the  conclusive  proof of his  status here,  and  no amount of reasoning will overcome the same.  For this reason, he is not  qualified to  adopt.   On this very point, we have recently  declared

"The  only issue in this  appeal is  whether or not being permanent residents in  the Philippines, petitioners are qualified to adopt Baby Rose.  Article  335 of  the  Civil  Code  of the Philippines, provides that

*          *          *          *          *          *           *

The following cannot adopt:
(4) Non-resident aliens

This  legal provision  is too clear to  require interpretation.   No matter how much  we may sympathize with the plight of Baby Rose and with the good intentions of  petitioners herein, the law leaves us no  choice but  to apply its explicit terms, which unqualifiedly deny to petitioners the power to  adopt anybody in the Philippines (Ellis and Ellis vs. Republic, L-16922,  April 30, 1963).

Prior to the above decision, We have also denied petitions to adopt by persons similarly  situated as petitioner Brehm. Thus,  in the case of Caraballo vs.  Republic, G. R. No. L-15080, April  25,  1962, giving  some reasons  why non- resident aliens are disqualified  to  adopt, We said

" * * . Looking after the  welfare of  a minor to  be adopted, the law has surrounded him with safeguard to achieve and insure such welfare.  It  cannot  be  gainsaid  that  an  adopted minor may  be removed from the country by the adopter, who is not a  resident of the Philippines, and placed beyond the  reach and protection  of the country of his birth."   (See also  S/Sgt.  Katancik, vs. Republic G.R.  No. L-15472,  June 20, 1962).

This notwithstanding, petitioners press the argument that Brehm being now the step-father  of the minor,  he is qualified to adopt, in  virtue of the provisions of par. 3, Art. 338, Civil Code, which states

"The following may  be adopted:

(1)  The natural child,  by the  natural father

(2) Other legitimate  children, by the father or mother

(3) A step-child by the step-father or step-mother."

We should construe, however,  Article 338  in connection with Article 335.  Art.  335  clearly states  that "The fol- lowing cannot adopt:  * * * (4). Non-resident aliens".    It is, therefore, mandatory, because it contains  words  of positive prohibition and is couched in the negative terms importing that the act required shall not  be done  other- wise  than  designated (50 Am. Jur.  51).   On  the  other hand,  Art.  338,  provides "the following may be adopted: (3) a  step-child, by the step-father or  step-mother", which is merely directory,  and  which can only be given operation  if the same  does  not   conflict with the mandatory provisions  of Art.  335.  Moreover,  as  heretofore  been shown,  it is Article 385  that confers jurisdiction to  be court over the case, and before  Article 338 may or can be availed of, such  jurisdiction  must first be established. We ruled out the adoption of a step-child by a step-father, when the latter has a legitimate child  of his own  (Ball vs. Rep., 94 Phil., 106 50 Off. Gaz. p. 145; and McGee vs. Rep., 94 Phil., 820).

In view thereof, the decision  appealed  from, in so far as it affects the petitioner Gilbert R. Brehm,  is hereby reversed, and his  petition to adopt the  child Elizabeth Mira, denied.  Without costs.

Bengzon,  C.  J., Padilla, Bautista  Angelo,  Concepcion, Barrera, Dizon, Regala and Makalintal, JJ. concur.