DISSENTING OPINION
VITUG, J.:
The instant case on appeal by certiorari under Rule 45 of the Revised Rules of Court assails the decision, dated 24 January 1991, and the resolution, dated 15 May 1991, of respondent Court of Appeals in CA-G.R. SP NO. 22995, entitled "Acebedo Optical Company, Inc., petitioner, vs. Hon. Mamindiara P. Mangotara in his capacity as Presiding Judge of the Regional Trial Court, 12th Judicial Region, Branch 1, Iligan City, Samahan ng Optometrists sa Pilipinas-Iligan City Chapter, Leo T. Cahanap, City Legal Officer of Iligan, and Hon. Camilo P. Cabili, City Mayor of Iligan, respondents," affirming that of the trial court. The issue focuses on whether or not petitioner corporation is, in fact, engaged in an unauthorized practice of optometry. The trial court and the appellate court have both held in the affirmative.
The relevant antecedents.-
On 26 November 1988,the Office of the City Mayor of Iligan issued Business Permit No. 5342 to petitioner, upon its application therefor, for the operation of a branch office-store of Acebedo Optical Clinic in the city. The permit was subject to various conditions, among them being that Acebedo was not to put up an optical clinic but only a commercial store and that Acebedo could not examine and/or prescribe reading and similar optical glasses for patients nor to advertise or sell reading and similar eyeglasses without a prescription having first been made by an independent optometrist or an independent optical clinic. Nevertheless, Acebedo was authorized to advertise or sell directly to the public, without need of a prescription, Ray-Ban and similar eyeglasses. It could also grind lenses but only upon the prescription of an independent optometrist.
For the alleged breach of the conditions specified in the business permit granted to Acebedo, private respondent Samahan ng Optometrists sa Pilipinas ("SOPI"), Iligan Chapter, filed a complaint with the Office of the City Mayor. SOPI sought the revocation and/or cancellation of Acebedo's business permit. Acting on the complaint, the Office of the City Mayor directed its City Legal Officer, Leo T. Cahanap, to look into the matter. On 12 Ju1y 1989, the latter submitted his report which confirmed that Acebedo had indeed violated the conditions of its business permit. Acting on the recommendation of the City Legal Officer, the city government, on 19 July 1989, sent petitioner a "Notice of Resolution and Cancellation of Business Permit" effective "immediately" and gave it a period of three months within which to wind up its affairs.
The action of the city government prompted petitioner to bring up, on 17 October 1989, a petition for certiorari, prohibition and mandamus, with a prayer for restraining order/preliminary injunction, before the Regional Trial Court, Branch 1, of Iligan City, against respondents Mayor Camilo Cabili, Leo Cahanap, and SOPI.
The petition substantially averred that petitioner was denied due process because it was not given an opportunity to present its evidence during the investigation; that it was denied equal protection because the conditions imposed on it were not being imposed on other business enterprises in Iligan City; that respondent mayor had no authority to impose special conditions; that respondent City Legal Officer had no jurisdiction to conduct the investigation since the matter was within the exclusive jurisdiction of the Professional Regulation Commission and the Board of Optometry; and that respondents City Mayor and City Legal Officer had acted with grave abuse of discretion in cancelling petitioner's permit.
Respondent SOPI interposed a motion to dismiss the petition, alleging that Acebedo had failed to exhaust its administrative remedies. Presiding Judge Mamindiara P. Mangotara deferred the resolution of the motion but granted the prayer of petitioner for a writ of preliminary injunction. On 30 May 1990,however,the Regional Trial Court ultimately dismissed the petition for the failure of petitioner to exhaust administrative remedies and thus dissolved the writ of preliminary injunction it had previously issued. Petitioner's motion for reconsideration was likewise denied in an order, dated 28 June 1990,of the trial court.
In the petition for certiorari, prohibition, and mandamus filed with the Court of Appeals, petitioner sought to set aside the assailed order of dismissal, aforementioned, ascribing grave abuse of discretion on the part of the trial court. The appellate court, on 24 January 1991, dismissed the petition for lack of merit. It also rejected, in its Resolution of 15 May 1991, a motion for the reconsideration of the dismissal.
In its petition for review on certiorari before this Court, Acebedo would have it that-
"A.
"THE RESPONDENT COURT, WHILE CORRECTLY HOLDING THAT THE RESPONDENT CITY MAYOR ACTED BEYOND HIS AUTHORITY IN IMPOSING THE SPECIAL CONDITIONS IN THE PERMIT AS THEY HAD NO BASIS IN ANY LAW OR ORDINANCE, ERRED IN HOLDING THAT THE SAID SPECIAL CONDITIONS NEVERTHELESS BECAME BINDING ON PETITIONER UPON ITS ACCEPTANCE THEREOF AS A PRIVATE AGREEMENT OR CONTRACT.
"B.
"THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE CONTRACT BETWEEN PETITIONER AND THE CITY OF ILIGAN WAS ENTERED INTO BY THE LATTER IN THE PERFORMANCE OF ITS PROPRIETARY FUNCTIONS."
Petitioner, in fine, does not now dispute its having violated the conditions stated in the business permit1 [Rollo, p. 27.] issued by the City Mayor but would instead assail the authority of the mayor to impose the aforesaid conditions.
The courts below, in my humble view, should be sustained.
The questioned conditionalities imposed on the business permit of Acebedo are activities that cannot be performed by a corporation without such engagement being translated into an unauthorized practice of optometry. The exercise of this profession is no different from the practice of other regulated professions which can only be undertaken by individuals duly licensed therefor.
Republic Act No. 8050, otherwise known as the Revised Optometry Law, like Republic Act No. 1998,2 [Section 2, R.A. No. 1998, An Act to Regulate the Practice of Optometry in the Philippines.] the old Optometry Law, specifically prohibits any person from practicing or attempting to practice optometry without such person having been first admitted to the practice of that profession and granted a valid certificate of registration signed by the Commissioner of the Professional Regulation Commission and by all members of the Board of Optometry.3 [Sec. 5, relation to Sec. 3(e), Republic Act No. 8050.] Section 5 of the Republic Act no. 8050 reads:
"SEC. 5. Prohibition Against the Unauthorized Practice of Optometry. – No person shall practice optometry as defined in Section 3 of this Act nor perform any of the acts constituting the practice of optometry as setforth in Section 4 hereof, without having been first admitted to the practice of this profession under the provisions of this Act and its implementing rules and regulations: Provided, That this prohibition shall not apply to regularly licensed and duly registered physicians who have received post-graduate training in the diagnosis and treatment of eye diseases: Provided, however, That the examination of the human eye by duly registered physicians in connection with the physical examination of patients shall not be considered as practice of optometry: Provided, further, That public health workers trained and involved in the government’s blindness prevention program may conduct only visual acuity test and visual screening."
Under Section 4 of that law, any of the following acts would constitute the practice of optometry; to wit:
a) The examination of the human eye through the employment of subjective and objective procedures, including the use of specific topical diagnostic pharmaceutical agents or drugs and instruments, tools, equipment, implements, visual aids, apparatuses, machines, ocular exercises, and related devices, for the purpose of determining the condition and acuity of human vision to correct and improve the same in accordance with subsections (b), (c) and (d) hereof.
b) The prescription and dispensing of ophthalmic lenses, prisms, contact lenses and their accessories and solutions, frames and their accessories, and supplies for the purpose of correcting and treating defects, deficiencies and abnormalities of vision;
c) The conduct of ocular exercises and vision training, the provision of orthoptics and other devices and procedures to aid and correct abnormalities of human vision, and the installation of prosthetic devices;
d) The counseling of patients with regard to vision and eye care and hygiene;
e) The establishment of offices, clinics, and similar places where optometric services are offered; and
f) The collection of professional fees for the performance of any of the acts mentioned in paragraphs (a), (b), (c) and (d) of this section.
The case at bar is notably different from that of "Samahan ng Optometrists Sa Pilipinas, Ilocos Sur-Abra Chapter vs. Acebedo International Corporation"4 [270 SCRA 298.] where the only issue submitted is whether or not Acebedo can hire licensed optometrists without impinging on the Optometry Law (R.A. No. 1998). In ruling that Acebedo can have duly licensed optometrists in its employ, the Court held:
"Petitioners' contentions are, however, untenable. The fact that private respondent hires optometrists who practice their profession in the course of their employment in private respondent's optical shops, does not translate into a practice of optometry by private respondent itself. Private respondent is a corporation created and organized for the purpose of conducting the business of selling optical lenses or eyeglasses, among others. The clientele of private respondent understandably, would largely be composed of persons with defective vision and thus need the proper lenses to correct the same and enable them to gain normal vision. The determination of the proper lenses to sell to private respondent's clientele entails the employment of optometrists who have been precisely trained for that purpose. Private respondent's business is not the determination itself of the proper lenses needed by persons with defective vision. Private respondent's business, rather, is the buying and importing of eyeglasses and lenses, and other similar or allied instruments from suppliers thereof and selling the same to consumers."5 [At p. 306.]
In much the same vein, there would be no legal impediment for a lawyer, a physician, an accountant or any other person duly licensed to engage in the practice of a regulated profession to be hired or employed by a corporation but, by such employment, the corporation may not itself then carry on and exercise the regulated activity.
Petitioner argues that respondent City Mayor has acted beyond his authority in imposing the conditions expressed in Acebedo’s permit. The contention is bereft of merit. The City Mayor has merely restated what the Optometry Law mandates. Under Section 171, paragraph 2(n), of the then Local Government Code,6 [B.P. Blg. 337.] the City Mayor, being the Chief Executive of the Local Government, has had the authority to "grant or refuse to grant, pursuant to law, city licenses or permits, and revoke the same for violation of law or ordinance or the conditions upon which they are granted." Its equivalent provision in the local Government Code of 1991 is now found in Section 445, paragraph 3(iv), which empowers city mayors to "issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits (are) issued, pursuant to law or ordinance." Municipal corporations are agencies of the State for the promotion and maintenance of local self-governance and are endowed with police power in order to effectively accomplish the declared objects of their creation.7 [Tatel vs. Municipality of Virac, 207 SCRA 157.] An attribute of sovereignty, police power has been defined to be the power to prescribe regulations to promote the health, morals, education, good order or safety, and general welfare of the people.8 [Primicias v. Fugoso, 80 PHIL 71.]
A license or permit is not a contract between the sovereign and the grantee; rather, it is a special privilege, a permission or authority to do what would be within its terms; it is neither vested nor permanent that can at no time be withdrawn or taken back by the grantor. The Solicitor General has posited correctly in disagreeing with the appellate court which has mistaken the conditions imposed by respondent City Mayor as being binding on both the city government and petitioner upon the thesis that the permit issued by him partakes the nature of a private agreement or contract. For a permit to be impressed with a contractual character, it must be clearly demonstrated that the very administrative agency, which is the source of the permit, can place that burden on itself as such.9 [See Gonzalo Sy Trading vs. Central Bank, 70 SCRA 570.]
Accordingly, I vote to deny the petition.