EN BANC
ACEBEDO OPTICAL COMPANY, INC., petitioner,
vs.
THE HONORABLE COURT OF APPEALS, Hon. MAMINDIARA MANGOTARA, in his capacity as Presiding Judge of the RTC, 12th Judicial Region, Br. 1, Iligan City; SAMAHANG OPTOMETRIST Sa PILIPINAS — Iligan City Chapter, LEO T. CAHANAP, City Legal Officer, and Hon. CAMILO P. CABILI, City Mayor of Iligan, respondents.
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the
Rules of Court seeking to nullify the dismissal by the Court of Appeals
of the original petition for certiorari, prohibition and mandamus
filed by the herein petitioner against the City Mayor and City Legal
Officer of Iligan and the Samahang Optometrist sa Pilipinas — Iligan
Chapter (SOPI, for brevity).
The antecedent facts leading to the filing of the instant petition are as follows:
Petitioner applied with the Office of the City Mayor
of Iligan for a business permit. After consideration of petitioner's
application and the opposition interposed thereto by local optometrists,
respondent City Mayor issued Business Permit No. 5342 subject to the
following conditions:
1. Since it is a corporation, Acebedo cannot put up an optical clinic but only a commercial store;
2. Acebedo cannot examine and/or prescribe reading
and similar optical glasses for patients, because these are functions of
optical clinics;
3. Acebedo cannot sell reading and similar eyeglasses
without a prescription having first been made by an independent
optometrist (not its employee) or independent optical clinic. Acebedo
can only sell directly to the public, without need of a prescription,
Ray-Ban and similar eyeglasses;
4. Acebedo cannot advertise optical lenses and eyeglasses, but can advertise Ray-Ban and similar glasses and frames;
5. Acebedo is allowed to grind lenses but only upon the prescription of an independent optometrist. 1
On December 5, 1988, private respondent Samahan ng
Optometrist Sa Pilipinas (SOPI), Iligan Chapter, through its Acting
President, Dr. Frances B. Apostol, lodged a complaint against the
petitioner before the Office of the City Mayor, alleging that Acebedo
had violated the conditions set forth in its business permit and
requesting the cancellation and/or revocation of such permit.
Acting on such complaint, then City Mayor Camilo P.
Cabili designated City Legal Officer Leo T. Cahanap to conduct an
investigation on the matter. On July 12, 1989, respondent City Legal
Officer submitted a report to the City Mayor finding the herein
petitioner guilty of violating all the conditions of its business permit
and recommending the disqualification of petitioner from operating its
business in Iligan City. The report further advised that no new permit
shall be granted to petitioner for the year 1989 and should only be
given time to wind up its affairs.
On July 19, 1989, the City Mayor sent petitioner a
Notice of Resolution and Cancellation of Business Permit effective as of
said date and giving petitioner three (3) months to wind up its
affairs.
On October 17, 1989, petitioner brought a petition for certiorari, prohibition and mandamus
with prayer for restraining order/preliminary injunction against the
respondents, City Mayor, City Legal Officer and Samahan ng Optometrists
sa Pilipinas-Iligan City Chapter (SOPI), docketed as Civil Case No. 1497
before the Regional Trial Court of Iligan City, Branch I. Petitioner
alleged that (1) it was denied due process because it was not given an
opportunity to present its evidence during the investigation conducted
by the City Legal Officer; (2) it was denied equal protection of the
laws as the limitations imposed on its business permit were not imposed
on similar businesses in Iligan City; (3) the City Mayor had no
authority to impose the special conditions on its business permit; and
(4) the City Legal Officer had no authority to conduct the investigation
as the matter falls within the exclusive jurisdiction of the
Professional Regulation Commission and the Board of Optometry.
Respondent SOPI interposed a Motion to Dismiss the
Petition on the ground of non-exhaustion of administrative remedies but
on November 24, 1989, Presiding Judge Mamindiara P. Mangotara deferred
resolution of such Motion to Dismiss until after trial of the case on
the merits. However, the prayer for a writ of preliminary injunction was
granted. Thereafter, respondent SOPI filed its answer.1âwphi1.nêt
On May 30, 1990, the trial court dismissed the
petition for failure to exhaust administrative remedies, and dissolved
the writ of preliminary injunction it earlier issued. Petitioner's
motion for reconsideration met the same fate. It was denied by an Order
dated June 28, 1990.
On October 3, 1990, instead of taking an appeal, petitioner filed a petition for certiorari,
prohibition and mandamus with the Court of Appeals seeking to set aside
the questioned Order of Dismissal, branding the same as tainted with
grave abuse of discretion on the part of the trial court.
On January 24, 1991, the Ninth Division 2
of the Court of Appeals dismissed the petition for lack of merit.
Petitioner's motion reconsideration was also denied in the Resolution
dated May 15, 1991.
Undaunted, petitioner has come before this court via the present petition, theorizing 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.
Although petitioner agrees with the finding of the
Court of Appeals that respondent City Mayor acted beyond the scope of
his authority in imposing the assailed conditions in subject business
permit, it has excepted to the ruling of the Court of Appeals that the
said conditions nonetheless became binding on petitioner, once accepted,
as a private agreement or contract. Petitioner maintains that the said
special conditions are null and void for being ultra vires and cannot be given effect; and therefore, the principle of estoppel cannot apply against it.
On the other hand, the public respondents, City Mayor
and City Legal Officer, private respondent SOPI and the Office of the
Solicitor General contend that as a valid exercise of police power,
respondent City Mayor has the authority to impose, as he did, special
conditions in the grant of business permits.
Police power as an inherent attribute of sovereignty
is the power to prescribe regulations to promote the health, morals,
peace, education, good order or safety and general welfare of the
people. 9
The State, through the legislature, has delegated the exercise of
police power to local government units, as agencies of the State, in
order to effectively accomplish and carry out the declared objects of
their creation. 4 This delegation of police power is embodied in the general welfare clause of the Local Government Code which provides:
Sec. 6. General Welfare. — Every local
government unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers necessary, appropriate,
or incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare. Within
their respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and enrichment
of culture, promote health and safety, enhance the right of the people
to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order,
and preserve the comfort and convenience of their inhabitants.
The scope of police power has been held to be so
comprehensive as to encompass almost all matters affecting the health,
safety, peace, order, morals, comfort and convenience of the community.
Police power is essentially regulatory in nature and the power to issue
licenses or grant business permits, if exercised for a regulatory and
not revenue-raising purpose, is within the ambit of this power. 5
The authority of city mayors to issue or grant
licenses and business permits is beyond cavil. It is provided for by
law. Section 171, paragraph 2 (n) of Batas Pambansa Bilang 337 otherwise
known as the Local Government Code of 1983, reads:
Sec. 171. The City Mayor shall:
x x x x x x x x x
n) 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.
However, the power to grant or issue licenses or
business permits must always be exercised in accordance with law, with
utmost observance of the rights of all concerned to due process and
equal protection of the law.
Succinct and in point is the ruling of this Court, that:
. . . While a business may be regulated, such regulation must, however, be within the bounds of reason, i.e.,
the regulatory ordinance must be reasonable, and its provision cannot
be oppressive amounting to an arbitrary interference with the business
or calling subject of regulation. A lawful business or calling may not,
under the guise of regulation, be unreasonably interfered with even by
the exercise of police power. . . .
x x x x x x x x x
. . . The exercise of police power by the local
government is valid unless it contravenes the fundamental law of the
land or an act of the legislature, or unless it is against public policy
or is unreasonable, oppressive, partial, discriminating or in
derogation of a common right. 6
In the case under consideration, the business permit
granted by respondent City Mayor to petitioner was burdened with several
conditions. Petitioner agrees with the holding by the Court of Appeals
that respondent City Mayor acted beyond his authority in imposing such
special conditions in its permit as the same have no basis in the law or
ordinance. Public respondents and private respondent SOPI, on the other
hand, are one in saying that the imposition of said special conditions
on petitioner's business permit is well within the authority of the City
Mayor as a valid exercise of police power.
As aptly discussed by the Solicitor General in his
Comment, the power to issue licenses and permits necessarily includes
the corollary power to revoke, withdraw or cancel the same. And the
power to revoke or cancel, likewise includes the power to restrict
through the imposition of certain conditions. In the case of Austin-Hardware, Inc. vs. Court of Appeals, 7
it was held that the power to license carries with it the authority to
provide reasonable terms and conditions under which the licensed
business shall be conducted. As the Solicitor General puts it:
If the City Mayor is empowered to grant or refuse to
grant a license, which is a broader power, it stands to reason that he
can also exercise a lesser power that is reasonably incidental to his
express power, i.e. to restrict a license through the
imposition of certain conditions, especially so that there is no
positive prohibition to the exercise of such prerogative by the City
Mayor, nor is there any particular official or body vested with such
authority. 8
However, the present inquiry does not stop there, as
the Solicitor General believes. The power or authority of the City Mayor
to impose conditions or restrictions in the business permit is
indisputable. What petitioner assails are the conditions imposed in its
particular case which, it complains, amount to a confiscation of the
business in which petitioner is engaged.
Distinction must be made between the grant of a
license or permit to do business and the issuance of a license to engage
in the practice of a particular profession. The first is usually
granted by the local authorities and the second is issued by the Board
or Commission tasked to regulate the particular profession. A business
permit authorizes the person, natural or otherwise, to engage in
business or some form of commercial activity. A professional license, on
the other hand, is the grant of authority to a natural person to engage
in the practice or exercise of his or her profession.
In the case at bar, what is sought by petitioner from
respondent City Mayor is a permit to engage in the business of running
an optical shop. It does not purport to seek a license to engage in the
practice of optometry as a corporate body or entity, although it does
have in its employ, persons who are duly licensed to practice optometry
by the Board of Examiners in Optometry.
The case of Samahan ng Optometrists sa Pilipinas vs. Acebedo International Corporation, G.R. No. 117097, 9
promulgated by this Court on March 21, 1997, is in point. The factual
antecedents of that case are similar to those of the case under
consideration and the issue ultimately resolved therein is exactly the
same issue posed for resolution by this Court en banc.
In the said case, the Acebedo International
Corporation filed with the Office of the Municipal Mayor an application
for a business permit for the operation of a branch of Acebedo Optical
in Candon, Ilocos Sur. The application was opposed by the Samahan ng
Optometrists sa Pilipinas-Ilocos Sur Chapter, theorizing that Acebedo is
a juridical entity not qualified to practice optometry. A committee was
created by the Office of the Mayor to study private respondent's
application. Upon recommendation of the said committee, Acebedo's
application for a business permit was denied. Acebedo filed a petition
with the Regional Trial Court but the same was dismissed. On appeal,
however, the Court of Appeals reversed the trial court's disposition,
prompting the Samahan ng Optometrists to elevate the matter to this
Court.
The First Division of this Court, then composed of
Honorable Justice Teodoro Padilla, Josue Bellosillo, Jose Vitug and
Santiago Kapunan, with Honorable Justice Regino Hermosisima, Jr. as ponente,
denied the petition and ruled in favor of respondent Acebedo
International Corporation, holding that "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," 10
The Court further elucidated that in both the old and new Optometry
Law, R.A. No. 1998, superseded by R.A. No. 8050, it is significant to
note that there is no prohibition against the hiring by corporations of
optometrists. The Court concluded thus:
All told, there is no law that prohibits the hiring
by corporations of optometrists or considers the hiring by corporations
of optometrists as a practice by the corporation itself of the
profession of optometry.
In the present case, the objective of the imposition
of subject conditions on petitioner's business permit could be attained
by requiring the optometrists in petitioner's employ to produce a valid
certificate of registration as optometrist, from the Board of Examiners
in Optometry. A business permit is issued primarily to regulate the
conduct of business and the City Mayor cannot, through the issuance of
such permit, regulate the practice of a profession, like that of
optometry. Such a function is within the exclusive domain of the
administrative agency specifically empowered by law to supervise the
profession, in this case the Professional Regulations Commission and the
Board of Examiners in Optometry.
It is significant to note that during the
deliberations of the bicameral conference committee of the Senate and
the House of Representatives on R.A. 8050 (Senate Bill No. 1998 and
House Bill No. 14100), the committee failed to reach a consensus as to
the prohibition on indirect practice of optometry by corporations. The
proponent of the bill, former Senator Freddie Webb, admitted thus:
Senator Webb: xxx xxx xxx
The focus of contention remains to be the proposal of prohibiting the indirect practice of optometry by corporations.1âwphi1 We took a second look and even a third look at the issue in the bicameral conference, but a compromise remained elusive. 11
Former Senator Leticia Ramos-Shahani likewise voted her reservation in casting her vote:
Senator Shahani: Mr. President.
The optometry bills have evoked controversial views
from the members of the panel. While we realize the need to uplift the
standards of optometry as a profession, the consesnsus of both Houses
was to avoid touching sensitive issues which properly belong to judicial
determination. Thus, the bicameral conference committee decided to
leave the issue of indirect practice of optometry and the use of trade
names open to the wisdom of the Courts which are vested with the
prerogative of interpreting the laws. 12
From the foregoing, it is thus evident that Congress
has not adopted a unanimous position on the matter of prohibition of
indirect practice of optometry by corporations, specifically on the
hiring and employment of licensed optometrists by optical corporations.
It is clear that Congress left the resolution of such issue for judicial
determination, and it is therefore proper for this Court to resolve the
issue.
Even in the United States, jurisprudence varies and
there is a conflict of opinions among the federal courts as to the right
of a corporation or individual not himself licensed, to hire and employ
licensed optometrists. 13
Courts have distinguished between optometry as a
learned profession in the category of law and medicine, and optometry as
a mechanical art. And, insofar as the courts regard optometry as merely
a mechanical art, they have tended to find nothing objectionable in the
making and selling of eyeglasses, spectacles and lenses by corporations
so long as the patient is actually examined and prescribed for by a
qualified practitioner. 14
The primary purpose of the statute regulating the
practice of optometry is to insure that optometrical services are to be
rendered by competent and licensed persons in order to protect the
health and physical welfare of the people from the dangers engendered by
unlicensed practice. Such purpose may be fully accomplished although
the person rendering the service is employed by a corporation. 15
Furthermore, it was ruled that the employment of a qualified optometrist by a corporation is not against public policy. 16 Unless prohibited by statutes, a corporation has all the contractual rights that an individual has 17 and it does not become the practice of medicine or optometry because of the presence of a physician or optometrist. 18
The manufacturing, selling, trading and bartering of eyeglasses and
spectacles as articles of merchandise do not constitute the practice of
optometry. 19
In the case of Dvorine vs. Castelberg Jewelry Corporation, 20
defendant corporation conducted as part of its business, a department
for the sale of eyeglasses and the furnishing of optometrical services
to its clients. It employed a registered optometrist who was compensated
at a regular salary and commission and who was furnished instruments
and appliances needed for the work, as well as an office. In holding
that corporation was not engaged in the practice of optometry, the court
ruled that there is no public policy forbidding the commercialization
of optometry, as in law and medicine, and recognized the general
practice of making it a commercial business by advertising and selling
eyeglasses.
To accomplish the objective of the regulation, a
state may provide by statute that corporations cannot sell eyeglasses,
spectacles, and lenses unless a duly licensed physician or a duly
qualified optometrist is in charge of, and in personal attendance at the
place where such articles are sold. 21
In such a case, the patient's primary and essential safeguard lies in
the optometrist's control of the "treatment" by means of prescription
and preliminary and final examination. 22
In analogy, it is noteworthy that private hospitals
are maintained by corporations incorporated for the purpose of
furnishing medical and surgical treatment. In the course of providing
such treatments, these corporations employ physicians, surgeons and
medical practitioners, in the same way that in the course of
manufacturing and selling eyeglasses, eye frames and optical lenses,
optical shops hire licensed optometrists to examine, prescribe and
dispense ophthalmic lenses. No one has ever charged that these
corporations are engaged in the practice of medicine. There is indeed no
valid basis for treating corporations engaged in the business of
running optical shops differently.
It also bears stressing, as petitioner has pointed
out, that the public and private respondents did not appeal from the
ruling of the Court of Appeals. Consequently, the holding by the Court
of Appeals that the act of respondent City Mayor in imposing the
questioned special conditions on petitioner's business permit is ultra vires cannot be put into issue here by the respondents. It is well-settled that:
A party who has not appealed from the decision may
not obtain any affirmative relief from the appellate court other than
what he had obtain from the lower court, if any, whose decision is
brought up on appeal. 23
. . . an appellee who is not an appellant may assign
errors in his brief where his purpose is to maintain the judgment on
other grounds, but he cannot seek modification or reversal of the
judgment or affirmative relief unless he has also appealed. 24
Thus, respondents' submission that the imposition of subject special conditions on petitioner's business permit is not ultra vires cannot prevail over the finding and ruling by the Court of Appeals from which they (respondents) did not appeal.
Anent the second assigned error, petitioner maintains
that its business permit issued by the City Mayor is not a contract
entered into by Iligan City in the exercise of its proprietary
functions, such that although petitioner agreed to such conditions, it
cannot be held in estoppel since ultra vires acts cannot be given effect.
Respondents, on the other hand, agree with the ruling
of the Court of Appeals that the business permit in question is in the
nature of a contract between Iligan City and the herein petitioner, the
terms and conditions of which are binding upon agreement, and that
petitioner is estopped from questioning the same. Moreover, in the
Resolution denying petitioner's motion for reconsideration, the Court of
Appeals held that the contract between the petitioner and the City of
Iligan was entered into by the latter in the performance of its
proprietary functions.
This Court holds otherwise. It had occasion to rule
that a license or permit is not in the nature of a contract but a
special privilege.
. . . a license or a permit is not a contract between
the sovereignty and the licensee or permitee, and is not a property in
the constitutional sense, as to which the constitutional proscription
against impairment of the obligation of contracts may extend. A license
is rather in the nature of a special privilege, of a permission or
authority to do what is within its terms. It is not in any way vested,
permanent or absolute. 25
It is therefore decisively clear that estoppel cannot
apply in this case. The fact that petitioner acquiesced in the special
conditions imposed by the City Mayor in subject business permit does not
preclude it from challenging the said imposition, which is ultra vires or beyond the ambit of authority of respondent City Mayor. Ultra vires acts
or acts which are clearly beyond the scope of one's authority are null
and void and cannot be given any effect. The doctrine of estoppel cannot
operate to give effect to an act which is otherwise null and void or ultra vires.
The Court of Appeals erred in adjudging subject
business permit as having been issued by responded City Mayor in the
performance of proprietary functions of Iligan City. As hereinabove
elaborated upon, the issuance of business licenses and permits by a
municipality or city is essentially regulatory in nature. The authority,
which devolved upon local government units to issue or grant such
licenses or permits, is essentially in the exercise of the police power
of the State within the contemplation of the general welfare clause of
the Local Government Code.
WHEREFORE, the petition is GRANTED; the Decision of
the Court of Appeals in CA-GR SP No. 22995 REVERSED: and the respondent
City Mayor is hereby ordered to reissue petitioner's business permit in
accordance with law and with this disposition. No pronouncement as to
costs.
SO ORDERED.Bellosillo, Puno, Mendoza, Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Kapunan, J., see concurring opinion.
Vitug, J., please see dissent.
Davide, Jr., C.J., I join Justice Vitug in his dissent.
Melo, J., I join the dissent of Justice Vitug.
Panganiban, J., I join Justice Vitug's Dissent.
Pardo, J., I join dissent of Justice Vitug.
Footnotes
2 Associate Justice Luis Javellana, ponente; Associate Justice Alfredo Marigomen and Associate Justice Artemon Luna, members.
3 Binay vs. Domingo, 201 SCRA 508.
4 Tatel vs. Municipality of Virac, 207 SCRA 157.
5 Procter and Gamble Phils. vs. The Municipality of Jagna, 94 SCRA 894.
6 Balacuit vs. CFI of Agusan del Norte, 163 SCRA 182.
7 69 SCRA 564.
8 Comment by the Solicitor General, p. 8; Rollo, p. 78.
9 270 SCRA 298.
10 Ibid, p. 306.
11 Saturday, June 3, 1995, "Approval of the Conference Committee Report on S. No. 1998 and H. No. 14100, Record of the Senate, p. 847.
12 Ibid.
13 128 ALR 586.
14 HOUSE of $8.50 Eyeglasses, Inc. vs. State Board of Optometry, 288 Ala 349, 261 So 2d 27; State ex rel. Board of Optometry vs. Sears Roebuck and Co., 102 Ariz 175, 427 Pd 126.
15 Silver v. Lansburgh and Brother, 72 App DC 77, 11 F2d 518, 128 ALR 582; 61 Am Jur 2d 289.
16 Georgia State Examiners v. Friedman's Jewelers (183 Ga 669, 189 SE 238).
17 State ex rel. McKittrick vs. Gate City Optical Co., 339 Mo 427, 97 SW 2d 89).
18 Dickson vs. Flynn, 246 App Div 341, 286 NYS 225.
19 State ex rel. Brother vs. Beck Jewelry Enterprises, Inc., 220 Ind. 276, 41 NE 2d 622, 141 ALR 876) (61 Am Jur 187); Kindy Opticians, Inc. vs. State Board of Examiners in Optometry, 1939, 291 Mich 152, 289 NW 112, 113; New Jersey State Bd. of Optometrists vs. S.S. Kresge Co., 113 NJL 287, 174 A 353).
20 Dvorine vs. Castelberg Jewelry Corp., 170 Md. 661, 185 A 562.
21 Roschen vs. Ward, 279 US 337, 73 L Ed 722, 49 S Ct 336.
22 Small and Maine Board of Registration and examination in Optometry, 293 A 2d 786.
23 Policarpio vs. CA, 269 SCRA 344; Pison-Arceo Agricultural and Development Corporation vs. NLRC, 279 SCRA 312; Quintanilla vs. CA, 279 SCRA 397.
24 La Campana Food Products, Inc. vs. Philippine Commercial and Industrial Bank, 142 SCRA 394, 398.
25 Gonzalo Sy Trading vs. Central Bank, 70 SCRA 570.
The Lawphil Project - Arellano Law Foundation
Separate Opinions
KAPUNAN, J., separate and concurring opinion;
I concur with the opinion of Mr. Justice Purisima. In
addition, I would like to state the following: The issues that present
themselves in the case at bar are the following: First, can a corporation which is not a natural person, engage in the practice of optometry? Second,
can a corporation, by employing optometrists as an incident to and in
the ordinary course of its business of selling optical wares, supplies,
substances and instruments, be said to be indirectly practicing
optometry? Third, are the commercial restrictions in the business
license a proper exercise of police power under the specific
circumstances of this case?
I
The rule is that the corporate practice of any
profession, including optometry, must never be sanctioned. The public
policy behind such rulings is universal, and is based on the nation that
the ethics of any profession is based upon individual responsibility,
personal accountability and independence, which are all lost where one
verily acts as a mere agent, or alter ego, of unlicensed persons or
corporations.
II
The second question provides no easy answer and
actually depends on the facts and circumstance surrounding a particular
case. What is well-settled, however, is that in the absence of a statute
specifically prohibiting a corporation from hiring duly licensed
optometrists, the employment by such corporation of said professionals
is not tantamount to practice of optometry by the corporation itself.
Thus, in Samahan ng Optometrists sa Pilipinas, et al. vs. Acebedo International Corporation, 1 we held that:
. . . 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.
For petitioners argument to hold water, there need be
clear showing that R.A. No. 1998 prohibits a corporation from hiring
optometrists, for only then would it be undeniably evident that the
intention of the legislature is to preclude the formation of the
so-called optometry corporations because such is tantamount to the
practice of the profession of optometry which is legally exercisable
only by natural persons and professional partnerships. We have carefully
reviewed R.A. No. 1998 however, and we find nothing therein that
supports petitioner's insistent claims.
It is interesting to note that during the Senate
deliberations on the enactment of R.A. 8050, a widely-debated and highly
controversial provision directly prohibiting the indirect practice of
optometry, was eventually deleted from the original bill and was,
therefore, not included in the final version of the law.2 That original provision states:
Prohibition against the Indirect Practice of Optometry
— No person, natural or juridical, other than an optometrist in good
standing or a partnership composed solely of optometrists, shall hire,
employ, join with or otherwise use the services of an optometrist for
the purpose of practicing optometry: Provided however, That this
prohibition shall not apply to the government of the Philippines or any
of its agencies or instrumentalities and to persons who are exempted
under the immediate preceding section.
By deleting the aforequoted controversial provision
and by deliberately failing to provide one directly addressing the
matter of whether or not duly-licensed optometrists may practice their
profession as employees of corporations, it is evident that it was the
legislative intent to leave to the judiciary the resolution of whatever
issues that may arise in the application of the law. Senator Shahani
explained:
The optometry bills have evoked controversial views
from the Members of the panel. While we realize the need to uplift the
standards of optometry as a profession, the consensus of both Houses was
to avoid touching sensitive issues which properly belong to judicial determination.
Thus, the bicameral conference committee decided to leave the issue of
indirect practice of optometry and the use of trade names open to the
wisdom of the Courts which are vested with the prerogative of
interpreting the laws. 3
While the hiring by corporations of optometrists does not necessarily translate into the corporate practice of profession,
which is, without question, prohibited and against public policy,
factual relationships between the corporation and the
employee-optometrist have been inquired into by some courts in the
United States to determine whether or not there is an unauthorized
corporate practice of the profession, that is, whether or not it is the
corporation, and not its licensed employees, which is unduly engaged in
the practice of optometry.
In many cases, the measure of control is particularly determinative. 4
Where it appears that the optical company has the power of regulation
or control of the professional activities of the licensed optometrists,
including corporation's power to dismiss, and including any influence
over the mode and manner of eye examinations and resulting professional
judgments, the reciprocal arrangement is held to constitute the
unlicensed practice of optometry. 5 In another case, advertisement
of the corporation is a factor. Where a statute provides that a person
licensed to practice optometry is forbidden to advertise, practice, or
attempt to practice "under a name other than his own," 6
advertisement of the corporation is held to lead the public to believe
that it (the corporation) is practicing optometry. This provision,
according to the court, is certainly antagonistic to the view that a
corporation might practice optometry through a licensed optometrist.
The manner of compensation has also been held
to be an important factor in determining whether or not a corporation is
unlawfully engaged in the practice of optometry. Where the corporation
exercises in any manner, control over the payment of fees to be charged
by the optometrist, 7
where an optometrist receives a monthly salary from the corporation
purporting to be a percentage of payments made by certain customers, 8
and where the prescription does not carry the name of the licensed
optometrist, but rather that of the corporate defendant, such has been
held as sufficient indications that there is unlawful corporate practice
of the profession.9
In this case, the imposition of conditions by the respondent mayor in the business permit was premature,
there being no factual basis for him to conclude whether or not there
was a danger that corporate practice of optometry was to take place
should the business permit to operate an optical shop be granted to the
petitioner. The conditions on the business permit were imposed even before petitioner
began operating its optical shop in Iligan city, the alleged breach of
which was the basis for the permit's cancellation and the institution of
this case in court. It was not within respondent mayor's functions to
determine the proper scope and application of the Optometry Law by
imposing the conditions in the business permit.
III
In this connection, I do not fully share with the
view that the exercise of the optometrists' specialization is no
different from the practice of other regulated professions which can be
done individually or in association with duly-licensed colleagues only.
Sec. 3 of R.A. 8050 defines optometry as:
The science and art of examining the human eye,
analyzing the ocular function, prescribing and dispensing ophthalmic
lenses, prisms, contact lenses and their accessories and solutions, low
vision aids, and similar appliances and devices, conducting ocular
exercises, vision training, orthoptics, installing prosthetics, using
authorized diagnostic pharmaceutical agents (DPA), and other preventive
or corrective measures or procedures for the aid, correction,
rehabilitation or relief of the human eye, or to attain maximum vision
and comfort.
The words "ophthalmologist", "optometrist" and "optician", though closely related, should be distinguished. An ophthalmologist is a duly licensed physician who specializes in the care of eyes. Optometrists merely
examine the eyes for refractive error, recognize (but does not treat)
diseases of the eye, and fill prescriptions for eyeglasses. 10
Optometrists also adapt frames and lenses to overcome errors of
refraction and restores, as nearly as possible with these mechanical
appliances, normal human vision. The optician is engaged in the
business of furnishing lenses to customers on the prescriptions of
licensed optometrists or qualified physicians, putting the lenses into
frames selected by the customer, and fitting the frames to the face. 11
Optometry is distinguished from other professions by
the nature of relationships created between the optometrist and the
client. It has been held that the traditional relationship between
physician and patient does not exist in the practice of optometry, since
such practice involves no relationship of trust and confidence as
exists between a physician and a patient, or as between an attorney and
client. The argument is that, considering the nature and scope of the
optometrist's functions, no such trust relationship exists and,
consequently, there is no public policy to be subserved by prohibiting
optometrists to practice their profession as employees of corporations.
In the case of Silver v. Lansburgh, a U.S. Court held:
. . . Both in the case of the physician and the
lawyer, the person seeking his services must break down the barriers of
reserve which otherwise serve to protect him and deliberately reveal to
his professional adviser secrets of physical or mental disability or
secrets of business of the most intimate nature. These necessary
disclosures create the personal relationship which cannot exist between
patient or client and a profit-seeking corporation. The universal
recognition of this immediate, unbroken, and confidential association
between doctor and lawyer and those who engage their services early
created and still justifies the rule that their allegiance must be
wholeheartedly to the patient or the client, not to another. Nothing of
this nature applies to the practice of optometry. 12
Optometrists must also exercise the amount of care,
skill and diligence which is exercised generally in the community by
other practitioners in the same field, and as is mandated by the rules
regulating their profession, wherever and however they practice their
profession. Optometry has also been distinguished from other professions
in that the selling of services in the former, is intertwined with the
selling of goods. It has been held that "the optometrist and optician
are also engaged in the sale of a product, corrective lenses, and
accordingly the activities of an optometrist lie between those
associated with the practice of a profession and those characteristic of
a merchandising concern." 13
Anent the question of whether optometrists may
practice their profession as employees of corporations, many courts in
the United States have based their decisions on the distinctions and
differences in the required degree of learning and training required.
Generally, such decisions depend on whether the courts classify
optometry as a mere "mechanical art" or as a "learned profession" such
as law or medicine. Where courts consider optometry as a mere mechanical
art, optometrists are not prevented from being employed in
corporations, the courts holding that where the statute itself does not
specifically control, the reasons for preventing the practice of law and
medicine to corporations do not apply, to optometry. In the case of Silver v. Lansburgh & Co., the court found:
. . . Optometry is a mechanical art which requires
skill and a knowledge of the use of certain mechanical instruments and
appliances designed to measure and record the errors and deviations from
the normal found in the human eye, but is not a learned profession
comparable to law, medicine, and theology and that, though certain
standards of education are prescribed by the statute and by rules of the
board created under it, optometry is not a part of medicine. 14
The U.S. Court of Appeals for the District of
Columbia to which the aforementioned case was appealed, did concede that
in their view, optometry is a profession, as the term is colloquially
used, nonetheless, the court also said that there is no reason why a
corporation cannot employ licensed optometrist. Thus:
. . . but that fact is not enough to bring the rule
into effect. There is no more reason to prohibit a corporation,
organized for the purpose, from employing licensed optometrists, than
there is to prohibit similar employment of accountants, architects or
engineers. We know of no instance in which the right in any of these
cases has ever been challenged, though universally all are deemed
professions. 15
IV
The assailed conditions imposed in the subject business permit are ultra vires because
they are unreasonable. Police power is often characterized as the most
essential, insistent and the least limitable of powers, extending as it
does to all the great public needs. 16
It is the inherent and plenary power in the State which enables it to
prohibit all that is hurtful to the comfort, safety, and welfare of
society. 17
In the area of local governments, the police power of
a municipality exists solely by virtue of legislative or constitutional
grant. 18
In view, however, of the constitutional grant of local autonomy, the
argument on presumption of reasonableness in the exercise of the police
power by local government may be persuasive. But this awesome character
of police power is not without limits because the determination of what
is proper exercise of such power is subject to the supervision of the
courts. 19
This is specially true in this case where police power is used to
justify restriction on the right to engage in a legitimate employment or
business, which right receive protection and recognition as a portion
of the individual freedoms secured by the due process clause of the
Constitution.
A justification for a licensing requirement and other
forms of restrictions generally requires a showing that the measures at
least tend to promote public health, morals, safety or welfare.
Whenever a business is affected with public interest it may be subject
to regulation to protect at the public against danger and injustice.
However, the scope of regulations of trades and occupation is determined
by the principle that an exercise of the police power must confer
public benefit commensurate with the burden imposed upon private rights
and property, and the means adapted must be suitable to the end in view,
impartial in operation, and not unduly oppressive upon individuals. 20
The burden imposed must not interfere with rights of private property
and freedom of contract beyond the necessity of the situation. 21 The test, thus, is the classic reasonableness and propriety of the measures or means in the promotion of the ends sought to be accomplished.
Under the rubric of general welfare, what is the
specific public policy involved in the exercise of police power in this
case? Or in constitutional language, what is the end sought to be
achieved?
The City Mayor in its comment to the petition cites
the "safety and well-being of the people of Iligan — especially the poor
and naive among them." 22 The Solicitor General, on the other hand, cites protection of "public morals, health, safety or welfare" 23 and "to promote the prosperity and general welfare of the local government unit and its inhabitants." 24
With the lack of discussion in the pleadings on how these general
concerns will be served by the specific means adapted, we can only
speculate.
In terms of promoting safety, public health or
welfare, it may be argued that allowing corporations to employ licensed
optometrists may compromise professional accountability. Because
corporations are generally seen as more concerned at bottom with
profits, the motivation to sell might prevail over professional ethics.
Again this is mere speculation. Just being "big" is not a sin. Under the
general scheme of the equal protection clause of our Constitution,
"bigness" should not be a disadvantage in terms of benefits conferred
and liabilities imposed.
Jurisprudence in the United States is replete with
cases on the issue of validity of governmental regulation relating to
optometry. 25
In a case upholding the validity of a statute prohibiting a corporation
from practicing optometry, directly or indirectly, and from employing
registered optometrist to examine the eyes of its customers, a US court
cited the public policy that one who practices a profession is apt to
have less regard for professional ethics and to be less amenable to
regulation for their enforcement when he has no contractual obligations
to the client. 26
There are generally four types of commercial restrictions in the practice of optometry. 27 These are:
1) Employment Restrictions which usually
provide that it is unprofessional conduct or an illegal practice for an
optometrist to accept employment from unlicensed person or non-professional Corporations; 28
2) Restrictions on Location prohibit
optometrist to work in an office not devoted exclusively to the practice
of optometry or in which materials are displayed pertaining to a
commercial undertaking not related to the practice of optometry;
3) Branch Office Restrictions usually set a
maximum number of branch Offices an optometrist may operate or require
the optometrist to be on personal attendance a certain proportion of
time the office is open to the public;
4) Trade Name Restrictions declare illegal or
unethical for an optometrist to practice under a name other than his or
her name or under a false or assumed name. This last type of restriction
has a distinct discriminatory impact on non-professional corporations. 29
The public policy cited to justify these different
types of restrictions is generally consumer protection by elimination of
low-quality services. 30 Lay-employed optometrists, 31
may employ various cost-cutting techniques like brief and inadequate
eye examinations, in order to increase profits. Those who practice under
a trade name lack personal accountability and the motivation to
maintain a personal reputation for high-quality service. The management
of non-professional optical firms may, likewise, interfere with the
"doctor-patient" relationship and professional judgments concerning
patient welfare. Thus, the argument is offered that commercial practice
restrictions are necessary to prevent lay-employed optometrist from
increasing their market share by selling services at lower prices and
substituting low for high quality case without consumer recognition of
the change in quality. 32
Closer to home, the Senate proceedings discussing
Senate Bill No. 1998, the precursor of RA 8050, is enlightening as to
the rationale behind the original proposal to specifically prohibit
employment by corporations of optometrists.33
The exchange between Senator Webb, Chairman of the Committee on Health and Demography, and Senator Macapagal is instructive:
Senator Macapagal: Mr. President, what I will
ask comes from the concern of corporations that hire optometrists. What
they would like to know from the Gentleman is what is the rationale
behind prohibiting corporations from engaging the services of
optometrists.
Senator Webb: Mr. President, a corporation is
not the same as an individual human being for one thing. A corporation
cannot be a doctor or a lawyer. Only a human being may be permitted to
practice medicine or law.
x x x x x x x x x
The optometrist for one thing has a peculiar
relationship with a patient and this is primarily based not on profit,
though people will say that one enters a profession primarily to make
money. But under their Code of Ethics, it is clearly stated that one
goes there as a doctor primarily to cure people.
A corporation, Mr. President, is a different entity.
Primarily it is there to make money. In fact, if a corporation were to
hire an optometrist then he is divided between his loyalty to the
corporation and his love and affection for his patient because a
corporation may have a specific product that it wants to push. And as
such, an optometrist is told to push a particular product for whatever
it is worth. "Kailangang itulak natin ito sapagkat ito ang ating
produkto."
Sa optometrist po ay hindi ganoon sapagkat wala
kayong makikitang abogado o duktor na nag-a-advertise na ang ginagamit
ay trade name or corporate name. In fact, in advertisement, though not
very clear kung pinapayagan itoy, ay hindi kayo puwedeng gumamit ng
korporasyon kundi iyong mga pangalan. At iyan po ang ipinagbabawal.
Hindi po ipinagbabawal ang pagpapatuloy ng negosyo ng
mga optometrist. Ang ipinagbabawal lamang ay iyong korporasyon dahil
alam naman nating pag mayroong sakunang nangyari ay napakahirap idimanda
ang korporasyon. Hindi katulad ng isang tao na personal and pagdadala
ng serbisyo kaya mas madaling matunton ang kaniyang pagkakamali hindi
kapareho ng isang korporasyon.
Senator Macapagal: Subalit kung ihahambing po
natin sa isang hospital, mayroong duktor iyong hospital at nagkaroon ng
sakuna, nadi-demanda rin naman iyong hospital. Hindi po ba pareho na rin
iyon kung idi-demanda iyong korporasyon na mayroong optometrist na
nagtatrabaho doon?
Senator Webb: Tama po iyan ngunit ang hospital
ay regulated by the Department of Health. Ang korporasyon po ay hindi
man lamang regulated by Professional Regulation Commission hindi
kapareho ng mga optometrist, they are regulated. Wala pong
nag-reregulate sa korporasyon. Kung mayroon kayong optical shop ngayon,
wala pong nagre-regulate diyan kaya ang maaaring mabigyan ng kasalanan
ay iyong optometrist na nagtatrabaho sa kanila. Ngunit sila po ay libre
sa kasong pagkakamali. Nabanggit din ng isang korporasyon na napakarami
nilang trabahador na madi-displace. Iyan po ay aking sasagutin mamaya. 34
After intense interpellation by Senator Gonzales,
Senator Webb conceded that the proposal was also meant to "equalize the
playing field" between a corporation and one personally practicing
optometry. 35
While the above-mentioned objectives are legitimate,
the means employed may be unduly oppressive upon individuals. For
example, one distinct feature of the regulation involved is that on its
face, it purports to regulate business and commerce. In its application
and effect, however, the business license practically prohibits
individuals from seeking legitimate employment from corporations. The
nullity of the regulation, therefore, arises from its operation.
That the exercise of police powers is subject to
judicial review is without question. Police powers being the most
pervasive and most demanding of the three inherent powers of State, its
exercise is not unbrindled and must in all cases meet the test of
legitimacy, both in the ends it seeks to achieve as well as in the means
employed to achieve them. Applying such test to the present case
therefore, it is clear that the respondent mayor acted in excess of his
legitimate authority. The purported ends sought to be achieved go no
deeper than a recital of the General Welfare clause: i.e.,
"the safety and well-being of the people", "safeguarding the general
public, especially the poor. . .," without establishing how those goals
could be reasonably achieved by imposing such conditions in the permit.
Furthermore, the means employed effectively deprive optometrists of
basic property right: that is, the right to seek legitimate employment
of their choice, which cannot be arbitrarily infringed upon regulations
that are contrary to law.
The primary purpose of the Optometry Law is to ensure
that the service would be rendered by competent and licensed persons
and thereby protect the public from inexpertness. Despite the public
respondent's assertions that the conditions in the business permit were
made for the purpose of "safeguarding the general public and especially
the poor who are easily gulled by misleading advertisements," hence,
falling within the ambit of police powers granted to local officials
under the Local Government Code, this Court sees no cogent reason why
such purpose cannot be attained even if the persons rendering the
service are employed by a corporation. Optometrists, like any other
professionals are, nonetheless, bound by the same standards of
professional conduct, care, skill and diligence, whether they practice
as independent optometrists or as employees of unlicensed persons or
corporations.
Footnotes
2 Record of the Senate, p. 351, Wed. Feb. 1, 1995, as read by Senator Gonzales.
3 Record of the Senate, Sat. June 3, 1995, p. 847 (Emphasis ours.)
4 State ex. rel. Fatzer v. Zale Jewelry Co., (1956) 179 Kan 628, 298 P2d 283.
5 State ex. rel. Beck v. Goldman Jewelry Co., 142 Kan 881, 51 P2d 995, 102 ALR 334.
6 Eisensith v. Buhl Optical Co. (1934)—W, Va.—, 178 S.E.695.
7 Rowe v. Burt's Inc. (1939, App) 17 Ohio Ops 1, 30 Oio L Abs 203, 31 NE2d 725.
8 Eddy v, Board of Optometry (1935)— W. Va.—, 182 S.E. 870.
9 Kendal v. Beiling (1943) 295 Ky 782, 175 SW2d 489.
10 Williamson v. Lee Optical of Oklahoma (1955) 348 US 483, 99 L ed 563, 75 S Ct 461, reh den 349 US 925, 99 L ed 1256, 75 S Ct 657.
11 State v. Rones (1953), 223 La 839, 67 So 2d 99.
12 Silver v. Lansburgh & Bro, (1940) (—App DC—, 111 F(2d) 518).
13 Barbee v. Rogers (Tex) 425 SW2d 342.
14 Supra note 12 at 583.
15 Id., at 585.
16 Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor of Manila, 20 SCRA 849 (1967).
17 Ibid., Rubi v. Provincial Board, 39 Phil. 660 (1918).
18 Rep. Act No. 7160 (1991), Sec. 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.1âwphi1.nêt
19 US v. Toribio, 15 Phil, 85, 98 (1910).
20 Direct Plumbing Supply Co. v. Dayton, 138 Ohio St 540, 38 NE2d 70 (1941).
21 Akron v. McElligott, 166 Iowa 297, 147 NW 773 (1914).
22 Rollo, p. 55.
23 Id., at 77.
24 Id., at 78.
25 See for example E.W.H., Annotation, Constitutionality of Statutes and Validity of Regulations Relating to Optometry, 98 A.L.R. 905 (1935); L.S. Tellier, Annotation, Validity of Governmental Regulation of Optometry, 22 A.L.R. 2d 939 (1952).
26 Neil v. Gimbel Bros. 330 Pa 213, 199A 179 (1938).
27 Deborah Hass-Wilson, The Effect of Commercial Practice Restrictions. The Case of Optometry, 29 J.L. & ECon. 165 (1986)
28 Ibid. In the US, Professional Corporations differ from non-professional corporations in that Professional Corporation law requires each stockholder of a professional corporation to be a licensed member of the profession for which the corporation is organized to practice.
29 Id., at 170-172.
30 Id., at 183. However, the study found that commercial practice restrictions increase the price of opthalmic goods and services without statistically significant effect on quality. In plain language, these commercial restrictions are not protecting the consumers.
31 Ibid. Optometrist employed by drug and department stores and other non-professional firms.
32 Id., at 169.
33 Supra, note 2 and 3.
34 Record of Senate, Volume IV, p. 56 (January 31, 1995), pp. 273-274.
35 Id., at 58, (February 1, 1995), p. 352.
The Lawphil Project - Arellano Law Foundation
VITUG, J., dissenting opinion;
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 July 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 permit 1 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
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 Section 5 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
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
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
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
An attribute of sovereignty, police power has been defined to be the
power to prescribed regulations to promote the health, morals,
education, good order or safety, and general welfare of the people. 8
A license or permits 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 is
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 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
Accordingly, I vote to deny the petition.
Footnotes
2 Sec. 2, R.A. No. 1998, An Act to Regulate the Practice of Optometry in the Philippines.
3 Sec. 5, in relation to Sec. 3(e), Republic Act No. 8050.
4 270 SCRA 298.
5 At p. 306.
6 B.P. Blg. 337.
7 Tatel vs. Municipality of Virac, 207 SCRA 157.
8 Primicias vs. Fugoso, 80 PHIL 71.
9 See Gonzalo Sy Trading vs. Central Bank, 70 SCRA 570.
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