I concur in the result recommended in this case in the opinion of Judge NICKELS, and I agree, in the main, with the holding as expressed in his opinion. I also agree with the holding in City of Tyler v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 288 S. W. 409, that the Workmen’s Compensation Law of Texas, by its express terms, does not apply to cities ¿nd towns, or other municipal corporations. However, I do not agree with that part of the opinion in City of Tyler v. Texas Employers’ Ins. Ass’n which seems to hold that the Legislature of this state is without power to apply the provisions of the Workmen’s Compensation Act (Rev. St. 1925, arts. 8306-8309) to cities and towns, provided their insurance is not carried in a mutual insurance concern, and does not involve the city or town as a member of or stockholder in such a concern. In other words, I see no constitutional bar to cities and towns being brought under the provisions of the Workmen’s Compensation Act if its insurance is carried in what is known as an old line insurance company.
As pointed out by Judge NICKELS in the main opinion, the validity of the Workmen’s Compensation Act of this state is sustained on the theory that there is a final tripartite agreement on relationship between the employer, the insurer, and the employee. Under this theory the employee accepts the employment under the arrangement made by the employer with the insurer. Therefore, in a certain sense, the policy of insurance becomes a part of the consideration for the employment. In a ease, such as the one at bar, where the policy of insurance is carried in an old line insurance company, and, does not involve the city becoming a member of or stockholder-in a mutual insurance concern, I am’ unable to see any violation of section 52 of article 3 of our State Constitution.
Also, under this view, the transaction involved in the case at bar is not prohibited by the Constitution, and is therefore not absolutely void, but is merely ultra vires; and, the insurance company having voluntarily accepted the premium from the city and also voluntarily agreed to carry the risk, and the employee having accepted the employment from the city under such an arrangement, the insurance company should not now be heard to plead, as a defense, the lack of authority on the part of the city to make the contract after the employee has been injured. In this connection I am further of the opinion that there is absolutely no provision of the Constitution which prohibits the Legislature from altering or changing the common-law liability of cities and towns in cases of this character.
In the City of Tyler Case, the policy of insurance was issued by Texas Employers’ Insurance Association, a mutual insurance company, chartered under the laws of this state, and the taking out a policy in said association clearly involved the city as a member of or stockholder in said concern, a thing clearly prohibited by the article of our Constitution cited, and the holding to that effect ruled that ease. The Supreme Court did not expressly adopt the holding in that case, and thus the *203views here expressed are not in conflict with any holding of the Supreme Court.