On Rehearing.
LOONEY, Justice.From the original . opinion and records of the previous litigation referred to therein, it will be observed that the suit pending below against which the relief sought herein is directed, is a bill of review to review a bill of review to review the judgment of the Supreme Court. Justification for the belated attack upon- the previous litigation is the alleged fraud, recently discovered by respondents, of relators committed upon the trial court, the Court of Civil Appeals, the Supreme Court and upon the respondents in'representing that the City of Dallas and the County of Dallas operated Parkland Hospital pursuant to a valid contract for such joint operation; whereas, such representation was false, in that the joint operation was not in accordance with a valid agreement entered into in pursuance of the statute. Therefore respondents contend the City operated the hospital alone for profit in a proprietary and not a governmental capacity; hence liable to respondents in damages sustained as alleged.
We fail to find the existence of any fraud, either actual or constructive, or even that such a result as contended by respondents would have followed even if an invalid contract between the City and the County had been entered into, in view of the fact that they acted jointly in conducting the hospital. Their relationship to the public would have been precisely the same as if a perfectly statutory contract had existed, and no one except a party to the contract could in any event have pleaded a defect or taken advantage of same.
The first suit instituted by respondents, Cause No. 1060 filed in a district court of Dallas County, was against the City of Dallas alone. The City filed a plea in abatement alleging that Parkland Hospital was being jointly operated by it and the County of Dallas under a contract; therefore Dallas County was a necessary party to such litigation. At the instance of respondents, the trial court overruled this plea. Thereupon attorneys for the City urged a general demurrer to the petition, which being sustained and the cause dismissed, an ap*926peal was prosecuted to this Court; later the cause was transferred to the El Paso Court of Civil Appeals which reversed the judgment of the trial court and remanded the cause; whereupon the Supreme Court granted a writ of error, reversed the judgment of the Court of Civil Appeals, and affirmed the judgment of the trial court.
The law announced by the Supreme 'Court in the exhaustive opinion of Judge Smedley, in our opinion, was conclusive and should have composed this litigation definitely. In view of that, we will lengthen this 'opinion by making a liberal quotation from the opinion, as we believe it is a complete answer to the contention of respondents. Among other things the court said: “The petition alleged that the hospital was maintained for revenue and profit to the city. The hospital was constructed and operated under a statute giving to cities the power to erect and establish hospitals, and control and regulate the same, and to do all acts necessary or expedient for the promotion of health and the suppression of disease. The court construed the statute as authorizing the city to maintain a hospital either as a charity or as a means for the promotion of the general health of all its residents and the suppression of disease among the inhabitants, and for no other purposes, and said with reference to the allegation that the hospital was operated for revenue and profit: ‘The city did not possess the power, in its private or proprietary capacity, to engage in the business of conducting a hospital for revenue. If the municipal authorities have unlawfully entered upon a course of that character, the city cannot be made liable for negligence on their part or on the part of those employed by them in carrying out their purpose.’ McQuillin, citing Tollefson v. Ottawa, says: ‘If a municipality has power to, and does, maintain a hospital for revenue, there is no doubt but that it would be liable for the torts of persons employed about the hospital, but if it conducts the hospital for revenue but without power to do so, it is not liable.’ McQuillin’s Municipal Corporations (2d Ed.) Revised Volume 6, p. 1170, § 2840. In our opinion the operation of the city’s hospital for revenue is not merely the doing of a lawful or authorized act in an unlawful manner, but is a bu'siness so essentially different from its operation as a public institution in the promotion of the health of the people that it is wholly beyond the powers of the municipality. The act of the city officials in operating the hospital for such purpose being ultra vires, no liability arises against the city if a tort is committed in connection therewith. (Citing authorities) The petition alleges as one of the acts of negligence proximately causing the death of the plaintiffs’ child that the city was negligent in employing and placing in charge of the hospital one who was not fully qualified and capable of administering the proper kind of treatment to emergency patients. This allegation does not take the case out of the rule which exempts cities from liability when exercising governmental powers. The city officials in selecting the superintendent of the hospital were acting as agents of the general public and the doctrine of re-spondeat superior does not apply.” (Citing authorities.) See City of Dallas v. Smith et ux., 130 Tex. 225, 107 S.W.2d 872, excerpt copied from column 1, page 879.
We think it follows from the doctrine announced by the Supreme Court that even if the City had been operating the hospital on its own responsibility without the county being a party thereto, the rule regarding liability would have been the same, that is, the City would have been acting in a governmental and not proprietary capacity, hence not liable. That precise question was decided by the Supreme Court in the case of Gartman et ux. v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879, decided by the Supreme Court same day decision was rendered in the Smith case, supra. In the Gartman case the hospital was owned and operated by the City of McAllen, alone, and not in conjunction with the county in which McAllen is located. Seemingly there is no distinction between the liability of a city operating its hospital alone, and one operating in conjunction with the County under statutory authority.
The record discloses that this litigation has persisted for about fifteen years; has been to the Supreme Court twice; respondents have had their day in court, in *927fact, two days; and in onr opinion the law has been definitely settled against all contentions heretofore made by respondents, as well as those now urged before this court. We think this litigation should be brought definitely to an end, and it seems that the only way to accomplish that result is for this Court to grant the relief sought, as heretofore ordered.
Respondents’ motion for rehearing is overruled.
BOND, C. J., dissents.