On Motion for Rehearing.
A majority of the court have concluded that we erred in affirming the trial court’s judgment in this case. It is apparent from the judgment that the trial judge thought that appellee was entitled to the injunctive relief he sought unless appellants were “operating their cars wholly within the city of El Paso and the suburbs thereof.” The judgment so recites. The only finding of the jury is to effect that appellants did not operate their motor propelled vehicles wholly within the limits of the city o'f El Paso and the suburbs thereof. Section 1(c) of Article 911a, V.A.C.S., contains the following proviso :
“ * * * provided further, that the term ‘Motor Bus Company’ as used in this Act shall not include corporations or persons, their lessees, trustees, or receivers, or trustees appointed by any court whatsoever, insofar as they own, control, operate, or manage motor propelled passenger vehicles operated wholly within the limits *501of any incorporated town or city, and the suburbs thereof, whether separately incorporated or otherwise.”
Under this proviso appellants could lawfully operate wholly within the limits of the city of El Paso and the suburbs thereof without having first obtained a certificate of convenience and necessity from the Railroad Commission. The injunction granted enjoins them from operating “Over any public highways of this state between the city limits of the city of El Paso, Texas, and the towns of Ysleta, Socorro, San Elizario and Clint, and all intermediate points between said cities and towns, and between the town of Ysleta and the towns of Socorro, San Elizario and Clint and all intermediate points between such towns,” regardless of whether any of such highways run through suburbs of the city of El Paso. There is no finding that none of the territory through which the highways embraced within the injunction extend is suburban to the city of El Paso and the evidence does not establish this fact beyond issue. Under the proviso above quoted appellants have the right to operate over that portion of such highways, if any, which extend through such suburban territory. It was incumbent upon appellant to establish facts to negative the proviso of the statute before he was entitled to the injunctive relief which he sought and which was granted. Gillis v. Rosenheimer, 64 Tex. 243, 246; Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964; Plough Inc. v. Moore, Tex.Civ.App., 56 S.W.2d 681; Hood v. Scott, Tex.Civ.App., 67 S.W.2d 909; Barkley v. Conklin, Tex.Civ.App., 101 S.W.2d 405; Lower Colorado River Authority v. Gulf Coast Water Co., Tex.Civ.App., 107 S.W. 2d 1101; Sneed v. Ellison, Tex.Civ.App., 116 S.W.2d 864.
If the term “city limits” has any other meaning than corporate boundaries of the ■city, then the injunction as granted is too indefinite and uncertain to be enforced. Appellants at their peril must determine for themselves where the city limits are located.
The motion for rehearing is granted, the judgment of this cou'rt affirming the judgment of the trial court set aside, and the judgment of the trial court is reversed and the cause remanded.