DISSENTING OPINION
HUGHES, Justice.The Commissioner in his answer pleaded the long delay, March 1963 to January 1966, by Spring Branch in prosecuting its suit for a judicial review of his order denying the application of Spring Branch for a branch office in downtown Houston as being detrimental to the public interest and welfare and as constituting laches and a stale demand. In its primary ruling, the trial court sustained this pleading. The majority has overturned this ruling, and it is from this action of the court that I respectfully dissent.
The only excuse offered by Spring Branch for the long delay was, on advice of counsel, that it await the outcome of the Metropolitan 1 and Great American 2 cases in each of which cases establishment of a downtown Houston office for a savings and loan association was upheld. It is my opinion that this is an invalid excuse.
The rule to be applied in this case is stated in Vol. 30A C.J.S. Equity § 114 as follows:
“A party is required to exercise diligence and not inaction when seeking to challenge the legality of a proceeding involving a public interest, and failure to do so constitutes laches.”
Cited in support of this statement is Somers Constr. Co. v. Board of Education, 198 F.Supp. 732, D.C.N.J.
Savings and loan associations operate in the field of public interest and are considered as quasi-public institutions. Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747.
The interest of the public here is obvious. Just how many savings and loan associations does the public interest require in downtown Houston? This is a matter primarily for the determination of the Commissioner. When the Commissioner entered his order in this case there were seven downtown Houston savings and loan offices. Now there are nine. The Commissioner should, in the first instance, be allowed to exercise his discretion in deciding whether there should be ten savings and loan offices in downtown Houston.
Presumably, under the majority opinion, if there were a dozen denied applications for savings and loan association offices in downtown Houston on appeal to this Court under the same conditions as exist in this case we would have to consider each case separately and without regard to each other and if one application was entitled to be granted then all would have to be granted. This would create an intolerable situation and one which I have no doubt the courts would resolve in a sane manner.
If appellant had prosecuted its appeal with dispatch it would have undoubtedly been successful since the later applications of Metropolitan and Great American were finally granted. Surely, since appellant was first in time and the facts identical it would not have been unjustly treated. Due to its inaction, however, the situation is changed. It is no longer first. It is third.
I believe Spring Branch should, if it desires, renew its application to the Commissioner and establish, if it can, its right to establish a savings and loan association office in downtown Houston under conditions as they exist at the time of such renewal.
I would affirm the judgment of the trial court.
. 388 S.W.2d 168 (Tex.S.Ct.1965).
. 384 S.W.2d 352, Tex.Civ.App. Austin, writ ref. n.r.e.