(dissenting.)
I respectfully dissent.
I would hold that the Railroad Commission has jurisdiction in this case and I would also hold that the City exceeded its statutory powers in venturing into the motor bus business beyond its city limits and suburbs.
While the wording of the Commission’s order is somewhat ambiguous, a reasonable construction is that the Commission could not approve the proposed sale and transfer of the certificates because Appellant as a municipal corporation was not capable of becoming a purchaser thereof and was precluded from being a motor bus operator for hire. That the Commission dismissed the application for sale and transfer of the certificates recognizing the inherent authority of Appellant to conduct motor bus operations within its corporate limits and suburbs precluding any operations by Appellant intercity, intrastate or over the highways of Texas outside its corporate limits and suburbs. Thus I would construe the order and hold that it correctly interprets the law.
I would also hold that the trial court was correct in enjoining Appellant’s extra legal operation. District Courts have jurisdiction to enjoin an act of the legislature or an order of a Railroad Commission. Woolf v. Del Rio Motor Transport Co., 27 S.W.2d 874 (Tex.Civ.App. San Antonio 1930, no writ).
When Appellant or any other “Home-Rule” City seeks to conduct motor bus operations which are inconsistent with a general law of this State (Art. 911a, V.A. C.S.), their operations are illegal to the extent they conflict with the provisions and intent of the Legislature embodied in the statute.
This mutually exclusive jurisdiction is well stated in Yellow Cab Transit Co. v. Tuck, 115 S.W.2d 455 (Tex.Civ.App., Dallas 1938, writ ref.). Here the Court said:
“The Legislature has uniformly recognized, guarded, and preserved the plenary powers of municipal corporations, operating under the Home Rule Amendment and the Enabling Act of the Legislature, over the streets, alleys, and public places located within the corporate limits. * * To the same extent were the rights of such corporations guarded in the enactment of chapter 277 of the Regular Session of the 42d Legislature, amending c. 314, 41st Leg., § 2, providing for the further regulation of and the issuance of permits and certificates to motor carriers for hire over the highways of this state, in providing that ‘nothing in this Act or any provision thereof shall be construed or held to in any manner affect, limit or deprive cities and towns from exercising any of the powers granted them by chapter 147, Pages 307 to 318, inclusive (now article 1165 et seq., R.S.) of the General Laws of the State of Texas passed by the 33rd Legislature, or any amendments thereto.’ Vernon’s Ann.Civ.St. art. 911b, § 2.”
Also see Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871 (1948); City of Wichita Falls, Tex. v. Bowen, 143 Tex. 45, 182 S.W.2d 695, 154 A.L.R. 1434 (1944).
The Home-Rule Amendment to the Constitution, cited above, was intended to bestow upon such cities “full power of local government.” Thus the City of Bryan Case and the City of San Antonio relied upon by Appellant authorizing the cities to establish water and power utilities fall under the protection of the amendment and the statutes, cited above, relating to local self-government. Water and power are municipal functions. Unrestrictive, for hire motor bus operations of Appellant outside its corporate limits and suburbs are not of local *19governmental concern and Appellant has no power or authority to conduct them under the Home-Rule shield.
“The powers of a municipal corporation comprise those [1] expressly granted * * * [2] those necessarily and fairly implied from or incident to, the powers expressly granted, and [3] those essential to the accomplishment of its declared objects and purposes, and any fair, reasonable, substantial doubt of the existence of a disputed power is said to be resolved by the court against the corporation.” 9 Tex.L.R. 456 and authorities cited.
I would also overrule Appellant’s point of error Number Two which is the error of the trial court in enjoining the City from transporting its school children over the highways of Texas because the school bus service provided by the City is not in violation of the Motor Bus Act. That conversely, the court erred in not granting judgment for the City with respect to such service.
Appellant contends that approximately 75% of all the City’s out-of-town charter bus service is furnished for school children. That the school system does not own buses for this purpose and, consequently, contracts with the City for this charter service. That when buses are chartered by the school system for such purposes, the children who are all eighteen years of age or under travel together as a group and are under the supervision and direction of proper school authorities.
Since 1941 the Railroad Commission has had in effect rules and regulations dealing with charter bus service. Those rules are now a part of Motor Transportation Regulations of the Commission appearing as Section 13.33, “Charter Operation.” Here provision is made by which motor bus companies holding and operating under certificates may obtain authority to transport charter or special parties by the same procedure which is applicable to the obtaining of a certificate under the Commission’s rules. The regulation defines a charter party but states that the term shall not include children eighteen years of age or younger who, in the course of secondary or elementary school activities, under the direction of public school authorities, acquire exclusive use of a passenger carrying vehicle and travel together as a group.
The trial court enjoined the City of Corpus Christi from engaging in for-hire motor bus service beyond its city limits and suburbs. This is the only question before this Court. Consequently, we are not called upon to pass on any arrangements that the City may enter into with respect to transporting its school children under color of law. This same answer applies to the Appellant’s contention that such transportation of school children is valid under Tex.Rev. Civ.Stat.Ann. art. 6701d, Section 105 (a) and Article 2922-15, Section 2A.
I would also overrule Appellant’s third point which is the error of the trial court in rendering summary judgment enjoining Appellant from continuing to render a valuable bus transportation service which it has rendered since May 1966, since Appellees are barred by laches and estoppel from maintaining this suit to prevent such service. That conversely, the trial court erred in refusing to grant Appellant’s motion for summary judgment.
Laches is not available as a defense here as a statutory legal right is sought to be enforced. Riggs v. Riggs, 322 S.W.2d 571 (Tex.Civ.App., Dallas 1959, no writ).
This Court has held that where the Railroad Commission as a subdivision of the State is enforcing a purely legal right the defense of laches is not available. Railroad Commission of Texas v. Jackson, 315 S.W.2d 193 (Tex.Civ.App., Austin, 1958, err. ref. n. r. e.). Laches cannot be used to foster continuing violations of the civil and criminal statutes of this State.
Appellant’s point Number Four is that, in the alternative, if Appellant is subject to the Texas Motor Bus Act, then Appellant is entitled to judgment as a matter of law holding that the Commission order dated *20May 5, 1967 is void and of no effect and requiring the Railroad Commission to take jurisdiction of Appellant. That the trial court erred in its refusal to grant this alternative relief.
I would overrule this point due to the construction I have placed upon the order.
I would affirm the judgment of the Trial Court.