whether such Employers'InsuranceAssociationbe technicallya cor- poraticnor not, it is clear to us that the whole plan of the Workmen'sCom- pensationAct is such that the constitutional provisionthat the Legislature has 'no power to authorizeany * * * city (or) town * * * to lend its credit or to grant public money or thing of value in aid of, or to, any individual, associationor corporationwhatsoever',applieswith full force. Becominga member.ofsuch associationunder our act necessarilywould requiresuch city or town to do these very things. In the nature of the subscriber's obligation - Its agreementto be assessedfor the purposeof paying losses - it lends its credit.* * *11
In hissopinionon motion for rehearing,JusticeSpeer holds the Texae InsuranceAssociationnot to be such a privatecorporationas is'forbidden to be createdby speciallaw, then adds:
"But it does not followthat such associationdoes not have the ele- ments of a private corporation,and in fact it does have, not only by leg- islativedeclaration,but by contextas well, the essentialelementsof a privatecorporationand expeclallythose elementewhich bring the concern under the banof section52, Article3, of our Consitutionquoted in the originalopinion.* * *We have merely indicatedour opinionthat the nature of such association,whether 'technically a corporationor not' is such that municipalcorporationscannotbecome subscriberstheretowithoutviolating . . .
Hon. E. G. Moseley,page & (O-924)
constitutional limitations."
In the ca8e of SouthernCasualtyCompanyv. Norgan,12 S.W. (2nd) 200, the Commi8sionof Appeals, sectionA, recognizedthe holding in the city of Tyler case. Both Judge Nickelsand Judge Crltz (now AssociateJustice of our SupremeCourt)wrote upon the subject. In this case Morgan,an employee of the city of Weatherford,was injured. The city was a subscriberto the Texas Employers'InsuranceA8eociation,and had a policy coveringits employ- ees, includingplaintiffMorgan. The Fort Worth Court of Civil Appeals, while recognizingthe city of Tyler case as correctlyholdi.ng a city could not legallytake insurancewith a mutual companybecauseof its inability under the constitutionto become a stockholder;neverthelesspermittedplain- * tiff's judgmentto stand,holdingthe defendantSouthernCasualtyCompany estoppedto deny liabilityon thatgound and said the city'sultra vires act in subscribingto the associationdid not make the policy void. (Southern CasualtyCompanyv. Morgan, 299 S.W. 476).
When the Commissionof Appeal8 consideredthe case,Judge Nickelsre- ferredto the city of Tyler case and supplementedthe opinionof the Court of Civil Appeals,referringto section52 of Article3 of the Constitution, making this pertinentstatement:
"It Is observed,in passing,that Texas Employers'InsunrnceAssocia- tion in it8 corporatenature and method of businessbelongs in a class dls- tinctlvefrom that which includedGeorgiaCasualtyCompanyor Southern CasualtyCompany,so-called'oldline' companies."
Judge Critz wrote a concurringopinionwhereinhe used the fallowing language:
"I concur in the result recommendedin this case In the opinionof Judge Nickels,and I agree, in the main, with the holdingas expressedin his op!.nion..I also Rgree with the holding in City of Tyler v. Texas Employers~InsuranceAssociation(Tex. Corn.A~~.),288S.W. 409, that the Workmen'sCompensatioii Law of Texas, by its expressterms, does not apply and towns, or other municipalcorporations.However,I do not to c1~ti.e.s agree with that part of the opinionin City of Tyler v. Texas Employers' InsuranceAssociationwhich seems to hold that the Legislatureof this state la withoutpower to apply the :provieions of the Workmen'sCompensationAct (Rev. St. 1925, Arts. 8306-83~9)to citiesand towns, providedtheir insur- ance is not carriedin a mutual insuranceconcernand does not involvethe