(concurring specially). I concur in the conclusion and result reached in the majority opinion but not in the reasoning employed in reaching the conclusion that the judgment should be affirmed.
On the face of the bond and the city ordinances under which it was written this was not a public liability bond to indemnify a member of the public injured in the operation of taxicabs in Muskogee. On its face the city ordinance required a bond to indemnify the owner of the taxicabs, Muskogee Yellow Cab Company, against liability for injury to persons or property arising through the operation of taxicabs by the owner. We have drawn a distinction between a contract of indemnity against liability for damages and a contract of indemnity against damages. Graves v. Harrington, 177 Okla. 448, 60 P. 2d 622.
Ordinance 1538 of the City of Muskogee provides, in part:
“Indemnity To Be Provided. It shall be unlawful to operate a taxicab, or permit the same to be operated, * * * unless and until such owner deposits a liability bond in the sum of $5,000.00 acceptable to and approved by the City Manager and City Attorney, which bond shall indemnify the owner in the sum of not less than Five Thousand ($5000.00) Dollars for injury to persons, * * * through the operation of the taxicabs by the owner or driver thereof. * * * Such bond shall cover each and every vehicle operated by the indemnified owner or operator * *
Permission of any person' or corporation to use automobiles for carrying *200passengers for hire is found in Tit. 47 O.S. 1941 §221, and such permission is subject to other statutory provisions, and “reasonable regulation and control by the legislative authority of the city in which said business is conducted, which regulation may include the requiring of a policy of insurance or bond executed by a surety corporation authorized to do business in this State, as surety, covering liability in case of each automobile * * * and may include any other requirement reasonable in its nature.”
In its adoption of Ordinance 1538 it is apparent that the city intended to provide some sort of public liability insurance covering the operation of taxicabs, but the ordinance is indefinite and confusing in its language, resulting in permitting the giving of an indemnity bond and not a public liability bond.
Defendant says that under the statute the city had authority only to require a bond signed by a surety company and since the ordinance permitted the giving of a bond with a personal surety and permitted the securing of the same with a real estate mortgage the ordinance is void, and the given bond and real estate mortgage given in security are without consideration and void. I do not agree. The statute provides that the city “may” require a bond executed by a corporate security, and that it may make other requirements reasonable in nature. While a corporate surety bond is ordinarily deemed admirable security, I see nothing in the statute to prevent the city, in its reasonable discretion, from providing for a bond which might prove to be less secure in quality. Premiums charged by a surety for hire are sometimes burdensome and might prevent the owner of a small taxicab service from compliance and thus deprive the city of taxicab service.
The powers which a municipal corporation possesses are limited to those powers which by the Act under which they are created and by their charter are expressly granted and those impliedly granted and necessarily incident to the power expressly granted. Worley, Mayor, v. French, 184 Okla. 116, 85 P. 2d 296. It cannot be said that the ordinance is void merely because it did not require the maximum security permitted (not absolutely required) by the statute.
Under the permissive wording of the statute the city might have permitted the operation of taxicabs, within its corporate limits, without requiring any bond. In the exercise of its reasonable discretion it elected to permit the giving of -a bond with a personal surety and not a corporate surety.
But if we were to accept defendant’s contention that the statute required a bond with a corporate surety it would not follow that the given bond was void. In Ewing v. Boad of Commissioners etc., 53 Okla. 250, 156 P. 229, this court considered a case where the statute contained a mandatory requirement that before authorizing a bank to become a depository for county funds the county commissioners should require the bank to furnish a bond of some surety company, authorized to do business within the state, to secure such deposit, or in lieu thereof certain other specified collateral security. The bank furnished none of the specified security but furnished a bond signed by the bank with personal sureties. This court held “that although the bond was not a surety company’s bond, but a bond signed by sureties, and for that reason falls short of the statutory requirement, the same is valid as a common-law bond.” The bank received all benefits intended in the transaction and neither it nor its sureties were permitted to repudiate their obligations by reason of their own failure to fully comply with the statutory requirements.
The condition recited in the bond given in the instant case was:
“Now, Therefore, if the said Principal and Surety herein shall in all things fully and completely comply with *201all of the requirements and provisions of said Ordinance * * * and shall fully pay, satisfy and discharge the claim or claims and judgments of any and all persons, firms, partnerships or corporations, as required by the terms, provisions and conditions of said Ordinances * * * the Principal and Surety herein shall be fully released and discharged from any and all liability hereunder; otherwise, this Bond shall remain in full force and effect * *
The cab company and its surety received its permit to operate and all other benefits and considerations sought or intended by the parties in the giving of the bond. Whether or not the bond was in the form intended under the statute they cannot now repudiate their obligation on the ground of their own failure to comply with the provisions of the statute. Under the bond the principal and surety agreed to pay judgments rendered. Such a judgment was rendered against the principal by reason of its negligence in the operation of its taxicabs, and affirmed by this court in 203 Okla. 274, 221 P. 2d 656. Foreclosure of the given collateral is incidental to the relief to which plaintiffs are entitled under the terms of the bond obligations.
It is for these reasons that I would affirm the judgment, but not on the theory of the majority opinion.