CONCURRING OPINION
Starr, J.I agree with the result reached by the majority. There are statutes cited in the opinion, however, and hereinafter described, which at the present time have not a general application in a case such as we have before us as to all cities and towns in this state. I also think other statutes which were not mentioned should have been cited and discussed. For these reasons I have decided to write this concurring opinion in the hope that it will prevent confusion as to the right to use motor vehicles on our highways as common carriers.
*606The majority opinion cites § 48-7303, Burns’ 1950 Replacement; Acts 1913, ch. 108, § 1, p. 286, as authorizing cities to grant franchises for private gain. The foregoing statute is not the one which grants cities and towns the right to grant franchises but provides for general publicity before granting them. The Acts of 1905, ch. 129, § 254, as amended by Acts of 1911, ch. 104, §2, (§48-7302, Burns’ 1950 Replacement) should have been cited, which provide in part as follows:
“Any city or town may enter into a contract with any person, corporation or association . . . and may provide in such contract the terms and conditions on which water, motive power ... or other uses and accommodations of such and other public conveniences may be furnished by such person, corporation or association to such city or town and its inhabitants . . . Provided . . . that before such contract shall be made by any city of the . . . second class . . . such contract shall first be agreed to by the board of public works of such city, after which agreement, such board shall cause a proper ordinance approving and confirming such contract to be presented for adoption by the common council of such city.”
Clauses 32 and 38 of § 48-1407, Burns’ 1950 Replacement, are each cited and commented upon in the majority opinion. Said clause 32 gives every city and town the power to enact ordinances to regulate, tax.and license coaches, hacks, drays, automobiles and all other vehicles; and clause 38 gives every city the right to license, tax and regulate public hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, billposters and all other persons pursuing like occupations for pay or hire, and to prescribe their compensation, and to revoke any license for violation of such ordinance.
It should also be noted by the Acts of 1913, ch. 76, § 110, being § 54-614, Burns’ 1933, there was reserved *607to every municipal council, when the Public Service Commission was created, the power to determine quality and character of service to be furnished or rendered by any public utility within such municipality, subject to review by the Commission.
By the motor bus Act of 1925, commonly called the Moorehead Amendment (Acts 1925, ch. 46), it was provided that in all cities and towns except those exempted by the Act no motor bus could be operated on the public highway for transporting passengers or property as a common carrier without first having obtained a certificate of public convenience and necessity from the Public Service Commission. By § 5 of this Act it was provided, among other things:
“. . . that in any city or town . . ., where motor transportation is now furnished under, or by color of, a contract . . . the board of public works, common council or board of trustees, as the case may be, shall continue to supervise, control, permit, contract for and regulate such service and to determine when, if at all, for public convenience and necessity competing service shall be established; but the determination of the question of public convenience and necessity for competing service, shall be subject to appeal to and review by the circuit or superior courts of the county . . .”
This provision of said § 5 has been interpreted to mean that in such exempted cities and towns the regulation of motor bus service, the fixing of rates therefor and the control of competition remain in such cities and towns and not in the Public Service Commission. Denny v. Brady, Receiver (1929), 201 Ind. 59, 163 N. E. 489. This case also holds that in the city of Muncie, at the time of and prior to the adoption of the Act of 1925, motor buses were furnishing transportation as common carriers “by color of contract” and therefore said city of Muncie was in the class of cities in which *608the grant of power to the Public Service Commission over buses as common carriers was excluded. As to these holdings I agree, but this case also seems to indicate that the Muncie bus ordinance as it existed prior to 1925, because it contains provisions which bind the licensed operators to maintain a certain schedule of trips, to maintain life insurance, etc., which provisions were accepted by the operators, created more than a license when acted upon. If this is what the Court meant I cannot agree as to this proposition. I assume it was this portion of this opinion which caused appellant to believe she had more than a license. Muncie is a city of the second class. A franchise must be granted by the city of Muncie by contract with its board of public works which must be published and confirmed by its common council. § 48-7302, Burns’ 1950 Replacement (Acts 1905, ch. 129, § 254, as amended by Acts 1911, ch. 104, § 2) ; § 48-7303, Burns’ 1950 Replacement, supra.
I also note that by § 3 of Chapter 287, Acts of 1935, the right of certain cities, including Muncie, to grant franchises and licenses to motor vehicles was preserved. Said § 3 was amended by § 2, ch. 300, Acts of 1937. Said § 2 was amended by § 1, ch. 42, Acts of 1939, which section was in turn amended by § 2, ch. 222, Acts of 1941, being § 47-1213, Burns’ 1940 Replacement (1949 Supp.). Each of these amendments contains the identical exempting language of § 3 of the motor vehicle Act of 1935.
Due to the said Act of 1935 as amended not all cities and towns in the State of Indiana have the right to grant franchises and licenses for the operation of motor buses for the transportation of persons or property as common carriers. When the majority opinion cited said § 48-7303, Burns’ 1950 Replacement, relating to publicity for franchises, and when the opinion cited *609clauses 32 and 38 of § 48-1407, Burns’ 1950 Replacement, as granting to cities and towns the right to license such common carriers, the application of these statutes should have been limited to those cities which are now exempted as above set out from said Act of 1935 as amended.
Appellant has shown by the allegations in her complaint that she once held a license granted by ordinance to operate her business from a city that had authority to grant her such license to so operate. It follows that her license could be revoked by such city as she had no property right to continue doing business. Frick v. City of Gary (1922), 192 Ind. 76, 135 N. E. 346.
Young, J., concurs in this opinion.Note.—Reported in 94 N. E. 2d 665.