CASES DETERMINED IN THE SUPREME COURT OF ARKANSAS ARKANSAS LIGHT & POWER COMPANY V. PARAGOULD. Opinion delivered November 8, 1920. 1. MUNICIPAL CORPORATIONS-AUTHORITY TO "MAINTAIN" WATERWORKS. Under Kirby's Dig., § 5675, authorizing a city to operate and maintain waterworks constructed by improvement districts, the power to maintain involves the repair of the plant and the renewal of parts which have become worn out and in disrepair, and the repairs are not restricted to a reconstruction in the identical form in which the waterworks were originally constructed. 2. MUNICIPAL CORPORATIONS- MAINTENANCE OF WATERWORKS.-The statute authorizing the city council to maintain waterworks constructed by an improvement district empowers it to contract for an electric pump and for the current to operate it, the original steam pumping plant being retained as an emergency plant. 3. MUNICIPAL CORPORATIONS-ORDINANCE EVIDENCE OF PASSAGE.Under Kirby's Dig., § 3066, where the record containing city ordinances is produced containing a record of a certain ordinance, in the passage of which it is required that a majority of the members elected to the council shall concur, such record is prima facie evidence that the ordinance was duly passed, so that the burden of attacking it is on the party contending that it was not passed. 4. MUNICIPAL CORPORATIONS ACCEPTANCE OF CONTRACT. - Where a contract for the installation of an electric pumping plant between a city and an electric power company was to become effective after publication of the municipal ordinance and its acceptance by the power company, a written notice by the manager of the power company that the installation of the pumping plant had been completed as per contract was an acceptance of the ordinance. 5. FRAUDS, STATUTE OF DIFFERENT WRITINGS.-Different writings may be considered together to meet the requirements of the statute of frauds, where they on their faces are connected together. 6. CORPORATION - RATIFICATION OF AGENT'S CONTRACT. - If the manager of a corporation was not authorized to accept a contract with a city for furnishing electric power, it will be held to have ratified such acceptance where it furnished power thereunder for more than a year. 7. FRAUDS, STATUTE OF RATIFICATION OF CONTRACT. It is not essential that the ratification of an agent's act in accepting a contract within the statute of frauds should be in writing, though the acceptance must have been in writing, to comply with the statute of frauds. 8. WATERS AND WATERCOURSES-RIGHT OF CITY TO CHANGE WATER RATES. A contract for the furnishing of power for a city waterworks plant which fixed the maximum monthly compensation to the power company on the basis of the rates then in force was not void as restricting the power of the city to change the rates, as such change would not reduce the compensation of the power company under the contract. 9. WATERS AND WATERCOURSES - RIGHT TO CHANGE WATER RATES.Even if a contract for furnishing power to a city waterworks plant contemplated that the monthly compensation to the power company should be scaled down when the water rates then in force should be reduced, this did not invalidate the contract as restricting the city's right to change its rates, since the contract was made in contemplation of that right, and the power company could not complain unless it was deprived of reasonable compensation. 10. APPEAL AND ERROR-ORDER GRANTING NEW TRIAL. - Where the evidence was sufficient to show that the contract set forth in the complaint was entered into, and that defendant broke the contract, and there was conflicting evidence as to the damages resulting from the breach, a decision of the trial court setting aside the verdict and granting a new trial will not be reversed. Appeal from Greene Circuit Court, First Division; R. H. Dudley, Judge; affirmed. Huddleston, Fuhr & Futrell, for appellant. 1. The city was without power to make the contract alleged and sued upon. The city was not acting in its proprietary capacity, but as trustee for the water districts 1 and 2. Kirby's Digest, § 5675; 117 Ark. 93. It was beyond the power of the city to make the contract. The statute only authorizes the city to operate and maintain the works, and not to reconstruct the system or change the plan of operation, but only to repair. 48 L. R. A. 285. For definition of "maintain" see Anderson's Dict., p. 646; Universal Dict., vol. 3, p. 3008; Webster, Enc. Dict. and Worcester, Dict. verbo. To "maintain" means only to support what is already in existence. To "repair" means to restore to good order after decay, injury, dilapidation or partial destruction (2 Exch. 21); to "maintain" is to preserve or keep up in good order. 60 Barb. 417-21; 72 Atl. 461-4; 110 Md. 47; 121 Pac. 801-3; 61 Ore. 174; 98 S. W. 465; 200 Mo. 97. See, also, Acts 1893, p. 252; 60 Atl. 436; 73 N. H. 233; 79 Atl. 177; 84 Conn. 202; Ann. Cas. 1912 B, 1212. “Maintain" is practically the same as "repair" or keep in good order after decay or injury, etc. 107 S. W. 572-6; 27 Id. 447. “Maintain" is synonymous with repair, to keep up in good order. 2. The power to the council to adjust and regulate water rates for the purpose of operating and maintaining the water plant is governmental, and can not be surrendered. The contract provides and establishes a fixed charge for water rates for ten years, and, if valid, defeats the right of future councils to readjust water rates for ten years. Such a power is legislative, and can not be delegated. If the council can do this for 10 years, why not for 100? 45 U. S. (Law. Ed.), 679; 53 Id. 177; 7 So. 409; McQuillin on Mun. Corp., vol. 4, § 1738; 1 Elliott on Cont., § 603. 3. The contract is clearly outside the powers of plaintiff and void, and the city is estopped by a void contract. 6 R. C. L. 501; 18 A. L. R. 575, note 20; 139 U. S. 24, 59-60. It is ultra vires. 35 U. S. (Law. Ed.), 55; 3 McQuillin on Mun. Corp. 2586; 1 Dillon, Mun. Corp. 516. There is no estoppel in the present case. Ark. 577; 47 Id. 269; 89 Id. 95; 96 U. S. 341; 98 Id. 621; 9 U. S. 45. 36 Plaintiff seeks to recover damages for breach of a void executory contract and there can be no recovery. 6 R. C. L. 501. 4. No contract was ever made; there must be a proposal on one side and an acceptance by the other. This is elementary law. The acceptance must be upon the exact terms of the offer, and if the offer prescribes the manner, terms and time of acceptance, it can not be modified or changed, but must be accepted just as prescribed in the offer. A modified or conditional aссерtance is a rejection of the original. 1 Page on Contracts, 48; 9 Сус., р. 266 (d); Lawson on Contracts, §§ 18, 76-7; 4 Wheaton, 225; 10 Ark. 393; 97 Id. 618; 112 Id. 384. 5. The city failed to prove that the alleged ordinance was passed by the council as required by law. Kirby's Digest, § 5473; 211 S. W. 664; 40 Ark. 105; 105 Id. 506. The record fails to show that the yeas and nays were called as required by law. The verdict is contrary to the law and the evidence and the instructions are erroneous. Part performance is not available to take this case out of the statute of frauds. 103 Ark. 79; 46 Id. 80; 48 Id. 485. H. R. Partlow and Block & Kirsch, for appellee. 1. The contract was not ultra vires. Municipal corporations have not only the powers expressly conferred by the Legislature, but those necessarily or fairly implied as incident to or essential for the purposes expressly declared. 130 Ark. 334; 116 Id. 125; 71 Id. 4. While acting within the scope of its authority to contract, the council is vested with legislative discretion, with which the courts will not interfere unless the action is arbitrary or unreasonable or oppressive. 80 Ark. 125; 127 Id. 30; 101 Id. 223. The contract made by the council with appellant was authorized, and the power was not arbitrarily or unreasonably exercised. When a water plant is being operated by the city under section 5675, Kirby's Digest, the city is responsible for purchases made for its maintenance and operation. 86 Ark. 61; 94 Id. 80; 117 Id. 214. 2. The city in making the contract did not surrender any of its powers. 3. Since the contract was not void, there is no necessity for arguing estoppel under a void contract. |