| Ark. | Oct 15, 1917
(after stating the facts).
Section 5473 of Kirby’s Digest, among other things, provides:
‘£ On the passage of every by-law or ordinance, resolution or order, to enter into a contract, by any council of any municipal corporation, the yeas and nays shall be called and recorded; and to pass any by-law or ordinance, resolution or order, a concurrence of a majority of a whole number of members elected to the council shall be required.”
(1) Section 5456 provides that they (municipal corporations) shall have power to improve and repair their streets and alleys. Neither the mayor of the town of Plummerville nor the street committee of the council had the authority to make the contract with Venable for the improvement of the streets of the town. The town council alone could make the contract in the manner provided by the statute. City of Mena v. Tomlinson Bros., 118 Ark. 166" date_filed="1915-04-19" court="Ark." case_name="City of Mena v. Tomlinson Bros.">118 Ark. 166, and Cutler v. Town of Russellville, 40 Ark. 105" date_filed="1882-11-15" court="Ark." case_name="Cutler v. Town of Russellville">40 Ark. 105.
(2-3) It is not shown by the record that the town council by ordinance or resolution made any contract with Venable to work the streets nor does the record show that the town council authorized either the mayor or the members of the street committee to make such contract. It is claimed, however, that the contract, as made by the mayor, was ratified. Reliance is placed upon Frick v. Brinkley, 61 Ark. 397" date_filed="1895-12-21" court="Ark." case_name="Frick v. Brinkley">61 Ark. 397, and Forrest City v. Orgill, 87 Ark. 389" date_filed="1908-09-28" court="Ark." case_name="Forrest City v. Orgill">87 Ark. 389. We do not think, however, that either one of those cases is authority for the position taken by counsel. In the first mentioned case there was a sale of piping to the town by one of its aldermen. Such contract was contrary to the statute. The town kept the piping and a recovery on a quantum valebat was allowed. So, too, in the last mentioned case the city officers purchased some water works machinery and the contract was not authorized by any ordinance, resolution, or order of the council in the manner provided by the statute, but the water works machinery was kept and used by the city. On this account a recovery as upon quantum valebat was allowed.
In the present case there was no ratification of the contract whatever by the town council. Knowledge by individual members of the council by conversations on the street could not be considered as a ratification by the council as a body. There was no action taken by the council in the matter at all. There was nothing to indicate that it accepted the work. Besides the members of the council and the mayor testified that they understood that the county was to pay for the work except the amount which had already been paid by the town. In order for the ratification to 'become effective there must be some affirmative action by the proper officers, or some negative action which of itself would amount to an approval of the matter in question. Texarkana v. Friedell, 82 Ark. 531" date_filed="1907-04-29" court="Ark." case_name="Texarkana v. Friedell">82 Ark. 531.
It follows the court was warranted in finding for the defendant, and under the settled rules of this court the findings of fact made by the court sitting as a jury are as binding upon appeal as the verdict of a jury.
Therefore, the judgment will be affirmed.