As decided in Vogel v. Little Rock, ante p. 609, the question of annexation was properly submitted by the council, more than a month before the annual election, to be voted on at that election.
1. Validity of •ordinance proVexationf°r an’ If the land to be annexed was contiguous to the city and ° J was properly described in the 'ordinance submitting the question to the voters, it was not invalid by reason of the fact that it omitted a recital that it was contiguous. The fact, and not the recital, of contiguity authorizes the council to act, and where the fact exists there is nothing that requires that it appear by a recital upon the records of the council. The council acts in a legislative and not in a judicial capacity, and the rules which, require that the jurisdiction of inferior courts shall appear of record are not applicable. It is conceded that the lands were properly described; if so, the fact that.they were contiguous to the city might have been ascertained from an inspection of the ordinance by those interested in inquiring.
We think the court was warranted in finding that it was right and proper to annex the lands ordered to be annexed, under rules established by this court in Vestal v. Little Rock, 54 Ark., 321. It appears to have had but little value for country uses and to have had great value for prospective city uses, and was therefore proper for annexation.
2. Right to «nnex territory for waterworks, It appears that the city has authority bylaw to establish ^ waterworks as far without its limits as the land, in controversy, and to enforce the necessary police regulations for protecting the works and water (Mansf. Dig., sec. 753); it is doubtful, therefore, whether upon the evidence annexation could be justified upon the ground alone that the city desired to establish, maintain and preserve waterworks upon it. But as we find that there is another ground to warrant it, we deem it unnecessary to decide this point now.
3. Practice as-to amending pe» tition for annex» The court found that it was not right and proper to annex all the land described in the petition, and ordered that a part only be annexed. There was no amendment of the petition and no opportunity given the remonstrants to show that, if part of the land were excluded from the petition, it would not be right to grant the prayer as to the residue. As ruled in the opinion filed upon a motion to modify the decree in Vestal’s' case, the attorney for the petitioner may, upon leave of the court, amend the petition so as to exclude a part of the land. But the court has no right to amend the petition upon its own motion nor to authorize the attorney to do so except upon terms that permit the remonstrants to be fairly heard upon the petition as amended. Our views are expressed in the opinion above referred to, and, for the reasons there stated, we think the court erred in its judgment in this case.
The judgment will be reversed, and the cause remanded with directions to permit the petitioner to make such amendments as may be necessary to exclude the land not deemed proper for annexation and to permit remonstrants to resist the petition as amended.