State v. Hahn Construction Co.

By the Court.

It is conceded that a compliance with Section 2406, G-eneral Code, requiring an aye and nay vote of the commissioners of Tuscarawas county, was essential to the validity of the construction contract. It further appears that neither the original nor supplemental record of the commissioners shows that an aye and nay vote of the commissioners was called or recorded.

It is urged that this is supplied by the signatures of the commissioners to their record of the resolution adopting the contract.

We are of opinion that the signature of the commissioners certifying the resolution is not the equivalent of an aye and nay vote. A county commissioner might very consistently certify the record of a contract, although he did not vote for or agree to the resolution.

Board of Education v. Best, 52 Ohio St., 138, was approved in the case of Village of Vinton v. James, 108 Ohio St., 220. We cannot see therefore how the validity of the contract under consideration can be upheld. In the Best case the record shows that the contract under consideration was approved by unanimous vote. It was there held that even this did not comply with the statute and that the contract so adopted was invalid. We are forced to the conclusion that the contract here under consideration was invalid and that fact would be a good defense to the contractor and his surety. State v. Kuhner & King, 107 Ohio St., 406.

Judgment affirmed.

.Kttnkle, Allread and Fbrneding, JJ., concur.