In May, 1919 the then Director of Highways and Public Works, on behalf of the State of Ohio, entered into a contract with Christian Appenzeller et al, for the construction of a part of the Marietta-Caldwell Road, in Washington County, for the sum of $94,413.30. Bond was given by Appenzeller for $96,853.50. In March, 1920 Appenzeller was relieved of the contract under 1209 GC (108 OL 488) by the provisions of which give the procedure to be followed by the Commissioners in completing a contract, when failure upon part of the contractors is evidenced.
Said contract was completed at a total cost of $173,124.75 which, after deducting the original contract price, leaves a balance of $78,-711.45. The State seeks to recover this from Appenzeller and his bondsmen in the Washington Common Pleas. In that court the state’s petition was dismissed and judgment rendered accordingly. The Court of Appeals affirmed the judgment of the Common Pleas.
Appenzeller contended that the auditor did not call for the yea and nay vote of the commission as provided for in 2046 GC when they passed the final resolution empowering them to take over and complete the contract in compliance with statute.
The state alleges that the Commissioners had placed their signatures to the resolution and that this satisfies the requirements of 2046 GC. The main question before the Supreme Court for consideration is:
Did the signatures of the members of the Board of Commissioners satisfy the statute requiring aye and nay votes?