
    No. 453
    THOMAS v. COMMISSIONERS (County) STATE v. KINCH
    Ohio Appeals, First Dist., Butler County
    Nos. 195 and 197.
    Decided April 2, 1923
    HIGHWAYS — (1) Resolution for improvement must be passed by unanimous vote — (2) Under GC. 6112 notice of passage of resolution for improvement necessary — (3) Failure to file certificate under GC. 5660 — (4) Contractor deals with county commissioners at his own peril.
    Attorneys — Bickley & Bickley-and B. F. Harwitz for Thomas and State; P. P. Boli, Andrews, Andrews & Rogers, etc., for County Commissioners and Kinch.
   HAMILTON, J.

Epitomized Opinion

These actions were brought by taxpayers to enjoin further proceedings in the construction of two sections of turnpike. A preliminary resolution for the improvements was passed unanimously by the commissioners but later proceedings were not unanimously passed. No notice of the passage of the resolution declaring the improvement necessary was given to the abutting property owners. Moreover, the auditor failed to file the ¡certificate required by GC. Sec. 8660. One of the improvements involved the improvement of about three miles of asphalt road on a certain highway known as the Monroe road at a cost of approximately $70,000. The other contract was for the Oxford-Millville road, which involved the making of an asphalt surface on the road costing approximately $185,000. The proceedings with referenc e to these improvements had reached the point of the making of the contracts and bonds had ben sold to pay for the improvement when certain property owners filed their injunction suits. The petitioners claim that proceedings were illegal; first, because only the preliminary resolution of the commissioners was unanimously passed; second, no notice of the passage of the resolution was given to the property owners; and third, that the auditor failed to file the certificate required by law. The common peas court of Butler county enjoined further proceedings toward this road improvement. The defendants thereupon porsecuted error. In sustaining the lower court, the Court of Appeals held:

1. Sections GC. 6910 and 6911 provide that only the resolution for the improvement shall be passed by the unanimous votte, and that such unanimity is not required in the other proceedings necessary to the making of such improvement.

2. Under GC. 6112 notice of the resolution for improvement must be given except in cases of reconstruction or repair; and as the improvement in the instant case did not involve the repair of the road, but on the contrary involved the making of a new road, notice was necessary 'in order to make the proceedings legal.

3. The failure of the county auditor to file certificate required by GC. 5660, otherwise known as the Burns Law, renders all further proceedings or operations in the construction of the public highway illegal.

4. Whether the certificate required by GC. 5660, otherwise known as the Burns Law, has been filed and recorded or not must be ascrtained by each contractor for himself at his peril. In absence of such certificate when required, no liability arises against' the municipality, even though the contractor has fully performed his contract.  