PUBLICATION OF LETTING OF CONTRACT TO IMPROVE ROAD.

Court of Appeals for Mahoning County.

#### State of Ohio, ex rel Boyd, a Tax-payer, v. Robert McMasters et al.

Decided, June 7, 1918.

*Roads*— Publication *of Mode and Time for Advertising for Bids Mandatory■*— Meaning *of the Words “for Two Consecutive*Weeks”— *Contract Rendered Invalid by the Giving of Less than Two Full Weeks’ Notice.*

1. A statute requiring the state highway commissioner, before letting a contract to -build an improved road to "advertise for bids for two consecutive weeks,” is mandatory and must be strictly complied with.

2. The term “two consecutive weeks,” as used in such statute, means two full calendar weeks.

*Henderson, Nicholson, Anderson & Warnoch,*for plaintiff in error.

*Paul Huxley,*Prosecuting Attorney, contra.

Metcalfe, J.

This action is brought -by a tax-payer against the commissioners of Mahoning and Columbiana counties, and the state highway commissioner to enjoin the construction of a proposed improved highway upon the county line between Mahoning and Columbiana counties.

It is claimed that the contract to build such road entered into by the commissioner of state highways, and the construction company is illegal for several reasons.

First, it is claimed that the advertisement for bids for the construction of the road was not published the length of time required by'statute (106 O. L., 634).

The section of said law was Section 199 of the original law and is now Section 120)6 of the General Code. The statute provides :

> *383“Upon receipt of a certified copy of the rseolntions of county commissioners, or township trustees that such improvement be constructed under the provisions of this chapter. The state highway commissioner shall advertise for bids for two consecutive weeks in Two newspapers of general circulation, and of the two dominant political parties published in the county or counties in which the improvement or some part thereof is located, if there be any such papers published in said counties.”

That is all of the statute that applies to the questions here.

It appears from the agreed statement of'facts that an advertisement for bids to be received on the 19th day of May, 1916, was published in two newspapers of general circulation of the dominant political parties. The first publication in one of the papers was the 5th day of May. No question is made but that that publication was sufficient, but in the other paper the publication was made on the 6th day of May, falling one day short of two calendar weeks.

It is urged with a good deal of force that the statute does not contemplate the publication of such advertisement for two full calendar weeks, but merely two successive publications in two different weeks, and that if the advertisement is put in two different papers of the two leading political parties on two different occasions during two weeks, that that is a compliance with the "law.

It is with some reluctance that we have reached a different interpretation of the statute. The statute requires the publication to be made for two consecutive weeks, and we have come to the conclusion that it means two full calendar weeks from the date of its first publication.

The statute does not direct whether the publication shall be made in a daily paper or a weekly, but does require that the publication shall be made for two consecutive weeks. No one can doubt the legality of the notice if published in a daily paper, but would it be a publication for two consecutive weeks if the notice were published on the last day of one week and the first of the next? Surely that is not what the statute contemplates, but that would be the effect of the construction claimed.

*384In the ease of *Finlayson*v. *Peterson,*33 L. R. A., 532, the court held:

> “Under a statute requiring publication of notice of sale on foreclosure of mortage by advertisement to be/ made for sis successive weeks at least once in each week, the first publication must be made at least forty-two days before the sale or the foreclosure proceedings will be void. ’ ’

In the opinion the court says:

> “The word ‘for’ in this statute means ‘throughout, or during the continuance of.’ Third Century Dictionary 2314, definition 15 of word ‘for.’ It is obvious that a notice of sale has not been published during the continuance of the week, when the -day of sale follows the day of publication at an interval of less than a week.”

We think that that is the sense in which the words “for two consecutive weeks” are used in this statute, that is to say, during the continuance of two successive weeks. See also *Dever*v. *Cornwell,*86 N. W., 297.

We must therefore hold that the requirement of the statute is not complied with. What is the effect of such non-compliance with the statute? In *McCloud*v. *City of Columbus,*54 O. S., 439, the court says:

> “Where a municipal corporation acting under Chapter IY, Division YII of Title IX, R. S., improves a public street, the provisions of Section 2303, prescribing the mode and time of advertising for bids are mandatory, the compliance with which is a condition precedent to the power of the municipality to enter into a valid agreement in respect thereof. ’ ’

The terms of the statute before us for construction are very similar to the terms of the statute before the Supreme Court in *McCloud*v. *Columbus,*and in view of that decision we think that the requirements of Section 1206, General Code, are mandatory,' and a failure to comply with its terms renders the contract void.

Pollock, J., and Farr, J., concur.