Opinion, per JOHNSON, J.

It is evident from the provisions of the contract that the defendant board realized the great importance of having a well-settled, solid base upon which to put the superstructure of the stone and gravel. If the improvement was to be durable this was a necessary prerequisite, and only slight reflection is required to see that considerable time would be necessarily consumed in the process of settling, as specifically defined in the contract.

Between May 1st and December 1st there are 214 days, and a considerable portion of those 214 days would be consumed in any one section of the road in which the fills were of considerable depth, if fifteen days were allowed to each foot as required.

It is conceded by the parties that this road was not in condition to stone in the fall of 1915. It is stated in the brief of the defendant in error: "The evidence shows the board had a right to determine if the road was fit for stoning (p. 163, Record), and all parties testify the road was not fit to stone and that it would not have made a good road, or one according to the contract, if stoned that fall."

The issue submitted to the jury was whether the board had directed the plaintiff not to stone the road during the fall of 1915 and whether he acted in compliance with those instructions. On this issue the testimony was conflicting.

Mr. Ireland, a witness for the plaintiff, testified that he heard conversations between the contractor and the board of commissioners concerning the stoning of the road, and to the question, "What was the statement made by the Commissioners?" he an

Opinion, per JOHNSON, J.

swered, "To build the grade in 1915 and stone it the next year, to give it a chance to settle."

Mr. Harpster, one of the commissioners, stated that in the presence of the other members of the board, and Stinchcomb, the surveyor, and Mr. Putnam, the contractor, he had expressed himself "that at the time of year, as late as it was it would be advisable for the taxpayer and all to give them an extension until next season over that deep grade where it was about 20 feet, and again they would give that time of 15 days to the foot it would run real late."

The plaintiff testified that along about the first of October he had a conversation with the commissioners and the county surveyor, who had charge of the work, and that Mr. Harpster, in the presence of the board and Mr. Stinchcomb, stated that the stone should not be put on that year "on account that the deep fills were not settled enough."

"Q. I will ask you if that matter of putting stone on the road that fall was a matter of conversation between the members of the board, Stinchcomb and yourself? A. Yes, sir.

"Q. Talked over by all of you? A. Yes, sir.

"Q. What if anything did any other member of the board say in response to what Harpster said? A. They sanctioned it and said the grade wasn't fit, that it was too soft and wasn't settled enough."

As already observed the testimony of the other commissioners was in conflict with the testimony above recited and on the issue thus made the jury found in favor of the plaintiff.

Opinion, per JOHNSON, J.

The defendant in error insists that even if it be conceded that the commissioners gave the directions as claimed by the plaintiff with reference to the postponement of the work, it would not be binding on the defendant, nor relieve the plaintiff, because there was no roll call and no record made on the minutes of the board of such action, and attention is called to numerous sections of the Code in which the proceedings of the board and the different steps with reference to the making of valid contracts are provided for.

In this case it will be noted that the plaintiff obeyed the instructions of the board and the following year proceeded with the completion of the improvement, which on its completion was accepted and approved by the defendant and the balance due on account paid to the plaintiff in full, less the sum of $1,472, which the commissioners claimed had accrued as damages under the provisions of the contract with reference to that subject.

As we view the case there was no new contract or order or other step taken by the commissioners which required any entry on their minutes. The statutory requirements had been complied with preliminary to the making of the original contract itself. Any defect that might have been in it was cured by the act of May 17, 1915, 106 Ohio Laws, 662. When the work was begun there was a valid and subsisting contract between the parties. Everything that was done was done in pursuance of the provisions of the contract, and under the direction, supervision and control of the commissioners and their agent, as the contract provided.

Opinion, per JOHNSON, J.

There is no question of estoppel or waiver in the case. The commissioners did what they had a right to do under the agreement. The thing they did was wisely done. By their action they secured a better road and fuller compliance with the letter and spirit of the contract.

Moreover it would seem to be decisive of this case that the contract contained an express provision that no stone or gravel should be put on the roadbed until the grade had been completed in the proportion stated "and a permit given him to stone or gravel the same," and that no such permit is claimed to have been given. This provision required an affirmative act on behalf of the board before the contractor could proceed.

As already stated, the court of appeals included in its entry the finding that the trial court erred in not submitting to the jury the question whether the completion of the work was prevented by the weather conditions, unaccompanied by any other cause within the control of the plaintiff, for which he was responsible.

In the view we have taken of the case it is not necessary to consider this question.

For the reasons given the judgment of the court of appeals will be reversed and that of the court of common pleas affirmed.

Judgment reversed.

MARSHALL, C. J., HOUGH, WANAMAKER, ROBINSON, JONES and MATTHIAS, JJ., concur.

Opinion Per Curiam.

WIND V. THE STATE OF OHIO.

Constitutional law-Abatement of nuisances-Section 6212-1 et seq., General Code (107 O. L., 514) — Injunction against house of prostitution — Subsequent commitment for contempt — Right of trial by jury-Section 5, Article I, Constitution - Enforcement of court orders by contempt proceedings.

(No. 16706-Decided February 15, 1921.)

ERROR to the Court of Appeals of Jefferson county.

Mr. Jay S. Paisley, for plaintiff in error.

Mr. Roy R. Carpenter, prosecuting attorney, for defendant in error.

BY THE COURT. This action was one brought in the court of common pleas of Jefferson county, Ohio, by the prosecuting attorney, in the name of the state, against May Wind and others, for abatement of a nuisance, particularized as the maintenance of a place, or house, where prostitution is permitted and conducted by her, and to which persons resort for the purpose of prostitution.

The petition prayed for a permanent injunction to effect such purpose.

The proceeding was brought and a remedy sought under an act of the legislature passed March 21, 1917 (107 Ohio Laws, 514), now Sections 6212-1 to 6212-12, inclusive, General Code.

Upon final hearing the court of common pleas found for the state, and ordered the premises permanently closed against use for any purpose of lewdness, assignation, or prostitution.