(Dissenting):
This ease is here on appeal on questions of law and fact from an order of the common pleas court granting a permanent injunction restraining the City and certain officers from proceeding with a contract theretofore entered into with M. H. Rhodes Inc., for the installation of three thousand Mark Time Parking Meters. Trial was had on the original petition in the Common Pleas Court in which a large number of reasons were pledged to sustain the alleged illegality of this contract. The trial court found ■ that the charges of collusion and fraud, etc., were not sustained by proper and sufficient proof but did find that the particular parking meters contracted for failed in many respects to meet the requirements of the specifications. In this Court an amended petition was filed with leave, making M. H. Rhodes Inc., a new party defendant, for the reason that some time prior to the contract, in pursuance of the award, had been duly executed.
It appears that several years ago the City of Cleveland, confronted with the serious and ever increasing traffic problems, decided to make a complete survey thereof. To this end a specialist, Vurnon Johnson, was employed as Trafile Engineer. Doubtless a complete and exhaustive checking of traffic at that time was made. The subject of the installation of parking meters was considered and also thoroughly examined. In so doing, questionnaires were mailed to many cities throughout the country to ascertain the kind and character of meters in use in the respective cities and the kind of specifications employed in determining the kind and character of parking meters eventually adopted by the various cities. Some four-score municipalities were found to be using t.o a greater or less extent parking meters for the regulation and control of traffic.
After exhaustive study of the local problems and the information obtained by and from the replies to these questionnaires, the city determined to proceed and experiment with about three thousand (3000) meters. In the meantime, the ordinances and laws of the city were amended and supplemented to provide authorization for so doing.
Also, in the meantime, the task was presented of preparing specifications for a proper workable parking meter with necessary restrictions and safeguards to guarantee efficient service. The various specifications in the hands of the officers of the city in charge of the traffic problems that were received as a result of the questionnaire were carefully examined and many suggestions of parking meter manufacturers and others were considered and it is to be presumed that from all sources those suggestions deemed the best were selected and went to make up the specifications adopted by the city.
After these specifications were prepared' and on file, advertisement for bidders for three thousand (3000) parking meters was duly published for four consecutive weeks beginning September 28, 1938, with the date for opening bids set for October 27, 1938. On October 8th and October 13th, 1938, while the notice was in process of publication, two minor changes were made in the specifications of which due notice was promptly given to' all prospective bidders.
The bids were opened on October 27, 1938, and M. H. Rhodes Inc., was found to have bid the lowest price, on both manual and automatic parking meters. It was a condition of the bidding that each manufacturer submitting a bid should accompany the same with three samples of the parking meter for which the bid was submitted. Three samples of manual and three samples of automatic meters were submitted by M. H. Rhodes Inc. It was also a condition of the bid that these samples were to be ■sent out for laboratory test and the six samples submitted by defendant, M. H. Rhodes Inc., were shipped to the Pittsburg Testing Laboratory. This concern eventually reported that the' samples of M. H. Rhodes Inc., came nearest to complying with the requirements of the specifications but called attention to only three substaiitial de~ *15viations. It was reported that the sample did not have a window through which the coin box could be observed. Also, that the two windows were not covered with plate glass as specified, and third, that the nickle last placed in the meter could be readily extracted by the use of common tools. The samples of Mark Time Automatic Meters furnished by M. H. Rhodes Inc., were reported by the laboratory as not meeting the specifications. Thereupon, the (automatic meters furnished by the bidder, Dual Parking Meter Company next lowest bidder, were dispatched to the laboratory for testing, upon which and in regard to which the laboratory subsequently reported.
The proper officers of the city had the burden of selecting either a manual or automatic meter for use. This matter 'was under consideration for some time. Eventually, Director Ness recommended the selection of the Mark Time Meter. Patterson, Commissioner of Purchases and Supplies, preferred this same meter. The Traffic Engineer selected this meter as most practical. The laboratory recommended this meter.
On February 6, 1939, a meeting was held by the Board of Control of the city,' Directors Ness, Gesell, Brainard and Commissioner Patterson with representatives of M. H. Rhodes Inc., being present, at which counsel for Rhodes Inc., advised the officers of the city that the matter of another window and plate glass would be duly corrected by M. H. Rhodes Inc. The city, at that time, insisted that such agreement should be in writing, and a part of- the contract. A long distance call was made to the M. H. Rhodes Inc. and a letter received promptly setting forth •such agreement to place another window in the meter to enable observance of the coin box and to cover both windows of the meter with plate glass. The award was then duly made to M. H. Rhodes Inc., on February 8th, 1939.
The evidence discloses that this was not done on the samples, for the reason that it would require a change of dies and methods of manufacture and the bidder did not wish to do this unless and until he was found to be the lowest responsible bidder and award of the contract had been made.
In respect to the extraction of the coin, it was found that this deviation was present on the samples of all the bidders and the city decided to avoid any possibility of theft by the coin collector by a requirement that the last nickle in each meter should be collected with and at the same time as the coin boxes were collected.
The plaintiff strenuously asserts that the defendant, M. H. Rhodes Inc., was not in fact and in law a bidder, for the reason that the samples furnished did not meet specifications in at least the three above stated respects.
• It is safe to say that no sample supplied by any bidder completely and entirely met the terms of the specifications. Each and all of them would require some alteration in the event such bidder was determined to be the lowest responsible bidder and received the award. The samples of all provided and supplied the general construction and mechanism of the meter manufactured by each bidder or intended to be supplied by each. It is a reasonable conclusion to say that it was the understanding of each and all that the bids were submitted and the samples provided with the understanding that such minor details would be changed if and when such bidder was determined to be entitled to the award and contract, as each bidder could readily observe the deviation in the samples supplied by the other.
Many reasons are assigned by plain-' tiff why this award should be set aside and the contract cancelled.
With one possible exception, it is the opinion of the writer that there is no point and very little substance to any of them. A few illustrations follow.
It is claimed as a reason that the contract was not signed within five (5) days of the award. At the time the award was made there was pending in the courts a law suit in prosecution by the same interests that are now prosecuting this law suit. It was claimed that the city had no right to rent and *16install parking meters. This contention was not sustained by this court by the judgment of March 10, 1939. As stated, the award was made on February 8, 1939. Execution of the contract was delayed until the expiration of the twenty (20) days within which a motion to certify might be filed. This was not done and preparation of the contract began immediately thereafter. However, this law suit was instituted on or about March 31, 1939. The contract was executed, nevertheless, on April 13, 1939, after which leave was obtained and granted to file an amended petition in this action in this court. The pendency of this and the former litigation was said to have caused the delay in the execution of the contract. In what manner the delay in its execution coud .prejudice the rights of anyone, unless it be one of the contracting parties, is difficult to decide. Certainly the public was not prejudiced nor was either of the unsuccessful bidders. The only interested parties that could be in any way prejudiced would be the contracting parties, neither of whom is complaining.
. Again, it is urged that the advertisement for bids was for a period of thirty (30) days instead of two weeks, and that this is a sound basis for nullifying the contract. A publication of two (2) weeks at least is mandatory, but it does not appear that anywhere is there any requirement that the publication shall be limited to two weeks. Who could be prejudiced by having notice for thirty (30) days instead of two (2) weeks. All the bidders were fully advised and exercised their election to bid under the terms of the publication of notice. Having done so, it does not seem proper or logical that either should be permitted now to invalidate a contract for this reason, a contract which each failed .to get by reason of the character and amount of their bids.
Again complaint is made that the meeting of the Board of Control on February 6, 1939, where representatives of M. H. Rhodes Inc., were present, was a secret meeting held to the prejudice, of the other bidders. When it was finally determined by the proper officers in the exercise of what appears to be their sound discretion that this bidder should receive the award, what right existed in any other bidder to be notified of any such meeting at which it was proposed to fix the terms of the contract to the one to whom it was intended to make the award. It is just such a meeting as would be expected to be held for either of the other bidders that might have received the award. The successful bidder was under no obligation to notify the other unsuccessful bidders of the meeting with the officers of the city. And the city having determined upon the successful bidder, owed no duty to advise other bidders to attend the meeting at which the matter of the award to the successful bidder was under discussion. Such a procedure has never been adopted by any municipality so far as lías come to our attention.
Again, it is claimed that there was a substitution of samples forwarded to the testing laboratory. The proof discloses that the original samples were damaged in transit. The testimony is that out of the same stock at the factory exactly the same kind of samples were sent to the laboratory or taken there and that like samples were in fact tested by the laboratory and a report made by it in respect to these.
If there is any substance to such claim, then a railroad wreck and total destruction of the original samples would have the effect of nullifying the bid and eliminating such bidder from competition.
The one possible exception referred to above is this. Three alleged deviations from the specifications in the samples furnished were emphasized at the hearing. It was claimed that the sample meters did not have an opening or window to observe the coin box in place; that the openings or windows were~not enclosed with plate glass, and that the meters were not so constructed as to prevent the easy extraction of the last nickle inserted into the slot.
In respect to the first two, the meters were present with the bids and *17the absence of these requisites obvious to all, or at least were available for observation and inspection. The proof is that they were, and the samples submitted in this form with the understanding that the bidder would change the dies to meet these specifications. All could see these variations and all must have understood that the bids were made and samples submitted by M. H. Rhodes Inc., as well as others with changes contemplated in the event this bidder was finally awarded the contract. This bidder did receive the award and the contract requires a meter thus equipped to meet these specifications.
In what manner is this taxpayer or the public or any other bidder prejudiced by a requirement in the contract that the meters delivered shall comply in these respects?
Complaint might be justified if the executed contract did not so provide. In view of the happenings at'the meeting of February 6, 1939, it is quite certain the award would not have been made without this written agreement to comply.
In respect to the third, no bidder submitted a sample meter that completely guarded the last nickle from extraction by a thief v/ith the use of ordinary tools. This was a requisite designed to safeguard the city from loss of the last nickle inserted into each meter in operation, and remove the temptation from any collector to become a petty thief.
Since none had successfully safeguarded this potential irregularity, and the manual meter of M. H. Rhodes Inc., being otherwise satisfactory, the proper officers of the city having this matter in charge, decided that this end would be accomplished- by a rule or requirement that the collector deliver to the City Treasurer the last nickle deposited with each sealed coin box from each meter.
Since no other bidder fully complied in this regard, how was this taxpayer, the public, or any other bidder prejudiced? The officers of the city were seeking a workable and efficient meter. They had the benefit of an exhaustive survey of meters in other cities. They had an opportunity to examine and compare the sample meters submitted by the bidders for this award. They were pioneering in the Cleveland field. They decided this method furnished a practical solution of the problem with equivalent financial protection.
Is a non-complying bidder deprived of fair and competitive bidding by such a conclusion on their part, as claimed by this taxpayer' plaintiff?
This taxpayer is asserting claims on the ground of unfair and non-competitive bidding based on the manner of the letting of this contract. It is said that there was concealment to favor and prefer M. H. Rhodes Inc. Yet the' notice to bidders was published for thirty (30) days. The specifications were on file. All prospective bidders were duly notified of the not unexpected additions thereto of October 8th and October 13th. The bids of each and all were opened at noon October 27, 1938, probably with each bidder present or represented, when it was discovered that M. H. Rhodes Inc., was low on both manual and automatic meters. It was known by the published notice that the samples of the low bidder should be sent to a laboratory to measure compliance as a condition of the invitation to bidders. This was done, and after due time the laboratory reported failure of the Mark Time Automatic Meter of M. H. Rhodes Inc., and that the manual meter of Mark Time met requirements. Thereupon, as required by the notice to bidders, the automatic meter of the Dual Parking Meter Company, next lowest bidder, was sent to the laboratory and it failed to meet the tests. Under the terms of the offer, this furnished justification for the proper officers of the city, coupled with other data in their possession, for selecting the Mark Time manual meter upon the recommendation of the laboratory.
But, it is said this result was produced by the antecedent activities of Patterson, Commissioner of Purchases and Supplies. The Board of Control, by ordinance, was charged with the *18duty of selecting the type of meter and making the award. Abundant and compelling proof would be required to convince that the action of the Board of Control, made up for. the most part by the Directors of the City' departments of government, was the sole and exclusive judgment of one of its subordinates.
All bidders knew that the laboratory check would play an important part in deciding the successful bidder. It was an express proviso of the notice and invitation to bid. When the result of these tests was reported and the Mark Time manual recommended by the laboratory, by what right was any other bidder entitled to notice of further steps taken in the process of executing a formal contract?
All bidders received due notice of all activities and matters of which they were entitled to know, up to the time the award was determined. The claim of unfair and non-competitive bidding cannot be predicated upon happenings thereafter attendant upon the insistance of the city that the contract express all the terms of the award made.
There is claim of collusion with little evidence to support it unless almost unanimous favor and preference for the Mark Time manual meter be synonymous with collusion.
Collusion necessarily implies cooperation of the participating parties, but cooperation and unanimity of preference does not necessarily spell collusion. The letter of Patterson to Director Gesell speaks favor and preference for this meter with reasons defined. The letter read to the Board of Control by Director Ness, who is in direct charge of and responsible for the department of traffic control, expresses a clear preference for the meter selected and gives reasons therefor which seem amply sufficient to him.
The Board of Control, in making the award in favor of this meter, thereby loudly proclaimed its preference. But, in the absence of proof of fraud or bribery or corruption, it is not collusion, but the expression of a judgment of the merits of. this meter for the price agreed to be paid and the efficiency possessed by it, concurred in by all. No malfeasance may be imputed to these officers or either of them, from the fact of agreement on one type of meter alone.
It should be noted and stressed that this is not a case of bidding on a contract for brick or stone or building material. It is not a case like some of the authorities cited of furnishing samples of a kind and quality of brick or stone or material different than specified that go to the quality and durability of a proposed private or public improvement. This case relates to a mechanical device, and involves an inventor’s or engineer’s problem in respect to safeguarding the much exalted nickle. It is a mechanical device that is sought at lowest cost, that is designed and constructed to serve as an efficient aid in the regulation and control of traffic that was the ultimate aim of the original survey and subsequent activities and proceedings had and taken by the officers of the city charged with the responsibility.
This action takes the form of a taxpayer’s suit. It is claimed that the award made to M. H. Rhodes Inc., is illegal; that the contract executed is illegal, and should be cancelled; that the proceedings eventuating in the award and contract were irregular and not in conformity to law; that unless the award is vacated and the contract cancelled there is involved an illegal expenditure of public money.
. It is claimed that the Mark Time manual meter falls far short of meeting the specifications but that the automatic meter of the Dual Parking Meter Company completely and strictly meets each and every requirement thereof. The Dual Parking Meter Company is not visibly asserting any such claim, and so far as brought to our attention is not doing so elsewhere.
The officers of the city deny that the Dual Automatic Meter complies. The officers claim that the Mark Time manual meter does comply. The city also claims that all proceedings had, ante*19cedent to making the award and letting of the contract, are legal.
Notwithstanding the claims of plaintiff taxpayer, in respect to the Mark Time manual meter, the Pittsburg Testing Laboratory reported that this meter filled the requirements. Vurnon Johnson, special traffic engineer for the city, selected and approved this meter. Director Eliot Ness, head of the Safety Department of the city approved the meter. Patterson, Commissioner of Purchases and Supplies, prefers this meter. The Board of Control possessed of the examinations, surveys and information gathered by the officers and employees of the city, in making an exhaustive survey, determined and decided that this Mark Time manual meter met the requirements of the specifications to the extent intended and as provided.
In view of all these facts, and in-view of the matters set forth in -the foregoing opinion, and in view of the almost unanimous conclusion of all the officers and employees of the city concerned with this matter, is this situation such as the courts would be justified in intervening? It is not the province of the Courts to direct and control the administration of the government. In face of the proof on the part of the city and its interest, should this court undertake to vacate this award and cancel this contract upon the claims made and proof offered by the plaintiff? The city, through its officers and employees, have established with substantial proof that the proceedings had leading up to the award were all in substantial compliance with the statutes and ordinances and that the meter selected with reference to which the award was made and contract let, meets all requirements in all respects with the exception of the matter of safeguarding the niekle which was adjusted in the manner hereinbefore Stated.
It is my conclusion that the plaintiff has failed to establish safe and sound ground for invoking the equitable jurisdiction <?f this Court to the extent of granting the prayer of her petition.
In the absence of rather clear proof of either fraud, bribery or corruption on the part of any city official, this court-should not stamp the conduct of the officers of the city or either of them with non-feasance or malfeasance in office upon the unconvincing evidence offered to sustain the claims of the plaintiff nor should this court interfere with this administrative function of the city in its endeavor to reguiate and control traffic by the best mechanical aids obtainable. It will require actual trial of this meter on the streets' to demonstrate that the city through its officers exercised inferior judgment and discretion in their discharge of an administrative function of traffic regulation and control. Under all the circumstances, courts should not intervene.
It is my oipnion that the petition should be dismissed with judgment for costs against the plaintiff.