dissenting. Former R.C. 3903.07 essentially grants the court of common pleas the right of first refusal of all contracts entered into by the statutory liquidator to sell or otherwise, dispose of the property of an insolvent insurance company. The statute unambiguously makes such contracts “subject to the approval of the court.” This “approval” is not in the *9nature of judicial review of the actions of an administrative officer, whereby great deference is granted to the liquidator’s decisions and reviewed solely on the standards of abuse of discretion and fraud. Rather, the court’s “approval” function is in the nature of broad oversight, whereby the court exercises its own discretion in reviewing the deal struck by the liquidator. The court may not, of course, substitute its judgment for that of the liquidator. In other words, the court may reject the liquidator’s proposals with respect to one bidder, but it may not direct the liquidator to grant the contract to another bidder.
The conclusions of the majority to the contrary are not supported by the language of former R.C. 3903.07, or the purpose of the liquidation process. The majority curiously indicates that there is no case or controversy pending before us. Were this holding accurate, on an issue not raised by any party before this court or the lower court, that would be the end of the matter.
The holding is, of course, not accurate, and results from a misconstruction of the role of the liquidator and the facts of this case. The liquidator entered into a contract with appellant and submitted it for the required court approval at a time when he believed appellant’s to be the highest and best offer. Immediately prior to the hearing on the contract, two other bidders submitted offers which were $1,000 and $1,100 per acre more than appellant’s offer. The statutory liquidator’s goal is not to unload the insolvent insurer’s property at the first opportunity, but rather to protect the policyholders, stockholders and creditors of the insolvent insurer, as well as the public in general. See former R.C. 3903.03. The court, in turn, is directed to oversee the liquidator in meeting these responsibilities. In this case, the court recognized the adverse interests which arose between the liquidator and appellant when higher bids were received. The controversy in this case is clear: the liquidator seeks to have this court recognize the statutory authority of the court of common pleas to allow the liquidator to reopen negotiations and accept the highest and best offer for the insolvent insurer’s property; and appellant seeks to bind the liquidator to his acceptance of appellant’s bid, absent fraud or an abuse of discretion. The majority apparently concedes as much, as it proceeds to decide such controversy on the merits.
The majority’s decision is grounded upon incantations of sanctity of contract. However, freedom of contract has not been assailed by the trial court’s decision, pursuant to former R.C. 3903.07, as there was no binding contract presented to it. Nor could there be, since the trial court is the final step in the contracting process between the parties: its approval is a pre-condition to a binding contract. Although the liquidator is the titleholder of all property of the insolvent insurer, the liquidator’s power of sale is not absolute. The proposed contract, when signed by the parties and submitted to the court, is not an enforceable agreement. Prior to any hearing on such a contract approval, various events and discoveries may occur: additional, more attractive bids may be submitted; the proposed buyer may become insolvent or otherwise unable to perform; irregularities or unfairness in the bidding or contracting process may be discovered, to name a few. Approval of a proposed contract in the face of these and other like occurrences, as today’s decision mandates, is an abdication of the court’s responsibilities as an overseer of the liquidation of the insolvent insurer’s assets. *10Even worse, it unnecessarily renders the statutory liquidator helpless to protect the interests of the insurer’s policyholders, creditors, members, and stockholders, and the public in general.
Finally, I believe the majority has misinterpreted the law of New York on this subject. New York courts have developed a substantial, coherent and persuasive body of case law concerning the scope of a court’s authority in approving sales of property by a statutory liquidator, pursuant to a statute nearly identical to former R.C. 3903.07: i.e., Section 421 of the New York Insurance Law. In In re Casualty Co. of America (1927), 244 N.Y. 443, 155 N.E. 735, New York’s highest court, per Chief Judge Cardozo, explained the general authority of the liquidator in relationship to the court:
“The statute is notice to him [the liquidator], however, and to any one who deals with him, that the agreement, whatever its form, is of merely provisional validity. He may fix the rate of compensation as a trustee or an assignee for creditors or a receiver may be said to fix it (cf. L. 1903, ch. 336, § 9), but subject at all times to the approval of the court. The meaning is that even when he acts, the court shall have a veto. * * *
* ** *
“Argument is made that what the liquidator does in fixing the value of a service, if not exempt altogether from review by the courts, must be held to be exempt unless power and discretion have been flagrantly abused. When he is merely wrong, the court is helpless, but when he is very wrong indeed, its authority is restored. There can be no basis for this distinction unless it be in the assumption that the Superintendent is an arbitrator whose award is not impeachable for error in the determination of the merits, but impeachable only for mistake appearing upon the face thereof, or for fraud, or abdication of duty equivalent to fraud (Fudickar v. Guardian M. L. Ins. Co., 62 N.Y. 392; Sweet v. Morrison, 116 N.Y. 19, 33; Matter of Burke, 191 N.Y. 437, 440; Davis v. Henry, 121 Mass. 150, 154; 3 Williston, Contracts, § 1929-a). But an arbitrator he is not, as we have already sought to show. Neither expressly nor by reasonable implication are those who deal with him advised that in the act of so dealing they have clothed him with judicial power * * *.” Id. at 449-450, 155 N.E. at 736-737.
This holding, that the phrase “subject to the approval of the court” means that the court may veto an action of the liquidator but cannot compel it, was reaffirmed in In re Lawyers Mortgage Co. (1944), 293 N.Y. 159, 162, 56 N.E. 2d 305, within the specific context of the liquidator’s power to sell property of a delinquent insurer. See, also, Natl. Bondholders Corp. v. Joyce (1937), 276 N.Y. 92, 96, 11 N.E. 2d 552, 553.
The majority’s citation to In re Liquidation of National Surety Co. (1936), 248 App. Div. 111, 288 N.Y. Supp. 1014, misses the point of that case. All five justices of the intermediate appellate court in National Surety Co. agreed on the scope of the trial court’s authority as announced in In re Casualty Co. of America, supra: i.e., that the court was to exercise its discretion in approving or disapproving the liquidator’s proposal, but could not substitute its judgment and order the acceptance of a higher bid.2 All five *11agreed that the lower court erred in ordering acceptance of the later, higher bid. The court split on the issue of whether the lower court erred in rejecting (or rather, ignoring) the original bid submitted by the liquidator. See fn. 2, supra. The three sentences of the majority opinion in National Surety Co. which are relied upon by the majority here are merely an analysis of the lower court’s exercise of its own discretion.
The dissenting opinion in National Surety Co., supra, provided a different view of the lower court’s discretion in light of the facts and circumstances before it:
“Substantially seventy-six percent of the creditors, therefore, appeared to oppose the acceptance of the bid and only one single creditor appears to have favored it. It also -is to be noted that the committee representing stockholders objected. Moreover, the testimony of the experts called on behalf of the objectants gave an average value of some $13,000,000 to the stock. Their testimony was also to the effect that a three-years’ experience, or until the end of 1936, would afford a better basis for ascertaining the real value. The record shows that the status of the liquidation proceedings is such at this time as would not result in a present distribution to creditors and that a postponement of any sale would involve no practical risk. It appears, therefore, as contended for by the creditors and the owners (stockholders), the bid of the appellant was not adequate and should be rejected under all the circumstances.” Id. at 119, 288 N.Y. Supp. 1022-1023.
The appellate court in National Surety Co., supra, was merely reviewing the exercise of the lower court’s discretion in exercising its statutory veto power over sale contracts submitted by the liquidator. The case is thus consistent with the standard set forth in In re Casualty Co. of America, supra, by Judge Cardozo. It certainly does not support the restrictive standard adopted by the majority here. Quite simply, the trial court, in its sound discretion, may veto, but may not compel, the actions of the liquidator.
*12Such a mere veto, or disapproval, of the proposed contract is precisely what occurred in this case. At the time of the approval hearing, the court was faced: (1) with new offers for purchase of this substantial asset, which were much larger than appellant’s, and which would be in the best interests of the policyholders and creditors if available for approval; (2) with the irregularity of the prior proceeding resulting from the failure at that time to journalize the vacation of the order approving the original Sabatino order; and (3) with the irregularity and confusion resulting from the alleged varying contract terms of the Sabatino offer. In light of these factors, which worked to undermine the integrity of the liquidation process, the court properly exercised its discretion and disapproved the Piolata bid. Then, rather than substitute its judgment for the judgment of the liquidator and decide which of the several contracts to approve, the court ordered the liquidator to conduct a public sale, which would place all parties on equal footing.
Because it is my opinion that this veto of the proposed sale was clearly within the authority of the court in its capacity as supervisor of the liquidation process, granted by former R.C. 3903.07, I must respectfully dissent.
Moyer, C.J., and H. Brown, J., concur in the foregoing dissenting opinion.Justice Glennon, speaking for a three-judge majority, thus characterized the lower court’s order: “The order as entered not only provided for the rejection of * * * [the] bid, but, in addition thereto, contained an authorization, but not a direction, to the Superintendent of Insurance to sell seventy percent of the stock to the Bancamerica*11Blair Corporation for $101.50 per share.” (Emphasis added.) National Surety Co., supra, at 112, 288 N.Y. Supp. at 1016. The majority later disapproved this order on two bases (and without the support of any legal citation). First, commenting on the order to award the bid to the subsequent higher bidder (Bancamerica-Blair Corp.), the court stated: “Instead of either approving or disapproving the acceptance of the bid of the appellant, the court entered the order now under review. We fail to find anything in section 421 of the Insurance Law which gave the court the right to make and enter this unusual order. The result of what the court has done was to substitute its judgment for that of the Superintendent. Such a procedure was not even contemplated by the Legislature in enacting this particular statute.” Id. at 116-117, 288 N.Y. Supp. at 1020.
Second, the court examined, as the trial court should have, whether or not the liquidator was justified in recommending the approval of the original bid. The majority believed that he was, and held that the bid should have been approved. Id. at 117, 288 N.Y. Supp. at 1021.
The two dissenting justices, after citing the controlling law of In re Casualty Co. of America, supra, agreed that the lower court went too far in ordering approval of the subsequent higher bid. However, the dissenters felt that the “best interests of the creditors and stockholders and of the corporation itself were served by the rejection of the * * * [original] bid.” National Surety Co., supra, at 119, 288 N.Y. Supp. at 1023 (O’Malley, J., dissenting). Thus, these two justices dissented only “from so much of the majority opinion as directs the acceptance of the * * * [original] bid.” Id.