Several important questions are raised in this case that were not raised specifically *Page 346 or considered in the case of Marvin v. Housing Authority of Jacksonville, 133 Fla. 590, 183 So. 145. Appellants, in their statement of questions involved set forth among others the following questions:
"First Question: Are Chapters 17981 and 17982, Laws of Florida, 1937, in so far as they purport to authorize municipalities of the State of Florida to establish Housing Authorities and to expend funds and services in aid of such Housing Authorities, in conflict with and in violation of Art.IX, Sec. 5, Constitution of Florida, which provides that the Legislature of the State of Florida shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes and for no other purposes, and in conflict with Section 10 of Article IX of the Constitution of Florida which provides that the Legislature shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association, or corporation, or to obtain or appropriate money for, or to loan, its credit to, any corporation, association, institution or individual?
"This question was answered by the court below in the negative.
"Second Question: Are Chapters 17981 and 17982, Laws of Florida, 1937, in so far as they purport to authorize municipalities of the State of Florida to establish Housing Authorities and to expend funds and services in aid of such Housing Authorities, in conflict with and in violation of Article XIII, Section 3, Constitution of Florida, which provides that the respective counties of the State shall provide in the manner prescribed by law for those of the inhabitants that, by reason of age, infirmity, or misfortune may have claims upon the aid and sympathy of society? *Page 347
"This question was answered by the Court below in the negative.
"Fourth Question: May a municipality lawfully contract with a local Housing Authority to furnish, without cost or charge to said Housing Authority or the tenants thereof, certain municipal facilities and services including but not limited to fire, police and health protection services, garbage, trash and ash disposal, street lighting and street maintenance on public streets within the housing project and the boundaries thereof, and sewer services?
"This question was answered by the court below in the affirmative.
"Fifth Question: May a municipality lawfully contract with a local Housing Authority to maintain in good repair and working order any and all municipal utilities and facilities provided by such municipality for the use and benefit of the housing project of said Housing Authority and the tenants thereof?
"This question was answered by the Court below in the affirmative.
"Sixth Question: May a municipality lawfully contract with a local Housing Authority to maintain in good repair streets, roads, and alleys which shall be within, adjacent or leading to the boundaries of any housing project of said Housing Authority?
"This question was answered by the court below in the affirmative.
"Seventh Question: May a municipality lawfully contract with a local Housing Authority to accept for municipal purposes land which may be owned or acquired by said local Housing Authority and which said local Housing Authority may determine to use for streets and alleys within the boundaries of the housing project of said local Housing *Page 348 Authority or for the purpose of providing ingress thereto and egress therefrom?
"This question was answered by the court below in the affirmative.
"Eighth Question: May a municipality lawfully contract with a local Housing Authority to plan or replan, zone or rezone to an appropriate site and neighborhood classification, any area within said municipality within which any housing project shall be located, to the extent that the Housing Authority finds that such action is necessary in the development of said housing project, and that such action shall be taken by the municipality within a reasonable time after receipt of a written request therefor from the Housing Authority?
"This question was answered by the court below in the affirmative.
"Ninth Question: May a municipality lawfully contract with a local Housing Authority to vacate and close any streets, roads, roadways, alleys, sidewalks or other places located in the area of any housing project or adjacent thereto, to the extent that the Housing Authority finds that such action is necessary in the development of said housing project, and that such action is necessary in the development of said housing project, and that such action shall be taken by the municipality within a reasonable time after receipt of a written request therefor from the Housing Authority?
"This question was answered by the court below in the affirmative.
"Tenth Question: May a municipality lawfully contract with a local Housing Authority to furnish, dedicate, pave, install, grade, or regrade, plan or replan any streets, roads, roadways, alleys, sidewalks, or other places located in the area of any housing project or adjacent thereto and which *Page 349 the said Housing Authority shall find to be necessary to the development of such project, and that such facilities shall be furnished and such work performed by the municipality within a reasonable time after receipt of a written request therefor from the Housing Authority?
"This question was answered by the court below in the affirmative.
"Eleventh Question: May a municipality lawfully contract with a local Housing Authority to make such exceptions from the municipality's building regulations and ordinances as may be found by the Housing Authority to be necessary in the development of the housing projects of the Housing Authority?
"This question was answered by the court below in the affirmative.
"Twelfth Question: May a municipality obligate itself by contract with a local Housing Authority to eliminate unsafe or unsanitary dwelling units within the municipality of a number at least equivalent to the number of new dwelling units to be provided in the low-rent housing projects to be undertaken by the Housing Authority not to exceed one hundred thirty-five (135) in number within the municipality, and that for the purpose of such agreement a dwelling unit shall be considered unsafe or unsanitary whenever by reason of dilapidation, faulty arrangement or design, lack of ventilation, light or sanitation, or any combination of those factors, it is detrimental to safety, health, or morals, and further that such elimination of said dwelling units shall occur within one year after the date of the physical completion of the housing project?
"This question was answered by the court below in the affirmative."
The questions thus presented are all serious and important *Page 350 questions. All of them were in effect answered in the affirmative by the court below. All of these questions have raised serious doubts in my mind as to the validity of these two legislative Acts. But it seems clear to me that the seventh, eighth, ninth, tenth, eleventh and twelfth questions should have been answered by the court below in the negative instead of in the affirmative.
Without taking the time to express my views at length, I direct attention to the following authorities: Brown v. City of Lakeland, 61 Fla. 508, 54 So. 716; State v. Greer, 88 Fla. 249,102 So. 739; State v. Barnes, 24 Fla. 29, 3 So. 433; Advisory Opinion for Governor, 13 Fla. 687; In re Opinion of the Justices, 211 Mass. 624, 98 N.E. 611, 42 L.R.A. N. S. 221; Arkansas-Missouri Power Co. v. City of Rennett, 78 F.2d 911; 11 Am. Jur. 1075, 1018-1020, Maxcy v. Mayo, 103 Fla. 552,139 So. 121; Preface to Tiedemen's Limitations of the Police Power, 61 C. J. 135, Sec. 66; 26 Rawle C. L. 73, Sec. 51; Cooley on Taxation, 4th Ed., Vol. 1, 663; 26 Rawle C. L. 72-74; Sec. 5 of Art. IX, Constitution of Florida. The weight of authority in this country is that the discretion to exercise or not to exercise the police power or other purely governmental functions cannot be delegated, nor contracted away, by a municipality; nor can authority to do so be conferred by the Legislature. See 43 C. J., 240-241, 19 Rawle C. L. 797; 43 C. J. 211, Sec. 213; 44 C. J. 928-929; McQuillin on Munic. Corp., Vol. 3, Sec. 935; 12 C. J. 912, Sec. 423; 11 Am. Jur. 983, Sec. 254; Cooley's Constitutional Limitation, 8th Ed., Vol. 1, page 579; 12 C. J. 1116, Sce. 833; 3 McQuillin Munic. Corp., Sec. 1271-1272; City of Jacksonville v. Ledwith, 26 Fla. 163,7 So. 885; Florida East Coast Ry. Co. v. City of Miami, 76 Fla. 277,79 So. 682; State v. St. Poul M. N. Ry. Co., 208 U.S. 583, 52 L. Ed. 630.
A consideration of these authorities has convinced me *Page 351 that the so-called "equivalent elimination agreement" and co-operation agreement, as described but not set out in the bill, are clearly ultra vires and unconstitutional. A city cannot contract away its governmental or police powers.
I think therefore that the decree of the court below should be reversed.