This is a motion for rehearing of the decision of this Court which held, one judge dissenting, that the judgment of the trial court should be reversed, 5 Cir., 251 F.2d 583. The question presented on the appeal is the validity of an agreement entered into in 1925 by which the Drainage District agreed to save the Railroad harmless “from all loss, damage, cost and expense which the Railway may sustain, resulting from loss, injury or damage * * * growing in any manner out of the installation, presence, operation, maintenance or removal of” culverts which the railroad gave the district a license, cancellable by the railroad upon 30 days’ notice, to install beneath its trackage on its right of way.
On this motion the Drainage District strongly urges that such a state taxing unit cannot by contract bind itself to an obligation to respond for its acts injuring the appellant if it is not liable for such acts in absence of contract.
In considering a case such as this it must be borne in mind that the de*623fense of the Drainage District carries with it none of the moral stigma which attaches to the repudiation by persons sui juris of their contractual obligations. If the district is by law incapable of binding itself in this manner it is because of an overriding public policy, and moreover it is or should be as apparent to the other party to the contract as to the court which announces the principle. It is, after all, one of the oldest concepts in our system of government that the sovereign cannot be sued without its consent. This principle was succinctly stated by the United States Supreme Court in Kawananakoa v. Polyblank, 205 U.S. 349, 27 S.Ct. 526, 51 L.Ed. 834:
“A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” 205 U.S. 349, 353, 27 S.Ct. 526, 527.
Upon careful consideration we think our previous decision too greatly emphasized the power of the district to contract for the right to traverse the railroad’s right of way and ignored the critical fact that the contract here made to acquire that right embodied an agreement that may have been against public policy.
As we said in our original opinion, all are agreed that the Florida law is explicit that a drainage district created by Florida statute may not be made answerable for its torts. Arundel Corp. v. Griffin, 89 Fla. 128, 103 So. 422; Rabin v. Lake Worth Drainage Dist., Fla., 82 So.2d 353, certiorari denied 350 U.S. 958, 76 S.Ct. 348, 100 L.Ed. 833. Even though in the latter ease the effort to hold the district was on the theory of an illegal taking of the plaintiff’s property the Supreme Court of Florida recognized that the damage arose in tort and said:
“The General Drainage District Act, Chapter 298, Florida Statutes, F.S.A., authorizes the levying of taxes for specific purposes stipulated in the Act. These are limited strictly to the improvement and maintenance of the drainage district and the taxing power of the Board of Supervisors cannot be exercised for any other purpose — general or special. See Campbell v. State, 133 Fla. 638, 183 So. 340. To this extent it can safely be concluded that it was not contemplated by the Legislature that a drainage district organized under the Act could be compelled to respond in damages for a tort or forced to levy taxes for this purpose.” Rabin v. Lake Worth Drainage District, Fla., 82 So.2d 353, 356.
The State of Florida has a valid interest in protecting its taxpayers and citizens through public bodies such as this drainage district from certain liabilities. In determining for what purposes the taxes paid shall be put, the state has undertaken through statute and court decisions to balance the interests of individuals dealing with the districts on the one hand and the taxpayers acting through the public bodies on the other. The statutes, in light of the decided cases, give the district the power only to levy taxes for specific purposes and those purposes are limited to the improvement and maintenance of the drainage district. The District does have the power to acquire land or the use of it by purchase, but the issue is whether it can agree to pay for such purchase by a means which is contrary to the policy of the state.
Certainly the district could pay money or other valuable consideration, so long as the consideration is not one that is itself illegal. Since the district could not be liable by law in tort for its negligence or vicariously for that of others, it should not be allowed to accept such liability merely because accepting it is consideration for the acquisition of a valuable right. To hold otherwise would be to permit the district to negate a policy the state has established for the protection of its citizens by permitting the district to assume a liability or purpose *624for which the taxpayer’s money is to go when the legislature and the courts of Florida have said that such money must not go for that purpose.
The Florida Supreme Court has held in several cases that the fact that a taxing unit has attempted to obligate itself to use tax money in a way not otherwise authorized by making a contract that is beneficial to the taxing unit does not justify the otherwise illegal expenditure of tax funds. State, ex rel. Davis v. Jumper Creek Drainage District, 153 Fla. 451, 14 So.2d 900; National Bank of Jacksonville v. Duval County, 45 Fla. 496, 34 So. 894; Brumby v. City of Clearwater, 108 Fla. 633, 149 So. 203.
We conclude that the indemnity agreement in the contract was void and may not be enforced.
The conclusion we now reach is, we think, also in accord with the weight of authority in other jurisdictions. Nashville v. Sutherland, 92 Tenn. 335, 21 S.W. 674, 19 L.R.A. 619; Becker v. Keokuk Water-Works, 79 Iowa 419, 44 N.W. 694; Vaughtman v. Town 14 Ind.App. 649, 43 N.E. 476; Wheeler v. City of Sault Ste. Marie, 164 Mich. 338, 129 N.W. 685, 35 L.R.A.,N.S„ 547; Adams v. City of New Haven, 131 Conn. 552, 41 A.2d 111; Nashville Trust Co. v. City of Nashville, 182 Tenn. 545, 188 S.W.2d 342.
The motion for rehearing is granted; the decision and opinion of this Court heretofore entered are withdrawn and set aside and the judgment of the trial court is affirmed.