I dissent.
It is a fundamental principle of law that a municipality may not contract away its legislative functions without authority from a competent superior power. Here the Legislature has authorized a municipality in this state to surrender certain legislative discretion with reference to public housing to the will of a housing authority of .that city. This may be done on certain conditions which are: that the housing authority be first created by the city; and secondly, that a contract of cooperation be entered into between the housing authority and the city with reference to public housing. Those conditions have long since been met in this case; and it has been established by prior decisions of this court that the city has thereby surrendered its legislative discretion to the city housing authority in matters concerning which it is competent for the housing authority to proceed, and that it is the duty of the city to cooperate with the housing authority concerning such matters.
*698But it is not the law and it cannot rightly be held that the city may be compelled to cooperate with the housing authority in matters concerning which it is beyond the power of the housing authority to undertake. That is what the majority opinion is directing the city to do. The city housing authority has no jurisdiction to conduct housing operations outside of the limits of the city, whether the territory be large or small. The jurisdiction in that territory, under the statute, is within the exclusive jurisdiction of the existing county housing authority. That authority is not a party to this proceeding and its jurisdiction over the territory sought to be annexed cannot, under these circumstances, be taken away by the conduct of the city or of the city housing authority on any theory. Estoppel does not reach it. That theory is a false quantity in this case. .It is an equitable doctrine available only to a party who is in a position to rely upon and assert it. It cannot be employed in this ease as a means to confer jurisdiction on the city housing authority to operate in county territory; a power which is denied to it by the statute and is therefore wholly lacking.
What the majority is here doing is to compel the city to surrender its legislative power to decide whether or not to annex county territory (a conceded legislative power) to the discretion of the city housing authority in a matter over which that housing authority has no jurisdiction. This it should not be required to do. The cooperation of the city in this particular matter should come only from the voluntary action of the city in the exercise of its still retained and unsurrendered legislative discretion and power to annex contiguous unincorporated territory.
The question presented in this case is of great importance in the conduct of public housing operations in this state and I am disposed to elaborate rather fully on my views concerning it.
As indicated in the majority opinion this is a proceeding to have it adjudged that the members of the City Council of the City of Los Angeles are in contempt for their alleged failure to comply with the provisions of a peremptory writ of mandate issued by this court on June 27, 1952. The history of the controversy is contained in the opinion filed April 28, 1952 (38 Cal.2d 853 [243 P.2d 515]; certiorari denied Oct. 13, 1952, 344 U.S. 836 [73 S.Ct. 46, 97 L.Ed. 41]). The proceeding in which that opinion was filed and the per*699emptory writ was issued will be referred to as the mandate proceeding.
The purpose of the mandate proceeding was to test the validity of the city’s action of December 26, 1951, attempting to abrogate, cancel and rescind the agreements authorized by Ordinance No. 95,222 adopted on August 8, 1949. That ordinance indicated the approval by the city of the construction of a 10,000-unit low-rent housing project in cooperation with the housing authority of the city and the Public Housing Administration of the United States pursuant to the State Housing Authorities Law and Housing Cooperation Law (Health & Saf. Code, §§ 34200 et seq. and 34500 et seq.). In that proceeding the housing authority successfully sought to have this court declare invalid the attempted withdrawal of the city’s approval of the project and the attempted cancellation of agreements, and to compel the city to perform the acts required by the cooperation and other agreements entered into by it with the housing authority for carrying out the contemplated project.
In the mandate proceeding this court determined that since the city had approved the project, and the housing authority and the Public Housing Administration had made binding contractual commitments and advances in respect to the project the city was without power, in the absence of express statutory authority, to withdraw its approval or to abrogate its agreements, but was under the statutory duty to perform them. In summarizing the duty enjoined by the statute upon the city it was said (38 Cal.2d at p. 871) : “It is concluded that the law enjoins upon the city the duty to perform the terms of the agreements entered into with the housing authority and to go forward with the exercise of the powers which it has agreed to undertake in cooperating with that authority. On this record a direction that the city so proceed will afford the relief expedient to accomplish the purpose of the proceeding. It is of no concern that the mandate does not issue directing the specific powers to be exercised—since in many respects the details thereof are subject to the discretionary cooperative action of the city. The city does not contend that it will not go forward with the performance of the contracts if under the law it had no right or power to rescind the approval of the project or to cancel and abrogate the agreements.” Thereupon the order of the court required the issuance of a writ of mandate “directing the respondents to perform the terms of the agree*700ments entered into with, the petitioner and to proceed in the fulfillment of its obligations thereunder.”
In the present proceeding the housing authority alleged various particulars as to which it was claimed the city had agreed to take action and as to which it had failed and refused to proceed, all in violation of this court’s order in the mandate proceeding. An order was issued directing the individual members of the city council to show cause why they should not be adjudged in contempt of this court for failing, neglecting and refusing to obey the peremptory writ of mandate issued on June 27, 1952, wherein they were ordered and commanded to perform.the terms of the agreements entered into with the housing authority and to proceed in the fulfillment of their obligations thereunder.
It is at once apparent that the basis for any charge and finding of contempt herein must be the failure and refusal of the city to perform an act which under the statute it may lawfully agree to perform and which by agreement it has bound itself to perform in the cooperative undertaking. On the return to the order to show cause it was stipulated that the city had completed performance of a separate written agreement to acquire and convey to the housing authority tax-deeded lands within the 11 sites selected for the construction of the project; and had vacated and closed streets and alleys in those areas as provided in the cooperation agreement. The only charge remaining to be considered on the return is the alleged failure of the city to complete annexation proceedings for the purpose of including in the site selected for the West Los Angeles (Cal. 4-21) project a county strip entirely surrounded by incorporated territory—a so-called unincorporated or county “island.” As alleged good cause why it should not be compelled to complete the annexation proceeding the city council contends that the authority has no power to proceed in respect to unincorporated territory; that the statute does not authorize, nor has the city entered into an agreement for the annexation of unincorporated territory, and that the acts of the city council with reference to the annexation thereof commenced heretofore may not be held to estop the city from denying such authorization or agreement.
The facts relating to the alleged failure to complete the proceeding to annex the county “island” in the West Los Angeles (Cal. 4-21) project, are stipulated. The record shows the following undisputed facts:
*701As noted, Ordinance No. 95,222 approving the 10,000-unit low-rent housing project was adopted on August 8, 1949. Prior to that time, and from 1938, there existed and there still exists both a Housing Authority of the City of Los Angeles and a Housing Authority of the County of Los Angeles. In the cooperation agreement approved by the ordinance, the Housing Authority of the City of Los Angeles agreed to undertake, develop and administer the low rent housing project on sites to be selected by the authority in the city of Los Angeles. The city agreed to cooperate with the authority by vacating streets, by accepting dedication of land for new streets, by zoning or rezoning areas to appropriate classifications, and “by such other lawful action or ways as the Authority may find necessary in connection with the development and construction of the Projects.”
On August 17, 1950, the housing authority advised the city council concerning the sites that had been selected, with tentative names of each site including the West Los Angeles area, (Project Cal. 4-21). Project site maps accompanied the letter, but the map of the West Los Angeles area did not designate the strip in controversy as county territory. On November 16, 1950, in a letter to the Veterans’ Affairs and Housing Committee the housing authority requested that its proposal to acquire the land indicated in the selected sites be approved by the city council. The map of Cal.4-21 project accompanying this letter showed the 43-acre project bisected by a strip of unincorporated territory comprising about six acres, or as stipulated a strip approximately 150 feet wide by 1,200 feet long.
On November 22, 1950, the city council approved and adopted a report of its Veterans’ Affairs and Housing Committee concerning the 11 proposed sites. The report recommended approval of the authority’s proposal to acquire the sites conditioned on the awareness that cooperative action affecting construction, planning, zoning, and the opening and closing of streets would be involved. In April, 1951, when the authority was in the process of acquiring land in the site, it applied to the city planning commission for conditional use permits. For the first time a surveyor’s legal description of the West Los Angeles site boundaries expressly delineated the project as lying partly in unincorporated territory of the county and partly within the city. The accompanying architectural plans showed 62 residential buildings, four of which *702were to be wholly located in the unincorporated strip and six partly so. A copy of the housing authority’s development program for that project for submission to the United States Public Housing Administration also accompanied the application. In that program it was stated by the housing authority that the proposed West Los Angeles site was situated around a small county slum area in a strip containing four parcels which should not be difficult to acquire and annex to the city. On June 26, 1951, the planning commission granted the application for the conditional use permit. In subsequent private negotiations consummated on September 12, 1951, the authority acquired the title to the four parcels and now holds the strip as uninhabited county territory.
On September 14, 1951, the authority requested the city council to take proceedings on its own motion to annex the county strip. In doing so the authority expressly invoked the language of the cooperation agreement whereby the city agreed to cooperate with the authority “by such other lawful action or ways as the Authority may find necessary in connection with the development and construction of the project.” On September 20th, the council referred the request to the city coordinating board, which in turn received reports from various city departments. The coordinating board reported back to the council on October 11, 1951, recommending annexation of the county strip. The council on October 24, 1951, referred the authority’s request to its planning committee, which on the same day reported back to the council. On November 8,1951, the boundary commissioin of the county approved a description of the county strip. On November 14th the council adopted the planning committee report which recommended (1) annexation as conformable to the city’s policy of absorbing “county islands” to create a more regular city boundary line; and (2) that the city attorney be instructed to present the necessary resolution of intention pursuant to the Annexation of Uninhabited Territory Act of 1939. The city attorney prepared the draft of a resolution which was presented to the city planning commission and approved by it on November 29, 1951. On December 4th, the city attorney transmitted the draft to the city council which in turn referred it to its planning committee.
As shown in the opinion filed in the mandate proceeding, the city council attempted to withdraw the approval of and to abrogate the various agreements relating to, the housing *703projects covered by Ordinance 95,222; and the question of the city’s power to do so was litigated to the ultimate determination indicated. Thereupon, on July 21, 1952, at the request of the city council, the resolution of intention in the annexation proceeding was reported out of the council’s planning committee and its adoption moved. The motion failed of passage. On July 22d, the council voted to reconsider its action. A motion to postpone action to August 1, 1952, was adopted by a majority vote of eight. On August 1st, there was no quorum. On August 4th, with a quorum present, a motion to approve the resolution failed of passage. On August 5th, the council again reconsidered its action and a motion to postpone to August 15th was adopted by the vote of eight councilmen. On August 15th the council, with a full membership present, amended the resolution to include a change in the hearing date and unanimously adopted it as amended. A public hearing was held on September 19, 1952. No one protested the matter and the city attorney was directed to prepare an ordinance approving the annexation. On September 25, 1952, the ordinance was introduced for adoption. The required vote failed. On October 2d, a motion for adoption again failed of passage. A motion carried to continue consideration to October 16, 1952. On the latter date, by the vote of eight councilmen, a motion was adopted to continue the matter to October 20th. There was no quorum on October 20th, and on October 21st the matter by the same vote was continued to November 10th.
On November 6, 1952, the city made its return to the order to show cause in this contempt proceeding. The issues are submitted on the return, the record including the stipulated facts, and the arguments and briefs of the parties.
The contention that neither the authority nor the city had any extraterritorial power and that the city housing authority may not operate in county territory is unquestionably correct. In fact, the parties concede that the city housing authority may not develop any portion of the project construction program in county territory in the circumstances of the present case.
Both the authority and the city, in relation to low-rent housing project developments, are governed by the Housing Authorities Law and the Housing Cooperation Law. Under ' the statutes they are operating as arms of the state in a matter of state-wide concern. This status and the controlling effect of the statutes were settled by this court’s decision in the *704mandate proceeding. There it was said (38 Cal.2d at p. 862): “Bach functioning body, the city and the housing authority, is a separate body politic vested with specific duties and powers under the Housing Authorities Law and Housing Cooperation Law to effect a state objective. Neither is functioning independently of that state law. In pursuing the state objective each is governed by the state law and neither may exercise powers not vested or recognized by that law. The city and the housing authority function as administrative arms of the state in pursuing the state concern and effecting the legislative objective. . . . Upon the formation of the housing authority the state law thereupon and thereafter controlled the city and the housing authority and no other law concerning the acquisition, operation or disposition of property is applicable to the authority except as specifically provided. (Health & Saf. Code, § 34320.) . . . [The city] having approved a project and entered into a cooperation agreement, there was nothing left to be done by either contracting party but to perform administratively whatever was necessary to carry the agreement into effect. (Kleiber v. City & County of San Francisco, supra, 18 Cal.2d 718, 724 [117 P.2d 657]; Housing Authority v. Superior Court, supra, 35 Cal.2d 550, 558 [219 P.2d 457].)”
True, as the text continues, the city may not refuse to cooperate in the ways that the statute and the agreements require. But this is not to say that either the statute or the cooperation agreement requires the city to cooperate with reference to an operation by the city housing authority in territory outside of the city which the authority had no power to initiate.
Section 34208 of the Health and Safety Code defines the “area of operation” of a city authority and a county authority. That section provides that the “area of operation” of a city authority does not include any area which lies within the unincorporated area of any county for which an authority has been authorized to transact business. At all times here involved the Los Angeles County Housing Authority has been and is in existence and authorized to transact business. By section 34209, the “area of operation” by a county authority includes all of the county except the area within the territorial boundaries of any city for which an authority has been authorized to transact business. In the absence of a county authority, the “area of operation” of a city housing authority includes the city and the area within five miles of its territorial bound*705aries. Thus it may be assumed that if there were no county authority annexation would be unnecessary to give jurisdiction to the city housing authority to initiate operations in the county strip in question.
It must be clearly apparent that the powers given in the matter of cooperation relate, as specified in section 34509 of the Health and Safety Code, to “housing projects located within the area” in which the public body is authorized to act under the statute. As bearing on the city’s duty to annex territory the housing authority relies on section 34514. That section provides that any city “may change its map.” But since there is neither power nor requirement that the housing authority operate outside the territorial confines of the city but in fact is prohibited from doing so, the provision does not imply a duty to annex territory as cooperation on the part of the city.
It was made clear in the opinion filed in the mandate proceeding that the city may agree to conduct authorized proceedings involving the legislative function, such as for the opening and closing of streets within the city, which may be necessary or desirable in the completion of a project, and that such authorized proceeding, pursuant to agreement come within the category of the administrative acts indicated by the statute as desirable in the consummation of the state objective. (See Op., 38 Cal.2d at p. 868.)
The housing authority contends that the city has made an agreement to annex such county territory as the authority finds necessary for inclusion in the city housing project. The authority points to the quoted language of the cooperation agreement whereby the city agreed to cooperate “by such other lawful action or ways as the Authority may find necessary in connection with the development and construction of the project.” This provision in the agreement refers to matters as to which the authority may lawfully make the decision of desirability or necessity. Here the matter of including county territory in a city housing project is in the first instance a question for submission to the city council for its determination as to necessity or desirability. The authority may not be deemed to have the power of direction to the city council as to what territory should be annexed to the city. Nor in any event may the city by agreement surrender that power in the absence of express statutory authorization. If as here a county authority is in existence, that authority has *706.jurisdiction in the county territory. And the city is the body to determine in this instance, as in the initial determination of the necessity for a city housing authority, what territory should be added to the city for the purpose of the operations of the city housing authority. The court will not read into the statute an implied surrender of the city power to make the determination of desirability for the annexation. Since the statute does not authorize such surrender, the question of contractual obligation becomes immaterial. It follows that since the city does not have the power to surrender its discretion in the matter involved, and the authority does not have the right to make the determination for the city, there can be no conduct on the part of the city which will confer either.
The case of Times-Mirror Co. v. Superior Court, 3 Cal.2d 309 [44 P.2d 547], is inapplicable. In that case both the private corporation and the city of Los Angeles were performing acts within their respective rights and powers. Here we are concerned with two public bodies, each of which is controlled by express statutory provisions as to the powers and rights which each may exercise. There is no injury to the authority by the claimed deprivation of a right which it does not have, and which in fact the city could not confer under the statute. There is no justice nor equity in favor of the authority within the meaning of the decisions upon which it relies. Estoppel may not be invoked when the statute is the measure of the power. (County of San Diego v. California Water Etc. Co., 30 Cal.2d 817, 822 [186 P.2d 124, 175 A.L.R. 747].) As in the cited case, there is in this instance no appropriate statutory authority pursuant to which an agreement as invoked by the authority could be made by the city. Consequently no legal duty of annexation has arisen. Whatever action has been taken by the city departments and the city council in connection with the proposed annexation must be deemed to be no more than acts in the determination that annexation might be desirable and should be accomplished.
In my opinion this court has no proper function to perform in the present proceeding either to direct the city council to cooperate by annexing the territory designated by the housing authority, or to hold the members of the city council in contempt for not so cooperating. I would dismiss the proceeding.
Edmonds, J., concurred.