dissenting.
The central issue presented is this: Did defendant breach its contract with plaintiffs by refusing to enforce the provisions of the Cooperation Agreement between the defendant-Housing Authority and the City of Salem, and were plaintiffs entitled to recover damages against defendant on account of such breach?
Contrary to the majority it is my conclusion, based on an examination of the cases cited below, that (1) defendant breached its contract with plaintiffs by refusing to enforce the provisions of the Cooperation Agreement for plaintiffs’ benefit, (2) the city council had no authority to refuse to approve the conditional use permit and (3) plaintiffs were entitled to recover damages against defendant for breach of contract.
The leading case in point is State ex rel. v. City of Great Falls et al., 110 Mont 318, 100 P2d 915 (1940). Subsequently Great Falls-was cited and relied upon by the Supreme Court of California in reaching a similar *406conclusion in Housing Authority v. City of L. A., 38 Cal 2d 853, 243 P2d 515 (1952), also a mandamus case.
The most recent case in point is Cuyahoga Metropolitan Housing Auth. v. Harmody, 474 F2d 1102 (6th Cir 1973), involving the Housing Authority of the City of Cleveland, Ohio. The United States Court of Appeals, in affirming the District Court, fully approved of the reasoning of City of L. A.
In all of the above cases the city councils tried to repudiate their previous legal commitments to low-rent housing projects. In each case the court held that it could not. In the interests of brevity, only Great Falls will be discussed.
In Great Falls, as in the case at bar, the city, acting under a State Housing Authorities Law, established a city housing authority and embarked upon a low-rent housing program. Thereafter it sought to repudiate its commitments. The Montana Supreme Court affirmed the issuance of a writ of mandamus by the trial judge requiring the city council to comply with the terms of the Cooperation Agreement between the City Council and the Housing Authority. Under the agreement the council had agreed to zone or rezone property and vacate and close streets, avenues and alleys in connection with the designation and construction of housing projects under the provisions of 42 USCA § 1401 et seq (1969).
In connection with the establishment of the Great Falls Housing Authority, the Housing Authority purchased eight city blocks of property and commenced the preparation of plans and specifications for the erection of a low-rent project, and selected a developer for purposes of the project. In furtherance of the project, the Housing Authority requested that the city council vacate certain streets and alleys, and also requested that the eight-block area be rezoned in a manner appropriate for the project. The city council refused and adopted a resolution rejecting the requested zoning ordinance. In affirming, the court stated:
*407"* * * The official machinery of the municipality was merely employed to determine the necessity for the creation of the Authority and that having been done as the free act of the city council, it had no further discretionary function to perform in the premises.
* * * *
"* * * The refusal of the city council * * * to comply with the requests of the Authority to vacate the streets and re-zone the location was a useless act. * * * When the council authorized the creation of the Great Falls Authority, it assumed all the obligations involved essential to a perfected project.
* * # *
"Another question arises as to whether the writ of mandamus will lie to compel the city council to take the necessary steps to vacate and re-zone the plot pm-chased by the Housing Authority. We have heretofore said in this opinion that when the city council regularly authorized the creation of the Great Falls Housing Authority, any act or thing the council was thereafter required to do in order to bring the Housing project to completion was pmely a ministerial act imposed upon the city council, a state agency of the state government. Such being the case, mandamus will lie. This conclusion follows a long line of decisions by this court.
«* * * We rest om conclusions upon the ground that the Housing Authorities Law is a special Act and supersedes the pmely municipal statutes upon which the respondents [the City] depend, and on the further ground that the legislature in imposing the duties that are imposed upon the city council by the Housing Act is merely calling upon one of its agents, over which it has practically complete control, to aid in perfecting a state project.” 110 Mont at 327-32, 100 P2d at 920-22.
Counsel for defendant-Housing Authority in his brief attempts to distinguish the above cases from the case at bar on the facts as well as on the ground that the granting of a conditional use permit is a quasi-judicial decision.
In my view neither of counsel’s arguments holds up under scrutiny. The factual distinctions are not significant and do not change the legal principles involved. *408Further, the actions which the cities undertook to take in Great Falls and City of L. A., and then sought to disavow, were as quasi-judicial as that involved in the case at bar.
Here the city authorized the creation of the Housing Authority. The members of the city council comprised the members of the Housing Authority, and vice versa. The city officials directed plaintiffs to proceed with the project with full knowledge that plaintiffs would incur substantial development costs and other financial obligations. Plaintiffs fully performed every condition necessary to the successful completion of the Browning Avenue project. The City of Salem and the Housing Authority failed to perform their respective obligations. My reading of the above authorities has convinced me that defendant should be held liable to plaintiffs for the consequences of the breach of its obligation.
For the above reasons I respectfully dissent.