(dissenting) — We are unable to concur in the opinion and judgment of the court. Any action whatever on the part of the county, by attempted contract with the city, by continued practice, or for any other show of reason to maintain or operate the bridge was altogether beyond its power. In such cases the rule is well stated in that portion of Wendel v. Spokane County, 27 Wash. 121, 67 Pac. 676, 91 Am. St. 825, quoted in the majority opinion, which we take occasion to repeat, as follows:
“In discussing the liability of municipal corporations for acts committed by their officers which are defended on the ground of the same being ultra vires, *27we must not lose sight of the distinction which exists between acts which are absolutely ultra vires by reason of the corporation having no authority to act on the subject-matter — it being wholly beyond the scope of its powers — and those acts which in a sense are termed ultra vires, where the body has jurisdiction of the subject-matter, but, in the execution of its authority, trespasses upon the rights of others. In the first instance it is conceded by all authority that the corporation is not liable, and in the second, by almost universal modern authority, that it is; . .
See, also, Dillon, Municipal Corporations (5th ed.), vol. 4, p. 2868.
The same is true as to torts or wrongful acts not resting upon contract. Dillon, Municipal Corporations (5th ed.), vol. 4, § 1649, p. 2871.
One other general and uniform rule is that in the absence of specific authority to the contrary from the law-making power two municipal corporations cannot have jurisdiction and control'at one time of the same subject-matter in the same territory.
The case of Taake v. Seattle, 16 Wash. 90, 47 Pac. 220, is not in point. That case involved liability of a city for a defective street not owned but maintained by the city, the maintenance of streets and highways being among the general powers of the city, and held out to the public as a public street and highway. Under all the authorities a city under such circumstances would be held so liable.
As we read the opinion the court seeks to justify its judgment and conclusion by reference to certain statutes of 1901 and subsequent years and an interpretation of them which seems to us to be unwarranted. The decision rests in part on § 6516, Rem. Comp. Stat. [P. C. § 534], ch. 70, Laws of 1901, p. 120, as amended by the Laws of 1909, p. 229, as follows:
*28“Any county within the state of Washington, by and through its county commissioners, and any city or town, by and through its legislative body [and the state of Washington], or any two of such bodies, be, and they are hereby authorized to join in paying for the construction of any bridge, trestle, or any structure which crosses any stream or body of water, when such bridge is a connection between any street or county road, or is a connection between any streets that form connections with county roads, when such stream or body of water is within or partly within such city or town: . .
That statute, in our opinion, has no application here other than to show that the legislature recognized the general rule that it was necessary to confer power upon a county to join in paying for the construction of a bridge or structure across a stream or body of water lying within or partly within a city in order that the county might have and exercise such power. Otherwise it is not helpful here because it has to do with the paying for a bridge, which is a very different thing from conferring power on a county to maintain, control and operate a bridge or structure across any stream or body of water lying within or partly within a city. But, it is argued that, if that law were insufficient to confer the power to maintain and operate in such cases, the matter was set at rest in favor of that power by ch. 56, Laws of 1913, p. 168 (Bern. Comp. Stat., §6524). In our opinion that act has no application to this case. Section 1 of it may be quoted. It reads as follows:
“The state of Washington and all counties, cities or towns within the state are hereby authorized and empowered to join with each other or to aid the state of Washington, the federal government, or any adjoining county, city or town in this state, or to jointly or separately join with any adjoining state, county, city or town in the purchase, construction, control, *29operation and maintenance of any bridge or bridges over or across any river, stream or body of water being within or constituting the boundary line of the state or of any county therein. ’ ’
That is a general law which was passed primarily to authorize the bridging of the Columbia river at Vancouver, but sufficient, of course, for all other interstate bridges, and to cover other situations where a stream or other body of water to be bridged constitutes a boundary line between counties whether all or only a part of the river, stream or body of water is situate in one county. To make that section applicable to the situation at Kelso it would be necessary for the purpose of so construing it to add to the language of the section the words “or being within the territorial limits of any city within this state. ’ ’ Such words the legislature studiously avoided using, in keeping with its prior uniform course of leaving maintenance and control of all bridges and highways within the limits of cities under the undivided control of city authorities, and in harmony with the subsequent act of 1915 (Laws of 1915, p. 545) Rem. Comp. Stat., § 6413 [P. C. §6051], upon the subject of levy by county commissioners of taxes for road and bridge purposes, subdivision (b) providing that the county treasurer of each county shall remit to the city or town treasurer of each incorporated city or town within the county fifteen per cent of all money collected, etc.
"We are unable to see anything in § 6535, Rem. Comp. Stat. [P. C. § 548], being § 11 of the Laws of 1913, p. 173, that covers the situation at Kelso or that in any way broadens the scope of the act relative to places for the construction of bridges. That section simply provides, in detail, that in constructing a bridge, that is, a bridge to be located as already defined by the act, the city and county authorities shall agree *30as to the amount each shall contribute, enter into a contract for the construction of it, spend public funds thereon and if necessary may bond the county and city, etc. We think the judgment of the trial court was correct and that it should be affirmed.
Holcomb, J., concurs with Mitchet/l, J.