For a history of the prior “Cowlitz” litigation see State of Washington Department of Game v. Federal Power Comm. (1953), 207 F. (2d) 391 (C. A. 9th); Tacoma v. Taxpayers (1953), 43 Wn. (2d) 468, 262 P. (2d) 214; Tacoma v. Taxpayers (1957), 49 Wn. (2d) 781, 307 P. (2d) 567; and Tacoma v. Taxpayers (1958), 357 U. S. 320, 2 L. Ed. (2d) 1345, 78 S. Ct. 1209.
Suffice it to say that at this point the City of Tacoma, a municipal corporation armed with a license issued November 28, 1951, by the Federal Power Commission which authorized it to build two dams1 on the Cowlitz River2, has proceeded to erect one of the dams and is ready to proceed with the other in violation of the expressed desires of a considerable segment of the people of the state of Washington3, the will of the legislature4, and the will of the people of the state5, that no dams be built on that river more than *6825 feet in height. Ironically enough, the City of Tacoma did not go into the federal courts to secure a determination6 that its authority to proceed with the dams on the Cowlitz River, under its license from the Federal Power Commission, was unaffected by Initiative No. 25 with its prohibition of any person, including municipal corporations, from building dams more than 25 feet in height. Instead it invoked the jurisdiction of the courts of the state, whose public policy it had persistently flouted, to again give assurance to prospective bond purchasers7 that the city is em*69powered by its license from the Federal Power Commission to disregard the law of this state. The right of the city to maintain the action is unquestioned.
The court in the first Cowlitz case8, recognized that the federal government’s constitutional authority to regulate commerce and navigation gave it the right — acting through the Federal Power Commission — to issue a license to the City of Tacoma to construct dams which would be in excess of 25 feet in height (the limit imposed by the state in the exercise of its police power to preserve the fishery resources of the state).
Implicit in both the first and second9 Cowlitz cases is the holding that since the City of Tacoma was a municipality empowered to construct, maintain, and operate power facilities10, and had a license from the Federal Power Commission empowering it to construct the Mossyrock and May-field dams on the Cowlitz River, the state — even by the exercise of its police power — could not prevent the building of such dams.
The trial court, in the present case, very ably spelled this all out again in its findings, conclusions of law, and judgment.
The defendant taxpayers, the intervenor State of Washington, and the other intervening taxpayers all appeal.
The appellants now concede the federal government’s “paramount” power to determine the height of dams, but take the position on this appeal that the city is a “creature” of the state, hence subject to its control; and the state, by adopting Initiative No. 25 (see footnote 5), has divested the city of its right to proceed to build the dams.
*70This court had proceeded on a variation of that theory (and, if we may say so, a much more logical one) in the second Cowlitz case, in which we held that the city had no power to condemn property, except such as the legislature granted to it; and that it had been granted no power to condemn state property, already dedicated to a public use; in short, that the “creature” could not condemn the “creator’s” property, when the “creator” was using it for a public purpose, i.e., a fish hatchery.
The Supreme Court of the United States reversed this court11, without meeting that issue, by saying that the state and its citizens were foreclosed by the judgment in the Court of Appeals12 from litigating further the power and the authority of the City of Tacoma to proceed under its Federal Power Commission license to build the dams. The Supreme Court quoted the following language from the Court of Appeals decision12,
“ ‘. . . we conclude [13] that the state laws cannot prevent the Federal Power Commission from issuing a license or bar the licensee from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States. . . . ’ ”
We summarized the situation, with painful accuracy, when — following the reversal and remand — we entered a judgment in the second Cowlitz case, which read in part as follows:
“1. The United States has exclusive and paramount jurisdiction over navigable waters, under the commerce clause of the United States Constitution, and, therefore, any State laws are inapplicable to the Mayfield and Mossyrock [Cow-litz dams] Hydroelectric Project insofar as the same conflict with the provisions of the Federal Power Act or the terms and conditions of the appellant’s license for said project, or *71which would enable the State of Washington or any State official thereof to exercise a veto over said project, . . . ” (Italics ours.)
We would have thought that this language was sufficiently explicit to answer the present question for bond counsel, and, in the words of the United States Supreme Court in reversing this court, that attacks on the right of the City of Tacoma to proceed with the construction of these dams were “impermissible collateral attacks upon” the final judgment of the United States Court of Appeals.
Apparently the sovereign State of Washington recognized that “paramount jurisdiction” meant “paramount jurisdiction.” Despite the fact that Initiative No. 25 became effective December 8, 1960, and clearly prohibited any person, which included the City of Tacoma, from constructing or completing any dam over 25 feet in height on the Cowlitz River, the state stood by (from December 8, 1960, until June 8, 1961) while the City of Tacoma rushed the completion of the Mayfield dam (185 feet above tail water and 240 feet above bedrock) without seeking to stop what it urged in its answer as an intervenor, and now urges on this appeal, to be a violation of the initiative.
This matter comes before the courts again, not because anybody attempted to stop Tacoma’s construction of a 185-foot dam, now practically completed, but because Tacoma needed more money to construct the 325-foot Mossyrock dam. Prospective investors in Tacoma’s revenue bonds, and their timorous counsel, were apparently not certain that “paramount jurisdiction” meant “paramount jurisdiction,” so Tacoma — to reassure them — brought this declaratory judgment action (filed May 12, 1961). Not until Tacoma commenced this action was there any suggestion, implemented by legal action, that Tacoma should be enjoined from violating Initiative No. 25.
The trial court, by its judgment, gave the necessary reassurance to the prospective investors and their counsel: That the federal government still had “paramount jurisdiction” over navigable streams, despite the passage of Initia*72tive No. 25 by the voters of the state. We quote, approvingly, three conclusions of law made by the trial court:
“Congress had the constitutional power to enact the Federal Power Act, and in so doing it intended to exercise its full jurisdiction to authorize the Federal Power Commission to supersede state laws purporting to prohibit or limit the construction of dams on navigable streams. By passing the act, Congress preempted the entire field and authorized the Power Commission to issue licenses for such construction upon such conditions as it deemed proper, and the Federal Power Commission, in issuing its license to the Plaintiff [city of Tacoma], exercised that right and delegated to the Plaintiff, its licensee, as its agent and the agent of the Federal Government, the right and power to complete and to thereafter operate the Cowlitz Project in accordance with the terms and conditions of its license.” (Conclusion of Law VIII)
“There are no state laws, measures or regulations, including Initiative 25 (Chapter 4, Laws of 1961) that limit, control or affect in any way, or that bar the rights of the Plaintiff to finance, construct, complete and operate the Cowlitz Project under the provisions of the Federal Power Act and in accordance with the terms and conditions of its Federal Power License (Project No. 2016.)” (Conclusion of Law IX)
“The United States has exclusive and paramount jurisdiction over navigable waters under the commerce clause of the United States Constitution and under the supremacy clauses of the United States and Washington State Constitutions, and, therefore, any state laws, measures or regulations, whether such laws be in the form of prohibitions or curtailment or limitation of powers, or in any other form, are inapplicable to the Mayfield and Mossyrock hydroelectric project insofar as the same are in conflict with the provisions of the Federal Power Act or the terms and conditions of Plaintiff’s license for said project or which would enable the State of Washington or any State official thereof or the citizen voters to exercise a veto over said project.” (Conclusion of Law X)
We agree, as heretofore indicated, that the decision of the United States Court of Appeals (see footnote 12) was res judicata of the issues raised. We agree, for the further reasons indicated in the foregoing conclusions of law, that *73the trial court properly dismissed the cross-complaints, which challenged the right of the City of Tacoma to proceed under its license to construct the Cowlitz project and erect the Mayfield and Mossyrock dams, as provided in that license.
However, we do not agree with the trial court’s further conclusion that Initiative No. 25 is unconstitutional. It is a constitutional exercise of the state’s police power to protect its fishery resources, and valid except to the extent that it is superseded by the exercised “paramount jurisdiction” of the United States with reference to the Cowlitz project. There are, doubtless, nonnavigable streams tributary to the Columbia River14 below the McNary dam where the initiative could be effective; and, perhaps, navigable streams where it could be enforced until such time as the federal government should choose to exercise its “paramount jurisdiction” or “dominant servitude.”15
We go no further than to hold that Initiative No. 25 is superseded and is inoperative when it comes into conflict with the exercised “paramount jurisdiction” of the United States to determine who shall build dams on navigable streams and at what heights.
Within the limitations indicated, the judgment of the trial court — that Initiative No. 25 did not in any way affect the right or authority of the City of Tacoma, under its license from the Federal Power Commission, to proceed with the Cowlitz project and to erect and operate the Mossyrock and Mayfield dams in accordance with such license — is affirmed.
Weaver, Foster, Hunter and Hamilton, JJ., concur.
Mossyrock (to be 325 feet above tail water and 510 feet above bedrock) , and Mayfield (to be 185 feet above tail water and 240 feet above bedrock).
A navigable stream, but which for its entire course is within the state of Washington.
The Attorney General of the State of Washington, representing the State Game Department, appeared in opposition to the issuance of the permit to build the dams and, together with the Washington State Sportsmen’s Council, petitioned for the review of the license by the Court of Appeals (207 F. (2d) 391).
Laws of 1949, chapter 9, p. 38, “An Act relating to the protection of anadromous fish life in the rivers and streams tributary to the lower Columbia River,” which prohibited the erection of dams over 25 feet in height in all streams and rivers tributary to the Columbia River downstream from McNary Dam; and reserved such streams as an anadromous fish sanctuary against undue industrial development.
Initiative No. 25, adopted by the people of the state of Washington at the November election in 1960, effective December 8, 1960 (Laws *68of 1961, chapter 4), which sought to accomplish the same purpose as Laws of 1949, chapter 9, by prohibiting any person from erecting any dam over 25 feet high in any of the streams referred to in that act and defining “person” to include a municipal corporation.
We quote § 1 of the initiative:
“For the purpose of conserving the State’s fishery resources the powers of any person authorized to construct or operate dams or to appropriate water in the State are hereby limited in that no such person shall construct, complete or operate, either for himself or as an agent or independent contractor for another, any dam or other obstruction over 25 feet high on any tributary stream of the Columbia River downstream from McNary Dam, including the Cowlitz River and its tributaries, within the migration range of anadromous fish as jointly determined by the Directors of Fisheries and Game, . . . nor shall any such person obtain or use a federal license for such purpose. ...” (Italics ours.)
Tacoma could have maintained such an action. See Ex parte Young (1908), 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. See extensive annotation entitled “What actions arise under the Constitution of the United States so as to vest jurisdiction of Federal Courts” (1950), 13 A.L.R. (2d) 390 to 611.
In Doud v. Hodge (1956), 350 U. S. 485, 100 L. Ed. 577, 76 S. Ct. 491, it is held that a three-judge federal district court has jurisdiction under 28 U.S.C. §§ 1331, 2281 and 2284 of a suit in equity to enjoin enforcement of a state statute on grounds of alleged repugnancy to the federal constitution, even though the state courts have not yet rendered a clear or definitive decision as to the meaning or federal constitutionality of the statute.
See also Florida Lime & Avocado Growers v. Jacobsen (1960), 362 U. S. 73, 4 L. Ed. (2d) 568, 80 S. Ct. 568 (with annotation pp. 1931 to 1965).
The present action is a declaratory judgment action brought by the City of Tacoma under the provisions of RCW 7.24 and 7.25 for the purpose of determining the right of the city — in view of the enactment of Initiative No. 25 — -to issue and sell its revenue bonds for the completion of the Cowlitz project.
43 Wn. (2d) 468, 262 P. (2d) 214.
49 Wn. (2d) 781, 307 P. (2d) 567.
RCW 35.92.050 empowers the cities of the state to “. . . construct, condemn and purchase, purchase, acquire, add to, maintain and operate works, plants, facilities for the purpose of furnishing the city or town and its inhabitants, and any other persons, with gas, electricity, and other means of power and facilities for lighting, heating, fuel, and power purposes, public and private, with full authority to regulate and control tb e use, distribution, and price thereof, ...”
Tacoma v. Taxpayers (1958), 357 U. S. 320, 2 L. Ed. (2d) 1345, 78 S. Ct. 1209.
State of Washington Department of Game v. Federal Power Comm. (1953), 207 F. (2d) 391 (C.A. 9th), cert. den. 347 U. S. 936, 98 L. Ed. 1087, 74 S. Ct. 626 (1954).
This conclusion was based on: First Iowa Hydro-Electric Coop. v. Federal Power Comm. (1946), 328 U. S. 152, 90 L. Ed. 1143, 66 S. Ct. 906.
For a decision relative to state rights on nonnavigable streams tributary to the Columbia River, see Federal Power Comm. v. Oregon (1955), 349 U. S. 435, 99 L. Ed. 1215, 75 S. Ct. 832.
Federal Power Comm. v. Niagara Mohawk Power Corp. (1954), 347 U. S. 239, 98 L. Ed. 666, 74 S. Ct. 487.