(concurring in the result)- — -My reasons for affirming the trial court’s judgment are stated in the majority opinion in the first Cowlitz case (43 Wn. (2d) 468, *74262 P. (2d) 214 (1953)), and in the dissenting opinion in the second Cowlitz case (49 Wn. (2d) 781, 307 P. (2d) 567 (1957)).
The dissenting opinion (49 Wn. (2d) at page 802) was based on three grounds (1) that the majority opinion in the first Cowlitz case had established the law of the case, (2) that the decision of the Court of Appeals in 207 F. (2d) 391, reviewing the proceedings before the Federal Power Commission in granting the license to the City of Tacoma (respondent here) and upholding the commission’s action, was res judicata 16, and (3) that, under the Federal Power Act, the City of Tacoma had authority to condemn state-owned property already devoted to public use.
The sole question now before us is whether the enactment of Initiative No. 25 by the voters of this state effective December 8, 1960, prohibited the further exercise of the city’s authority to complete the construction of the Mayfield and Mossyrock dams on the Cowlitz River under the license granted it by the Federal Power Commission in 1951 (Project No. 2016).
By Initiative No. 25, the State of Washington attempted to accomplish the same purpose as Laws of 1949, chapter 9, which was held invalid in the first Cowlitz case in 1953. The only difference is that Initiative No. 25 purports to prohibit any person, including municipal corporations, from building dams in the area described therein more than twenty-five feet in height. The object of Initiative No. 25 is to divest the City of Tacoma, as a municipal corporation of the State of Washington, of its authority to construct,, maintain, and operate these dams which it had acquired in 1951 from the Federal Power Commission under the provisions of the Federal Power Act.
If such a statute had been enacted prior to the issuance and acceptance of the license in 1951, a very different question would have been presented. But it is not disputed that, for more than forty years prior to 1951, the City of Tacoma *75had statutory authority from the State of Washington to operate works, plants, and facilities for furnishing gas, electricity, and other means of power. See RCW 35.92.050 and prior acts. The Federal Power Commission made a finding to the effect that the city had complied with all applicable state laws necessary to carry out the purpose of a license for the project. See finding No. 53, which is quoted at page 803 of 49 Wn. (2d).
The history of the proceedings leading to the issuance of the license by the commission and of the subsequent litigation clearly shows that the state cannot now exercise a veto over the rights acquired by the city and the government under the Federal Power Act.
This historical background is set forth in the dissenting opinion in the second Cowlitz case (49 Wn. (2d) at page 802, et seq.). I would, in the interests of brevity, incorporate that opinion by reference in this concurring opinion.
The issue presented to this court on this appeal is controlled by the unanimous decision of the United States Supreme Court which reversed the decision of the majority of this court in the second Cowlitz case. In Tacoma v. Taxpayers, 357 U. S. 320, 2 L. Ed. (2d) 1345, 78 S. Ct. 1209 (1958), the Supreme Court held that the question of whether the city, under its license, had power to condemn state-owned land already devoted to public use was foreclosed by the decision of the Court of Appeals in State of Washington Department of Game v. Federal Power Comm., 207 F. (2d) 391 (C.A. 9th) (1953).
It is my opinion that that decision also compels our affirmance of the trial court’s judgment in this case.
The Supreme Court, after holding that, under the Federal Power Act, the Court of Appeals for the Ninth Circuit had exclusive jurisdiction to affirm, set aside or modify, in whole or in part, orders of the Federal Power Commission, said:
“The State participated in the hearing before the Commission. It there vigorously objected to the issuance of the license upon the grounds, among others, ‘[t]hat the reservoirs which would be created by the proposed dams would inundate a valuable and irreplaceable fish hatchery owned *76by the State’ and, hence, necessarily require the taking of it by the City under the license sought; that the City had not complied with the applicable laws of the State respecting construction of the project and performance of the acts necessarily incident thereto (note 11); and that the City was not authorized by the laws of the State to engage in such business. The Commission rejected these contentions of the State and made all the findings required by the Act to support its order granting the license (note 9) including the finding that:
“ ‘The applicant . . . has submitted satisfactory evidence of compliance with the requirements of all applicable State laws insofar as necessary to effect the purposes of a license for the project; and it is a municipality within the meaning of Section 3 (7) of the Act.’
The State then petitioned the Commission for a rehearing, reviving the foregoing contentions and raising others. The petition was denied.
“Thereafter, the State, following the procedures prescribed by § 313 (b), petitioned the proper Court of Appeals for review of the Commission’s findings and order. After full hearing, that court rejected all contentions there raised by the State, did not disturb any of the Commission’s findings, and affirmed its order without modification. Washington Department of Game v. Federal Power Comm’n, 207 F. 2d 391. It made particular mention of, and approved, the Commission’s finding, as rephrased by the court, that the City had submitted ‘such evidence of compliance with state law as, in the Commission’s judgment, would be “appropriate to effect the purposes of a Federal license on the navigable waters of the United States.” ’ Id., at 396.
“Moreover, in its briefs in the Court of Appeals, the State urged reversal of the Commission’s order on the grounds that the City ‘has not shown, nor could it show, that [it] has availed itself of . . . any right to take or destroy the property of the State of Washington [and that] Tacoma, as a creature of the State of Washington, cannot act [under the license] in opposition to the policy of the State or in derogation of its laws.’ (Emphasis added.) In rejecting these contentions — that the City does not have ‘any right to take or destroy property of the State’ and ‘cannot act’ in accordance with the terms of its federal license — the Court of Appeals said:
“ ‘Again, we turn to the First Iowa case, supra. There, too, the applicant for a federal license was a creature of the state and the chief opposition came from the state itself. *77Yet, the Supreme Court permitted the applicant to act inconsistently with the declared policy of its creator, and to prevail in obtaining a license.
“ ‘Consistent with the First Iowa case, supra, we conclude 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.’ Id., at 396. (Emphasis added.)
We think these recitals show that the very issue upon which respondents stand here was raised and litigated in the Court of Appeals and decided by its judgment. But even if it might be thought that this issue was not raised in the Court of Appeals, it cannot be doubted that it could and should have been, for that was the court to which Congress had given ‘exclusive jurisdiction to affirm, modify, or set aside’ the Commission’s order. And the State may not reserve the point, for another round of piecemeal litigation, by remaining silent on the issue while its action to review and reverse the Commission’s order was pending in that court — which had ‘exclusive jurisdiction’ of the proceeding and whose judgment therein as declared by Congress ‘shall be final,’ subject to review by this Court upon certiorari or certification. After the Court of Appeals’ judgment was rendered, the State petitioned this Court for a writ of cer-tiorari which was denied. 347 U. S. 936.
“These were precisely the proceedings prescribed by Congress in § 313(b) of the Act for judicial review of the Commission’s findings and order. They resulted in affirmance. That result, Congress has declared, ‘shall be final.’ ”
After referring to certain language in the Court of Appeals’ decision to the effect that the Commission had no power to adjudicate certain questions relating to the city’s power to act under the license after its issuance (such as indebtedness limitations),17 the Supreme Court continued:
“. . . We believe that respondents’ construction of this language is in error. The questioned language expressly refers to possible ‘indebtedness limitations’ in the *78City’s Charter and ‘questions of this nature,’ not to the right of the City to receive and perform, as licensee of the Federal Government under the Federal Power Act, the federal rights determined by the Commission and delegated to the City as specified in the license. That this was the meaning of the court, if its meaning might otherwise be doubtful, is made certain by the facts that the court did not disturb a single one of the Commission’s findings; affirmed its order without modification; and said, in the sentence immediately preceding the questioned language: ‘Consistent with the First Iowa case, supra, we conclude 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.’ Id., at 396. (Emphasis added.)
“The final judgment of the Court of Appeals was effective, not only against the State, but also against its citizens, including the taxpayers of Tacoma, for they, in their common public rights as citizens of the State, were represented by the State in those proceedings, and, like it, were bound by the judgment. . . .
“We conclude that the judgment of the Court of Appeals, upon this Court’s denial of the State’s petition for certiorari, became final under § 313 (b) of the Act, and is binding upon the State of Washington, its Directors of Fisheries and of Game, and its citizens, including the taxpayers of Tacoma; and that the objections and claims to the contrary asserted in the cross-complaints of the State, its Directors of Fisheries and of Game, and the Taxpayers of Tacoma, in this bond validation suit, were impermissible collateral attacks upon, and de novo litigation between the same parties of issues determined by, the final judgment of the Court of Appeals. Therefore, the judgment of the Supreme Court of Washington is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.”
As I read this decision, it means that, since the Federal Power Commission made its finding that:
“ ‘The Applicant . . . has submitted satisfactory evidence of compliance with the requirements of all applicable State laws insofar as necessary to effect the purposes of a license for the project; and it is a municipality within the meaning of Section 3(7) of the Act.’ ”
*79and the Court of Appeals approved his finding (and also all sixty-five other findings), the Cowlitz project became a federal project upon the issuance and acceptance of the license by the city in 1951. The relative rights and obligations of the United States and the City of Tacoma became fixed at the time as provided in the Federal Power Act. See, particularly, sections 3, 4(e), 6, 9(b), 10(a), 14, 23(b), and 27 thereof.
The following portion of the dissenting opinion in the second Cowlitz case, in my opinion, correctly describes the relationship between the United States and the city as it has existed since 1951 and as it presently exists:
“Without further reviewing the provisions of the Federal power act, it is apparent that Congress intended to and did exercise its full power under the commerce clause in providing for the licensing of the projects described therein. When the power commission has made a finding as required by § 9 (b) that the licensee has complied with state laws with respect to the right to engage in the business of developing, transmitting, and distributing electric power and any other business necessary to effect the purposes of the licensee under the act, then the licensee becomes the agent of the Federal government in regard to the project. Upon the issuance of the license, all rights and obligations of the licensee are derived from congressional constitutional powers, and not those of the state where the project is located. See First Iowa case [328 U. S. 152, 90 L. Ed. 1143, 66 S. Ct. 906].
“The project for which the license is issued is a Federal project and is to be considered as if it were to be constructed and operated by the government itself. The government has an option to buy the project works at the end of the license period, as provided in § 14 of the act. Every detail of the project must be carried out by the licensee in strict accordance with the terms of the license and the maps and drawings identified therein. The comprehensive plan adopted by the power commission for the development of the waterway may not be deviated from by a licensee without permission of the commission.”
Ever since the Supreme Court held, in 1946, in the case of First Iowa Hydro-Electric Co-op. v. Federal Power Comm., 328 U. S. 152, 90 L. Ed. 1143, 66 S. Ct. 906, that the *80United States has plenary power over the use of the water of navigable streams and may deny the privilege of constructing an obstruction in those waters, the states may not regulate or license such matters.
The power of the United States in the premises being paramount, and the state having no power to exercise any control over navigable streams, it necessarily follows that the state may not interfere with or frustrate the functioning of a municipal licensee under its federal license nine years after its issuance and acceptance by attempting, through Initiative No. 25, to deprive the municipality of its authority to construct dams over twenty-five feet in height on the Cowlitz River.
Since the Federal Power Commission, in its finding No. 53, found that the City of Tacoma was a municipal corporation within the meaning of section 3(7) of the power act, and that it had submitted satisfactory evidence of its compliance with all applicable state laws to effect the purpose of a license for project No. 2016, and since that finding was sustained by the Court of Appeals (207 F. (2d) 391), no court of the State of Washington can re-examine and decide a question which has been finally determined by the only court of competent jurisdiction qualified to decide it, to wit, the Court of Appeals of the Ninth Circuit. Subsequent legislation by the state cannot change the status which the city attained in 1951 under the Federal Power Act.
In my opinion, Initiative No. 25 is ineffective to prohibit the City of Tacoma from proceeding to complete its two dams under its license from the Federal Power Commission (project No. 2016). I do not think that we are called upon in this case to discuss the validity or effect of Initiative No. '25 as to other projects than the one now before us.
I concur in affirming the judgment of the trial court, which (for the second time) upholds the validity of the ■utility bonds of the City of Tacoma, authorized by Ordinance No. 14386, as amended.
Finley, C. J., concurs with Donworth, J.
See Tacoma v. Taxpayers, 357 U. S. 320, 2 L. Ed. (2d) 1345, 78 S. Ct. 1209 (1958).
The bonds being considered in this case are utility revenue bonds payable solely out of the gross revenues of the utility as provided in RCW 35.92.100 and prior acts.
No general municipal indebtedness is involved.
See Twichell v. Seattle, 106 Wash. 32, 179 Pac. 127 (1919); Asia v. Seattle, 119 Wash. 674, 206 Pac. 366 (1922).