This action was instituted by the city of Tacoma against the taxpayers of Tacoma and the directors of game and fisheries of the state of Washington, pursuant to the declaratory judgment act (RCW 7.24.010, et seq.) and RCW 7.24.150, et seq., to test and determine plaintiff’s right to issue and sell certain utility revenue bonds to finance the construction of two power dams on the Cowlitz river in Lewis county.
The action was commenced in Pierce county; later, by stipulation and order of court, it was transferred to Thur-ston county.
*784The case was here on a prior appeal. Tacoma v. Taxpayers, 43 Wn. (2d) 468, 262 P. (2d) 214 (1953). This court reversed the judgment of dismissal entered by the trial court after sustaining defendant taxpayers’ demurrer to the original complaint. (We refer to that decision for an understanding of the material facts involved on the first appeal.)
The case was remanded to the superior court for further proceedings in accordance with the views therein expressed.
Preliminary to a discussion of the merits of this case, we point out that the city of Tacoma was granted a license by the Federal power commission, after hearings held in 1951, to construct the two dams on the Cowlitz river. The state of Washington, represented by the attorney general; the directors of game and fisheries, cross-appellants; and Washington State Sportsmen’s Council, Inc. (not a party to the present case), were given notice of the hearings and appeared before the Federal power commission and actively participated in that proceeding. The parties petitioned the court of appeals for the ninth circuit to review the decision of the Federal power commission (In the Matter of the City of Tacoma, Washington, Project No. 2016); the commission’s decision was affirmed. State of Washington Department of Game v. Federal Power Comm., 207 F. (2d) 391 (C. A. 9th; 1953), cert. den. 347 U. S. 936, 98 L. Ed. 1087, 74 S. Ct. 626 (1954).
The proceedings in the superior court, between October 14, 1953, the date the remittitur of this court was filed, and March 6, 1956, the date of the final judgment from which the present appeal and cross-appeal are taken, are set forth in the lengthy transcript on appeal. It would unduly extend this opinion to give a resume of the various pleadings, motions, and orders.
After our former opinion, the trial court entered an order overruling taxpayers’ demurrer to the complaint. The taxpayers of Tacoma filed an answer and cross-complaint, denying that the Federal license had any legal force or effect, and affirmatively alleged that the city had exceeded its au*785thority under the state statutes. The city’s demurrer was sustained to the cross-complaint.
April 29, 1954, the directors of game and fisheries filed a second amended answer and cross-complaint that, in substance, was similar to prior pleading, except they alleged, for the first time, that the Cowlitz river is nonnavigable at the dam sites.
April 29, 1954, the city of Tacoma filed a petition praying that attorneys’ fees as costs be fixed and determined, and that the city’s liability for further legal services be terminated in accordance with the provisions of the declaratory judgment act. The petition stated that nothing further remained to be done by the taxpayers of Tacoma, except to establish the allegations of the complaint (if denied) and enter judgment. The prayer requested that the taxpayers be denied costs for attorneys’ fees in connection with their cross-complaint.
On the same date, the taxpayers of Tacoma answered. They said they had done all that was expected of them; that they had filed an answer and cross-complaint, because it was the only further step they could take; and that they should be allowed costs and attorneys’ fees.
April 29, 1954, the superior court entered an order absolving the taxpayers from any further defense or prosecution of the action. Subsequently, the superior court fixed the amount of attorneys’ fees to be paid by the city to the taxpayers.
June 24, 1955, the directors of game and fisheries filed a motion for a temporary restraining order and injunction, pendente lite, to enjoin further development and construction of the Cowlitz project and the sale of the proposed bond issue. The affidavit of an assistant attorney general, filed in support of this motion, alleges that a large portion of certain state highways would be inundated and must, of necessity, be condemned; and that
“Ordinance No. 14386 authorizes the condemnation of the state game hatchery, known as the Mossyrock Hatchery, located on the Cowlitz River. This hatchery is located on Government Lots 4, 7, 8, and 9, Section 11, Township 12 *786North, Range 2 East Willamette Meridian, in Lewis County, Washington. The state also has a water right there. The reservoir created by the Mayfield Dam will inundate and overflow the entire hatchery. This hatchery site has been segregated from the public domain and already appropriated to a public use.
“The City of Tacoma, being a limited arm of the state government, cannot condemn property such as this already dedicated to a public use. State v. Superior Court, 91 Wash. 454, 157 Pac. 1097 (1916). Therefore, the ordinance authorizing such condemnation is invalid and the City is proceeding contrary to the laws of the State of Washington. Affiant alleges that no agreement between the City of Tacoma and State authorities has been reached, and that legislative action will be necessary before Tacoma can build the project. There has been no such legislative action as yet.
“On June 21, 1955, the City of Tacoma awarded bids for the purchase of Tacoma city Light revenue bonds, totalling $15,000,000, to pay for the construction of part of the May-field Dam. Affiant is informed and believes that the City will deliver said bonds to the purchasers in the immediate future; on June 22, 1955, the City of Tacoma awarded the contracts for the construction of the Mayfield Dam, and the City intends to authorize the commencement of said construction in the immediate future.
“Affiant is informed and believes that if the threatened acts of the plaintiff in delivering the bonds and commencing construction of the Mayfield Dam are not enjoined pending the outcome of this action, irreparable injury will result to the State of Washington in that part or all of the fish runs in the Cowlitz River will be destroyed for which adequate damages cannot be ascertained. Also, if invalid bonds are permitted to be on the market, the public will suffer and it is the responsibility of the State of Washington to prevent this.”
On the filing of this motion and affidavit, the superior court, ex parte, issued a temporary restraining order and order to show cause. It enjoined the city from directly or indirectly developing, constructing, or contracting for the construction of the two dams; from delivering or permitting the sale of any bonds for the payment of costs of the Cowlitz project; and ordering the respective parties to appear at a hearing on the matter on August 8, 1955.
*787June 28, 1955, the city of Tacoma, appellant, filed a motion to quash and dissolve the temporary restraining order. It was supported by affidavits that stated in substance: (a) that the action had been pending for more than two years; (b) that during this time the directors of game and fisheries had known that the city contemplated calling for bids on contracts and the sale of bonds; (c) that for the past year this action had awaited the ruling of the superior court upon the city’s demurrer to the directors’ second amended cross-complaint; (d) that the protection of fish in the Cowlitz river was a matter for presentation before the Federal power commission; (e) that all matters proper for determination herein had been decided by the supreme court of this state upon the first appeal. (Tacoma v. Taxpayers, supra); (f) that the judgment in the case entitled State of Washington Department of Game v. Federal Power Comm., supra, was res judicata as to all other matters pleaded by the directors of game and fisheries in their second amended answer and cross-complaint; (g) and, that the continuation of the temporary restraining order would result in irreparable damage to the city of Tacoma. A hearing on the motion to quash was set for June 30, 1955. July 7, 1955, the court modified the temporary restraining order to read:
“. . . Plaintiff (appellant) and its officers and agents be and they are hereby restrained and enjoined from doing any act or thing in any manner interfering with the bed or waters of the Cowlitz River in connection with its Mayfield and Mossyrock Dam Projects, or in any way injurious to the fish runs or fish resources of said river, . . . ”
July 27, 1955, the city filed an amended complaint. July 29, 1955, the directors of game and fisheries moved to substitute the sovereign state of Washington as a defendant in this action. The affidavit, in support of this motion, alleged:
“The proposed project will affect lands, structures, waters, and fish, the ownership and jurisdiction over which is in the State of Washington and not in the above-named defendants (directors of game and fisheries); and, therefore, the real party in interest, of this action, which will be affected by the decision of this Court is the State of Washington.”
*788Over objection of the city, August 8, 1955, the court entered an order granting permission “to add the State of Washington as a party defendant herein ...”
August 29, 1955, the directors of game and fisheries and the state of Washington filed an answer and cross-complaint to the city’s amended complaint. They alleged: (a) that the Cowlitz project would interfere with public navigation on the Cowlitz river, which the city is prohibited from doing under the provisions of RCW 80.40.010; (b) that appellant had not obtained an extension of time beyond December 31, 1955, to commence construction; (c) that the proposed Cow-litz project would damage and destroy state lands dedicated to a public use that the city of Tacoma, as a municipal corporation, is unable to acquire; (d) that the city had not complied with the provisions of RCW 90.28.010 (permission to inundate state highways), and RCW 90.20.010, et seq. (water appropriation permit); (e) and, that the city had attempted to circumvent state laws by commencing an action in Federal district court at Tacoma. (The city states in its brief that it voluntarily dismissed this action.)
September 27, 1955, the directors of game and fisheries and the state of Washington filed a joint amended answer and cross-complaint. It contained, substantially, the same matters as the directors’ prior pleading, except that the various parcels of state land devoted to public uses were described by legal description. There was an added allegation and exhibit which, in substance, indicated that the state game commission had passed a resolution August 16, 1955, instructing the director of game to take every legal procedure to resist any effort of the city to condemn or in any manner acquire the Mossyrock fish hatchery, because it was irreplaceable.
October 7,1955, the trial court entered a restraining order pendente lite. It modified the temporary restraining order of July 7, 1955, by inclusion of the following proviso:
“ . . . Provided However, that the plaintiff, its agents, employees and officers, be and they are hereby authorized to construct the coffer dam for the powerhouse site and to do *789blasting necessary to construction, Provided that no blasting shall take place in the waters of the Cowlitz River.”
October 11,1955, the trial court entered an order, over objection of the city, appointing new attorneys to represent “all taxpayers of the City of Tacoma.” The taxpayers, theretofore appointed, had withdrawn from the proceeding and had defaulted within the provisions of the declaratory judgment act.
November 30, 1955, the newly appointed attorneys, upon behalf of all taxpayers, filed an answer and affirmative defense to the city’s amended complaint. It contained virtually the same allegations as the amended answer and cross-complaint of the directors and the state of Washington.
January 3, 1956, the parties filed a pretrial conference stipulation and order. It stated: (a) that the city had entered into contracts for the construction of the Mayfield dam, and that construction had been commenced; (b) that two ordinances, amendatory of ordinance No. 14386, had been passed; (c) that a license to build the dams had been issued appellant by the Federal power commission; (d) that completion of the dams and closing of the gates would inundate a large portion of a fish hatchery, owned and operated by the state, as well as other state land, as described in the pleadings; (e) that the directors of fisheries and game, if permitted, would show probability of injury to fish; (f) that the city had not yet obtained permission to inundate state highways, under the provisions of RCW 90.28.010, but that plans had been submitted for review to the director of highways; (g) that the city had used and would continue to use surplus funds of its light utility to pay costs of the Cowlitz project, and would issue and sell revenue bonds of its light utility therefor.
January 5, 1956, the trial judge wrote a letter to counsel. We quote, in part:
“After reading briefs the Court feels that testimony can be limited to the question of navigation. . . .
“Upon the question of damage to fish the Court is of the opinion that the decision of the Federal Power Commission *790and the decision of the Supreme Court of this state are controlling.
“Upon the question of relocation of the fish hatchery, the Court is of the opinion that only a question of law is presented. The question of law will relate to the extent of the powers of condemnation given to plaintiff under the license from the Federal Power Commission.”
. The case was tried January 11, 1956, upon the city’s amended complaint, the taxpayers’ answer and affirmative defense, and the directors’ and state’s amended answer and cross-complaint, as limited by the stipulation and the above-quoted letter. Findings of fact and conclusions of law were made; judgment was entered March 6, 1956. The trial court declared the status of the parties to be as follows:
“It Is Hereby Ordered, Adjudged And Decreed that the question of the capacity of the plaintiff to acquire property of the defendant, State of Washington, by eminent domain is not within the jurisdicton of this court,
“It Is Further Ordered, Adjudged And Decreed that the question of damage to fish which might result from construction of plaintiff’s Cowlitz Project was passed upon by the Federal Power Commission and the Federal Courts and is not now a proper one for consideration by this Court.
“It Is Further Ordered, Adjudged And Decreed that Sections 27 and 36, Chapter 117, Laws of 1917, as amended (R. C. W. 90.20.010 and 90.28.060) are inapplicable to said project insofar as the same conflict with the provisions of the Federal Power Act or the terms and conditions of plaintiff’s License for said project, or insofar as they would enable State officials to exercise a veto over said project.
“It Is Further Ordered, Adjudged And Decreed that the provisions of Chapter 9, Laws of 1949, (R. C. W. 75.20. 010 et seq.), and Sections 46, and 49, Chapter 112, Laws of 1949, as amended (R. C. W. 72.20.050 and 75.20.100), are inapplicable to said project insofar as the same conflict with the provisions of the Federal Power Act or the terms and conditions of plaintiff’s License for said project, or insofar as they would enable State Officials to exercise a veto over said project.
“It Is Further Ordered, Adjudged And Decreed that the plaintiff is acting illegally and in excess of its authority in the construction of the Mayfield and Mossyrock hydroelectric project as presently proposed for the reason that *791said project would necessarily impede, obstruct or interfere with public navigation contrary to the proviso of R. C. W. 80.40.010 et seq.
“It Is Further Ordered, Adjudged And Decreed that the injunction pendente lite, entered October 7, 1955, be continued in effect until July 1, 1956, from and after which later date plaintiff is hereby enjoined from spending any sums of money relating to the Mayfield and Mossyrock hydroelectric project.” (Italics ours.)
June 28, 1956, the chief justice continued the injunction pendente lite.
The city of Tacoma (appellant) has made fifteen assignments of error. The taxpayers of Tacoma, the directors of game and fisheries, and “The State of Washington, a Sovereign State” (respondents and cross-appellants) have made two assignments of error on their cross appeal.
Although this action has evolved into a Hydra-headed controversy, a single question at its nucleus is determinative of its disposition.
Does a municipal corporation, created by the state as a subordinate unit, have the power to condemn state lands held in a governmental capacity and previously dedicated to a public use; and if not, can a municipal corporation be endowed by Federal legislation with power to condemn such lands belonging to the state?
This question is neither abstract nor academic. The state-owned Mossyrock fish hatchery and the land necessary for its operation, which are of substantial value, will be inundated by the proposed dam. In the sense that the question requires a definition of the powers of the sovereign state and one of its created agencies, the problem is a local one peculiarly within the province of the courts of this state; hence, assuming, arguendo, that the question was before the court of appeals for the ninth circuit in State of Washington Department of Game v. Federal Power Comm., supra (an erroneous assumption, as we point out later in this opinion), it is not res judicata against the state of Washington.
This precise question is presented to us by cross-appellants’ (the taxpayers, the directors, and the state) first assignment of error, which reads as follows:
*792• “The court erred in making and entering its conclusion of law No. Ill and in entering its judgment, dated March 6, 1956, insofar as it included therein paragraph I reading:
“ ‘It Is Hereby Ordered, Adjudged And Decreed that the question of the capacity of the plaintiff to acquire property of the defendant, State of Washington, by eminent domain •is not within the jurisdiction of this court.’ ” (Italics ours.)
The city (appellant and cross-respondent) argues that this question is not before us. Two reasons are given: first, that the taxpayers of Tacoma (respondents and cross-appellants) are precluded by the law of the case as declared on the first appeal to this court; and second, that Robert Schoet-tler, as director of fisheries, and John A. Biggs, as director of game of the state of Washington, and “The State of Washington, a Sovereign State” (respondents and cross-appellants) are bound by the doctrine of res judicata.
In support of these reasons, our former opinion in this case (Tacoma v. Taxpayers, supra) and the opinion of the United States court of appeals in State of Washington Department of Game v. Federal Power Comm., supra, are cited, analyzed, and discussed.
If the state of Washington, in its sovereign capacity, is not bound by the theory advanced by the city, we reach the question of the city’s power to condemn state lands previously dedicated to a public use. The position of the remaining parties, and the other assignments of error, would not require examination.
We are inclined to the view that the theory advanced by the city does not apply to the taxpayers of Tacoma nor to the directors of game and fisheries. This is based upon the following: (a) in our former decision, the sole question before this court was whether the city’s first complaint stated a cause of action; (b) neither our former opinion nor the opinion of the Federal court of appeals discussed the question of the city’s power and capacity to condemn state-owned property previously dedicated to a public use — in fact, the latter opinion excludes the question; (c) the question did not appear until pleaded after we had remanded the case to the trial court; (d) the case is now before us *793after trial of issues formed by the city’s amended complaint, filed July 27, 1955, and the answers, affirmative defenses, and cross-complaints thereto.
Since we base our conclusion that the trial court should be affirmed upon other grounds, we do not deem it necessary to expand our reasons for concluding that the taxpayers of Tacoma and the directors of game and fisheries are not precluded by the law of the case and the doctrine of res judicata.
The state of Washington, in its sovereign capacity, is not bound by the doctrine of res judicata (assuming, arguendo, that the issue involved has been before a court of competent jurisdiction), for the manifest reason that the state was not a party to this action at the time our former decision was rendered.
The state of Washington became a party defendant by order of court, entered August 8, 1955. The order was entered on motion of the directors of fisheries and game, supported by an affidavit, the allegations of which we quoted supra.
An attempt is made to avoid the conclusion that the state did not become a party to this action until August 8, 1955, upon the authority of State v. Pacific Tel. & Tel. Co., 9 Wn. (2d) 11, 113 P. (2d) 542 (1941). We do not find the case apposite.
We have not overlooked the fact that the state-owned land involved is not in Pierce county, where this action was commenced, nor in Thurston county, to which this action was transferred by stipulation and order of court; but this is not a condemnation action. It involves a determination of the power to condemn, not the actual condemnation. In Donaldson v. Greenwood, 40 Wn. (2d) 238, 250, 242 P. (2d) 1038 (1952), we quoted with approval:
“ ‘A state can exercise through its courts jurisdiction to order or to forbid the doing of an act within the state, although to carry out the decree may involve doing an act or affecting a thing in another state.’ Restatement, Conflict of Laws, 147, § 97.”
*794A fortiori, since the parties and the issue were before the superior court of Thurston county, it had jurisdiction to resolve the question of the power of the city to condemn state-owned lands. In this respect, the trial court erred in the first paragraph of its decree, quoted supra, in which it said that
“ . . . the question of the capacity of the plaintiff to acquire property of the defendant, State of Washington, by eminent domain is not within the jurisdiction of this court.”
In Pacific Tel. & Tel. Co. v. Henneford, 195 Wash. 553, 81 P. (2d) 786 (1938), the plaintiff company secured an injunction against the state tax commissioner, enjoining him from collecting a certain use tax. Three years later, the state commenced an action against the company to recover the same tax. In State v. Pacific Tel. & Tel. Co., supra, this court held that the first action was res judicata of the second, saying:
“This court has held that, where an action is brought by or against the officers of a state which affects the right of the state to collect its revenue, it is, in effect, an action by or against the state. [Citing cases.]” (Italics ours.)
Thus, the court limited its decision to the particular facts before it; namely, the collection of revenue. Finally, the court announced the guide to be followed when it said:
“The general rule is that a judgment for or against the state or an officer or agency thereof in matters as to which such officer or agency is entitled to represent the state in litigation, is conclusive for or against the state. . . .
“The test as to whether a judgment in a prior action brought against officers of the state is res judicata as against the state in a second action involving the same subject-matter, depends upon whether the officers have authority to represent the interests of the state in the prior action. Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 84 L. Ed. 1263, 60 S. Ct. 907.” (Italics ours.)
The departments and directors of fisheries and game are charged with the duty of enforcing state laws, and rules and regulations of the departments relative to the conservation of food fish and game fish. The directors have statu*795tory authority to represent and bind the state by their actions, only in matters relating to the conservation of food fish and game fish. Under the statutes, their sole concern is the conservation of food fish and game fish; they are not concerned with ownership of lands by the state in its sovereign capacity.
“The State does not legally become a party to a suit brought on its behalf unless the suit is brought by some officer having statutory authority so to do and a suit brought by the State Tax Collector, which he had no statutory authority to bring is not binding on the State, and the decree therein is not res adjudicata against the State.” State v. Rogers, 206 Miss. 643, 39 So. (2d) 533 (1949).
In People v. Birch Securities Co., 86 Cal. App. (2d) 703, 196 P. (2d) 143 (1948), the court said:
“It will be observed the former federal judgment, which was offered in evidence as a bar to this action, was merely against certain named officers of the state, as such, and not against the State of California. That case was not a suit against the State of California, and is therefore not res judicata in this action or an estoppel against the state maintaining this action for unpaid franchise taxes. When a suit is brought only against individually named officers of a state, as such, it is ordinarily not an action against or binding upon the state.” (Italics ours.)
The state became a party defendant to this action on August 8', 1955, subsequent to the first appeal; hence, neither the doctrine of the law of the case, as purportedly established by our first opinion, nor the doctrine of res judicata applies to the state of Washington, and this court must consider the question posed.
In a recent En Banc decision (State ex rel. Eastvold v. Yelle, 46 Wn. (2d) 166,168, 279 P. (2d) 645 (1955)), this court said:
“The power of eminent domain is inherent in sovereignty and does not depend for its existence on a specific grant in the constitution. The provisions found in a state constitution do not by implication grant the power to the government of a state, but limit a power which otherwise would be without limit. State ex rel. Eastvold v. Superior Court, 44 Wn. (2d) 607, 609, 269 P. (2d) 560 (1954).”
*796In Lauterbach v. Centralia, ante p. 550, 554, 304 P. (2d) 656 (December 5, 1956)., we again defined a municipal corporation and described its powers as follows:
“A municipal corporation is a body politic established by law as an agency of the state — partly to assist in the. civil government of the country, but chiefly to regulate and administer the local and internal affairs of the incorporated city, town, or district. Columbia Irr. Dist. v. Benton County, 149 Wash. 234, 235, 270 Pac. 813 (1928). It has neither existence nor power apart from its creator, the legislature, except such rights as may be granted to municipal corporations by the state constitution.” (Italics ours.)
A municipal corporation does hot have an inherent power of eminent domain. It may exercise such power only when it is expressly authorized to do so by the state legislature. Tepley v. Sumerlin, 46 Wn. (2d) 504, 507, 282 P. (2d) 827 (1955), and cases cited. This is consistent with the general proposition that
“..... a municipal corporation, being but a creature of the state, derives its existence, powers, and duties from the legislative body of the state. 37 Am. Jur. 620, §4, and p. 626, § 7. 2 McQuillin, Municipal Corporations (3d ed.) 12, § 4.04; 578, § 10.03.” Othello, v. Harder, 46 Wn. (2d) 747, 752, 284 P. (2d) 1099 (1955). (Italics ours.)
Of course, by statute, the state may delegate the power of eminent domain to one of its political subdivisions; but such statutes are strictly construed. Lewis in 1 Eminent Domain (3d ed.) 679, § 371, states:
“The exercise of the power being against common right, it cannot be implied or inferred from vague or doubtful language, but must be given in express terms or by necessary implication. When the right to exercise the power can only be made out by argument and inference, it does not exist. ‘There must be no effort to prove the existence of such high corporate right, else it is in doubt; and, if so, the State has not granted it.’ ” (Italics ours.)
This is cited with approval in State ex rel. Chesterly v. Superior Court, 19 Wn. (2d) 791, 800,144 P. (2d) 916 (1944).
It follows, that the state may delegate, to one of its political subdivisions, the power to condemn state-owned property. However,
*797“ . . . the principal question that arises in connection with the right of a particular subdivision or agency to take state-owned lands is whether the legislature has authorized such subdivision or agency so to do. This is, of course, a problem of statutory construction, and it may be said in this connection that there is a clear tendency on the part of the courts against interpreting governing statutory provisions in favor of the existence of such authorization in the absence of a clear expression of the legislative intention to that effect. This tendency is attributable to such considerations as the general principal of statutory construction that where a statute is general in its terms and thereby any prerogative, right, title, or interest is taken from the state, the latter is not bound unless the statute is made to extend to it by express words; the general rule that property devoted to a public use may not be taken under the power of eminent domain for an inconsistent use unless the right to do so is conferred expressly or by necessary implication.” (Italics ours.) Annotation: “Eminent domain: power of one governmental unit or agency to take property of another such unit or agency.” 91 L. Ed. 221, 259 (1947).
In State v. Superior Court, 91 Wash. 454, 157 Pac. 1097 (1916), this court held that a statute authorizing railroad corporations to condemn lands, including lands granted to the state, refers to state lands held only in a proprietary capacity, and does not include state lands segregated from the public domain and appropriated to a public use by due dedication, saying:
“Indeed, if this be not the rule, the legislature has, by the act in question, granted to railway companies power to condemn any of the state lands for railway purposes (save that of course which is specially exempted), which would include the lands on which its capitol buildings are situated.” (p. 459)
The following remark made by this court in Seattle & Montana Ry. Co. v. State, 7 Wash. 150, 152, 34 Pac. 551, 38 Am. St. Rep. 866, 22 L. R. A. 217 (1893), is pertinent:
“As well might it be contended that because a railroad is authorized to enter upon and condemn ‘any’ land for its tracks, depots, shops, round houses, etc., it could, by serving notice upon the auditor of Thurston county, take the entire ten acres upon which the state capitol stands for a depot and shops.” (p. 152)
*798In State ex rel. Attorney General v. Superior Court, 36 Wash. 381, 385, 78 Pac. 1011 (1904), this court said:
“Since the rule prevails that condemnation statutes must be strictly construed, as far as they relate to the taking of private property, it follows, with even more force, that the same rule must apply where the lands of the sovereign are sought to be taken.” (p. 385)
We deem it conclusively settled in this jurisdiction that a municipal corporation or a public corporation does not have the power to condemn state-owned lands dedicated to a public use, unless that power is clearly and expressly conferred upon it by statute.
After a careful review of RCW 8.12.030 and RCW 80.40.010, and other statutes to which our attention has been directed, we do not find that the legislature has expressly authorized a municipal corporation to condemn state-owned land previously dedicated to a public use; hence, we conclude that the city of Tacoma has not been endowed with the statutory capacity to condemn such lands.
There remains the subsidiary question: can a municipal corporation of this state be endowed, by Federal legislation, with power to condemn state-owned lands previously dedicated to a public use, in the absence of power and capacity so to act under state statutes; or, specifically, can the city of Tacoma receive the power and capacity to condemn state-owned lands previously dedicated to a public use, from the license issued to it by the Federal power commission in the absence of such power and capacity under state statutes?
This is not a question of the right of the Federal government to control all phases of activity on navigable streams, nor a question of its power, under the Federal power act, to delegate that right. It only questions the capacity of a municipal corporation of this state to act under such license when its exercise requires the condemnation of state-owned property dedicated to a public use.
The question of the legal capacity of the city of Tacoma to act under the license issued by the Federal power commission is specifically excluded from consideration in State *799of Washington Department of Game v. Federal Power Comm., supra. The court said:
“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 licensees from acting under the license to build a dam on a navigable stream since the stream is under the dominion of the United States. However, we do not touch the question as to the legal capacity of the City of Tacoma to initiate and act under the license once it is granted. There may be limitations in the City Charter, for instance, as to indebtedness limitations. Questions of this nature may be inquired into by the Commission as relevant to the practicability of the plan, but the Commission has no power to adjudicate them.” (p. 396) (Italics ours.)
Hence, this case is not res judicata against the state of Washington. As we have heretofore pointed out, the city does not have the capacity to act under the license. Its inability to act, in the manner which we have discussed, is inherent in its very nature. Its inability so to act can be remedied only by state legislation that expands its capacity.
We find nothing inconsistent with this conclusion in First Iowa Hydro-Electric Cooperative v. Federal Power Comm., 328 U. S. 152, 90 L. Ed. 1143, 66 S. Ct. 906 (1946). Therein, the court held (rightfully, we believe) that a state could not, by statute, require the petitioner to secure a state permit to build the dam when the subject matter of the state statutory prohibitions was exclusively within the jurisdiction of the Federal government. The court said:
“To require the petitioner to secure the actual grant to it of a state permit under § 7767 as a condition precedent to securing a federal license for the same project under the Federal Power Act would vest in the Executive Council of Iowa a veto power over the federal project. Such a veto power easily could destroy the effectiveness of the Federal Act. It would subordinate to the control of the State the ‘comprehensive’ planning which the Act provides shall depend upon the judgment of the Federal Power Commission or other representatives of the Federal Government.” (p. 164)
*800In Tacoma v. Taxpayers, 43 Wn. (2d) 468, 489, 262 P. (2d) 214 (1953), this court said:
“It [the Federal government] intended to exercise its full jurisdiction to authorize the power commission to supersede state laws purporting to prohibit or limit the construction of dams on navigable streams.” (p. 489) (Italics ours.)
In the instant case, the subject matter — the inherent inability of the city to condemn state lands dedicated to a public use — does not present a question of state statutory prohibition; it presents a question of lack of state statutory power in the city. It does not present a Federal question; it presents a question peculiarly within the jurisdiction of the state of Washington.
The Federal government may not confer corporate capacity upon local units of government beyond the capacity given them by their creator, and the Federal power act, as we read it, does not purport to do so.
If it be held that the Federal government may endow a state-created municipality with powers greater than those given it by its creator, the state legislature, a momentous and novel theory of constitutional government has been evolved that will eventually relegate a sovereign state to a position of impotence never contemplated by the framers of our constitutions, state and Federal.
In our review of this case under the declaratory judgment statute (RCW 7.25.010), we are limited in our consideration by the plan of construction established by the ordinances of the city of Tacoma, and the license the city of Tacoma received from the Federal power commission, as they appear in the record before us. It is not within the province of this court to give an advisory opinion as to what the law may be under a different plan of construction, which may be established by different ordinances or licenses.
Based upon the present record, we agree with that portion of the judgment of the trial court which determines (1) that the question of damage to fish which might result from construction of the dams is not now a proper one for *801the consideration of the court; and (2) that Laws of 1917, chapter 117, §§ 27 and 36, pp. 459, 463, as amended (RCW 90.20.010 — state permit for appropriation of water; RCW 90.28.060 — state permission to build a dam), Laws of 1949, chapter 9, p. 38 (RCW 75.20.010 et seq. — establishing Columbia river fish sanctuary), and Laws of 1949, chapter 112, §§ 46 and 49, pp. 272, 274, as amended (RCW 75.20.050 — state permit to divert water; RCW 75.20.100 — approval of building plans for the protection of fish), are
“ . . . inapplicable to said project insofar as the same conflict with the provisions of the Federal Power Act or the terms and conditions of plaintiff’s License for said project, or insofar as they would enable State officials to exercise a veto over said project.”
Our conclusion is amply supported by First Iowa Hydro-Electric Cooperative v. Federal Power Comm., 328 U.S. 152, 90 L. Ed. 1143, 66 S. Ct. 906 (1946).
The same authority supports the conclusion that the trial court erred when it issued the injunction
“. . . for the reason that said project would necessarily impede, obstruct or interfere with public navigation contrary to the proviso of R.C.W. 80.40.010 et seq.”
However, we have held on many occasions that if the judgment of the trial court is based upon erroneous grounds, it will be sustained, if correct on any grounds within the pleadings and established by the proof. Ennis v. Ring, ante p. 284, 289, 300 P. (2d) 773 (1956).
We have already held that the question of the capacity of the plaintiff to acquire property of the state of Washington by eminent domain is within the jurisdiction of the court; and that the city of Tacoma has not been endowed with the statutory capacity to condemn state lands previously dedicated to a public use. Without this power, it cannot accomplish the plan set forth in the city ordinances before us; hence, for the.reasons we have discussed herein, the judgment of the superior court is affirmed.
Hill, C. J., Schwellenbach, Rosellini, and Ott, JJ., concur.