(dissenting) — I find myself in disagreement with the majority opinion for three reasons, which are stated below. Because of the importance of the constitutional question relating to the conflict between state and Federal powers, I deem it proper to state my views at some length.
My first two reasons, if valid, make it unnecessary to consider the third reason (the constitutional question). They are:
First, respondents (taxpayers of Tacoma) and cross-appellants (directors of fisheries and game, respectively) are precluded from raising the constitutional question because the law of the case was established on-the first appeal (43 Wn. (2d) 468, 262 P. (2d) 214).
Second, the state is precluded from raising that question because it and cross-appellants are bound by the decision of the court of appeals for the ninth circuit in State of Washington Department of Game v. Federal Power Comm., 207 F. (2d) 391, which is res judicata of this controversy.
The third reason is that, even assuming arguendo that the two doctrines of the law of the case and res judicata are not applicable, the majority opinion is in error in holding that appellant, under the facts shown in this record, has no power to condemn state-owned lands previously dedicated to public use when the legislature has not given it the power to so act.
In considering the first reason stated above, it is necessary to have in mind the issues which were raised or could have been raised on the first appeal (43 Wn. (2d) 468). The demurrer to the complaint which was before this court on the first appeal admitted all facts well pleaded therein and reasonable inferences to be drawn therefrom. Slater v. Bird, 40 Wn. (2d) 848, 246 P. (2d) 460, and cases cited.
*803The demurrer admitted (among other things) that the Federal power commission, in its order of November 28, 1951, had made sixty-six findings of fact, including No. 53 and No. 59, reading as follows:
“The Applicant is a municipal corporation; it 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.
“Under present circumstances and conditions and upon the terms and conditions hereinafter included in the license, the project is best adapted to a comprehensive plan for improving or developing the waterway involved for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the conservation and preservation of fish and wildlife resources, and for other beneficial public uses including recreational purposes.”
Appellant alleged in its original complaint that ordinance No. 14386, in which it adopted the plan and system therein described and designated as the Cowlitz power development, provided for the acquisition of certain lands by purchase or condemnation. The lands which were to be affected by the project were described in the complaint as follows:
“Acquisition by purchase, condemnation, or otherwise of 16,000 acres of land, more or less, for dam sites, powerhouse sites, reservoirs and storage basin sites, operator’s villages, tunnels, construction offices; fishways, fish hatcheries and other fish facilities, gravel pits, roads, bridges and •necessary right of ways, said lands being located in
“Sections 1, 2, 3, 9,10,11,16,19, 20, 21, 27, 28, 29 and 30 of Township 12 North, Range 2 East of Willamette Meridian; Sections 25, 26, 34 and 35 of Township 13 North, Range 2 East, W. M.; Sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 22, 23 and 24 of Township 12 North, Range 3 East, W. M.; Sections 7,18,19, 20, 27, 28, 29, 30, 32, 33, 34, 35 and 36 of Township 12 North, Range 4 East, W. M.; Sections 1, 2, 3, 4, 11 and 12 of Township 11 North, Range 4 East, W. M.; Sections 28, 29, 30, 31, 32, 33 and 34 of Township 12 North, Range 5 East, W. M.; and Sections 2, 3, 4, 5 and 6 of Township 11 North, Range 5 East, W. M.; all of said lands being located in Lewis County of the State of Washington,
*804also acquisition of right of ways for relocation of those portions of state, county and private roads and highways, and telephone and power lines inundated by storage water impounded behind said dams; acquisition of right of ways for such spur railroad tracks or access roads as may be required to be extended from the closest feasible point on available railroads or public highways to a point at or near said dam sites; acquisition of such fish hatchery sites and water rights as may be required by the Federal Power Commission; ...” (Italics mine.)
From this legal description (contained in the original complaint) of the lands to be taken, damaged, or inundated by the reservoirs and storage basin sites, which included state lands devoted to public uses, respondents were charged with notice of the nature and extent of appellant’s proposed condemnation proceedings.
Respondents state in their brief that:
“. . . Also there is no reference in the remotest sense in the city’s original complaint that any state land either previously dedicated to public use, or not, is to be taken.
I cannot agree with this statement. Under the allegations of the original complaint, respondents were as well able in 1952 to ascertain the nature and ownership of the land sought to be damaged or to be taken by appellant as they were in 1955, when they first asserted this contention in the instant case in their answer and affirmative defense.
Respondents could have and should have raised, by demurrer or otherwise, when this case was first instituted, the-question as to the power of appellant to condemn state lands devoted to a public use. Not having done so, respondents should be precluded from litigating that question in the present case. A pertinent application of the law of the case doctrine is found in the case of Smith v. Seattle, 20 Wash. 613, 56 Pac. 389, and the following portion of that decision is directly in point:
“Respondent urges as a preliminary consideration, that the complaint does not state a cause of action, but we think it cannot be permitted to urge the point. This cause was here on a former appeal by the plaintiff from an order of *805the lower court which sustained a general demurrer to the complaint. (See Smith v. Seattle, 18 Wash. 484, 51 Pac. 1057 63 Am. St. Rep. 910, for a full statement of the case.) That order was reversed, this court concluding that the complaint was sufficient. It is true that the ground upon which the respondent now seeks to attack the complaint was not presented on the former appeal, and, inasmuch as the point was not presented nor passed upon at that time, counsel for the city insist that they have a right to urge it now. While it is true that the point was not raised on the former appeal, it is patent that it might have been, and we think it would be a bad and unwarranted practice to permit the point to be urged now. In support of its general demurrer, respondent was entitled to urge the insufficiency of the complaint from any standpoint, and must be held to have waived every point not presented at the former hearing. Any other practice would result in cases coming here piecemeal, delaying litigation, increasing the expense to parties litigant and burdening the court with unnecessary labor. It would be productive of much mischief and cannot be tolerated.”
The rule is that questions which have been determined on a prior appeal, or which might have been determined had they been presented, will not be considered by the appellate court upon a second appeal of the same action. Buob v. Feenaughty Machinery Co., 4 Wn. (2d) 276, 103 P. (2d) 325, and cases cited; Gray v. Wikstrom Motors, 18 Wn. (2d) 795, 140 P. (2d) 497.
It is also clear that the question of the plenary power of the legislature over municipal corporations was directly in issue in Tacoma v. Taxpayers, supra. Judge Hamley, in his dissenting opinion, made the same argument which the majority relies upon in the case at bar, as follows:
“The Federal government may not confer corporate powers upon local units of government, and the Federal power act does not purport to do so. The supersedure, if any, with respect to the exertion of police power, does not affect applicability of chapter 9 as an exercise of the other power named, for, in my view, the legislature would have intended the act to remain in force in the latter regard had the matter of supersedure been called to its attention.
“That the legislature may restrict the powers of municipalities, is beyond question. Cities are limited governmental *806arms of the state. Russell v. Grandview, 39 Wn. (2d) 551, 236 P. (2d) 1061. They may exercise only those powers which are granted to them in the state constitution or statutes. Except as limited by the constitution, legislative control over municipalities is therefore plenary. State v. Aberdeen, 34 Wash. 61, 74 Pac. 1022; Wheeler School Dist. v. Hawley, 18 Wn. (2d) 37, 137 P. (2d) 1010. It follows that the legislature may enlarge or diminish powers already granted to such subordinate units of government. State ex rel. Nat. Bank of Tacoma v. Tacoma, 97 Wash. 190, 166 Pac. 66.”
Cross-appellants and the state advance substantially the same arguments as respondents relative to the law of the case, and therefore, without further discussion of that point, it is my opinion that these parties are bound by that doctrine for the reasons above stated. The state’s further contention that it was not then a party in Tacoma v. Taxpayers, supra, and therefore not bound by the law of the case, is untenable, for the reasons hereinafter stated on the question of res judicata.
Turning now to my second reason for dissenting, to wit, that cross-appellants and the state are bound by the doctrine of res judicata, I wish to refer to certain undisputed facts shown in the record.
Appellant pleaded in its reply that the decision of the court of appeals for the ninth circuit in State of Washington Department of Game v. Federal Power Comm., supra, was a bar to the position now taken by cross-appellants and the .state in this court.
In 1948, appellant filed its declaration of intention to construct the Cowlitz project and followed this with its application to the Federal power commission for a license under the Federal power act (16 U.S.C.A., § 791 et seq.). As required by the act, notice was served upon the state, in response to which the attorney general filed a petition to intervene upon behalf of the departments of fish and game of the state of Washington. The petition alleged that the state of Washington was a sovereign state of the United States, and that the state of Washington department of game and state of Washington department of fisheries were each *807a department and subdivision thereof, charged with the duty of enforcing its laws, rules, and regulations relative to the conservation of food fish and game fish. The petition contained this allegation in paragraph nine:
“That the reservoirs which would be created by the proposed dams would inundate a valuable and irreplacable fish hatchery owned by the State of Washington, as well as much productive spawning areas.”
In, addition, there was a petition for intervention filed on behalf of Washington State Sportsmen’s Council, Inc., a nonprofit corporation, in opposition to the granting of a license-to appellant. This petition contained an allegation identical to that last above quoted. Appellant’s answer to this petition admitted the allegation. Both petitions for intervention were allowed.
Upon the issues thus framed, hearings were thereafter held before a presiding examiner of the Federal power commission, which consumed twenty-four days. An assistant attorney general, designated by his superior for the purpose, participated in these hearings and vigorously opposed appellant’s application for a license. The attorney for the Sportsmen’s Council did likewise.
During the proceedings, the assistant attorney general called Robert Meigs, assistant chief of the fish management division for the Washington state department of game, to testify on behalf of interveners. His testimony was, in part, as follows:
“Q. Now, does the State of Washington Game Department have a hatchery on the Cowlitz watershed? A. Yes, we have what we refer to as the Mossyrock Hatchery, which is located a short distance from Mossyrock, Washington. [3348] Q. Is it within the area that would be inundated by these dams? A. According to information furnished us by Tacoma, the flood fine from the Mayfield reservoir would extend some 400 feet past the hatchery and would flood it out. Mr. Mason: You mean 400 feet vertically or horizontally? The Witness: That I don’t recall. I don’t think vertically; horizontally.”
Thus the proposed inundation of the Mossyrock hatchery, owned and operated by the state of Washington, was not *808only admitted in the pleadings but was proven by undisputed evidence. Furthermore, it is indisputable that the flooding of the state’s hatchery was an obvious part of the comprehensive scheme of the development of the Cowlitz river, which appellant was asking the power commission to approve in granting the city the license for which it was applying.
At the conclusion of the hearings, the presiding examiner recommended against issuance of the license. Appellant filed exceptions, and the matter was argued orally by all parties before the commission.
Thereafter, the Federal power commission made findings of fact, rendered an opinion, and issued the license to appellant.
Interveners filed a petition for rehearing before the commission, which was denied January 24, 1952.
On March 12, 1952, the state departments of game and fisheries et al. filed, in the United States court of appeals for the ninth circuit, a petition for review of the orders of the Federal power commission. The printed record in that case comprises 4,392 pages. One of the principal points relied upon by petitioners for annulment of commission’s order was stated in the petition for review, as follows:
“Finding No. 53 by the Commission is not supported by substantial evidence and is contrary to Section 9 (b) and 27 of the Federal Power Act in that Applicant has not complied with the Water Code of the State of Washington as required by said sections.”
After setting forth the pertinent findings of the commission, and following a discussion of First Iowa Hydro-Electric Cooperative v. Federal Power Comm., 328 U. S. 152, 90 L. Ed. 1143, 66 S. Ct. 906, the court of appeals answered this contention as follows:
“The Commission in our case acted within the scope of its discretion in not requiring Tacoma to show compliance with the laws of the State of Washington regulating the construction of dams in Washington, because compliance with those laws would have' prevented the development of the Cowlitz Project; and in the opinion of the Commis*809sion of the Cowlitz Project was ‘best adapted to a comprehensive plan’ for the development of a concededly navigable stream. The Federal Government’s Constitutional authority to regulate commerce and navigation includes the ‘power to control the erection of structures in navigable waters’, United States v. Appalachian Power Co., 1940, 311 U. S. 377, 405, 61 S. Ct. 291, 298, 85 L. Ed. 243..The Federal Government’s power over navigable waters is superior to that of the state. McCready v. Virginia, 1876, 94 U. S. 391, 24 L. Ed. 248.
“The objectors further contend that Tacoma, as a creature of the State of Washington, cannot act in opposition to the policy of the State or in derogation of its laws.
“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. Yet, 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. 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.” State of Washington Department of Game v. Federal Power Comm. 207 F. (2d) 391.
In the last paragraph above quoted, the court of appeals implied that there might be a question of municipal indebtedness limitation or some other related question involved, and cited the case of Tacoma v. Taxpayers, supra, then pending in this court. No such question was raised in that case on the first appeal or subsequently.
The state laws which the court of appeals held were not a bar to construction of the Cowlitz project were the same laws passed upon by this court in Tacoma v. Taxpayers, *810supra, viz., the Columbia river fish sanctuary act and the fisheries code.
The court of appeals declined to overturn any of the commission’s findings which were attacked by the petitioners. The court found that these findings (including Nos. 53 and 59, above quoted) were supported by substantial evidence and declined to interfere with the commission’s order granting the license to the city of Tacoma.
The petitioners’ petition for certiorari to the United States supreme court was denied on April 5, 1954. Washington Department of Game v. Federal Power Comm., 347 U, S. 936, 98 L. Ed. 1087, 74 S. Ct. 626.
Cross-appellants and the state now vigorously attempt to avoid the effect of the two prior appeals in this litigation. They state in their brief:
"... We will, however, limit our remarks to the state of the pleadings after August 8, 1955, since this was the date on which the court, in the proper exercise of its discretion, granted the City’s request to file an amended complaint and also permitted the State of Washington in its sovereign capacity to be added as a party defendant. At this point, with respect 'to the state of the pleadings, this was a fresh lawsuit, and we believe any discussion of former pleadings would be immaterial. . (Italics mine.)
The only purpose in filing appellant’s amended complaint was to incorporate an allegation that appellant’s license had been amended to grant appellant a two-year extension of time within which to commence construction of the Cow-litz project, and to incorporate two minor amendments of ordinance No. 14386. There was no material change in the pleadings.
The real crux of the argument advanced seems to be that, by adding the “Sovereign State of Washington” as a party in the present case, it became a new and independent lawsuit. This position cannot be sustained.
In State v. Pacific Tel. & Tel. Co., 9 Wn. (2d) 11, 113 P. (2d) 542, the state of Washington attempted to maintain a suit to recover the state compensating or use tax on goods purchased outside this state by defendant. In a previous suit, *811defendant had obtained a judgment enjoining collection of the tax by the tax commissioners of the state of Washington. (Pacific Tel. & Tel. Co. v. Henneford, 195 Wash. 533, 81 P. (2d) 786.) On appeal, this court held that the tax was an unlawful burden on interstate commerce. The question presented in the second case was whether the first suit was res judicata, and this question depended upon whether or not the state of Washington was actually a party in the first suit, even though that suit had been maintained against the tax commissioners. The court stated:
“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.”
After discussing the pertinent statutes, the court .concluded that the tax commissioners were authorized to represent the state in collection of the use tax, and that the judgment in the prior action was res judicata as against the state in the second action.
In the case at bar, the director of fisheries and the direc-i tor of game are charged with the duty of enforcing the rules and regulations of their respective departments relative to the conservation and preservation of food fish and of game fish. See RCW 75.08.080 and RCW 77.04.080.
Further powers and duties of the director of fisheries are as follows: He has authority to enter into agreements with the department of defense relative to co-ordinating and correlating the control of fishing in the waters of the state, over which the department of defense has assumed control (RCW 75.08.025); the power to establish and maintain state fish hatcheries, rearing stations, eyeing stations, brood ponds, and other facilities as in his judgment may be necessary for the exercise of his powers (RCW 75.08.030); the authority to accept money from municipalities, or other governmental units, in settlement of any claim for damages to food fish resources, and he is by statute designated the agent of the state to accept and receive all such funds and deposit them with the state treasurer (RCW 75.16.050). The director *812of game has similar powers conferred upon him by statute (RCW 77.12.200, 77.12.210, 77.12.220).
Under authority of these statutes, I am of the opinion that the directors of fisheries and of game, as agents of the state, are vitally interested in the continued existence of the Mossyrock hatchery. Their interest therein is not personal, nor is it an interest different from that of the sovereign state. The departments of fisheries and of game are but limited subdivisions of the state itself. They do not exist as entities sui juris, as does, for example, the state power commission. Therefore, the Mossyrock hatchery, which is concededly owned by the state, is under the jurisdiction of the departments of fisheries and of game, but they exercise control over it merely as agents of the state.
The directors of fisheries and of game were, therefore, properly joined as parties to the proceedings herein, and, under the rule announced in State v. Pacific Tel. & Tel Co., supra, it was their duty to represent the state. I conclude that the litigation in this court, as well as in State of Washington Department of Game v. Federal Power Comm., supra, has at. all times been an action against the state.
There is another basis for my conclusion that the state has been represented at all times in this action. The attorney general designated certain of his assistants to represent the departments of fisheries and of game in this litigation, in accordance with the following pertinent statutes.
RCW 43.10.030, defining the powers and duties of the attorney general, provides that he shall:
“(Í) Appear for and represent the state before the courts in all cases in which the state is interested;
“(2) Institute and prosecute all actions and proceedings for, or for the use of the state, which may be necessary in the execution of the duties of any state officer;
“ (3) Defend all actions and proceedings against any state officer in his official capacity, in any of the courts of this state or the United States; . . .
“ (5) Consult with and advise the governor, members of the legislature and other state officers, and when requested, give written opinions upon all constitutional or legal questions relating to the duties of such officers; ...”
*813Under RCW 43.10.040, it is further provided that:
“The attorney general shall also represent the state and all officials, departments, boards, commissions and agencies of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings, and advise all officials, departments, boards, commissions, or agencies of the state in all matters involving legal or. quasi legal questions, except those declared by law to be the duty of the prosecuting attorney of any county.”
Under the authority of these statutes, the state of Washington was represented by its attorney general, both before the commission and the court of appeals.
“The Attorney General for the State appointed a special assistant attorney general to represent all persons not otherwise represented whose views were in conflict with the State Departments of Game and Fisheries. Thus, the State of Washington by its Attorney General, and the people of Washington holding views not in harmony with the State’s official position, and the applicant City of Tacoma were represented at the hearing which was had before an Examiner.” State of Washington Department of Game v. Federal Power Comm., 207 F. (2d) 391, 393.
He could and should have raised, before the Federal power commission and the court of appeals, the objection that appellant did not have statutory authority to condemn state lands devoted to public uses.
It is the purpose of the law that where issues have once been litigated and decided, the litigation shall then be at an end.
Where a party has had a full opportunity to present all the defenses at his command, and fails to do so, the doctrine of res judicata applies. Symington v. Hudson, 40 Wn. (2d) 331, 243 P. (2d) 484.
This doctrine was applied by the supreme court of the United States in Commissioner of Internal Revenue v. Sunnen, 333 U. S. 591, 92 L. Ed. 898, 68 S. Ct. 715, where it was said:'
“It is first necessary to understand something of the recognized meaning and scope of res judicata, a doctrine *814judicial in origin. The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ Cromwell v. County of Sac, 94 U. S. 351, 352. The judgment puts an end to the cause of action,-which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, ‘Res Judicata,’ 38 Yale L. J. 299; Restatement of the Law of Judgments, §§ 47, 48.”
The rule above stated is directly applicable in this case. In State of Washington Department of Game v. Federal Power Comm., supra, the pleadings admitted, and the proof established, that the Mossyrock hatchery would be inundated and, of necessity, taken by condemnation proceedings. The final judgment entered in that case is, therefore, binding upon cross-appellants and the state as to the issue of condemnation, which they now contend is before this court for the first time.
Neither the entry of new counsel into the case nor the addition of a sovereign state as a party defendant,' after its duly appointed representatives had lost the case, changes the character of the lawsuit. I am of the opinion that the decision of the court of appeals for- the ninth circuit, in the case of State of Washington Department of Game v. Federal Power Comm., supra, is res judicata as against both cross-appellants and the state.
Assuming arguendo that neither the doctrine of the law •of the case nor the doctrine of res judicata applies to the facts before us, then my third reason for dissenting is that the majority has misconstrued the Federal power act and has failed to give it the supremacy over state laws which should be accorded it under the commerce clause of the .United States constitution.
*815I am entirely in agreement with the majority in its statement of the general rule that a municipality is a creature of the legislature, and that its powers (including that of eminent domain) are derived from the legislature or the constitution. It has no power of eminent domain except as granted by the legislature. But, in this case (as stated on the first appeal), the power of Congress, under the commerce clause, is superior to that of the state when Congress exercises its power as it did in enacting the Federal power act.
The two principal decisions of the United States supreme court construing the power act and its supremacy under the commerce clause were discussed in this court’s opinion on the first appeal. They are United States v. Appalachian Electric Power Co., 311 U. S. 377, 85 L. Ed. 243, 61 S. Ct. 291, and First Iowa Hydro-Electric Cooperative v. Federal Power Comm., 328 U. S. 152, 90 L. Ed. 1143, 66 S. Ct. 906. These two decisions will herein be referred to as the Appalachian case and the First Iowa case, respectively.
Bearing in mind the holding in these two cases that Congress has plenary power over navigable waters, and that it may deny, or grant, on such terms as it sees fit, the privilege of constructing dams therein, I wish to invite attention to certain provisions of the Federal power act (41 Stat. 1063).
In §4(e) (16 U.S.C.A. § 797), the Federal power commission (herein referred to as the commission) was authorized to issue licenses for the construction of dams and appurtenances to certain entities, including “any state or municipality.” In the preceding § 3, Congress defined the term “municipality” as follows:
“ ‘municipality’ means a city, county, irrigation district, drainage district, or other political subdivision or agency of a State competent under the laws thereof to carry on the business of developing, transmitting, utilizing, or distributing power; ...”
Under § 6 (16 U.S.C.A. § 799), the commission may issue such licenses for a period not exceeding fifty years which may be conditioned upon the acceptance by the licensee of *816certain terms and conditions stated in the act and of any others that may be prescribed by the commission pursuant thereto.
Section 9 (16 U.S.C.A. § 802) provides:
“Each applicant for a license under this chapter shall submit to the commission—
“(a) Such maps, plans, specifications, and estimates of cost as may be required for a full understanding of the proposed project. Such maps, plans, and specifications when approved by the commission shall be made a part of the license; and thereafter no change shall be made in said maps, plans, or specifications until such changes shall have been approved and made a part of such license by the commission.
“(b) Satisfactory evidence that the applicant has complied with the requirements of the laws of the State or States within which the proposed project is to be located with respect to bed and banks and to the appropriation, diversion, and use of water for power purposes and with respect to the right to engage in the business of developing, transmitting, and distributing power, and in any other business necessary to effect the purposes of a license under this chapter.
“ (c) Such additional information as the commission may require.”
Section 10 (16 U.S.C.A. § 803) prescribes certain conditions on which all licenses shall be issued. Subdivision (a) thereof reads as follows:
“That the project adopted, including the maps, plans, and specifications, shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water power development, and for other beneficial public uses, including recreational purposes; and if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of the plans and specifications of the project works before approval.”
By 114 (16 U.S.C.A. § 807), the United States is granted an option to purchase any project upon or after the expiration of the license upon payment of the net investment of *817the licensee if the purchase price be not mutually agreed upon by the parties. The term “net investment” is defined in § 3 of the act (16 U.S.C.A. § 796).
Licensees are granted the power of eminent domain in § 21 (16 U.S.C.A. § 814) in the following language:
“When any licensee cannot acquire by contract or pledges an unimproved dam site or the right to use or damage the lands or property of others necessary to the construction, maintenance, or operation of any dam, reservoir, diversion structure, or the works appurtenant or accessory thereto, in conjunction with an improvement which in the judgment of the commission is desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such land or other property may be located, or in the State courts. The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated; Provided, That United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3,000.”
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.
*818The 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.
The licensee derives the power of eminent domain from § 21 of the act (quoted above). Long before the passage of the act, Congress, in 1906 (34 Stat. 462), enacted á special act authorizing the city of St. Louis to construct a bridge across the Mississippi river in accordance with the general bridge act. With respect to the exercise of the power of eminent domain, § 2 of the special act provided:
“That for the purpose of carrying into effect the objects of this Act, the city of Saint Louis may receive, purchase, and also acquire by lawful appropriation and condemnation in the States of Illinois and Missouri, upon making proper compensation, to be ascertained according to the laws of the State within which the same is located, real and personal property and rights of property, and may make any and every use of the same necessary and proper for the construction, maintenance, and operation of said bridge and approaches consistent with the laws of the United States and of the said States respectively.”
The authority of St. Louis to condemn lands for bridge approaches in Illinois was challenged. In Latinette v. St. Louis, 201 Fed. 676, the circuit court of appeals (7th cir.) disposed of this challenge by saying:
“Only consent was given by section 1 of this latter act to build the bridge in the manner and on the conditions expressed in the general bridge statute. Authority to exercise the sovereign power of appropriation, if given at all, was conferred in section 2. Appellant’s contention is that the words ‘according to the laws of the state’ show that Congress meant that St. Louis should not have power to condemn except by virtue of state law, and that, inasmuch *819as Illinois refuses to give St. Louis the power, the judgment must be reversed. But, looking to the construction of the sentence, it seems clear to us that only the ‘compensation’ is ‘to be ascertained according to the laws of the state.’ Furthermore, while Congress might tell its agent to go to the state law for the rules of practice, it could not constitutionally effect anything by telling its agent to go to the state law for power to condemn land, for a national purpose. Condemnation is an attribute of sovereignty. It must be exercised directly by the sovereign or through an agency appointed by the sovereign. Neither the power nor the selection of agents can be transferred to another. States have the power only for state purposes; the nation, only for national purposes. So, the power to condemn mentioned in section 2 must be referred to the national power. And finally, Congress in framing section 2 used a formula of expression which had already been judicially construed. In Luxton v. North River Bridge Co., 153 U. S. 525, 14 Sup. Ct. 891, 38 L. Ed. 808, the act provided that the bridge company might ‘acquire by lawful appropriation and condemnation, upon making proper compensation therefor, to be ascertained according to the laws of the state within which the same is located, real and personal property and rights of property’; and these words, the same as in the case at bar, were held to relate to the national power.
“Contention is therefor narrowed to this: That Congress could not constitutionally select appellee as the agency through which a national power should be exercised. Nothing in the Constitution forbids the selection of a state corporation as a national agent. In reason the material thing is the principal’s authority, not the parentage or birthplace of the agent. And the decisions of Mr. Justice Bradley at circuit in Stockton v. B. & N. Rid. Co. (C. C.) 32 Fed. 9, and of the Supreme Court in Cherokee Nation v. Kansas Ry. Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295, explicitly cover the point.” (Italics mine.)
Another case which does involve the right of a licensee under the act to exercise the power of eminent domain is State of Missouri ex rel. Camden County v. Union Electric Light & Power Co., 42 F. (2d) 692. There, a private utility corporation had received a license from the power commission to build a dam for the purpose of producing hydroelectric power. The plan contemplated a dam which
*820“ . . . would inevitably create an immense reservoir and cause the inundation of vast tracts and bodies of land, the submergence of many public highways and school districts, and the permanent overflow of the village of Linn Creek in Camden county, which is now the county seat of said county; and that the courthouse and other public property situated in said Linn Creek would be flooded and rendered useless.”
The state of Missouri and Camden county brought an action in the United States district court to enjoin the construction of the proposed dam. After discussing the power of Congress under the commerce clause and the effect of the Federal water power act of 1920 (prior to the 1935 amendment), the court considered § 21, relating to the power of eminent domain as it related to property already devoted to a public use. After quoting § 21, the court said:
“The licensee has been granted the power to acquire property by the exercise of eminent domain in express terms. Concededly this right may be exercised as against private property.
“ ‘Public lands,’ as used in the act, refers only to lands owned by the United States. The only question, therefore, that is here presented is whether the right of eminent domain may be exercised against property already dedicated to a public use when situated within the proposed reservoir and to be affected by the improvement.
“While it is well settled that the Legislature may authorize the taking of property already devoted to a public use, it is equally well established that a general delegation of the power of eminent domain does not authorize the taking of property already devoted to a public use, ‘unless it can clearly be inferred from the nature of the improvements authorized or from the impracticability of constructing them without encroaching upon such property that the legislature intended to authorize such a taking.’ 10 R. C. L. § 169; Western Union Telegraph Co. v. Pennsylvania R. R. Co. et al., 195 U. S. 540, 25 S. Ct. 133, 49 L. Ed. 312, 1 Ann. Cas. 517. In this connection it cannot be questioned but that the Congress had the power to confer the right of eminent domain upon the defendant Union Electric Light & Power Company. 10 R. C. L. § 167.
“In the instant case the Congress must have contemplated this identical situation; hence the requirement of notice. *821Moreover, the proposed improvements could not be accomplished, except through the exercise, if necessary, of eminent domain against property already dedicated to public use. To deny the right of eminent domain as against this public property would not only defeat the functions of the national government, but would run contrary to the obvious intent of the Congress as expressed in the Water Power Act. Stockton, Attorney General, v. Baltimore & New York R. R. Co. (C. C.) 32 F. 9; 20 C. J. § 90, P. 602; Vermont Hydro-Electric Corporation v. Dunn et al., 95 Vt. 144, 112 A. 223,12 A. L. R. 1495; Imperial Irrigation Co. v. Jayne, 104 Tex. 395, 138 S. W. 575, Ann. Cas. 1914B, 322.
“It is not within the judicial power to question the purpose for which property is to be taken under the power of eminent domain. The necessity for the taking is not a judicial question, but is exclusively within the power of Congress and one which it may determine by direct enactment or by delegating the power to some officer or board. Kaw Valley Drainage District of Wyandotte County, Kansas, et al. v. Metropolitan Water Co. (C. C. A.) 186 F. 315.” (Last italics mine.)
The state’s prayer for an injunction to prevent the flooding of the public property within the proposed reservoir was denied.
The majority opinion holds that the state of Washington may now, at this late date, appear in this declaratory judgment action and obtain a declaration that appellant may not condemn the right to flood the Mossyrock hatchery because the legislature has not authorized such a proceeding.
In my opinion, the assertion comes too late, because the power commission, in a proceeding before it (to which the state was a party), found (finding No. 53) that appellant had authority under state law to do everything necessary to carry out the provisions of the license granted it. The record showed that the acquisition of the right to flood this state-owned hatchery was an essential part of the comprehensive plan for the development of the Cowlitz river, which the power commission had approved and for which the license was issued to appellant. As- previously stated, the state’s challenge of this finding was overruled by the court of appeals for the ninth circuit (207 F. (2d) 391). To *822uphold the state’s contention in the present case, is to overrule the decision of a Federal court in a matter over which it had jurisdiction. It seems to me that considerations of comity forbid our doing so.
But the most serious error in the majority opinion (as I see it) is the disregard of the constitutional separation of state and Federal powers as recognized by the supreme court’s decisions in the Appalachian and First Iowa cases. It would extend this opinion beyond all permissible limits to review those decisions in detail. The supreme court plainly held that the power commission had sole jurisdiction to determine whether a licensee had authority under state laws to carry out the terms of its license.
This holding is emphasized by the dissenting opinion of Justice Frankfurter, who did not disagree with the court’s interpretation of the Federal power act nor the constitutional power of Congress to enact it. He felt that under § 9 (b) the power commission should not make a finding regarding state laws until the state courts had interpreted them. This is clear from the following portion of his dissenting opinion:
“By |9(b) of the Act, 41 Stat. 1063, 1068; 16 U. S. C. § 802 (b), Congress explicitly required that before the Commission can issue a license for the construction of a hydroelectric development, such as the proposed project of the petitioner, the Commission must have ‘satisfactory evidence that the applicant has complied with the requirements of the laws of the State’ in reference to the matters enumerated.
“Whether the Commission has such ‘satisfactory evidence’ necessarily depends upon what the requirements of State law are. In turn, what the requirements of State law are often depends upon the appropriate but unsettled construction of State law. And so, the Commission may well be confronted, as it was in this case, with the necessity of determining what the State law requires before it can determine whether the applicant has satisfied it, and therefore, whether the condition for exercising the Commission’s power has been fulfilled.
“To safeguard the interests of the States thus protected by §9(b), Congress has directed that notice be given to the State when an application has been filed for a license, *823the granting of which may especially affect a State. Section 4(f), 49 Stat. 838, 841; 16 U.S.C. § 797(f). If a State does not challenge the claim of an applicant, the evidence submitted by the applicant, if found to be satisfactory by the Commission, has met the demands of § 9(b), and a State cannot thereafter challenge the Commission’s determination.” (Italics mine.)
The majority of that court in the First Iowa case did not indicate any disagreement with the italicized portion of the dissent quoted. The majority were of the view that the commission could make findings under § 9 (b) in the absence of state court decisions interpreting state statutes. We are, of course, bound by the majority decision.
To hold otherwise is to permit the state of Washington to exercise a veto as to the project involved in the case before us by saying that the power commission was wrong in finding that the city of Tacoma had authority under state law to construct these dams, because the city has no authority to condemn the right to flood the state’s fish hatchery. Under the decision in the First Iowa case, the power commission has exclusive jurisdiction to make a finding whether a licensee has authority under state law to engage in the power business. (§ 9 (b)). The power commission has made that finding (the circuit court refused to set aside the finding), so that factual issue was permanently and effectively settled.
The Federal power act in § 21 affords a licensee ample authority as an agent of the Federal government to exercise the power of eminent domain without state authority. A state may not deny or impair this authority once a license has been issued.
The majority opinion concludes with the following statement of its decision on the constitutional question presented:
“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; *824it 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.”
However much I might agree with the majority’s statement in the last paragraph above quoted as to the effect of such a holding on the powers of a sovereign state, several decisions of the United States supreme court rendered in the past twenty-five years construing the commerce clause (in addition to the Appalachian and First Iowa cases) compel my dissent from the majority holding as stated in the first two paragraphs of the quotation.
An excellent discussion of these decisions is found in the January, 1957, issue of the American Bar Association Journal (Vol. 43, p. 55) under the subheading “The Commerce Clause — Then and Now.” Among the decisions cited therein are: National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 81 L. Ed. 893, 57 S. Ct. 615, 108 A. L. R. 1352 (upholding the validity of the Wagner Act under the commerce clause); United States v. Darby, 312 U. S. 100, 85 L. Ed. 609, 61 S. Ct. 451, 132 A. L. R. 1430 (upholding the validity of the fair labor standards act under the commerce clause); United States v. South-Eastern Underwriters Ass’n, 322 U. S. 533, 88 L. Ed. 1440, 64 S. Ct. 1162 (holding that the insurance business may be regulated by Congress under the commerce clause).
Other examples of acts of Congress, based upon the commerce clause and having a similar effect upon the powers of the states, which have been held valid by the Federal courts are: Securities act of 1933, declared constitutional in Jones v. Securities & Exchange Comm., 298 U. S. 1, 80 *825L. Ed. 1015, 56 S. Ct. 654; Securities exchange act of 1934, declared constitutional in Wright v. Securities & Exchange Comm., 112 F. (2d) 89 (C.C.A. 1940).
Whatever views one may entertain regarding the effect of these decisions upon powers of the sovereign states, the supreme court remains the final authority on the constitutionality and interpretation of these acts of Congress as well as of the Federal power act. Under Art. VI of the United States constitution, the laws of the United States made in pursuance thereof are declared to be the supreme law of the land, binding on state judges regardless of any state laws or constitutional provisions to the contrary.
Therefore, deeming myself bound by the decisions of the supreme court in the Appalachian and First Iowa cases, interpreting the Federal power act, I am impelled to dissent from the opinion of the majority in this case.
Without further extending my views, I deem it sufficient to state that, in my opinion, appellant’s amended complaint states a cause of action, and that the several answers and cross-complaints herein have not raised a valid defense, for the reasons heretofore given.
My conclusion is that appellant has a valid license issued by the Federal power commission for construction of the Cowlitz project, and that the utility bonds authorized by ordinance No. 14386, as amended, have not been shown to be invalid in any respect.
I would dispose of this case as follows:
The portion of the judgment from which the cross-appeal is taken should be affirmed. On appellant’s appeal, the judgment of the trial court should be set aside, and the cause remanded to the superior court with directions to enter a declaratory judgment for appellant in conformity with the views expressed herein. The injunction pendente lite, heretofore continued in effect by order of this court, should be dissolved.
Mallery and Finley, JJ., concur with Donworth, J.
April 30, 1957. Petition for rehearing denied.