(concurring in the result) — The instant majority opinion is irreconcilable with State ex rel. Washington Toll Bridge Authority v. Yelle, 54 Wn. (2d) 545, 342 P. (2d) 588 (hereinafter referred to as the Toll Bridge case), which prohibited the state highway commission from guaranteeing payment to toll bridge bonds out of the state motor vehicle fund.
The majority opinion in the instant case permits the King county commissioners to guarantee payment of the toll bridge bonds out of the state motor vehicle fund.
This is not a case where the King county commissioners have greater power over the motor vehicle fund than the state highway commission has, so that only they can guarantee the toll bridge bonds. This is abundantly clear from *106the original Washington State Toll Bridge Authority Act (Laws of 1937, chapter 173, p. 654) which provided, inter alia [p. 659]:
"... The Washington Toll Bridge Authority is empowered to receive and accept funds from the State of Washington or the Federal government upon a cooperative or other basis for the construction of any toll bridge authorized under this act and is empowered to enter into such agreements with the State of Washington or the Federal government as may be required for the securing of such funds.” (Italics mine.)
This was pointed out in the dissent to the Toll Bridge case, supra, in these words [p. 680]:
“. . . In short, if any moneys are paid out of the Motor Vehicle Fund, they will constitute loans to the Toll Bridge Authority and will be repayable out of tolls. This course of action, as contemplated by the Supplemental Appropriation Bill, is in full accord with the existing powers of the Toll Bridge Authority and the State Highway Commission.” (Italics mine.)
There is no justification for an undeclared judicial change of heart which produces unnecessary confusion in the law. The Toll Bridge case should be openly overruled. That the instant case does so sub silentio necessarily follows from these facts.
The concluding paragraph of the Toll Bridge case, supra, contains the ruling of the case [p. 677]:
“This does not mean that the bridge across Lake Washington need be delayed. It is clear that chapter 266, Laws of 1957, gives requisite authority to proceed. The seven hundred fifty thousand dollars a year, which counsel say would probably never be used, falls far short of being sufficient to guarantee even the annual interest on thirty million dollars worth of bonds; but it is an entering wedge. If the court were to approve the method used here to make a token guarantee from tax sources of what are supposedly revenue bonds, it would afford the precedent for complete guarantees from tax sources by a similar procedure.” (Italics mine.)
This ruling that tax sources cannot guarantee revenue bonds is precise and unequivocal. It is predicated upon this reasoning in that opinion [p. 675]:
*107“ . . . the Laws of 1957, chapter 266, § 2, which states that the revenue bonds which the Toll Bridge Authority may issue for the second Lake Washington toll bridge ‘shall be payable both principal and interest solely from the tolls and revenues derived from the operation of said toll facility.’
“The 1957 law does more than restrict the power of the Toll Bridge Authority; it restricts the sources available for payment on the bonds. ...” (Italics mine.)
The Toll Bridge case then proceeds to confuse a guarantee with the ultimate payment of the bonds. The reasoning which produced this erroneous ruling is contained in this paragraph of the opinion [p. 675]:
“We do not regard it as material that any amounts taken from the Motor Vehicle Fund to pay principal and interest on the bonds will ultimately be repaid from tolls and revenues of the bridge. Moneys of the Motor Vehicle Fund are being made available to guarantee prompt payment of principal and interest on these bonds, and this constitutes a provision substantially at variance with the restriction on the source of payment which is a part of the 1957 act.”
This holding that a guarantee and an ultimate payment are legally the exact equivalent of each other must be overruled if any tax source is to be used to guarantee the toll bridge bonds. The fact is, they are not the same. When the ultimate payment of the bonds is made out of tolls, the effect of the guarantee is spent. It thus ceases to exist without any depletion of the motor vehicle fund, since any payments out of it would have been only loans, which had been repaid out of tolls. The Toll Bridge case, supra, refuses to recognize the terminal status of the motor vehicle fund when it says [p. 675]:
“We do not regard it as material that any amounts taken from the Motor Vehicle Fund to pay principal and interest on the bonds will ultimately be repaid from tolls ...”
The total ultimate payment out of tolls is not merely material, it is determinative of the source of the bond payments. An expired guarantee does not constitute a payment of the bonds, the Toll Bridge case to the contrary notwithstanding.
*108Having pointed out the specific points of irreconcilability between the cases, it remains only to be said that the Toll Bridge case, supra, is no longer the law.
I concur only in the result of the majority opinion.