In re Washington Public Power Supply System

Weaver, J.

(dissenting)—I dissent from that portion of the majority opinion which states:

“Whether it [WPPSS] has, as a municipal corporation of the state of Washington, the power and authority to construct and operate such a project [Nez Perce or High Mountain Sheep dams between Oregon and Idaho] is not before the court and is not here passed upon.” (Italics mine.)

I believe the question is before this court. If we do not recognize and pass upon it, we will, in the almost predictable future, be confronted with the argument that the question is res judicata.

The fourth unnumbered paragraph of ROW 43.52.360 directs that the order entered by the Director of Conservation and Development

“. . . shall establish the competency of the operating agency to proceed according to law to procure such permits, licenses or authority.” (Italics mine.)

Pursuant to the statute, the Director entered an order entitled, “Order Authorizing the Undertaking of Additional Projects by Washington Public Power Supply System.” The order recites that the Supply System had applied

“ . . . .for an order authorizing the Supply System to construct either of the following described projects for which it may be granted the required governmental permits, licenses or authority.”

The decretal portion of the Director’s order provides:

“It Is Therefore Ordered that the Washington Public Power Supply System, a municipal corporation of the State of Washington, is hereby authorized to construct either the Nez Perce project or the High Mountain Sheep Project above described for which it may be granted the required governmental permits, licenses or authority, and its competency to proceed according to law to procure such permits, licenses or authority is hereby established.” (Italics mine.)

*947“Competent” is a well-defined word; it is not ambiguous:

“Able, fit, qualified; authorized or capable to act.” Bouvier’s Law Dictionary (Rawle’s 3d Rev.) (8th ed.)
“Duly qualified; answering all requirements; having sufficient ability or authority; possessing the requisite natural or legal qualifications; able; adequate; suitable; sufficient; capable; legally fit.” Black’s Law Dictionary (4th ed.) (1951).

Thus, pursuant to statute (RCW 43.52.360, second paragraph), WPPSS sought from the proper state official, a declaration of its competency to construct and operate a hydroelectric project outside the state of Washington. Objections to the petition were filed (RCW 43.52.360, third paragraph); the proper state official entered his findings and order (RCW 43.52.360, fourth paragraph). An appeal was prosecuted (RCW 43.52.360, sixth paragraph) in accordance with RCW 43.52.430 to the Superior Court for Thurston County, and from there to this court. From this, I conclude that the question is properly before us; and if not decided, becomes res judicata, for the doctrine embodies not only questions decided, but also questions upon “ . . . which there has been an opportunity to litigate, . . . ” Walsh v. Wolff, 32 Wn. (2d) 285, 287, 201 P. (2d) 215 (1949).

Although the subject matter has evolved, and will continue to develop into a Hydra-headed controversy, there is, in the present posture of the matter before us, a single question determinative of its disposition.

Does WPPSS, a municipal corporation (RCW 43.52.360, first paragraph), created by the state as a subordinate unit,14 have the statutory power to construct and operate a hydroelectric project outside the state of Washington?

Whether such power exists under the statutes of the *948state presents a problem peculiarly within the province and jurisdiction of the courts of this state.

WPPSS has, however, sought elsewhere for an answer to the question. It commenced a declaratory judgment action—Washington Public Power Supply System, a municipal corporation, Plaintiff, v. Pacific Northwest Power Company, a corporation, Defendant, Civil Case No. 62-110 —in the United States District Court, District of Oregon. Both parties moved for summary judgment. In the words of the district court:

“ . . . The plaintiff [WPPSS] asks that the court adjudicate and declare:

“1. That subject to the requirements of the Federal Power Act (Title 16 U.S.C.A. Ch. 12) the plaintiff is authorized under the laws of the State of Washington, particularly RCW Ch. 43.52, to construct either the Nez Perce or High Mountain Sheep Project . . . ”

In an exhaustive and well-considered written opinion, Judge Kilkenny analyzed all of the applicable Washington statutes and concluded that WPPSS does not have authority to construct, in its own name, either or both of the planned hydroelectric projects. (Washington Public Power Supply System v. Pacific Northwest Power Co., 217 F. Supp. 481 (1963)).15

It would be presumptuous of me, in this dissent, to attempt to paraphrase all of Judge Kilkenny’s scholarly opinion. I confine myself to a discussion of two subsections of the applicable statute, which I believe to be the nub of the problem.

The hydroelectric potential of the state of Washington and of the Pacific Northwest has long been recognized as a natural resource of the highest calibre. Its development presents more than a state problem; it is a regional problem involving the United States, the Dominion of Canada, and several states, in addition to our own. The specific question of the instant case is whether plaintiff has *949the statutory authority to act independently of others outside the state of Washington.

RCW 43.52.300 (2)16 is the statutory grant of power to a joint operating agency such as WPPSS to construct hydroelectric projects and transmission systems. The statute does not mention whether the power is to be exercised within or without the state. Obviously, there is no necessity to mention specifically a right to construct within the state. I agree with Judge Kilkenny’s conclusion that

"... There is nothing in this subsection to indicate an intention on the part of the Washington Legislature to authorize the Commission to construct its own hydroelectric projects outside of the State of Washington. ...”

The most pertinent language of the statute is found in RCW 43.52.300(3):

“To negotiate and enter into contracts with the United States or any of its agencies, with any state or its agencies, with Canada or its agencies or with any district or city of this state [for the construction, etc. of electric generating and transmission plants] either within or without the state of Washington, . . . Such negotiations or contracts shall be carried on and concluded with due regard ta the position and laws of the United States in respect to international agreements.” (Italics mine.)

A comparison of subsections (2) and (3) of the statute leads me to the conclusion that our legislature had a keen *950appreciation of the complex problems that might arise from a Washington municipal corporation operating in a foreign jurisdiction. It gave the operating agency full and complete power to construct hydroelectric projects within the state; it authorized the agency to cooperate, by negotiations and contracts, with other states, the United States, and Canada for the planned and orderly development of the hydroelectric resources of the entire region.

Judge Kilkenny observed:

“ . . . The very fact that the Legislature used the language ‘without the state’ in subsection (c) [3] and did not use it in subsection (b) [2] indicates beyond question an intention to withhold that power insofar as the exercise of the powers of subsection (b) [2] were concerned. On its face, the language of subsection (c) [3] authorizes the plaintiff to negotiate and enter into contracts with the United States or with other states or Canada or the agencies thereof with regard to the construction, operation and maintenance of plants and transmission facilities. . . . ”

I do not believe that the legislature intended that WPPSS “. . . should ‘go it alone’ on foreign soil. . . . ” I would, therefore, reverse the judgment of the trial court and remand this case with directions to set aside the order of the Director of Conservation and Development, dated July 7, 1961.

“ ... It [a municipal corporation] 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.” Lauterbach v. Centralia, 49 Wn. (2d) 550, 554, 304 P. (2d) 656 (1956).

Currently on appeal to the United States Court of Appeals, Ninth Circuit.

“To construct, condemn, purchase, lease, acquire, add to, extend, maintain, improve, operate, develop and regulate plants, works and facilities for the generation and/or transmission of electric energy and to take, condemn, purchase, lease and acquire any real or personal, public or private property, franchise and property rights, including but not limited to state, county and school lands and properties, for any of the purposes herein set forth and for any facilities or works necessary or convenient for use in the construction, maintenance or operation of any such works, plants and facilities; provided that the commission shall not be authorized to acquire by condemnation any plants, works and facilities owned and operated by any city or district, or by a privately owned public utility. The commission shall be authorized to contract for and to acquire by lease or purchase from the United States or any of its agencies, any plants, works or facilities for the generation and transmission of electricity and any real or personal property necessary or convenient for use in connection therewith.”