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The opinion
*81 Ott, J.
(dissenting) — In this appeal, we are concerned with this single issue: Can this court approve an act of a municipal corporation which, under the laws of this state, is ultra vires?
The City of Tacoma is a municipal corporation, organized and existing by virtue of the laws of the State of Washington. Being an entity created by the legislative bodies of the State of Washington, its powers are limited to those which the legislature or the people, by initiative, have authorized it to perform. Othello v. Harder, 46 Wn. (2d) 747, 284 P. (2d) 1099 (1955).
At the November election in 1960, the people of the State of Washington, by Initiative No. 25, limited to 25 feet the height of dams that Washington municipal corporations, engaged in the hydroelectric power business, would be permitted to construct on the Cowlitz River and certain other streams, “nor shall any such person [municipal corporation] obtain or use a federal license for such purpose.” Laws of 1961, chapter 4, RCW 75.20.110, 75.20.120.
The City of Tacoma requests this court to approve bonds for the construction of a dam on the Cowlitz River which the Federal Power Commission has authorized it to build, and which will exceed 25 feet in height.
The Congress of the United States has only such powers as are enumerated in Art. 1, § 8, of the United States Constitution. All other legislative authority is reserved unto the several states. U. S. Const. Tenth Amendment. The laws of the State of Washington which define the powers of its corporations cannot be amended by resolution or by grant of a license from the Federal Power Commission. The powers of municipal corporations in Washington can be increased or diminished only by Washington legislative enactments. Const. Art. 2.
The fact that the Federal Power Commission has granted to the City of Tacoma a right to construct a higher dam on the Cowlitz River than the sovereign State of Washington has authorized it to build, does not legalize that which is illegal and in excess of the authority granted to the city by the sovereign.
*82 Since the proceeds of the bonds are to be used by the municipal corporation for purposes which the people have expressly forbidden the corporation to perform, the trial court and this court have no power to approve the bonds as legal obligations of a corporate entity of this state.
Nor do I find any merit in the contention that, since the limitation was enacted by the people of the State of Washington subsequent to the grant of the license by the Federal Power Commission, the application of equitable principles requires that the city’s bonds be now approved to provide funds to construct the dam. Both the city and the Federal Power Commission were fully aware, at the time the license was granted and construction commenced, that the city had not acquired title to the land it contemplated inundating or arranged for adequate financing of the proposed hydroelectric project. Inability to accomplish either of these essential conditions precedent would prevent the city from completing the facility. The statutory prohibition against the construction of high dams was in effect for more than five months before the city commenced this action to have its contemplated financial program approved by the courts. Equitable principles cannot be applied when their application is in direct conflict with a statutory mandate. Norlin v. Montgomery, 59 Wn. (2d) 268, 273, 367 P. (2d) 621 (1961), and cases cited.
In my opinion, the judgment should be reversed.
Bosellini, J., concurs with Ott, J.