Subsequent to the rendition of the decree, in the circuit court, the Legislative Assembly abolished the office of game warden and master fish warden, and the duties, so far as they are material here, which had been exercised by that officer, were transferred to and imposed upon a fish commission provided for by chapter 1, Laws Sp. Sess., 1920. Chris Schmidt, Frank M. Warren, and Charles Hall were selected and qualified as members of the fish commission, and for that reason the litigants stipulated that the commissioners should be substituted as defendants.

between the states of Oregon and Washington
a definite compact and agreement, the purport
of which shall be substantially as follows:
"All laws and regulations now existing, or
which
tecting or preserving fish in the waters of the
may be necessary for regulating, pro-
Columbia river, over which the states of Ore-
gon and Washington have concurrent jurisdic-
tion, or any other waters within either of said
states, which would affect said concurrent ju-
risdiction, shall be made, changed, altered and
amended in whole or in part, only with the
mutual consent and approbation of both
states."

In 1915, the Legislative Assembly of Wash

A. W. Norblad, of Astoria (Norblad & Hesse, of Astoria, on the brief), for appel-ington enacted a "Fisheries Code." This Code appears as chapter 31, Laws of Washington 1915. Section 116, the material section here, is as follows:

lants.

J. O. Bailey, Asst. Atty. Gen. (Geo. M. Brown, Atty. Gen., and J. J. Barrett, Dist. Atty., of Astoria, on the brief), for respondent.

recommend that a resolution be passed by the Legislatures of Washington and Oregon, whereby the ratification by Congress of the laws of the states of Washington and Oregon shall act as a treaty between said states, subject to modification only by joint agreement by said states;' and said recommendation having been approved by resolution adopting the report of the conference committee, then, and in that event, there shall exist between the states of Washington and Oregon a definite compact and agreement, the purport of which shall be substantially as follows:

"Should Congress, by virtue of the authority vested in it under section 10, article 1, of the Constitution of the United States, providing for compacts and agreements between states, HARRIS, J. (after stating the facts as ratify the recommendations of the conference above). The questions to be decided can be committees of the states of Washington and better considered and discussed if we first Oregon, appointed to agree on legislation necgive an account of the fish legislation, affect- essary for the regulation, preservation and ing the Columbia river, enacted in the states protection of fish in the waters of the Columbia of Oregon and Washington in the years 1915, river, or its tributaries, over which said states 1917, and 1919. In 1915, conference com- have concurrent jurisdiction, or which would mittees were appointed by the Legislative As-be affected by said concurrent jurisdiction, said semblies of the two states, with the view of recommendation being as follows: 'We further agreeing upon fish legislation concerning the Columbia river and other waters. The conference committees met and discussed proposed legislation, and as a result the Legislative Assembly of Oregon passed a "new Fish Code" providing for the regulation of the taking of salmon from the waters of the Columbia river, over which the states of Oregon and Washington have concurrent jurisdiction, and from other waters within the boundaries of the state of Oregon. This "new Fish Code" is also known as chapter 188, Laws 1915; and section 20, the material section here of the chapter, reads as follows: "Should Congress, by virtue of the authority vested in it under section 10, article one of the Constitution of the United States, providing for compacts and agreements between states, ratify the recommendations of the conference committees of the states of Oregon and Washington, appointed to agree on legislation necessary for the regulation, preservation and protection of fish in the waters of the Columbia river, over which said states have concurrent jurisdiction, and other waters within either state, which would be affected by said concurrent interest, recommendation being as follows:

"We further recommend that a resolution be passed by the Legislatures of Washington and Oregon, whereby the ratification by Congress of the laws of the states of Oregon and Washington shall act as a treaty between said states, subject to modification only by joint agreement by said states;' and said recommendation having been approved by resolution adopting the report of the conference committee, then, and in that event, there shall exist

"All laws and regulations now existing or which may be necessary for regulating, protecting or preserving fish in the waters of the Columbia river, or its tributaries, over which the states of Washington and Oregon have concurrent jurisdiction, or which would be affected by said concurrent jurisdiction, shall be made, changed, altered and amended in whole or in part, only with the mutual consent and approbation of both states."

The Legislative Assembly of each state adopted a resolution in 1915 requesting Congress to consent to and ratify the agreement made by Oregon and Washington, so as to comply with the requirements of article 1, section 10, of the Constitution of the United States. S. C. R. No. 5, Laws of Oregon 1915, p. 618. Congress having failed to act upon the resolutions submitted in 1915, the Legislative Assemblies of the two states in 1917 again adopted resolutions, requesting Congress to give its consent to the agreement made by the two states in 1915. Congress finally heeded the request by passing the act of April 8, 1918, consenting to the agreement.

(193 P.)

40 Stat. 515. The act of Congress is as fol-, riety which were taken from the waters of

this state during any of the closed seasons "Be it enacted by the Senate and House of chases, handles, deals in or has in his possesprescribed in this act, and any person who purRepresentatives of the United States of Ameri- sion any such fish during such periods, except ca in Congress assembled, that the Congress for the sole use of himself and family, shall be of the United States of America hereby con- guilty of a misdemeanor. And it shall be unsents to and ratifies the compact and agree- lawful for any person, firm, or corporation to ment entered into between the states of Ore-purchase, handle, deal in, or have in his posgon and Washington relative to regulating, session, except for the sole use of himself and protecting, and preserving fish in the boundary family any salmon fish of any variety which waters of the Columbia river and other waters, were taken beyond the three mile limit outwhich compact and agreement is contained in side of the Columbia river, during any of the section twenty of chapter one hundred and closed seasons prescribed in this act: Proeighty-eight of the general laws of Oregon for vided, however, that this provision shall not nineteen hundred and fifteen, and section one apply to salmon taken beyond the three-mile hundred and sixteen, chapter thirty-one, of the limit outside the Straits of Juan de Fuca." Session Laws of Washington for nineteen hun- Section 16, chapter 169, Laws of Washington dred and fifteen, and is as follows:

"Nothing herein contained shall be construed to affect the right of the United States to regulate commerce, or the jurisdiction of the Unit-5, already quoted, there is another material ed States over navigable waters."

the sea. In order to protect and preserve this food fish, which furnishes the basis of one of the state's largest industries, it has been found necessary to close the waters of the Columbia to fishermen during certain periods. The closed season for a given stream is fixed with reference to the habits of the salmon which each year are expected to "run" up that stream. Experience and observation have shown that the salmon, before beginning to "run" up the Columbia river, congregate in large numbers off the mouth of the river, and the "run" of salmon up the river continues for a considerable period. The closed season is so timed and fixed as to enable a portion of the "run" to ascend the river without molestation and thus furnish the necessary supply for both natural and artificial propagation. There are, of course, closed seasons prescribed for each of the Oregon coastal streams in which salm

struction given by the plaintiffs does not confine the operation of the statute to such narrow limits as to make it absurd and unreasonable or as to defeat the purpose of the enactment, for when we are told that it is seven miles from the south headland to the north headland at the mouth of the river, we at once understand that the statute refers to a large area. The words "beyond the three-mile line," when considered as standing alone, are broad, comprehensive, and unlimited; for any point, whether off the Oregon or the Washington or the California or the British Columbia or the Alaskan coast, would be beyond the three-mile line, if more than three miles from the shore; and hence, when we find the unrestricted words "beyond the three-mile line," immediately followed by the words "outside of the Columbia river," we at once know that the latter words are words of limitation, because otherwise they would be utterly in-on are found. However, the closed season operative and useless.

for a given stream is fixed with reference to the habits of salmon found in that stream, and not with reference to the habits of salmon running up other streams, because the annual "run" in one stream does not coincide in point of time with the "run" in another stream; and the necessary result is that during a given period the Columbia may be open and at the same time one or several

[1-3] One of the accepted rules of statutory construction requires courts to so construe a statute as to give effect to every clause, if possible. Henry v. Yamhill Co., 37 Or. 562, 564, 62 Pac. 375; In re Willow Creek, 74 Or. 592, 614, 144 Pac. 505, 146 Pac. 475; 25 R. C. L. 1004. In construing a statute, ascertainment of the intention of the Legislature is the "consummation devout-of the other coastal streams may be closed ly to be wished"; and, if the words of the statute are not of themselves sufficiently explicit to manifest the intention of the law makers, the intention is then to be ascertained by considering the context, the subjectmatter, the necessity for the law, and the circumstances under which it was enacted, the mischief sought to be remedied, and the object to be attained. 25 R. C. L. 1012; 36 Cyc. 110. If, however, the intention of the Legislature cannot be discovered, the court should give the statute a reasonable construction, consistent with the general principles of law, 36 Cyc. 1108.

to fishermen; or, on the other hand, the Columbia may be closed while one or several of the other streams may be open to fishermen. It is apparent that, because of these differences in the closed seasons prescribed for the different streams, the Legislature, when framing and enacting section 5 of chapter 367, was legislating with reference to the conditions found in the Columbia river. For example, during a portion of the time when the waters of the Columbia are closed, the season is open on the Siuslaw river. Now it is manifest that the Legislature did not intend to say that fish caught off the Siuslaw river and beyond the three-mile line at a time when the season was open on the Siuslaw, but closed on the Columbia, could not be brought into this state and possessed here.

[4] The word "outside" is formed by combining two words, "out" and "side"; and, among other definitions the combined word is defined thus: "Outside of, on or to the exterior of; without; outward from.” Cent. Dict. If a line be projected west from the north headland of the Columbia river and another line be similarly projected from the south headland to and across the three-mile

The Columbia river salmon has acquired a world-wide reputation for excellence as a food fish. The business of catching, canning, and packing salmon has developed into one of the leading industries of this commonweath, and the value of the annual pack amounts to millions of dollars. Although there are canneries located on the Rogue, the Umpqua, and the Siletz rivers, and other coastal streams in this state, the major portion of the annual salmon pack comes from the Columbia river. The habits of salmon are such that when they "run" from the sea to fresh water for spawning purposes most of them "run" to the waters where they them-line, and if that part of the three-mile line selves were propagated; and hence most of the salmon which have been propagated in the Columbia river and its tributaries, when they "run" from the sea, enter the Columbia river,

which is between the two projected lines is taken as the side of the Columbia river, then the word "outside," when given a natural and not an artificial or strained signification,

(193 P.)

side. The construction placed upon the stat-, accord to the Legislature a large discretion ute by the plaintiffs, not only gives to the in determining, not only what the interests word "outside" a natural meaning, but it of the public require, but also what measures possesses the additional merit of being defi- are necessary for the protection of such innite and certain. Moreover, this construction terests. Lawton v. Steele, 152 U. S. 133, 14 of the statute does not lead to absurd results; Sup. Ct. 499, 38 L. Ed. 385; Silz v. Hesterbut, on the other hand, it enables the state, berg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. through its proper officers, to effectuate the 75; Ex parte Mon Luck, 29 Or. 421, 426, 44 purposes of the statute by dealing with con- Pac. 693, 32 L. R. A. 738, 54 Am. St. Rep. ditions as they actually exist. 804; Lorntsen v. Union Fisherman's Co., 71 Or. 540, 547, 143 Pac. 621; State v. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 409; 12 C. J. 933. Moreover, when applying the test of judicial reasonableness, the presumption is in favor of the reasonableness and validity of the regulation. 12 C. J. 934.

[5] When the state through its Legislature enacted the statute now in controversy, it did so upon the assumption that the enactment was an exercise of the police power. Because of the wide range over which this power may be exercised, it is difficult, if not impossible, to mark out in advance the exact limits of its reach; and therefore it cannot be accurately defined, although it may be understandingly described. A concise statement, which emphasizes the thought that the field within which the police power may be exerted is very broad, is found in State v. Redmon, 134 Wis. 89, 105, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408, where it is said:

"It is the power to make all laws which in contemplation of the Constitution promote the public welfare."

[10] The plaintiffs insist that section 5 of the statute is an unreasonable police regulation, because it is unusual, fails to accomplish its avowed purpose, and is unduly oppressive upon individuals "and the financial resources of the great fishing industry." That section 5 is unusual may be conceded; but it must also be conceded that the conditions attempted to be met are unusual. It is not unusual to find statutes prescribing closed seasons; nor is it unusual to find the law so framed as to make it unlawful to sell, purchase, or possess game or fish during the closed season, even if originally taken and brought from without the state which enact

The police power embraces the whole sum of inherent sovereign power which the state possesses, and, within constitutional limita-ed the law. As already pointed out, the salmtions, may exercise for the promotion of the order, safety, health, morals, and general welfare of society. 12 C. J. 904; Stettler v. O'Hara, 69 Or. 519, 531, 139 Pac. 743, L. R. A. 1917C, 944, Ann. Cas. 1916A, 217; Mill Creek Coal & Coke Co. v. Public Service Commission (W. Va.) 100 S. E. 557, 7 A. L. R. 1081.

on "runs" do not occur in all the streams at the same time, and consequently it is impracticable to prescribe the same closed season for all the streams. When legislation is enacted for the protection of fish in the Columbia it must, in order to accomplish its purpose, be framed with reference to conditions found to exist in the waters of that river, and it is manifest that section 5 was in fact framed with reference to the conditions

section 5 are unusual only to the extent that the conditions which called for the adoption of the measures were and are unusual.

[6] The preservation of fish and game has always been treated as being within the proper domain of the police power; and, con-existing there; and hence, the provisions of sequently, when the lawmakers passed the act of 1919, they legislated concerning a subject which is clearly within the embrace of the police power. Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385; Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793; Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75; State v. Schuman, 36 Or. 16, 25, 58 Pac. 661, 47 L. R. A. 153, 78 Am. St. Rep. 754.

[11] Of course the state of Oregon has no jurisdiction over the waters of the Pacific Ocean beyond the three-mile line; nor did the state by the enactment of the statute in question attempt to make fishing beyond the three-mile limit unlawful. The statute was adopted in order to make effective the prohibition against taking fish during the closed season from waters over which the state may rightfully exercise jurisdiction, and that the state has authority to do this is settled be

U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75.

[7-9] The Legislature, it is true, is not the final judge of the limitations of the police power, and, since the legislative action must be reasonably necessary for the public benefit, the validity of all police regulations de-yond controversy. Silz v. Hesterberg, 211 pends upon whether they can ultimately pass the judicial test of reasonableness; and yet, It is also true that it is the legislative function primarily to determine the necessity or expediency of measures adopted. When, however, the courts are called upon to apply the judicial test of reasonableness, they will 193 P.-31

[12] Since there is no statute like section 5 in force in the state of Washington, canneries operated on the Washington side of the Columbia river can, without hindrance, purchase and pack, during the closed season, salmon caught beyond the three-mile line out

side of the Columbia river, with the result | Oregon and Washington is binding upon both that Washington canneries are permitted, parties to the extent that one cannot withduring the closed season, to pack the same draw without the consent of the other, and fish which the Oregon canneries are prohibit- that therefore one state cannot, without the ed from packing during that time. The con- "consent and approbation" of the other state, ditions permitted to exist on the Washington enact any law which would conflict with the side of the river do not defeat the object terms of the compact. Again directing atsought to be accomplished by the Oregon tention to the compact, we observe that the statute, although they do interfere with and two states have expressly limited their agreeprobably prevent the full and complete at- ment to laws and regulations "which would tainment of the object sought to be accom- affect said concurrent jurisdiction." As rulplished by the Oregon statute. Absence of ed by the United States Circuit Court of like legislation in the state of Washington Appeals for the Ninth Circuit, in Olin v. affects only the degree of protection, but it Kitzmiller, 268 Fed. 348, recently decided: does not entirely prevent protection. It may "It is only as to its common right with the be true that the Columbia river salmon adjoining state to take fish from those waters would be better protected if the state of Wash- that its right is limited by the compact." ington had enacted and now enforced legis- This state has not attempted to change the lation like section 5 of our statute; and, closed season. The prohibition of the Oreindeed, if we correctly understood the argu- gon statute is operative only during the ment of counsel for the plaintiffs at the periods which both states have fixed as the hearing, the plaintiffs themselves say that closed seasons on the Columbia. The inhithey would be pleased to see British Colum- bition of section 5 merely aids in keeping bia and the states of Washington, Oregon, such seasons closed. Section 5 does not "afand California pass legislation similar to fect" the "concurrent jurisdiction" of the two section 5, because such legislation, if in force states, and, indeed, it recognizes, rather than in British Columbia and in the three named ignores, the jurisdiction which the two states states, would undoubtedly be helpful in pre- have concurrently exercised. serving and protecting salmon as a food fish. The contention of the plaintiffs that section 5 is an unreasonable exercise of the police power cannot be sustained.

[13] The argument that section 5 is discriminatory and not general in its application, and therefore unconstitutional, is answered adversely to the position taken by the plaintiffs in the opinions rendered in State v. Savage, 184 Pac. 567, 189 Pac. 427, and State v. Blanchard, 189 Pac. 421. See, also, 11 R. C. L. 1045.

[14] The holding in Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75, is authority for the conclusion that section 5 of our statute does not contravene the foreign

and interstate commerce clause of the federal Constitution. See, also, State v. Schuman, 36 Or. 16, 58 Pac. 661, 47 L. R. A. 153, 78 Am. St. Rep. 754; Ex parte Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129; Ex parte Fritz, 86 Miss. 210, 38 South. 722, 109 Am. St. Rep. 700; 5 R. C. L. 762.

The next contention urged by the plaintiffs is that the compact between the states of Washington and Oregon is a contract, and that it is therefore protected by the state and federal Constitutions against legislation impairing its obligations. Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 547; Poole v. Fleeger, 11 Pet. 185, 9 L. Ed. 680; Virginia v. Tennessee, 148 U. S. 503, 13 Sup. Ct. 728, 37 L. Ed. 537; Wharton v. Wise, 153 U. S. 155, 14 Sup. Ct. 783, 38 L. Ed. 669.

[15] For the purposes of the instant case we shall assume, without attempting to decide, that the compact entered into between

Our conclusion is that the ruling made by the circuit court was correct; and hence the decree appealed from is affirmed.

MCBRIDE, C. J., and BURNETT and JOHNS, JJ., concur.

COX v. COX.

(98 Or. 148)

(Supreme Court of Oregon. Nov. 23, 1920.) 1. Divorce 184(3)-Tried de novo on appeal.

the cause must be tried and determined de novo. On appeal from a decree denying a divorce, 2. Divorce 184 (10)-Findings of trial judge given much weight.

In an action for divorce where the record

contains irreconcilable contradictions in the
evidence upon all material points, much weight
will be given to the findings of the trial judge.
3. Divorce 38-Not discretionary, but mat-
ter of right.

A decree of divorce should be granted or withheld from the plaintiff as a matter of legal right, and not as a matter of grace.

4. Divorce 27(6)—Wife cruelly treated entitled to divorce.

Where husband beats and chokes his wife and applies vile names to her, she is entitled to a divorce as a matter of legal right, 5. Divorce 130 cruelty.

Evidence not showing

Evidence held not to establish husband's cruelty.