(188 P.) (95 Or. 433) (Supreme Court of Oregon. March 9, 1920.) The usual office of the word "provided" in a statute is to create a condition or to restrain the enacting clause, to except something which would otherwise be in it, or in some manner modify it, but, under Laws 1899, p. 472, Charter of City of Monmouth, § 29, authorizing the common council to lay out, establish, vacate, and open streets, "provided that all public highways and roads within the corporate limits of said city become streets," a highway within such limits became a street, "provided" having been inartistically used as a conjunction, despite Laws 1917, p. 78, expressly giving the city jurisdiction over such highway by name. improve the same, and assess the abutting property with the cost thereof, the assessments attempted to be levied on the appelbe dismissed. On the other hand, it is conlants' property are valid, and the suit should ceded by respondents that, if the thoroughfare improved is a public county road, the town of Monmouth was without authority to improve the same and create a special lien against the abutting property for the cost thereof, and the relief asked for in the complaint should be granted. Suit was brought by the appellants, who own land abutting on the improved thoroughfare, to have the special assessments against their respective lots or tracts decreed illegal and the sale of same enjoined, and their titles quieted as against the town of Monmouth. The findings and decree of the lower court were in favor of the defendants, and plaintiffs appeal. George J. Perkins, of Portland, for appel [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Pro-lants. vided.] Department 2. Appeal from Circuit Court, Polk County; above). From the above statement, which is H. H. Belt, Judge. Suit by C. G. Griffa and others against the City of Monmouth and others. From decree for defendants, plaintiffs appeal. Affirmed. Oscar Hayter, of Dallas, for respondents. MCBRIDE, C. J. (after stating the facts as taken largely from appellants' brief, it will be seen that the only question to be decided is whether or not the thoroughfare known as "Main street" is a county road or a city street. If it is a county road the appellants must prevail. If it is a city street, appel lants concede that the decree of the circuit court must be affirmed. By an act approved February 6, 1899 (Gen. Laws 1899, p. 472), a new charter was granted to the city of Monmouth, whereby it was granted, among other things, the authority "to grade, pave, macadamize, plank or otherwise improve, clean and keep in repair streets, highways, alleys, cross-walks and bridges." Section 29 of said act is as follows: This is a suit brought to enjoin special street assessments made by the defendant city against the property of plaintiffs, the grounds of the controversy being as follows: The common council of the town of Monmouth, Or., a muncipal corporation, improved the portion of the thoroughfare in said town termed "Main street" from the west line of Monmouth avenue to the east line of Broad street, by grading and hard-surfacing the same, building concrete curb lines and installing a system of storm sewers, and attempted to assess each lot or tract of land abutting thereon with the entire cost of the improvement in front of such lots or tracts, from the property line to the middle of the thoroughfare improved, under the "frontfoot" rule. The proceedings were conducted under the charter of Monmouth, enacted by the Legislative Assembly February 6, 1899 (Laws 1899, p. 472). For the purpose of this appeal, it is conceded by appellants that the proceedings concerning the improvement were conducted substantially in accordance with the charter. The facts, with the exception of whether the thoroughfare was and is a county road or a city street, and whether the town of Monmouth had authority to make the improvement and assess the abutting property with the cost thereof, are stipulat- The contention of appellants is that the ed. It is also conceded by the appellants word "provided" in the section quoted should that, if the thoroughfare improved was not be construed as a condition having reference a county road, and the town of Monmouth to some future action to be taken to convert had authority under the present charter to the then existing roads and highways into "The common council is authorized and empowered to lay out, establish, vacate, widen, extend and open streets and alleys in said city, and appropriate money for that purpose; and to establish and alter the grade of any street or any part thereof, and to construct and improve sidewalks, pavements, streets and parts of streets within the city limits, making full or partial improvements thereon, and to establish a system of sewerage and to construct and repair drains and sewers; and it has full power to determine and provide for everything necessary and convenient for the exercise of authority herein granted: Provided, that all public highways and roads within the corporate limits of said city become streets and subject to the supervision and control of the common council." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes streets, and that said section did not, by its own force, convert such ways into streets. [1] It is a rule sustained, not only by the numerous authorities cited by counsel for appellants, but substantially by all the authorities, that the usual office of the word "provided" in a statute is to create a condition or to restrain the enacting clause, to except something which would otherwise be in it, or in some manner modify it. But, while this may be stated as the general rule, it is not absolute. In Georgia R. R. & Banking Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377, Justice Field said: cited, and taking into consideration the conditions which existed when the charter of 1899 was enacted, we hold that the word "provided" in section 29 of the charter was not intended as a condition, but was inartistically used as a conjunction, and that the clause in question should be construed as if, instead of the word "provided," the conjunction "and" had been used, or the phrase "it is further provided" had been employed. The fact that the Legislature, after these proceedings were begun, passed an act expressly giving the city of Monmouth jurisdiction "over the highway known as Main street" did not alter the effect of the charter of 1899. If the city already had such jurisdiction under that charter, and we hold that it did have, a subsequent act again grant "The general purpose of a proviso, as is well known, is to except the clause covered by it from the general provisions of a statute, or from • some provisions of it, or to qualify the opera-ing it could not take away the jurisdiction tion of the statute in some particular. But it originally granted. is often used in other senses. It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them to precede their proposed amendments with the term 'provided,' so as to declare that, notwithstanding existing pro visions, the one thus expressed is to prevail, thus having no greater signification than would be attached to the conjunction 'but' or 'and' in the same place, and simply serving to separate or distinguish the different paragraphs or sentences. Several illustrations are given by counsel of the use of the term in this sense, showing in such cases where an amendment has been made, though the provision following often has no relation to what precedes it." To the same effect are Considine v. Metropolitan Life Ins. Co., 165 Mass. 462, 43 N. E. 201; Smalley v. Ashland Brown-Stone Co., 114 Mich. 104, 72 N. W. 29; Terrell v. City of Paducah et al., 122 Ky. 331, 92 S. W. 310, 5 L. R. A. (N. S.) 289; Brace v. Solner, 1 Alaska, 361; Carter Webster & Co. v. United States, 143 Fed. 256, 74 C. C. A. 394; and many other cases. To construe the language referred to as a proviso or condition would lead to the result that the common council could not exercise any of the powers granted in the preceding portion of the section, except upon the condition that the public highways and roads in the city should first become streets, and, as there was no method provided by which they could become streets, except by an act of the Legislature, the powers granted would re main in a state of paralysis until the Legislature should, by another act, declare such roads to be streets. We cannot assume that it was the legislative intent to bring about so absurd a result or to merely hint at what might be done should another Legislature see fit to pass an act making such public ways streets, but that the actual intent was to transform the The act alluded to and which became effective February 7, 1917 (chapter 55, Gen: Laws 1917), recites that "at this time there exists confusion concerning the jurisdiction of the city of Monmouth over said highway, within the corporate limits thereof." This confusion was evidently caused by the contention made by plaintiffs in the case at bar, and it was to clear this up and settle beyond question the rights of the city of Monmouth over the highway in question that the act was passed. As a matter of law the act was unnecessary and gave the city no additional authority, as that granted by the charter of 1899 was plenary. These considerations render it unnecessary to discuss the other points argued by counsel. The decree of the circuit court is affirmed. public roads and highways in the city im- ty; mediately into streets. In Banc. Appeal from Circuit Court, Clatsop Coun- In the matter of the estate of Frederick [2] Following the theory of the cases last Andersen, deceased. Proceeding by G. E. De (188 P.) FISHERIES. Golia against Charles Andersen, administra- | 2. FISH 8-STATE HAS POWER TO REGULATE tor of the estate. From a judgment in favor of the former, the latter appeals. On motion to dismiss appeal. Motion overruled. Norblad & Hesse, of Astoria, for appellant. G. C. & A. C. Fulton, of Astoria, for respondent. Within the limits prescribed by the Constitution, the state in the exercise of its police power and for the welfare of all its citizens can regulate catching of fish in the waters of the state, or those over which the states of Oregon and Washington have concurrent jurisdiction. PER CURIAM. This is a motion to dis- 3. FISH 9-STATUTORY REQUIREMENT THAT miss the appeal. Judgment was rendered and entered on Monday, November 3, 1919. The notice of appeal was served and filed January 3, 1920. It is contended by respondent that the service and filing is one day late. Respondent cites the following sections of the Code: "An appeal to the Supreme Court, if not taken at the time of the rendition of the judgment or decree appealed from, or at the time of making the interlocutory order appealed from, shall be taken by serving and filing the notice of appeal within sixty (60) days from the entry of the judgment, order or decree appealed from. Section 550, L. O. L., as amended by Gen. Laws 1913, c. 319. "The time within which an act is to be done, as provided in this Code, shall be computed by excluding the first day and including the last, unless the last day falls upon Sunday * or other nonjudicial day, in which case the last day shall be excluded." L. O. L. & 531. The method of computing time within which a notice of appeal should be served and filed may be said to have been in a state of uncertainty until the case of U. S. Nat. Bank v. Shefler, 77 Or. 579, 143 Pac. 51, 152 Pac. 234, in which case it was held by this court, though not without dissent, that the day following the entry of a judgment was to be excluded in the computation of time. This rule, having been generally accepted by the profession, will be adhered to, although there are authorities holding a contrary doctrine. Computing the time according to the rule in the case cited, the appellant is within the statute, and the motion to dismiss will be overruled. (96 Or. 163) LOCATION LICENSE MUST BE RENEWED AS 2, that one holding a license to fish with a fixed Under Laws 1913, p. 225, § 1, forbidding issuance of license for a location in Columbia river for fishing with a fixed appliance which would interfere with a prior location, and Laws 1915, p. 226, § 2, making the failure to renew a license for location for fixed appliance by April 1st of any year an abandonment of the location, the failure to renew a license is an abandonment of the location to another who had license issued for the same location on April 1st, regardless of any prior use of such location. Appeal from Circuit Court, Multnomah County; George N. Davis, Judge. Suit by Sam Williams against the Seufert Bros. Company and others. From the decree rendered defendants appeal. Reversed,, and suit dismissed. In August, 1916, plaintiff, Williams, instituted this suit in Multnomah county to enjoin the defendant Seufert Bros. Company from the operation of fishing tackle and the occupancy of the location of a scow fish wheel at a certain point in the Columbia river; for restraining and advisory orders directed to the master fish warden respecting duplicate licenses; and orders to the state board of fish and game commissioners to compel recognition of Williams' priority right. Defendants appeal from a decree rendered in favor of plaintiff. It is alleged in the complaint: "That plaintiff is now, and at all the times WILLIAMS v. SEUFERT BROS. CO. et al.* hereinafter mentioned has been, a citizen of (Supreme Court of Oregon. March 2, 1920.) 1. APPEARANCE 10 ANSWER ON THE MERITS GENERAL APPEARANCE, THOUGH RESERV ING RIGHT OF SPECIAL APPEARANCE TO OB JECT TO JURISDICTION. Answer on the merits, though made after special appearance, and reserving right to object to jurisdiction, is nevertheless a general appearance. the United States of America, * * * and for more than 10 years last past a citizen and an actual bona fide resident of the state of Oregon. "That defendant Scufert Bros. Company is now, and during the period complained of has been, a corporation duly organized under and by virtue of the Oregon laws, and, under its charter empowered to take fish from the waters of the Columbia river and to pack the same for commercial purposes and to operate gear and tackle in taking fish from the waters of the Columbia river. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "That defendant R. E. Clanton is the duly, ed a license by the master fish warden coverappointed and qualified and acting master fishing the identical point in question for the seawarden of the state of Oregon, and as such is son of 1916-1917. Defendant Seufert Bros. invested with the duty of issuing licenses to Company claims the exclusive right of fishing fish and to operate fishing gear and tackle and at the said point in question to the exclusion scow fish wheels in the waters of the Columbia of the plaintiff, and without reference to river within the jurisdiction of the state of Oregon. plaintiff's prior rights earned during the past years. That said point does not permit of the operation of two scow fish wheels without interference. That the claimed rights of the defendant company were acquired subsequently, and are inferior to the superior rights of plaintiff. That the defendant company operated no scow fish wheel prior to the year 1913, nor claimed any right to fishing at the point in question. That defendant company on August 14, 1916, moved a scow fish wheel to the point, at which time plaintiff was in the act of proceeding to said point with his scow fish wheel under his license, and thereby excluded plaintiff from said point. It is further alleged by plaintiff: "That defendants James Withycombe, C. F. Stone, I. N. Fleischne, F. M. Warren, and Marion Jack comprise the board of fish and game commissioners of the state of Oregon, and as such commissioners are by law invested with the power and duty of supervision over the acts and official duties of the master fish warden, and are by law charged with the duty of supervising and regulating the issuance of fishing licenses as provided by the laws of the state of Oregon." It is further alleged, in substance: "That during the month of April, 1915, without any color of right, defendant Seufert Bros. That during the fishing season for many years past plaintiff has been accustomed to fish for salmon and other food fish on the south bank of the Columbia river for food for his family and commercial purposes, and "particularly has plaintiff fished on or about Company erected along the river bank at said a certain point more particularly described point a stone and concrete wall about 42 feet as a point situated 28.53 chains north and 12 in length and 3 feet in thickness and of a varychains west of the quarter section corner being height of from 1 to 5 feet; that said wall tween section 1 and section 36 in townships 1 and 2, respectively, both north of range 13 east of Willamette meridian in Wasco county, Or." That during the different years from 1910 until 1914 licenses were regularly issued to the plaintiff and to plaintiff and his partner to fish at the point mentioned; that the defendant Seufert Bros. Company in May, 1913, opposed the operation of plaintiff's scow fish wheel at the point described, and alleges that the defendant company through its agents unloosened the lashings and cables holding the scow fish wheel in position. That on the 1st of April, 1914, there was issued to the plaintiff by the master fish warden certain license "O-26" authorizing plaintiff to operate his scow fish wheel at the point described, and that the defendant company again unloosened plaintiff's scow; that in August, 1914, defendant company unlawfully occupied the point in question with a scow fish wheel bearing license No. "O-1," and made fast the same at the point described, said point being the identical point belonging to plaintiff for fishing purposes under his license and prior rights, and operated said scow fish wheel to the exclusion of plaintiff. In March, 1915, plaintiff applied to the master fish warden for a license for the season 1915-1916, but that defendant company objected to and prevented the issuance of such license until the season was too far advanced for profitable fishing. Plaintiff applied for and was issued a license by the master fish warden dated May 5, 1916, numbered "0-31," purporting to authorize plaintiff to operate a scow fish wheel at the point described, and alleges on information and belief that defend was designed to prevent, and does prevent, the proper operation of plaintiff's scow fish wheel, and was designed to be and is an obstruction to the fishing rights of plaintiff at the point hereinbefore described." That the plaintiff had submitted the matter to the master fish warden and the board of fish and game commissioners, but that after investigation the board had failed to protect plaintiff's prior rights of fishing, but had instructed the master fish warden to issue duplicate licenses to defendant and to plaintiff. Plaintiff also asks an accounting by the defendant company of all profits derived from its taking fish from the point in question since the 14th of August, 1916. Upon the service of the summons the defendant Seufert Bros. Company appeared especially for the purpose of objecting to the jurisdiction of the court, upon the grounds that the suit had been brought in the wrong court; that the defendant company is not a resident of Multnomah county, and is the only real defendant in the cause; that the suit is in relation to title and interest in real property, to wit the point in question, and moved for a dismissal of the suit and the quashing of the summons; and filed an affidavit showing the following facts: Its principal place of business was in Wasco county. It claims to be the owner of said point, and entitled to the possession of the same by reason of being the owner of the land abutting upon the river and the meander line of the river at that point. That the point in question is above the ordinary line of high water on the river, and belongs to the abutting land. The plaintiff claims that the point (188 P.) but to the state of Oregon; that the defend- Plaintiff replied, putting in issue many of ant company constructed the wall described the affirmative allegations of the answer. m the complaint for the purpose of using the The defendants R. E. Clanton, master fish same in connection with the shore, and claims warden, and James Withycombe, C. F. Stone, the right to do so; that the other defendants I. N. Fleischner, F. M. Warren, and Marion In this case are not proper parties defendant, Jack, members of the fish and game commisand are not interested in the controversy in sion, filed a demurrer to plaintiff's complaint, any way; and that they were joined in this upon the grounds: First, that the court has proceeding for the sole purpose of giving the no jurisdiction of the subject of the suit; court an appearance of jurisdiction. There second, that the complaint does not state after the court overruled the motion of the facts sufficient to constitute a suit against defendant company. these defendants. After the taking of testimony the circuit court entered an order on August 28, 1917, overruling the demurrer of defendants R. E. Clanton et al., and rendered a decree, restraining the defendant Seufert Bros. Com Afterwards defendant Seufert Bros. Company, not admitting the jurisdiction of the court, but insisting upon its objection that the court had no jurisdiction, filed an answer by way of abatement, and asking for the dismissal of this proceeding for want of jurisdic-pany, from operating any scow fish wheel or tion and on account of the venue being improperly laid, and formally alleging, in substance, the facts stated in the affidavit above mentioned, and pleaded for a dismissal of the cause. For further and separate answer the defendant company, not waiving its opposi- | tion to the jurisdiction of the court, denied many of the allegations of the complaint, and for an affirmative answer alleged that it was the owner of a large tract of land lying along the Columbia River immediately back of the point in question, and calling for boundaries running to the river; that the point in dispute is a part of a small portion of high land lying between the meander line, as surveyed by the government, and the actual shore of the river; and that the defendant, as the grantee of the government for said abutting land, also became the owner of said small portion of land lying between the meander line and the river, including the point in question. Defendant further averred that at divers times in 1913 and 1914 the plaintiff went upon the lands of defendant, and fastened thereon and on the bank and bluff of the river far above the line of ordinary high water certain ropes and cables, thereby trespassing upon the lands owned by and in the possession of the defendant and inclosed by its fences, together with natural fences, and attempted to assert a permanent claim to the right and occupation of the land; that about the year 1914, this defendant procured a license to fish at the particular point in question, and constructed a concrete wall thereon for the purpose of enabling him to safely attach a scow fish wheel; that the company ever since has been the holder of a license from the proper authorities to fish with a scow fish wheel at that point; and that during the years from 1910 up to the present time the plaintiff has fished at different times with his scow fish wheel at different points up and down the Columbia river and on both sides thereof, but has never obtained any right to fish at this particular point. Thereafter the defendant company moved for a change of venue to Wasco county, Or., which motion was overruled by the court. other fishing appliance that in any manner may interfere with the operation by the plaintiff of his scow fish wheel at the certain point described in the complaint, or within the legal distance of 900 feet from that point, and enjoining the company from asserting any claim of prior fishing rights at said point over the rights of the plaintiff until such future time as plaintiff shall have legally abandoned the same or have otherwise disposed of his priority rights of fishing, and awarding the plaintiff priority of fishing rights and privileges at the point described, restraining the board of fish and game commissioners from issuing any license to the company to fish at the point described, and requiring the board to adopt rules and regulations governing the issuance of licenses so as to make effective the decree, and to cancel the license issued to the company. H. S. Wilson, of Portland (A. S. Bennett, of Salem, on the brief), for appellant Seufert Bros. Co. J. O. Bailey, Asst. Atty. Gen. (George M. Brown, of Salem, on the brief), for other appellants. James G. Wilson, of Portland (George B. Guthrie and E. F. Bernard, both of Portland, on the brief), for respondent. BEAN, J. (after stating the facts as above). [1] The preliminary question as to the jurisdiction of the circuit court for Multnomah county should first be disposed of. It appears that the defendant R. E. Clanton, master fish warden, resides in the county of Multnomah, and was there served with a Two of the commissummons in the cause. All sioners also resided in that county. of the commissioners appeared generally and The defendant Seufert filed a demurrer. Bros. Company, was served with a summons in Wasco county. After the defendant company made a special appearance and objected to the jurisdiction of the circuit court of Multnomah county and moved to quash the summons, and such application was denied, it answered to the merits. This answer of the defendant company, while in form still ob |