day of April and the first day of June." Sec. 6. "It shall be unlawful for any person or persons to receive or have in his possession, or offer for sale or transportation, or to transport during the close seasons named in this act, any of the following varieties or kinds of fish, which may be caught in any of these streams as aforesaid, viz.: Chinook salmon, silver salmon, steelhead or blueback, and any person or persons violating any of the above sections shall be deemed guilty of a misdemeanor, and upon convic tion thereof shall be fined in a sum of not less than ten dollars nor more than two hundred and fifty dollars." Sess. Laws 1893, p. 145. The object of the actions is to obtain a construction of the act of the legislature of 1891 as amended by the act of 1893. Under the statutes there are several close seasons, but none of them are of general application throughout the state, except the weekly close season. There are times during the year when it is an open season on the Nehalem, Tillamook, etc., and lawful to catch fish in their waters, and it is a close season on the Columbia, and unlawful to catch fish in its waters. The particular question to be determined is, does the statute prohibit a person from having in his possession, or offering for sale, during the close seasons named in the act, any fish of the varieties mentioned, which were caught in any of the rivers enumerated during their open seasons? The construction which the trial court gave to the statute by its rulings on the evidence and its instruction to the jury was that it is unlawful for a person to have in his possession, or offer for sale, during the close season on the Columbia, fish of the kind named in the act, "no matter where they were caught or taken, or when they were caught or taken." In this view it was no defense that such fish were caught in the Umpqua or Columbia rivers during the open seasons specified in the statute, when it was lawful to catch them, if the defendants had such fish in their possession, or offered them for sale, during the close season on the Columbia. Hence, as in the cases of the defendants McGuire and Barnes, fish caught during the open season on the Columbia, when it is lawful to catch them, and placed in cold storage for their preservation, or, as to that matter, put up in salt or cans, cannot lawfully remain in the possession of the owner, or be offered for sale, during the close season on that river, or, as in the case of the defendant Covach, it would be unlawful for a party to have in his possession, or offer for sale, fish caught during the open season on the Umpqua, when it is lawful to catch them, if it happens to be the close season on the Columbia. Under this construction of the statute a party who has in his possession such fish, or who offers them for sale, although lawfully caught, whether in or out of the state, and his private property, is

liable to punishment, and his property rendered worthless or destroyed. Nor is this all. Salmon caught on Friday night or Saturday morning, which may come into the cannery or market at 6 o'clock Saturday evening, the commencement of the close season each week,-must be immediately destroyed, or the party having them in his possession, or offering the same for sale, during such weekly close season, will be exposed to prosecution and punishment. A statute which leads to such consequences ought not only to be clear, but mandatory, and the act done under it not only within the letter, but within the spirit, of the law, to authorize its enforcement. This construction, however, counsel for the state insist, must be given to the statute, to make it effective, and carry out the purpose of the law. Their contention is that the object of the statute is to protect such fish during the close season in order that they may have an opportunity to propagate their species, and be preserved from extermination, and that, if any other construction is adopted, fish could be caught in the open season in such numbers as to supply the market during the close season by putting them in cold storage until wanted, and by so doing the stock of fish would be seriously impaired or exhausted, and but a few or none would be left to propagate their kind, and, finally, that such a construction is necessary to prevent evasion of the statute, and make the proof of its violation easy and accessible. Hence they argue that the fact of the fish being caught in a lawful season constitutes no defense, so that the time and place when and where such fish were caught are not naterial. In support of this view they assert that the same principle governs as in those cases where game has been lawfully killed in one state, and exposed for sale in another, during the prohibited season in the latter state. This principle, perhaps, finds its best illustration in Phelps v. Racey, 60 N. Y. 10, where a statute declared that no person should expose for sale, or kill, or have in his possession, after it had been killed, any quail or other game, between the 1st day of January and the 20th day of October. The defendant was indicted for having quail in his possession in March. He had invented an apparatus to preserve game, and that which he had in his possession, and specified in the complaint, was killed in New York in the open season, or received from Minnesota or Illinois, where the killing at the time was legal, and put up by him in his apparatus in the month of December. Church, C. J., said: "The language of these sections is plain and unambiguous. Hence, there is no room for construction. It is a familiar rule that, when the language is clear, courts have no discretion but to adopt the meaning which it imports. The mandate is that any person having in his or her possession,' between certain dates

* * *

In Mag

certain specified game killed, shall be liable to a penalty. The time when, or the place where, the game was killed, or when brought within the state, or where from, is not made material by the statute, and we have no power to make it so. That it was either killed within the lawful period, or brought from another state, where the killing was lawful, constitutes no defense. The penalty is denounced against the selling or possession after that time, irrespective of the time or place of killing." ner v. People, 97 Ill. 320, among other things, Scholfield, J., says "We think it is obvious that the prohibition of all possession and sales of such wild fowls or birds during the prohibited seasons would tend to their protection, in excluding the opportunity for the evasion of such law by clandestinely taking them, when secretly killed or captured here, beyond the state, and afterwards bringing them into the state for sale, or by other subterfuges and evasions. It is quite true that the mere act of allowing a quail netted in Kansas to be sold here does not injure, or in any wise affect, the game here; but a law which renders all sales and all possession unlawful will more certainly prevent any possession or any sale of the game within the state than will a law allowing possession or sales here of the game taken in other states. This is but one among many instances to be found in the law where acts, which in and of themselves alone are harmless enough, are condemned because of the facility they otherwise offer for a cover or disguise for the doing of that which is harmful." See, also, State v. Randolph, 1 Mo. App. 15; Association v. Durham, 51 N. Y. Super. Ct. 306; Whitehead v. Smithers, 21 Moak, Eng. R. 458. It is also held that such statutes are not in conflict with the constitutional provision that no person shall be deprived of his property without due process of law, and are not regarded as an interference with interstate commerce. Phelps V. Racey, supra: State v. Randolph, supra.

But there are other decisions, later in point of time, holding a contrary doctrine, which cannot be wholly reconciled by the difference in the language of the statutes. In People v. O'Neil, 71 Mich. 325, 39 N. W. Rep. 1, it was held that the possession of game killed in another state is not an offense under the Michigan act of 1881, which makes it an offense to have game in possession, for the purpose of sale, during a certain period of the year, since the purpose of the act, as shown by the title, is the protection of game within the state. Champlin, J., after reviewing the authorities already referred to, said: "A construction of a statute which leads to such harsh consequences, and punishes with severe penalties acts which are confessedly innocent in themselves, must not only be unambiguous, but mandatory; and the act done must be not only within the letter, but within the spirit,

* *

of the law, to gain my assent to its enforcement. Our statute requires no such strict or harsh construction. The articles interdicted are articles of food, and the interdiction is not because such food is unwholesome, and therefore detrimental to the public health, but the whole end and object of the legislation is protect and preserve game in the state of Michigan. * The various provisions of the act are all directed to that purpose. And how it can be held that this law is violated, either in letter or spirit, by importing game from other states to supply food to citizens of this state, is a point that I am unable to understand. The only ground upon which such construction is attempted to be defended is that it prevents evasion of the statute; that game might be killed in this state in violation of law, and shipped to another state, and there reshipped into this state, and the prosecution might be unable to prove that it was Michigan game killed in violation of law. That may disclose a defect of proof; but I submit it does not apply to cases where the fact is conceded, or proved to the satisfaction of the jury, that the game was not killed in the violation of law." In the same case, Campbell, J., said: "Concurring, as I do, in the meaning of our statute, as explained by my Brother Champlin, I do so for the further additional reason that I do not think it would be competent for our legislature to punish the possession of game which was lawfully captured or killed. Having become lawful private property, it cannot be destroyed or confiscated, unless it becomes unfit for use, any more than other property can be destroyed. I do not think the cases to the contrary are reasonable or sound. While in England the power of parliament cannot, perhaps, be questioned by courts, there is no such rule here, and I cannot see on what principles such decisions are maintainable. It is not competent for any American statute to raise conclusive presumptions of guilt in any case. This is well settled. When the possession is traced back of the time when it became unlawful to take game, the presumption has no further force as evidence, and what was then lawful cannot be made a crime by lapse of time only." In Com. v. Wilkinson, 139 Pa. St. 304, 21 Atl. Rep. 14, in construing an act which provides that "no person shall kill, or expose for sale, or have in his possession after the same has been killed, any quail between the fifteenth day of December, in any year, and the first day of November following," Paxson, C. J., said: "The manifest object of this act was the preservation of game within this commonwealth. We cannot assume that it was intended to preserve game elsewhere, and it would be a forced construction to hold that it was intended to exclude from our markets quail and other game killed in other states, where by the laws of those states the killing of them was lawful.

* *

It

The law was not intended to have any extraterritorial effect, and if it was it would be nugatory. * The construction claimed for the act by the commonwealth would render any one a criminal who lawfully killed quail in another state, and brought them here for his own use. would be prima facie evidence of a violation of the act, and if he could not show, as a defense, that he killed them outside the commonwealth, he would have no defense at all. The matter is too plain to require elaboration." In Allen v. Young, 76 Me. 80, it was held that where a statute made it an offense to kill deer at a certain time, or to transport it from place to place during that time, it was not an offense to transport from place to place during the prohibited season deer killed before. See, also, Com. v. Hall, 128 Mass. 410; Davis v. McNair, 7 Crim. Law Mag. 219, 21 Cent. Law J. 480.

In these cases the courts held that the object of the act was to protect game in the state, as indicated by the title, and that the statute sought to attain this object by punishing the taking or killing of such game in the state during the prohibited seasons, or the offering for sale or having in possession, in the state, during such times, of game so taken or killed. So that, if the killing or taking of game in the state was at a time when it was lawful, under the statute, to do so, the offering for sale, or having in possession, of game so taken or killed, was not an offense against the statute. If our statute will bear this construction, then it was only intended to prevent the taking or catching of the salmon specified, on the rivers enumerated, within the state, during their close seasons, and to render unlawful, or make a misdemeanor, the offering for sale, or having possession of, salmon so taken or caught, on such rivers, in this state, during such close seasons. In this view, the offering for sale or having possession of salmon during the close seasons, which had been lawfully taken or caught, is not an offense. The trial court, however, construed the act differently, holding, as indicated by its instruction, that the offering for sale, or having possession of, the fish mentioned in the complaint, during the close seasons named in the act, was a misdemeanor, "no matter where the same were caught or taken, or when they were caught or taken." So, also, the ruling of the court that the proof offered by the defendants, viz. that the fish in question were caught during a lawful season, was immaterial, was based on the theory that the time when, and place where, the fish were caught, was not made material by the statute, and therefore constituted no defense. The effect of this construction is to declare that, in order to protect the salmon in this state, it was the intention of the statute to punish the offering for sale, or the having in possession, of salmon of the

varieties specified, during the prohibited seasons, no matter whether they were lawfully caught within or without the state; in a word, that it was the intention of the leg islature to punish the mere possession of salmon which had been lawfully caught or taken. It ought to require plain, unambig uous, and mandatory language to justify any court in declaring fish or game lawfully caught or taken to be the subject of an offense, by the simple possession of it. A construction leading to such injustice ought to be avoided, if it can be reasonably done. Salmon fish is an article of food, and the law interdicting the catching of them at certain seasons is not because they are unfit for use, or unwholesome, but to protect and preserve such fish in this state. The constitution requires the object of every act to be expressed in its title. The object of the act, as expressed by the title, is to protect salmon in the state of Oregon. All its provisions are directed to this purpose. None of them would be violated by bringing fish which had been lawfully caught in other states into this state. Is it violated by offering for sale, or having in possession, fish, during the prohibited seasons, which had been caught in the open seasons on the river, when it was lawful to do so? Certainly, if the legislature intended to declare the mere possession of such fish during the close season an offense, no matter where or how lawfully caught or taken, words could easily have been found to express such intention. The section on which the indictment is founded reads: "It shall be unlawful for any person or persons to receive or have in his possession or offer for sale," etc., during the close seasons named in the act, "any of the following varieties or kinds of fish, which may be caught in any of these streams as aforesaid, viz: Chinook salmon," etc. A violation of this section involves the catching of such fish in the streams enumerated in the act, and contrary to the provisions of such act. "Which may be caught in any of these streams as aforesaid," is the language of the section. The words "as aforesaid" do not relate to the streams themselves, but to the time or manner of taking fish from them. "As" qualifies "caught," making the sentence read, by the transposition, "caught as aforesaid in any of these streams," and means fish caught during the close seasons aforesaid in any of these streams. This is in accordance with the grammatical relation of the words. On the other hand, if these words relate to the "streams," and the construction of the act is as claimed by the prosecution, then a party having in possession, or offering for sale, during the close season upon the Columbia river, fish of the variety described in the complaint, no matter what their condition. where or how lawfully they were caught, is guilty of a crime. In the case before us. when the fish were caught in the rivers of

ant Tiny Gaston, who gave evidence on the trial tending to show that she was a bona fide purchaser for value and without notice of any fraud in the purchase of the land by Lucy Mason, and that she and her grantor had been in the adverse possession of the land from the date of the tax deed to the time of the trial. To avoid the effect of the tax deed the plaintiff gave evidence tending to show that the purchase by Lucy Mason was made in pursuance of a fraudulent arrangement between her and Laura Bennett, who owned and was in possession of the land at the time the assessment was made, by which Laura Bennett was to suffer the land to be sold for taxes, in order to cut off the Nickum mortgage, and Lucy Mason was to become the purchaser at such sale, and subsequently convey the land to her, and that the defendant Tiny Gaston purchased of Lucy Mason with knowledge of these facts. The court instructed the jury, in effect, that if such an arrangement or agreement existed between Laura Bennett and Lucy Mason for the purpose of defeating the Nickum mortgage, the tax sale "did not confer any title upon the purchaser, but simply stands as a payment of the taxes; it has no further force or effect," and "could not be used for any other purpose, except to pay the taxes;" and that the three-years limitation provided in section 2840, Hill's Ann. Laws, has no application to this case.

The trial resulted in a verdict and judgment in favor of plaintiff, from which the defendant Tiny Gaston appeals, assigning as error the instruction referred to.

P. L. Willis and Seneca Smith, for appellant. A. H. Tanner, for respondent.

BEAN, J., (after stating the facts.) The contention for appellant is that all inquiry into the validity of the tax sale to Lucy Mason is cut off by section 2840, supra, which provides that "any suit or proceeding for the recovery of lands sold for taxes, except in cases where the taxes have been paid, or the land redeemed, as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter," unless the plaintiff can show that the tax for which the land was sold was actually paid before the sale, or that the land was subsequently, and within the time allowed by law, redeemed; or, if this is not So, the tax deed was at least prima facie valid, and will support the title of defendant if she is a bona fide purchaser for value, whether the alleged combination between Laura Bennett and Lucy Mason existed or not; and hence it was error, under the issues in this case, for the court to instruct the jury that, if they believed such arrangement did exist, the tax deed was of no effect, and "could not be used for any purpose except to pay the taxes." For the plaintiff the contention is that, as

Laura Bennett was the owner and in posses sion of the property at the time of the assessment, it was her duty, as against the mortgagee, to pay the taxes; and if she entered into an arrangement with Lucy Mason by which she was to suffer the land to be sold for such taxes, and purchased by Lucy Iason, for the purpose of cutting off the lien of the Nickum mortgage, the sale operated merely as a payment of the taxes, and Lucy Mason did not acquire, either by her purchase or tax deed, any right or title whatever to the property, which she could convey to the defendant.

The law is well settled that a mortgagor, or his successor in interest, remaining in possession of the land, cannot permit the mortgaged property to be sold for taxes, and become the purchaser thereof, either directly or through the agency of another, for the purpose of cutting off a prior lien. He is under a legal obligation to pay the taxes, and cannot, by neglecting to perform this duty, and suffering the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself, or by subsequently buying from a stranger who purchased thereat. By such a purchase he does not acquire any title or right to the property as against the lienholder better than he had before, but the sale will operate only as a mode of paying the taxes, leaving the title in the same condition as if no sale had been made. "This principle is universal," says Judge Cooley, "and is so entirely reasonable as scarcely to need the support of authority. Show the exist ence of the duty, and the disqualification is made out in every instance." Cooley, Tax'n, 345; Blackw. Tax Titles, §§ 566-591; Christy v. Fisher, 58 Cal. 256; Lewis v. Ward, 99 Ill. 525; Ralston v. Hughes, 13 Ill. 470; Edgerton v. Schneider, 26 Wis. 385; Basset v. Welch, 22 Wis. 175. It would necessarily follow, then, from this rule, that the statutory period in which "a suit or proceeding" can be maintained for the recovery of land sold for taxes would not bar the right of the lienholder to enforce his lien under the circumstances disclosed, and this is the construction given to a similar statute by the supreme court of Wisconsin. In Jones v. Davis, 24 Wis. 229. which was a proceeding to enforce a judgment lien, the defendant claimed title under a tax deed which had been recorded for a time exceeding the statutory period in which an action could be maintained for the recovery of land sold for taxes, and contended that the proceeding was barred, but it was held that the lien of the judgment was not cut off or destroyed by the tax deed; the court, by Cole, J., saying: "The answer shows that the tax title was obtained by the grantors of the defendant, who were in possession, and under obligation to pay the taxes. A person in possession of land, and whose duty it is to pay the taxes at the time of the as