(dissenting) — The statute under which the appellants were convicted reads in full as follows :
“It shall be unlawful for any person, firm or corporation to take or have in their possession for the purpose of selling or canning any female or any male crab measuring less than sis; and one-half inches across its back or to take or fish from any of the waters of the state or have in its possession after the same has been taken, for the purpose of selling or canning any crab, during the months of July, August and September of each year: Provided, that any such *305person who has a crab in his possession caught during the month of June may retain the same in his possession lawfully until the fifth day of July thereafter: Provided, that nothing in this section shall prevent the taking of crabs for the consumption of the taker or his family or guests, at all times without a license, and it shall be unlawful for any person, firm or corporation to take or catch any crabs with beam trawl or drag seine.” Rem. Code, §5150-101.
The majority construe this statute to mean that it is unlawful merely to have in possession crabs during the months named as a closed season. I cannot so read it. To do so, it seems to me, is to eliminate the qualifying phrase “for the purpose of sale or canning.” In other words, the statute, as I read it, does not prohibit the mere possession of crabs during the closed season, but makes it an offense to have them in possession for the purpose of sale or canning during that period. That mere possession of crabs during the closed season is not unlawful is shown by the second proviso, since under it one may have crabs in his possession for his individual use during that period. Nor is the possession unlawful because the possessor may intend to sell or can them after the closed season is over. The prohibition is against possession for the purpose of selling or canning during that period. The statute is punitory, and its words should not be extended beyond their natural or obvious meaning.
I am aware that these qualifying words are not given effect by the majority because of the first of the provisos attached to the statute. But this is not the office of a proviso.
“A proviso attached to a statute is not a part of, but a restraint upon, an exception to, or a modification of some word or phrase of an act, Sutherland, Stat. *306Constr. 222; Black, Interpretation of Laws, 270; The Matter of Webb, 24 How. Pr. 247. In other words, a proviso or an exception to a general statute involving no uncertainty and doubt cannot be held, nor can words be selected therefrom, to add to the declaration of the subject-matter expressed in the body of the act.” Tsutakawa v. Kumamoto, 53 Wash. 231, 101 Pac. 869, 102 Pac. 766.
“ ‘The office of a proviso is not to enlarge or extend the act or section of which it is a part, but rather to put a limitation and a restraint upon the language which the lawmaker has employed’.” Laidlaw v. Portland, Vancouver, etc. R. Co., 42 Wash. 292, 84 Pac. 855.
“It is argued that the proviso in this section broadens this evident limited meaning of the language preceding in the body of the section, because there is in the proviso the words ‘any public street, road or highway in this state. ’ Viewed superficially, this may seem a plausible argument, but its force is broken when we are reminded that the purpose of a proviso is not to broaden the meaning of language found in the main body of the act, but rather to limit the meaning of such language or except from its operation some specified objects or things.” Bartlett v. Lanphier, 94 Wash. 354, 162 Pac. 532.
“A constitutional or statutory proviso is a restraint or limitation upon, not an addition to, that which precedes it.” State v. Collins, 94 Wash. 310, 162 Pac. 556.
“A proviso repugnant to the enacting part of a statute is void, . . .” State ex rel. Board of Tax Com’rs v. Cameron, 90 Wash. 407, 156 Pac. 537.
Seemingly, the majority rule also that, while a proviso may not in itself modify, change or eliminate any part of the body of the act, it may be considered to gather the legislative intent, and if in considering it the intent appears to be something different from that which the words express, the words may be eliminated *307to give effect to the intent. This seems to me unsound. Clearly it is as much to let the proviso control the substantive part of the act, if we read out qualifying words by reason of legislative intent gathered from the proviso, as it is to read them out because of direct contradictory provisions contained therein.
I do not know that I understand the reference made to the authorities cited in the majority opinion. If it is meant to be said that the courts from the states cited sustain the contention that a statute making it a criminal offense to have in possession fish or game during a closed season is constitutional and enforcible, I agree with the contention, and agree also that the courts of the states referred to so hold. But if it is meant to be asserted that these courts hold that a statute making it an offense to have in possession for the purpose of sale fish or game during the closed season is to be construed as making it an offense to have such game or fish in possession merely during that season, I cannot agree with the assertion. I can find none which so hold, and assuredly those to which specific reference is made do not do so. In State v. Schuman, 36 Ore. 16, 58 Pac. 661, 78 Am. St. 754, 47 L. R. A. 153, the question was whether a statute making it an offense “to sell, offer for sale, or have in possession for the purpose of sale, any trout at any time,” was violated by offering for sale trout caught in another state and brought into the state whose statutes contained the prohibition. It was held that it was, but the court did not, even by an obiter declaration, say that, under the statute, it was an offense merely to have trout in possession. In State v. Pulos, 64 Ore. 92, 129 Pac. 128, the statute made it unlawful in certain counties, at any time between January 15 and September 1 of any,year, to have in possession *308any wild duck, and it was held an offense to have in possession any such duck in the closed season, although killed during the open season. I concede this case to be rightly decided, but it is far from holding that a statute which prohibits the possession of game for the purpose of sale during a closed season is violated by merely having such game in possession during the closed season.
I may add that my construction of the statute was the primary view of the prosecuting attorney, who conducted the prosecution of the appellants. He not only, in his information, charged the appellants with the possession of crabs during the closed season “for the purposes of sale,” but, at the trial, submitted proofs of specific sales during the closed season to substantiate the allegation. The error committed at the trial arose from the charge of the court to the jury, which was to the effect that possession alone during the prohibited season constituted an offense under the statute. This, in my opinion, was error, and the judgment should be reversed and the case ‘remanded for a new trial.
Chadwick, J., concurs with Fullerton, J.