dissenting.
The majority is correct in saying that "the only issue” tendered by the claimant is the constitutionality of ORS 656.226. The majority is also correct in saying that to declare the statute unconstitutional and wholly void would not aid her at all. But the claimant’s real argument is that the statute is unconstitutional as interpreted and applied to her. The majority sees the constitutional issue as relating to how the legislature has chosen to treat "couples”; I think the constitutional issue relates to how the legislature has chosen to treat individuals in distinguishing between unmarried claimants who have had "children” and those who have not and awarding benefits only to the former. Whatever is the meaning of "minimum rationality,” I do not believe this statute meets that standard if it applies. The majority opinion is inconsistent with the underlying policy in Beal v. Beal, 282 Or 115, 118, 577 P2d 507 (1978), and with the United States Supreme Court approach to the ways in which some state laws treat illegitimate children. See Trimble v. Gordon, 430 US 762, 97 S Ct 1459, 52 L Ed 2d 31 (1977).
Most unfortunately, however, the majority avoids the constitutional issue ipse dixit: There is no problem. Not being satisfied to say that, and believing the constitutional issue can be legitimately avoided by a detailed analysis of the history of the statute, I have *883reduced my proposed opinion to a footnote (without the comments which would have been footnotes had my colleagues been willing to face the issue).1
Claimant argues that the purpose of ORS 656.226 is to provide benefits to the surviving partner of a relationship substantially equivalent to a common-law marriage in her own right, just as benefits are provided to a surviving spouse. She contends that the existence of living children has no rational bearing upon the substantial equivalence of the relationship to a common-law marriage. She asserts that there is no rational basis for the classification between surviving partners with children and those without children, and that, therefore, the classification is invalid under Article I, section 20, of the Oregon Constitution, and the Equal Protection Clause of the Fourteenth Amendment.
SAIF, on the other hand, argues that the purpose of ORS 656.226 is not to provide compensation to surviving partners in their own right, but rather to protect surviving children by insuring that a surviving partner who has responsibility for such children is not left destitute. The requirement of living children would unquestionably bear a rational relationship to that purpose.
Both claimant and SAIF assume that the phrase "and children are living as a result of that relation” in ORS 656.226 was intended by the legislature as a necessary condition to compensation of a surviving partner. That assumption is supported by our decision in Thomas v. SAIF, 8 Or App 414, 495 P2d 46 (1972). A proper interpretation of ORS 656.226 leads to a different conclusion. In Thomas we held that the surviving partner was not entitled to benefits because the only child that resulted from the relation had been given up for adoption. Implicit in that decision was a determination that the purpose of ORS 656.226 is as SAIF now argues. In order to reach that conclusion, we had to interpret "living children” as those in relation to which the surviving partner continued to have legal responsibilities.
There is a simpler and more natural interpretation of ORS 656.226 which gives full effect to all the statutory language in its ordinary sense, does not require the implication of additional terms, avoids unreasonable and arguably unconstitutional results which follow from other interpretations, and is consistent with the history of the statute. We believe that the legislature intended to do in the single section of ORS 656.226 what should more clearly have been done in two separate sections. First, it intended to provide that in case an unmarried man and an unmarried woman have cohabited in this state as husband and wife for at least one year prior to the date of an accidental injury, the surviving woman is entitled to compensation under the other provisions of the Workers’ Compensation Law the same as if the man and woman had been legally married. And, second, it intended to provide that in case there are children living as a result of that relation, they, too, are entitled to benefits under other applicable provisions the same as if the man and the woman had been married.
In January, 1925, the Oregon Supreme Court ruled that common-law marriages were no longer valid in Oregon and, in fact, never had been. Huard v. McTeigh, 113 Or 279, 232 P 658 (1925). In February, 1925, the *884legislature amended the Workmen’s Compensation Law to bring an illegitimate child within the definition of "child.” Or Laws 1925, ch 133. Prior to that time only illegitimate children who had been legitimated prior to the injury were eligible for benefits. LOL § 6619. At approximately the same time the legislature passed Oregon Laws 1925, chapter 269, which in its engrossed form, including its title, read:
"An Act to legitimatize certain marriages and children the issue thereof.
"In case a man and a woman, not otherwise married heretofore, shall have cohabited in the state of Oregon as husband and wife, for over one year, and children shall be living as a result of said relation, said cohabitation, if children are living, is hereby declared to constitute a valid marriage and the children bom after the beginning of said cohabitation are hereby declared to be the legitimate offspring of said marriage.”
The interpretation of the new law soon became the subject of an equitable proceeding which resulted in the opinions in Wadsworth v. Brigham, et al, 125 Or 428, 259 P 299, 266 P 875 (1928). As the opinion on rehearing in that case discloses, there had been a considerable dispute following the passage of the 1925 Act concerning the meaning of the words "not otherwise married heretofore.” As originally introduced, the bill did not contain the words "not otherwise married” and there was no comma after "woman.” Both parties in the Wadsworth case conceded that the Act, in its enrolled form, did not contain a comma after the word "heretofore.” The appellees’ brief and the opinion on rehearing in Wadsworth suggest that the legislature may have enacted the laws in response to Huard, intending only to legitimate past relationships and children alive at the time of the Act. 125 Or at 464.
In 1927 the provision which is now ORS 656.226 was enacted in substantially the form in which it stands today. Or Laws 1927, ch 414. It is reasonable to conclude that the 1927 legislation was an additional response to the Huard decision, which affected women with children and women without, as well as the children themselves. It appears that the intention of the legislature in enacting that provision was to provide independently for the surviving woman and the children.
First, the interpretation gives full effect to the statutory phase "are entitled to compensation under ORS 656.001 to 656.794 the same as if the man and woman had been legally married.” (Emphasis supplied.) In 1927, as now, a surviving spouse was entitled to benefits in her own right, regardless of whether there were children. LOL § 6626; ORS 656.204.
Second, it gives effect to the language "the woman and the children are entitled * * *.” (Emphasis supplied.) If the intention of the legislature was to provide benefits to the surviving partner in order to prevent the undermining of benefits to which the children were independently entitled, it is difficult to understand why it used the phrase "woman and the children.” Rather, it appears that the legislature felt that the Huard decision, together with the provision of benefits to persons who had cohabited as husband and wife, would have created doubt as to the status under the Workmen’s Compensation Law of children of those relationships. The legislature may well have felt it necessary clearly to establish that *885such children were entitled to benefits, although it did not wish to classify them as legitimate or illegitimate for other purposes. Keeping in mind that the legislature may well have assumed that in Oregon Laws 1925, chapter 269, they had acted only remedially with regard to persons whose expectations may have been upset by Huard v. McTeigh, supra, the necessity for Oregon Laws 1927, chapter 414, and the necessity for clarifying the status of children of future, as well as past, relationships becomes clearer.
Third, the suggested interpretation gives full effect to the phrase "and children are living as a result of that relation * * *” without implying additional terms or giving any of the language an unusual interpretation. As noted above, ORS 656.226 was apparently intended in part to provide independently for benefits to a particular class of children. Such compensation would only have been available, however, in case there were children living as a result of that relation. That is the proper sense of those words. Unlike the approach in Thomas, this interpretation gives the word "living” its ordinary, natural meaning. As Thomas illustrated, to read the clause concerning living children as a condition for compensation to the surviving partner requires the reading of "living” to include additional terms, e.g., that the "children” were still dependent or had not been given up for adoption. Giving the term "living” children its ordinary meaning, it is clear that the purpose of the statute was not to benefit children indirectly. A child could be living as a result of the relation, but could be too old to be entitled to benefits in his own right. By accepting this interpretation of ORS 656.226, the word "living” can be given its natural meaning without leading to absurd or unreasonable results. It should, therefore, be given that meaning. State ex ret Nilsen v. Ore. Motor Ass’n, 248 Or 133, 432 P2d 512 (1967); Piazza v. Clackamas Water Dist., 21 Or App 469, 535 P2d 554 (1975).
Fourth, the language employed in Oregon Laws 1925, chapter 269, indicates that the legislature did not intend the phrase "and children shall be living as a result of said relation” to be conditional. If it had, the subsequent phrase "if children are living” would have been wholly unnecessary. Thus, a comparison of the language used in 1925 and in 1927 shows that the phrase "and children shall be living as a result of said relation” as used in the original form of the latter Act, was not intended as a necessary condition to compensation of the surviving partner.
Fifth, the punctuation of ORS 656.226 suggests that "children living as a result of the relation * * *” was not intended to be a condition upon compensation to a surviving partner. Had it been considered part of a dual requirement, co-equal with the requirement of cohabitation as husband and wife for a year, it would not have been set off with commas. Where, as here, there is an ambiguity in the statute, punctuation is a factor to be considered in resolving the ambiguity. Curly’s Dairy v. Dept. of Agriculture, 244 Or 15, 415 P2d 740 (1966); Fleischhauer v. Bilstad, 233 Or 578, 379 P2d 880 (1963).
Finally, the suggested interpretation avoids unreasonable and possibly unconstitutional results which follow from other interpretations. If the legislature intended living children as a condition to compensation of the surviving partner, it must have done so for a reason. Claimant’s contention — that children were required as evidence of a substantial relationship *886—seems somewhat farfetched. Moreover, the conditional interpretation presents substantial constitutional problems. SAIF’s argument — that the statute was intended to benefit children indirectly by preventing their benefits from being undermined by the destitution of the surviving partner — requires us to assume that the legislature sought to-aid children of relationships covered by ORS 656.226 in a manner in which it did not seek to benefit other children. When a surviving child entitled to benefits under ORS 656.208 is left in the custody of a grandparent, a sibling or some other person except the worker’s surviving spouse, that other person is not entitled to any compensation for the indirect benefit of the child, even though he may have been dependent upon the deceased worker. ORS 656.005(12). The same was true in 1927. LOL § 6619.
For the foregoing reasons we should hold that ORS 656.226 was intended to provide compensation for the surviving woman and for the benefit of surviving children independently of one another’s actual existence.