(dissenting) — The Parks and Recreation Commission by rule WAC 352-36-040 prohibits vehicular traffic between June 15 and September 15 on North Beach.
The authority upon which the Commission relies is RCW 43.51.680:
For the protection and conservation of natural resources, and for the safety and enjoyment of the public using the beaches, the Washington state parks and recreation commission, after agreement with the Washington state highway commission, shall establish reasonable regulations for the use and control of vehicular traffic on and along the ocean beach highways as designated and established under RCW 79.16.130, 79.16.160, and 79.16.170. The Washington state parks and recreation commission shall cooperate with county sheriffs and the state patrol in enforcing such traffic regulations: Provided, That automobile driving shall be permitted on the beaches subject to the authority of the department of fisheries to prohibit driving over clam beds.
(Italics mine.)
The proviso clearly mandates that automobile driving be permitted. It does not prohibit vehicular traffic on and along the ocean beach highways, but does grant authority to the Commission to regulate the use and control of such traffic. It would be difficult, even impossible, to conceive of more succinct, clear and unambiguous language as that used in the proviso — “automobile driving shall be permitted.” The language is mandatory. Permission to drive is subject only to the authority granted to the Department of Fisheries to prohibit driving on certain portions of the beaches which includes clam beds.
*654The office of the proviso generally is..either to;except something from the enacting clause, or to qualify op, restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases riot intended by the legislature to be brought within its-'purview; its office is not to confer a power, or as a general rule to enlarge the enactment to which it is appended so as to operate as a substantive enactment itself.
(Footnotes omitted.) 26 Am. & Eng. Ency. of Law 678-79 (2d ed. 1904).
In Tsutakawa v. Kumamoto, 53 Wash. 231, 234, 101 P. 869, 102 P. 766 (1909), it was stated that
[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. Constr. 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. . . .
The authority granted by this statute gives the Parks and Recreation Commission the authority to establish regulations for the “use and control” of vehicular traffic on designated portions of ocean beaches, but the proviso excepts therefrom the authority to prohibit automobile traffic..
It would appear that the legislative intent is clear and unambiguous. The legislature intended that automobile traffic be permitted.
The majority relied on the case of In re Ferguson, 80 Wash. 102, 141 P. 322 (1914). The Ferguson case did not involve a statute with an exception provided by the legislature to a grant of regulatory authority. In that case there was an express grant of the power to regulate. The argument was that “regulation” did not include “prohibition,” therefore the cities could not, even to the limited extent attempted, prohibit the showing of motion pictures. We there held that prohibition of theatres on Sunday,. was within the power to regulate.
*655But in- the present case we have an express limitation upon the authority of the Parks and Recreation Commission. Clearly the Ferguson case is distinguishable and not applicable.
It should be noted that the Parks and Recreation Commission, in other provisions of WAC 352-36, does indeed “regulate” vehicular traffic on ocean beach highways, restricting that portion of the beach to be used for traffic, without prohibiting traffic altogether (352-36-050); requiring operators’ licenses (352-36-070); fixing speed limits (352-36-080); and prohibiting certain dangerous types of driving, such as “squirreling,” etc. (352-36-090). '
It-.should be further noted that RCW 79.16.160 states:
The shore and beach of the Pacific ocean including the area or space lying between ordinary high tide and extreme low tide (as such shore and beach now are or hereafter may be) from the southerly point of Damon’s Point on the north side of the entrance to Gray’s Harbor to the mouth of the Queets river, state of Washington, be and the same are hereby declared a public highway forever, and as such highway shall remain forever open to the use of the public.
(Italics mine.)
This statute gives the public the express right to use the beach as a highway. This provision of the law has never been repealed by the legislature of this state or invalidated by the courts.
Far from repealing the act, the legislature, in the enactment of the provision central to this dispute, RCW 43.51.680, gave express recognition to the status of these beaches as established by the above-cited statute and provided that the Parks and Recreation Commission, after agreement with the Washington State Highway Commission, appropriately
shall establish reasonable regulations for the use and control of vehicular traffic on and along the ocean beach highways as designated and established under RCW 79.16.130,79.16.160, and 79.16.170.
Neither of the two statutes covers the entire subject mat*656ter, and the two statutes are not repugnant or inconsistent.
It is interesting to note that, although at no previous time did the .Washington State Parks and Recreation Commission attempt to close the beach highway, it did seek legislative authority to do so in the 43rd regular session of the state legislature. This defeated attempt followed an unsuccessful effort in the 42nd session of the legislature to obtain favorable action on Senate Bill No. 418, reducing the statutory requirement of agreement with the highway commission to “consultation,” and specifically providing that vehicular traffic would be prohibited on certain portions of the beach; Senate Bill No. Ill, which would strike the designation as a public highway and grant specific authority to prohibit vehicular traffic (striking the proviso of RCW 43.51.680, specifically preserving the right of vehicular traffic on the beach highway); Engrossed House Bill No. 555, to accomplish the same ends; and House Bill No. 283, again making the same attempt to change the existing statutes which forbid the action taken by the Parks and Recreation Commission in this case. All of these attempts to change the law failed; none were successful in any degree.
It would appear to me that the legislative refusal to grant power sought by the appellant clearly demonstrates that the 1967 act was not intended to delegate the power to the Commission to prohibit driving on the beaches, except over clam beds.
I would, hold that there is no express or implied grant of authority or intended grant of authority to the Parks and Recreation Commission to prohibit automobile traffic on the ocean beach highways on areas which are not clam beds and that the action of the Commission in prohibiting automobile operation on the beaches was therefore unlawful.
I would affirm the trial court.
Hunter and Wright, JJ., concur with Rosellini, J.