with the defendant at Cœur d'Alene, Idaho. | ties may be, the court should in such a case on July 4, 1913. The defendant defaulted immediately, and at the first opportunity, and the prosecuting attorney of Spokane county appeared at the trial and defended on behalf of the state. From the evidence it appears that the defendant was divorced from her former husband in the superior court for Spokane county by decree entered on May 22, 1913. And the marriage, therefore, took place within six months of the entry of the prior decree, in defiance of its terms and of the statute. Rem. & Bal. Code, § 991. Both parties were residents of Washington at the time of the marriage and for a long time prior thereto. Neither had any intention of becoming residents of Idaho, having gone to Coeur d'Alene, procured a license, gone through the marriage ceremony, and returned to this state all on the same day, and making their home in Spokane, which home had been prepared previous to the marriage, from that time on so long as they resided together. The appellant admits that he knew at the time of the marriage that no legal ceremony could be performed in Washington because of the defendant's too recent divorce; that he thought she might be liable to some penalty because of the Idaho marriage, but claims that he did not know that such a marriage was illegal until some six or seven months thereafter, and that when he so learned, he asked the defendant to marry him again, which she declined to do; notwithstanding which the parties continued to live together as husband and wife until the fall of 1916, when difficulties arose between them, and they separated. The defendant not having appeared or testified, we, of course, know nothing of what her version of the facts might be. The trial court found that appellant knowingly violated the law, that he was estopped to allege or prove that the Idaho marriage was illegal, denied him any relief, and dismissed his action with prejudice, and he appeals. Let it be said in the beginning that the appellant's actions as detailed by himself on the witness stand were most reprehensible, and cannot be too severely condemned. But the law provides other means for punishing him, which should have been resorted to. We have so often held that the statute prohibiting and declaring void all marriages contracted within six months after either party has been divorced, "whether contracted within or without this state," means what it says, and is the law of this state, that further discussion or citation of previous decisions is wholly unnecessary. The effect of the judgment below is to recognize a wholly illegal and void marriage as subsisting, and the state is thereby put in a false position with respect thereto. However undeserving the par recognize the public policy of the state, as declared by the statute, and enter its decree annulling such a marriage, to the end that the public be protected so far as possible, from the evils which follow such unlawful unions, and to prevent the innocent from suffering therefrom. This seems to be the undoubted policy of the state, as our statute (Rem. & Bal. Code, § 983), without reference to the guilt or innocence of either party, provides: "When there is any doubt as to the facts renfor, and on proof obtain, a decree of nullity of dering a marriage void, either party may apply marriage." The judgment of dismissal is reversed, with directions to enter a decree annulling the marriage. MAIN, C. J., and FULLERTON, MITCHELL, PARKER, MOUNT, MACKINTOSH, HOLCOMB, and CHADWICK, JJ., concur. LEMLEY et ux. v. JONES et al. (No. 14445.) (Supreme Court of Washington. Oct. 23, 1918.) WATERS AND WATER COURSES 157–DRAIN ING LAKES-RIGHT TO INJUNCTION. Where several small connected lakes on de fendant's land were checked by natural barrier high water, plaintiffs held entitled to restrain from flowing upon plaintiffs' land except during defendants from cutting through barrier, notwithstanding oral license permitting such acts. Department 1. Appeal from Superior Court, Douglas County; R. S. Steiner, Judge. Suit by J. C. Lemley and wife against C. W. Jones and another. Judgment dismissing the suit, and plaintiffs appeal. Reversed and remanded, with directions. Guy T. Walter, of Coulee City, and N. W. Washington, of Ephrata, for appellants. MAIN, C. J. This action was brought to obtain an injunction. The cause was tried to the court without a jury, the relief prayed for was denied, and a judgment entered dismissing the action. From this judgment plaintiffs appeal. The parties to this action are, respectively, the owners of adjoining farms or tracts of land in Douglas county. Upon the respondents' land there is a body of water known as Tule Lake, which covers an area varying with the seasons of the year from 15 to 25 or 30 acres. To the northwest of this lake is a series of smaller lakes which many years ago were connected with each other and with Tule Lake by means of a ditch. Beyond the series of smaller lakes is a natural barrier. During the spring season when the waters in Tule Lake and the other lakes rise, owing to the rains and melting snows, the waters overflow this natural barrier and continue in a course until they reach the land owned by the appellants. Some distance beyond the natural barrier and on the land of the respondents is the head of what is called a gulch which extends to or upon the land of the appellants. The respondents cut through or lowered the natural barrier above referred to so that the waters of Tule Lake would pass through, reach the gulch, and finally flow upon the land of appellants. By this action the appellants sought to restrain the lowering of the natural barrier and thus permitting the waters of Tule Lake to reach their land, which otherwise would not have done so. Isaac Belknap was charged with having fish in his possession during the closed season, in violation of Laws 1915, c. 31, § 65, as amended by Laws 1917, c. 169, § 16. Demurrer to information sustained, and the State appeals. Affirmed, and case dismissed. John I. O'Phelan, of Raymond, for the State. Welsh & Welsh, of Raymond, for respondent. MACKINTOSH, J. By information the defendant was charged with having in his possession for the purpose of sale, on the 27th day of August, 1917, salmon fish which he had caught beyond the three-mile limit outside of the Columbia river. This prosecution was instituted under section 65, chapter 31, of the Laws of 1915, as amended in section 16, chapter 169, of the Laws of 1917, which section reads as follows: In Noyes v. Cosselman, 29 Wash. 635, 70 Pac. 61, 92 Am. St. Rep. 937, it was held that an owner of land upon which there was a natural accumulation of water into a swamp or lake had no right to improve his land by draining such waters from one portion of his land through a natural barrier to another portion, whence it would escape over the low-in his possession except for the sole use of himer lands of an adjoining proprietor. It is said, however, and the trial court found, that the lowering of the barrier in the present case was orally agreed to. While the evidence as to whether such an oral agreement was made is in dispute, we will assume that the facts on this question are as found by the trial court. In Hathaway v. Yakima Water, etc., Co., 14 Wash. 469, 44 Pac. 896, 53 Am. St. Rep. 874, it was held that a verbal license to enjoy a permanent privilege on the landing any of the closed seasons prescribed in this of another is revocable at the will of the licensor, although money may have been expended thereunder by the licensee. From the two cases cited it seems to necessarily follow that appellants had a right to injunctive relief to prevent the waters of Tule Lake from flowing upon their land, which was the result of the lowering of the natural barrier. The judgment will be reversed, and the cause remanded, with direction to enter a judgment in favor of the appellants. PARKER and FULLERTON, JJ., concur. STATE v. BELKNAP. (No. 14704.) Laws 1915, c. 31, § 65, as amended by Laws 1917, c. 169, § 16, making a person having fish in his possession during the closed season guilty of a misdemeanor, and by proviso making provision inapplicable to salmon caught beyond the three-mile limit outside the Straits of Juan de Fuca, is unconstitutional. Department 2. Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge. "It shall be unlawful for any person, firm or corporation to purchase, handle, deal in or have self and family any food fish of any variety which were taken from the waters of this state during any of the closed seasons prescribed in this act, and any person who purchases, handles, during such periods, except for the sole use of deals in or has in his possession any such fish himself and family, shall be guilty of a misdemeanor. And it shall be unlawful for any person, firm, or corporation to purchase, handle, deal in, or have in his possession, except for the sole use of himself and family any salmon fish of any variety which were taken beyond the three mile limit outside of the Columbia River, duract: Provided, however, that this provision shall not apply to salmon taken beyond the three mile limit outside the Straits of Juan de Fuca." A demurrer, which was sustained, was interposed to the information; the grounds of the demurrer being that the section quoted is unconstitutional, in that it was an unlawful interference with interstate and foreign commerce, and deprived the defendant of his property without due process of law, by prohibiting the dealing in salmon fish during the closed season, although the defendant had come into lawful possession of such fish outside of the jurisdiction of this state. Upon the question presented here there is a sharp and radical difference in the decisions of the various courts which have considered it. There are two distinct lines of authority, one represented by some decisions of the state courts and of the federal courts in different districts of the United States, and the other line of authority represented by the decisions of the courts of England, a few of the state courts, and federal courts of different districts, and by the decisions of the Supreme Court of the United States. The first line of authorities holds that the Legislature of the state has not power to punish one for the possession of fish or game which was lawfully captured or killed; that, it having become his lawful private property, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes On the question of whether the act was an unlawful attempt to regulate foreign or interstate commerce the court held: "That a state may not pass laws directly regu quently been held in the decisions of this court. But, while this is true, it has also been held in in the exertion of their police power, not in repeated instances that laws passed by the states conflict with laws of Congress upon the same subject, and indirectly or remotely affecting interstate commerce, are nevertheless valid laws." it cannot be confiscated, nor can he be punished for having it in his possession for any purpose, any more than any other lawful property can be confiscated or subject the owner to punishment by reason of its posses-lating foreign or interstate commerce has fresion; that when the possession was taken, it being lawful, that possession cannot thereafter become unlawful by lapse of time. The other line of authorities sustains acts such as the one under examination upon the theory that they are proper exercises of the police power of the state, passed for the purpose of aiding in the protection of the fish and game of the state. This doctrine is most clearly stated in and supported by the decision of the United States Supreme Court in the case of Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75. It is unnecessary to review the conflicting decisions of different jurisdictions, but it is sufficient to say that we are impressed with, and in a proper case would be inclined to follow, the decision just referred to. In that case the Supreme Court held that the act, which was similar to the section before us, exclusive of the proviso, was not void, within the meaning of the Fourteenth Amendment, because it did not deprive the possessor of property without due process of law. "The acts in question were passed in the exercise of the police power of the state, with a clear view to protect the game supply for the use of the inhabitants of the state." The court then passed to the consideration of the question of whether the act in question was an unreasonable and arbitrary exercise of that power, and said: "It is contended, in this connection, that the protection of the game of the state does not require that a penalty be imposed for the possession out of season of imported game of the kind held by the relator. It is insisted that a method of inspection can be established which will distinguish the imported game from that of the domestic variety, and prevent confusion in its handling and selling. That such game can be distinguished from domestic game has been disclosed in the record in this case, and it may be that such inspection laws would be all that would be required for the protection of domestic game. But, subject to constitutional limitations, the Legislature of the state is authorized to pass measures for the protection of the people of the state in the exercise of the police power, and is itself the judge of the necessity or expediency of the means adopted. In order to protect local game during the closed season it has been found expedient to make possession of all such game during that time, whether taken within or without the state a misdemeanor. * # It has been provided that the possession of certain game during the closed season shall be prohibited, owing to the possibility that dealers in game may sell birds of the domestic kind under the claim that they were taken in another state or country. The object of such laws is not to affect the legality of the taking of game in other states, but to protect the local game in the interest of the food supply of the people of the state. We cannot say that such purpose, frequently recognized and acted upon, is an abuse of the police power of the state, and as such to be declared void, because contrary to the Fourteenth Amend * The foundation for the decision of this case is the same as that which underlies all the decisions which support the constitutionality of these acts, and that is that, in order to protect local game and fish during the closed season, it is expedient to make it unlawful to possess such game or fish during such times, although such game or fish were originally lawfully taken, either within or without the state, "owing to the likelihood of fraud or deceit in the handling of such game," and that this expediency extends to denying the right to possess game or fish from without the borders of the state, though it may be readily distinguished from the game or fish of the state, which is sought to be protected, for the reason that the officials executing the law are to be relieved of the necessity of making even the casual inspection necessary to identify the game or fish held for sale. But an examination of the section of our act discloses that the Legislature has in the section itself nullified the reason which these courts have assigned as the only basis for sustaining the legislation attempted in the has added a proviso which reads: main part of this section; for the Legislature "That this provision shall not apply to salmon taken three miles outside of the Straits of Juan de Fuca." By adding this provision, the act renders it possible to defeat the very purpose which the United States Supreme Court in the Silz Case has declared to be the one justification of such legislation, namely, to protect the local game and fish. To prevent the possibility of salmon fish being caught unlawfully within this state, and when offered on the market for their possessor to claim that they were lawfully in his possession, because taken without the three-mile limit, outside of the Columbia river, the courts have sustained the exercise of the police power attempted in the main portion of the section; but the proviso makes it possible for this very fraud to be perpetrated by allowing the possessor of fish unlawfully taken within the state to offer them on the market under the claim that they were lawfully in his possession, because taken without the threemile limit outside of the Straits of Juan de Fuca. If the main portion of this section could be sustained, it could only be so as tending to aid in the protection of fish and that end. "Cessante ratione legis, cessat et Suit was not commenced. Shortly, however, ipsa lex." and several times, he informed his client The judgment is affirmed, and the case dis- that judgment had been obtained. About missed. August, 1917, the debtor, casually learning MAIN, C. J., and MOUNT, HOLCOMB, him, told Sidelsky that no papers had been and CHADWICK, JJ., concur. En Banc. served on him, that there was no judgment against him, and offered to pay the debt, which offer was refused, without the advice of Mr. Gowan, who, on being spoken to, told Sidelsky not to accept unless costs were also paid. The debtor then offered to pay Mr. Gowan, who would not accept pay without costs, claiming that if he, the debtor, was not served with process, his wife was, and that there was a judgment against him. Sidelsky examined and found there was no judgment, upon report of which Mr. Gowan became abusive to him. Within a day or two the debtor paid Sidelsky, and just as the receipt was passed Mr. Gowan appeared and handed the debtor process and complaint in suit, together with written notice of claim of lien for attorney's fee of $5, whereupon Mr. Gow On Report from State Board of Law Ex- an was notified by his client that the debt aminers. In the matter of the proceeding for the disbarment of Richard Gowan, an attorney at law. Issues were joined and a hearing had before the State Board of Law Examiners, and the findings of the latter, with all the evidence in the case, have been reported for review by this court in accordance with its rules and Laws 1917, p. 421. Accused disbarred, and license annulled. Trefethen & Findley and Richard Gowan, all of Seattle, for accused. W. V. Tanner and Hance H. Cleland, both of Olympia, and R. M. Burgunder, of Colfax, opposed. MITCHELL, J. Richard Gowan, properly admitted, has been practicing law in this state for a number of years. He has been charged with violations of his oath and duties as an attorney and counselor at law in the commission of acts involving moral turpitude, dishonesty, and corruption. To the complaint an answer containing general denials was interposed, upon which issues a hearing was had before the state board of law examiners, whose findings, with all the evidence in the cause, have been reported for review by this court in accordance with its rules and chapter 115, Session Laws of 1917. An examination of the proof, in the face of some denials and evasion on the part of Mr. Gowan, fully satisfies us of conduct on his part that is deceitful and unprofessional. 1. In January, 1917, a claim was placed with him, for collection, by one Sidelsky. Failing to collect, he was, at his own suggestion, authorized to institute suit in the justice of the peace court in April, 1917. He asked, and received, $3 to cover the cost of filing the suit and for service of process. had just been paid. Mr. Gowan then abused both his client and the former debtor. Within a few days Sidelsky personally dismissed the suit in the justice of the peace court. Mr. Gowan undertakes to partially excuse his deceit by saying he thinks he must have left the business of the service of process and filing of the suit to a stranger who stopped in his office a few weeks in April, and whose name he does not well remember and whose whereabouts are now unknown to him; although he admits there is no other instance in which he had the stranger perform such work. 2. One Mrs. Gunderson employed Mr. Gowan to collect money due her. He instituted He received suit, collected $50, and then obtained judg- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1, 2] The attempt of Mr. Gowan to pal-] The appellant has a double track car liate this unprofessional conduct and the line extending from the central portion of wrong to his client is so flimsy and labored the city southwesterly to the place of the acwe decline to discuss it. We are quite satis-cident and beyond, over which it runs a street fied it is a case of the misappropriation of a car commonly known as the Garden Springs client's money with intent to defraud. The car; and also its Medical Lake and Cheney misappropriation or misapplication of money interurban cars. All west-bound street and or property received by an attorney in his interurban cars outward bound run on the professional character is one of the most north track, and all east-bound cars run frequent grounds of disbarment. Although toward the city on the south track. At the we have a statute on the subject, none is place of the accident the double track car needed to authorize, nor will the courts hesi-line occupies the center of Tenth avenue or tate to declare, disbarment in such case as Sunset boulevard, which center part of the this. The chief consideration is not of a street occupied by the tracks is unpaved; client who has already been offended, but, rather, that the exhibition of that wrong discovers the character of the attorney and his unfitness to be trusted; and, while the payment of the money fraudulently used releases the attorney from civil liability, it is not a purgation of his offense, nor does it prove that he has become a fit person to remain on the rolls. The order will be, therefore, that the attorney be disbarred and his license to practice law in this state annulled. MAIN, C. J., and MOUNT, HOLCOMB, TOLMAN, MACKINTOSH, FULLERTON, CHADWICK, and PARKER, JJ., concur. JOHANNESSEN v. WASHINGTON WATER STREET RAILROADS 117(23)-CONTRIBUTORY Whether pedestrian, having looked 1,500 feet Appeal from Superior Court, Spokane County; William A. Huneke, Judge. Action by Carl Johannessen against the Washington Water Power Company. Judgment for plaintiff, and defendant appeals. Affirmed. Post, Russell & Higgins, of Spokane, for appellant. H. M. Stephens and Wm. S. Lewis, both of Spokane, for respondent. TOLMAN, J. This action was brought by the respondent to recover damages for personal injuries which he received by being struck by an interurban electric train operated by the appellant at the intersection of Tenth avenue (there commonly known as Sunset boulevard) and D street, within the corporate limits of the city of Spokane, on October 9, 1916. and on each side of the unpaved portion of the street containing the tracks is a paved roadway approximately 12 feet in width, with a 6-inch curb on the outside next to the sidewalk line, and a 4-inch curb on the inside next to the car tracks. There are no sidewalks along this street in the vicinity of the place of the accident, and the paved roadway is commonly used by pedestrians as well as vehicles. Shortly before the accident happened, the Garden Springs street car, used by the residents of the vicinity in going to and coming from the city, had gone out on the north track toward Garden Springs, and at the time of the accident was returning, though still distant a block or so from the point where the accident occurred, which point was the usual and customary place for persons in that vicinity to board the street car. Respondent is a man 70 years of age, and on the morning of the accident was in good health and in possession of all of his faculties. He resides east of the city of Spokane, and early that morning had come into Spokane and taken the Garden Springs car to the place of the accident, where he had alighted from the car and gone to call upon his daughter who resided in the immediate vicinity. Shortly before 10 a. m. the respondent, carrying a small satchel in his nand, left his daughter's house to take the Garden Springs car for the purpose of returning to the city. Walking down the path from his daughter's house, accompanied by his daughter and another lady, the respondent reached the curb on the north side of and some 12 feet north from the place of the Tenth avenue at a point about 140 feet east accident. He stopped at the 6-inch curb and looked to his left down Sunset boulevard in the direction from which outbound cars would come, and had an unobstructed view of the double tracks for a distance of something like 1,500 feet, and he testifies that no car was then in sight. His daughter and her companion also looked and saw no car. Leaving the women the respondent walked in a southwesterly direction across the north paved portion of the street toward the 4-inch curb next to the north car track, |