페이지 이미지

it is permitted to be general in its terms, and therefore it will seldom occur that it will afford a clue to the intention when the text of the statute is uncertain. But the title of an act is now so associated with it in the process of legislation that when, in performing its constitutional functions, it affords means of determining the legislative intent, in cases of doubt its help cannot be rejected for being extrinsic and extralegislative. The language of an act should be construed in view of its title and its lawful purposes; broad language should be confined to lawful objects. The subject or object expressed in the title fixes a limit to the scope of the act, and provisions not germane but foreign to such subject will be excluded as unconstitutional and void."

§ 212. The preamble.— The preamble in a statute is a prefatory statement or explanation. It purports usually to state the reason or occasion for making the law to which it is prefixed. It accompanies the bill through the process of enactment, and thus emanates from the law-maker. It is not part of the law, in a legislative sense, and hence can never enlarge the scope of a statute; it cannot of itself confer any power. Its true office is to expound powers conferred, not substantially to create them. But it is a guide of some importance to the intention of the legislature. It is “a good means,” says Lord Coke, “ to find out the meaning of the statute, and is a true key to open the understanding thereof." 5 This affirms that it has very considerable value in interpreting the statute, but it does not define precisely its force for that purpose. Lord Tenterden thus expressed himself on the same subject : “In construing acts of parliament we are to look not only to

1 People v. Wood, 71 N. Y. 371, 374; necticut, etc. Ins. Co. v. Albert, 39 Hadden v. The Collector, 5 Wall. Mo. 181; Battle v. Shivers, 39 Ga. 405; 107; People v. Molyneux, 40 N. Y. Nazro v. Merchants' M. Ins. Co. 14 113; S. C. 53 Barb. 9; Bishop v. Wis. 295; Dodd v. State, 18 Ind. 56; Barton, 2 Hun, 436; People v. Daven- Flynn v. Abbott, 16 Cal. 358; Garvin port, 91 N. Y. 574; Wilson v. Spaul- v. State, 13 Lea, 162. ding, 19 Fed. Rep. 304; Torreyson v. 2 Allor v. Wayne Co. Auditors, 43 Board of Examiners, 7 Nev. 19; Mich. 76, 97; Singer M. Co. v. GraSmith v. State, 28 Ind. 321 ; Garrigus ham, 8 Oregon, 17. v. Board of Com'rs, 39 Ind. 66; Hines 3 Ante, S 102. v. Railroad Co. 95 N. C. 434; Com- Story, Com. on Const. 8 459; Wilmonwealth v. Slifer, 53 Pa. St. 71; son v. Knubley, 7 East, 128. Bradford v. Jones, 1 Md. 370; Con- 5 Co. Litt. 79a; Plowd. 369.


the language of the preamble, or of any particular clause, but at the language of the whole act; and if we find in the preamble, or in any particular clause, an expression not so large and extensive in its import as those used in other parts of the act, and upon a view of the whole act we can collect from the more large and extensive expressions used in other parts the real intention of the legislature, it is our duty to give effect to the large expressions, notwithstanding the phrases of less extensive import in the preamble, or in any particular clause."! He seems to place the preamble on an equal footing with any particular clause of the act itself; leaving it to be inferred that it is to be considered within the rule requiring every part of an act to be considered in determining its meaning.

The established doctrine seems to be that if, on reading the enacting part, there is no ambiguity or doubt as to its scope or meaning, there can be no recourse to either the title or preamble in search of a different meaning. “This is the case where the words are plain without any scruple, and absolute without any saving:"2 And then the preamble cannot restrain or extend the import of the enacting clause. The preamble cannot be permitted to introduce doubt or uncertainty where otherwise it would not exist. An act cannot be declared unconstitutional for matter contained in the preamble, the text of the statute itself being free from constitutional objection.” When the legislature passes an act within its powers, a statement of its reasons in the preamble will not affect the validity of the act. But where there is uncertainty, ambiguity or doubt on the language of the statute itself, the preamble may aid as far as it can to ascertain the legislative intent.? Where

1 Bywater v. Brandling, 7 B. & C. H. L. Cas. 358; Clark v. Bynum, 3 643.

McCord, 298; Covington v. McNickle. ? Co. Inst. 533.

18 B. Mon. 262; Rex v. St. Peter & 3 Colehan v. Cooke, Willes, 395; St. Paul in B. 1 Bott, 443. Holbrook v. Holbrook, 1 Pick. 248; 4 James v. Du Bois, 16 N. J. L. 285; Jackson v. Gilchrist, 15 John. 89; Bac. Abr. tit. Statutes, I., 7. Emanuel v. Constable, 3 Russ. 436; 5 Sutherland v. De Leon, 1 Tex. 250. Taylor v. Oldham Corporation, L. R. 6 Lothrop v. Stedman, 42 Conn. 583. 4 Ch. Div. 395; Bentley v. Rotherham 7 County of York v. Crafton, 100 L. Board, id. 588; Crespigny v. Witte- Pa. St. 619; Yazoo R. R. Co. v. Thomas, noom, 4 T. R. 790; Lees v. Summers- 132 U. S. 174; Beard v. Rowan, 9 Pet. gill, 17 Ves. 508; Mason v. Armitage, 301, 317; Jackson v. Gilchrist, 15 13 id. 36; Copland v. Davies, L. R. 5 John. 89; Constantine v. Van Winkle,

there is such generality in the text of the statute as renders it ambiguous as to scope, the preamble may be referred to to determine whether such general language is to have the most extensive or only a restricted operation; for the purpose of the preamble is to state the reason and object of the law.' The preamble may explain an equivocal expression used in the enacting part, but it can never control its obvious meaning, nor supply matter not within the spirit and meaning of the statute itself. It may, in this sense, be referred to in the construction of a statute to which it was prefixed after its enactment without it. The generality of the enacting part must be such as to amount to ambiguity, or be such as to suggest a doubt, to justify restraining it for matter in the preamble. The very subject-matter, without a preamble, may have the effect to limit general language.

$ 213. The legislature cannot bind itself by a preamble, nor even by a statute, so as to impair its continuing power to legislate; hence, one provision of an act will prevail against another which is inconsistent and precedes it in the same act; a fortiori against a conflicting declaration in the preamble. The conflict between two provisions of the act must be obvious and inveterate to justify the conclusion that the latter repeals the earlier. The conflict of a provision in the act itself with the preamble will not signify, unless there is some obscurity or doubt as to the scope or meaning of the former, read alone. A clear and explicit enactment is not cut down by a more limited preamble or recital, even though the enacting clause is in

6 Hill, 177, 184; Brett v. Brett, 3 3 Goldsmid v. Hampton, 5 C. B. (N. Addams, 210; Deddrick v. Wood, 15 S.) 94. Pa. St. 9; Bywater V. Brandling, 4 Trueman vs. Lambert, 4 M. & S. 7 B. & C. 643; Kearns v. Cord- 238; Hughes v. Done, 1 Q. B. 301. wainers' Co. 6 C. B. (N. S.) 388; State 5 Salkeld v. Johnston, 1 Hare, 196; v. Cazeau, 8 La. Ann. 109; United Henderson v. Bise, 3 Starkie, 158; States v. Webster, Davies, 38; Blue v. Elsworth v. Cole, 2 M. & W. 31. McDuffie, Busbee L. (N. C.) 131; Nash 6 Ante, & 148. V. Allen, 4 Q. B. 784; Crowder v. 7 Hughes v. Chester, etc. Ry. Co. 1 Stewart, L. R. 16 Ch. Div. 370.

Drew. & Sm. 524; Kearns v. Cord1 United States v. Webster, Davies, wainers' Co. 6 C. B. (N. S.) 388–408; 38.

Greig v. Bendeno, El. Bl. & El. 133; 2 Clark v. Bynum, 3 McCord, 298; Barton v. Hannant, 3 B. & S. 16; Copeman v. Gallant, 1 P. Wms. 314. Jackson v. Gilchrist, 15 John, 89;

Treasurers v. Lang, 2 Bailey, 430.

general words and the preamble particular. Strong words in the enacting part of a statute may extend it beyond the preamble.? Though the preamble is generally a key to the statute, yet it does not always open all parts of it. Sometimes the legislature, having a particular mischief in view, to prevent which was the first and immediate object of the statute, recites that in the preamble, and then goes on in the body of the act to provide a remedy for general mischiefs of the same nature but of different species, not expressed in the preamble nor perhaps then in contemplation."

1 Bac. Abr. tit. Statutes, I.; Treas- that purpose, the preamble, or the urers v. Lang, supra.

title, has a claim to consideration. But 2 Pattison v. Bankes, 2 Cowper, its office is auxiliary only, and stops 543; Rex v. Marks, 3 East, 160. there; and neither to be invoked for

3 Mace v. Cammel, Lofft. 782; Hol- the purpose of restricting and controlbrook v. Holbrook, 1 Pick. 248; Cole- ling plain and unambiguous words in han v. Cooke, Willes, 395. In State the enacting clause or body of the v. Cazeau, 8 La. Ann. 109, the court law. A preamble, it must be admitsay: “The title of the law is : •An ted, sometimes mistakes, or does not act to authorize equitable assignees fully state, the whole object of the to sue in their own names;' and the legislature; and where the words in words of the preamble are, whereas the body of the law, taken in their equitable assignees have frequently plain obvious and natural sense as sustained injuries and loss by the there found, embrace a subject not death of assignors, or legal plaintiff,' stated in the preamble, the preamble which are supposed to have the effect is not to control, and narrow them to restrict the broad words of the en- down to its own restricted limits; acting clause, and to confine them to but if looked to at all, it is to be conthe case of an assignee whose as- sidered as not stating the entire obsignor has died without making an ject of the legislature. Though where executor, and on whose estate there the words used in the body of the is no administration. It is admitted law are in themselves ambiguous, and that where the words of the enacting require the aid of the preamble to clause are of double meaning, and give them application, it may for that the mind is at a loss to discover their purpose be resorted to. true construction, and determine “ In this case the words of the title what it is that they embrace, it seizes are co-extensive with the words of upon anything from which assistance the enacting clause, and although the can be derived, and in that effort preamble recites that equitable aslooks to the title or preamble (if there signees have frequently sustained inbe one), or to both, in search of the juries and loss by the death of the aid it requires; by which many a key assignor, or legal plaintiff, yet it does is sometimes found, to open the door not declare that case to be the only to the intention of the legislature, subject intended to be legislated upon. that otherwise would be locked up in And the words of the enacting clause, obscurity. In such a case and for 'any assignee or assignees,' plainly

[ocr errors]

Though the preamble of one act may appear to be directed against a particular evil, and though another act may be passed to aid its application, the provisions of the second act are not necessarily to be confined to the special purpose which seemed to be the particular object which the first had in view. Its own words must be considered as explaining and defining its objects and its meaning. It has been stated to be a general rule that the preamble may extend, but cannot restrain, the effect of the enacting clause. In a late English case it was held: “We are to give effect to the preamble to this extent, namely, that it shows us what the legislature was intending; and if the words of the enactment have a meaning which does not go beyond that preamble, or which may come up to the preamble, in either case we prefer that meaning to one showing an intention of the legislature which would not answer the purposes of the preamble or which would go beyond them. To that extent only is the preamble material.”3 We ought not to restrict a section in an act by the preamble where the section is not inconsistent with the spirit of the act. While an enactment is conclusive as to the facts it states against those who are within its operation, though not as to such as are not within its enacting part, a mere recital in a statute, either of fact or of law, is not conclusive. A court is at liberty to decide the

and clearly embracing, according to when it is not perceived that any mistheir natural and ordinary meaning, chief can be done, by giving effect any assignee, whether the assignor to the words in the body of the law, be dead, with or without an executor. according to their natural plain mean. or administration upon his estate, ing and import.” See Mayor, etc, v. they are not to be restricted to the re- Moore, 6 Harris & J. 375; Kent v. cital in the preamble. But effect is to Somervell, 7 Gill & J. 265. be given to the plain words of the 1 Copland v. Davies, L. R. 5 H. L. legislature expressed in the enacting Cas. 358. clause, as embracing not merely the 2 Kearns v. Cordwainers' Co. 6 C. B. subject of the recital in the pream- (N. S.) 388. ble, but extending beyond the recital, 3 Per Lord Blackburn, West Ham and embracing every other case com- Overseers v. lles, L. R. 8 App. Cas. prehended within their clear meaning, 386. without resorting to the preamble, 4 Sutton v. Sutton, L. R. 22 Ch. Div. for the purpose of restricting or con- 511. trolling them; no explanation of 5 See Edinburgh, etc. R. R. Co. v. their meaning or application being Linlithgow, 3 Macq. H. L. Cas. 704; required by any ambiguity in the Perry v. Newsom, 1 Ired. Eq. 28; body of the law. And particularly 3 Atk. 304; Cowp. 698.

« 이전계속 »