The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-04-06


ayarrae1,t 4hak great osifrages bad besnGom-
n,ttted in certain parts oil the country that
the preamble OF an act oil Par lament reeiting
of otftrages OF that descra ptionl.
was admissible Tor the purpose OF proving
the ayerYtlent. This decision, however, gives
more weight 10 the preamble than Touia
probably be allowed to it in this country.
The Supreme Court Of Kentucky, on the
question whether the preamble oil pTttole
statute could be used as evidence OF matters
reaiteGi in It, said, The fact .recited in the
preamble or private statute may be evidence
between the Common wealth and the appll-
cant or party for whose benefit II was
passed: but as between the applicant ana
another individual whose rights are affected
the facts recited ought not to be evidence.
we well know that such applications are ire
ouentlY made er pdrte. The Legislature, IN
all ;ts inqulring forms by committees, makes
no issue. Once adopt the principle that sucn
facts are conclusive, or even prln,G Jdcte
evidence against private rights, and many
individual controversies may be pre1udged
and drawn from the sanctions OF the judlci-
ary into the vortex OF legislative usurpa-
ton. The appropriate functions OF the
Legislature are to make laws to operate on
future incidents, and not decision or fore
Sailing OF rights accrued or vested under
previous laws. Sucn preamble is eY-
dence that the facts were SO represented
to The Legislature, and not that they are
really true.' This reasoning" adds Sedg-
wick, .tapplies with as much force to pub
lie as to private statutes; and the Supreme
Court OF New York has well said that the
LEGISLATURE has no jurisdiction to determine
facts touching the rights OF individuals"
See the Kentucky case OF Elmendorf US.
Carmichael, 8 Lift, At; and the New York
case OF Parmlee US. Thompson, Hill, II.
That there is no difference in principle be-
tween private and a public statute in this
respect, see Duncombe Us. Brindle, IL Iowa,
1, in which the above passage from Sedg.
wick was quoted and practically applied to
a public statute.
In his Observations on Statutes, Mr.. Bar
rlngton, in manner approved by SedgWick
(page 45) and by Chancellor Kent Il Kent:
Com, page 461), has shown by many in
stances that q statute frequently recite:
what never existed, and as often thai
which is not the real occasion o.
preamble often dwells upon pretenct
which was not the real occasion OF the law,
,phen, perhapS, the propoSer had Uery DIT
ferent viepS In contemplation" OF this
the above-cited Iowa case OF Duncona6e Us
Brindie is "a signal illustration, the preamble
reciting an alleged fact which was shown tc
be false by the production OF. q previous ac
of the Legislature itself.
But.a conclusive and overwhelming rea
son why the recitals in the preamble of ar
act should not and cannot bind third parties
or affect their legal rights in any way before
q court OF Justice, is the well-known truth
that neither the title nor The preamble con
stitures in fact any part Of the act. In Mill:
US. Wilkins, 6 Mod, So, Lord Chief-J justice
Holt said, what was long before and ha:
ever since been recognized to be law
.sThe title of an act of Parliament is nc
part OF the law, or enacting part, no more
than is the title OF q book part OF the book,
for the title is not the law, but the name
or description given to it by the lawmakers
Just as tie preamble Of a statute is no par
thereof, but contains generally the not1ues
or inducements thereof" "The title OF the
act and the preamble to the act" says Chan.
cellor Kent, "are, strictly speaking, no parts
Of It'll Kent's Conn.,, 400, sect. Xxx. And
see Hadden Us. The Collector, 5 Wallace rs.
G.. r., no; and Hogg Us. q. G. & N. Co.,
5 Ohio B., 40; Sedgwick Stat. and Conn.,,
Law, page 40; Edwards Us. Pope,
Scam, 465. The preamble indeed is defined
to be, what its derivation imports, "the in.
PRODUCTION or commencement of a statute,
setting forth by way OF recital the intention
Of the Legislature in framing it, the circum.
stances which occasioned its passage" sc.
2 Bur. Law Die, $40. 1t is well known, in
fact, that most statutes now have no pream.
Bile at all, and they are just as efflcacious
without one as with it. In a case OF doubtful
construction well-drawn preamble may
give aid in ascertaining the intention Of the
laW-maker, and that is its only Office. 1t is
the enacting clause which imparts to a law
all Of its binding force and vigor.
1t would seem, then, to be little less than
absurd to say that the mere preface to an
act, which constitutes in legal contempla.
ton no part OF the act, can, by the recital
Of alleged facts, bind the world as to the
truth Of the facts alleged, and close all Judi
cial or other inquiry into the reality OF
their existence. English holders of Vir.
gnia bonds, suing in Federal court by
n1andanalS to compel the receipt by q State
officer of tax-receivable coupons for taxes.
would laugh at the idea that their vested
rights under contracts made with the State
could be affected by the recital in the pre-
amble OF subsequent act of the Legislature
Of supposed facts inserted for the purpose
OF destroying those rights. Such so-caled
exercise OF the taxing power would be re-
garded as merely colorado, its real and true
object being not taxation, but the avoid
ance of taxation, and by that avoidance the
avoidance Of the obligation OF Legislative
contracts formerly made.
1t is understood, however, to be the views
Of the advocates Of the Barbour bill that the
power OF taxation belongs to the legislative,
or what they call the "political," depart
ment Of the State government, and there
fore that a legislative declaration Of facts in
the exercise Of that power must be accepted