addressing a whereas clause in a zoning ordinance and explaining "the preamble of a statute cannot enlarge its scope and operation, but it may be considered in determining the intent of the act." (citation omitted)
How later courts described this case
- addressing a whereas clause in a zoning ordinance and explaining "the preamble of a statute cannot enlarge its scope and operation, but it may be considered in determining the intent of the act." (citation omitted)
Written by the judges who cited it.
The opinion
Broadfoot, J.
(dissenting). I am unable to agree with the majority opinion herein. The sole question before the court is the validity of a single severable section (sec. 7) of a comprehensive zoning and building ordinance. This section does not refer to the city proper but is confined to the agricultural district. It might be termed the “catchall” section. It provides that no cemeteries, mausoleums, quarries, sand and gravel pits, riding academies, golf courses, airports, nurseries, greenhouses, and camps shall be operated therein *13 without a permit issued by the board of appeals. The trial court found that the section contained no standards or rules for the guidance of the administrative board. If the trial court is affirmed it would result in holding that single section to be invalid.
The majority opinion recognizes that there is a deficiency of standards in the section and has searched for a way to supply the same. They first go to a quotation from Nazro v. Merchants’ Mut. Ins. Co. 14 Wis. *295, as authority for supplying the necessary standards. Apparently the majority of the court haveobeen misled by the word “omissions” appearing in that quotation. Members of this court, even in that early day, sometimes make an ill-advised statement and one that is not necessary for the determination of the case under consideration. No precedent was cited for the use of that particular word. There was no omission in the statute being considered, as a reading of the case will disclose. There was a clerical error which made the statute indefinite and resort was had to the title thereof, which was required under sec. 18, art. IV, Const., to correct the clerical mistake. That case has never been cited as authority for the supplying of an omission in a statute or ordinance. McCaul v. Thayer, 70 Wis. 138, 149 , 35 N. W. 353 ; Bloch v. American Ins. Co. 132 Wis. 150, 164 , 112 N. W. 45 ; McDermott v. State, 143 Wis. 18, 44 , 126 N. W. 888 ; State ex rel. McManman v. Thomas, 150 Wis. 190, 194 , 136 N. W. 623 .
The rule in this state has always been that the preamble to an ordinance, being a prefatory statement of the purpose and intent of the legislative body in adopting the ordinance, may be used to construe an ordinance where its meaning is doubtful. It is not claimed that there is anything doubtful or indefinite in the wording of the single section of the ordinance under consideration. Realizing that the Nazro Case is very doubtful authority for reading into an ordinance something that is not there, the majority have reversed a rule that has *14 been in force in Wisconsin for a century and are adopting a minority rule that is followed in only a very few jurisdictions. The Wisconsin rule is the most logical, and I consider it unwise to cast it aside for the purpose of sustaining an unimportant section in a city ordinance. I am further convinced that moving the preamble into sec. 7 of the ordinance does not cure the defect. The preamble contains statements of the purposes hoped for in the adoption of the ordinance, but those statements of purpose are not standards and rules for the guidance of the board.
I am authorized to state that Mr. Chief Justice Fairchild and Mr. Justice Gehl join in this dissent.