Atkins v. Deere & Co.
Annotate this Case
Atkins v. Deere & Co., Nos. 82220, 82221 cons. (9/25/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the
opinion to request a rehearing. Also, opinions are subject to modification, correction
or withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made available prior to the
Court's final action in this matter, it cannot be considered the final decision of the
Court. The official copy of the following opinion will be published by the Supreme
Court's Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket Nos. 82220, 82221 cons.--Agenda 25--March 1997.
LARRY D. ATKINS, Appellee, v. DEERE & COMPANY et al., Appellants.--
THOMAS E. KIENITZ, Appellant, v. BRADLEY & BRADLEY, INC., et al.,
Appellees.
Opinion filed Septmeber 11, 1997.
JUSTICE McMORROW delivered the opinion of the court:
We granted leave to appeal in this consolidated case in order to determine
whether the repeal of the Illinois Structural Work Act (740 ILCS 150/0.01 et seq.
(West 1994)) operates as a bar to all causes of actions which accrued prior to the
effective date of the repeal. 134 Ill. 2d R. 302(b). For the reasons that follow, we
conclude that all such causes of actions are preserved.
BACKGROUND
Plaintiffs, Larry D. Atkins and Thomas E. Kienitz, each filed a lawsuit
pursuant to the Structural Work Act to recover damages for injuries they received
while working on separate construction sites. During the pendency of these
actions, the Illinois General Assembly repealed the Structural Work Act, effective
February 14, 1995. The repealing statute, Public Act 89--2, provides in toto:
"PUBLIC ACT 89--0002
(House Bill No. 201)
AN ACT to repeal the Structural Work Act.
WHEREAS, It is the intent of the General Assembly that
the repeal of the Structural Work Act shall operate as a bar to any
action accruing on or after the effective date of this Public Act; and
WHEREAS, It is the intent of the General Assembly that
any action accruing under the Structural Work Act before the
effective date of this Public Act may be maintained in accordance
with the provisions of that Act as it existed before its repeal by this
Public Act; therefore
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
(740 ILCS 150/Act rep.)
Section 5. The Structural Work Act is repealed.
Section 99. This Act takes effect upon becoming law.
Passed in the General Assembly February 9, 1995.
Approved February 14, 1995.
Effective February 14, 1995." Pub. Act 89--2, eff. February
14, 1995 (rep. 740 ILCS 150/0.01 et seq. (West 1994)).
Shortly thereafter, defendants in both of the instant actions moved for
dismissal of plaintiffs' complaints based upon the above quoted repealer.
Defendants argued that although the legislature expressed an intention to apply the
repealing act prospectively, that intention appeared in the introductory paragraphs
preceding the words "Be it enacted ***." According to defendants, those
paragraphs merely constituted a preamble and, as such, could not be considered
a part of the act itself. Defendants further submitted that the paragraphs following
the enacting clause, i.e., "The Structural Work Act is repealed" and "This Act
takes effect upon becoming law," constituted the only operative portions of the
statute. Defendants concluded, therefore, that because the legislature repealed the
Structural Work Act without a saving clause, and because plaintiffs did not have
a vested right in the continuation of the Structural Work Act, plaintiffs' statutory
cause of action ceased as of the date of the repeal.
The circuit court in Atkins v. Deere & Co., No. 82220, disagreed with
defendants and denied the motion to dismiss. The court held that the language
contained in the preamble evinced a legislative intent not to give the repealing act
retrospective effect. Finding that the issue involved a question of law as to which
there was a substantial ground for a difference of opinion (155 Ill. 2d R. 308), the
Atkins court certified the following question for our review:
"Does the statute, known as Public Act 89--2, which
repealed the Structural Work Act, bar all claims under the
Structural Work Act regardless of when the causes of action
accrued and including cases that are pending in the trial or
appellate courts?"
In contrast to the Atkins court, the circuit court in Kienitz v. Bradley &
Bradley, Inc., No. 82221, agreed with defendants that the preamble was not a part
of the act itself. The court further ruled that because the legislature repealed the
Structural Work Act without a saving clause, plaintiff's statutory cause of action
no longer existed. Accordingly, the court granted defendants' motion to dismiss.
As in Atkins, the court entered an order pursuant to Supreme Court Rule 308 (155
Ill. 2d R. 308), asking us to decide:
"Does the Repeal of the Structural Work Act of Illinois (Ch.
48, Sec. 60--69, Illinois Revised Statutes) on February 14, 1995
(P.A. 89--2) apply retroactively to terminate a cause of action
under the Structural Work Act which accrued prior to February 14,
1995?"
We answer each of the certified questions in the negative.
DISCUSSION
The critical inquiry in this case is whether Public Act 89--2 constitutes an
unconditional repeal of the Structural Work Act. The resolution of this issue turns
upon whether we must, under our prior case law, disregard the legislature's
express statement that "any action accruing under the Structural Work Act before
the effective date of this [repealer] may be maintained in accordance with the
provisions of that Act." A review of our past precedent, therefore, is necessary to
a proper understanding of today's decision.
We note that the unconditional repeal of a remedial statute without a
saving clause stops all pending actions where the repeal finds them. People ex rel.
Eitel v. Lindheimer, 371 Ill. 367, 373 (1939). See also Wall v. Chesapeake & Ohio
Ry. Co., 290 Ill. 227 (1919); Shelton v. City of Chicago, 42 Ill. 2d 468 (1969);
Isenstein v. Rosewell, 106 Ill. 2d 301 (1985). As early as 1871, this court held that
"[t]he effect of a repealing statute is to obliterate the prior law as completely from
the records as if it had never passed, and it must be considered as a law that never
existed." Van Inwagen v. City of Chicago, 61 Ill. 31, 34 (1871) (citing Key v.
Goodwin, 4 Moore & Payne 341 (Ex. Ch. 1830), and Dwarris on Statutes 676).
More recently, this court held that "[i]n the absence of a general saving clause or
a saving clause within the repealing act, the effect of the repeal of a statute `is to
destroy the effectiveness of the repealed act in futuro and to divest the right to
proceed under the statute, which, except as to proceedings past and closed, is
considered as if it had never existed.' " Isenstein v. Rosewell, 106 Ill. 2d 301, 310
(1985), quoting 1A C. Sands, Sutherland on Statutory Construction sec. 23.33, at
279 (4th ed. 1972). The only exceptions to the foregoing rule involve (i)
contractual obligations and (ii) vested rights, neither of which may be affected by
the repeal of the act upon which they are grounded. Lindheimer, 371 Ill. at 372.
These exceptions are derived from court decisions which hold that the legislature
cannot pass a retrospective law impairing the obligation of a contract, nor can it
deprive a person of a vested right by a mere legislative act. Lindheimer, 371 Ill. at 372. See also Shelton v. City of Chicago, 42 Ill. 2d 468 (1969); Maiter v.
Chicago Board of Education, 82 Ill. 2d 373 (1980).
Applying these principles to the instant case, we must first determine
whether Public Act 89--2 contains an effective saving clause. As noted above, the
General Assembly expressly indicated that "any action accruing under the
Structural Work Act before the effective date of this [repealer] may be maintained
in accordance with the provisions of that Act." Ordinarily, there would be little
difficulty in construing these words as an effective saving clause, for they clearly
evince the legislative intent to preserve all causes of action which had accrued
prior to the effective date of the repeal. However, contrary to customary legislative
practice, the General Assembly included these words within the preamble to
Public Act 89--2 rather than within the body of the act itself. Although the
placement or location of the legislature's intent may initially appear to be
inconsequential, the location becomes significant in light of our case law which
treats a statute's preamble differently from its body, or "purview."
Under Illinois law, a preamble "is not a part of the Act itself (Triple A
Services, Inc. v. Rice, 131 Ill. 2d 217, 227 (1989)) and has no substantive legal
force." Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401,
414 (1997); see also Brown v. Kirk, 64 Ill. 2d 144, 152 (1976). Because a
preamble customarily precedes the enacting clause, " `[it] is not regarded as being
an operative part of statutory enactments.' " Monarch Gas Co. v. Illinois
Commerce Comm'n, 261 Ill. App. 3d 94, 99 (1994), quoting Illinois Independent
Telephone Ass'n v. Illinois Commerce Comm'n, 183 Ill. App. 3d 220, 236-37
(1988). A preamble cannot, by itself, prescribe rights or establish duties, but may
only be used as a tool of statutory construction. See, e.g., Triple A Services, Inc.
v. Rice, 131 Ill. 2d 217, 227 (1989) (preamble may be used to clarify an
ambiguous act).
In contrast to a preamble, the purview of an act consists of "[t]hat part of
a statute *** commencing with the words `Be it enacted,' and continuing as far
as the repealing clause." Black's Law Dictionary 1237 (6th ed. 1990); see also 1A
N. Singer, Sutherland on Statutory Construction sec. 20.07, at 89 (5th ed. 1992)
(referring to purview as the "action part" of a statute). Not only does the purview
recite the jurisdiction of the legislature vis-a-vis the enacting clause, it also
contains the operative portion of the legislative enactment. As a result, if the
legislature desires to preserve a statutory cause of action by means of a saving
clause, it ordinarily does so by including that clause within the purview of an act
rather than its preamble.
In view of above precedent, defendants argue that the General Assembly's
statement regarding the prospective application of the instant repealer, found in the
preamble, cannot be construed as a valid saving clause. In fact, two federal district
courts have used this same analysis in ruling that the preamble at issue here did
not preserve accrued causes of actions under the Structural Work Act. In Scott v.
Midwest Ltd., 933 F. Supp. 735 (C.D. Ill. 1996), the court noted that a preamble,
not being a part of the act itself, "may only be used to clarify ambiguous
provisions of a statute." Scott, 933 F. Supp. at 737 (citing, inter alia, Triple A
Services, Inc. v. Rice, 131 Ill. 2d 217 (1989), and Brown v. Kirk, 64 Ill. 2d 144
(1976)). The court further observed that the enacting language in Public Act 89--2
states only that "The Structural Work Act is repealed." Based upon this language,
the court found no ambiguity within the repealing act which would justify the
court's reference to its preamble. Scott, 735 F. Supp. at 737. Accordingly, the
court declined to depart from the plain language of the purview, holding instead
that the Structural Work Act was repealed without a saving clause. Scott, 735 F. Supp. at 736-37.
Similarly, in Hendrickson v. Gunther-Nash Mining Construction Co., 955 F. Supp. 87 (C.D. Ill. 1997), the court noted that, under Illinois law, a preamble
could only be used to clarify an ambiguity within the body of the act itself. As in
Scott, the court found that the enacting language repealing the Structural Work Act
was unambiguous; hence, resorting to its preamble was unwarranted. Hendrickson,
955 F. Supp. at 90. The court ultimately concluded that "[t]he General Assembly
did not indicate any intention within the enacting language itself to rebut the
presumption that repeals are to be applied retroactively ***." Hendrickson, 955 F. Supp. at 90. The court, therefore, "decline[d] to depart from the plain language
of the statute as it has been enacted." Hendrickson, 955 F. Supp. at 90.
Plaintiffs, on the other hand, refer us to Randall v. Wal-Mart Stores, Inc.,
284 Ill. App. 3d 970 (1996), in which our appellate court reached a conclusion
opposite to that of the federal courts. In addressing the issue of the preamble, the
appellate court acknowledged that the General Assembly did not include a saving
clause within the body of the repealing act. Nevertheless, the court noted that "[a]
repealing act which does not state whether it is to be applied retroactively or
prospectively is ambiguous to that extent." Randall, 284 Ill. App. 3d at 973.
Having found the requisite ambiguity from the legislature's silence, the court
turned to the preamble contained in Public Act 89--2 in order to ascertain
legislative intent. Randall, 284 Ill. App. 3d at 974, citing Triple A Services, Inc.
v. Rice, 131 Ill. 2d 217, 226-27 (1989). That intent dictated that the repealer be
applied prospectively only. Randall, 284 Ill. App. 3d at 975.
We agree with the appellate court in Randall that the preamble to Public
Act 89--2 may be used to resolve the issue presented in the case at bar. However,
unlike the Randall court, we do not believe that we are justified in resorting to the
preamble on the basis of an ambiguity in the present statute. The purview of
Public Act 89--2 states that "The Structural Work Act is repealed" and "This Act
takes effect upon becoming law." As the federal courts correctly observed in Scott
and Hendrickson, there is nothing ambiguous about this language. Moreover, we
cannot agree with the appellate court that an ambiguity exists as a result of the
legislature's silence on the issue of prospectivity. See Randall, 284 Ill. App. 3d
at 973. That silence only creates a rebuttable presumption that Public Act 89--2
is to be applied retroactively. See Hendrickson, 955 F. Supp. at 89, citing Randall,
284 Ill. App. 3d at 973. A rebuttable presumption of retroactivity, however, is not
the same as an ambiguity. We believe that the appellate court improperly likened
this presumption to an ambiguity in an attempt to justify the court's reliance upon
the preamble. The appellate court, like the federal courts, mistakenly believed that
our decision in Triple A Services, Inc. v. Rice, 131 Ill. 2d 217 (1989), restricted
a court from resorting to a preamble absent an ambiguity in the statute. A close
examination of that decision, however, compels a far less narrow conclusion.
In Triple A Services, this court granted leave to appeal from a decision of
the appellate court which held a municipal ordinance unconstitutional. The
appellate court based its holding upon an ambiguity that arose only after the
appellate court had compared the language of the ordinance with the language of
an unadopted preamble. This court condemned this practice, stressing that "[w]hile
a policy section, like a preamble, may be used to clarify ambiguous portions of
an act, it may not be used to create an ambiguity in a statute or an ordinance."
(Emphasis added.) Triple A Services, 131 Ill. 2d at 227. Accordingly, we reversed
the decision of the appellate court.
It is important to keep in mind that the statement in Triple A Services
regarding the proper use of a preamble in clarifying ambiguities was made in
direct response to the appellate court's improper use of the preamble in creating
ambiguities. As such, this court did not address the question of whether a court
may, under other circumstances, justifiably rely upon a preamble as a tool for
ascertaining legislative intent. Indeed, nothing in that opinion supports the
proposition that the use of a preamble is limited solely to resolving ambiguities.
For these reasons, we do not read Triple A Services as narrowly or as rigidly as
did the courts in Scott, Hendrickson, or Randall.
As noted above, Public Act 89--2 does not expressly indicate whether it
is to be applied prospectively or retroactively. Under these circumstances, a
presumption of retroactive application is created which may be rebutted by an
expressed contrary legislative intent. The court in Randall acknowledged the
rebuttable presumption when it stated, "For repeals, the presumption is that the
legislature intended the repealing statute to be applied retroactively, unless there
is an expression of legislative intent to the contrary." Randall, 284 Ill. App. 3d at
973; see also Hendrickson, 955 F. Supp. at 89, quoting Randall, 284 Ill. App. 3d
at 973 ("When the Illinois General Assembly repeals a statute, the presumption
is that the repeal is `to be applied retroactively, unless there is an expression of
legislative intent to the contrary' "). We hold today that the expression of contrary
legislative intent necessary to rebut this presumption may be gleaned from the
preamble itself.
The preamble has long been recognized as one of the quintessential sources
of legislative intent. The fact that the preamble often accompanies a bill
throughout the legislative process, is voted upon by the members of the General
Assembly, and is included in the text which is presented to the Governor for
signature highlights the unique character of the preamble in terms of legislative
intent. See Randall, 284 Ill. App. 3d at 974, citing 2A N. Singer, Sutherland on
Statutory Construction sec. 47.04, at 146-47 (5th ed. 1992). In this regard, we note
that a preamble constitutes a stronger expression of intent than does a passing
comment made by a single legislator during legislative debates.[fn1] are not
confronted with a situation where the contrary legislative intent needed to rebut
the presumption of retroactivity is cloaked in doubt or uncertainty.
Equally important, however, is the fact that our decision is faithful to the
cardinal rule of statutory construction which dictates that courts must ascertain and
give effect to the true intent and meaning of the legislature. See State Farm Fire
& Casualty Co. v. Yapejian, 152 Ill. 2d 533, 540-41 (1992). But for the silence
in the enacting language, from which the rebuttable presumption arose, we have
not found any evidence that the General Assembly intended a retroactive
application of Public Act 89--2. Therefore, under the circumstances of this case,
we would be defeating legislative intent, rather than giving effect to it, if we were
to accept defendants' contentions that Public Act 89--2 constitutes an
unconditional repeal of the Structural Work Act. No discernible purpose would be
served by our refusal to give effect to the intent of the legislature, unequivocally
expressed in the preamble.[fn2]
We wish to emphasize that today's decision complements our holding in
Triple A Services which recognizes the utility of a preamble as a tool of statutory
construction in ascertaining legislative intent. Nothing in this opinion should be
construed as a departure from our prior decisions which hold that a preamble is
not a part of the act. See Lieber v. Board of Trustees of Southern Illinois
University, 176 Ill. 2d 401 (1997); Triple A Services, Inc. v. Rice, 131 Ill. 2d 217
(1989); Brown v. Kirk, 64 Ill. 2d 144 (1976). To the extent that any express
language in a statute contradicts a preamble, the statutory language controls.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court in
Atkins v. Deere & Co., No. 82220, and reverse the judgment of the circuit court
in Kienitz v. Bradley & Bradley, No. 82221. We remand the matters to the circuit
courts for further proceedings consistent with this opinion.
No. 82220--Affirmed and remanded;
No. 82221--Reversed and remanded.
JUSTICE HEIPLE took no part in the consideration or decision of this
case.
JUSTICE MILLER, specially concurring:
Although I agree with the result reached by the majority in these
consolidated cases, I do not join the majority's reasoning. In my view, the better,
and more direct, analysis is simply to acknowledge the apparent conflict between
the clear language of the amended statute, on one hand, and the equally clear
language used in the preamble and in the legislative debates, on the other hand,
and to recognize that the statute, as enacted, fails to convey the legislature's
intended meaning. The preamble and the legislative debates plainly demonstrate
that the legislature did not intend for the repeal of the Structural Work Act (740
ILCS 150/0.01 through 9 (West 1994)) to affect existing causes of action, and we
should construe the repealer accordingly.
The majority invokes what it terms a rebuttable presumption of
retroactivity and then uses the preamble to the repealing statute, Public Act 89--2,
to rebut the presumption. The ultimate source cited by the majority for the
presumption, however, is Randall v. Wal-Mart Stores, Inc., 284 Ill. App. 3d 970
(1996), whose rationale the majority declines to follow. Randall, which addressed
the same question posed here, construed the text of the present statute as
ambiguous (Randall, 284 Ill. App. 3d at 973 ("A repealing act which does not
state whether it is to be applied retroactively or prospectively is ambiguous to that
extent")) and then employed the language of the preamble to resolve the
ambiguity.
By characterizing the rule of retroactivity as a presumption, the court in
Randall was able to devise a way to surmount the plain language of the repealer.
The rule of retroactivity applicable to the repeal of remedial provisions is
generally expressed in stronger terms, however. It is difficult to reconcile the
majority's view of the presumption of retroactivity, and how it may be rebutted,
with the statements in the case law explaining the typical operation of a statute
that repeals a remedial provision. As this court has previously observed, and as
the majority notes elsewhere in today's opinion (slip op. at 3), "the unconditional
repeal of a special remedial statute without a saving clause stops all pending
actions where the repeal finds them." People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 373 (1939). In Isenstein v. Rosewell, 106 Ill. 2d 301, 310 (1985), this court
explained:
"In the absence of a general saving clause or a saving
clause within the repealing act, the effect of the repeal of a statute
`is to destroy the effectiveness of the repealed act in futuro and to
divest the right to proceed under the statute, which, except as to
proceedings past and closed, is considered as if it had never
existed.' (1A J. Sutherland, Statutory Construction sec. 23.33, at
279 (4th ed. 1972).)"
The repealing statute, Public Act 89--2, does not contain a saving clause within
its text; moreover, the general saving clause found in section 4 of the Statute on
Statutes (5 ILCS 70/4 (West 1996)) is not applicable to legislation that repeals
special statutory remedies like the Structural Work Act (Shelton v. City of
Chicago, 42 Ill. 2d 468, 473-74 (1969)).
The means by which the majority permits its presumption of retroactivity
to be rebutted should also be contrasted with the means that may be used to rebut
the presumption of prospectivity that typically attends legislative enactments.
Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 309 (1988).
The latter presumption is said to be rebuttable not by extrinsic evidence, as the
majority allows here, but only by the statute itself. Rivard, 122 Ill. 2d at 309
("The presumption of prospectivity is rebuttable, but only by the act itself. Either
by express language or necessary implication, the act must clearly indicate that the
legislature intended a retroactive application"). By relying on sources outside the
language of the act, the majority makes its presumption of retroactivity much
weaker than the analogous presumption of prospectivity described in Rivard.
Another problematic link in the majority's reasoning is its attempt to
explain how a preamble may be used for purposes other than to clarify
ambiguities--here, to rebut the presumption of retroactivity described above. The
majority takes aim at the proposition that a preamble may be used to clarify
ambiguities but may not be used to create them. In its discussion of this point, the
majority focuses solely on Triple A Services, Inc. v. Rice, 131 Ill. 2d 217 (1989),
attempting to show that the opinion in that case did not foreclose the use of
preambles for purposes other than the clarification of ambiguities. The majority's
analysis is incomplete, however: what the majority overlooks is that Triple A
Services is not the only case to suggest that the role of a preamble is limited to
clarifying existing ambiguities. Other authorities contain similar statements, and
the majority, under the approach it adopts here, needs to account for the other
decisions as well. See, e.g., Brown v. Kirk, 64 Ill. 2d 144, 152-53 (1976). Indeed,
the limitation under challenge by the majority seems entirely consistent with
courts' normal practice of employing interpretive aids, such as a preamble, only
when the legislative text is less than clear--that is, when the language of the
statute is ambiguous--yet here the majority finds the statute unambiguous.
Although I disagree with the majority's mode of analysis, I agree with the
majority's ultimate conclusion and holding. I believe that the statute at issue here
should be placed in that select group of cases in which courts are permitted to
supply missing language to correct oversights by the legislature. See, e.g., Carey
v. Elrod, 49 Ill. 2d 464, 470 (1971); People v. Hudson, 46 Ill. 2d 177, 181 (1970);
People ex rel. Cason v. Ring, 41 Ill. 2d 305, 312-15 (1968). In the present
consolidated cases, we know from the preamble that the legislature actually
intended for the repeal of the Structural Work Act to apply only prospectively. As
the majority notes, a preamble is a particularly authoritative statement of
legislative intent, having accompanied the underlying bill on its journey through
the legislative process. Here, the preamble clearly demonstrates that the legislature
did not intend for the repeal of the Structural Work Act to eliminate existing
causes of action. Further confirmation for this interpretation, as the majority notes,
may be found in the debates of the amendatory legislation, in which the legislative
sponsors gave assurances that the repeal would operate only prospectively and
would not affect existing causes of action.
In appropriate circumstances, a court construing a statute may supply
critical language that is necessary to carry out the legislature's true intent. Thus,
it is well established that "this court has the authority to insert into a statute
language omitted through legislative oversight" (People v. Shephard, 152 Ill. 2d 489, 498 (1992). To be sure, "this technique of construction is to be exercised
with caution." Gill v. Miller, 94 Ill. 2d 52, 58 (1983). In the present case,
however, obedience to the literal language of the statute would produce a result
that is clearly and demonstrably at odds with the legislature's intent. The cardinal
rule of statutory construction is to ascertain and give effect to the intent of the
legislature. Henry v. St. John's Hospital, 138 Ill. 2d 533, 541 (1990); Stewart v.
Industrial Comm'n, 115 Ill. 2d 337, 341 (1987). Consistent with that principle, I
believe that the correct course in this case is to insert within the statutory text the
saving clause that the legislature obviously intended to include as part of the new
provision yet mistakenly omitted from the enacted version of the bill.
The approach suggested here is consistent with familiar principles of our
jurisprudence. In People v. McCoy, 63 Ill. 2d 40, 44 (1976), we quoted the
following comments by Judge Learned Hand:
" `Of course it is true that the words used, even in their literal
sense, are the primary, and ordinarily the most reliable, source of
interpreting the meaning of any writing: be it a statute, a contract,
or anything else. But it is one of the surest indexes of a mature and
developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have some purpose
or object to accomplish, whose sympathetic and imaginative
discovery is the surest guide to their meaning.' " Cabell v.
Markham, 148 F.2d 737, 739 (2d Cir. 1945).
It requires but little imagination in the present case to see that the
legislature intended for the repeal of the Structural Work Act to operate only
prospectively, as we know from the preamble to the statute and from the
legislative debates of the provision. Because the language used in the body, or
purview, of the statute was not equal to that purpose, we should supply the
language omitted by the legislature. The legislature clearly intended for the repeal
of the Structural Work Act to apply only prospectively. Rather than make a
fortress out of the dictionary, we should attempt to carry out the legislature's
intended goal.
[fn1] The legislative debates in this case provide additional evidence of a contrary
legislative intent. Representative Lang asked the sponsor of Public Act 89--2 the
following question: "So would it be your intent, Sir that if *** presuming the
Governor would sign this tomorrow, that any injuries that were sustained today
would be actionable and would have the full four year statute of limitations under
the current Act?" Representative Churchill answered unequivocally, "Yes." 89th
Ill. Gen. Assem., House Proceedings, February 9, 1995, at 22.
[fn2] Because we have found that Public Act 89--2 did not unconditionally repeal
the Structural Work Act, we need not consider whether the act impermissibly
impairs contractual obligations or divests persons of vested rights.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the
opinion to request a rehearing. Also, opinions are subject to modification, correction
or withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made available prior to the
Court's final action in this matter, it cannot be considered the final decision of the
Court. The official copy of the following opinion will be published by the Supreme
Court's Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.
Docket Nos. 82220, 82221 cons.--Agenda 25--March 1997.
LARRY D. ATKINS, Appellee, v. DEERE & COMPANY et al., Appellants.--
THOMAS E. KIENITZ, Appellant, v. BRADLEY & BRADLEY, INC., et al.,
Appellees.
Opinion filed Septmeber 11, 1997.
JUSTICE McMORROW delivered the opinion of the court:
We granted leave to appeal in this consolidated case in order to determine
whether the repeal of the Illinois Structural Work Act (740 ILCS 150/0.01 et seq.
(West 1994)) operates as a bar to all causes of actions which accrued prior to the
effective date of the repeal. 134 Ill. 2d R. 302(b). For the reasons that follow, we
conclude that all such causes of actions are preserved.
BACKGROUND
Plaintiffs, Larry D. Atkins and Thomas E. Kienitz, each filed a lawsuit
pursuant to the Structural Work Act to recover damages for injuries they received
while working on separate construction sites. During the pendency of these
actions, the Illinois General Assembly repealed the Structural Work Act, effective
February 14, 1995. The repealing statute, Public Act 89--2, provides in toto:
"PUBLIC ACT 89--0002
(House Bill No. 201)
AN ACT to repeal the Structural Work Act.
WHEREAS, It is the intent of the General Assembly that
the repeal of the Structural Work Act shall operate as a bar to any
action accruing on or after the effective date of this Public Act; and
WHEREAS, It is the intent of the General Assembly that
any action accruing under the Structural Work Act before the
effective date of this Public Act may be maintained in accordance
with the provisions of that Act as it existed before its repeal by this
Public Act; therefore
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
(740 ILCS 150/Act rep.)
Section 5. The Structural Work Act is repealed.
Section 99. This Act takes effect upon becoming law.
Passed in the General Assembly February 9, 1995.
Approved February 14, 1995.
Effective February 14, 1995." Pub. Act 89--2, eff. February
14, 1995 (rep. 740 ILCS 150/0.01 et seq. (West 1994)).
Shortly thereafter, defendants in both of the instant actions moved for
dismissal of plaintiffs' complaints based upon the above quoted repealer.
Defendants argued that although the legislature expressed an intention to apply the
repealing act prospectively, that intention appeared in the introductory paragraphs
preceding the words "Be it enacted ***." According to defendants, those
paragraphs merely constituted a preamble and, as such, could not be considered
a part of the act itself. Defendants further submitted that the paragraphs following
the enacting clause, i.e., "The Structural Work Act is repealed" and "This Act
takes effect upon becoming law," constituted the only operative portions of the
statute. Defendants concluded, therefore, that because the legislature repealed the
Structural Work Act without a saving clause, and because plaintiffs did not have
a vested right in the continuation of the Structural Work Act, plaintiffs' statutory
cause of action ceased as of the date of the repeal.
The circuit court in Atkins v. Deere & Co., No. 82220, disagreed with
defendants and denied the motion to dismiss. The court held that the language
contained in the preamble evinced a legislative intent not to give the repealing act
retrospective effect. Finding that the issue involved a question of law as to which
there was a substantial ground for a difference of opinion (155 Ill. 2d R. 308), the
Atkins court certified the following question for our review:
"Does the statute, known as Public Act 89--2, which
repealed the Structural Work Act, bar all claims under the
Structural Work Act regardless of when the causes of action
accrued and including cases that are pending in the trial or
appellate courts?"
In contrast to the Atkins court, the circuit court in Kienitz v. Bradley &
Bradley, Inc., No. 82221, agreed with defendants that the preamble was not a part
of the act itself. The court further ruled that because the legislature repealed the
Structural Work Act without a saving clause, plaintiff's statutory cause of action
no longer existed. Accordingly, the court granted defendants' motion to dismiss.
As in Atkins, the court entered an order pursuant to Supreme Court Rule 308 (155
Ill. 2d R. 308), asking us to decide:
"Does the Repeal of the Structural Work Act of Illinois (Ch.
48, Sec. 60--69, Illinois Revised Statutes) on February 14, 1995
(P.A. 89--2) apply retroactively to terminate a cause of action
under the Structural Work Act which accrued prior to February 14,
1995?"
We answer each of the certified questions in the negative.
DISCUSSION
The critical inquiry in this case is whether Public Act 89--2 constitutes an
unconditional repeal of the Structural Work Act. The resolution of this issue turns
upon whether we must, under our prior case law, disregard the legislature's
express statement that "any action accruing under the Structural Work Act before
the effective date of this [repealer] may be maintained in accordance with the
provisions of that Act." A review of our past precedent, therefore, is necessary to
a proper understanding of today's decision.
We note that the unconditional repeal of a remedial statute without a
saving clause stops all pending actions where the repeal finds them. People ex rel.
Eitel v. Lindheimer, 371 Ill. 367, 373 (1939). See also Wall v. Chesapeake & Ohio
Ry. Co., 290 Ill. 227 (1919); Shelton v. City of Chicago, 42 Ill. 2d 468 (1969);
Isenstein v. Rosewell, 106 Ill. 2d 301 (1985). As early as 1871, this court held that
"[t]he effect of a repealing statute is to obliterate the prior law as completely from
the records as if it had never passed, and it must be considered as a law that never
existed." Van Inwagen v. City of Chicago, 61 Ill. 31, 34 (1871) (citing Key v.
Goodwin, 4 Moore & Payne 341 (Ex. Ch. 1830), and Dwarris on Statutes 676).
More recently, this court held that "[i]n the absence of a general saving clause or
a saving clause within the repealing act, the effect of the repeal of a statute `is to
destroy the effectiveness of the repealed act in futuro and to divest the right to
proceed under the statute, which, except as to proceedings past and closed, is
considered as if it had never existed.' " Isenstein v. Rosewell, 106 Ill. 2d 301, 310
(1985), quoting 1A C. Sands, Sutherland on Statutory Construction sec. 23.33, at
279 (4th ed. 1972). The only exceptions to the foregoing rule involve (i)
contractual obligations and (ii) vested rights, neither of which may be affected by
the repeal of the act upon which they are grounded. Lindheimer, 371 Ill. at 372.
These exceptions are derived from court decisions which hold that the legislature
cannot pass a retrospective law impairing the obligation of a contract, nor can it
deprive a person of a vested right by a mere legislative act. Lindheimer, 371 Ill. at 372. See also Shelton v. City of Chicago, 42 Ill. 2d 468 (1969); Maiter v.
Chicago Board of Education, 82 Ill. 2d 373 (1980).
Applying these principles to the instant case, we must first determine
whether Public Act 89--2 contains an effective saving clause. As noted above, the
General Assembly expressly indicated that "any action accruing under the
Structural Work Act before the effective date of this [repealer] may be maintained
in accordance with the provisions of that Act." Ordinarily, there would be little
difficulty in construing these words as an effective saving clause, for they clearly
evince the legislative intent to preserve all causes of action which had accrued
prior to the effective date of the repeal. However, contrary to customary legislative
practice, the General Assembly included these words within the preamble to
Public Act 89--2 rather than within the body of the act itself. Although the
placement or location of the legislature's intent may initially appear to be
inconsequential, the location becomes significant in light of our case law which
treats a statute's preamble differently from its body, or "purview."
Under Illinois law, a preamble "is not a part of the Act itself (Triple A
Services, Inc. v. Rice, 131 Ill. 2d 217, 227 (1989)) and has no substantive legal
force." Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401,
414 (1997); see also Brown v. Kirk, 64 Ill. 2d 144, 152 (1976). Because a
preamble customarily precedes the enacting clause, " `[it] is not regarded as being
an operative part of statutory enactments.' " Monarch Gas Co. v. Illinois
Commerce Comm'n, 261 Ill. App. 3d 94, 99 (1994), quoting Illinois Independent
Telephone Ass'n v. Illinois Commerce Comm'n, 183 Ill. App. 3d 220, 236-37
(1988). A preamble cannot, by itself, prescribe rights or establish duties, but may
only be used as a tool of statutory construction. See, e.g., Triple A Services, Inc.
v. Rice, 131 Ill. 2d 217, 227 (1989) (preamble may be used to clarify an
ambiguous act).
In contrast to a preamble, the purview of an act consists of "[t]hat part of
a statute *** commencing with the words `Be it enacted,' and continuing as far
as the repealing clause." Black's Law Dictionary 1237 (6th ed. 1990); see also 1A
N. Singer, Sutherland on Statutory Construction sec. 20.07, at 89 (5th ed. 1992)
(referring to purview as the "action part" of a statute). Not only does the purview
recite the jurisdiction of the legislature vis-a-vis the enacting clause, it also
contains the operative portion of the legislative enactment. As a result, if the
legislature desires to preserve a statutory cause of action by means of a saving
clause, it ordinarily does so by including that clause within the purview of an act
rather than its preamble.
In view of above precedent, defendants argue that the General Assembly's
statement regarding the prospective application of the instant repealer, found in the
preamble, cannot be construed as a valid saving clause. In fact, two federal district
courts have used this same analysis in ruling that the preamble at issue here did
not preserve accrued causes of actions under the Structural Work Act. In Scott v.
Midwest Ltd., 933 F. Supp. 735 (C.D. Ill. 1996), the court noted that a preamble,
not being a part of the act itself, "may only be used to clarify ambiguous
provisions of a statute." Scott, 933 F. Supp. at 737 (citing, inter alia, Triple A
Services, Inc. v. Rice, 131 Ill. 2d 217 (1989), and Brown v. Kirk, 64 Ill. 2d 144
(1976)). The court further observed that the enacting language in Public Act 89--2
states only that "The Structural Work Act is repealed." Based upon this language,
the court found no ambiguity within the repealing act which would justify the
court's reference to its preamble. Scott, 735 F. Supp. at 737. Accordingly, the
court declined to depart from the plain language of the purview, holding instead
that the Structural Work Act was repealed without a saving clause. Scott, 735 F. Supp. at 736-37.
Similarly, in Hendrickson v. Gunther-Nash Mining Construction Co., 955 F. Supp. 87 (C.D. Ill. 1997), the court noted that, under Illinois law, a preamble
could only be used to clarify an ambiguity within the body of the act itself. As in
Scott, the court found that the enacting language repealing the Structural Work Act
was unambiguous; hence, resorting to its preamble was unwarranted. Hendrickson,
955 F. Supp. at 90. The court ultimately concluded that "[t]he General Assembly
did not indicate any intention within the enacting language itself to rebut the
presumption that repeals are to be applied retroactively ***." Hendrickson, 955 F. Supp. at 90. The court, therefore, "decline[d] to depart from the plain language
of the statute as it has been enacted." Hendrickson, 955 F. Supp. at 90.
Plaintiffs, on the other hand, refer us to Randall v. Wal-Mart Stores, Inc.,
284 Ill. App. 3d 970 (1996), in which our appellate court reached a conclusion
opposite to that of the federal courts. In addressing the issue of the preamble, the
appellate court acknowledged that the General Assembly did not include a saving
clause within the body of the repealing act. Nevertheless, the court noted that "[a]
repealing act which does not state whether it is to be applied retroactively or
prospectively is ambiguous to that extent." Randall, 284 Ill. App. 3d at 973.
Having found the requisite ambiguity from the legislature's silence, the court
turned to the preamble contained in Public Act 89--2 in order to ascertain
legislative intent. Randall, 284 Ill. App. 3d at 974, citing Triple A Services, Inc.
v. Rice, 131 Ill. 2d 217, 226-27 (1989). That intent dictated that the repealer be
applied prospectively only. Randall, 284 Ill. App. 3d at 975.
We agree with the appellate court in Randall that the preamble to Public
Act 89--2 may be used to resolve the issue presented in the case at bar. However,
unlike the Randall court, we do not believe that we are justified in resorting to the
preamble on the basis of an ambiguity in the present statute. The purview of
Public Act 89--2 states that "The Structural Work Act is repealed" and "This Act
takes effect upon becoming law." As the federal courts correctly observed in Scott
and Hendrickson, there is nothing ambiguous about this language. Moreover, we
cannot agree with the appellate court that an ambiguity exists as a result of the
legislature's silence on the issue of prospectivity. See Randall, 284 Ill. App. 3d
at 973. That silence only creates a rebuttable presumption that Public Act 89--2
is to be applied retroactively. See Hendrickson, 955 F. Supp. at 89, citing Randall,
284 Ill. App. 3d at 973. A rebuttable presumption of retroactivity, however, is not
the same as an ambiguity. We believe that the appellate court improperly likened
this presumption to an ambiguity in an attempt to justify the court's reliance upon
the preamble. The appellate court, like the federal courts, mistakenly believed that
our decision in Triple A Services, Inc. v. Rice, 131 Ill. 2d 217 (1989), restricted
a court from resorting to a preamble absent an ambiguity in the statute. A close
examination of that decision, however, compels a far less narrow conclusion.
In Triple A Services, this court granted leave to appeal from a decision of
the appellate court which held a municipal ordinance unconstitutional. The
appellate court based its holding upon an ambiguity that arose only after the
appellate court had compared the language of the ordinance with the language of
an unadopted preamble. This court condemned this practice, stressing that "[w]hile
a policy section, like a preamble, may be used to clarify ambiguous portions of
an act, it may not be used to create an ambiguity in a statute or an ordinance."
(Emphasis added.) Triple A Services, 131 Ill. 2d at 227. Accordingly, we reversed
the decision of the appellate court.
It is important to keep in mind that the statement in Triple A Services
regarding the proper use of a preamble in clarifying ambiguities was made in
direct response to the appellate court's improper use of the preamble in creating
ambiguities. As such, this court did not address the question of whether a court
may, under other circumstances, justifiably rely upon a preamble as a tool for
ascertaining legislative intent. Indeed, nothing in that opinion supports the
proposition that the use of a preamble is limited solely to resolving ambiguities.
For these reasons, we do not read Triple A Services as narrowly or as rigidly as
did the courts in Scott, Hendrickson, or Randall.
As noted above, Public Act 89--2 does not expressly indicate whether it
is to be applied prospectively or retroactively. Under these circumstances, a
presumption of retroactive application is created which may be rebutted by an
expressed contrary legislative intent. The court in Randall acknowledged the
rebuttable presumption when it stated, "For repeals, the presumption is that the
legislature intended the repealing statute to be applied retroactively, unless there
is an expression of legislative intent to the contrary." Randall, 284 Ill. App. 3d at
973; see also Hendrickson, 955 F. Supp. at 89, quoting Randall, 284 Ill. App. 3d
at 973 ("When the Illinois General Assembly repeals a statute, the presumption
is that the repeal is `to be applied retroactively, unless there is an expression of
legislative intent to the contrary' "). We hold today that the expression of contrary
legislative intent necessary to rebut this presumption may be gleaned from the
preamble itself.
The preamble has long been recognized as one of the quintessential sources
of legislative intent. The fact that the preamble often accompanies a bill
throughout the legislative process, is voted upon by the members of the General
Assembly, and is included in the text which is presented to the Governor for
signature highlights the unique character of the preamble in terms of legislative
intent. See Randall, 284 Ill. App. 3d at 974, citing 2A N. Singer, Sutherland on
Statutory Construction sec. 47.04, at 146-47 (5th ed. 1992). In this regard, we note
that a preamble constitutes a stronger expression of intent than does a passing
comment made by a single legislator during legislative debates.[fn1] are not
confronted with a situation where the contrary legislative intent needed to rebut
the presumption of retroactivity is cloaked in doubt or uncertainty.
Equally important, however, is the fact that our decision is faithful to the
cardinal rule of statutory construction which dictates that courts must ascertain and
give effect to the true intent and meaning of the legislature. See State Farm Fire
& Casualty Co. v. Yapejian, 152 Ill. 2d 533, 540-41 (1992). But for the silence
in the enacting language, from which the rebuttable presumption arose, we have
not found any evidence that the General Assembly intended a retroactive
application of Public Act 89--2. Therefore, under the circumstances of this case,
we would be defeating legislative intent, rather than giving effect to it, if we were
to accept defendants' contentions that Public Act 89--2 constitutes an
unconditional repeal of the Structural Work Act. No discernible purpose would be
served by our refusal to give effect to the intent of the legislature, unequivocally
expressed in the preamble.[fn2]
We wish to emphasize that today's decision complements our holding in
Triple A Services which recognizes the utility of a preamble as a tool of statutory
construction in ascertaining legislative intent. Nothing in this opinion should be
construed as a departure from our prior decisions which hold that a preamble is
not a part of the act. See Lieber v. Board of Trustees of Southern Illinois
University, 176 Ill. 2d 401 (1997); Triple A Services, Inc. v. Rice, 131 Ill. 2d 217
(1989); Brown v. Kirk, 64 Ill. 2d 144 (1976). To the extent that any express
language in a statute contradicts a preamble, the statutory language controls.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court in
Atkins v. Deere & Co., No. 82220, and reverse the judgment of the circuit court
in Kienitz v. Bradley & Bradley, No. 82221. We remand the matters to the circuit
courts for further proceedings consistent with this opinion.
No. 82220--Affirmed and remanded;
No. 82221--Reversed and remanded.
JUSTICE HEIPLE took no part in the consideration or decision of this
case.
JUSTICE MILLER, specially concurring:
Although I agree with the result reached by the majority in these
consolidated cases, I do not join the majority's reasoning. In my view, the better,
and more direct, analysis is simply to acknowledge the apparent conflict between
the clear language of the amended statute, on one hand, and the equally clear
language used in the preamble and in the legislative debates, on the other hand,
and to recognize that the statute, as enacted, fails to convey the legislature's
intended meaning. The preamble and the legislative debates plainly demonstrate
that the legislature did not intend for the repeal of the Structural Work Act (740
ILCS 150/0.01 through 9 (West 1994)) to affect existing causes of action, and we
should construe the repealer accordingly.
The majority invokes what it terms a rebuttable presumption of
retroactivity and then uses the preamble to the repealing statute, Public Act 89--2,
to rebut the presumption. The ultimate source cited by the majority for the
presumption, however, is Randall v. Wal-Mart Stores, Inc., 284 Ill. App. 3d 970
(1996), whose rationale the majority declines to follow. Randall, which addressed
the same question posed here, construed the text of the present statute as
ambiguous (Randall, 284 Ill. App. 3d at 973 ("A repealing act which does not
state whether it is to be applied retroactively or prospectively is ambiguous to that
extent")) and then employed the language of the preamble to resolve the
ambiguity.
By characterizing the rule of retroactivity as a presumption, the court in
Randall was able to devise a way to surmount the plain language of the repealer.
The rule of retroactivity applicable to the repeal of remedial provisions is
generally expressed in stronger terms, however. It is difficult to reconcile the
majority's view of the presumption of retroactivity, and how it may be rebutted,
with the statements in the case law explaining the typical operation of a statute
that repeals a remedial provision. As this court has previously observed, and as
the majority notes elsewhere in today's opinion (slip op. at 3), "the unconditional
repeal of a special remedial statute without a saving clause stops all pending
actions where the repeal finds them." People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 373 (1939). In Isenstein v. Rosewell, 106 Ill. 2d 301, 310 (1985), this court
explained:
"In the absence of a general saving clause or a saving
clause within the repealing act, the effect of the repeal of a statute
`is to destroy the effectiveness of the repealed act in futuro and to
divest the right to proceed under the statute, which, except as to
proceedings past and closed, is considered as if it had never
existed.' (1A J. Sutherland, Statutory Construction sec. 23.33, at
279 (4th ed. 1972).)"
The repealing statute, Public Act 89--2, does not contain a saving clause within
its text; moreover, the general saving clause found in section 4 of the Statute on
Statutes (5 ILCS 70/4 (West 1996)) is not applicable to legislation that repeals
special statutory remedies like the Structural Work Act (Shelton v. City of
Chicago, 42 Ill. 2d 468, 473-74 (1969)).
The means by which the majority permits its presumption of retroactivity
to be rebutted should also be contrasted with the means that may be used to rebut
the presumption of prospectivity that typically attends legislative enactments.
Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 309 (1988).
The latter presumption is said to be rebuttable not by extrinsic evidence, as the
majority allows here, but only by the statute itself. Rivard, 122 Ill. 2d at 309
("The presumption of prospectivity is rebuttable, but only by the act itself. Either
by express language or necessary implication, the act must clearly indicate that the
legislature intended a retroactive application"). By relying on sources outside the
language of the act, the majority makes its presumption of retroactivity much
weaker than the analogous presumption of prospectivity described in Rivard.
Another problematic link in the majority's reasoning is its attempt to
explain how a preamble may be used for purposes other than to clarify
ambiguities--here, to rebut the presumption of retroactivity described above. The
majority takes aim at the proposition that a preamble may be used to clarify
ambiguities but may not be used to create them. In its discussion of this point, the
majority focuses solely on Triple A Services, Inc. v. Rice, 131 Ill. 2d 217 (1989),
attempting to show that the opinion in that case did not foreclose the use of
preambles for purposes other than the clarification of ambiguities. The majority's
analysis is incomplete, however: what the majority overlooks is that Triple A
Services is not the only case to suggest that the role of a preamble is limited to
clarifying existing ambiguities. Other authorities contain similar statements, and
the majority, under the approach it adopts here, needs to account for the other
decisions as well. See, e.g., Brown v. Kirk, 64 Ill. 2d 144, 152-53 (1976). Indeed,
the limitation under challenge by the majority seems entirely consistent with
courts' normal practice of employing interpretive aids, such as a preamble, only
when the legislative text is less than clear--that is, when the language of the
statute is ambiguous--yet here the majority finds the statute unambiguous.
Although I disagree with the majority's mode of analysis, I agree with the
majority's ultimate conclusion and holding. I believe that the statute at issue here
should be placed in that select group of cases in which courts are permitted to
supply missing language to correct oversights by the legislature. See, e.g., Carey
v. Elrod, 49 Ill. 2d 464, 470 (1971); People v. Hudson, 46 Ill. 2d 177, 181 (1970);
People ex rel. Cason v. Ring, 41 Ill. 2d 305, 312-15 (1968). In the present
consolidated cases, we know from the preamble that the legislature actually
intended for the repeal of the Structural Work Act to apply only prospectively. As
the majority notes, a preamble is a particularly authoritative statement of
legislative intent, having accompanied the underlying bill on its journey through
the legislative process. Here, the preamble clearly demonstrates that the legislature
did not intend for the repeal of the Structural Work Act to eliminate existing
causes of action. Further confirmation for this interpretation, as the majority notes,
may be found in the debates of the amendatory legislation, in which the legislative
sponsors gave assurances that the repeal would operate only prospectively and
would not affect existing causes of action.
In appropriate circumstances, a court construing a statute may supply
critical language that is necessary to carry out the legislature's true intent. Thus,
it is well established that "this court has the authority to insert into a statute
language omitted through legislative oversight" (People v. Shephard, 152 Ill. 2d 489, 498 (1992). To be sure, "this technique of construction is to be exercised
with caution." Gill v. Miller, 94 Ill. 2d 52, 58 (1983). In the present case,
however, obedience to the literal language of the statute would produce a result
that is clearly and demonstrably at odds with the legislature's intent. The cardinal
rule of statutory construction is to ascertain and give effect to the intent of the
legislature. Henry v. St. John's Hospital, 138 Ill. 2d 533, 541 (1990); Stewart v.
Industrial Comm'n, 115 Ill. 2d 337, 341 (1987). Consistent with that principle, I
believe that the correct course in this case is to insert within the statutory text the
saving clause that the legislature obviously intended to include as part of the new
provision yet mistakenly omitted from the enacted version of the bill.
The approach suggested here is consistent with familiar principles of our
jurisprudence. In People v. McCoy, 63 Ill. 2d 40, 44 (1976), we quoted the
following comments by Judge Learned Hand:
" `Of course it is true that the words used, even in their literal
sense, are the primary, and ordinarily the most reliable, source of
interpreting the meaning of any writing: be it a statute, a contract,
or anything else. But it is one of the surest indexes of a mature and
developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have some purpose
or object to accomplish, whose sympathetic and imaginative
discovery is the surest guide to their meaning.' " Cabell v.
Markham, 148 F.2d 737, 739 (2d Cir. 1945).
It requires but little imagination in the present case to see that the
legislature intended for the repeal of the Structural Work Act to operate only
prospectively, as we know from the preamble to the statute and from the
legislative debates of the provision. Because the language used in the body, or
purview, of the statute was not equal to that purpose, we should supply the
language omitted by the legislature. The legislature clearly intended for the repeal
of the Structural Work Act to apply only prospectively. Rather than make a
fortress out of the dictionary, we should attempt to carry out the legislature's
intended goal.
[fn1] The legislative debates in this case provide additional evidence of a contrary
legislative intent. Representative Lang asked the sponsor of Public Act 89--2 the
following question: "So would it be your intent, Sir that if *** presuming the
Governor would sign this tomorrow, that any injuries that were sustained today
would be actionable and would have the full four year statute of limitations under
the current Act?" Representative Churchill answered unequivocally, "Yes." 89th
Ill. Gen. Assem., House Proceedings, February 9, 1995, at 22.
[fn2] Because we have found that Public Act 89--2 did not unconditionally repeal
the Structural Work Act, we need not consider whether the act impermissibly
impairs contractual obligations or divests persons of vested rights.
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