other localization of the user than is involved by the boundaries of the house or room itself is necessary. Again it seems impossible to say that the user of a house or room, to fall within the Act, must be an exclusive user by one person of the whole or any particular part. First of all, this would involve the change of the more general phrase "any person using" into the more restricted phrase "the person using," for which there is no warrant. But further, such a construction of the Act would leave it open to avoid its operation in a vast number of cases, though the mischief struck at remained or was increased. It seems impossible to contend successfully that the use of a house or room with the permission of the owner and occupier by one professional betting-man is more of a nuisance or otherwise more objectionable than a similar use by more than one either jointly, or one competing with another, at the same time. Indeed, the more bookmakers permitted to use the house or room at the same time, the greater would be the nuisance, and the greater the probability of mischief. The same considerations must in general apply to any place, not being a house or room, which is brought within the meaning of the Act. But several objections to this construction as applicable to the present case have been urged. It is said that s. 2, which provides that every place kept or used for the purposes aforesaid, or any of them, shall be taken and deemed to be a common gaming-house within the meaning of 8 & 9 Vict. c. 109, shews that "place" should be confined to something in the nature of a house, and that the section cannot properly be applied to an inclosure open to the sky. But the words "taken and deemed " are usually employed to indicate that the thing spoken of is not in itself the thing which, for the purposes of attaching to it certain legal incidents, it is to be deemed to be. Then it is said that it is impossible to suppose that the Legislature intended to attach the incidents of a common gaming-house to such a place as the Reserved Inclosure. The proper way of ascertaining the intention is by construing the words used, and it cannot be doubted that the Legislature C. A. 1897 POWELL บ. KEMPTON PARK RACECOURSE COMPANY. Rigby L.J. C. A. 1897 POWELL v. KEMPTON PARK RACECOURSE Rigby L.J. intended to attach those incidents to any place within the meaning of the Act, including the cases of uncovered places in towns already referred to. Of course, in determining the meaning of the word “place,” s. 2 may be looked at as well as any other part of the Act. COMPANY. But, whatever validity such an argument might have in the case of an entire racecourse, which may extend over many acres and be resorted to by thousands or tens of thousands of persons who never bet at all, and many, and indeed most, of whom may never come into contact with a bookmaker at all, it cannot outweigh the reasons for considering as a place within the Act the Reserved Inclosure which contains on an average not less than one bookmaker out of every ten persons resorting to it, whilst the greater number of the persons not bookmakers go there for the purpose of backing horses with bookmakers. Places which are not houses or rooms may under the provisions of 8 & 9 Vict. c. 109 itself be gaming-houses: see ss. 2, 4, 6. Sects. 11 and 12 of the principal Act under discussion shew that it was the deliberate intention of the Legislature to apply the main provisions of the Gaming Act to places within the Act, and, if, as is extremely unlikely, these sections, which are in the main intended, as are the corresponding sections in the Gaming Act, to procure evidence in cases of suspicion, were to be put in force in a case like that of the Reserved Inclosure, the minority who attend without any intention of betting would only have themselves to thank for any resulting inconvenience occasioned to them. (3.) It is said that the Act was not intended to apply to betting on racecourses at all. If by this is meant only that ordinary betting, whether between persons who are not professional betting-men, or between professional betting-men who in no way attach themselves to a place for the purpose of betting with those who resort thereto, it is apparently true, not only of racecourses, but of all other parts of the country. But then the objection has no reference to the state of facts on which the Court is called upon to adjudicate. If however it means that every sort of betting is permissible, C. A. 1897 POWELL v. KEMPTON PARK RACECOURSE COMPANY. provided only that it takes place on a racecourse, the objection plainly goes too far. The enacting part of the Act contains no reference, direct or indirect, to racecourses at all. It would seem to be impossible to contend successfully that the defendant company might lawfully permit a house, room, or office on the racecourse to be used by a bookmaker for purposes forbidden by the Act, though apparently there would be no reason why Rigby L.J. they should not have done so if the Act had not been passed; or, again, that a bookmaker might take up his stand at a place on a racecourse outside an inclosure, and there carry on his business without moving from the spot, though probably such a practice prevailed at the passing of the Act, and had done so ever since bookmakers came into existence as a class. When once it appears that the Act is applicable in some cases to owners and occupiers of racecourses as well as to other owners and occupiers, the contention becomes one for a partial exception only, that is to say, an exception of inclosures for betting purposes, which is certainly a difficult one to support, and could not be made out, unless there can be shewn to be a material distinction between them and other parts of race courses. The title and preamble of the Act have mainly been relied upon for this purpose. The title may be dealt with shortly. With reference to Acts passed as this was before 1854, when the practice of the House of Commons was altered by Standing Order 34, which for the first time authorized the House in Committee to amend the title, there is a great preponderance of authority in favour of the proposition that the title forms no part of the Act, and cannot even be looked at for the purpose of construing the Act. (See Maxwell on Statutes, 2nd ed. pp. 50, 51, and cases there cited.) But this question need not be gone into further, because in the present case it is quite plain that the Act is not confined to the purpose indicated by the title. The preamble no doubt stands on a different footing, since it does form part of the Act. But there are numerous instances in which the enacting clauses have gone, upon their true construction, beyond the scope of the preamble, and yet have not been controlled by it, and the true rule seems to be that the VOL. II. 1897. X 2 C. A. 1897 POWELL V. KEMPTON PARK RACECOURSE COMPANY. Rigby L.J. preamble cannot be resorted to for the purpose of controlling the enacting clauses, either by restricting the scope of them, or by enlarging it, and cannot be relied upon, unless it be in itself clear and precise in meaning, and there is some ambiguity in the enacting clauses themselves which may be cleared up by it. Of course cases will arise where it may be difficult to determine whether the enacting clauses do or do not present such an ambiguity as to require or admit the explanatory operation of the preamble, but the above examination of the enacting part of the Act seems to shew that independently of the preamble there could be no reasonable doubt as to the construction. Even if it be admissible, great care is required in drawing conclusions from it. The recital is, "Whereas a kind of gaming has of late sprung up tending to the injury and demoralization of improvident persons by the opening of places called betting houses or offices, and the receiving of money in advance by the owners or occupiers of such houses or offices, or by other persons acting on their behalf, on their promises to pay money on events of horse-races and the like contingencies," and then follow the words "for the suppression thereof be it enacted, &c." Now it is clear that the enacting clauses do go beyond the preamble in many particulars of importance, e.g. by including within the prohibition of the statute some places which are not houses or offices, and also by including houses, offices, and places where money is received in advance not by or on behalf of the owners or occupiers, but by persons using the houses, &c., and also by including the receipt by any of the same persons not only of money, but also of any valuable thing, and also by extending their (i.e. the owners' or occupiers') promises to pay money to promises by any of the aforesaid persons to give any valuable thing, or to secure the paying or giving by some other person of any money or valuable thing. There can be no doubt that these extensions of the operation of the Act, all of which are to be found in s. 1, are intentional and deliberate, and could not be affected or controlled by the preamble, though it mentions none of them. Why, then, should it be held that the equally plain enactment of the same C. A. 1897 POWELL v. KEMPTON PARK RACECOURSE section, whereby every house, office, room, or place opened, kept, or used for the purposes mentioned, or any of them, is declared to be a common nuisance, and contrary to law, is subject to the exception of places, whether on a racecourse or elsewhere, which had been for a considerable time so opened, kept, or used? No doubt this preamble mentions that a kind of COMPANY. gaming had of late sprung up. These words, however, would be sufficiently satisfied by the great and notorious increase shortly before the passing of the Act of the kind of gaming referred to, without its being necessary to interpret them as asserting that it had not previously been known. But, even assuming that no betting houses or offices had existed otherwise than within the vague period covered by the words "of late," which would be a very strong assumption to make, if we are also to assume that the same kind of gaming had been openly and notoriously carried on in racecourse inclosures for more than half a century, it would be going far beyond the principle which has hitherto been applied to the control by the preamble of the enacting clause, if it were held that places which otherwise would fall within the enacting clauses are to be excepted, because they have long been opened, kept, or used for the forbidden purposes. The defendants rely upon a statement introduced at the end of the particulars to the effect that the description of the betting carried on in the Reserved Inclosure applies not only to that inclosure. It is there said that at the time of the passing of the Act of 1853 such inclosures were in like manner frequented by bookmakers, and betting transactions of precisely the same character were therein openly and habitually carried on by them, and had been so carried on since the beginning of the present century. This statement requires careful consideration before it can safely be acted upon. The first observation that occurs upon it is that it is a wholly one-sided one in the sense that it deals with racecourse inclosures only, and not with other places at all; in other words, it affords no means of judging how far the practice there was exceptional. It gives no information as to the practice of bookmakers outside the inclosure. It would be a singular thing if, long before the Rigby L.J. |