(dissenting). As has been pointed out in the majority opinion, all of the cedar trees here in litigation are more than one mile and less than two miles from any apple orchard. At the final hearing of this case a totally new and unexpected fact was proved. As originally introduced in the House of Delegates, the cedar rust bill provided in both the first and second sections for a limit of two miles, and on the second reading of the bill an amendment changing the first section so as to read one mile was adopted. No change was made in section 2. A difference of opinion as to the weight properly to be given to this evidence is, 1 believe, the chief reason for the differing constructions put on the Cedar Rust Law by the majority and by myself. In the majority opinion this evidence is treated as of slight importance. To *348me it seems of so much importance as to require an abandonment of the conclusion reached in the former opinion of this court in this case. See Kelleher v. Schoene, 14 F.(2d) 341.
1. The Intent of the Original Statute. — ■ As of course the limit of one mile in section 1 was, as we now know, intentional. I am unable to read the section as showing an intent to subject cedar trees growing within one mile of an orchard, or the owners of such trees, to the fate denounced by the common law of nuisances or by the general statute law in regard to public nuisances. Code 1919, § 1520 et seq. The sufficient reason for this conclusion is found in the language of section 1. This section concludes: “ * * * And it shall be the duty of the owner or owners of any such cedar trees to destroy the same as soon as they are directed, to do so by the state entomologist, as hereinafter provided.” These words seem to me to forbid an intent that private persons, specially injured, should have a right to destroy cedar trees within a mile of an orchard, or that owners of such trees should be subject to indictment and a fine of not exceeding $5,000 for maintaining a nuisance.
In section 1, immediately following the words, “are hereby declared a public nuisance,” are the words, “and shall be destroyed as hereinafter provided.” These words do not at all comport with an intent that a recalcitrant owner of condemned cedar trees shall be subject to a suit for damages, or to any other consequence of maintaining a public nuisance. The only result (see Code 1918, § 889; 14 F.[2d] 342) is that the entomologist shall cause the trees to be destroyed.
In the light of the new evidence, section 1, with great deference, seems to me to be a prefatory explanation of the reason for enacting the statute, rather than a declaration of public policy. The nature of cedar rust as understood in 1914 was such that only cedar trees growing within some rather short distance from the nearest apple orchard were regarded as dangerous. See evidence of Dr. M. B. Waite (transcript, p. 233). Hence the very essence of section 1 was to say in effect: “Whereas, some red cedar trees growing within [some specified distance] from the •nearest apple orchard are considered a public danger, in the nature of a public nuisance: Now, therefore, be it enacted,” etc.
It follows, from the nature of section 1, that it had to contain a precise statement of the minimum distance from any apple orchard at which the public safety permitted cedar trees, which are or may be the hosts of cedar rust, to grow. As such was the nature of section 1, the change from the minimum of two miles, as the section was originally drawn, to one mile, not only shows that the Legislature thought a minimum of one mile to be sufficient, but that the limit of the operation of the statute was also intended to be stated. Whether this section be called a declaration of public policy or not, the limit stated in it is, in view of the amendment made in 1914, of high importance.
If section 1 was intended as a declaration of public policy, this fact seems to me to forbid us to construe the statute of 1914 as intended to affect cedar trees growing more than one mile from an orchard; for, if we so construe the statute, we convict the Legislature of 1914 of an intent to contravene its own declaration of public policy.
In Miller v. State Entomologist, 146 Va. 175, 187-188, 135 S. E. 813, 817, it is said: “It may be observed, * * * in passing, that the first section * * * appears to be a mere declaration of public policy, declaring the infected cedars within one mile to be per se a public nuisance, and might have been omitted, without impairing the completeness and efficiency of the residue of the act.”
If the foregoing statement was made without knowledge of the fact that the first section of the original bill had been changed in the House from two miles to one mile, it seems to me impossible to give to it even such weight as would ordinarily be due from this court to a dictum by the Virginia Supreme Court of Appeals concerning the nature of a Virginia statute. The record in the Miller Case shows that there was in the evidence no suggestion of the way in which the discrepancy between the first and second sections came about.
The purpose of an explanatory preface to a statute — usually commencing with the word “whereas” — is to show the reasoh for the enactment of the statute. Such clauses could usually, perhaps always, be omitted without impairing the efficiency of the residue of the statute. But when not omitted, ,and when known to be free from unintentional error, the explanation of the reason for enacting a statute can throw much light on the intent of the remainder of the statute.
That there is a conflict between the first two sections of the statute seems to me, with deference, an unavoidable conclusion. Section 1 makes it the duty of the owners, if so ordered by the entomologist, to destroy cedar trees within one mile of any apple or*349ehard. Section 2 makes it the duty of the owners, if so ordered by the entomologist, to destroy cedar trees within two miles of any apple orchard. At the risk of tiresome repetition, I quote here from the closing lines of each of the two sections:
Section 1: “* * * It shall be the duty of the owner or owners of any such cedar trees to destroy the same as soon as they aro directed to do so by the state entomologist, as hereinafter provided.”
Section 2: “• » * And the owner or owners shall within such time as may be prescribed in such notice by the state entomologist cut down' and destroy said cedar trees.”
A reeital that the public good requires the destruction of condemned cedar trees within one mile of any apple orchard, and an ordinance that such trees within two miles of any orchard, shall bo destroyed, can, to my mind, be regarded only as in conflict. As there is a conflict between the first two sections of the statute, the intent of the lawmakers should I believe bo considered on the assumption that this conflict was not perceived.
The words “one mile” were introduced into section 1 by amendment made on the seeond reading of the bill in the House. Hence the fact that section 1 as amended contained a limit of one mile was known to the members of the House at least. And, if the conflict was not perceived, the members of the House were inadvertent to the fact that the limit in section 2 was two miles. Such being the fact, the majority of the members of the House, if they had any rational purpose in amending section 1, so as to read “one mile,” intended, as it seems to me, to limit the operation of the statute to one mile. I cannot assume obJiviousness of the fact that section 2 contained a limit of two miles, and also ascribe any rational purpose in reducing the limit in section 1, except that of reducing the radius of operation of the statute.
I labor under the belief that, in construing statutes, courts do not consider the intent of a single member, who offers an. amendment. The intent of a single individual is too nearly impossible of ascertainment. But the intent of a large number, a majority of either house of a Legislature, is capable of being ascertained with some reasonable degree of accuracy. What motive actuated the member of the House who offered the amendment of section 1 I therefore leave out of view. But if the majority (at least) of the members of the House who voted for the change in section 1 were unmindful of the two-mile limit in section 2, I can ascribe to them no permissible purpose, except that of limiting the operation of the statute.
If the majority of the Senators did not know of the conflict between the two • sections, we can never know what their intention actually was, and must indulge the most probable assumption, which is that the Senate had the same intent as the House.
While it is possible that the conflict between section 1 after amendment and section 2 was noticed, this assumption seems to me quite improbable. That a body of honest and reasonable men, such as a legislative majority, would have enacted a law knowing it to , contain provisions in such conflict as to create grave doubt as to the intent of the lawmakers in a very important respect, seems to me very unlikely.
Even if the legislators regarded section 1 as a useless and entirely unimportant declaration, and if we must assume that they amended a useless section, knowing it to be such, still it seems to me quite improbable that they would have knowingly left the statute so that the explanatory section, embraced only a small portion of the trees which wore in the next section made subject to condemnation and compulsory destruction. As I look at it, the assumption that the conflict was not perceived seems so much more probable than the assumption that the conflict was perceived that it may be snporarogatory to discuss the latter assumption.
However, it should be here said that the evidence showing that the language of section 1 was due to amendment seems to me to make it probable that the legislators did not regard section 1 as useless, or even as unimportant. Aside from the mere fact that it was amended, another reason for this conclusion is as follows: The Cedar Bust Law of 1914 was novel legislation in this state, and its constitutionality was probably somewhat doubted. A belief that an exercise of the police power which would result in the destruction of private property of some value, and which would directly benefit the private owners of apple orchards, had to be prefaced by a declaration showing that the publie good was the chief purpose of the statute was from a layman’s point of view not unreasonable; or it may have been believed that it was beyond the power of the Legislature to authorize the destruction of private property withont a precedent declaration that such property constituted a nuisance. And, if either belief existed, it seems probable that the members *350of the Legislature looked upon section 1 as being the most important section in the entire statute. And if the lawmakers did so ■regard section 1, it could reasonably have seemed to them that an amendment reducing the limit in that section made it wholly unnecessary to also correspondingly reduce the limit in section 2. ■ In other words, even if we indulge the assumption that the legislators perceived the conflict, still the probable intent was to reduce the limit of effectiveness of the statute to one mile.
There is one possibility that I have not mentioned: That the first section was regarded by the lawmakers as unimportant, and that the conflict between section 1 as amended and section 2 was recognized. This possibility is, I think, not a permissible hypothesis. Ño matter how unimportant section 1, standing alone, may have been thought, the conflict between the distances mentioned in the two sections — both being intentional— necessarily threw doubt upon a highly important point in the law, which was the radius intended to be affected by the law. The majority of a Legislature must be presumed to have been reasonably intelligent, and, being so, they cannot reasonably be^ supposed to have intended to enact a law of most doubtful meaning in respect to a highly important point.
Moreover, on the final hearing the plaintiff also for the first time introduced evidence, which was not denied, showing that the state entomologist, until after the amendment of 1920 had been adopted, always construed the statute as applying only to cedar trees within one mile of an orchard. And in the opinion in Bowman v. State Entomologist, 128 Va. 351, 380, 105 S. E. 141, it is said that the counsel had agreed that the limit of two miles in section 2 of the statute was a typographical error. This was, as we now know, a mistaken explanation; but it tends to support the belief that the original statute was generally thought to apply only to cedar trees within one mile of an orchard. It seems. to me therefore that the statute which was adopted for Ashby district in 1916 was intended to be, and hence was, a one-mile .law. Whether or not the county authorities then adopted the law subject to the amendment of 1920 depends, not on the intention of the county authorities in 1916, or subsequently, but on the intention of the Legislature in 1920.
2. The Intent of the Amendment of 1920. —The amendment of 1920 merely made section 1 of the statute read “two miles,” where it had read “one mile.” The local option provision, as it was expressed in the original statute, was left untouched. See 14 F.(2d) 343, § 893. The evidence as to the situation at the time the amendment of 1920 was adopted is very meager. On the cross-examination of W. J. Sehoene (transcript, 567) it was shown that some or' all of the magisterial districts in some 11 counties had, prior to January 11, 1926, adopted the Cedar Rust Law. But the dates of adoption are not stated. From the evidence of W. W. Glass (transcript, 526) it may be fairly inferred that the law was adopted in his district of Clarke county prior to the amendment of 1920. It is, as has been said, an undisputed fact that in Ashby district of Shenandoah county the original statute was adopted in 1916. There were in 1920 100 counties in Virginia. Acts 1920, pp. 861-863. And it is a matter of common knowledge that there are red cedar trees growing within two miles of an orchard throughout many large areas of the state, containing numerous magisterial districts, which had not adopted the Cedar Rust Law as late as January 11, 1926. The great majority of these orchards are domestic orchards, but the statute embraces domestic orchards. In addition, in three of the Valley of Virginia counties (Warren, Page and Rockbridge) no magisterial district hud, even in 1926, adopted the .law. And it is shown by the evidence (transcript, 570) that one magisterial district in Clarke county adopted the law after January 1, 1926. There was therefore in 1920 reasonable ground to expect that in some, perhaps in many, magisterial districts, the adoption of the law would thereafter be proposed.
The intention that the county officials, acting for the people of such districts, should have a right to adopt or reject the law as amended in 1920, is unquestionable. Leaving in force section 893 shows, as it seems to me, such purpose beyond doubt. That the intention was to dény this privilege to the people of the districts, which had before the enactment of the amendment of 1920 adopted the one-mile law, and to give this privilege to the people of all the districts which had not previously adopted the law seems to me quite improbable. Nothing is more studiously avoided by American legislative bodies than unfairness to considerable' numbers of citizens. An intention to treat the citizens of the magisterial districts which had previously adopted the one-mile law with the slightest degree of unfairness is almost unbelievable. It follows that wé need not consider the equal protection clause of the Fourteenth Amendment. An intent to be unfair, or a *351failure to perceive unfairness, are too highly improbable to need further comment.
If the original statute had been intended to be effective for two miles, the change from one mile to two miles in the first section, and the retention of the local option provision, would not have indicated an intention that the law must be again adopted in those districts which had previously adopted it. Such districts would have been in 1920 in the position of having adopted a law that was intended to be (and which therefore was) operative for two miles; and the retention of the local option feature could have been intended merely to give to other districts the same option that had already been exercised by the districts which had previously adopted the law.
However, if the original statute was intended to be effective for only one mile, the retention of the local option provision in 1920 has, I think, necessarily a different meaning. In 1920 a new law was being enacted, a law that was to be effective for twice thq radius of the old law. While the retention of the local option provision necessarily shows that that provision was intended to apply to districts whieh had not previously adopted the original act, there is nothing in the statute tending to show that that provision was not also intended to apply to the districts which had previously adopted the old law. Adoption by a district of a law effective for one mile does not at all show willingness to adopt a law effective for two miles. And the failure of the lawmakers in 1920 to express or in some way to indicate an intention to restrict the operation of the local option provision forbids that we should read into the statute a clause excepting from the operation of section 893 the districts which had previously adopted the old one-mile statute. If there was an intention to so restrict the local option provision, we have a plain casus omissus, and the courts cannot supply the words that are indispensably néeessary to indicate such intent.
Again, in Fullerton v. Northern Pacific R. Co., 266 U. S. 435, 437, 45 S. Ct. 143, 144 (69 L. Ed. 367) it is said: “ ‘It is a rule of construction, that all statutes are to be considered prospective, unless the language is express to the contrary, or there is * * * necessary implication to that effect.' Harvey v. Tyler, 2 Wall. 328, 347 [17 L. Ed. 871]; Sohn v. Waterson, 17 Wall. 596, 599 [21 L. Ed. 737]; Twenty Per Cent. Cases, 20 Wall. 179, 187 [22 L. Ed. 339]; Chew Heong v. United States, 112 U. S. 536, 559 [5 S. Ct. 255, 28 L. Ed. 770]; Shwab v. Doyle, 258 U. S. 529, 534 [42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454]. And see Hopkins v. Lincoln Trust Co., 233 N. Y. 213 [135 N. E. 267].”
It may be said that to read the amended statute as denying to the districts which had adopted the original statute an optionary right to adopt or reject the new law would not be giving the amendment a retroactive effect, but would merely be giving an unexpected effect to the prior adoption. I think this is a distinction without practical difference. The principle of the rule against retroactive construction is as fully applicable here as in any case. Unless that which is in effect a retroactive operation be read into the amendment, the districts which had adopted the original law will necessarily be given the benefit of the local option provision, which is general in its terms. Nothing in the amendment, expressly or by implication, requires that the statute be construed retroactively, either strictly or in effect; and the rule against retroactive construction affords strong reason for holding that the amended statute has never been in force in Ashby district.
The adoption of the original statute in Ashby district in 1916 remains in force as to cedar trees within one mile of an orchard (Miller v. State Entomologist, supra, 146 Va. 175, 135 S. E. 813); but until the new law shall have been adopted in that district the cedar trees in litigation are as I see it not within the statute.