White v. Levy

Citation8 So. 563,91 Ala. 175
PartiesWHITE v. LEVY.
Decision Date16 December 1890
CourtSupreme Court of Alabama

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Appellant who was plaintiff in the court below, sued appellee for breach of a contract whereby a dwelling-house was leased to defendant for a year. The complaint alleges that the defendant promised to quit and surrender the premises in as good a state of repair and condition as reasonable use and wear would permit; that he did not surrender the said premises in such a condition, but used them in an unreasonable and untenant-like manner, and broke and injured several portions of the house, set out and mentioned in the complaint. A motion to dismiss the suit for want of jurisdiction in the city court of Mobile was granted.

Chamberlain & Richardson, for appellant.

G L. & H. T. Smith, for appellee.


The decision of this cause, to some extent, involves a construction of the act which prescribes the civil jurisdiction of the city court of Mobile. Acts 1888-89, p. 210. The act provides that the jurisdiction and powers of a civil nature exercised by the circuit courts of the state be conferred upon the city court of Mobile, "except in actions to try titles to land, and in actions for the recovery of damages for injury to reputation, person, or property, whether such damages are sought to be recovered for negligence, or a breach of duty enjoined by law, or by contract with the parties, expressed or implied." The preamble to the act is in the following language: "Whereas, it is desirable to afford suitors speedy remedy for the recovery in said court of ordinary debts, and the like, the civil jurisdiction of said court should be remedied: Therefore, be it enacted," etc. The preamble to an act neither confers nor restricts powers, rights, privileges, or duties, and, strictly speaking, is no part of the act itself. If the enacting clause is clear and positive, the preamble is without scope; but if the enacting clause is not plain, if its intent cannot be clearly understood, then, in the language of Lord Coke and Lord Bacon, "the preamble is the key to open the understanding of the statute." Sedg. St. & Const. Law, (2d Ed.) 43; 1 Kent, Comm. 460; Bartlett v. Morris, 9 Port. (Ala.) 270. The true powers of a preamble are to expound powers conferred, and not to create them. It has a foundation in the exposition of every written law, upon the universal principle of interpretation, that the will and intention of the legislature is to be regarded and followed. Story, Const. § 462; Sedgwick, supra, and note. "In the modern English cases it is said the preamble may be used to ascertain and fix the subject-matter to which the enacting part is to be applied, and sometimes the body of the act may be restrained by the preamble." Sedgwick, supra. We deduce from these principles, prescribing the force and effect of the preamble of an act, the following proposition: If the legislative intent is clearly expressed in the preamble, and the body of the act is so constructed as to render its meaning and intent uncertain, and if the act admits of two constructions,-one in accord with the intent clearly expressed in the preamble, and the other in conflict with it,-courts should adopt that construction which harmonizes with the preamble. So far as the intent of the legislature can be ascertained by a reference to the preamble, it is evident that the purpose was not to except all actions ex contractu, and it is equally manifest that it was not intended to confer jurisdiction in all actions ex contractu; otherwise, the limitation would not have been to "ordinary debts, and the like." It is also clear that actions in tort are also excepted; and it would further seem that, if the legislature intended simply to exclude actions in tort and confer jurisdiction on all actions ex contractu, the distinction would have been actions ex contractu and actions ex delicto,-a distinction easily drawn in the preamble as well as in the body of the act.

The question to be determined, then, is, what actions are intended to be excepted in the provision, "excepting actions for the recovery of damages for injury to property sought to be recovered, for a breach of duty enjoined by law or contract, expressed or implied?" Under the authorities, actions to recover damages for injury to property for a breach of duty enjoined by law are in case and such is the character of the action to recover damages for an injury to property, for a breach of duty created by or growing out of a contract, and not within the express provisions of the contract, where the...

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24 cases
  • Adler v. Miller
    • United States
    • Supreme Court of Alabama
    • June 7, 1928
    ...rested was ex contractu. W. U. T. Co. v. Littleton, 169 Ala. 99, 102, 53 So. 97; M. L. I. Co. v. Randall, 74 Ala. 170; White v. Levy, 91 Ala. 175, 8 So. 563; Postal T. C. Co. v. Ford, 117 Ala. 672, 23 So. Blythe v. Enslen, 203 Ala. 692, 85 So. 1. The rule thus tersely expressed and adhered ......
  • Gulf Electric Co. v. Fried
    • United States
    • Supreme Court of Alabama
    • December 6, 1928
    ......Miller (Ala.Sup.) 120 So. 153;. Wilkinson v. Moseley, 18 Ala. 288, 290, 291; L. & N.R. Co. v. Robinson, 213 Ala. 522, 105 So. 874;. White v. Levy, 91 Ala. 175, 177, 8 So. 563; L. &. N.R.R. Co. v. Hine, 121 Ala. 234, 25 So. 857. . . I am of. opinion that the case of ......
  • Deavors v. Southern Express Co.
    • United States
    • Supreme Court of Alabama
    • June 21, 1917
    ...... Case, 139 Ala. 652, 36 So. 773. The distinctions and. differences between the two actions were pointed out by this. court in the case of White v. Levy, 91 Ala. 179, 8. So. 563, and this decision has been frequently followed. The. subject is also discussed at some length by the Minnesota. ......
  • Johnson v. Pratt
    • United States
    • United States State Supreme Court of South Carolina
    • May 8, 1942
    ...S.Ct. 463 ; United States v. Darby , 61 S.Ct. 451 [85 L.Ed. 609, 132 A.L.R. 1430]; Dougherty v. United States , 30 F.2d 471, 472; White v. Levy, 91 Ala. 175 ." This Court, in Ponder v. City of Greenville, S.C. 79, 12 S.E.2d 851, 855, said: "It is, of course, well settled that the title of a......
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