Forbes v. Board of Health of Escambia County

• Decision Date: 20 May 1891
• Court: Florida Supreme Court
• Parties: FORBES v. BOARD OF HEALTH OF ESCAMBIA COUNTY.

9 So. 446

27 Fla. 189

FORBES v. BOARD OF HEALTH OF ESCAMBIA COUNTY.

Florida Supreme Court

May 20, 1891

Appeal from circuit court, Escambia county; JAMES F. McCLELLAN Judge.

Syllabus by the Court

SYLLABUS

1. It is a well-settled rule that, when a repealing act re-enacts substantially the provisions of the act repealed, the latter is construed not to be thereby destroyed or interrupted in its operation.

2. The ninth section of the act of 1889 (chapter 3859, Laws Fla.) repealed the act of 1885, (chapter 3603, Laws Fla.;) but along with the repealing section, and taking effect at the same time, the legislature re-enacted substantially the provisions of the act of 1885, providing for the creation of county boards of health, and constituting them corporations. Held, that the act of 1889 must be construed as an amendment of the act of 1885, creating county boards of health, and the boards created under the latter act are continued in existence, with such modifications as are contained in the former act.

COUNSEL R. L. Campbell and P. W. White, for appellant.

John C Avery, for appellee.

OPINION

MABRY J.

In September, 1888, appellant, D. S. Forbes, master of the British bark Tiber, sued the board of health of Escambia county, a corporation existing under the laws of Florida, for $2,000 damages for detaining said bark for the space of 12 days, and compelling her to undergo and pay the cost of fumigation and the discharge of her ballast at a quarantine station, under an order and proclamation of said board made on the 23d day of April, 1888.

A demurrer to the declaration was sustained by the court below on the 22d day of October, 1888, with leave for complainant below to amend the declaration. On the rule-day in November 1888, he filed an amended declaration, to which defendant below again demurred. The demurrer to the amended declaration was on the 12th day of November, 1888, sustained; and plaintiff below not wishing to further amend, it was ordered and adjudged by the court below that said plaintiff take nothing fot his writ, and pay the costs of this suit, for which defendant have execution. From this decision of the court, plaintiff, on the 14th day of December, 1888, in open court, entered an appeal to this court, and the transcript of the record was filed here on the 11th day of January, 1889.

Counsel for appellee filed in this court on April 17, 1890, the following suggestion and motion: 'And now comes John C Avery, an attorney of this court, and attorney of record for appellee, and suggests to the court the dissolution of appellee as a corporation by virtue of chapter 3859 of the Laws of Florida, and that the said case is accordingly abated, and should be dismissed by order of court, and he moves the court to so order.' The question now to be disposed of is, has this suit abated for the reason stated in the foregoing suggestion? It is insisted on behalf of appellee that the act of the legislature (chapter 3603, Laws Fla.) approved February 16, 1885, creating county boards of health, has been repealed by the ninth section of the act of the legislature (chapter 3859, Laws Fla.) approved June 7, 1889, and that the corporate existence of appellee under the former act has become extinguished. The record shows that this suit had been instituted and was pending on appeal in this court at the time of the passage of the act of 1889. In support of his motion, counsel for appellee cites several authorities sustaining the proposition that, upon a dissolution or extinction of the legal existence of a corporation, all suits pending against it are thereby abated, the same as the death of a natural person pendente lite abates suits against him. Without questioning the correctness of this proposition, we proceed to inquire whether or not the effect of the act of 1889 was to abrogate the law of 1885 in the creation of county boards of health. The ninth section of the act of 1889 provides, in reference to the act of 1885, that 'An act entitled 'An act to provide for the appointment of boards of health for the several counties of the state of Florida, and define their powers,' approved February 16th, 1885, be, and the same is hereby, repealed.' Along with this repealing section, however, and taking effect at the same time with it, the legislature reenacted substantially the provisions of the act of 1885, providing for the creation of county boards of health, and constituting them corporations. The first section of the act of 1885 provides that 'the governor of the state of Florida shall appoint for every county in this state a board of health, consisting of five discreet persons, not less than two of whom shall be physicians of skill and experience, to serve without pay, as hereinafter provided.' The fifth section of this act provides that 'every board of health appointed under the provisions of this act shall be a corporation, with power to sue and be sued, contract and be contracted with, and to acquire and dispose of at pleasure property, both real and personal, and to do every other act necessary to the proper exercise of such powers.' The first section of the act of 1889 (chapter 3859) provides that 'the governor of this state, with the advice and consent of the senate, may, as soon as practicable after the passage of ...