delivered the following dissenting opinion:
Upon the views announced in Ex-parte O’Donovan, Supra, 24 Fla., 281; 4 So. Reporter, 789, a County Board of Health has authority to collect fees lor inspection and fumigation and disinfection. (Chapter 3443, Act 1883.) This power is not supplanted by the provision of section 6, of the act of 1885, (Chapter 3603,) authorizing the County Commissioners to assess and levy, at the request of the Board of Health, an annual tax, not exceeding two mills on the dollar, “ to enable ” the Board of Health “ to defray the expenses of its operation such provision is about the same in effect and purpose as to a county board as the one of Chapter 3443, that “all the officers and employees in and about quarantine shall be paid, and the expenses of the quarantine board, by the city or town establishing such quarantine,” is as to a town board.
The fee for cleansing or fumigation, as fixed by the 15th rule of the Board of Health, is “five cents per ton and if, upon the authorities cited in the opinion of the court in this case, and as held in such opinion, it is a tonnage tax, and in violation of section 3, of Article I, Constitution of the United States, which provides that “ no State shall, without the consent of Congress, lay any duty of tonnage,” the fee for such services should be prescribed in a' different form or measure. There seems to me to be ground in the case of Morgan vs. Louisiana, 118 U. S., 455, for doubting its being such a “ duty ” or “ tax ” not suggested by the *416Other cases. I understand this case to hold that it is a-compensation for a service, and not a tax.
My understanding of the 14th rule, set out in the opinion of the majority of the court, is that the charge authorized by it, as an independent charge for the use of the “ crib,’ and not as a part of the fumigation or disinfection or cleansing service performed by the board, and for which the fumigation fee is a compensation under rule 15 and chapter 3443, of the acts of 1883. The plea does not show that it was part of a fumigation service or charge in the case before us. It is true that it may be usually necessary to take out a vessel’s ballast to fumigate, disinfect or cleanse her effectually. The crib charge is not for the service by the board of taking it out for such purpose. It is a separate charge by -the board for the privilege of the vessel’s discharging her ballast in the crib. Neither the statute of 1883, nor that of 1885, nor that of 1879, authorize the Board of Health to keep a crib and charge the vessel for its use as a mere place for depositing its ballast, as rule 14 proposes to do. If they are auchorizcd to keep a crib for this purpose, it should be maintained by means of the tax authorized by section 6 of the act of 1885. This charge is, under the rule and statute, as I understand them, illegal.
These boards of health have no right to make or collect a charge which the law of their being does not authorize them to impose. It is shown by the pleading that the service of fumigating and the use of the crib were in, invitum in so far as the vessel was concerned, and being both thisl- and illegal as I am clear that charge for use of the crib was, I think that, at least to the extent of such illegality,, the judgment is erroneous.