On July 23, 1934, the decree of the Circuit Court was reversed with directions to dissolve the injunction granted and to dismiss the complainant's bill of complaint. Afterward, upon petition of appellee, a rehearing was granted and the cause was argued before the Court en banc in view of the constitutional questions raised and resolved against appellee in this Court's opinion and judgment of July 23, 1934.
Upon full consideration after rehearing and reargument, a majority of the Court adhere to the opinion that the Florida statute (Sections 3902-3916 C. G. L., 2492-2506 R. G. S.) is not violative of the Constitution of the United States in the particulars complained of in the bill of complaint, and that therefore the opinion and judgment of this Court heretofore adopted and entered on July 23, 1934, *Page 734 should be, and the same is hereby reinstated and made the opinion and judgment of this Court on rehearing. See Clyde Mallory Lines v. State, ex rel. State Docks Commission (Ala.)159 So. 53.
But in so holding a majority of the Court do not mean to intimate that the compensation authorized by Section 3906 C. G. L., 2496 R. G. S., can be demanded or collected from the master, owner or consignee of a vessel coming into port where the Harbor Master has failed to perform any of the duties cast upon him by Section 3905 C. G. L., 2495 R. G. S., either in person or by deputy, so as to entitle him to demand and collect the compensation provided by Section 3906 C. G. L.,supra. Defenses to unjust claims to compensation, however, should be appropriately asserted as a defense to any action brought to collect same.
Judgment of reversal adhered to on rehearing and cause remanded with directions to dissolve the injunction and dismiss the bill of complaint.
WHITFIELD, C. J., and TERRELL, BUFORD and DAVIS, J. J., concur.
ELLIS and BROWN, J. J., dissent in part.