Brown, J.
Appellee presented its bill in the Circuit Court of Duval County seeking an injunction against the appellant, the Harbor Master of the Port of Jacksonville, to prevent the collection of fees from complainant under Sections 3902-3916, Comp. Gen. Laws of 1927. The defendant filed his ariswer, and the cause coming on to be heard before Circuit Judge Elwyn Thomas upon bill and answer, the prayer of the bill for injunction was granted and the defendant as Harbor Master was perpetually enjoined from assessing against the plaintiff, or its vessels, any charges or assessments by virtue of the said statutes except such charges as may be due defendant for services actually rendered to the said vessels to the plaintiff upon the request and employment of the defendant as such Harbor Master. From this decree, the defendant took this appeal, assigning the rendition thereof as error.
In a well prepared opinion rendered in connection with the decree, the chancellor held that the complainant was entitled to the relief prayed for under the case of Webb v. Dunn, 18 Fla. 721, which, appears to be the only expression of this Court on the matter presented.
The bill alleged that the plaintiff is a corporation engaged in the business of operating vessels in foreign and inter
state commerce; that it operated two schooners, which frequently called at the Port of Jacksonville, both from foreign ports and in coastwise trading; that the defendant as Harbor Master and
ex officio
member of the Board of Port Wardens and Pilot Commissioners of the Port of Jacksonville, Florida, purporting to act under the statutes above referred to is attempting to assess, demand and collect from the defendants $10.00 for each and every call of said vessels at the Port of Jacksonville, and is threatening to sue the plaintiff and to libel the said vessels, notwithstanding the fact that the plaintiff does not require, nor had it required, the services of the defendant as Plarbor Master in connection with the said vessels. That said defendant claims authority to make such assessments and collections for stationing and assigning berths at wharves for the vessels of the plaintiff, which the plaintiff alleged was entirely unnecessary for the reason that plaintiff maintains its own wharves for the docking of said vessels. That said defendant further claims that said sums of money so assessed are due and payable to him for the inspection of said vessels and the policing of said harbor and said vessels against nuisances or the polluting of the water of said port and the facilitating of the orderly discharge of cargoes and the policing of said vessels against violation of safety measures and the hazards of fire or breaching of health measures or safety measures'; and yet the plaintiff alleges that the attempt to make such assessments and collections constitute a duty of tonnage and an impost duty on imports and exports in violation of Art. I, Section 10, of the United States Constitution, and that the same lays a burden upon interstate and foreign commerce and deprives the plaintiff of its rights, privileges and immunities under the Constitution and laws of the United States.
The defendant in his answer alleged that the State of Florida in adopting the measures here involved, was acting in the reasonable exercise of its general police powers, and also under the power reserved to it under Art. I, Section 10, Clause 2, of the Constitution of the United States in the exercise of its powers to adopt and enforce reasonably necessary inspection laws in the interest of the Port of Jacksonville, the ships and vessels using such port and the public generally of said State, in the following particulars:
“(a) Enforced observance of the quarantine laws and imposition of safeguards against noxious and contagious or infectious diseases with suitable information and reports to the health authorities when necessary;
“(b) Enforcement of health measures by use of approved rat-guards or mooring lines and cargo inspection of ships from infested areas when such precautionary measures are necessary for the protection and health and welfare of the port, those using the port and the public of the State of Florida;
“(c) Enforcement of all reasonable health measures imposed by the State or the port authorities in the interest of the port, those using the port, and the public at large, relating to disposal of garbage or sewerage by vessels using the harbor ;
“(d) Enforcement of special assignment to berths, anchorage, docks or wharves, of vessels carrying or discharging dangerous or offensive cargoes;
„ “(e) Enforcement of measures designed to protect the harbor, shipping therein, and the port against undue or unusual fire hazards created by ships or vessels carrying dangerous or hazardous cargoes without smoke screens and mooring or anchoring in the proximity of inflammable
merchandise such as rosin, turpentine and other like commodities stored along the waterfront;
“(f) Enforcement of protective measures designed to protect against offensive or dangerous discharge of petroleum or petroleum products on the waters within said port, creating undue fire hazards or hazards to the health of the community. '
“All of which services are performed in the interest of the State, the port, those using the harbor and the general public by the defendant Harbor Master under the inspection or police powers of the State specifically reserved to the State under the mentioned section of the Constitution of the United States, which services cannot be performed by any other constituted authority other than the Harbor Master, defendant herein.
“And the defendant specifically denying plaintiff’s allegation that no services are performed by the defendant Harbor Master for the benefit or protection of the plaintiff, shows unto the Court that the services mentioned as required of the defendant .Harbor Master by State statute and by the regulation of' the port authorities inure to the direct and special benefit of the plaintiff in the following specific particulars:
“(a) The defendant Harbor Master is by the statutes complained of charged with the specific duty of keeping open lanes of travel in said harbor for plaintiff’s use in moving its vessels and shipping into and out of said port and especially in the movement of such ships or vessels to or from the private docks and wharves of the plaintiff;
“(b) In preventing ships and vessels other than those of the plaintiff from the use of unauthorized anchorage which might obstruct the plaintiff’s vessels and shipping in moving to and from its private docks or cause such movement to
be cumbersome or dangerous and causing the removal of any such obstruction occasioned by unauthorized anchorage of other vessels;
“(c) Protection of the harbor -and the plaintiff’s ships and the plaintiff’s docks and wharves from undue and unusual fire hazards occasioned by the. proximity of ships carrying dangerous or hazardous cargoes and from the discharge or leakage of oil or petroleum products on the waters of the harbor.
“(d) Protecting the plaintiff’s docks and wharves, the plaintiff’s ships moored thereto, and the plaintiff’s ships entering and leaving the harbor from all violations of safety regulations as to speed and controlling of vessels using the harbor.
“(e) Protection of plaintiff’s ships and crews and those working in connection therewith in all matters of health controlled by harbor regulations.
“All of which services defendant Harbor Master performs for the specific benefit and advantage of the plaintiff by maintaining an office in said port with telephone communication so that he can be reached at any time of the day or night and continuously maintaining harbor patrol with suitable marine equipment engaged constantly and continuously in enforcing harbor regulations for the benefit of the plaintiff and all those using said harbor.
“7. Further answering paragraph 6 of the plaintiff’s bill of complaint, the defendant Harbor Master shows that the statute complained of authorizes the assessment of inspection fees up to the maximum sum of Twenty Dollars ($20.00) for each vessel calling at the Port of Jacksonville where services are rendered such vessel. That said statutory fee of $20.00 is charged by the defendant against only those vessels requiring special services of the Harbor
Master in addition to the general services enumerated; that the fee complained of in the sum of Ten Dollars ($10.00) is the minimum fee assessed and charged by the defendant harbor master against any vessel entering and using the Port of Jacksonville where no special or particular services is required; that under the State statute complained of the cost of the State’s inspection service rendered necessary in the interest of the port, the citizens thereof and the vessels using the harbor may be met from inspection fees only and that the defendant Harbor Master is unable to maintain offices so that his services may be constantly available and maintain marine equipment and harbor patrol with proper inspection of all shipping using the harbor for lesser fees; that said fee of $10.00 per vessel is assessed without discrimination against all types of vessels using the harbor whether engaged in intra-state, interstate or foreign commerce; that said fee is not a duty on tonnage, nor an impost or duty on imports and exports, but on the contrary is an inspection fee in a reasonable amount assessed under the inspection laws of the State of Florida and under the police powers of said State; and that the services rendered in protecting the shipping using the harbor in all reasonable matters of health regulation and regulating the harbor and the use of private wharves and docks is a reasonable exercise of the police power of the State and adds to the safety, health, comfort and convenience of the plaintiff and all those using the Port of Jacksonville.
“8. The defendant further shows this Honorable Court that the terms of Section 3 of Chapter 3752, Acts of 1887, being Section 2499, Revised General Statutes of Florida, this defendant is
ex officio
a member of the Board of Pilot Commissioners and of Port Wardens of the Port of Jack
sonville, and he is charged by said statute with the duty to carry out the rules and regulations of said Pilot Commissioners and Port Wardens, and by virtue of said office the defendant actually has charge of and is under the duty to ^enforce police measures as to the shipping operated by the plaintiff and to control the said shipping in all matters relating to the health and convenience of said port as hereinabove set forth in this answer.”
It will be noted that the answer does not expressly allege that the Board of Port Wardens and Pilot Commissioners have established rules within their jurisdiction, as they are given authority to do under Section 3909, Comp. Gen. Laws, which section also makes it the duty of the Harbor Master to act in accordance with such rules. It is only by inference from the allegations in the answer as to the Harbor Master’s duties that the answer contains anything to show that such Board has adopted any regulations whatsoever. As to the powers and duties of the Board of Pilot Commissioners, see Sections 3869-3893, Comp. Gen. Laws, particularly Section 3881, which gives the Board power to make and promulgate rules and regulations for the government and protection of the port. Section 3882, Comp. Gen. Laws, provides that said Board shall take such steps as may be necessary to detect violation in the ports or waters within their jurisdiction of the laws for protection of ports, bays, harbors, and rivers; and Section 3886 C. G. L. gives such Board full power to make such rules and regulations for their own government and the discharge of their duties “under this Chapter” as they may deem necessary and proper, and provides that they shall keep an office in the port or city for which they are appointed. Section 3869 C. G. L. provides among other things, that it shall not be lawful for any person to discharge or cause to be dis
charged or deposited in the tide or salt waters or any port or harbor or river of the State any ballast or material of any kind other than clear stone or rock which shall be discharged only in the construction of enclosures in connection with wharves, piers, jetties, permanent bulkheads, etc.,, and Section 7797 prohibits the obstruction of navigable water courses. ; ■'
Section 3905, Comp. Gen. Laws, makes it the duty of every master of any vessel arriving at the ports in this State to report to the Harbor Master for a station or for a berth at the wharves, and that the Harbor Master shall regulate and station and assign berths at the wharves to such vessels, and to cause to be removed all vessels not employed in receiving or discharging their cargoes to make room for such others as require to be more immediately accommodated for such purpose, and that it should be the duty of such Harbor Master to be present at all times, either in person or by deputy, to facilitate them by stationing or assigning berths at the wharves to vessels arriving at the ports and to prevent confusion and delay. The Harbor Master is given full power to determine how far and in what instance it is the duty of masters of vessels to accommodate each other in their respective situations.
This particular provision of the statutes may have little application to the plaintiff, who owned its own wharf, and yet it may be that the orderly berthing of vessels at other wharves, or the stationing of vessels elsewhere in the port, might well operate to benefit even vessels using private wharves by keeping the lanes of traffic open and facilitating the movement of all vessels using the port. Thus, in Section 3912, it is made the duty of the master of every vessel arriving in port to apply to the Harbor Master or one of his deputies for a station in the stream or a berth at
the wharves, and that the Harbor Master or his deputy shall forthwith station such vessel so as to best facilitate the loading or discharge of such vessel, and at the same time interfere as little as possible with other vessels in the vicinity. However, in this connection it is added, that in assigning berths at wharves the Harbor Master shall conform in every instance to the wishes of the managers of such wharves as to their location at the same.
It is also, by Section 3911, made the duty of the Harbor Master, or one of his deputies, to board every vessel entering the port, after such vessel had been released by health authorities of the port, to demand of the master the certificate of the vessel’s release of such health authorities, and to deliver the same within twenty-four hours to the Secretary of the Board of Health.
Section 3906 and 3914, Comp. Gen. Laws, one section being derived from the Act of 1903 and the other from the Act of 1887, provides that the Harbor Master shall receive from the master, owner or consignee of vessels coming into port, for the services rendered by himself or deputies, “under the provisions of this Article,” not exceeding the sum of $20.00 for each vessel, according to the amount and value of the services rendered.
In the case of Webb v. Dunn, above referred to, decided by this Court in 1882, it was held that Chapter 3159 of the Laws of 1879, being an Act to Amend Section 4 of an Act to establish the office of Harbor Master for the Port of Pensacola, approved December 8, 1866, providing that the Harbor Master make demand for every vessel that may .enter the port and load or unload, or make fast to any wharf, certain fees whether earned by any service rendered to any such vessel or not, is a law imposing a tax upon such vessels or their owners, and a regulation of commerce
within the terms of the 3rd paragraph of Section 8, Art. I, of the Constitution of the United States, which grants to Congress the power to regulate commerce with foreign nations and among the several states, and that said Act is therefore unconstitutional and void.
The fees provided for in that Act were “for any vessel drawing less than 10 feet, the sum of $5.00; and for any vessel drawing more than 10 feet, the sum of $1.00 for each additional foot.” In the able opinion of Chief Justice Randall, in the case just cited, the Court reviewed several of the leading Federal cases on this subject, among them Steamship Co. v. Port Warden, 6 Wall., 31, 18 L. Ed. 749; Cannon v. New Orleans, 20 Wall., 577, 22 L. Ed. 417; and Inman Steamship Co. v. Tinker, 94 U. S. 238 (4 Otto) 24 L. Ed. 118.
It will be observed that the Act passed on in Webb v. Dunn provided for the payment of the fees whether any service was rendered or not, whereas under the statute here relied on by the appellant, the fees are based on services rendered by the Harbor Master or his deputies, not exceeding the sum of $20.00, according to the amount and value of the services rendered. It is true, this statute does not require any element of contract" with reference to the services rendered, but we apprehend that this is not necessary in cases where the services rendered are in connection with the proper policing and protection of the port for the adequate protection and convenience of all vessels using the port, “according to the amount and value of the services rendered.” It will be observed that the bill does not allege that the fee of $10.00 was an unreasonable charge against the appellee or its vessels, but the contention is that it is a tax on tonnage, or a regulation of interstate commerce, beyond the power of the State to impose.
In Inman S. S. Co. v. Tinker, supra, it was held that tonnage duties are duties upon vessels in proportion to their capacity. However, in the case of Steamship Co. v. Port Wardens,
supra,
it was said that the tax of $5.00 imposed by the Act of Louisiana was “in the fair sense of the word, a duty on tonnage.”
But in that same case it was also said, that while the power to regulate interstate and foreign commerce is vested in Congress, and that no State without the consent of Congress can lay any duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, or any duty of tonnage, yet it was also said that:
' “At the same time it was not intended to interfere with the exercise of State authority upon subjects properly within State jurisdiction. The power to enact inspection laws is expressly recognized as not affected by the grant of power to regulate commerce. And many other powers, the exercise of which may, in various degrees, affect commerce, have always been held not to be within the grant to Congress. To this class it is settled belong quarantine and other health laws, laws concerning the domestic police, and laws regulating the internal trade of a State.”
It is our view that the somewhat broad language used in some of the cases above cited has been considerably clarified and limited by the Supreme Court'of the United States in the case of Gloucester Ferry Co. v. Commonwealth of Pennsylvania, 114 U. S. 196, 29 L. Ed. 158, which does not appear to have been brought to the attention of the court below. In the opinion by Mr. Justice Field, in that case, after reviewing the case of Steamship Co. v. Port Wardens,
supra,
with approval, upon the ground that that case was simply one of “a tax imposed upon the vessel for the navigation of the public waters of the State,” and
as such an unlawful regulation of commerce and an illegal encroachment upon the powers of Congress, it was very aptly added:
“The cases where a tax or toll upon vessels is allowed to meet the expenses incurred in improving the navigation of waters traversed by them, as by the removal of rocks, the construction of dams and locks to increase the depth of water and thus extend the lines of navigation, or the construction of canals around falls, rest upon a different principle. The tax in such cases is considered merely as compensation for the additional facilities thus provided in the navigation of the waters. Kellogg v. Union Co., 12 Conn. 7; Thomas Bank v. Lovell, 18 Conn. 500; McReynolds v. Smallhouse, 8 Bush, 447.
“Upon similar grounds, what are termed harbor dues or port charges enacted by the State from vessels in its harbors, or from their owners, for other than sanitary purposes, are sustained. We say for other than sanitary purposes, for the power to prescribe regulations to protect the health of the community and prevent the spread of disease is incident to all local municipal authority, however much such regulations may interfere with the movements of commerce. But independently of such measures the State may prescribe regulations for the government of vessels whilst in its harbors; it may provide for their anchorage or mooring, so as to prevent confusion and collision; it may designate the wharves at which they shall discharge and receive their passengers and cargoes, and require their removal from the wharves when not thus engaged, so as to make room for other vessels. It may appoint officers to see that the regulations are carried out, and impose penalties for refusing to obey the directions of such officers; and it may impose a tax upon vessels, sufficient to
meet the expenses attendant upon the execution of the regulations. The authority for establishing regulations of this character is found in the right and duty of the supreme power of the State to provide for the safety, convenient use and undisturbed enjoyment of property within its limits; and charges incurred in enforcing the regulations may properly be considered as compensation for the facilities thus furnished to the vessels. Vanderbilt v. Adams, 7 Cow. 351.
“Should such regulations interfere with the exercise of the commercial power of Congress, they may at any time be superseded by its action. It was not intended, however, by the grant to Congress, to supersede or interfere with the power of the States to establish police regulations for the better protection and enjoyment of property.”
In the case Lindsay & Phelps Co. v. Mullen, 176 U. S. 126, 44 L. Ed. 400, it was held that a lien given by a State statute on logs out in another State for surveying and scaling them by the surveyor general of the State while in a log boom, does not constitute a burden on interstate commerce, but is a lawful charge imposed by the State for furnishing additional facilities for navigation of a waterway, which constituted, not a burden, but an assistance to navigation.
See also Morgan’s R. R. and S. S. Co. v. Louisiana, 118 U. S. 455, 30 L. Ed. 237.
In the case of Inman Steamship Co. v. Tinker,
supra,
an Act of the State of New York imposing a tonnage duty of so much per ton on all vessels entering the port of New York, or making fast to any wharf therein, was declared unconstitutional. In that case Mr. Justice Swayne said:
“It does not advance the argument in behalf of the appellee to maintain that the regulations prescribed by the
Act are necessary and proper in the port for which they are provided. It is not our purpose to examine them, except as to the proposition in hand. It may be that, aside from the imposition of this tax, they contain nothing exceptionable, and that in all other ' respects they are wise and well considered. Similar provisions, varying according to local circumstances, exist at all important points throughout the world whither marine commerce finds its way. They are indispensable to those engaged in that business. They fence out many evils, and promote largely the convenience and welfare of those engaged in this field of enterprise. Perhaps it is hardly too strong language to say, they are well nigh vital to commerce itself. It may be conceded, also, that foreign steamships and other vessels visiting the ports of a State for business purposes may be made liable by the laws of such State for all reasonable and proper port charges. This is but a fair return for the benefits received. But such charges must not be repugnant to the Constitution of the United States. Any conflict is fatal to them. The warrant for such competent legislation may be found in that immense mass of police and other powers which the State originally possessed, which they have not parted with, and which still belongs to them; or it may in some cases be found among those which the States may exercise, but only until Congress shall see fit to act upon the subject. The authority of the State then retires, and lies in abeyance until the occasion for its exercise shall recur. * * *
“The State, in passing this law imposing a tonnage duty, has exercised a power expressly prohibited to it by the Constitution. In that particular the law is, therefore, void. * * *
“How the charges, which it is conceded the State may
impose, must be shaped in order to be valid, is a subject which it is not within our province to consider, and in regard to which it would not be proper for us to express any opinion.”
This principle finds some analogy in the motor vehicle cases decided more or less recently by the Supreme Court of the United States. Thus, in Sprout v. South Bend, 277 U. S. 163, 48 S. C. 502, 72 L. Ed., 833, it was held that, in the absence of Federal legislation governing the subject, the State may impose upon vehicles using its highways exclusively in interstate commerce non-discriminatory regulations for the purpose of insuring safety and. convenience, such a license fee no larger in amount than is reasonably required to defray the expenses of administering the regulations, and may delegate this power to municipalities. And in Sproles v. Binford, 286 U. S. 374, 52 S. C. 581, 76 L. Ed. 1167, it was held that a State statute limiting the net load permissible for trucks operated upon the public highways is not, in the absence of national legislation on the subject, repugnant to the commerce clause of the federal Constitution. And in Michigan Public Utilities Co. v. Duke, 266 U. S. 570, 45 S. C. 191, 69 L. Ed., 445, a reasonably graduated license fee imposed by a State on motor vehicles used in interstate commerce, does not constitute an unlawful burden on such commerce.
Our conclusion is that statutes authorizing the assessment and collection of the fees herein sought to be enjoined, when considered in connection with the other statutory provisions above referred to, and the factual allegations contained in the answer, do not deprive the appellee of any of its rights under the Federal Constitution, nor impose any tonnage duty; nor do the statutes now appearing as Sections 3902 to 3916 C. G. L. inclusive, conflict with any
of the provisions of the Federal Constitution, or tran-. scend in any way the reasonable exercise by the State of its police powers—-not as a burden upon interstate or foreign commerce, but as is the case here, as a distinct aid to commerce in general. Insofar as some of the expressions contained in the opinion in the case of Webb v. Dunn,
supra,
are inconsistent with the conclusions hereinabove reached, that case must be, to that extent, and the same is, hereby modified.
The decree of the court below is accordingly reversed and remanded with directions to dissolve the injunction granted and to dismiss the plaintiff’s bill.
Reversed and remanded with directions.
Whitfield, P. J., and Buford, J., concur.
Davis, C. J., and Terrell, J., concur in the opinion and . judgment.