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and the same is hereby, amended, so as to read as follows: All the officers and employes in and about quarantine shall be paid, and the expenses of the quarantine board, by the city or town establishing such quarantine. Every vessel undergoing inspection by the port inspector, and every vessel in quarantine which, in the opinion of the port physician, shall require and receive fumigation or other disinfection, shall pay therefor to the board of health such fee or fees as may be prescribed by said board of health; and if the master of any ship, boat, or vessel shall refuse to pay such fees, the board of health may detain said vessel in quarantine until the same are paid, or may sue for and recover the same from the owner of such ship or vessel." This being now a part of the act of 1879, instead of section 17, it is to be taken into consideration under the rule of construction laid down. Considering it as a part of the quarantine system, and that the several acts are to be construed together, and, in the language of Kent, "considered as having one object, and as acting upon one system, * * * governed by one spirit and policy, and intended to be consistent and harmonious in its several parts,” it must be seen that this provision for the payment of employes and officers, and of the expenses of quarantine, is of force for the county board created by the act of 1885, as well as for the board of a city or town created by the previous act. There is a difference between the acts in the constitution of the boards; but the system of quarantine otherwise-that is, the work to be done by the boards must be the same, so far as regulated by statute, for the later as for the earlier boards, unless expressly changed. The general powers of the act of 1885, therefore, must be construed as being aided by the more specific provisions of the other acts. In this view, while the act of 1885 does not specifically provide for quarantine fees and charges, we may look to the act of 1883 for authority to the board in that regard. That act requires that such fee or fees as may be prescribed by the board of health "shall be paid by every vessel undergoing inspection by the port inspector, and by every vessel in quarantine requiring and receiving fumigation or other disinfection." The board in its thirteenth regulation, quoted above, provides a fee of five dollars for the inspector. This, as a fee to be charged for inspection during quarantine, is legitimate. So, as to the charge provided for in the fourteenth regulation,-50 cents per ton for ballast discharged at the crib of the board, (the tonnage relating, not to the vessel, but to ballast.) That is legitimate, if such discharge is for the purpose of disinfecting the vessel, but not otherwise. The act does not contemplate or authorize any charge, other than for inspection, unless the inspection results in requiring fumigation or other disinfection. As to fumigation, the fifteenth regulation of the board provides for a charge of "five cents per ton according to the registry of the vessel." While the board has full authority under the act to make a charge for fumigation, its said regulation cannot be sustained. It is a tonnage tax, or a charge measured by tonnage of the vessel, which is in violation of the constitution of the United States. See State Tonnage Cases, 12 Wall. 204; Peete v. Morgan, 19 Wall. 581; Cannon v New Orleans, 20 Wall. 577; Steam-Ship Co. v. Tinker, 94 U S. 238. It appears, therefore, that some parts of the consideration for the draft were valid; and such charges, so far as made for compulsory service, are authorized by law, in that the system of quarantine laws established by the statutes of the state is a rightful exercise of the police power for the protection of health, not forbidden by the constitution of the United States. Steam-Ship Co. v. Board, 118 U. S. 455, 6 Sup. Ct. Rep. 1114. We do not think the fact that, under the act of 1885, the county commissioners are empowered to raise a tax, at the request of the board, to defray the expenses of its operation, is to be considered as excluding other and the usual modes of providing means for quarantine purposes. It is more likely that, while applying to all counties, it was intended to make provision for such of them as are not visited by commercial vessels, as also to aid in starting the

system, and to supplement any deficiency of means for those that are visited by such vessels. Charges of the character complained of are common under all systems of quarantine for sea-port towns. They are "compensation for services rendered, as part of the quarantine system of all countries," (118 U. S. 455, 6 Sup. Ct. Rep. 1114, supra,) which we cannot believe it was the intention of the legislature to surrender; and, finding under the construction we have given the quarantine acts that the board may make such charges, it seems reasonable to conclude that both resources were meant to be given.

Recurring to the pleadings, we have seen that a most material allegation of the plea is eliminated, and we are now to consider the effect this charge will have in the decision of the case. The replication, in effect, denies that the draft was given under compulsion, as alleged by the plea. The demurrer to the replication is an admission that there was not this compulsion; so that, though the considération for the draft may have been invalid, yet under the pleadings it must be treated as given voluntarily. The situation, then, is this: appellant accepted service of value from appellee, but because he was compelled to. We say of value to him, for the reason that his vessel was under charter to Pensacola, and he could not go there until he had performed quarantine duty. Whether it was illegal to charge him for any service rendered in that duty by those conducting quarantine is immaterial as to the value of the service which was necessary towards enabling him to proceed in the fulfillment of his charter contract; but, having accepted the service as forced on him, he could have refused to pay for it on the basis of the illegality of the charge! Instead of refusing, he ratified his acceptance of the service by giving the draft on his consignee. The duress had ceased before it was given, (the alleged duress in giving it being out of the case;) and in that state of things the ratification imparted validity to the contract, (6 Wait, Act. & Def. 660.) That it is capable of ratification, because "not strictly void, but only voidable," (Id. 659;) and, further, where a contract is merely voidable, a bill or note to pay it is good, (1 Daniel, Neg. Inst. § 182.) It follows that the draft is relieved of the objection as to consideration, and that on the whole the demurrer was properly overruled. The judgment is affirmed.

RANEY, J., (dissenting.) Upon the views announced in O'Donovan v. Wilkins, 24 Fla., 4 South. Rep. 789, a county board of health has authority to collect fees for inspection and fumigation and disinfection, (chapter 3443, Acts 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 employes 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 fifteenth 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 10, par. 3, art. 1, Const. U. S., 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 v. Louisiana, 118 U. S. 455, 6 Sup. Ct. Rep. 1114, for doubting its being such a "duty" or "tax," not suggested by the other cases. I understand this case to hold that it is a compensation for a service, and not a tax.

My understanding of the fourteenth rule set out in the opinion of the majority of the court is that the charge authorized by it was an independent

charge for the use of the "crib," and not 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 authorized 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 authorized 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 this, and illegal, as I am clear that the charge for use of the crib was, I think that, at least to the extent of such illegality, the judgment is erroneous.

1. LARCENY

ROBINSON et al. v. STATE.

(Supreme Court of Florida. October 8, 1888.) INSTRUCTIONS-EVIDENCE OF OWNERSHIP.

Plaintiff in error's counsel requested the court to instruct the jury: "If you believe from the evidence that there is a question of the ownership of this hog, no matter how slight it may be, between Joseph Rowe and Peggy Mitchell, you must find for the defendants, ""-was properly refused. It was too broad.

2. SAME.

A charge that if the jury believe from the evidence that the defendants killed the hog in question, honestly believing at the time that it belonged to Rowe, they committed no offense against the laws of this state, would have been correct. 3. CRIMINAL LAW-SUFFICIENCY OF EVIDENCE.

When there is conflicting evidence it is the duty of the jury, if possible, to reconcile the conflict; and after doing so, if the defendant is convicted, and there is evidence sustaining the verdict, and there is no question as to the credibility of the witnesses, and there is nothing to show that the jury were influenced by any improper motive, this court will not set the verdict aside. The court will not reverse the finding of the jury upon a question of fact, unless the verdict is so clearly and manifestly against the weight of evidence as to suggest the presumption that it was produced by influences other than a proper consideration of the testimony. (Syllabus by the Court.)

Error to circuit court, Alachua county; THOMAS F. KING, Judge.

S. Y. Finley, for plaintiffs in error. The Attorney General, for the State. MITCHELL, J. The plaintiffs in error were jointly tried and convicted at the spring term of the circuit court, 1887, upon indictment charging them with the larceny of a domestic animal, to-wit, a hog. Motion for new trial was made and denied, and reversal of said cause is asked because new trial was not granted; and the following are the errors assigned: (1) Because the verdict was contrary to law. (2) Because the verdict was contrary to the evidence, and the weight of evidence. (3) Because the court erred in refusing to give the jury the third request of counsel for defendants, to-wit: "If you believe from the evidence that there is a question of ownership of this hog, no matter how slight it may be, between Joseph Rowe and Peggy Mitchell, then you must find for the defendants." (4) Because the verdict is contrary to the charge of the court. (5) Because the court erred in overruling motion for new trial. At the trial of this cause the judge of the circuit court was re

quested by defendants' counsel to instruct the jury: "(1) If you believe from the evidence that the defendants took and killed this hog believing that it was the property of Joseph Rowe, and that they killed it under the direction of Katie Rowe, wife of Joseph Rowe, you must find for the defendants. (2) If you believe from the evidence that the defendants took and killed said hog under the direction of Katie Rowe, wife of Joseph Rowe, for the use and benetit of said Rowe, and not for their own use and benefit, then you must find for the defendants. (3) If you believe from the evidence that there is a question of the ownership of this hog, no matter how slight it may be, between Joseph Rowe and Peggy Mitchell, then you must find for the defendants. (4) If there is a reasonable doubt in your minds, you must give the defendants the benefit of the same." This whole charge, except the third paragraph, was given to the jury as requested. The third paragraph was "refused."

We will not take up the errors assigned in their order, but will consider the third ground first. This court held in Willingham v. State, 21 Fla. 761, that "when separate paragraphs or parts of a charge to a jury are excepted to the whole should be considered, and if, considered as a whole, the charge is free from the defects alleged, the exception should be overruled." In this case there was no charge given by the circuit judge, except that given at the request of counsel for plaintiffs in error; but the objection is that the court erred in refusing to charge the jury as requested in the third paragraph. The judge, in submitting the first, second, and fourth paragraphs of the charge to the jury, gave them correctly the law bearing upon the case; and in refusing to give the third paragraph no error was committed, because the question as to the ownership of the hog was raised by the first paragraph of the charge, and the jury passed upon it, and convicted the defendants. The charge asked (3) in our opinion goes too far. A charge that if the defendants killed the hog in question, honestly believing at the time that it belonged to Rowe, they committed no offense against the criminal laws of this state, would have been correct; but the charge asked and refused, that "if you believe from the evidence that there is a question of the ownership of this hog, no matter how slight it may be, between Joseph Rowe and Peggy Mitchell, then you must find for the defendants," is not, in our opinion, correct. The charge requested withdrew from the jury their right under the evidence to find that the defendants were guilty as charged, if there was the slighest question as to the ownership of the hog, without any reference to the fact as to whether or not they (the defendants) had any knowledge of such question as to ownership, and as to whether or not they honestly believed at the time they killed the hog that it belonged to Rowe. Under that part of the charge refused by the circuit court, even had it been shown that the defendants believed and in fact knew, at the time the hog was killed by them, that it belonged to Mitchell, and not to Rowe, they could not have been convicted. Counsel for plaintiffs in error earnestly contend that the third paragraph of the charge should have been given to the jury, and that the court erred in refusing to give it; and cite the case of Morningstar v. State, 55 Ala. 148, to sustain the position they assume. In this case the defendant was tried for stealing a stick of timber; and at the trial the circuit court was requested to charge the jury that "if the jury believe, from the evidence, that the defendant had a claim, honestly entertained, to the stick of timber in question, at the time it was cut and removed, he was not guilty of larceny in cutting and removing it, although he knew at the time, and prior thereto, of an adverse claim by another person.' This charge was refused, and the case taken to the supreme court; which court held "that the charge in this case asserts a correct legal proposition, and should have been given, if there was any evidence before the jury tending to prove that the defendant had a claim, honestly entertained, to the stick of timber in question.' This proposition of law laid down and sanctioned by the supreme court of Alabama is doubtless correct. It is the doctrine held by all the courts, so far as

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we know. But the charge requested in this case goes far beyond the rule laid down by the supreme court of Alabama. The circuit judge in this case was requested to instruct the jury, in substance, that they could not convict the accused if there was a shadow of doubt as to the ownership of the property in question, regardless of any belief or knowledge they may have had as to such ownership. We see no error in the circuit judge refusing to give the third paragraph of the charge in this case. The evidence in the case is conflicting: but in all such cases the jury, under appropriate charge of the courts, are to pass upon the whole evidence, and, if there is a conflict, they are to reconcile the conflict, if possible; and after doing so, if there is evidence sustaining the verdict, and there is no question as to the credibility of the witnesses, and there is nothing to show that the jury were influenced by any improper motive, this court will not interfere and set aside the verdict. Mayo v. Hynote, 16 Fla. 673.

The court will not reverse the finding of the jury upon a question of fact, unless the verdict is so clearly and manifestly against the weight of evidence as to suggest the presumption that it was produced by influences other than a proper consideration of the testimony. John v. State, Id. 554. Applying this doctrine to the case, we fail to see where any error was committed by the circuit court. The record shows that there was evidence upon which the jury found their verdict; and the evidence is of such a character as to show that the jury, in coming to the conclusion they did, were influenced by no improper motive whatever. The verdict of the jury was not so "clearly and manifestly" against the weight of the testimony as to show that it should be reversed. Judgment affirmed.

NETSO v. STATE.

(Supreme Court of Florida. October 8, 1888.) 1. INTOXICATING LIQUORS-SALE WITHOUT LICENSE-BEER.

The plaintiff in error was tried under section 11, c. 3413, Laws Fla., for carrying on the business of dealer in spirituous, vinous, and malt liquors, without the license required by statute authorizing him to carry on such business; and, to warrant a conviction, it was necessary for the state to prove that the liquor sold was either a spirituous, vinous, or malt liquor. The evidence shows that the plaintiff in error sold "beer;" but this is not sufficient, unless it is shown that the beer sold was "malt beer."

2. SAME-MALT LIQUORS-JUDICIAL NOTICE.

The courts will take judicial notice that lager-beer, ale, porter, and any other liquor made of malt, is a malt liquor.1

(Syllabus by the Court.)

Error to circuit court, Orange county; JOHN D. BROOME, Judge.

A. M. Thrasher, for plaintiff in error. The Attorney General, for the State.

MITCHELL, J. The plaintiff in error was tried and convicted at the spring term of the circuit court for Orange county, 1887, under section 11, c. 3413, Laws Fla., for carrying on the business of dealer in spirituous, vinous, and malt liquors, a business for which license is required, without obtaining such license. Motion to set aside the verdict, and for new trial, was made and overruled; ruling excepted to; and the case is now before this court upon writ of error. The only error assigned is the following: "The court erred in refusing to grant a new trial upon the ground set out in the motion for the same, and particularly because the verdict was contrary to the charge of the court, and without evidence to sustain it." The court charged the jury as follows: "If the jury believe from the evidence that the defendant, at the

1In a prosecution for selling intoxicating liquors, no proof is required of the fact that "alcohol" is intoxicating. Snider v. State, (Ga.) 7 S. E. Rep. 631. The same is true of "beer." Briffitt v. State, (Wis.) 16 N. W. Rep. 39.

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