Fincher v. Collum

• Decision Date: 29 October 1907
• Docket Number: 739.
• Parties: FINCHER, Marshal, v. COLLUM.
• Court: Georgia Court of Appeals

59 S.E. 22

2 Ga.App. 740

FINCHER, Marshal, v. COLLUM.

No. 739.

Court of Appeals of Georgia

October 29, 1907

Syllabus by the Court.

Under a general welfare charter clause in usual form, a city council may pass an ordinance requiring owners of dogs to register them, secure tags, and pay fees therefor, and authorizing the killing of all untagged dogs; also making the owners of untagged dogs subject to punishment. The fact that the tag fees on female dogs are higher than those on male dogs does not render such an ordinance invalid. Such ordinances are sanitary and not fiscal in their nature, are an exercise of the police power, and not of the taxing power.

[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 1335-1337.]

The charter of the city of Dalton approved February 24, 1874 (Acts 1874, p. 181), and the subsequent acts amendatory thereof, represent the entire charter powers of the city; and provisions contained in prior charters, but omitted from this act, are no longer in force.

Error from City Court of Dalton; J. A. Longley, Judge.

Application by S.C. Collum for a writ of habeas corpus to J. C. Fincher marshal. From a judgment granting the writ, the marshal brings error. Reversed.

Julian McCamy, for plaintiff in error.

C. D. & F. K. McCutchen, for defendant in error.

POWELL J.

If the ordinance were adjudged to be a tax ordinance, the question arising from the discrimination in the amount imposed on female dogs and that imposed upon the males might be serious though we are inclined to think the subtle influence which she dogs possess of attracting all the he dogs in the neighborhood to their immediate vicinity at stated periods, thereby making themselves attractive nuisances, as it were, might furnish a legitimate basis for putting bitches in a special taxing class. Still just here the present complaining party would be met with the obstacle that he owns a dog, and not a bitch; and favored classes are not allowed to complain of discriminations in their favor. Mayor v. Simmons, 96 Ga. 480, 23 S.E. 508 (3); Reid v. Mayor, 80 Ga. 757-8, 6 S.E. 602. However, the ordinance is not a tax ordinance, but a police regulation. "The power to regulate the keeping of dogs and to enforce such regulations by fines, forfeitures, and penalties, is recognized as one within the police power." This power of regulation may lawfully be exercised through a requirement that all persons keeping dogs on their premises shall register the same, procure a badge for each dog, and pay a fee. Griggs v. Macon, 103 Ga. 602, 30 S.E. 561, 68 Am.St.Rep. 134; 1 Dillon, Munic. Corp. (4th Ed.) 212, note 2; Cole v. Hall, 103 Ill. 30; Commonwealth v. Markham, 70 Ky. 486; Van Horn v. People, 46 Mich. 183, 9 N.W. 246, 41 Am.Rep. 159; Carthage v. Rhodes, 101 Mo. 175, 14 S.W. 181, 9 L.R.A. 352; Gibson v. Harrison, 69 Ark. 385, 63 S.W. 999, 54 L.R.A. 268; Sentell v. N. O. R. Co., 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169. That bitches are taxed more than males works no invalidity. Hendrie v. Kalthoff, 48 Mich. 306, 12 N.W. 191. Such measures are sanitary, not fiscal. Commonwealth v. Markham, supra.

The nature and habits of dogs make them the special subjects of the police power. Despite the fact that the virtues of the dog have commanded the favorable attention of Senator Vest and others, who have paid him many glowing tributes, still he has not a universal good name. There are good dogs and bad dogs. Holy Writ has but few good words for dogs. Note the unfavorable categories in which they are placed: "For without are dogs, and sorcerers, and whoremongers, and murderers, and idolaters, and whosoever loveth and maketh a lie." Rev. xxii: 15. "Thou shalt not bring the hire of a whore or the price of a dog into the house of the Lord thy God for any vow; for even both of these are abominations unto the Lord thy God." Deut. xxiii: 18. "Beware of dogs, beware of evil workers, beware of the concision." Phil. iii: 2. We have no disposition to take issue with the unbroken current of authority, which says that dogs are under the special watch and ward of the police power. Take our canine citizenship out from under the dominion of the police power, and every municipality which finds itself in the throes of a mad-dog scare will be exposed to the chagrin of seeing its ordinances, hastily drawn to meet the emergency resisted by defenses and assailed by injunctions predicated upon the thirteenth, fourteenth and fifteenth amendments to the federal Constitution. Shall pointers and setters or yellow curs be the sufficient cause for clash between state authorities and federal court? Shall a day come when a "grandfather clause" will be the necessary adjunct to every town dog law? In the light of such possibilities public policy forbids the courts to interfere, or to do anything which will tend to diminish the...