Blackie the Talking Cat
551 F.Supp. 349
United States District Court,
Carl M. MILES, et al., Plaintiffs,
CITY COUNCIL OF AUGUSTA, GEORGIA, et al., Defendants.
Civ. A. No. CV181-157.
Nov. 15, 1982.
Plaintiffs attacked municipal ordinance imposing business license tax.
The District Court, Dudley H. Bowen, Jr., J., held that: (1) ordinance
is not vague or overbroad, and (2) ordinance does not violate equal
Court may avoid vagueness of statute by means of statutory interpretation.
Georgia municipal ordinance imposing business license tax was not
unconstitutionally vague or overbroad as it contained exhaustive list
of businesses, occupations and trades subject to taxation, given
exhaustive detailing of wide variety of occupations and businesses
covered, it required no great leap in logic to hold that a
“catch-all” category was intended for those unique,
extraordinary occupations such as plaintiffs' talking cat.
*350 John H. Ruffin, Jr., Augusta, Ga., for plaintiffs.
Stanley G. Jackson, Augusta, Ga., for defendants.
BOWEN, District Judge.
This case is before the Court on the cross-motions for summary judgment
of plaintiffs Carl and Elaine Miles and defendant City Council of
Augusta, Georgia. For the reasons to follow, summary judgment is
GRANTED IN FAVOR OF DEFENDANT AND DENIED AS TO THE PLAINTIFFS. The
plaintiffs' motion will be discussed first.
In this case, the attack upon the power of the City of Augusta to levy
an occupation tax arises under somewhat unusual circumstances. The
pertinent undisputed facts, as gleaned from the record,FN1 are as
FN1. In ruling on the motions for summary judgment, the Court has
considered only the evidence in the file. However, it should be
disclosed that I have seen and heard a demonstration of Blackie's
abilities. The point in time of the Court's view was late summer, 1982,
well after the events contended in this lawsuit. One afternoon when
crossing Greene Street in an automobile, I spotted in the median a man
accompanied by a cat and a woman. The black cat was draped over his
left shoulder. Knowing the matter to be in litigation, and suspecting
that the cat was Blackie, I thought twice before stopping. Observing,
however, that counsel for neither side was present and that any citizen
on the street could have happened by chance upon this scene, I spoke,
and the man with the cat eagerly responded to my greeting. I asked him
if his cat could talk. He said he could, and if I would pull over on
the side street he would show me. I did, and he did. The cat was
wearing a collar, two harnesses and a leash. Held and stroked by the
man Blackie said “I love you” and “I want my
Mama.” The man then explained that the cat was the sole source of
income for him and his wife and requested a donation which was
provided. I felt that my dollar was well spent. The cat was
entertaining as was its owner. Some questions occurred to me about the
necessity for the multiple means of restraint and the way in which the
man held the cat's paw when the cat was asked to talk. However, these
are not matters before the Court and are beyond the purview of a
federal judge. I do not know if the man whom I saw with the cat was the
plaintiff Mr. Miles.
This sequence has not been considered as evidence or as an
uncontroverted fact in the case. It is simply stated for the purpose of
a disclosure to the parties of the chance contact.
A. The Cat
Carl and Elaine Miles are an unemployed, married couple who own
“Blackie, The Talking Cat.” Trained by Carl Miles, Blackie
allegedly is able to speak several words and phrases of the English
language. On June 22, 1981, plaintiffs were required by defendant to
obtain a business license. From May 15, to June 22, 1981, plaintiffs
had accepted contributions from pedestrians in the downtown Augusta
area who wanted to hear the cat speak. People would stop the plaintiffs
who strolled the streets with the cat. Upon being stopped, plaintiffs
would ask for a contribution. There is, however, evidence of the
plaintiffs soliciting an off-duty policeman for money in exchange for a
performance. Plaintiffs dispute this allegation. It is undisputed that
plaintiffs would ask for, and lived off, the contributions received for
Blackie's orations. Several complaints were received by the Augusta
Police Department regarding the plaintiffs' solicitations. Plaintiffs
were warned by the police not to solicit unless they first obtained a
Through their exploit of his talents, Blackie has provided his owners
with at *351 least the minimal necessities of life.FN2 Plaintiff Carl
Miles has entered into several contracts with talent agents in Georgia,
South Carolina and North Carolina. These agents have paid, at least in
part, the Miles' living expenses over a period of time. The evidence
does not clearly show that this support was provided during the
relevant time period of May 15th to June 22nd. It does, however, permit
the inference that prior to the plaintiffs' arrival in Augusta, they
intended to commercially exploit Blackie's ability.
FN2. That a talking cat could generate interest and income is not
surprising. Man's fascination with the domestic feline is perennial.
People of western cultures usually fall into two categories. Generally,
they are ailurophiles or ailurophobes. Cats are ubiquitous in the
literature, lore and fiber of our society and language. The ruthless
Garfield commands the comic strips, the Cat in the Hat exasperates even
Dr. Seuss, and who hasn't heard of Heathcliff, Felix or Sylvester?
Historically, calico cats have eaten gingham dogs, we are taught that
“a cat can look at a king” and at least one cat has
“been to London to see the Queen.”
It is often said that imitation is the sincerest form of flattery. To
the animal world, I am sure that the sincerest form is
anthropomorphosis. The ailurophobes contend that anthropomorphosis
abounds, and that it is the work of ailurophiles. The ailurophiles say
that they do not anthropomorphize cats but, rather, that cats have such
human qualities as they may condescend to adopt for their own selfish
purposes. Perhaps such was the case with Saki's ill-fated Tobermory,
the cat who knew too much and told all, who, when asked if the human
language had been difficult to learn, “···
looked squarely at [Miss Resker] for a moment and then fixed his gaze
serenely on the middle distance. It was obvious that boring questions
lay outside his scheme of life.”
For hundreds, perhaps thousands of years, people have carried on
conversations with cats. Most often, these are one-sided and range from
cloying, mawkish nonsense to topics of science and the liberal arts.
Apparently Blackie's pride does not prevent him from making an
occasional response to this great gush of human verbiage, much to the
satisfaction and benefit of his “owners.” Apparently, some
cats do talk. Others just grin.
Carl Miles, in his deposition of April 23, 1982, stated at pages 35-36
that prior to June 22, 1981, he would ask for a contribution when
people asked to hear his cat talk. From May 15, 1981, to June 22nd, he
received enough contributions, usually $.25 or $.50 each, to pay his
weekly rent of $35.00 and purchase other necessities, except for a
two-week period in which he used money from his savings. Miles
Deposition,at p. 38. He and his wife were otherwise unemployed, with no
other income. Plaintiffs would walk, with the cat, in the vicinity of
Broad and Greene Streets, major avenues of motorized and pedestrian
traffic, for several hours a day. Deposition of Elaine Miles,at p. 13.
Thus, they were regularly engaged in a pursuit yielding income however
The plaintiffs' commercial interest in Blackie is well established. It
is undisputed that before they moved to Augusta and after the business
license was obtained, Carl Miles entered into several agreements with
talent, or booking, agencies in South Carolina, North Carolina and
Georgia. Carl Miles Deposition,at pp. 6-7, 21-23. Prior to June 22nd,
Blackie appeared on television and radio. For example, in 1980 Blackie
appeared on “That's Incredible,” a nationally televised
program, for $500.00. Also, plaintiffs' living expenses have been paid
in part by at least one promotional agency who had contracted with Carl
Miles. Although the activity recounted here occurred either prior to
the plaintiffs' move to Augusta or after June 22nd, it is relevant to
show the interest plaintiffs had in exploiting Blackie on a commercial
basis. This interest coupled with the near daily receipt of
contributions requested by the plaintiffs for performances by the cat
brings them well within the definition of occupation. Furthermore, the
question of obtaining a business license was not new to Carl Miles. He
had on previous occasions, in Charlotte and Columbia, inquired as to
the necessity of a license. Deposition,at pp. 19-20. He, therefore,
viewed his exploitation of the cat as a business activity for which a
license might be required. The fact that those cities did not require a
license does not alter *354 the nature of his activity or prevent the
City of Augusta from requiring one. Since they did not hold themselves
out as a charity, the plaintiffs cannot persuasively argue that their
activity did not require a license. The ordinance is not impermissibly
With respect to section 4 of the ordinance which grants the mayor
discretionary power to require a license, it is unnecessary to address
plaintiffs' vagueness attack. Nowhere in the record does it appear that
this section was invoked to require plaintiffs' licensing. The
licensing requirement came from section 2 of the ordinance. Even if
section 4 were declared void for vagueness, it would not affect the
outcome of this case inasmuch as it was not applied to plaintiffs and
its demise would not affect the validity of section 2. See Broadrick v.
Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973).
 Defendant City Council of Augusta filed its own motion for
summary judgment. Most issues raised in its motion have been
sufficiently covered in the discussion of the plaintiffs' motion.
Repetition will be of little benefit. One point raised in defendant's
motion that needs to be briefly addressed refers to plaintiffs' claim
that their right to equal protection was violated by the license
requirement. The plaintiffs' contention is without merit, and defendant
 Plaintiffs fail to show the manner in which they were denied
equal protection. There is no evidence of purposeful discrimination, if
there was any discrimination at all. Furthermore, the ordinance is not
arbitrary and without rational foundation. The fact that the ordinance
does not specifically mention a “talking cat” but instead
contains a catch-all clause does not, under the circumstances, raise
the requirement of a license to the level of an equal protection
violation. Also, the fact the plaintiffs' tax was a different amount
than that required of other businesses does not constitute a violation.
Revenue laws of states and municipalities do not have to be applied
uniformly class to class. Lehnhausen, supra. The resultant inequality
does not render the ordinance unconstitutional in the case at bar. See
Alford v. City of Lubbock, Texas, 664 F.2d 1263 (5th Cir.1982). Only if
the plaintiffs demonstrate that the ordinance as applied to them is a
form of “hostile and oppressive discrimination” will the
ordinance fall. Lehnhausen, supra, 410 U.S. at 364, 93 S.Ct. at 1006.
As no such showing has been made by the plaintiffs, the ordinance
retains its presumption of validity. Alford, supra, at 1266.
Miles v. City Council of Augusta, Ga.
551 F.Supp. 349