551 F.Supp. 349
United States District Court,
S.D. Georgia,
Augusta Division.
Carl M. MILES, et al., Plaintiffs,
v.
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 protection clause.
Ordered accordingly.

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.
ORDER


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.
I

PLAINTIFFS' MOTION

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 follows:
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 business license.
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 small.
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 vague.
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).

II

DEFENDANT'S MOTION

[13]  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 must prevail.
[14]  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.
D.C.Ga.,1982.
Miles v. City Council of Augusta, Ga.
551 F.Supp. 349

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