100 Ga. 434 | Ga. | 1897
It is somewhat difficult to determine the status of the dog as property in this State; it is not difficult to show that the owner has a property right in the animal, but it is difficult to define the nature and extent of it. This right seems to be better defined at common law than it is by the construction which this court has put upon our statutes. Our con.stitution, art. 7, sec. 2, par. 1, impliedly recognizes dogs as property. It provides that the General Assembly may impose a tax upon such domestic animals as from their nature . and habits are destructive of other property. It is true that this power to tax partakes of the nature of a police regula- • tion and is made the exception to our uniform and ad valorem system of taxation, but the constitution evidently intends to and does denote the dog as a domestic animal and by reference classes this animal with other property. Section 3822 of the Civil Code recognizes the ownership of ■ dogs, in that it makes the owners liable to suit for the recovery of damages for injuries inflicted by their dogs under certain circumstances. ¿Section 164 of the Penal Code makes the dog eo nomine a subject of simple larceny. This provision, however, does not seem to bring theflog as property to any high degree, because, in speaking of all other • domestic animals, it is provided, “and also a dog” may be the ■ subject of simple larceny; implying two things: that he was not theretofore a subject of simple larceny, nor was he a domestic animal, j To one of us, at least, a possible reason why the dog may not by common consent have been accorded a place among domestic animals not more worthy and even less valuable, is suggested by a learned writer (Grotius) when he says, “The reason why some creatures fly and avoid us, is not the want of gentleness and mildness on (their paalt, but ion ours.” In Jemison v. Southwestern Railroad, 75 Ga. 444, which was an action against a rail
Dogs have been held to be property by the courts in the District of Columbia, in Kansas, Texas, Connecticut, Tennessee, Michigan, Nebraska, Dtah, and perhaps in other • States. A contrary ruling has been made in several of the other States. His status seems to be more- clearly defined by - the common law. The compilers of the American & English Ency. of Law, vol. 1, p. 584, lay down the proposition that “at common law the dog is considered a tame, harmless and docile animal.” If this be true, and our investigation does - not bear it out- to its full meaning, then the owner can have an absolute property in such animals because “animals which are of a tame and domestic nature are the subjects of ' absolute property.” American & English Ency. of Law, vol. 1, p. 572. The latter proposition is supported by refer-ence to a number of authorities» We however think that:
In the case now under’ consideration, the defendant in '■error brought an action of trover in a justice’s court to recover possession of his dog. A demurrer was filed to the ■proceeding in that court, which was overruled by the magistrate, and the case taken to the superior court by writ of •certiorari; whereupon the judge of the latter court held that ’the ruling of the magistrate was correct. So do we, on the ■■authorities, before referred to. The action of trover, while changed with us in some respects, was originally a special •action on the case in favor of any person who had a general "or special property in goods against any person who wrongfully withheld them from his possession. The special or -qualified property which has been shown to exist in animals mf this character is sufficient to support the action. The ac
Judgment affirmed.