In his petition for rehearing, counsel for petitioner suggests that in the decision of the case we overlooked the main point upon which he relied, and misconceived his point "as to the force of section 3366, Political Code." The main point referred to, although stated by counsel in his petition in the nature of a number of queries, is briefly this: That the ordinance in question represents the taxing rather *Page 16 than the police power, because the license provided for therein amounts to a per capita tax upon dogs, and therefore there is imposed by the ordinance a restriction upon the ownership of those animals. In other words, his contention is that the ordinance authorizes a tax upon the ownership of dogs and not an attempt to regulate their use. We think that perhaps in one part of the main opinion we unhappily used language which might imply that we held that a license for regulatory purposes might be imposed upon the ownership of dogs. What we intended to say then and what we do say now is that a license tax upon dogs may be imposed, as an incident of the regulation of their management or control, or, as counsel prefers to express it, of their use. The very terms of the ordinance before us show it to be a regulatory measure. It provides that the owner of the dog, upon the payment of the required license tax, shall attach to a collar to be worn by said dog a seal or device as evidence of the ownership of the dog and of the payment of said license tax. It further provides for the enforcement of a penalty for a noncompliance with the law, or "for the doing of some prohibited act." And in that manner the power of police is exercised. (Merced County v. Helm, 102 Cal. 163, [36 P. 399].) The ordinance also provides for the destruction of a dog upon which a license tax has not been paid, and which does not, therefore, bear a collar to which is attached the seal or device referred to. All these provisions, in their very nature, demonstrate that the ordinance is intended as an exercise of the police and not of the taxing power. No American court has ever questioned the right under the police power to regulate the control, management or use of dogs. The dog became a domestic animal originally by virtue of legislative enactments, and but for statutes imparting to him the status of property in all the states and countries where the common law is the foundation of their jurisprudence, the dog would now have no standing before the law, except where, as in the case of other wild animals, he was reduced to possession, and even then, should he depart from his possessor without animo revertendi, he thus placed himself again beyond the protection of the law. As illustrative of some of the reasons upon which laws regulating property in dogs are founded we shall here present extracts from some of the many authorities upon the subject. In 67th American State Reports, at page 298, the *Page 17 editor, in an extended note upon the subject, says: "That property in dogs may be subjected to regulation by the state in the exercise of its police power cannot be questioned. . . . Such regulation usually runs in the direction of imposing license taxes upon the keeping of dogs, and it is well settled that the summary destruction of dogs may be authorized when such regulations are not complied with."
In Jenkins v. Ballantyne, 8 Utah, 245, [30 P. 760], it is said: "The police power of the state has been used to regulate and control property in dogs to a greater extent than property in any other class of domestic animals. It is a peculiar kind of property. Such animals increase rapidly; they are usually of but little expense to their owners when allowed to run at large; and in a domestic state they retain to a considerable degree their wild, mischievous and ferocious natures. Their trespasses and invasions of rights not belonging to their masters are often such as are impossible to prevent, and when the mischief is done sometimes it is impossible to identify the dog or his owner, and when found the latter is sometimes as irresponsible as the former; in fact, judicial process and inquiry is altogether inadequate to redress such wrongs. Hence such laws and ordinances as those in question are adopted, requiring the owner of dogs to register and collar them. By such means the owner is ascertained and made responsible, and all dogs not deemed worth the trouble and expense of registration are outlawed when at large and liable to be killed."
Counsel undertakes to discover a distinction between the law as expounded by the courts in certain other jurisdictions and the law in California because in the former the dog is only qualified or base property, whereas in this state the statute impresses him with the full status of property. So far as the vital question involved in this discussion is concerned, it can make no difference whether the dog is property or not. The power in the state to regulate its control or use is not dependent upon that proposition. The dog is not, because of having been constituted property by legislative enactment, hedged about by a sacredness or surrounded by a halo that will prevent the police power from extending to him if the governing or other duly constituted authorities of an incorporated city or town deem it necessary for the peace and comfort of the *Page 18 community to regulate its use or control within the limits of such city or town. Ordinances prohibiting the running at large within the limits of towns and cities of horses, cows, sheep, hogs and other useful domestic animals, and authorizing their impounding when found so running at large, and even their sale, if not redeemed, might be said with equal reason to restrict in effect the ownership of those animals within the limits of such cities and towns, and such ordinances have been upheld as a wholesome exercise of the police power. Of course, such ordinances are designed only as a regulation of the use and management of those animals, and do not in fact restrict or interfere with ownership. The ordinance here does not, it will be readily noted, either expressly or by implication, attempt to interfere with the ownership of dogs. As stated in the main opinion, the authorities could not by ordinance or otherwise disturb the right of ownership of those animals. Any person ambitious to own a dog of any kind which may best suit his fancy may not only exercise the right of such ownership, but may keep and maintain the animal within the limits of Ukiah city, if he complies with the regulations as to its management, control or use prescribed by the ordinance. The owner of a cow must, in order to maintain and keep that useful animal within the limits of a city or town, obey the regulations of such city or town with reference to such animals, or be subjected to the penalties of the ordinance. And his ownership of the cow is thus in no manner or degree interfered with. In short, the terms of the ordinance only involve the application of the familiar principle that every person shall so use his own property as not to injure the rights of other persons or of the public.
We do not think we misconceived counsel's position as to the effect of section 3366 of the Political Code. His argument upon this point is that that section at the time of its enactment declared the full power of a municipal corporation to license for regulation. What we said in the main opinion was: "Nor is there anything inconsistent between the provisions of the ordinance in question and those of section 3366 of the Political Code," and then declared that incorporated cities and towns derived their power to make all needful police regulations from the constitution itself. Our position in the main opinion was, and we know of no reason for changing it, that section 3366 of the Political Code does not, nor *Page 19 has the legislature the right to do so at all, limit the power granted by the constitution to counties and to cities and towns to which that section may be applicable to adopt such police regulations as they may decide to be requisite for their welfare, and if a license tax be deemed to be essential to the full accomplishment of the purposes of such regulations, any attempted legislative inhibition against it is absolutely void. The only qualification to be found in this constitutional grant of power to counties and incorporated towns and cities is that such local regulations shall not conflict with general laws. By this is clearly meant that the legislature may itself, by general laws, exercise the power thus conferred upon such cities and towns and upon counties, and that local regulations adopted by municipal boards not in harmony with such general laws would, of course, be void and inoperative. In other words, the legislature may itself exercise the power granted by the constitution, but cannot limit the exercise of such power either by itself or by the local governing bodies. As we understand counsel, his contention is that the section of the code referred to limits the power of licensing for regulation to a "business" of some character, and that a dog is not a "business" in contemplation of that section; hence any attempt to license a dog as an incident of a regulatory measure is contrary to the section named. The statement of the proposition operates as its own refutation. Moreover, when counsel admits, as he appears to do, the right of a municipal corporation to regulate property in a dog or the use thereof, he necessarily admits that such regulation may take the form of a license, for it has never been doubted for a moment, either by the text-writers or the courts, that when a business or other matter which may be the subject of police regulation is so regulated, a license may be required as a condition to carrying on such business or to the maintenance of whatever may be the subject matter of such regulation, and a license fee imposed. The fee exacted for such license is not, as we think we have shown, intended for purposes of revenue, but is designed to cover the expense of supervision or the proper enforcement of the ordinance. In a case like the one at bar, the fee is directed to the accomplishment of a double object: 1. To meet the expense of enforcing the ordinance; 2. The discouragement of the keeping of dogs within the limits of incorporated cities and towns, etc. *Page 20
Counsel appears to be at a loss to understand what privileges a dog owner receives in return for the license fee. The obvious answer to the suggestion is that a dog upon which the license tax has been paid is, under the special protection of the law, suffered to run at large with impunity. The paramount consideration in the adoption of such a regulation, however, is in the protection it affords the citizens of the city or town against the indiscriminate running at large of dangerous and nuisance-producing dogs without responsible sponsors.
A rehearing is denied.
Burnett, J., and Chipman, P. J., concurred.