APPEAL from the Circuit Court of Bureau County; the Hon.
THOMAS R. CLYDESDALE, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 3, 1979.
Plaintiffs Victor and Margot Sturm appeal from the order of the circuit court which dismissed their complaint against defendants John Block, the Illinois Hooved Animal Humane Society, Inc. (hereinafter referred to as the "Humane Society"), and Ruth McDonald and Avis Zurliene, agents of the Humane Society. The Sturms had filed suit seeking, in pertinent part, declaratory relief with respect to certain portions of the Humane Care for Animals Act (Ill. Rev. Stat. 1977, ch. 8, pars. 701-716) (hereinafter referred to as the Act) and to certain actions taken by the named defendants in the enforcement of the Act. The other counts of the complaint sought relief by way of damages for conversion and wanton and reckless conduct on the part of defendants McDonald and Zurliene and the Humane Society. No issue is raised on the appeal concerning those counts of the complaint. On motions by the defendants, the trial court dismissed the complaint for declaratory relief, basing that dismissal upon the failure of the Sturms to pursue allegedly available remedies under the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, pars. 264-279) (hereinafter referred to as Review Act). On this appeal, the Sturms urge as error the dismissal of their complaint, and they raise various issues with respect to the availability of declaratory relief, under the circumstances herein, and the applicability of the Review Act. Also raised is an issue as to the immunity of the defendants, as agents of the State of Illinois, from the instant suit, which immunity was partially relied upon by the trial court in its conclusion that it lacked jurisdiction over the declaratory action.
1 Where an appellate court reviews the granting of a motion to dismiss, it is an elementary proposition that all well and properly pleaded facts are to be taken as true. (Kendall v. Kendall (1978), 71 Ill.2d 374, 375 N.E.2d 1280.) The facts, as gleaned from the pleadings and other supporting material in the meager record on appeal, indicate that in 1977 the Sturms owned six registered, purebred Arabian horses. In 1977, the Humane Society began an investigation into the care and treatment being afforded the animals by the Sturms. (See Ill. Rev. Stat. 1977, ch. 8, pars. 708-710.) As a result of the investigation, conducted by approved humane investigators as agents for the Humane Society and the State of Illinois, the investigators determined that violations of the Act were present in the manner in which the Sturms cared for their animals. Pursuant to the Act's provisions, notices of violation were sent to the Sturms in October 1977, and again in January 1978. (See Ill. Rev. Stat. 1977, ch. 8, par. 711.) The notices in each case cited violations of section 3(a) and (d) of the Act (Ill. Rev. Stat. 1977, ch. 8, par. 703(a), (d)). In pertinent part, that section provides:
"Each owner shall provide for each of his animals:
(a) sufficient quantity of good quality, wholesome food and water;
(d) humane care and treatment."
The notices gave the Sturms 48 hours to correct the violations, warning them that failure to take corrective action could result in criminal penalties and fines, as well as in the impoundment of the animals, an assertion of a lien for the costs of impoundment, and a possible sale of the animals to satisfy the lien. While the notice of January 17, 1978, is more relevant to the issues on this appeal, that notice is not in the record. The notice of October 26, 1977, present in the record by way of supplement, informed the Sturms that the violations then present could be corrected with the "separate individual feeding of quality hay and grain as advised by [their] veterinarian." In their briefs to this court and to the circuit court, the Humane Society argued that the violations by the Sturms resulted from the horses being confined to stalls, allowed to stand in liquid manure, and, at times, being without food and water.
On January 20, 1978, three days after the January 17 notice of violation, the Humane Society, in the persons of Ruth McDonald and Avis Zurliene acting as approved animal investigators under the Act, impounded the six horses while they were lodged at the Bureau County Fair Grounds. In their briefs, defense counsel state that the impoundment was carried out only after the animals had been examined by a veterinarian and after authorization from the Department of Agriculture was secured. They also allege that a copy of the impoundment order was immediately forwarded to the Department. (See Ill. Rev. Stat. 1977, ch. 8, par. 712.) The notice of impoundment found in the record is addressed to the Sturms, dated January 20, 1978, and it states that the horses are being impounded by the Humane Society, pursuant to warnings given October 12, 1977, and January 17, 1978, and after examination by a Department veterinarian. The notice then recites the authority for the impoundment, being the Act (Ill. Rev. Stat. 1977, ch. 8, pars. 701-716), and it states that a lien for the costs of impoundment must be paid before the animals will be released and that the animals may be sold within seven days, if an owner does not claim them and satisfy all impoundment costs. The final sentence of the notice states:
"This notice shall be considered full and sufficient, and no further communication from the Humane Society shall be necessary."
It is signed by McDonald and Zurliene and by a representative of the Department of Agriculture. Also appearing in the record, again by way of supplement, is a copy of an emergency notice of violation, dated January 20, 1978, which states that the Sturms are in violation of section 3(a), (d) of the Act and that the animals are:
"* * * in such a deplorable state and condition that immediate action is essential. The subject animal(s) is (are) therefore impounded pursuant to the NOTICE OF IMPOUNDMENT accompanying this EMERGENCY NOTICE OF VIOLATION."
This notice, and, apparently, the notice of impoundment, were received by the Sturms on January 23, 1978. In their complaint, the Sturms allege that they made a demand for the return of the horses, or, alternatively, disclosure of their whereabouts, but that the defendants failed and refused to make such return or disclosure.
So far as the record indicates, the next action taken after the impoundment was the filing of a criminal complaint against the Sturms, alleging a violation of section 3(a) of the Act on the date of January 20, 1978, at the Bureau County Fairgrounds. Section 16 of the Act makes a violation of the Act's provisions a criminal offense. The record in the criminal action is before us as the supplemental record in the instant case. The judgment and decision in the criminal matter, dismissing the complaint and finding section 3(a) of the Act unconstitutional, are not before us on this appeal. The record in that cause, containing as it does material pertinent to the issues and circumstances of the ...