State of Missouri, ex rel., William A. Zobel, Relator, v. Honorable Don E. Burrell, Judge of the Circuit Court of Greene County, Missouri; and The Humane Society of Missouri, Inc.; and Carthage Humane Society, Inc., Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, ex rel., William A. Zobel, Relator, v. Honorable Don E. Burrell, Judge of the Circuit Court of Greene County, Missouri; and The Humane Society of Missouri, Inc.; and Carthage Humane Society, Inc., Respondents. Case Number: 26928 Handdown Date: 04/22/2005 Appeal From: Original Proceeding in Mandamus Counsel for Appellant: Counsel for Respondent: Opinion Summary: None Citation: Opinion Author: PER CURIAM Opinion Vote: PEREMPTORY WRIT IN MANDAMUS ORDERED TO ISSUE. Prewitt, Parrish, Garrison, Barney, Rahmeyer, JJ., and Bates, C.J., concur. Shrum, J., concurs in separate opinion filed. Opinion: William A. Zobel has filed a Petition for Writ of Mandamus against the Honorable Don E. Burrell, the Humane Society of Missouri, Inc., and the Carthage Humane Society, Inc. In the interest of justice as permitted by Rule 84.24(j), (FN1) the Court dispenses with issuance of a preliminary order, answer, further briefing and oral argument and issues a peremptory writ in mandamus. We find that we have no jurisdiction in this matter over the Humane Society of Missouri, Inc., or the Carthage Humane Society, Inc., and thus we deny the petition for Writ of Mandamus against both of those parties. At issue is whether section 578.018 (FN2) authorizes the Respondent Judge Don E. Burrell to grant permission to the Humane Society of Missouri and the Carthage Humane Society to humanely dispose of the horses and their offspring, which were placed in their care by the Greene County Sheriff after their impoundment under Search

Warrant 05SW001. We find that it does not. Although said Respondent Judge Don E. Burrell had the authority to impound the animals and place the custody of the horses in the care of a veterinarian, the appropriate animal control authority, or animal shelter, he did not have the authority to allow either humane society to determine how to humanely dispose of the animals. We, therefore, order Respondent Judge Don E. Burrell to vacate paragraph six of his order of April 12, 2005, in IN RE search warrant issued 1/8/05, No. 05SW001. In so finding, we note that section 578.016 specifically provides that an abandoned animal may be put up for adoption or humanely killed. Section 578.018 contained similar language until 1993, when this section was amended by the General Assembly. The earlier version of section 578.018.2, (FN3) provided that, [a]ny person incurring reasonable costs for the care and maintenance of such animal shall have a lien against such animal until the reasonable costs have been paid, and may put up for adoption or humanely kill such animal if such costs are not paid within ten days after demand. Any moneys received for an animal adopted pursuant to this subsection in excess of costs shall be paid to the owner of such animal. The amendments to section 578.018 in 1993 significantly restricted the permissible dispositions available to the court because the authority to dispose of an animal by adoption was removed from the statute, and disposition by humane killing was limited to those circumstances in which the animal "is diseased or disabled beyond recovery for any useful purpose." The special lien right provided by section 578.018 was also eliminated when this statute was amended in 1993, but the General Assembly made no change to the general lien rights granted to a humane society that keeps or boards an impounded animal. See sections 430.150-430.165. The parties' suggestions indicate that both of the humane societies have availed themselves of this civil remedy by initiating actions in Jasper County and St. Louis County to foreclose their liens on the horses. Since those actions are not pending before Respondent Judge Don E. Burrell, there is no issue before this Court concerning any such liens, and this order is not intended to affect any such claims. We do note, however, that section 430.210 authorizes a lien claimant to obtain possession of an animal and hold it "subject to such judgment as he shall recover" in the lien foreclosure action. Respondent Judge Don E. Burrell is ordered to strike paragraph 6 in his order of April 12, 2005, IN RE search warrant issued 1/8/05, No. 05SW001. Footnotes: FN1. All rule references are to Missouri Court Rules (2005). FN2. All statutory references are to RSMo 2000 unless otherwise indicated.

FN3. RSMo Supp 1983. Separate Opinion:

578.018 and the permissible limits of Respondent's authority thereunder. I note that by not prescribing a procedure for "humane disposition" (such as ordering a public sale of marketable animals), Respondent has given the respective humane societies carte blanche over the animals while affording no protection to Relator. In the absence of guidelines, or standards, or a procedure for continued trial court supervision and review, the humane societies are free to give away the animals, or give them up for adoption for fees less than the animals' fair market value, or otherwise dispose of them in a manner that unfairly and unreasonably impacts Relator. I am not persuaded the legislature intended such a result when it enacted the statute. As with the majority opinion, I also hold the view that this court's decision is not intended to affect lien claims currently being asserted by the respective humane societies. It is my view, however, that Respondent should not be precluded from entering an order of disposition that addresses the concerns expressed above. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.