The opinion
BRATCHER, District Judge
(dissenting).
I feel constrained to dissent from the majority holding that KRS 376.-280(1) represents sufficient state involvement in the private conduct of the creditor to constitute action taken under color of state authority as delineated in 42 U.S.C. § 1983 . The conduct being challenged here is similar to the activities previously attacked in William Gary v. Henry Darnell, t/d/b/a Hank Darnell Motors, Civil No. 7752-B (October 15, 1973), wherein this Court, relying on what it considered to be settled authority, determined the complained-of action to be “self-help” and therefore not within the purview of the Civil Rights Act and the due process protections of the Fourteenth Amendment. Relying on the reasoning in Oller v. Bank of America, 342 F.Supp. 21 (N.D.Cal., 1972); Kinch v. Chrysler Credit Corp., 367 F.Supp. 736 (E.D.Tenn., 1973); Huber v. Union Planters National Bank, Civil No. 72-264 (W.D.Tenn., 6/22/73); and Turner v. Impala Motors, Civil No. C-73-60 (W.D.Tenn., 6/15/73), it was concluded that the Commonwealth was not involved in a meaningful way because the creditor (or his agent) acted without the assistance or participation of any state official in independently taking possession of the security upon the debt- or’s default.
It should also be remembered that Reitman v. Mulkey, 387 U.S. 369 , 87 S.Ct. 1627 , 18 L.Ed.2d 830 (1969), which the majority feels justifies a further expansion of the boundaries of the state action doctrine, “grew out of the pervasive evil of racial discrimination, which demands peculiarly stringent procedures for eradication. No racial considerations infest the present case”. Pease v. Havelock National Bank, 351 F.Supp. 118 (D.C.Neb., 1972); Oller v. Bank of America, supra.
Further, the Court in Oiler, supra, speaking to this issue, observed:
“It is difficult to imagine any statutory provision that does not, in some way, control human relationships. To say, as plaintiff seems to contend, that all human behavior which conforms to statutory requirements is ‘State action’ or is ‘under color of State law’ would far exceed not only what the Framers of the Civil Rights Act ever intended but common sense as well.”
Additionally, Palmer v. Columbia Gas Co. of Ohio, 479 F.2d 153 (6th Cir., 1972), is distinguishable from the case at bar. The activities of the defendant in operating a public utility were quasi-governmental in scope and obviously “state action”.
The remedy now before this three-judge district court is executed privately, without the direct invocation of state power. See Nichols v. Tower Grove Bank, 362 F.Supp. 374 (E.D.Mo., 1973). The fact that the state has enacted legislation does not, per se, create “state action”. See Bond et al. v. Dentzer et al., 494 F.2d 302 (2nd Cir., 1974). The statute is regulatory in nature and purpose, imposed to protect those having legal or registered' title to the vehicle. The notice provision provided for in KRS 376.280(1) assures such an owner of the opportunity to protect this interest.
A garageman who provides a service without any security for the labor performed except possession of the vehicle justifiably expects to be able to levy on this security to satisfy the indebtedness without the necessity of commencing a lawsuit to establish the debt. Although the statute does not specifically provide for a hearing, it obviously does not preclude the lienee from instituting an in *496 dependent action to test the lienor’s claim. True, the burden is on the lienee to act affirmatively; nevertheless, the existing state procedures for redress of alleged abuses by the garageman are preferable to mandating a hearing in each and every case where payment for services performed is withheld. Yet, the plaintiff claims his constitutional rights have been infringed since the garage-man is not required to prove the obligation in every case, irrespective of the debtor's reasons for refusing payment.
I cannot agree, nor does constitutional due process demand, such, a result. It is inconceivable to me that a bailor whose property is being wrongly denied would not avail himself of the appropriate judicial remedies to protect his property rights. For a federal court to hold this type of regulatory action unconstitutional when the Commonwealth provides adequate protections would be to distort the allocation of responsibility under the Constitution.
For the foregoing reasons, it is my confirmed belief that KRS 376.280(1) represents state inaction; therefore, federal jurisdiction has been improperly invoked and the complaint should be dismissed.
MOTION TO ALTER AND AMEND ORDER
ALLEN, District Judge.
Following the entry of the opinion and order on April 22, 1974, holding that K.R.S. § 376.280(1) was unconstitutional, plaintiff moved to alter and amend the order and to declare K.R.S. § 376.270 unconstitutional and in violation of the Fourteenth Amendment of the United States Constitution.
It will be recalled that the Court did not pass on that question in its original opinion and order since, on oral argument, plaintiff’s counsel had apparently abandoned attack upon the statute. However, defendant’s counsel has agreed that he would not seize upon this tactical error, and that the matter could be presented to the Court for decision.
K.R.S. § 376.270, insofar as pertinent, provides:
“Any person engaged in the business of selling, repairing or furnishing accessories or supplies for motor vehicles shall have a lien on the motor vehicle for the reasonable or agreed charges for repairs, work done or accessories or supplies furnished for the vehicle, and for storing or keeping the vehicle, and may detain any motor vehicle in his possession on which work has been done by him until the reasonable or agreed charge therefor has been paid.”
Since the entry of our original opinion and order, the Supreme Court, in Mitchell v. W. T. Grant Company, No. 72-6160, 416 U.S. 600 , 94 S.Ct. 1895 , 40 L.Ed.2d 406 , decided May 13, 1974, in a 6 to 3 decision, cast some serious doubt as to the viability of Fuentes v. Shevin, 407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972). While the majority opinion seeks to distinguish Mitchell from Fuentes , Mr. Justice Stewart, in his dissenting opinion, declares that Mitchell is a repudiation of Fuentes and should be demonstrated as such.
While Mitchell is not expressly controlling here, some consideration should be given to the reasoning contained therein and the holding. The holding is to the effect that personal property' may be sequestered by an ex parte application of a creditor who has made an installment sale of goods to petitioner and whose affidavit has asserted delinquency and prayed for sequestration to enforce a vendor’s lien. On p. 1900 of 94 S.Ct. of the majority opinion, Mr. Justice White states:
“We cannot accept petitioner’s broad assertion that the Due Process Clause of the United States Constitution guaranteed to him the use and possession of the goods until all issues in the case were judicially resolved after *497 full adversary proceedings had been completed.”
On p. 1901 of 94 S.Ct., Mr. Justice White states:
“[T]here is scant support in our cases for the proposition that there must be final judicial determination of the seller’s entitlement before the buyer may be even temporarily deprived of possession of the purchased goods.”
Another point made by the majority opinion is that there is a real risk that the buyer in possession of personal property will conceal or transfer it to the damage of the seller.
We are cognizant that Mitchell is not dispositive here, see footnote 14 on p. 1906 of the majority opinion. Therefore, we will examine the cases which have directly ruled upon the constitutionality of automobile detention statutes, which are as follows: Adams v. Department of Motor Vehicles, 11 Cal.3d 146 , 113 Cal. Rptr. 145 , 520 P.2d 961 (deed. April 10, 1974); Straley v. Gassaway Motor Company, 359 F.Supp. 902 (D.C.S.D.W.Va.1973); and Ford v. Dean’s OK Tire Store, Inc., Civil No. L.V. 1974 (D.C. Nev. entered February 9, 1973).
In addition, counsel have referred to Quebec v. Bud’s Auto Service, 32 Cal. App.3d 257 (1973). However, insofar as we are aware, a rehearing has been granted in that case and it is no longer precedent under California procedures, see our order dated May 22, 1974.
In Ford v. Dean’s OK Tire Store, Inc., supra, the court entered a 4 page findings of fact and conclusions of law prepared by the attorney for the plaintiffs. In that action, the plaintiffs had purchased tires from the defendant on credit and had made periodic payments for 5 years. The account became delinquent and the defendant came to plaintiffs’ home and towed away the personal vehicle of the plaintiffs without any prior notice or hearing, and continued to hold the vehicle, imposing as a condition for return of same that plaintiffs pay the entire sum alleged to be due on their account as well as the towing and storage charges.
The statutes involved in Nevada, N.R. S. §§ 108.270 and 108.280, are apparently identical in their language with the provisions contained in K.R.S. § 376.270. Without any discussion, the court, in its conclusions of law, declared the detention and lien statutes of Nevada as well as the sale statute unconstitutional as violating the Due Process Clause of the Fourteenth Amendment. Therefore, apart from its holding, Ford is of little value to the reasoning processes to be used in arriving at a correct decision. Ford also might be distinguished on the grounds that possession of the vehicle was in the plaintiffs and was taken from them forcibly, whereas in the instant action, possession was given voluntarily to the defendant. However, we prefer not to base our decision on these distinguishing characteristics.
In Straley v. Gassaway Motor Company, Inc., supra, the plaintiff alleged that she had agreed to have repairs made on her automobile with the defendant, who estimated the repairs to be between $60 and $70, but, who, upon making the repairs, charged her $230, a sum greater than the vehicle was worth. She asked that the West Virginia statutes allowing the garageman to retain possession of her automobile and to sell it in satisfaction of his bill be declared unconstitutional, which request the district court satisfied. While Judge Hall found the West Virginia detention statutes to be unconstitutional, he did not enter into any detailed discussion as to the reasons, other than stating he relied upon Sniadach v. Family Finance Corp., 395 U.S. 337 , 89 S.Ct. 1820 , 23 L.Ed.2d 349 ; Fuentes v. Shevin, 407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 ; and Shaffer v. Holbrook, 346 F.Supp. 762 (D.C.S.D.W.Va.1972), which holds the West Virginia landlord summary distress procedures to be unconstitutional.
Judge Hall did state that the West Virginia lien enforcement procedures were less satisfying of Due Process re *498 quirements than were the landlord distress procedures, since the repairman already had the personal property in his possession, was not required to make an affidavit, give a bond, or institute an action.
Finally, we come to Adams v. Department of Motor Vehicle, supra. There the petitioner challenged the constitutionality of California’s garage-man’s labor and materials lien. In trying the issues in that case, the court discussed the question of interim retention. The court reasoned that Sniadach v. Family Finance Corp. was not controlling, since it involved a claim of a garnisheeing creditor which was a general claim unrelated to the specific property seized. The court further held that while claims involving conditional vendors or chattel mortgagees arose out of transactions involving the seized chattels, the creditors, in those instances, had not mixed their own labor with the chattel or added to it materials to which they originally had a right of possession. The court then went on to reason that even if a garageman’s lien is not superior to that of a conditional vendor or a chattel mortgagee, there was no state action since the creditor was in rightful possession of the property at the time he asserted his lien, and that to strike down his lien would be to alter the status quo in favor of the owner, thereby depriving the garageman of his possessory interest.
In light of our opinion and order of April 22, 1974, consistency demands that we not accept the reasoning of the Adams court insofar as it pertains to the absence of state action. However, we do believe that the reasoning with regards to preserving the status quo and protecting the laboring and property interest of the repairman are preservative factors in reaching the conclusion that Constitutional Due Process is not violated by the detention features of K.R.S. § 376.270. As is pointed out in Adams , the repairman not only has a possessory interest arising from his performance of labor and adding of materials, but he is vested with the actual physical possession of the automobile by the voluntary action of its owner.
Finally, the detention features do not allow the extinction of the owner’s titular interest in the automobile but merely allow its detention until such time as the claims of the litigants can be determined. As stated in Adams , if the owner remains unwilling or unable to pay the claim, the parties are relegated to the remedies provided by common law or statute. These remedies should suffice to determine the actual rights of the parties after full Due Process hearings, and it would be to the ^dvantage of both parties, under ordinary circumstances, to press for a speedy hearing, since the repairman would be desirous of being compensated for his efforts, and the owner would be desirous of regaining speedy possession of the automobile.
Before concluding, we take note of the argument made by the defendant that the Court should abstain from deciding the issue of the constitutionality of the detention statute in light of the stipulation entered into between the parties to the effect that they were in disagreement as to whether plaintiff authorized defendant to perform repairs and whether or not repairs were actually performed. With regards to this contention, we note that it was implicitly overruled in the previous opinion and order and the Court does not feel disposed to retreat from that position.
In conclusion, it is held that the detention provisions of K.R.S. § 376.270 are constitutional.
It is ordered that the motion of the plaintiff to amend and alter the opinion and order of April 22, 1974 be and it is hereby overruled.