Collins v. Viceroy Hotel Corporation, 71 C 112.

• Decision Date: 02 February 1972
• Docket Number: No. 71 C 112.,71 C 112.
• Citation: 338 F. Supp. 390
• Parties: Lawrence COLLINS, Plaintiff, v. The VICEROY HOTEL CORPORATION, an Illinois Corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

338 F. Supp. 390

Lawrence COLLINS, Plaintiff, v. The VICEROY HOTEL CORPORATION, an Illinois Corporation, et al., Defendants.

No. 71 C 112.

United States District Court, N. D. Illinois, E. D.

February 2, 1972.

Seymour J. Mansfield, Donald J. Kerwin, Legal Aid Bureau, Chicago, Ill., for plaintiff.

Frank Friedman, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

NAPOLI, District Judge.

This is an action for declaratory judgment, injunctive relief and damages for the alleged violation of plaintiff's civil rights brought under 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments, with jurisdiction allegedly founded on 28 U.S.C. §§ 1331, 1343(3), 2201 and 2202.

The case is now before the Court on the plaintiff's motion for judgment on the pleadings as to Count I, or, in the alternative, for partial summary judgment declaring the Illinois Innkeepers' Lien Laws, Ill.Rev.Stat., 1969, Ch. 71, § 2 and Ch. 82, § 57, unconstitutional and permanently enjoining their enforcement by the defendants.

The Court finds that there is no genuine issue of material fact in this case with regard to Count I of the complaint. The uncontested facts are as follows. The plaintiff, Lawrence Collins, was a guest of the defendant Viceroy Hotel under an oral rental agreement from late December, 1968 until December 29, 1970, when he was locked out of his room. During that time, the agreed rental rate was $3.61 per day, payable on a weekly basis and in advance. On December 11, 1970, the plaintiff paid rent for a period up to and including December 21, 1970.

On the morning of December 29, 1970, the plaintiff left his room, allegedly to keep an appointment for a physical examination at the Cook County Department of Public Aid clinic. When he returned later in the day, the plaintiff found that the lock on his door had been "plugged" in such a way as to not admit his door key. Upon inquiry he was told by a hotel clerk that the "plug" would not be removed. At this time, his room still contained his personal property.¹

In their answer, the defendants admit that the plaintiff was not allowed to re-enter his room,² and that possession of his personal property was held under and by virtue of the provisions of the Illinois Innkeepers' Lien Laws, Illinois Revised Statutes, 1969, Ch. 71, § 2 and Ch. 82, § 57. On January 15, 1971, the plaintiff brought this action and moved for a temporary restraining order or preliminary injunction, which motion was heard and denied. On appeal, the Court of Appeals for the Seventh Circuit, on February 12, 1971, enjoined the defendants from disposing of the plaintiff's property and ordered that the plaintiff, upon posting of bond not in excess of nine days rental, be allowed to re-enter his room and remove his property. By agreement of the parties and without the posting of bond, the plaintiff's property was returned to him on March 4, 1971.

MOOTNESS

There is some suggestion from paragraph 20 of their answer that the defendants consider the case mooted by the return of the property to the plaintiff. In Powell v. McCormack, 395 U.S. 486, 496-497, 89 S.Ct. 1944, 1951, 23 L. Ed.2d 491 (1969), however, the Supreme Court stated that:

Simply stated, a case is moot when the issues presented are no longer "live" or the parties lack legally cognizable interest in the outcome. See E. Borchard, Declaratory Judgments 35-37 (2d ed. 1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers v. Mitchell, 330 U.S. 75, 86-94 67 S.Ct. 556, 562, 566, 91 L.Ed. 754 (1947): 6A J. Moore, Federal Practice ¶ 57.13 (2d ed. 1966).

In the instant case, the plaintiff in Count II of his complaint is seeking damages for deprivation of the property for the period it was held and this is a "remaining live issue." Furthermore, as the court stated in Klim v. Jones, 315 F.Supp. 109, 117 (N.D.Cal.1970), a case on all fours with the instant case:

Since any such recovery damages depends in part upon a determination by this court that the defendants acted pursuant to an unconstitutional statute, this action is not rendered moot by the return of the plaintiff's belongings.

Since plaintiff's claim for damages in Count II, as in Klim, is dependent on the resolution of his claim in Count I, the constitutional challenge to the Illinois Innkeepers' Lien Laws is a live issue which satisfied the constitutional requirement of a case or controversy. Count I has not, therefore, been rendered moot by the return of the plaintiff's property.

JURISDICTION

One of the basis for this action is alleged to be the Civil Rights Act of 1871, 42 U.S.C. § 1983, with jurisdiction founded on 28 U.S.C. § 1343(3).³ Title 42, United States Code, Section 1983 provides in pertinent part that:

Every person who, under color of any statute, * * *, of any State * * *, subjects, * * *, any citizen of the United States * * * to the deprivation of any rights, privileges or immunities secured by the Constitution or laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The question in this case is whether the defendants deprived the plaintiff of his right to due process "under color of" state law. As stated above, the defendants have admitted in paragraphs 11, 13, 16, and 17 of their answer that they invoked their rights under the Illinois Inn-keepers' Lien Laws to seize and hold the plaintiff's property.

In the much cited case of United States v. Classic, 313 U.S. 299, 325-326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), the Supreme Court stated that:

Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of" state law.

Although Classic dealt with the action of state officials, it has been widely interpreted to cover acts of private individuals acting in concert with state officials, Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1967), and to cover acts of private individuals exercising authority granted by state law. Hall v. Garson, 430 F.2d 430, 438-440 (5th Cir. 1970); McKinley v. Investors Realty & Management Corp., (N.D.Ill. March 26, 1971, 70 C 3224½); Santiago v. McElroy, 319 F.Supp. 284 (E.D.Pa.1970); Decarlo v. Joseph Horne and Co., 251 F.Supp. 935 (W.D.Pa. 1966).

The above cited cases find support in the rationale espoused by the Supreme Court in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), a case in which all of the parties were private individuals. Reitman involved a husband and wife who sued under certain California civil rights statutes alleging that the defendants had refused to rent them an apartment solely on account of their race. The trial court granted summary judgment to the defendants on the ground that the civil right statutes had been rendered void by the adoption of Art. I, § 26 of the California Constitution which authorized private discrimination. The California Supreme Court reversed, holding that since prohibited state involvement could be found where the State had merely taken affirmative action to make private discriminations legally possible, § 26 was unconstitutional and did not bar the action. The United States Supreme Court affirmed, stating that, "There is no sound reason for rejecting this judgment." Reitman, supra, 387 U.S. 376, 87 S.Ct. 1631.

This rationale, although involving in Reitman the Equal Protection Clause of the Fourteenth Amendment, is equally applicable where the State by its affirmative action has made deprivations of due process legally possible. The district court in Klim, supra, found, therefore, that Reitman was clear authority on which to find 42 U.S.C. § 1983 applicable when a California innkeeper seized a guest's property pursuant to the California innkeepers' lien statutes.

Since 42 U.S.C. § 1983 is applicable, this Court has jurisdiction under 28 U. S.C. § 1343(3) and it is not necessary to decide whether jurisdiction would properly be founded under the alternative basis of 28 U.S.C. § 1331. It should be noted, however, that a large number of cases support the view that § 1331 jurisdiction lies where the complaint, such as the one in the instant case, alleges the taking of property without due process of law, in violation of the Fourteenth Amendment. See Klim, supra, 315 F. Supp. 116 and the cases cited therein.

Although this Court has jurisdiction under § 1343(3), there is an additional issue which must be discussed before the Court reaches the merits of the plaintiff's claim, i. e., the convening of a three-judge court under 28 U.S.C. § 2281.

THREE-JUDGE COURT

The plaintiff by this action seeks, in part, an injunction permanently enjoining defendants from enforcing the Illinois Innkeepers' Lien Laws upon the ground that the laws are unconstitutional. Title 28, United States Code, Section 2281 provides that:

An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute * * *, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges * * *.

Although this Court has found that the defendants seized plaintiff's property "under color of" state law within the meaning of that phrase in 42 U.S.C. § 1983, this does not make the defendants officers of the State for purposes of 28 U.S.C. § 2281. As the Supreme Court stated in Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941), the three-judge court provision is not a "measure of broad social policy to be construed with great liberality," but rather, is "an enactment...