MEMORANDUM OPINION AND ORDER
ALLEN, District Judge.
This action, originally testing the constitutionality of K.R.S. 376,270 and 376.-280(1), but now limited to a challenge to the latter statute, arises out of the following fact situation:
In October, 1973, plaintiff’s 1965 Chevrolet Station Wagon was towed to a Texaco Station in Henryville, Indiana. Plaintiff sought the assistance of defendant Virgil Caldwell, a garageman located in Louisville, Kentucky, who agreed to a $50 towing fee to procure the car from the Texaco Station and hold it in Louisville until he was reimbursed by plaintiff. On October 7, 1973, Caldwell paid the towing fee to the Texaco Station and brought the automobile to Louisville to his garage. When Cockerel sought to reimburse Caldwell for [493]*493the towing fee, he was told that repairs had been made upon the automobile, on plaintiff’s authorization, and that the repair bill amounted to $132.25. Caldwell demanded $182.25, the sum of the repair bill and the towing fee, before he would release the automobile to the plaintiff.
Plaintiff disputed authorization of the repairs and refused to pay the bill. On November 7, 1973, Caldwell filed a Mechanics’ Lien Statement with the Jefferson County Clerk, No. 1009, for the amount of “service, repairs, storage and towing”, in the amount of $182.25. On November 12, 1973, Caldwell’s attorney sent Cockerel a notice of Mechanics’ Lien Sale to take place on November 30, 1973, which was to satisfy the amount claimed in the Mechanics’ Lien.
On November 21, 1973, plaintiff filed this action requesting injunctive relief, the empanelling of a three-judge court, and class action certification, as well as a declaration that K.R.S. 376.270 and 376.280(1) were unconstitutional. The District Court then enjoined the defendant from selling the automobile until further orders of court, and eventually allowed the automobile to be released into plaintiff’s possession upon posting a bond in the total amount of $235. The three-judge court was convened pursuant to the order of Chief Judge Phillips on December 21, 1973.
K.R.S. 376.280(1) provides as follows:
“Any boat or motor vehicle remaining in the possession of a person who has made repairs, performed labor or furnished accessories or supplies therefor and to whom the charges for such repairs, labors, accessories or supplies has (sic) been owing for a period of more than thirty (30) days, may be sold to pay such deferred purchase money or charges. The proposed sale shall be advertised pursuant to KRS Ch. 424, and notice thereof shall be sent by registered mail to the owner of the boat or motor vehicle and to any other person known to have any interest therein, addressed to such persons at their last known addresses, at least ten (10) days before the sale is held.”
Plaintiff’s contention that K. R.S. 376.280(1) is unconstitutional in that it provides for no presale judicial hearing is well taken, in light of the decisions in Hernandez v. European Auto Collision, 487 F.2d 378 (2nd Cir. 1973); Straley v. Gassaway Motor Company, 359 F.Supp. 902 (S.D.W.Va.1973); and Mason v. Garris, 360 F.Supp. 420 (N.D.Ga.1973), a three-judge court. Each of these cases is bottomed upon an analysis of Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972) and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1280, 23 L. Ed.2d 349 (1969). As Circuit Judge Timbers pointed out in Hernandez v. European Auto Collision, Inc., supra, statutes granting garagemen the right to sell automobiles upon which they have done repairs without a prior judicial determination are invalid, because they deprive the owner of the automobile of a significant property interest which is not extinquished by the voluntary delivery of the automobile for the purposes of temporary storage and perhaps eventual repair. As Judge Timbers points out, there is little or no significance in the fact that the initial deliverance of the automobile was voluntary. He further points out that statutes such as the New York statute permit the deprivation of a significant property interest without a prior hearing, and there is no statutory language confining such action to extraordinary situations in which it might be justifiable.
Further, as pointed out by Judge Timbers, the sale of the liened goods, in this case the automobile, completely extinguishes the possibility of any future right to repossession in the event of ultimate success on the merits, whereas, replevin, which was involved in the Fuentes case, is only a provisional remedy intended to preserve the integrity of the goods pending trial.
[494]*494The defendant Caldwell contends that, even though the statute may be unconstitutional, this is not the proper forum to assert the unconstitutionality and that the plaintiff does not have standing to do so, because he contends that there was no agreement to have the repairs made. In Hernandez, plaintiff asked the corporation-defendant’s employee, following a collision, to tow his automobile to defendant’s garage and to estimate the cost of repairs. An employee of the defendant garageman asked plaintiff two weeks later if the corporation should repair the automobile. The plaintiff replied in the negative, and was later advised that his car had been repaired, and he replied that he had not authorized the repairs. While his automobile was actually sold, and his action praying for a judgment that the lien law was in violation of the Due Process Clause of the Fourteenth Amendment, and permanent injunction against the enforcement of the law and punitive damages were dismissed, the Circuit Court held, in reversing the District Court, that the plaintiff had standing with respect to his challenge to the sales provision of the New York lien law. Therefore, defendant’s contention as to plaintiff’s lack of standing is without merit.
Defendant Caldwell contends that there is not sufficient state action involved under K.R.S. 376.280(1) to invoke the jurisdiction of this Court. The Sixth Circuit in Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (1973) disposed of this argument on pp. 162 and 163, relying upon the holding of the Supreme Court in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). As is pointed out on those pages, direct, legislative embodiments of the public will, in the form of statutes, can be similarly considered actions of the state, even where they codify the common law, when the consequence of the statute enables private citizens to act in derogation of the Constitution.
In the instant case, the challenged statute, even though it may be a codification of the Kentucky Common Law, see Willis v. LaFayette-Phoenix Garage Company, 202 Ky. 554, 260 S.W. 364 (1924), confers upon the garageman the right to act in derogation of the Fourteenth Amendment of the Constitution. We, therefore, hold that the necessary element of state action is present in the challenged statute, and that the statute is unconstitutional within the guidelines set out in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and Sniadach v.
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MEMORANDUM OPINION AND ORDER
ALLEN, District Judge.
This action, originally testing the constitutionality of K.R.S. 376,270 and 376.-280(1), but now limited to a challenge to the latter statute, arises out of the following fact situation:
In October, 1973, plaintiff’s 1965 Chevrolet Station Wagon was towed to a Texaco Station in Henryville, Indiana. Plaintiff sought the assistance of defendant Virgil Caldwell, a garageman located in Louisville, Kentucky, who agreed to a $50 towing fee to procure the car from the Texaco Station and hold it in Louisville until he was reimbursed by plaintiff. On October 7, 1973, Caldwell paid the towing fee to the Texaco Station and brought the automobile to Louisville to his garage. When Cockerel sought to reimburse Caldwell for [493]*493the towing fee, he was told that repairs had been made upon the automobile, on plaintiff’s authorization, and that the repair bill amounted to $132.25. Caldwell demanded $182.25, the sum of the repair bill and the towing fee, before he would release the automobile to the plaintiff.
Plaintiff disputed authorization of the repairs and refused to pay the bill. On November 7, 1973, Caldwell filed a Mechanics’ Lien Statement with the Jefferson County Clerk, No. 1009, for the amount of “service, repairs, storage and towing”, in the amount of $182.25. On November 12, 1973, Caldwell’s attorney sent Cockerel a notice of Mechanics’ Lien Sale to take place on November 30, 1973, which was to satisfy the amount claimed in the Mechanics’ Lien.
On November 21, 1973, plaintiff filed this action requesting injunctive relief, the empanelling of a three-judge court, and class action certification, as well as a declaration that K.R.S. 376.270 and 376.280(1) were unconstitutional. The District Court then enjoined the defendant from selling the automobile until further orders of court, and eventually allowed the automobile to be released into plaintiff’s possession upon posting a bond in the total amount of $235. The three-judge court was convened pursuant to the order of Chief Judge Phillips on December 21, 1973.
K.R.S. 376.280(1) provides as follows:
“Any boat or motor vehicle remaining in the possession of a person who has made repairs, performed labor or furnished accessories or supplies therefor and to whom the charges for such repairs, labors, accessories or supplies has (sic) been owing for a period of more than thirty (30) days, may be sold to pay such deferred purchase money or charges. The proposed sale shall be advertised pursuant to KRS Ch. 424, and notice thereof shall be sent by registered mail to the owner of the boat or motor vehicle and to any other person known to have any interest therein, addressed to such persons at their last known addresses, at least ten (10) days before the sale is held.”
Plaintiff’s contention that K. R.S. 376.280(1) is unconstitutional in that it provides for no presale judicial hearing is well taken, in light of the decisions in Hernandez v. European Auto Collision, 487 F.2d 378 (2nd Cir. 1973); Straley v. Gassaway Motor Company, 359 F.Supp. 902 (S.D.W.Va.1973); and Mason v. Garris, 360 F.Supp. 420 (N.D.Ga.1973), a three-judge court. Each of these cases is bottomed upon an analysis of Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972) and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1280, 23 L. Ed.2d 349 (1969). As Circuit Judge Timbers pointed out in Hernandez v. European Auto Collision, Inc., supra, statutes granting garagemen the right to sell automobiles upon which they have done repairs without a prior judicial determination are invalid, because they deprive the owner of the automobile of a significant property interest which is not extinquished by the voluntary delivery of the automobile for the purposes of temporary storage and perhaps eventual repair. As Judge Timbers points out, there is little or no significance in the fact that the initial deliverance of the automobile was voluntary. He further points out that statutes such as the New York statute permit the deprivation of a significant property interest without a prior hearing, and there is no statutory language confining such action to extraordinary situations in which it might be justifiable.
Further, as pointed out by Judge Timbers, the sale of the liened goods, in this case the automobile, completely extinguishes the possibility of any future right to repossession in the event of ultimate success on the merits, whereas, replevin, which was involved in the Fuentes case, is only a provisional remedy intended to preserve the integrity of the goods pending trial.
[494]*494The defendant Caldwell contends that, even though the statute may be unconstitutional, this is not the proper forum to assert the unconstitutionality and that the plaintiff does not have standing to do so, because he contends that there was no agreement to have the repairs made. In Hernandez, plaintiff asked the corporation-defendant’s employee, following a collision, to tow his automobile to defendant’s garage and to estimate the cost of repairs. An employee of the defendant garageman asked plaintiff two weeks later if the corporation should repair the automobile. The plaintiff replied in the negative, and was later advised that his car had been repaired, and he replied that he had not authorized the repairs. While his automobile was actually sold, and his action praying for a judgment that the lien law was in violation of the Due Process Clause of the Fourteenth Amendment, and permanent injunction against the enforcement of the law and punitive damages were dismissed, the Circuit Court held, in reversing the District Court, that the plaintiff had standing with respect to his challenge to the sales provision of the New York lien law. Therefore, defendant’s contention as to plaintiff’s lack of standing is without merit.
Defendant Caldwell contends that there is not sufficient state action involved under K.R.S. 376.280(1) to invoke the jurisdiction of this Court. The Sixth Circuit in Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (1973) disposed of this argument on pp. 162 and 163, relying upon the holding of the Supreme Court in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). As is pointed out on those pages, direct, legislative embodiments of the public will, in the form of statutes, can be similarly considered actions of the state, even where they codify the common law, when the consequence of the statute enables private citizens to act in derogation of the Constitution.
In the instant case, the challenged statute, even though it may be a codification of the Kentucky Common Law, see Willis v. LaFayette-Phoenix Garage Company, 202 Ky. 554, 260 S.W. 364 (1924), confers upon the garageman the right to act in derogation of the Fourteenth Amendment of the Constitution. We, therefore, hold that the necessary element of state action is present in the challenged statute, and that the statute is unconstitutional within the guidelines set out in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1280, 23 L.Ed.2d 349 (1969).
Next, we come to plaintiff’s request for a class action. It is the opinion of the Court that no class action order should be entered since, in reality, an action which attacks the unconstitutionality of a statute such as this is, in effect, a class action for all persons who are affected by the statute, whether they be automobile owners or garage repairmen, or the County Clerk who merely effects the change in title after the sale of the automobile has taken place. We hold, therefore, that the motion for a class action is denied.
The Court takes note of the pleadings of the plaintiff asking for compensatory damages for detention of the automobile, and punitive damages. While these matters may well be moot, we leave them to the discretion of the trial court for such further proceedings as it may find appropriate.
In conclusion, it is noted that defendant Caldwell is counterclaiming for $275 against the plaintiff. The resolution of this issue should also be left to the trial court, since it is not a proper one for the decision of a three-judge court.
It is ordered that K.R.S. 376.280(1) is declared unconstitutional and in violation of the Fourteenth Amendment of the United States Constitution.
It is further ordered that defendant Caldwell is permanently enjoined from selling the automobile of the plaintiff Cockerel, and the defendant Bremer A. [495]*495Ehrler, successor in office to James R. Hallahan, is permanently enjoined from effecting transfers of title, pursuant to the provisions of K.R.S. 376.280(1).
It is further ordered that the question of damages to the parties and costs be reserved for determination by The Honorable Charles M. Allen, District Judge, and that the motion of the plaintiff for a class action is denied.