fully pays for his hotel accommodations. If the charges remain
unpaid after sixty days, the hotel proprietor may sell the
property at public auction after giving ten days' notice of the
time and place of the sale by publication and by mailing such
notice to the guest. The lien and the cost of enforcing it is to
be satisfied out of the proceeds of the sale. Section 2 further
provides that the sale will be a perpetual bar to any action
against the hotel proprietor for the recovery of the property,
its value, or for damages resulting from the loss of possession.
The absolute liability upon which the innkeepers' lien was
premised has been completely abrogated by statute in Illinois.
Section 3 of Chapter 71, which was also enacted on June 9, 1909,
provided that the hotel proprietor would be absolutely liable for
losses only up to certain set amounts, above which negligence
would have to be proved. Section 3 was amended on July 21, 1959,
to remove the last remnants of the common law absolute liability,
so that the proprietor is liable for loss or damage not exceeding
$250 only if it is caused by his negligence.
The main thrust of plaintiff's argument is that the Illinois
Innkeepers' Lien Laws authorize a hotel proprietor to seize a
guest's personal property without his consent and without notice
and prior hearing, in violation of the Due Process Clause of the
Fourteenth Amendment. The only Illinois court to decide the issue
found that Chapter 71, Section 2, was not violative of due
process on the ground that "a statute purporting to give
innkeepers a lien on the goods of their guests cannot be held
unconstitutional when such statute does not extend beyond the
rule established by the common law nor beyond the requirements of
public policy." National Malted Food Corp. v. Crawford,
254 Ill. App.? 415, 428 (1929).
The rule established by the common law, as stated above, gave
the innkeeper a lien coextensive with his liability and since the
innkeeper's liability has been abrogated, the reasoning in
National Malted Food Corp. is no longer sound. Furthermore, the
fact that the statute does not transgress the bounds of the
common law will not sustain it against an attack as
unconstitutional, since "[t]he fact that a procedure would pass
muster under a feudal regime does not mean it gives necessary
protection to all property in its modern forms." Sniadach v.
Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23
L.Ed.2d 349 (1969).
In Sniadach, the Supreme Court held that Wisconsin's
prejudgment wage garnishment procedure which authorized the
taking of property without notice and prior hearing violated the
Due Process Clause of the Fourteenth Amendment. The Court
stressed that wages were a specialized type of property, the
"taking [of] which may impose tremendous hardship on wage earners
with families to support." Sniadach, supra, 395 U.S. 340, 89
S.Ct. 1822. The Court also noted that the prejudgment garnishment
of wages procedure gave the creditor enormous leverage to collect
even fraudulent debts.
Although the Court noted that such summary procedure might meet
due process requirements in extraordinary situations, citing
Ownbey v. Morgan, 256 U.S. 94, 110-112, 41 S.Ct. 433, 65 L.Ed.
837 (1921), Coffin Bros. v. Bennett, 277 U.S. 29, 31, 488 S.Ct.
422, 72 L.Ed. 768 (1928), Fahey v. Mallonee, 332 U.S. 245,
253-254, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947), and Ewing v.
Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94
L.Ed. 1088 (1950), it found: (1) that the facts presented no
situation requiring special protection to the state or to the
creditor; and (2) that the Wisconsin statute was not narrowly
drawn to meet any such unusual situation.
A careful study of the above cited cases reveals that the
situations to which they refer are not comparable to that of the
instant case. In Ownbey, supra, the Supreme Court held that when
owner left the territorial jurisdiction of the State, the
attachment of his property remaining in the State to satisfy
claims against him did not violate due process. In Coffin Bros.,
supra, the Court found that although a Georgia statute purported
to authorize the State Superintendent of Banks to make
assessments, create liens and to execute thereon without any
judicial proceedings, the procedure did not violate due process
since the defendants were given notice and could have a judicial
hearing simply by filing an affidavit of illegality of the
assessment, in which case the execution would be by court order.
The Supreme Court in Fahey, supra, held that the Federal Home
Loan Bank Board's regulation authorizing an appointed conservator
to take possession of a federal savings and loan association and
providing only for a hearing after the appointment did not
violate due process. The Court stated that:
It is complained that these regulations provide for
hearing after the conservator takes possession
instead of before. This is a drastic procedure. But
the delicate nature of the institution and the
impossibility of preserving credit during an
investigation has made it an almost invariable custom
to apply supervisory authority in this summary
Fahey, supra, 332 U.S. 253, 67 S.Ct. 1556.
Finally, in Ewing, supra, the Court held that although Section
304(a) of the Federal Food, Drug and Cosmetic Act allowed the
administrative agency to determine, without hearing, whether
there was probable cause to seize misbranded articles, it was not
violative of due process since the administrative finding was
merely a determination by the agency that judicial proceedings
should be instituted. As to the necessity of a hearing, the Court
It is sufficient, where only property rights are
concerned, that there is at some stage an opportunity
for a hearing and a judicial determination. Ewing,
supra, 339 U.S. 599, 70 S.Ct. 873.
Thus, in Coffin Bros., Fahey and Ewing, the Court found that
even though there were overriding considerations which permitted
such summary procedures, due process required that there be an
opportunity for a hearing at some stage of the proceedings.