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December 1, 1959

Paul A. McGINLEY, District Attorney, County of Lehigh, Pennsylvania, Defendant

The opinion of the court was delivered by: HASTIE

This case has been tried to a statutory three-judge court constituted as provided in Sections 2281 and 2284 of Title 28, United States Code. The plaintiff, Two Guys From Harrison-Allentown, Inc., seeks an injunction to prevent the District Attorney of Lehigh County from enforcing against its employees, and thus against its retail selling business, the criminal sanctions of the Pennsylvania Sunday closing laws, sometimes called the Sunday 'blue laws'. Continuously since 1957 plaintiff has operated a large department store, employing some 300 persons, in a suburban area near the City of Allentown in Lehigh County. This store opens for business on Sunday as well as on the other six days of the week. About one-third of its business is done on Sunday.

 The pleadings allege and the evidence establishes as a fact that, prior to a 1959 amendment of the 'blue laws', the defendant had undertaken to enforce against the plaintiff's business and its employees the general provision of the Act of June 24, 1939, P.L. 872, § 699.4, 18 P.S. § 4699.4 that 'whoever does or performs any worldly employment or business whatsoever on the Lord's day, commonly called Sunday (works of necessity and charity only excepted) * * * shall, upon conviction thereof in a summary proceeding, be sentenced to pay a fine of four dollars * * *.' It is also alleged and appears as a fact that the defendant is now threatening to enforce against the plaintiff's business and employees Section 699.10 as added to the Sunday closing law by the Act of August 10, 1959, P.L. 212, 18 P.S. § 4699.10, which reads as follows:

 'Each separate sale or offer to sell shall constitute a separate offense * * *.'

 The evidence does not show and the court does not find any present or continuing threat to enforce against plaintiff's retail selling the above quoted provision of the 1939 statute, although the defendant has expressed the legal view that both the old Section 699.4 and the new Section 699.10 apply to the situation of the plaintiff.

 In these circumstances a question arises at the outset which affects the scope of proper present inquiry. Since the 1959 amendment has made the retail sale of specific categories of merchandise on Sunday a wrong punishable by a fine of one hundred dollars, does the sale of such merchandise continue to be punishable by a fine of four dollars under the older general prohibition of 'worldly employment or business on Sunday'?

 The 1959 enactment says nothing about the earlier general prohibition although it was enacted as an amendatory addition to Section 699 of the Penal Code in which the earlier prohibition appears. We think it can reasonably be argued that the new section supersedes the older one insofar as the latter covered in generality activities now specifically dealt with and more severely punished in the amendatory enactment. Cf. Commonwealth v. Brown, 1943, 346 Pa. 192, 29 A.2d 793; Commonwealth v. Gross, 1941, 145 Pa.Super. 92, 21 A.2d 238. In any event, here is a substantial unsettled question concerning the construction of the questioned state legislation. When the Pennsylvania courts decide this question they may well resolve it by an interpretation which will relieve the plaintiff and those associated with it of any punitive action under the 1939 statute.

 In such a situation it is our duty to refrain from passing upon the constitutionality of the 1939 statute until the state courts have made clear whether it applies at all to the plaintiff since the 1959 amendment. Harrison v. N.A.A.C.P., 1959, 360 U.S. 167, 79 S. Ct. 1025, 3 L. Ed. 2d 1152; Spector Motor Service v. McLaughlin, 1944, 323 U.S. 101, 65 S. Ct. 152, 89 L. Ed. 101; Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971. Even if the statute were clear, a court of the United States should, as a matter of policy to minimize interference with state action, refuse gratuitously to pass on the constitutionality of a provision of a state law when the plaintiff cannot show present urgent need for federal intervention to prevent actual or imminently threatened deprivation of constitutional right. Plaintiff is in no such jeopardy now under the 1939 statute. In these circumstances we think it inappropriate to pass upon the constitutionality of the 1939 statute at this time or even, as was done in the cases cited above, to hold the case sub judice pending an interpretive state ruling. It is enough to say that our disposition of the present case shall not bar future resort to this court by the plaintiff if and when the state courts shall authoritatively decide that the 1939 statute still applies to selling which is covered by the 1959 amendment, and if and when plaintiff's business shall be jeopardized by a present threat of prosecution under the 1939 statute. The present adjudication will concern the 1959 amendment only.

 At the outset we consider a contention that this First Amendment argument has been foreclosed by authoritative determinations of the constitutionality of Sunday laws essentially similar to the Pennsylvania statute. At the turn of the century, before the Supreme Court had ruled that the First Amendment guarantees are enforceable through the Fourteenth Amendment against the states, *fn1" Sunday 'blue laws' were upheld in two familiar decisions of the Court. Petit v. State of Minnesota, 1900, 177 U.S. 164, 20 S. Ct. 666, 44 L. Ed. 716; *fn2" Hennington v. State of Georgia, 1896, 163 U.S. 299, 16 S. Ct. 1086, 41 L. Ed. 166. If these stood alone their present authority would be questionable in the light of the development of constitutional concepts during this century. But more recently a new test of the constitutionality of Sunday legislation was sought in an appeal to the Supreme Court from a conviction under the New York Sunday laws. Friedman v. People of State of New York, 1951, 341 U.S. 907, 71 S. Ct. 623, 95 L. Ed. 1345. In the jurisdictional statement filed in the Supreme Court in support of that appeal the appellant said: 'The question to be resolved is an important one: Are Hennington v. Georgia and Petit v. Minnesota still law in view of the ( Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711; 330 U.S. 855, 67 S. Ct. 962, 91 L. Ed. 1297 and People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 648) decisions?' Accordingly, it is appropriate that we examine that case carefully.

 The defendants in the Friedman case, who were Orthodox Jews, had been convicted of the retail selling of kosher meat on Sunday in violation of the New York prohibition against 'all manner of public selling (except for many miscellaneous exemptions) * * * upon Sunday * * *.' 39 N.Y.Consol. Laws, McKinney, 1944, § 2147. The defense was carefully planned and organized under the direction of Leo Pfeffer, Esquire, a distinguished advocate and legal writer who had specialized in the field of religious liberty. *fn3" Before the Supreme Court the appellant's very explicit statement of 'Questions Presented' read in part as follows:

 '1. Whether the New York Sabbath Law (Article 192 of the New York Penal Law) is a law respecting an establishment of religion and is, therefore, invalid in its entirety under the First Amendment to the United States Constitution which is made applicable to the States by the Fourteenth Amendment.

 '2. Whether the New York Sabbath Law is constitutionally invalid as violative of the freedom of religion provision of the United States Constitution, because it fails to exempt from its operations persons whose religious convictions compel them to observe a day other than Sunday as their holy day of rest.

 '3. Whether the New York Sabbath Law by reason of its 'crazy quilt' pattern of inclusions and exclusions is arbitrary and discriminatory and therefore violative of the 'equal protection of the law' and 'due ...

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