by any appropriate legislation, is unquestioned.'
See also People ex rel. Moffatt v. Zimmerman, 1905, 48 Misc. 203, 95 N.Y.S. 136. Finally, in the Friedman case itself, the opinion of the New York Court of Appeals, which was submitted to the Supreme Court for review, explicitly recognized the religious origin of the New York statute. 302 N.Y. at page 79, 96 N.E.2d at page 186.
We find nothing in the cases discussing the Pennsylvania legislation and its background which makes any plainer the religious considerations which underlie the adoption of the 'blue laws' of that state and from time to time have been utilized to justify them. The historical religious connection is so clear in both state statutes as to be obvious and indisputable. It has been stressed that the Supreme Court of Pennsylvania in upholding the local statute has gone so far as to say that 'Christianity is part of the common law of Pennsylvania'. Commonwealth ex rel. Woodruff v. American Baseball Club of Philadelphia, 1927, 290 Pa. 136, 143, 138 A. 497, 499, 53 A.L.R. 1027. But a New York case, People v. Ruggles, 1811, 8 Johns 290, went just as far.
Thus, the Supreme Court in the Friedman case was faced with very substantial indicia of the statute's relation to religion, strikingly similar to those appellant urges upon us now. We can see no basis for reasoning that the Pennsylvania statute is unconstitutionally related to an establishment of religion without bringing the New York statute under the same interdiction. Yet, the Supreme Court sustained the New York statute summarily. If the view of the establishment of religion question thus authoritatively established by the Supreme Court is to be changed it is for that Court, not an inferior court, to do so. Our conclusion that the Friedman case has broad and controlling significance on the issue of establishment of religion is contrary to the view of the majority of the three-judge district court which recently decided Crown Kosher Super Market of Mass. v. Gallagher, D.C.D.Mass. 1959, 176 F.Supp. 466. That opinion disposes of this problem of controlling authority in a brief footnote which is not elaborate enough to make the court's reasoning clear to us. It affords no useful critique of our own analysis which indicates that the Friedman precedent is controlling.
As a separate point the plaintiff urges that the 1959 amendment is a denial of equal protection of the laws in that it unreasonably singles out certain types of retail selling for mandatory Sunday closing under heavy penalty -- a hundred dollar fine, and twice that on subsequent offenses -- while many other kinds of commercial activity are either permitted on Sunday or, if prohibited, subjected only to a very small fine, in most cases only four dollars.
This line of argument against Sunday closing statutes, no less than the First Amendment argument, has a considerable history of Supreme Court adjudication. Indeed, essentially the same argument was made against another provision of the Pennsylvania 'blue laws' in Commonwealth v. Grochowiak, 1957, 184 Pa. Super. 522, 136 A.2d 145. The Pennsylvania courts considered and rejected any argument that closing Sunday movies under a fifty dollar penalty, while other worldly amusements and activities were permitted, or at least prohibited under the much smaller four dollar penalty, was arbitrary and unreasonable and a denial of equal protection of the laws. the case was taken to the Supreme Court where the appeal was dismissed for failure to present a substantial federal question. 358 U.S. 47, 79 S. Ct. 40, 3 L. Ed. 2d 44. In State v. Towery, 1954, 239 N.C. 274, 79 S.E.2d 513, appeal dismissed 347 U.S. 925, 74 S. Ct. 532, 98 L. Ed. 1079, a Sunday seller of general merchandise complained that a North Carolina law prevented him from operating on Sunday yet allowed drug stores to remain open and to sell the same kinds of merchandise. The North Carolina courts sustained the statute and the Supreme Court dismissed the appeal. Similar summary dismissal has been the fate of other recent claims of arbitrary classification and unreasonable discrimination in the selection of certain businesses and activities for Sunday closing while others, said to be no less objectionable, remained unmolested. State v. Kidd, 1957, 167 Ohio St. 521, 150 N.E.2d 413, appeal dismissed 358 U.S. 131, 132, 79 S. Ct. 230, 3 L. Ed. 2d 225; Gundaker Central Motors v. Gassert, 1956, 23 N.J. 71, 127 A.2d 566, appeal dismissed 354 U.S. 933, 77 S. Ct. 1397, 1 L. Ed. 2d 1533; State v. McGee, 1953, 237 N.C. 633, 75 S.E.2d 783, appeal dismissed 346 U.S. 802, 74 S. Ct. 50, 98 L. Ed. 334. This point was also involved in the Friedman case, which has already been discussed in relation to the establishment of religion issue. Indeed, the Fourteenth Amendment argument of arbitrary classification seems to have been made as strongly there as was the First Amendment argument. See Pfeffer, Church, State and Freedom, supra, 230-234, 239-240. The New York statute was attacked as a miscellany of pointless, irrational and discriminatory differentiations in the treatment of various Sunday commercial activities. But the Supreme Court was not persuaded that the contention had sufficient merit even to require full argument.
In larger context, cases arising under the Sunday closing laws are but a striking example of the continuing reluctance of the Supreme Court to interfere with even near whimsical classifications when made by state legislatures in the selection of schemes or areas or subject matter for economic regulations. Cf. Williamson v. Lee Optical of Oklahoma, Inc., 1955, 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563; Kotch v. Board of River Port Pilot Commissioners, 1947, 330 U.S. 552, 67 S. Ct. 910, 91 L. Ed. 1869; Tigner v. State of Texas, 1940, 310 U.S. 141, 60 S. Ct. 879, 84 L. Ed. 1124. But cf. Morey v. Doud, 1957, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485. While Morey v. Doud, indicates that the Supreme Court will still strike down what it views as the most patently arbitrary of economic classifications we cannot ignore the fact that no Sunday law has seemed to the Court to raise even a substantial question in this area.
Moreover, in the case of the 1959 amendment of the Pennsylvania law, the circumstances attending or existing at the time of its enactment affirmatively suggest a rational basis for this legislative action. In the present record it appears and we find that the 1939 closing law was observed by most retail sellers in Lehigh County, though not all, who were subject to its provisions, until the very recent opening of substantial suburban retail businesses like that of the plaintiff initiated and triggered new and rather large scale violations, and threats of others. It also appears in the testimony which is part of the legislative hearing on the bill which became the 1959 amendment of the Sunday closing law, that the small four dollar penalty of the earlier law was inadequate to deter the Sunday opening of large retail establishments which could easily absorb such small fines as an incidental cost of doing a profitable business. Moreover, it appeared that the types of commodities covered by this new enactment are principal categories of merchandise sold in these establishments which have made the problem of Sunday retail selling newly acute. It is probable that such considerations influenced the legislature's 1959 decision to make Sunday retail selling the subject of a new prohibitory enactment. In such circumstances we find it impossible to believe that the Supreme Court would treat this case as significantly different from those in which it has dismissed appeals for want of a substantial federal question.
Finally, it is argued that because the general prohibition in the 1939 statute against worldly activity on Sunday has for a long time not been enforced strictly or at all against many worldly Sunday activities, it is a denial of equal protection of the law to enforce the new 1959 prohibition against the Sunday retail sale of specified kinds of merchandise. On this point the evidence is clear and we find as a fact that in Lehigh County numerous commercial and recreational activities covered by the general prohibition of the 1939 statute have long been conducted openly on Sunday, and continue, without molestation or direction to desist by the defendant or by any public officer. On the other hand, beginning in 1957 and thereafter the defendant made substantial and frequent efforts by admonition and arrest to compel the Sunday closing of numerous retail stores including plaintiff's store. This court temporarily restrained the enforcement of the 1959 statute against the plaintiff within a week after its enactment. Since that time enforcement of the 'blue laws' in Lehigh County has been held in abeyance. In these circumstances, the court finds no sufficient basis for a finding as to the future pattern or procedure of enforcement of the new statute if and when judicial restraint shall be removed. The impracticability of such an anticipatory finding is made the more obvious by the fact, of which we take judicial notice, that the term of office of the defendant as District Attorney expires at the end of the calendar year 1959. Thus, on the present record we have the threat of the enforcement of the 1959 act against retail selling while many other kinds of worldly activity proscribed by the 1939 laws have continued and are likely to continue without any interference by the public authorities. Is this such a discrimination as denies equal protection of the laws?
It may well be a violation of public duty under state law for local public officers to ignore widespread violations of the 1939 law. But it does not follow that the enforcement of the 1959 statute denies the Sunday selling retailer due process of law. The controlling constitutional principle is that such selective or discriminatory behavior by administrative officers, though wrongful, is not a violation of the Constitution unless equivalent action by the state legislature would be unconstitutional. Snowden v. Hughes, 1943, 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497; Owensboro Water Works Co. v. City of Owensboro, 1906, 200 U.S. 38, 26 S. Ct. 249, 50 L. Ed. 361. See also Hayman v. City of Galveston, 1927, 273 U.S. 414, 416, 47 S. Ct. 363, 71 L. Ed. 714. In the situation we now are considering the administrative failure to enforce the 1939 law against certain types of Sunday activity creates a constitutional problem only to the extent that a legislative exemption of these activities from Sunday closing would do so. But we already have pointed out that the Supreme Court has repeatedly treated the fact that a Sunday closing law is a hodgepodge characterized by many and seemingly pointless exceptions and exemptions as insufficient to raise a substantial federal question. A hodgepodge in enforcement has no greater constitutional significance.
On the whole case, while the court has jurisdiction of the parties and of the subject matter under Sections 1343 and 2281 of Title 28 of the United States Code, the plaintiff has failed to show any violation of the First or the Fourteenth Amendment of the Constitution of the United States. Accordingly, plaintiff is not entitled to relief in this action.
The factual statements and legal conclusions stated in this opinion shall constitute the findings of fact and conclusions of law of the court. An order may be presented dissolving the temporary injunction heretofore entered in this case. A final order and decree may be presented denying plaintiff relief.