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decided: November 28, 1967.


Appeal from decree of Court of Common Pleas of Beaver County, Sept. T., 1965, No. 5, in case of Bertera's Hopewell Foodland, Inc. v. Robert J. Masters, District Attorney, John A. Krzton, Chief County Detective, Louis Polce et al.


Hubert I. Teitelbaum, with him Martin M. Sheinman, John Allan Conte, and Morris, Safier & Teitelbaum, and Conte & Courtney, for appellant.

Robert J. Masters, District Attorney, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice Eagen concur in the result. Concurring Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Roberts. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice O'Brien.

Author: Musmanno

[ 428 Pa. Page 22]

The plaintiff, Bertera's Hopewell Foodland, Inc., owns a supermarket in Hopewell Township, Beaver County, which, at the beginning of this litigation, employed 60 persons, 40 of whom worked in the establishment on Sundays. The District Attorney of Beaver County, Robert J. Masters, informed Bertera's Foodland

[ 428 Pa. Page 23]

    that if it continued to operate on Sunday, he would prosecute under the "Sunday Closing Laws" of June 24, 1939, P. L. 872, § 699.15, amended September 27, 1961, P. L. 1695, § 1, 18 P.S. § 4699.15, which prohibits, with certain exceptions, the sale on Sunday of meat, produce and groceries.

The plaintiff refused to cease Sunday operation, claiming that the Amendment of 1961, above cited, was unconstitutional in that it violated the 14th Amendment to the Constitution of the United States and Article III, § 7 of the Pennsylvania Constitution, averring it to be vague, indefinite, failed in equal protection and was not based on real and substantial differences which are reasonably related to the purpose of the law. The plaintiff went into the Court of Common Pleas of Beaver County to seek an injunction restraining the district attorney and other law prosecuting officers in the county, from enforcing the statute in question.

The lower court held that the statute was constitutional, the injunction was denied and the complaint dismissed. The plaintiff appealed.

We are satisfied that equity has jurisdiction. (Adams v. New Kensington, 357 Pa. 557; Harris-Walsh, Inc. v. Dickson City Boro., 420 Pa. 259.)

The Act of September 27, 1961, P. L. 1695, provides that: "Whoever engages in the business of selling or otherwise dealing at retail in fresh meats, produce and groceries on Sunday shall, upon conviction thereof in a summary proceeding for the first offense, be sentenced to pay a fine of not exceeding one hundred dollars ($100), and for the second or any subsequent offense committed within one (1) year after conviction for the first offense, be sentenced to pay a fine of not exceeding two hundred dollars ($200) or undergo imprisonment not exceeding (30) days in default thereof."

[ 428 Pa. Page 24]

This Act is one of the many postscripts to the original Pennsylvania Sunday Closing Law enacted in the earliest days of the Commonwealth, that is, the Act of April 22, 1794, 3 Sm L. 177, and which merged into the now parent act of June 24, 1939, P. L. 872. From time to time the original Act of 1794 has been amended to allow wholesome entertainment and recreation on Sunday.*fn1 Its original strict provisions were also relaxed so as to permit the operation of certain businesses reasonably necessary for the comfort and convenience of the people, without detracting from the nature of Sunday, which was, and still remains, dedicated to the three R's: Religion, Rest and Recreation.

Obviously there could not be much rest or recreation for a person on Sunday if he could not obtain food on that day. While, of course, everybody should foresee on Saturday that he would need to eat on Sunday, and therefore should lay in a supply of provisions for the morrow, yet circumstances could prevent a realization of that anticipation and one should not be subjected to the hardship of fasting when, without any defilement of the pure Sabbath atmosphere, he could still obtain the required provender to sustain him over the weekend. Accordingly, the Legislature, in the Act of 1961, declared that: "This section shall not apply to any retail establishment employing less than ten persons or to any retail establishment where fresh meats, produce and groceries are offered or sold by the proprietor or members of his immediate family or employing less than ten persons nor shall it apply to any retail establishment where food is prepared on the premises for human consumption."

We thus have three exceptions to the application of the Act, which, for convenience in discussion, we will

[ 428 Pa. Page 25]

    number (1) where the store employs no more than 9 persons; (2) where the store is owned and run by a person and members of his immediate family (or employs no more than 9 persons); (3) where the establishment prepares food on its premises for eating purposes.

The plaintiff argues at length that a statute so vague that men of common intelligence must guess at its meaning violates due process. It wheels into play a battery of decisions to support this position -- all so unnecessarily. Obviously, if a statute is printed in Chinese or is proclaimed in such badly expressed English that one cannot learn from it what is permitted and what is prohibited, it cannot be enforced. Instead of emphasizing the obvious, the plaintiff should show wherein the statute is vague. It attempts to do this by aiming its artillery of argumentation against the three exceptions in the Act, but its aiming is faulty because it does not set its sights in accordance with the criteria laid down in the Statutory Construction Act (May 28, 1937, P. L. 1019, § 51, 46 P.S. § 551), which declares that in interpreting a law one must take into consideration, inter alia, "(1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5) the former law, if any, including other laws upon the same or similar subjects; (6) the consequences of a particular interpretation, (7) the contemporaneous legislative history . . ."

The plaintiff in its analysis and interpretation of the law of 1961 does not discuss the "occasion and necessity for the law", it says nothing about "the object to be attained," it wholly ignores the "former law" and those "other laws upon the same or similar subjects." The plaintiff treats the law of 1961 as an entity wholly isolated from any other legislation,

[ 428 Pa. Page 26]

    but the enactment of 1961, to begin with, is but an amendment to another law. It is a branch grafted to the original tree, and who can determine the nature of the resulting fruit without studying the trunk and the roots of the original plant? The Act of 1961, as already stated, is an amendment of the Act of 1939, which is but a descendant of the original Act of 1794, which declared that: "If any person shall do or perform any worldly employment or business whatsoever on the Lord's day, commonly called Sunday, works of necessity and charity only excepted, or shall use or practice any unlawful game, hunting, shooting, sport, or diversion whatsoever, on the same day, and be convicted thereof, every such person, so offending, shall, for every such offence, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum, or goods and chattels cannot be found, whereof to levy the same by distress, he or she shall suffer six days imprisonment in the house of correction of the proper county: Provided, always, that nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns, and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers, or persons removing with their families, on the Lord's day, commonly called Sunday, nor to the delivery of milk, or the necessaries of life, before nine of the clock in the forenoon, nor after five of the clock in the afternoon, of the same day."

This Act of 1794 itself traces an ancestry back to the Ten Commandments fulminated from the smoking top of Mt. Sinai, proclaiming in the Eighth, Ninth and Tenth provisions thereof: "Remember the sabbath day to keep it holy. Six days shalt thou labor and do all thy

[ 428 Pa. Page 27]

    work: But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work."

This divine pronouncement became part of the Common Law inherited by the thirteen American colonies and by the sovereign States of the American union. William Blackstone, in his immortal Commentaries, declared: "the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labor, without any stated times of recalling them to the worship of their Maker." (4 Bl. Comm. 63)

Before William Penn left England for the sylvania, of which he was proprietor, he and his fellow-Quakers adopted on May 5, 1682, a code of laws, the 36th of which reads: "That according to the good example of primitive Christians, and for the ease of creation, every first day of the week, called Sunday, people shall abstain from their common daily labor, that they may better dispose themselves to worship God according to their understanding."

The first law enacted by the Quakers, (December 7, 1682) after forming a government which was to become the Commonwealth of Pennsylvania, declared that "people shall abstain from their usual and common toil and labor" on Sunday. The law, in varying language, was reenacted in 1705, 1779, and 1786. Then, when the ink on the Constitution of the United States had

[ 428 Pa. Page 28]

    but recently dried, the General Assembly on April 22, 1794 enacted the parent Sunday law which still controls in Pennsylvania.

From time to time, as already indicated, there have been modifications of the Act of 1794, in order to allow the people of Pennsylvania increased opportunity for revitalizing their spiritual and physical forces, but the Legislature has never deviated from the principle that Sunday is a day dedicated to religion, rest and recreation, and that its sanctified atmosphere must not be defiled through crass commercialization. The objectives of the Act of 1794 were to secure: "the observance of a day of rest for the community, thereby enabling every one to worship according to the dictates of his conscience, without distraction, and without disturbance, and thus giving a check to vice and immorality." (Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401, 409.)

Leaving aside for the moment the right to rest on Sunday, which is indisputable, setting apart for the moment the right to recreation, which is equally not to be questioned, the right of a citizen of the Commonwealth to be free of distracting noises, and commotion arising from industrial and commercial pursuits, which could disturb his worshipping, is protected by the law of 1794 and all its amendments. As churchgoers have the right to be saved from the firing of cannon or the beating of drums outside their houses of worship on Sunday, so also are householders protected under the laws of the Commonwealth from turbulences generated by excessive population movement attendant on business enterprises not falling within the exceptions listed in the Sunday Closing Laws. All the legislation on this subject departs from the premise that Sunday is a day different from the other days. The plaintiff nowhere in its argument seems to recognize this basic

[ 428 Pa. Page 29]

    fact, without which debate on the law of 1961 is only empty sound.

Justice Woodward in the case of Johnston v. Com., 22 Pa. 102, illuminated the subject with juridical eloquence when he said: "It would be a small boon to the people of Pennsylvania to declare their indefeasible right to worship God according to the dictates of their conscience, amid the din and confusion of secular employments and with desecrations on every hand of what they conscientiously believe to be hallowed time. These statutes were not designed to compel men to go to church, or to worship God in any manner inconsistent with personal preferences, but to compel a cessation of those employments which are calculated to interfere with the rights of those who chose to assemble for public worship. The day was set apart for a purpose, and the penal enactments guard it, but they leave every man free to use it for the purpose or not. If he wish to use it for the purpose designed, the law protects him from the annoyance of others -- if he do not, it restrains him from annoying those who do so use it."

There is no merit to the contention that Sunday closing laws impinge on the First Amendment to the U. S. Constitution which prohibits the "establishment of religion," because, inseparably associated with that proscription, there is the mandate that there shall be no prohibition of "the free exercise" of religion. The founders of our government and the drafters of our laws always held high in their minds and close to their hearts the sanctity of the Sabbath as they enacted legislation with reference thereto. Thus, it would be a violation of the First Amendment to compel people, who accept Sunday as a religious day, to work on that day.

The laws of America are not arbitrary, mathematical pronouncements devoid of policy, program or philosophy.

[ 428 Pa. Page 30]

America is a religious nation.*fn2 Of course, it is fundamental that no religious belief can be made a condition for holding public office and everyone is free to live and act without religious avowals of any kind. Nevertheless, our whole structure of government is founded, and it operates, upon the principle of a belief in a Supreme Being. Our legislative bodies and our courts bespeak religious reverence and call upon the Author of the universe for guidance and upholding of the truth, our Chief Executive proclaims days of prayer, and every monetary unit carries the legend "In God We Trust."

Universal recognition of the Deity in the affairs of men finds its most forceful expression on the Sabbath, not only because of church services on Sunday, but also because that day is dedicated to the reunion of families, the manifestation of filial and parental affection, the fraternization among neighbors, and the general disposition toward acts of charity and benevolence. Say what one will, man is more disposed to do good on Sunday than he is throughout the week. Less crimes are committed on the Sabbath Day than on week days. The whole body of the people seems to recognize on Sunday a general truce in the commercial, industrial and professional arena which might be regarded quite extraordinary during the week. Justice Harlan of the Supreme Court of the United States in the case of Hennington v. Georgia, 163 U.S. 299, quoted with approval from Justice Field who, while discussing a statute of California relating to the Sabbath day, said: "Its requirement is a cessation from labor. In its enactment, the Legislature has given the sanction of law to a rule of conduct, which the entire civilized world recognizes as essential to the physical and moral well-being

[ 428 Pa. Page 31]

    of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience, and sustained by science . . . The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted." (Ex Parte Newman, 9 Cal. 502.)

No one recognizes and appreciates these truths more than the working people of America. They have struggled long and arduously to achieve a just measure of recompense for their labors and an appropriate period of time for rest and recuperation and for intimate companionship with their families. These desiderata are now written into the fabric of our laws and have become as much a part of the public policy of the nation as the principles enunciated in the Declaration of Independence. Breaches in that policy, without an imperative necessity stemming from reasons of health, security and general welfare, must not be permitted under artificial reasoning such as that advanced by the plaintiff in this lawsuit.

To allow the plaintiff to do what it contends for here, would be to make Sunday no different from Tuesday or Thursday because if the plaintiff can operate with 40 employees on Sunday, a larger establishment can operate with 400, all of whom would be taken from their families and all of whom would thus be deprived of the reverential, inspirational and recreational benefits inherent in the Sabbath Day. Chief Justice Warren aptly said in the case of McGowan v. Maryland, 366 U.S. 420, 444. "Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, weekend diversion at parks and beaches, and cultural activities

[ 428 Pa. Page 32]

    of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations."

Sunday Closing Laws contribute to the building of character because the rest and relaxation of the Sabbath are enjoyed in the general atmosphere of a Divinity which guides destiny, invites introspection and retrospection, and invokes a deeper appraisal of what one owes to his fellow man and to society. It is a truism, which can be attested to by anyone who has experienced the contrast, that the repose of Sunday is more restful and salubrious to him than inactivity on a weekday. The absence of work on a weekday means merely the shutting down of the human machine for a day, but the leisure of a Sunday carries with it the spirituality which has been gained through centuries of dedication to spirituality.

It is another truism that a day of rest is more meaningful, more rehabilitating and more conducive to elevated thoughts when it is enjoyed with others, than when it is spent alone, while the remainder of society fends and fights in the mundane antagonisms of a weekday. Justice Bell well said, in the case of Specht v. Commonwealth, 8 Pa. 312, that "all agree that to the well-being of society, periods of rest are absolutely necessary." He then cogently added that "to be productive of the required advantage, these periods must recur at stated intervals, so that the mass of which the community is composed, may enjoy a respite from labor at the same time."

In McGowan v. Maryland, 366 U.S. 420, 450, Chief Justice Warren said: "The State's purpose is not merely to provide a one-day-in-seven work stoppage. In addition to this, the State seeks to set one day apart from all others as a day of rest, repose, recreation

[ 428 Pa. Page 33]

    and tranquility -- a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days."

The law of 1961 here in controversy reaffirms the principles enunciated in the Act of 1794 by outlining punishments for those who engage in the business of selling or dealing at retail in certain products on Sunday. Therefore, the Act of 1961 must be read in the light of the torch whose solemn incandescence has never dimmed since it was ignited in 1794.

But the plaintiff in the case at bar sees only one tiny spark peripherally shooting off from that torch and apparently believes it may snuff out the entire torch if it can smother that one spark. And so, the plaintiff minutely studies and dissects individual words in the Act of 1961, closing its eyes to the whole structure of language built up on the subject of Sunday Closing Laws, and which must be considered when one, as one must, under the Statutory Construction Law, consider "the occasion and necessity for the law."

The statute of 1961, like any document, must be read in the climate and atmosphere which saw it come into existence. A statute cannot be dissected into individual words, each one being thrown on to the anvil of dialectics to be hammered into a meaning which has no association with the words from which it has violently been separated.

The plaintiff declares that the statute of 1961 is unconstitutional for vagueness because it "does not inform us as to whether less than ten working only on Sunday invokes the exemption or whether it applies only to those having a total of less than ten employees even if they do not all work on Sunday."

[ 428 Pa. Page 34]

A reading of Exception No. 1 clearly demonstrates that it applies only to such establishments that employ less than 10 persons at any time. The purpose of Exception No. 1 is to allow small stores to operate for necessitous purposes. It is common knowledge that, despite the ever-swelling dimensions of modern metropolises, a high percentage of the Commonwealth's population still lives in small towns or semi-rural communities, where restaurants and hotels are not as plentiful as lamp posts. In the absence of those modern dining facilities, the non-urban people turn to what has, for the last century or two, been the all-provider, as a hen with her chicks, for the village, hamlet, and town, namely, the corner grocery store. Thus, the General Assembly legislated into permanent Sunday existence this purely American institution. To prevent, however, that the little shop should take on a size and shape which would turn it into something more than the proverbial corner grocery store, the Legislature placed a limit of 9 persons on the number who could be employed in the store.

An establishment which employs a hundred persons during the week may not operate on Sunday, even if it calls out to work on that day only 9 persons. With the phenomenal development of automation it is possible to conceive of a supermarket employing 100 persons during the week, which could, with the use of these 100 employees, install devices which could be operated by 9 persons on Sundays. Such an operation could cater to large crowds, building up mass movement and traffic conditions leading to the crass commercialization of the Sabbath which the laws of Pennsylvania, down through the centuries, have consistently determined to prohibit.

The language of Exception No. 1 is not vague. It says that the Act shall not apply "to any retail establishment employing less than ten persons." It does not

[ 428 Pa. Page 35]

    say any Sunday establishment. It says establishment, period.

The plaintiff asks what would happen if the proprietor of a store prepared potato salad, cole slaw and hot dogs and at the same time sold fresh meats, produce and groceries in such volume that he employed 1,000 persons? The answer is that he would be arrested if he did this on Sunday, because he would fall under the provisions of Exception No. 1 which says that the sale of fresh meats, produce and groceries must be accomplished by not more than 9 persons. The preparation of potato salad, cole slaw and hot dogs comes under Exception No. 3, which will be discussed later.

The plaintiff asks why should there be a distinction between a grocery store which employs 9 persons and one which employs 10 persons? The answer is that a line must be drawn somewhere. Why is a young man under 21 exempt from contractual obligations involving non-necessaries and one who is 22 not so exempt? If the line were not drawn at 21, where would the next stop be? At 30, 40, 55?

Exception No. 2 is a humanitarian one. There are many small family-owned grocery stores from which a family derives its livelihood. It would be unjust to shut down this type of a store, while allowing the operation of marts which employ 9 persons. Since members of an immediate family do not, except in rare instances, go into an excessively numerous figure, there is no danger that a corner grocery store could swell into a mammoth supermarket manned by polygamists boasting hundreds of children.

The plaintiff asks, What is an immediate family? The New Random House Dictionary (published in 1966) defines family (this being the first definition in the list of meanings) as "Parents and their children, whether dwelling together or not." Of course, we know

[ 428 Pa. Page 36]

    that the word "family," in itself, is capable of a far more extensive scope. It can include aunts, uncles, nephews, nieces, cousins, and so on, but it is clear that the exception clause in the statute under consideration was not intended to embrace the whole span of consanguineal and in-law relatives. The statute restricts the word "family" to "immediate family." This restricts the phrase to lineal relatives and excludes collateral relatives. In Miller v. Preitz, 422 Pa. 383, 390, this Court, under special circumstances not here present, said that the word "family" may include nephews but it pointed out that the language there being interpreted "was not intended to be unduly restrictive." Here the language is intended to be unduly restrictive. It says "immediate family" and that, considering the obvious intention of the Legislature, can only mean husband, wife and children. To have the exception go beyond that circle of relatives would make meaningless the whole intent of the exception, namely, to restrict Sunday operations to small stores. If "immediate family" were to be interpreted to include uncles, aunts, nephews, brothers, sisters, cousins, grandchildren, the whole purpose of the exception would be lost because such an expansion of the family could fill an Ark.

The second part of Exception No. 2 might seem to be troublesome, if taken literally. Exception 2 says that the penal provisions of the Act shall not apply to a store where the enumerated commodities "are offered or sold by the proprietor or members of his immediate family OR employing less than ten persons." (Emphasis supplied.) Here, we must have recourse to the Statutory Construction Act which says that the intent of the Legislature is paramount and that, in determining that intent, the Court must be guided by the presumption "that the Legislature does not intend a result that is absurd, impossible of execution or unreasonable." (Statutory Construction Act, supra: § 52, 46

[ 428 Pa. Page 37]

P.S. § 552). The word "or" in Exception No. 2 was plainly intended to be conjunctive rather than disjunctive. This sometimes happens and such an interpretation received the imprimatur of this Court long ago. In Rolland v. Commonwealth, 82 Pa. 306, 326, Justice Paxson said: "We are therefore led to the conclusion that the word 'or' in the 135th section should be read 'and', which would make the offense that of burglary at common law. Such a mode of construing a statute is not without precedent. It was done by this Court in Murray v. Keyes, 11 Casey 334; Bollin v. Shiner, 2 Jones 205; Foster v. Com., 8 W. & S. 77."

In United States v. Fisk, 3 Wall. 445, the Supreme Court of the United States said: "In the construction of statutes, it is the duty of the court to ascertain the clear intention of the legislature. In order to do this, courts are often compelled to ...

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