Two Guys from Harrison-Allentown, Inc. v. McGinley Jurisdictional Statement

    IN THE

Supreme Court of the United States
October Term , 1959.

No. 6 ^ 7

TWO GUYS FROM HARRISON-ALLENTOWN, INC.,
Appellant,

V.

PAUL A. McGINLEY, District Attorney, County of Lehigh, 
Pennsylvania, Defendant and GEORGE J. JOSEPH, Dis­
trict Attorney, County of Lehigh, Pennsylvania, Substituted 
Additional Defendant,

Appellees.

On Appeal From the Final Order of a Three-Judge Court 
Sitting in the Eastern District of Pennsylvania 

Pursuant to 28 U. S. 0. § 2281 et seq.

JURISDICTIONAL STATEMENT.

H arold E .  K o h n ,
W il l ia m  T. C o l e m a n , J r.,
L o u is  E .  L e v in t h a l ,

2635 Fidelity-Philadelphia Trust Bldg., 
Philadelphia 9, Pa.,

M orris E f r o n ,
S02 Turner Street,

Allentown, Pa.,
D il w o r t h , P a x s o n , K a l is h , Attorneys for Appellant.

K o h n  & D il k s ,
O scar  B r o w n ,
H arry  A. K a l is h ,

Of Counsel.

International, 711 So. SOtii St., Phila. 43, Pa.



INDEX.
Page

A. Opinions Delivered in the Court B e lo w ..................................  1

B. Statement of the Grounds on Which Jurisdiction Is Invoked ; 2

C. Statutes Involved ......................................................................... 3

D. Questions Presented ..................................................................... 4

E. Statement of the C a se ..................................................................  7

F. The Federal Questions Are Substantial, Were Wrongly De­
cided Below, and Are of Great Public Importance........... 14

Conclusion ............................................................................................ 23

Appendix A—Opinion, Two Guys from Harrison-Allentown,
Inc. V. McGinley, U. S. D. C., E. D. Pa., Civil Action 
No. 25626 ...................................................................................  la

Appendix B— Supplementary Findings of Fact in the Same Case 20a

Appendix C—Opinion, Two Guys from Harrison-Allentown,
Inc. V. McGinley, U. S. C. A .(3 ) No. 13,096 ...................  23a

Appendix D— Final Order, Two Guys from Harrison-Allen­
town, Inc. V. McGinley, U. S. D. C., E. D. Pa., Civil Action 

No. 25626 ...................................................................................  24a



TABLE OF CASES CITED.
Page

19

19

Allen V. Colorado Springs, 101 Colo. 498, 75 P. 2d 141 (1938) 
Arrigo v. City of Lincoln, 154 Neb. 537, 48 N. W. 2d 643

(1951) ..........................................................................................
Bargaintown, U. S. A., Inc. v. Whitman, United States District 

Court for the Middle District of Pennsylvania, Civil Action
No. 6760 .......................................................................................15,23

Braunfeld v. Gibbons, U. S. D. Ct. for the Eastern District of
Pennsylvania, Civil Action No. 26,945 ................................. 23

Broadbent v. Gibson, 105 Utah 53, 140 P. 2d 939 (1943) . . . .  19
Brown v. Board of Education, 394 U. S. 483 ( 1 9 5 4 ) ...............  17
Chicago V. Atchison T. & S. F. R. Co., 357 U. S. 77 (1958) . .  22
City of Mt. Vernon v. Julian, 369 111. 447, 17 N. E. 2d 52

(1938) ..........................................................................................  19
Commonwealth ex rel. v. American Baseball Club of Philadel­

phia, 290 Pa. 136 (1927) .........................................................  4
Commonwealth v. Bander, 188 Pa. Super. Ct. 424, 145 A. 2d 

915 (1958), allocatur refused, 188 Pa. Super. Ct. xxviii . .  
County of Allegheny v. Frank Mashuda Co., 360 U. S. 185

(1959) ..........................................................................................
Crown Kosher Super Market of Massachusetts v. Gallagher,

176 F. Supp. 466 (D. Mass., 1959) ................................ 15,17,20
Cumberland Coal Co. v. Board of Revision, 284 U. S. 23 (1931) 22
Deese v. City of Lodi, 21 Cal. App. 2d 631, 69 P. 2d 1005

(1937) .......................................................................................... 19
Doud V. Hodge, 350 U. S. 485 (1956) ...........................................  22
E x parte Hodges, 65 Okla. Crim. 69, 83 P. 2d 201 (1938) . . . .  19
Friedman v. New York, 341 U. S. 907 (1951) ................... 12,16,17
Gaetano Bocci & Sons Co. v. Town of Lawndale, 208 CaHf.

720, 284 Pac. 654 (1930) ........................................................ 19
Gronlund v. Salt Lake City, 194 P. 2d 464 (Utah, 1 9 4 8 ) ......... 19

13

22



TABLE OF CASES CITED (Continued).
Page

Harrison v. NAACP, 360 U. S. 167 (1959) ................................  22
Henderson v. Antonacci, 62 So. 2d 5 (Fla., 1952) ...................  19
Hennington v. Georgia, 163 U. S. 299 ......................................... 18
Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203

(1948) .......................................................................................... 14
International Brotherhood of Teamsters, A. F. L. v. Vogt, Inc.,

354 U. S. 284 (1957) ................................................................  23
Lee V. Roseberry, 200 F. 2d 155 (C. A. 6th, 1952) ...................  2
Mackey Telegraph & Cable Co. v. Little Rock, 250 U. S. 94

(1919) .......................................................................................... 21
McGowan v. Maryland, 151 A. 2d 156 (Md., 1959), appeal

docketed in this Court at October Term, 1959, No. 438 . .  23
Morey v. Doud, 354 U. S. 457 (1957) ...........................................18,20
Murdock V. Pennsylvania, 319 U. S. 105 (1943) ........................ 18
People’s Appliance & Furniture, Inc. v. City of Flint, 99 N. W.

2d 522 (1959) .............................................................................  20
Plessey v. Ferguson, 163 U. S. 537 ............................................. 18
Public Utilities Commission v. United States, 355 U. S. 534

(1958) .......................................................................................... 22
Quaker City Cab Co. v. Commonwealth of Pennsylvania, 277

U. S. 389 (1928) ......................................................................  18
Query v. United States, 316 U. S. 486 (1942) ....................... ;.. 2, 23
Radio Corp. of America v. United States, 341 U. S. 412 (1951) 2, 23 
Sarner v. Township of Union, Superior Ct. of N. J., Law Revi­

sion, Docket No. L-13061-57 P. W. (May 7, 1 9 5 9 ) ........... 23
Smith V. Cahoon, 283 U. S. 553 (1931) ...........................................  18
Sparhawk v. The Union Passenger Railway Co., 54 Pa. 401

(1867) .......................................................................................... 4
Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350 (1918) . . . .  22
Two Guys from Harrison-Allentown, Inc. v. Paul A. McGinley,

266 F. 2d 427 (C. A. 3rd, 1959) ............................................  8
West Virginia State Board of Education v. Barnette, 319 U. S.

624 (1943) ...................................................................................  16
Yick Wo V. Hopkins, 118 U. S. 356 (1886) ..............................  22



STATUTES AND AUTHORITIES CITED.
Page

Act of April 22, 1794, 3 Sm. L. 177, § 1, 18 Purd. Stat. § 4699.4
3, et seq.

Amendatory Act of August 10, 1959, P. L. No. 212, 18 Purd.
Stat. §4699.10 ......................................... ............................ 3, et seq.

IV Blackstone, Commentaries on the Laws of England (9th Ed.
1783), Chapter 4, pp. 63-64 .....................................................  14

Fisher, History of the Institution of the Sabbath Day, pp. 63-66 14
Mark, The Faith of Our Fathers, p. 286 ....................................  14
18 Purd. Stat. § 4302 ......................................................................... 8
III Stokes, Church and State in the United States, pp. 154-56,

157-58, 168-69 .............................................................................  14
28 U. S. C. § 1253 ................................................................................  2
28 U. S. C. § 1 2 9 1 ................................................................................  2
28 U. S. C. § 1 3 3 1 ................................................................................  8
28 U. S. C. § 1343 ................................................................................  8
28 U. S. C. §2281 ................................................................................2 ,7 ,8
28 U. S. C. § 2284 ................................................................................ 8
42 U. S. C. § 1 9 8 1 ................................................................................  8
42 U. S. C. § 1983 ................................................................................  8
U. S. Constitution:

First Amendment ...................................................................... 14, 18
Fourteenth Amendment ............................................................14, 18



IN THE

Supreme Court of the United States.

October Term, 1959.

No.

TWO GUYS FROM HARRISON-ALLENTOWN, INC.,
Appellant,

PAUL A. McGINLEY, DISTRICT ATTORNEY, 
COUNTY OF LEHIGH, PENNSYLVANIA, DE­
PENDANT AND GEORGE J. JOSEPH, DISTRICT 
ATTORNEY, COUNTY OF LEHIGH, PENNSYL­
VANIA, SUBSTITUTED ADDITIONAL DEPEND­
ANT,

Appellees.

On  A ppeal P rom the P inal Order of a T hree-Judge 
Court S itting in  the E astern D istrict op P ennsylvania 

P ursuant to 28 U. S. C. § 2281 et seq.

JURISDICTIONAL STATEMENT.

A.
Opinions Delivered in the Court Below.

The majority opinion of the three-judge court, filed on 
December 1, 1959 but not yet reported, is annexed hereto 
as Appendix A, infra. Appendix A also contains Senior 
District Judge Welsh’s dissenting opinion beginning on



2 Jurisdictional Statement

p. 16a, et seq., infra. On December 7, 1959 the three-judge 
court denied a timely petition for rehearing, but simul­
taneously filed supplemental findings of fact which are an­
nexed hereto as Appendix B, infra, p. 20a, et seq.

An appeal to the Court of Appeals for the Third Cir­
cuit, solely with respect to the claim of discriminatory en­
forcement was filed and was dismissed for lack of juris­
diction on December 9, 1959. An opinion thereon was filed 
on December 23, 1959, a copy of which is annexed hereto as 
Appendix C, infra, p. 23a. Appellant is simultaneously 
hereudth filing a petition for a writ of certiorari to review 
said dismissal.

An appeal to the Court of Appeals for the Third Cir­
cuit on an earlier phase of this case is reported at 266 F. 2d 
427 (C. A. 3rd, 1959).

B.
Statement of the Grounds on Which Jurisdiction 

Is Invoked.
The final order from which appeal is taken is from the 

decision of the three-judge court entered on December 7, 
1959, on which day rehearing was also denied. See Ap­
pendix D. The notice of appeal was filed December 18, 
1959 in the District Court.

The jurisdiction of this Court is invoked under 28
U. S. C. §§ 1253, 1291 and 2281 et seq., the appeal being 
from a final order of a three-judge court which refused a 
permanent injunction and dissolved the temporary injunc­
tion on the ground that the state statutes attacked by appel­
lant did not conflict with the Federal Constitution. Query
V.  United States, 316 U. S. 486, 490-91 (1942); Two Guys 
from Harrison-Allentown, Inc. v. McGinley, No. 13,096 
(C. A. 3rd, December 23, 1959) (Appendix C ); see also 
Lee V.  Roseberry, 200 F. 2d 155, 156 (C. A. 6th, 1952); cf. 
Radio Corp. of America v. United States, 341 U. S. 412 
(1951).



Jurisdictional Statement

0.
Statutes Involved.

The Pennsylvania statutes whose validity are involved 
are the basic Pennsylvania Sunday law which provides;

“ Whoever does or performs any worldly employ­
ment or business whatsoever on the Lord’s Day, com­
monly called Sunday (works of necessity and charity 
only excepted), or uses or practices any game, hunting, 
shooting, sport or diversion whatsoever on the same day 
not authorized by law, shall, upon conviction thereof 
in a summary proceeding, be sentenced to pay a fine 
of four dollars ($4), for the use of the Commonwealth, 
or, in default of the payment thereof, shall suffer six 
(6) days’ imprisonment.

“ 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 waterman 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.’’ Act of April 22, 
1794, 3 8m. L. 177, § 1, 18 Purd. Stat. § 4699.4 (bold 
face type supplied),

and the Amendatory Act of August 10, 1959 which pro­
vides:

“Whoever engages on Sunday in the business of 
selling, or sells or offers for sale, on such day at retail,
clothing and wearing apparel, clothing accessories, 
furniture, housewares, home, business or office fur­
nishings, household, business or office appliances, hard-



4 Jurisdictional Statement

ware, tools, paints, building and lumber supply ma­
terials, jewelry, silverware, watches, clocks, luggage, 
musical instruments and recordings, or toys, excluding 
novelties and souvenirs, shall, upon conviction thereof 
in a summary proceeding for the first offense, be sen­
tenced to pay a fine of not exceeding one hundred dol­
lars ($100), and for the second or any subsequent 
offense committed within one year after conviction for 
the first offense, be sentenced to pay a fine of not 
exceeding two hundred dollars ($200) or undergo im­
prisonment not exceeding thirty days in default 
thereof.

“ Each separate sale or offer to sell shall constitute 
a separate offense . . . ” P. L. No. 212, 18 Purd. Stat. 
§ 4699.10. (bold face type supplied)

The Federal Constitutional provisions involved are the 
F irst and Fourteenth Amendments to the Constitution of 
the United States including the equal protection and due 
process clauses of the latter Amendment.

D.
Questions Presented.

The basic Pennsylvania Sunday Blue Law, the Act of 
April 22,1794,18 Purd. Stat. § 4699.4, prohibits all “worldly 
employment”  except acts of necessity on the “ Lord’s Day 
(commonly called Sunday)” so that the citizens of Penn­
sylvania can “ read the Scriptures”  and attend “ religious 
worship.”  Sparhawk v. The Union Passenger Railway Co., 
54 Pa. 401, 408-09, 423 (1867); Commonwealth ex rel. v. 
American Baseball Club of Philadelphia, 290 Pa. 136, 143 
(1927). This Act was amended on August 10,1959 so as to 
impose additional and heavier penalties on those who sold 
or offered to sell at retail certain enumerated merchandise 
on the Lord’s Day. The court below made the following 
findings of fact:



Jurisdictional Statement

(1) the Amendatory Act of August 10, 1959 was to 
force the cessation of work on Sunday in order to com­
memorate weekly the sectarian religious event and doctrine 
of the Eesurrection of Jesus Christ, the same event and 
doctrine as are commemorated by the Christian Easter 
(4a, 20a);

(2) that such practice was offensive to those persons 
whose religious teachings were contrary to those which gave 
such religious significance to Sunday, including Seventh 
Day Adventists, Seventh Day Baptists, Jews and atheists 
(4a);

(3) that work on Sunday had no different effect on the 
health or welfare of appellant’s employees or customers 
from work on any other day (20a);

(4) Pennsylvania has a separate and distinct pattern 
of economic laws regulating hours of work which operate 
completely independently of the Sunday Laws (22a);

(5) by legislative acts and court decisions many sub­
stantially similar activities are exempt from the Sunday 
Blue Law (20a), and

(6) many activities substantially similar to those en­
gaged in by the appellant have been and will be permitted 
by law enforcement officers in Pennsylvania even though 
nominally prohibited by statutes and^^ourt decisions (14a).

The record also shows that for pe'rsonal profit reasons 
appellee. District Attorney Paul A. McGinley, wilfully and 
discriminatorily enforced the law only against appellant and 
not against other similar businesses even though such dis­
crimination was called to his attention and protested. The 
court below refrained from making requested findings on 
the issue of discrimination in administration on the ground 
that McGinley’s term of office would shortly expire, but 
many prosecutions instituted by him still are pending.



Jurisdictional Statement

The questions therefore presented a re :
1. Does the Pennsylvania Act of August 10,1959, in the 

light of the court findings referred to above, violate the 
Fourteenth Amendment to the Federal Constitution be­
cause :

(a) it is a law respecting the establishment of 
religion;

(b) it discriminates against certain religions and 
prefers one religion over other religious beliefs;

(c) there is no reasonable basis for the classifica­
tion of prohibited and permitted activities contained in 
the Pennsylvania Act of August 10, 1959 and other 
Pennsylvania statutes and court decisions dealing with 
worldly activities in Pennsylvania on the Lord’s Day;

(d) it imposes oppressive and discriminatory 
fines?

2. Did the wilful, arbitrary and discriminatory enforce­
ment of the Pennsylvania Sunday Blue Law against appel­
lant by appellee. District Attorney Paul A. McGinley, 
deprive appellant of rights guaranteed it by the Fourteenth 
Amendment to the Federal Constitution?

3. Did the court below err in refusing to pass upon the 
constitutionality of the Act of April 22,1794,18 Purd. Stat. 
§ 4699.4, and dismissing that part of the complaint on the 
ground that a subsequent Pennsylvania court decision might 
make said statute inapplicable to appellant’s employees, 
despite the fact that (a) there was a state court decision 
that said Act did apply to appellant’s employees and (b) 
appellant sold many items not covered by the Act of 
August 10, 1959 but covered by the Act of April 22, 1794?



Jurisdictional Statement

E.
Statement of the Case.

This appeal is from the final order of a three-judge 
court for the Eastern District of Pennsylvania which denied 
a permanent injunction and dissolved the Temporary In­
junction, after upholding by a two to one vote the con­
stitutionality of the Pennsylvania Sunday Blue Laws, in­
cluding the Amendatory Act of August 10, 1959, P. L. 212, 
18 Purd. Stat. § 4699.10.

Said court was convened pursuant to Sections 2281, et 
seq. of Title 28 V. S. C.

The court below expressly held that its decision was 
“ contrary to the view of the majority of the three-judge 
district court which recently decided Crown Kosher Super 
Market v. Gallagher, 176 F. Supp. 466 (D. Mass. 1959),” 
p. 10a, infra, which case is now on direct appeal to this 
Court at Docket No. 532, October Term, 1959.

Appellant herein. Two Guys from Harrison-Allentown, 
Inc., operates a retail store in Whitehall Township, Lehigh 
County, Pennsylvania, employing 300 persons. The store 
is along the highway outside the City of Allentown, with a 
parking lot for several thousand cars and caters to the 
family shopping group out for a Sunday drive and in­
terested in economy as against “ fancy and expensive down­
town store” services.

Appellant opened its store in Lehigh County at a cost 
of over $1,000,000 only after it had been told that no one 
ever had been prosecuted for selling on Sunday and being 
assured by the township officials that its operation was 
permissible (N. T. 91, 96-97).^ After appellant was open 
for six months the appellee, Paul A. McGinley, then the 
District Attorney of Lehigh County, began to arrest ap­
pellant’s employees for violations of the Act of April 22, 
1794,18 Purd. Stat. § 4699.4, the basic Pennsylvania Sunday 
Blue Law. These arrests and prosecutions continued every

1. The “N. T.” references are to notes of testimony taken in the 
court below.



8 Jurisdictional Statement

Sunday although other business activities were permitted 
by appellee McGinley without arrest.^ A year later, in 
November, 1958, said appellee threatened to arrest appel­
lan t’s employees for conspiracy, the penalty for which is 
a two year jail sentence and a $500 fine. 18 Purd. Stat. 
§ 4302.

The appellant thereupon bro-ught a bill in equity in 
the Federal Court for the Eastern District of Pennsylvania 
pursuant to 28 U. S. C. §§ 1331 and 1343, 42 U. S. C. 1981 
and 1983 and to 28 U. S. C. §§ 2281 and 2284. The biU in 
equity alleged that the Pennsylvania Sunday Law—the Act 
of April 22, 1794—was unconstitutional because: (a) it was 
a law respecting the establishment of religion; or (b) a law 
which prefers or places at an advantage one religion over 
others; (c) it denies equal protection sincn it was discrim­
inatory; and (d) the appellee, Paul A. McGinley. was apply­
ing the law to appellant in a wiLfuUy discriminatory manner, 
thi complaint and affidavits the Court issued a temporary 
restraining order.

Since appellant was making an attack on the consti­
tutionality of a state statute the matter was heand before 
a specially constituted three-ittdge court. See Guys
from Harnson-AUrntou'K. Inc 
F. 2d 427 tO. A. 3rd. 1959t. 

luutuvuatcly prior to the 
the Cou.ip’air.t. the

F^'y.1 A. ilc ir ifiiz 'J . 2fi6

ilHug of
passed an ameimatory act 
which si’tgled out tor mo

' 1 ev.r.sy.varaa ijcgtslsture 
;e Ae: of August lA  —
■s. '  t, , t. ~

sales of par'ieu lar utereh.ar.dise seie. hy t ie  aroehlant. The 
bill in eqr.ity w.as ;uuor.d< \̂i to ittoitme at. s ttsck  csu the oon- 
siinuionalily of th.is .\ct on the SAme grounds^

The court after hoarittg grante\i a prelintinary injiunc- 
tion against enforcomoi\i of tlie Sunday Blue Laws against 
appellant after finding that "sttbstanti.al and irreparable in-

2. 'fho Ktvord shows that ap>p>e]lee, Paul A. McGinlej-, dis- 
criininatol against plaiutitTs employees because he was improperly 
induced to do so hy Max Hess, the President and owner of Hess’ 
Departtnent Store, ap;x'llant's principal business competitor (N . T. 
178-79, 2.h):i-41, 19.S, 254-.S.S).



Jurisdictional Statement

jury will be suffered by plaiutilT [if the statutes are applied 
to it] because plaintiff will be required to discontinue the 
operation of its store on Sunday, the day of its largest 
sales volume.”  (Order dated September 11, 1959.)

The case was tried on the merits in October, 1959. The 
court found that appellee, Paul A. McGinley, had threatened 
to enforce the Act of August 10, 1959, P. L. 212, 18 Purd. 
Stat. § 4699.10, against appellant’s employees, that he had 
in the past enforced the Act of April 22,1794,18 Purd. Stat. 
§ 4699.4, against appellant’s employees, that appellant had 
no adequate remedy at law and that appellant would ‘ ‘ suffer 
irreparable harm.” See Appendix A, infra, p. 2a and 
Appendix B, infra, p. 22a.

Certain findings also are relevant to the merits of the 
question of the constitutionality of the Act of August 10, 
1959.

The court below found that the origin, purpose and 
effect of the Pennsylvania Sunday Laws, including the Act 
of August 10, 1959, were to force observation of the 
Christian Lord’s Day and that there were many persons in 
Pennsylvania who were offended in their religious beliefs 
by the required cessation of business on Sunday since it 
is “ an enforced expression of respect for and acknowledg­
ment of the sacred character and religious symbolism of the 
Christian Sabbath, a religious institution commemorating 
the resurrection of Christ.” Appendix A, infra, p. 4a.

The Court also made the following additional findings 
of fac t:

“ 1. Sunday is a day designated for religious serv­
ices and observances of Christians, with the exception 
of certain Seventh Day Adventists and Baptists. The 
Christian Sabbath commemorates and honors the Ees- 
urrection of Christ. I t  is marked by a weekly cele­
bration of the same religious event basic to Christianity 
as is celebrated by Easter.

“ 2. Sunday work at plaintiff’s store has no differ­
ent effect upon the health or welfare of either the em-



10 Jurisdictional Statement

ployees or customers of the store than does work on 
any other day.

“ 3. Various Pennsylvania statutes create excep­
tions to the general statutory prohibition of worldly 
activity on Sunday, or increase the penalties for con­
ducting activities prohibited thereby. These statutes 
now make it lawful, despite the general prohibition, to 
operate a motion picture house after 2:00 P. M. on 
Sunday if the voters of the municipality so vote by 
referendum. Act of July 2, 1935, P. L. 599, 4 Purd. 
Stat. §§ 59-65; to play professional baseball and foot­
ball after 2 :00 P. M. and before 6 :00 P. M. on Sunday 
if the voters of the municipality so vote by referendum. 
Act of April 25, 1933, P. L. 74, 4 Purd. Stat. §§ 81-77; 
to stage musical concerts after 12:00 noon on Sunday 
when authorized to do so by the Commonwealth’s De­
partment of Public Instruction and to compensate 
musicians participating in such concerts. Act of June 2, 
1933, P. L. 1423, No. 308, 4 Purd. Stat. §§ 121-127; to 
play polo after 1 :00 P. M. and before 7 :00 P. M. on 
Sunday unless the voters of the municipality have voted 
to the contrary by referendum. Act of June 22, 1935, 
P. L. 446, 4 Purd. Stat. §§ 151-157; to play tennis after 
1 :00 P. M. and before 7 :00 P. M. on Sunday, Act of 
June 22, 1935, P. L. 449, 4 Purd. Stat. §§ 181-185, pro­
vided that the conduct of other sports on Sunday after­
noon has been approved by municipal referendum; to 
fish on Sunday, Act of April 14, 1937, P. L. 312, 1, as
amended, 30 Ptrrd. Stat. § 265; to remove raccoons and 
fur-bearing animals caught in hunting traps or dead­
falls on Sunday, Act of June 3, 1937, P. L. 1225, Art. 
VII, § 702, as amended, 34 Purd. Stat. § 1311.702; and 
for a private chib, but not a restaurant or hotel, to sell 
liquor to its members on Sunday, xVct of April 12,1951, 
P. L. IX\ A ll. IV, 406, as amended, 47 Purd. Stat.

4-4lX> (pp. 71-72).



Jurisdictional Statement 11

“ 4. The fine for the generality of offenses, includ­
ing the conduct of some games and amusements is $4.00, 
plus costs that run from two to four times the fine. But 
for howling, baseball and football during prohibited 
hours, it is $10.00, 18 Purd. Stat. § 4651, 4 Purd. 8 tat. 
§ 82; for polo $100, for motion pictures $50.00, for 
musical concerts $100 to $1,000, 4 Purd. Stat. §§ 152, 
65, 127. For persons selling motor vehicles at retail 
or wholesale, the fine is $100 for engaging in business 
the first Sunday and $200 thereafter, 4 Purd Stat. 
% 4699.9. For selling motor boats, it is $4.00. For 
selling an automobile air-conditioner, it is $4.00. For 
selling a home air-conditioner it is $100 for each sale 
at retail, hut only $4.00 at wholesale. Sale of slip 
covers for automobile seats all day Sunday entails a 
$4.00 fine; the sale of a slip cover for a living room 
chair at retail entails a $100 fine for the first sale and 
$200 for each and every sale thereafter, and for each 
unsuccessful offer to sell. To sell or offer to sell toys 
after the first offer is subject to a $200 fine, whereas 
novelties and souvenirs can be sold for the entire day 
for the payment of one $4.00 fine. Certain sports equip­
ment is in the $4.00 category, including shoes used in 
forbidden sports. On the other hand, the sale of a 
pair of shoes for business wear is in the $100 category.

“5. The Commonwealth of Pennsylvania, has en­
acted a pattern of economic laws under the police power 
regulating hours of work, which operate completely 
independently of the Sunday laws. They include such 
statutes as Act of July 25, 1913, P. L. 1024, § 3, as 
amended, 43 Purd. Stat. § 103(a) (women cannot work 
more than six days in any one week); Act of May 13, 
1915, P. L. 286, § 4, as amended, 43 Purd. Stat. § 46 
(persons under the age of 18 cannot work more than 
six consecutive days in any one week); Act of May 27, 
1897, P. L. 112, § 1,43 Purd. Stat. § 361 (bakery workers



12 Jurisdictional Statement

cannot work more than six days in any one week); Act 
of March 31, 1937, P. L. 159, § 1, 43 Purd. Stat. % 481 
(employees of motion picture theaters must be given 
one day of rest per week).”  Appendix B, infra, pp. 
20a-22a.

The majority of the court, however, refused to declare 
the two Pennsylvania statutes under attack unconstitu­
tional. With respect to the Act of August 10, 1959, it held 
that despite the clear proof of the religious origin, purpose 
and effect thereof, this Court’s action in Friedman v. New 
York, 341 U. S. 907 (1951), wherein this Court dismissed 
an appeal with respect to a New York Sunday statute for 
“ want of a substantial federal question,” precluded an in­
dependent consideration of the constitutionality of such 
statute, since that decision had to be construed as a holding 
that any Sunday Blue Law even though religious in origin, 
purpose and effect, nevertheless does not violate the 
Fourteenth Amendment. With respect to the argument on 
the equal protection clause due to the unreasonable and 
discriminatory classification contained in the 1959 Act, 
the court, ignoring religious overtones of the statute, 
held that where the statute deals with economic matters 
this Court permits “ even near whimsical classifications 
when made by state logislat^lres in the selection of schemes 
or areas or subject matter for economic regulations.”  Ap­
pendix .V, infra, p. 12a.

’Phe court below refrained fi*om passing upon the claim 
(hat the appellee Bistriet .Vltonioy. Paiil A. McGinley. had 
wilfully atul discriminatorily enfonnxl Sunday Laws 
against the appellant. It coiuHHle<l and found as a fact that 
there ha»l been no enfon*ement prior to actions against the 
appellant. But it held that it Ŷvn̂ ld run make “ an anticipa­
tory tindiiig”  with res^Hn't to the fuutro because the term of 
I'aul .V. MoOinley as Bistrict -Vttornev wvntld expire, ac- 
vanxliiig to the t\n irt. on IXwmK'r c l. But it did
admit that ou the prx'sent txxvrvi even after appellee's term



Jurisdictional Statement 13

would end “ 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.”  Appendix A, infra, p. 14a.

I t  disposed of the constitutional problem thus pre­
sented, however, by the novel theory that any discrimination 
that could be carried out by the Legislature through a 
statute would be equally valid if carried out by the indi­
vidual law enforcement officer by applying the statute 
against only certain businesses regardless of the motive for 
the discrimination on the part of the official. Appendix A, 
infra, p. 14a.

On the theory that a Pennsylvania court might hold 
that activities covered by the Act of August 10, 1959 were 
now exempt from the broader provisions of the Act of 1794, 
it refused to pass upon the constitutionality of the Act of 
1794. I t  did this despite the fact that less than a year be­
fore the highest Pennsylvania court had held that appel­
lan t’s employees were covered by the Act of 1794, Common­
wealth V.  Bander, 188 Pa. Super. Ct. 424, 145 A. 2d 915 
(1958), allocatur refused, 188 Pa. Super. Ct. xxviii, and ap­
pellee himself was still contending that he could arrest 
under the Act of 1794 (Appendix A, infra, p. 3a), and 
appellant sold many items covered only by the Act of 1794.

As stated above, the court entered a final order deny­
ing the prayer for final relief and dissolving the temporary 
restraining order previously in effect. On rehearing, the 
court, inter alia, refused to retain jurisdiction of the part 
of the case dealing with the Act of 1794 pending a state 
court determination.

Appellant attempted to appeal to the Court of Appeals 
solely from the part of the court’s order that dealt with the 
question of discriminatory enforcement by appellee, Paul 
A. McGinley, but the Court of Appeals held that an appeal 
from any action of a three-judge court would have to be 
to this Court, even with respeci to the part of the case which 
could have been heard originally by a single judge.



14 Jurisdictional Statement

This Court on December 11, 1959, refused to reinstate 
the restraining order pending the Appeal.

After the expiration of the term of office of Paul A. 
McGinley, an order was entered permitting appellant to 
substitute George J. Joseph, the new District Attorney, as 
an additional defendant.

F.
The Federal Questions Are Substantial, Were Wrongly 

Decided Below, and Are of Great Public Importance.

I.
This is the first case where a court has made an explicit 

finding of fact that a particular state law complained of is 
religious in origin, purpose and effect and yet sustained the 
statute against a claim of unconstitutionality.® Such a 
result clearly conflicts with the decisions of this Court hold­
ing the F irst Amendment to the Federal Constitution is 
made applicable to states by the Fourteenth Amendment. 
See Illinois ex rel. McCollum v. Board of Education, 333 
U. S. 203, 210-11 (1948), which set up the test of prohibited 
state action in the religious field as follows:

“ Neither a state nor the federal Government can 
set up a church. Neither can pass laws which aid one 
religion, aid all religions, or prefer one religion over 
another. Neither can force or influence a person to go 
to or to remain away from church against his will or 
force him to profess a belief or disbelief in any religion.
3. Recognized scholars from Blackstone to Chief Judge 

Magruder have recognized the religious nature and effect of Sunday 
Blue Laws. IV B lackstone, Com m enta ries  on t h e  L aws of 
E ngland (9th Ed. 1783), Chapter 4, pp. 63-64; M ark , T h e  F a it h  
of O ur  F ath ers , p. 286; F is h e r , H istory of t h e  I n stitu tio n  of 
THE S abbath D ay, pp. 63-66; I I I  S tokes, C h u r c h  and S tate in  
t h e  U nited  States, pp. 154-56, 157-58, 168-69; see also plaintiff’s 
Brief in the court below, copies of which were filed with this Court on 
December 9, 1959 in support of its petition for an interim restraining 
order.



Jurisdictional Statement 15

No person can be punished for entertaining or pro­
fessing religions beliefs or disbeliefs, for church at­
tendance or nonattendance . . .  In the words of 
Jefferson, the clause against establishment of religion 
by law was intended to erect ‘a wall of separation be­
tween church and state.’ ”
The decision in the case at bar also conflicts with the 

decision of the three-judge court of the District of Massa­
chusetts which held unconstitutional the Massachusetts 
Sunday Law. Crown Kosher Super Market of Massachu­
setts V.  Gallagher, 176 F. Supp. 466 (D. Mass., 1959), now 
on appeal to this Court at Docket No. 532, October Term, 
1959. In that case the court said;

“ What Massachusetts has done in this statute is to 
furnish special protection to the dominant Christian 
sects which celebrate Sunday as the Lord’s day, with­
out furnishing such protection, in their religious ob­
servances, to those Christian sects and to Orthodox 
and Conservative Jews who observe Saturday as the 
Sabbath, and to the prejudice of the latter group.

“ For reasons closely related to those just set 
forth, the objection is well taken that, in furtherance 
of no legitimate interest which Massachusetts is en­
titled to safeguard, the statute arbitrarily requires 
Crown Market to be closed on Sunday, thereby causing 
the corporate plaintiff to lose potential sales and to be 
denied the right to use its property on Sunday, with 
the result of depriving the corporate plaintiff of liberty 
and property and the other plaintiffs of liberty, without 
due process of law, contrary to the Fourteenth Amend­
ment.”  p. 475.
Also, Judges Goodrich and Hastie in Bargaintown, 

U.S.A., Inc. V.  Whitman, United States District Court for 
the Middle District of Pennsylvania, Civil Action No. 6760,



16 Jurisdictional Statement

a case dealing with the Pennsylvania Act of August 10, 
1959, said:

“ If  the question involved in this case came to us 
as one of first impression we would find great difficulty 
in upholding the constitutionality of the legislation in 
question. ’ ’

Judge Hastie was also one of the majority below in this 
case.

Such doubt as to constitutionality certainly is not 
disposed of by a simple reference to this Court’s single line 
order in Friedman v. New Yorlc, 341 U. S. 907 (1951).

The compulsory abstention from work on Sunday is a 
compulsory form of religious observance, like kneeling, 
eevering or uncovering the head and other ceremonies or 
symbols. As this Court said in the flag salute ease, TTest 
Virginia State Board of Education v. Barnette, 319 U. S. 
624, 632-33, 642 (1943):

“ There is no doubt that, in connection with the 
pledges, the flag salute is a form of utterance. Sym­
bolism is a primitive but effiective way of communicat­
ing ideas. The use of an emblem or flag to symbolize 
some system, idea, institution, or personality, is a short 
cut from mind to mind. Causes and nations, political 
parties, lodges and ecclesiastical groups seek to knit 
the loyalty of their followings to a flag or banner, a 
color or design. The State announces rank, function, 
and authority through crowns and maces, unite runs and 
black roises: the church speaks through the Cress, the 
Cracihx. the altar and shrine, and dkrieal raiment. 
Symbols of State often convey politieal ideas just as 
religious symbols come to convey theological ones. As­
sociated with many of these symbols are appropriate 
gestures of acceptance or respect: a salute, a bowed 
or bared head, a bended knee. A person gets from a 
symbol the meaning he puts into it, and what is one



Jurisdictional Statement 17

man’s comfort and inspiration is another’s jest and
scorn.

“ If  there is any fixed star in our constitutional 
constellation, it is that no official, high or petty, can 
prescribe what shall be orthodox in politics, national­
ism, religion, or other matters of opinion or force 
citizens to confess by word or act their faith therein. 
I f  there are any circumstances which permit an ex­
ception, they do not now occur to us.

“ We think the action of the local authorities in 
compelling the flag salute and pledge transcends con­
stitutional limitations on their power and invades the 
sphere of intellect and spirit which it is the purpose 
of the F irst Amendment to our Constitution to reserve 
from all official control.”

The findings of the court below with respect to a sepa­
rate statutory scheme for hours of work and the effect of 
Sunday work on the employees and customers, as well as 
Chief Judge M agruder’s clear analysis of the day-of-rest 
argument in the Crown Kosher case, supra make it crystal 
clear that the question of Sunday Laws must he squarely 
met and disposed of by this Court. In Friedman v. New 
York, supra, there was no finding by the court below that 
the statute involved was religious in nature, purpose or 
effect. The same thing is true of the other Sunday Law 
cases which this Court has refused to hear since 1950.

I t  would seem, in accordance with the proeednre fol­
lowed in Brown v. Board of Education, 394 IT. S. 4S3 (1954), 
that this new finding of fact requires a reconsideration of 
the Friedman rule, just as the new finding of fact by the 
lower court in the Brown case required a reconsideration of 
the separate-but-equal doctrine. More basic in fact is that 
Friedman, supra is not here controlling. Crmcn Kosher v. 
Gallagher, supra.



18 Jurisdictional Statement

The last full opinion by this Court on Sunday laws was 
in 1896 {Bennington v. Georgia, 163 U. S. 299, 304), the 
same year as Plessey v. Ferguson, 163 U. S. 537, and was a 
half century prior to the decision in Murdock v. Pennsyl­
vania, 319 U. S. 105 (1943), which for the first time held 
that the religious protections of the F irst Amendment apply 
to state action, under the Fourteenth Amendment.

n.
As set out in findings of facts Nos. 3 and 4 of the court 

below. Appendix B, infra, pp. 20a-21a, the business and com­
mercial activities permitted on Sunday and the varying 
fines for those prohibited afford no rational basis for dis­
tinction between those prohibited and those subject to 
stringent penalty. And the penalties are in some cases 
200 times the amount collected on the sale.

In  what manner does a sale at retail differ from a sale 
at wholesale justifying different Sunday treatment? If 
these are day-of-rest statutes, do not employees of whole­
sale establishments, factories and service establishments 
need a day of rest too? What is the distinction between 
commodities not listed in the Act of August 10, 1959 as 
against those contained therein?

Certainly such willy-nilly statutory distinctions do not 
comply with the constitutional requirement that “ a statu­
tory discrimination must be based on differences that are 
reasonably related to the purpose of the Act in which it is 
found.”  Morey v. Doud, 354 U. S. 457, 465 (1957); Smith 
V.  Gaboon, 283 U. S. 553, 567 (1931); see also Quaker City 
Cab Co. V.  Commonwealth of Pennsylvania, 277 U. S. 389, 
406 (1928), wherein this Court said:

“ . . . classification must rest upon a difference 
which is real, as distinguished from one which is 
seeming, specious, or fanciful, so that all actually situ-



Jurisdictional Statement 19

ated similarly will be treated alike; that the object of 
the classification must be the accomplishment of a 
purpose or the promotion of a policy, which is within 
the permissible functions of the state; and that the 
difference must bear a relation to the object of the 
legislation which is substantial, as distinguished from 
one which is speculative, remote or negligible.”

If  it be argued that the reason for the classifications 
and exemptions in the present Pennsylvania Sunday sta­
tutes is to keep pace with changing mores of proper deport­
ment on Sunday, to permit those recreational activities 
which modern religion tolerates and to ban or condemn 
commercial and business activities which it disapproves of, 
—the sohcalled “ continental Sunday”—such legislation 
would be seeking to achieve an unconstitutional purpose, 
namely to establish religion, albeit a more relaxed t5rpe of 
religion than the Puritan principles which the original Sun­
day laws were enacted to serve. I t would be unconstitu­
tional because of this end purpose. No other tenable or 
rational basis for the classification and discriminatory ex­
emptions can be advanced.

Many State cases faced with statutory classification 
schemes less discriminatory than the Pennsylvania situa­
tion have held their Sunday laws unconstitutional as denial 
of equal protection of laws. See e.g., City of Mt. Vernon 
V.  Julian, 369 111. 447, 17 N. E. 2d 52 (1938) ; Arrigo v. City 
of Lincoln, 154 Neb. 537, 48 N. W. 2d 643 (1951); Gronlund 
V.  Salt Lake City, 194 P. 2d 464 (Utah, 1948); Allen v. 
Colorado Springs, 101 Colo. 498, 75 P. 2d 141 (1938); 
Gaetano Bocci S  Sons Go. v. Town of Lawndale, 208 Calif. 
720, 284 Pac. 654 (1930); Deese v. City of Lodi, 21 Cal. App. 
2d 631, 69 P. 2d 1005 (1937); Broadbent v. Gibson, 105 
Utah 53, 140 P. 2d 939 (1943); E x parte Hodges, 65 Okla. 
Crim. 69, 83 P. 2d 201 (1938); Henderson v. Antonacci, 62 
So. 2d 5 (Fla. 1952).



20 Jurisdictional Statement

Once again the F irst Circnit’s decision in Crown 
Kosher Super Market of Massachusetts v. Gallagher, 176 
F. Supp. 466 (D. Mass., 1959), is directly opposite that of 
the decision in the case at bar. Moreover, even if the law 
were economic rather than religious, this Court has never 
held that merely because a law is economic in purpose a 
Legislature can engage in “ whimsical classifications.”  In  
fact, this Court has repeatedly held that even with respect 
to economic legislation the classification must be reasonable 
and be based upon a difference between those activities in­
cluded and those excluded. Morey v. Doud, 354 U. S. 457 
(1957).

Appellant is engaged in a new type of merchandising 
which the public is very much in favor of. Obviously the 
existing downtown stores are using every method to throttle 
this unwelcome competition. As Senior Judge Welsh ob­
served in his dissent, the downtown department stores seek 
to stifle the competition by reviving the religious laws 
which had fallen into disuse (18a-19a). Since this law 
affects the economic life of a large segment of a particular 
industry certainly this matter should be resolved by this 
Court.

III.
The decision of the court below affects adversely all 

those who do not believe in the resurrection of Christ on 
Sunday, including Jews, who are 3.04% of the population 
and Seventh Day Adventists and Baptists who are 1% of 
the population. I t  also affects adversely the 4% of the 
population that has no religious traditional affiliation or 
belief. The decision unfortunately represents the type of 
judicial approach to Sunday Law questions so ably de­
scribed by Judge Voelker in People’s Appliance <& Furni­
ture, Inc. V.  City of Flint, Supreme Court of Michigan, Nov. 
24, 1959, 99 N. W. 2d 522, 530 (1959):

“ . . . there exists a curious and rather wide­
spread judicial reticence when our courts are dealing



Jurisdictional Statement 21

with so-called Sunday ordinances. The judicial ap­
proach then often seems to become gingerly to the point 
of timidity, as though the fact that, however invalid 
such ordinances may be when judged by ordinary 
standards, after all most Sunday ordinances are 
plainly on the side of morality and all right-thinking 
people and, if they should err, they do so on the side of 
the angels. If  such a tendency exists (and we trust we 
are wrong), we can only observe that an unreasonably 
discriminatory or otherwise invalid ordinance is no 
less bad because it happens also to please the pious. 
I t  is bad enough that Sunday ordinances should ever 
unreasonably discriminate between our people; it is 
doubly bad should there ever be any hint of judicial 
discrimination in their interpretation as against the 
accepted rules of interpretation applying to ordinary 
ordinances. Yet this apparent double standard is par­
ticularly evident in Michigan, as I  shall presently un­
dertake to demonstrate. One had not heretofore been 
sufficiently aware of the fact that in Michigan there 
are evidently Sunday standards for judging Sunday 
ordinances. I  am now aware and I  do not like what 
I  see.”

IV.
The court’s decision, unless reversed, will establish the 

rule of law that wilful and purposeful discrimination in the 
enforcement of a statute by a state officer only violates the 
Fourteenth Amendment if the victim can show that the 
classification which results from the officials’ wrongful ac­
tions is one which the state Legislature could not have 
brought about. This obviously is not the law. I t  would be 
a complete abandonment of the fundamental concept that 
ours is a government of law, not of men. Such a rule, more­
over, is in conflict with the decisions of this Court: Mackay 
Telegraph <& Cable Co. v. Little Rock, 250 U. S. 94, 100



22 Jurisdictional Statement

(1919); Cumberland Coal Co. v. Board of Revision, 284 
U. S. 23 (1931). There is a difference—a constitutional 
difference—between a classification made by a Legisla­
ture and one made by a law enforcement officer, par­
ticularly where he makes the discrimination for improper 
motives. Tick Wo v. Hopkins, 118 U. S. 356, 374 (1886); 
Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350, 352 
(1918).

The refusal to pass upon the Act of 1794 raises a 
serious question of appropriate Federal procedure. Here 
the state court had less than a year before held that the 
Act of 1794 applied to appellant’s employees and the ap­
pellee conceded that said Act still applied. Appendix A, 
infra, p. 3a. Moreover, appellant sells many items not 
covered by the Act of 1959 but covered by the broad lan­
guage (“ all worldly employment” ) of the Act of 1794. See 
Chicago v. Atchison T. S  S. F. R. Co., 357 U. S. 77 (1958); 
Public Utilities Commission v. United States, 355 U. S. 534 
(1958); County of Allegheny v. Frank Mashuda Co., 360 
U. S. 185 (1959), particularly with respect to whether juris­
diction should have been maintained pending a state court 
determination and what protective relief by way of an in­
junction or a stipulation by a responsible state officer of no 
enforcement pending decision appellant was entitled to in 
the interim. Cf. Doud v. Hodge, 350 U. S. 485 (1956); Har­
rison V.  NAACP, 360 V. S. 167, 178-79 (1959).

VI.

The questions presented by the instant case and by the 
decision of the court below are substantial and important. 
Since the decision was by a specially constituted three-judge 
court it would seem that appellant has a statutory right to



Jurisdictional Statement 23

present its views and argument before this Court. Query 
V.  United States, 316 U. S. 486, 490-91 (1942); cf. Radio 
Corp. of America v. United States, 341 U. S. 412 (1951). 
Moreover, the decision is not an isolated decision of an 
inferior court which, though in error, does not present that 
recurring type of situation which this Court will review. 
Since 1950 there have been repeated petitions to this Court 
seeking a final determination on the constitutionality of 
the Sunday laws of various states. Cf. International Broth­
erhood of Teamsters, A. F. L. v. Vogt, Inc., 354 U. S. 284 
(1957). In addition, this is a recurring problem presently 
before the Supreme Courts of many states as well as lower 
federal courts. See e.g. Bargaintown, U. S. A., Inc. v. Whit- 
;man, TJ. S. D. Ct. for the Middle District of Pennsylvania, 
Civil Action No. 6760; Braunfeld v. Gibbons, U. S. D. Ct. for 
the Eastern District of Pennsylvania, Civil Action No. 
26,945; McGowan v. Maryland, 151 A. 2d 156 (Md., 1959), 
appeal docketed in this Court at October Term, 1959, No. 
438; Sarner v. Township of Union, Superior Ct. of N. J., 
Law Revision, Docket No. L-13061-57 P. W. (May 7, 1959).

Since the problem is fundamental, touching on a contro­
versial religious question, the legal controversy will be re­
solved only by a determinative decision of this Court after 
full argument aided by comprehensive briefs on the merits.

CONCLUSION.

The Pennsylvania Sunday Laws here in question were 
found by the court below to be religious in purpose and 
effect. I t  is apparent that the court refrained from invali­
dating them only because of the order of this Court in the 
Friedman case, which, if it be a decision on the merits, was 
predicated upon an entirely different fact finding. The 
arbitrary classifications and exemptions in these laws could 
be sustained in no context other than a religious one. Ap­
pendix A, 19a.



24 Jurisdictional Statement

The questions herein presented are substantial and of 
great public and inunediate importance. Appellants re­
quest that jurisdiction be noted and this case be set for 
argument a t the same time as No. 532, October Term, 1959.

Respectfully submitted,
H aeold E. K ohn ,
W illiam T. Coleman, J e., 
L ouis E. L evinthal,

2635 Pidelity-Philadelphia 
Trust Building, 

Philadelphia 9, Pa.,
Moeeis E eeon,

502 Turner Street, 
Allentown, Pa.,
Attorneys for Appellant.

D ilwoeth, P axson, K alish,
K o h n  & B il k s ,

H aeey a . K alish,
OscAE B eown,

Of Counsel.

Dated: February 11, 1960.



APPENDIX A.

I n  the U nited S tates D istrict Court for the 
E astern D istrict of P ennsylvania.

Civil A ction N o. 25626.

TWO GUYS FBOM HARRISON-ALLENTOWN, INC.,
Plaintiff,

V.

PAUL A. McGINLEY, DISTRICT ATTORNEY, 
COUNTY OF LEHIGH, PENNSYLVANIA,

Defendant.

Before: H astie, Circuit Judge; W elsh, Senior District 
Judge; and L ord, District Judge.

OPINION.
[Piled December 1, 1959]

By H astie, Circuit Judge.
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 Sun­
day closing laws, sometimes called the Sunday ‘ ‘ blue laws ’ ’. 
Continuously since 1957 plaintiff has operated a large de­
partment store, employing some 300 persons, in a suburban

( la )



2a Appendix A

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 plain­
tiff’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 wordly 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 . . . . ”  I t  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:

‘‘Whoever engages on Sunday in the business of 
selling, or sells, or offers for sale on such day at retail, 
clothing and wearing apparel, clothing accessories, fur­
niture, housewares, home, business, or office furnish­
ings, household, business, or office appliances, hard­
ware, tools, paints, building and lumber supply ma­
terials, jewelry, silverware, watches, clocks, luggage, 
musical instruments and recordings, or toys, excluding 
novelties and souvenirs, shall upon conviction thereof 
in a summary proceeding for the first offense be sen­
tenced to pay a fine of not exceeding one hundred dol­
lars ($100), and for the second or any subsequent 
offense committed within one year after conviction for 
the first offense be sentenced to pay a fine of not ex­
ceeding two hundred dollars ($200) or undergo im­
prisonment not exceeding thirty days in default thereof.

‘‘Each separate sale or offer to sell shall consti­
tute a separate offense . . .



Appendix A 3a

The evidence does not show and the court does not find 
any present or continuing threat to enforce against plain­
tiff’s retail selling the above quoted provision of the 1939 
statute, although the defendant has expressed tbe 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 mer­
chandise continue to be punishable by a fine of four doUars 
under the older general prohibition of “ worldly employ­
ment or business on Sunday” ?

The 1959 enactment says nothing about the earlier 
general prohibition although it was enacted as an amenda­
tory 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 severly punished in the amendatory 
enactment. Cf. Commonwealth v. Brown, 1943, 346 Pa. 
192, 29 A. 2d 793; Commowwealth v. Gross, 1941, 145 Pa. 
Sup. 92, 21 A. 2d 238. In  any event, here is a substantial 
unsettled question concerning the construction of the ques­
tioned state legislation. When the Pennsylvania courts de­
cide this question they may well resolve it by an interpreta­
tion 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 pass­
ing 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; Spector Motor Service 
V.  McLaughlin, 1944, 323 U. S. 101; Railroad Commission v. 
Pullman Co., 1941, 312 U. S. 496. Even if the statute were 
clear, a court of the United States should, as a matter of



4a Appendix A

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 im­
minently 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 interpretative state ruling. I t  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 wiU concern the 
1959 amendment only.

Plaintiff attacks the Pennsylvania legislation com­
manding the cessation of certain worldly activity on Sunday 
as state action promoting “ an establishment of religion” 
contrary to the prohibition of the F irst Amendment, as 
made applicable to the states by the Fourteenth Amend­
ment. The argument is that this required cessation of busi­
ness on Sunday is an enforced expression of respect for 
and acknowledgment of the sacred character and religious 
symbolism of the Christian Sabbath, a  religious institution 
commemorating the resurrection of Christ. There is testi­
mony which establishes as a fact in this record that this 
view of the religious significance of enforced Sunday work 
stoppage is sincerely held by many persons whose religion 
not does not recognize the divinity or resurrection of Jesus 
of Nazareth or the sacredness of Sunday as the “ Lord’s 
day” .

At the outset we consider a contention that this F irst 
Amendment argument has been foreclosed by authoritative 
determinations of the constitutiomdity of Smiday laws es-



Appendix A 5a

sentially similar to the Penasylvania statute. At the turn 
of the century, before the Supreme Court had ruled that the 
F irst Amendment guarantees are enforceable through the 
Fourteenth Amendment against the states,^ Sunday “ blue 
laws” were upheld in two familiar decisions of the Court. 
Hennington v. Georgia, 1896, 163 U. S. 299; Petit v. Minne­
sota, 1900,177 U. S. 164.  ̂ If  these stood alone their present 
authority would be questionable in the light of the develop­
ment 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. New York, 1951, 341 U. S. 907. In the juris­
dictional statement filed in the Supreme Court in support 
of that appeal the appeUant said: “ The question to be re­
solved is an important one: Are Hennington v. Georgia and 
Petit V.  Minnesota stiU law in view of the Everson and 
McCollum decisions” ! Accordingly, it is appropriate that 
we examine that case carefully.

The defendants in the Friedman ease, who were Ortho­
dox 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 de­
fense was carefully planned and organized under the direc­
tion of Leo Pfeffer, Esquire, a distinguished advocate and 
legal writer who had specialized in the field of religious

1. The ruling as to freedom of religion was first made in 1940 
in C a n tw e ll v . C on n ec ticu t, 310 U. S. 296, 303, although first fore­
shadowed fifteen years earlier. G itlo w  v . N e w  Y o rk , 1925, 268 U. S. 
652.

2. See also the earlier dictum in S o o n  H in g  v . C ro w le y , 1885, 
113 U. S. 703, 710: “Laws setting aside Sunday as a day of rest are 
upheld, not from any right of the government to legislate for the 
promotion of religious observances, but from its right to protect all 
persons from the physical and moral debasement which comes from 
uninterrupted labor.”



6a Appendix A

liberty.® 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 imder the F irst 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 con­
stitutionally 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 process’ 
provisions of the United States Constitution.”

Of course these points were appropriately elaborated. 
Moreover, they had been raised at trial and had been con­
sidered and decided against the defendants by the highest 
court of New York. People v. Friedman, 1950, 302 N. Y. 
75, 96 N. E. 2d 184. Indeed, Mr. Pfeffer points out in his 
book, and his submission must have made it plain to the 
Supreme Court, that this was essentially a test case to 
determine the vitality of the doctrine of the Hennington 
and Petit cases in the light of contemporary understanding 
of the reach of the F irst and Fourteenth Amendments. 
There can be no question but that the Supreme Court was 
plivinly urged to find in the New York law the very consti-

3. Pfeifer’s CuuRcn, State, anu IhjKKUOM, 1953. discusses 
Sunday laws in sjetieral and the F ried m a n  case in dehiil at pages 
227-241.



Appendix A 7a

tutional infirmities we are now asked to find in the Penn­
sylvania law. Yet, without permitting oral argument the 
Court disposed of the case in a per curiam opinion dis­
missing the appeal and saying merely: “ The motion to dis­
miss is granted and the appeal is dismissed for the want of 
a substantial federal question.”  341 U. S. 907. In these 
circumstances the Friedman case seems to mean that in 
the Supreme Court’s view such legislation as the New York 
law is so clearly invulnerable to F irst and Fourteenth 
Amendment attack that it would not even be useful to permit 
further argument of the matter.*

In effect, the Court was content to leave as the law 
of the land its old reasoning that “ the legislaure having 
. . . power to enact laws to promote the order and to 
secure the comfort, happiness and health of the people, it 
was within its discretion to fix the day when all labor, 
within the limits of the State, works of necessity and charity 
excepted, should cease. I t is not for the judiciary to say

4. As early as 1902 the Supreme Court recognized the stare 
decisis effect of its per curiam disposition of cases properly appealed 
to it. F id e l ity  &  D e p o s it  Co. v . U n ite d  S ta te s , 1902, 187 U. S. 315, 
319. In more recent times this point has become important in the 
administration of the Court’s rules and procedure which require that 
an appeal of right from a state court be supported by a jurisdictional 
statement, stating “the reasons why the questions presented are so 
substantial as to require plenary consideration . . . . ” Rule 15, 
par. 1 (e ), 346 U. S. 962. If that showing is insufficient or unper­
suasive a per curiam dismissal for want of a substantial federal 
question or a summary affirmance of the judgment below follows. 
Unless such a dismissal is grounded in some procedural or technical 
insufficiency of appellant’s presentation, its meaning seems to be that 
the disfwsition of the federal question by the state court was clearly 
right. In essence, such a per curiam is likely to be a particularly 
emphatic ruling on the merits of the question. The Court itself haa 
explicitly recognized such summary rulings as authoritative prece­
dents. B a sk in  v . In d u s tr ia l A c c id e n t C o m m iss io n , 1949, 338 U. S. 
854; N o r th  C o a s t T ra n sp o r ta tio n  C o. v . U n ite d  S ta te s , 1944, 323 
U. S. 668. See also the statement of Mr. Justice Brennan, concurring 
in E a so n  v .  P r ic e , 1959, 360 U. S. 246, 247, that, “votes to affirm 
summarily and to dismiss ffm want of a substantial federal questkm, 
it hardly needs comment, are votes on the merits of a case



8a Appendix A

See Hennington v.that the wrong day was fixed. . .
Georgia, supra, at 304.

As an inferior court asked to hold unconstitutional the 
Pennsylvania laws prohibiting certain Sunday retail selling, 
we can escape from the obligation to apply the ruling in 
the Friedman case only if the Pennsylvania law is so sig­
nificantly difiFerent from the New York law that a different 
result can be reached and justified without departing from 
the legal view for which the Friedman case stands.

I t  has been suggested that the New York law differs 
significantly from the Pennsylvania law in two respects. 
First, the aim to protect the Christian Sabbath from pro­
fanation is said to be much plainer in Pennsylvania than in 
New York. In  this connection, the text of the laws, their 
history and their judicial interpretation all are relevant. 
The basic Sunday “ blue laws” of Pennsylvania, New York 
and many other states today are derived from colonial and 
early state statutes which, in turn, had been derived from 
British laws designed to require observance and to prevent 
profanation of the Christian Sabbath. A hundred years 
before the American revolution an English statute pro­
hibited any person from engaging in “ worldly labor or 
business or work of the ordinary calling on the Lord’s Day, 
works of necessity and charity excepted” . 1676, 29 Car. 
II, C. 7. The colonial theocracies, among them both New 
York and Pennsylvania, adopted markedly similar legisla­
tion which they reenacted after they became states of the 
United States of xVmerica.® The basic Pensylvania statute 
as it has come down to us in Section 699.4 of the codification 
of 1939, with its prohibition of “ worldly employment or 
business . . .  on the Lord’s Day” , has already been set 
out. The Now York statute, 39 N. Y. Consol. Laws, McKin­
ney, 1944, §2140 begins with this declaration:

5. See the sunmiarv of the evolution of legislation against "Sab- 
kUh breaking" in New York frvnn ix>loinaI times in the dissenting 
opinioti of jtulge McCarthy in Owc« Koshrr Super Market v. Gal­
lagher, n. Mass., 195 )̂, l7o h'. Snpp. 4<ki, 477, 484.



Appendix A 9a

‘ ‘ The first day of the week being by general consent 
set apart for rest and religions uses, the law prohibits 
the doing on that day of certain acts hereinafter speci­
fied, which are serious interruptions of the repose and 
religious liberty of the community. ’ ’

Pursuant to this declaration the statute prohibits, among 
other things, “ all manner of public selling” except for 
miscellaneous exemptions. § 2147. We thing it cannot be 
seriously questioned that in their relation to the first day 
Sabbath as an institution of Christianity the New York 
and Pennsylvania statutes have a common background and 
were in original conception designed to the same end. More­
over, the involvement of religious considerations appears 
clearly on the face of the basic statute in both states.

Local judicial interpretation of the two statutes tells 
the same story. In the ease of People v. Dunford, 1912, 207 
N. Y. 17, 20, 100 N. E. 433, the Court of Appeals declared:

“ That the legislature has the authority to enact 
laws regulating the observance of the Sabbath day and 
to prevent its desecration is not, and cannot well be, 
disputed. The day is set apart by the statute for 
repose and for religious observance; objects which per­
tain to the physical and moral well being of the com­
munity. As to the acts which should be prohibited, as 
disturbances, or profanations, of the Sabbath day, the 
legislature is the sole judge.”

Similarly in People v. Moses, 1893, 140 N. Y. 214, 215, this 
language appears:

“ The Christian Sabbath is one of the civil insti­
tutions of the state, and that the legislature for the 
purpose of promoting the moral and physical well­
being of the people, and the peace, quiet and good order 
of society, has authority to regulate its observance, 
and i>revent its desecration by any appropriate legis­
lation is unquestioned.”



10a Appendix A

See also People v. Zimmerman, 1905, 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 Su­
preme Court for review, explicitly recognized the religious 
origin of the New York statute. 302 N. Y. at 79, 96 N. E. 
2d at 186.

We find nothing in the cases discussing the Pennsyl­
vania 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. I t  has been stressed that the 
Supreme Court of Pennsylvania in upholding the local stat­
ute had gone so far as to say that “ Christianity is part of 
the common law of Pennsylvania” . Commonwealth v. 
American Baseball Club of Philadelphia, 1927, 290 Pa. 136, 
138 Atl. 497, 499. But a New York case. People v. Buggies, 
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 Penn­
sylvania statute is unconstitutionally related to an estab­
lishment of religion without bringing the New York statute 
under the same interdiction. Yet, the Supreme Court sus­
tained 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 signif­
icance 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 v. 
Gallagher, D. Mass. 1959, 176 P. 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



Appendix A 11a

reasoning clear to ns. I t affords no useful critique of our 
own analysis wMch 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 sell­
ing for mandatory Simday 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 argnunent against Sunday closing statutes, 
no less than the F irst Amendment argument, has a con­
siderable history of Supreme Court adjudication. Indeed, 
essentially the same argument was made against another 
provision of the Pennsylvania “ blue laws” in Common­
wealth V.  GrochowiaJc, 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 arbitary 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. In State v. Towery, 1954, 239 N. C. 274, 79 S. E. 2d 513, 
appeal dismissed 347 U. S. 925, a Sunday seller of general 
merchandise complained that a Forth Carolina law pre­
vented him from operating on Sunday yet allowed drug 
stores to remain open and to sell the same kinds of mer­
chandise. The Forth Caroline courts sustained the statute 
and the Supreme Court dismissed the appeal. Similar 
smnmary dismissal has been the fate of other recent claims 
of arbitrary classification and unreasonable discrimination 
in the selection of certain businesses and activities for Sun­
day closing while others, said to be no less objectionable, 
remained unmolested. State v. Kidd, 1957, 167 Ohio St. 
521, 150 F. E. 2d 413; appeal dismissed 358 U. S. 132;



12a Appendix A

Gundaker Central Motors v. Gassert, 1956, 23 N. J. 71, 127 
A. 2d 566, appeal dismissed 354 U. S. 933; State v. McGee, 
1953, 237 N. C. 633, 75 8. E. 2d 783, appeal dismissed 
346 U. 8. 802. 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 F irst Amend­
ment argument. 8ee Pfeffer, C h u r c h , 8 t a t e , a n d  F b e e d o m , 
supra, 230-234, 239-240. The New York statute was at­
tacked as a miscellany of pointless, irrational and dis­
criminatory differentations in the treatment of various 
8unday commercial activities. But the Supreme Court was 
not persuaded that the contention had sufficient merit even 
to require full argnunent.

In larger context, cases arising under the Sunday clos­
ing laws are but a striking example of the continuing re­
luctance 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; Kotch v. Board of 
River Port Pilot Commissioners, 1947, 330 U. S. 552; Tig- 
ner v. Texas, 1940, 310 U. S. 141. But cf. Morey v. Doud, 
1957, 354 U. S. 457. 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 oven a substantial (piostion 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 fiml that the 1939 closing law was observed 
by most retail sellers in Lehigh County, though not aU, 
who were subject to its provisions, until the very x'ecent 
opening of substaxitial suburban retail businesses like that



Appendix A 13a

of the plaintiff initiated and triggered new and rather 
large scale violations, and threats of others. I t 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 cov­
ered by this new enactment are principal categories of 
merchandise sold in these establishments which have made 
the problem of Sunday retail selling newly acute. I t  is 
probable that such considerations influenced the legisla­
tu re’s 1959 decision to make Sunday retail selling the sub­
ject 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 prohibi­
tion 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 pro­
hibition 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 com­
mercial and recreational activities covered by the general 
prohibition of the 1939 statute have long been conducted 
openly on Sunday, and c^mtinue, without molestation or 
direction to desist by the defendant or by any public ofiicer. 
On the other hand, ls;ginnlng in 1957 and thereafter the 
defendant made substantial and frequent efforts by ad­
monition and arrest to compel the Sunday closing of numer­
ous retail stores, inclwling plaintiff’s store. 9 his w urt 
temporarily restrain<>^l the enforcem<;nt of the 1959 statute



14a Appendix A

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 stat­
ute 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 con­
tinued and are likely to continue without any interference by 
the public authorities. Is this such a discrimination as 
denies equal protection of the lawsl

I t  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 enforce­
ment of the 1959 statute denies the Sunday selling retailer 
due process of law. The controlling constitutional prin­
ciple 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; Owensboro Waterworks Co. v. Owensboro, 
1906, 200 U. S. 38. See also Hayman v. Galveston, 1927, 
273 U. S. 414, 416. 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 re­
peatedly treated the fact that a Stinday closing law is a 
hodgepodge characterized by many and seemingly pointless 
exceptions and exemptions as insufficient to raise a sub-



Appendix A 15a

stantial 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 F irst or the Four­
teenth 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 conclu­
sions of law of the court. An order may be presented dis­
solving the temporary injunction heretofore entered in this 
case. A final order and decree may be presented denying 
plaintiff relief.

The foregoing opinion, which has been approved by 
Judge Lord, is to be filed, together with the separate opinion 
of Judge Welsh.

sgd. W illiam H. H astie,
Circuit Judge.

6. In so ruling we in no way detract from the authority of the 
leading case of Y ic k  W o  v . H o p k in s , 1886, 118 U. S. 356, where the 
administrative discrimination practiced against Chinese entrepreneurs 
would have been no less invidious and constitutionally intolerable if 
directed by the legislature.



16a Appendix A

W elsh, Senior Distrct Judge, concurring in part and dis­
senting in part.
I t  had been my hope after discussing this deep and 

fundamental problem with my Associates, to arrive at a 
completely unanimous conclusion. But a conscientious con­
ception of Judicial duty, whether completely warranted or 
not, requires me to express myself in my own way on this 
subject.

Let me say at the outset that this Court, individually 
and collectively, has sought to catch the spirit as well as 
the letter of the various arguments of all concerned. We 
are all in agreement on the original legislation including 
that of the Act of 1939. On this religious phase of the 
subject I  can speak from personal experience. Having 
been born in the late seventies and having lived in an 
environment and atmosphere of reverence for the Sab­
bath until I  reached my early manhood, I  know whereof I 
speak. That legislation was the outgrowth of deep feel­
ings of all but a microscopic minority. The framers of 
the Law had gone through a religious experience and a 
spiritual Renaissance that clearly set before them the evils 
of excessive worldly pleasures and unbridled seeking and 
striving for worldly riches. Their principal objective was 
to minimize the weakening of the spiritual life by too much 
worldly pleasures. Labor was secondary at that time, sec­
ondary, because of the simple habits and custom of the 
times. Most people did their own labor. There were very 
few employers having control over large numbers of men. 
And nearly all labor, such as it was, could be suspended 
for a day without confusion or without inconvenience to 
the community.

For over a hundred and fifty years the initial legis­
lation has been on the Statute books. Times and customs 
have changed, due to the different conditions under which we 
live. To me it seems almost an entirely different world. 
I t  is but natural that great changes should bring about a 
clamor for modification or repeal of those inhibitions.



Appendix A 17a

An appeal for relief has been made to the Courts. Is 
that the proper Tribunal? After a Statute has been on the 
books for a hundred and fifty years or more should the 
Judicial Branch of the Government strike it down or 
should the appeal for relief he made to the Legislative 
Branch? Or to the people direct? Having served for 
many years in both the Judicial and Legislative Branches 
of the Government I  cannot conceive that the Courts have 
power to make such a decision as we are asked to make 
in this case by the plaintiff. In expressing this conclusion 
I  do not want to be understood as not recognizing the in­
creased demand for a change. Sometimes the advocates of 
the change speak rather harshly of the framers of those 
laws without an understanding of the motives that 
prompted their enactment. Often those who resist the re­
peal of this legislation today, are not entirely unsympa­
thetic with the proponents of repeal. They know that in 
many respects the law has been a dead letter for many 
years. But countless thousands of fair minded Americans 
who truly love God and their neighbor, look upon these 
laws as something pointing to a spiritual ideal—unrealized 
it is true— b̂ut still an expression of a desire of a great 
Country and a great people to attain and reach for some­
thing higher than the flesh-pots of Egypt or the corroding 
gold of a Midas.

During the last half century they have seen the struggle 
against materialism become more and more fierce. They 
are now seeing mighty nations rising against each other 
with weapons of annihilation and destruction greater than 
Satan himself could devise. At home and abroad they see 
the misery inflicted, and their hearts are troubled. They 
still feel safer with a declaration of principle expressing 
hope for an ideal still on the books of this beloved Country. 
And in this global struggle they just do not want to throw 
the life preservers overboard to lighten the ship.

That is the way I read the feeling of our people. I  am 
moved to say this in the hope that if both groups can see



18a Appendix A

and feel what is on both sides of this question it will lead 
to a better understanding and a charitable goodwill on the 
part of all of us.

For these reasons I  concur with the majority opinion 
in dismissing plaintiff’s attack on all legislation prior to 
1959.

In construing the Act of 1959 there are other con­
siderations involved. I t  is frankly admitted by the spon­
sors of the Act that there is nothing of a religious char­
acter or element in the legislation. One can therefore 
fairly ask, why then should it be tacked on to an Act that 
was conceived and cradled in religiosity, if not in religion! 
The amending Act actually is one to regulate business and 
to deal with the competition among business men. Such 
far reaching effort to regulate the private lives of others 
should be bottomed on a firm Constitutional foundation, 
and the need, the necessity, and the evil to be controlled, 
fuUy met. We ask: Is it based on public health, public secu­
rity, public morals, sanitation, water supply, education, or 
any of the factors that would, standing by themselves be 
admittedly a basis for the power of the legislature to enact.

I  do not want to go over the ground so thoroughly cov­
ered by my Associates but I  do not find that the legislation 
has met the test on any of these requirements. We all 
admit that under our form of Government there are things 
that the legislature cannot do. The fundamental rights of 
the people have never been at the unrestricted mercy of a 
possible unreasonable and arbitrary legislature. Moeey v. 
D oud, 354 U. S. 457. And in determining whether or not 
the legislature has kept within the legitimate bounds it is 
proper for the Courts in construing legislative action to ask 
these very pertinent questions as stated above.

I t is also the duty of the Court to take into considera­
tion the various facts that mark the introduction of the 
legislation and the events leading up to such introduction.
I  do not think anyone will seriously argue that there is such 
a rising tide of spiritual interest in Sunday’s observance



Appendix A 19a

as to constitute a clamor for more stringent laws to insure 
the sanctity of the Christian Sabbath. The trend has been 
quite the reverse. Therefore, why this sudden eruption of 
Sabbath interest? All the facts leading up to the intro­
duction of this Statute appear in the record and without 
desiring to be critical they are not particularly wholesome 
or praiseworthy. (This is no reflection on the County Offi­
cials.) High pressured salesmanship, outstanding organiz­
ing ability, a fantastic list of prohibited activity, indicate 
that a single target was the objective and a single purpose 
to regulate business competition. In addition it was enacted 
a few months before a highly important State election when 
members of the legislature from various parts of the State 
were put to undue and unreasonable pressure to vote for this 
legislation, that they would not think of supporting if it 
was not connected with the Sunday closing. The propon­
ents of the legislation admit this was a helpful feature in 
getting it passed.

If  it is conceded that this legislation is within the 
power of the legislature to enact, then I cannot conceive of 
any future legislation that cannot also be passed. We know 
that far-sighted men are considering the advisability of the 
four day working week, due to automation and the fear of 
unemployment. If this Act lies within the power of the 
legislature to enact, it will be establishing a precedent for 
drastic curtailment of the right to work in the future.

I t is not like the daylight saving legislation, couched in 
the language of a recommendation or request, but in the 
language of a command subject to drastic penalty for 
violation.

This view is entirely too far to the left for me to say 
that the legislative branch has any such power without a 
specific grant of authority from the people. I  would strike 
it down.

Sgd. Geo. A. W elsh.



20a Appendix B

APPENDIX B.

SUPPLEMENTARY FINDINGS OF FACT.
[Filed Dec. 7, 1959]

P resen t: H astib, Circuit Judge, W elsh, Senior District 
Judge and L obd, District Judge.

Pursuant to the request of plaintiff the court makes 
the following findings of fact in addition to those already 
made and stated in the course of the opinion of the court:

1. Sunday is a day designated for religious services and 
observances by Christians, with the exception of certain 
Seventh Day Adventists and Baptists. The Christian Sab­
bath commemorates and honors the Resurrection of Christ. 
I t  is marked by a weekly celebration of the same religious 
event basic to Christianity as is celebrated by Easter.

2. Sunday work at plaintiff’s store has no different 
effect upon the health or welfare of either the employees 
or customers of the store than does work on any other day.

3. Various Pennsylvania statutes create exceptions to 
the general statutory prohibition of worldly activity on 
Sunday, or increase the penalties for conducting activities 
prohibited thereby. These statutes now make it lawful, 
despite the general prohibition, to operate a motion picture 
house after 2 :00 P. M. on Sunday if the voters of the munici­
pality so vote by referendum. Act of July 2, 1935, P. L. 599, 
4 Purd. Stat. §§59-65; to play professional baseball and 
football after 2 :00 P. M. and before 6 :00 P. M. on Sunday 
if the voters of the municipality so vote by referendum. 
Act of April 25, 1933, P. L. 74, 4 Purd. Stat. §§ 81-77; to 
stage musical concerts after 12:00 noon on Sunday when 
authorized to do so by the Commonwealth’s Department



Appendix B 21a

of Public Instruction and to compensate musicians partici­
pating in such cencerts, Act of June 2, 1933, P. L. 1423, 
No. 308, 4 Purd. Stat. §§121-127; to play polo after 1:00 
P. M. and before 7 :00 P. M. on Sunday unless the voters of 
the municipality have voted to the contrary by referendum. 
Act of June 22, 1935, P. L. 446, 4 Purd. Stat. §§ 151-157; 
to play tennis after 1:00 P. M. and before 7:00 P. M. on 
Sunday, Act of June 22,1935, P. L. 449, 4 Purd. Stat. §§ 181- 
185, provided that the conduct of other sports on Sunday 
afternoon has been approved by municipal referendum; to 
fish on Sunday, Act of April 14, 1937, P. L. 312, § 1, as 
amended, 30 Purd. Stat. § 265; to remove raccoons and fur­
bearing animals caught in hunting traps or deadfalls on 
Sunday, Act of June 3, 1937, P. L. 1225, Art. VII, § 702, as 
amended, 34 Purd. Stat. § 1311.702; and for a private club, 
but not a restaurant or hotel, to sell liquor to its members 
on Sunday, Act of April 12, 1951, P. L. 90, Art. IV, § 406, 
as amended, 47 Purd. Stat. §4-406 (pp. 71-72).

4. The fine for the generality of offenses, including the 
conduct of some games and amusements is $4.00, plus costs 
that run from two to four times the fine. But for bowling, 
baseball and football during prohibited hours, it is $10.00, 
18 Purd. Stat. § 4651, 4 Purd. Stat. § 82; for polo $100, for 
motion pictures $50.00, for musical concerts $100 to $1,000, 
4 Purd. Stat. §§ 152, 65, 127. For persons selling motor 
vehicles at retail or wholesale, the fine is $100 for engaging 
in business the first Sunday and $200 thereafter, 4 Purd. 
Stat. § 4699.9. For selling motor boats, it is $4.00. For 
selling an automobile air-conditioner, it is $4.00. For selling 
a home air-conditioner, it is $100 for each sale at retail, but 
only $4.00 at wholesale. Sale of slip covers for automobile 
seats all day Sunday entails a $4.00 fine; the sale of a slip 
cover for a living room chair at retail entails a $100 fine for 
the first sale and $200 for each and every sale thereafter, 
and for each unsuccessful offer to sell. To sell or offer to 
sell toys after the first offer is subject to a $200 fine, whereas



22a Appendix B

novelties and souvenirs can be sold for the entire day for 
the payment of one $4.00 fine. Certain sports equipment is 
in the $4.00 category, including shoes used in forbidden 
sports. On the other hand, the sale of a pair of shoes for 
business wear is in the $100 category.

5. The Commonwealth of Pennsylvania has enacted a 
pattern of economic laws under the police power regulating 
hours of work, which operate completely independently of 
the Sunday laws. They include such statutes as Act of 
July 25, 1913, P. L. 1024, § 3, as amended, 43 Purd. Stat. 
§ 103(a) (women cannot work more than six days in any 
one week); Act of May 13, 1915, P. L. 286, § 4, as amended, 
43 Purd. Stat. % 46 (persons under the age of 18 cannot 
work more than six consecutive days in any one week); Act 
of May 27,1897, P. L. 112, § 1, 43 Purd. Stat. § 361 (bakery 
workers cannot work more than six days in any one week); 
Act of March 31, 1937, P. L. 159, § 1, 43 Purd. Stat. § 481 
(employees of motion picture theaters must be given one 
day of rest per week).

6. The enforcement of the Sunday laws against plain­
tiff’s employees, as threatened by defendant, will cause 
them not to work on Sundays. This will require plaintiff to 
close its store on Sunday, which is likely to render its entire 
operation unprofitable.

7. Unless enjoined, defendant will enforce the 1959 
statute against plaintiff’s employees, thereby causing plain­
tiff to suffer irreparable harm.

/ s /  W illiam H. H astie,
Circuit Judge. 

/ s /  GrEo. A. W elsh,
Senior District Judge. 

/ s /  J ohn W. L oed, J e.,
District Judge.



Appendix C

APPENDIX C.

23a

UNITED STATES COURT OF APPEALS 
F oe the T hird Cibcxjit.

No. 13,096

TWO GUYS FROM HARRISON-ALLENTOWN, INC.,
Appellant,

V.

PAUL A. McGINLEY, D isteiot A ttorney, County of 
L ehigh, P ennsylvania.

P ennsylvania R etailers’ A ssociation, A micus Curiae.

A ppeal F rom the U nited S tates D istrict Court for the 
E astern D istrict of P ennsylvania.

Heard on Petition for Temporary Restraining Order or 
Other Relief, December 9, 1959.

Before Goodrich and S taley, Circuit Judges.

OPINION OF THE COURT.
(Filed December 23, 1959)

P er Curiam

The plaintiffs in this case have taken the position that 
they may appeal to the Supreme Court of the United States 
from an adverse decision by a three-judge court on the issue 
of the constitutionality of the statute and simultaneously 
appeal to the Court of Appeals on the issue of discrimina­
tory enforcement of the statute. We think there is no basis 
for the allowance of a split appeal in this fashion. There­
fore, we dismiss the appeal to this Court for want of juris­
diction. See 28 U.S.C.A. 1253. 1291.



24a Appendix D 

APPENDIX D.

1st the UiTiTED States District Court for the 
E astern District of P ennsylvania.

Civil Action No. 25626.

TWO GUYS PROM HABRISON-ALLENTOWN, INC.,
Plaintiff,

V.

PAUL A. McGINLEY, DISTRICT ATTORNEY, 
COUNTY OP LEHIGH, PENNSYLVANIA,

Defendant.

P resent: H astie, Circuit Judge; W elsh , Senior District 
Judge; and L ord, District Judge.

FINAL ORDER.
And now, this 7th day of December, 1959, the ahove- 

captioned civil action having come before the court as pro­
vided in 28 U.S.C. Sections 2281 and 2284 and the court 
having filed its opinion and having determined that plain­
tiff is not entitled to any relief, it is hereby ordered, ad­
judged and decreed that plaintiff’s prayer for a permanent 
injunction should he and hereby is denied and that plain­
tiff’s complaint should be and hereby is dismissed.

/ s /  W illiam H. H astie,
Circuit Judge.

/ s /  J ohn W. Lord,
District Judge.

I  dissent.
/ s /  George A. W elsh,

Senior District Judge.



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