(dissenting in part).
While it is true that the construction given by the state courts to a state statute is binding upon federal courts, Al-bertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983, we are not bound by the characterization given to such statute, Society For Savings in City of Cleveland, Ohio v. Bowers, 349 U.S. 143, 75 S.Ct. 607, 99 L.Ed. 950. And the federal courts do have the last word on questions involving the federal constitutionality of state statutes. Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 229-230, 77 S.Ct. 287, 1 L.Ed.2d 267. Thus, the question of whether the 1959 Act did or did not repeal most of the 1951 revision is not open to us. But there is still open to us the question of whether the categorization is arbitrary under the Fourteenth Amendment of the federal Constitution and the question of whether the 1959 Act violates the religious provision of the First Amendment.
As to the latter question, I make this brief observation: the Supreme Court of New Jersey in the Two Guys case, ob*357served that “we cannot say that Sunday may not constitutionally be selected by the Legislature in pursuit of a purpose to provide relief from the routine, [citations] The question whether that legislative decision impinges upon the freedom of those who observe religiously the seventh day of the week may be another matter.”
The doctrine of abstention from deciding eases involving a federal constitutional issue where a state court determination of state law might moot the issue or put the case in a different posture naturally has given me pause. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 921; A. F. L. v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Government and Civic Employees Organizing Committee, C. I. O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894; Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; Harrison v. N. A. A. C. P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152; County of Allegheny v. Frank Mashuda, 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163, and Martin v. Creasy, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186. These cases teach us that “no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination,” that we “should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them,” and that there exists “the desirability of avoiding unseemly conflict between two sovereigns, the unnecessary impairment of state functions, and the premature determination of constitutional questions.” But as was said in the Mashuda case, supra, the doctrine of abstention “is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” [360 U.S. 185, 79 S.Ct. 1063.]
On 11 December 1959, this court abstained even from granting preliminary relief, what with an impending argument before the highest New Jersey Court on the 1959 Act. I dissented. Argument was in fact had on 22 December 1959, and a decision was rendered on 4 April 1960. While the 1959 Act was held not to be invalid on its face, the case was remanded to the trial court for resolution of the allegation that the classification of the Act is in fact arbitrary and denies equal protection to the plaintiffs in the State suit. That resolution probably will not be made until the fall of this year and a further appeal to the Supreme Court of New Jersey is not unlikely.
Where does all this leave the plaintiffs ? The plaintiff Fass was arrested on 29 November 1959 for selling on Sunday an article in a prohibited category and on 17 December 1959, in the Municipal Court of West New York, he was convicted under the 1959 Act. An appeal to the Hudson County Court followed and Fass raised constitutional questions there. The County judge, noting that these constitutional questions were pending before the Supreme Court of New Jersey and before this court, said that: “It would be inexpedient and fruitless for me to attempt to decide the constitutional questions on this appeal. I therefore reserve decision on the constitutional questions until the other tribunals have spoken.” Thus, there is no conviction in the County Court which plaintiff Fass can appeal. This court awaits final word from the Supreme Court of New Jersey, while that court awaits a possible appeal from a determination on the remand referred to above. In the meantime, the plaintiffs must sit by helplessly and continue to be harmed because legal formulas are worshipped.
We can grant temporary relief without deciding federal constitutional questions prematurely, without forecasting what the final state decision will be on the claimed arbitrariness of the classification, without creating an unseemly conflict between sovereigns and without impairing any state function. An abstention from final adjudication does not necessarily carry with it an abstention on all interlocutory phases of a federal ac*358tion. This is at least implicit in Harrison v. N. A. A. C. P., 360 U.S. 167, 179, 79 S.Ct. 1025, 3 L.Ed.2d 1152. I would therefore enjoin the defendants temporarily from enforcing the statute against the plaintiffs and those in a like position who in fact observe Sabbath on a day other than the first day of the week, “commonly known as Sunday,” and who do not, pursuant to such observance, sell or engage in selling any of the categorized merchandise on their Sabbath. This limited and conditional injunctive relief would prevent irreparable harm if not ultimately certain disaster to the plaintiffs, and would not, I daresay, rock the social foundations of the State of New Jersey. After all, as the court said in Two Guys, “It is perfectly plain that in adopting chapter 119 the Legislature contemplated that citizen activities beyond its interdiction will continue unscathed,” at least insofar as state legislation is concerned. Masters-Jersey, Inc., et al. v. Mayor and General Council of Borough of Paramus, N.J., 160 A.2d 841. And let us not forget that the 1959 Act is in effect in but 12 of the 21 counties of New Jersey.
As to enjoining state prosecutions, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, does set forth the general rule but it also says there are exceptions. Ordinarily, if Fass’ criminal case was pursuing its normal course I would not seek to enjoin it; but, as shown above, there is a stalemate and there is no need to enjoin further prosecution of that ease. I would enjoin further prosecutions brought to enforce a statute which is alleged to be unconstitutional. Exceptions to the general rule are pointed out also in Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 and in Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927. See also Denton v. City of Carrollton, 5 Cir., 235 F.2d 481.
In balancing the equities, I find that they are strongly in favor of the plaintiffs. I believe, too, that the plaintiffs are suffering more than financial inconvenience. Apart from the money loss, who can admeasure the amount of the penalty the plaintiffs pay for observing a religion that does not conform to the religions of those who may, at once, enjoy a day of common rest and recreation while observing the sacredness of their religious Sabbath.
I do not think the Chancellor’s foot is ossified. “Equitable remedies * * * are distinguished by their flexibility, their unlimited variety, their adaptability to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case * * 1 Pomeroy, Equity Jurisprudence 141 (5th ed.). To the same effect, see United States v. Morgan, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 and Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. And in West’s Symboleography (1605), equity is described as a “ruled kind of justice” which is “allayed with the sweetness of mercy, and may well be compared to a shoemaker’s shop, that is furnished with all manner and sorts of lasts for men’s feet, where each man may be sure to find one last or other that shall fit him, be he great or small.”
My Brethren deny the defendants’ motion to dismiss the complaint. Since jurisdiction in this case is not based on diversity of citizenship, the denial must be based on the existence of a substantial federal question. If there is no such question, there is no place for the doctrine of abstention, and dismissal should follow. I concur in this denial. It is this substantial federal question which is the basis for affording the plaintiffs the type of relief I have suggested.