(dissenting).
Any objective evaluation of the constitutionality of Art. 286a1 should proceed from the incontrovertible premise that the statute is not, as most people are inclined to think, a “Sunday closing law”, or even, as the majority of this court has characterized it, a “Sunday (or Saturday) closing law”. Rather, as will be demonstrated, it is a “Sunday opening law”.
Any suggestion that Art. 286a is a “Sunday closing law”, or a “Sunday (or Saturday) closing law”, either overlooks or ignores the fact that, by virtue of the statute’s provisions, stores in which only the forty-six items or categories of merchandise listed in section 1 are sold or offered for sale may open and engage in business on Sunday under sanction of law for the first time in one hundred years! Moreover, before the enactment of Art. 286a, the opening and operation of such stores and the sale of the listed merchandise on Sunday was absolutely prohibited by Arts. 283 and 286; and but for the enactment of Art. 286a operation of such stores and sale of the listed merchandise on Sunday would still be prohibited by Arts. 283 and 286. And if, as the majority opinion suggests, the sanctions provided in Arts. 283 and 286 were inadequate and “not effective for the considerations of large businesses and busy prosecutors,” thus dictating a need for injunctive process, that sanction could easily have been added by the Legislature for inforcement of the existing Sunday closing laws without the necessity of enacting a Sunday opening law.
INCIDENTAL QUESTIONS
Before writing at some length on my main point of disagreement with the majority, perhaps I should indicate certain incidental points of agreement and disagreement.
I agree with the holding that the pleas of unconstitutionality were pleas in bar and not pleas in abatement, and that the judgment of dismissal was, therefore, improper, and may be treated as meaningless. Texas Highway Department v. Jarrell, 418 S.W. *4162d 486 (Tex.Sup.1967); Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d 208 (1958); 1 Tex.Jur.2d 19-23, Abatement and Revival §§ 3-5. I agree that Rule 71, Texas Rules of Civil Procedure, authorizes us to treat the pleas in abatement as pleas in bar; that the take-nothing judgment may be considered as the only proper judgment, and that we have jurisdiction of the direct appeal.
I agree that we do not have jurisdiction to decide whether section 1 of Art. 286a is applicable only to “persons” or whether it is applicable also to corporations.
I agree that the constitutionality of Art. 286a was not decided in State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.Sup.1964). To the contrary, the opinion in that case indicates painstaking care that our decision concerned only a proper construction of Section 4a, since repealed.
I disagree with the majority’s interpretation of section 1 of Art. 286a. The majority has interpreted the section to mean that if one2 of the enumerated articles of merchandise is sold on Saturday, the merchant is not only prohibited from selling that article on Sunday but is prohibited also from selling on Sunday any of the other forty-five items or categories of items. I suggest that the majority interpretation is not the proper grammatical interpretation of the section. The section provides that “[a]ny person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale * * any clothing; clothing accessories; * * lawn mowers or cloth piece goods shall be guilty of a misdemeanor.” Use of the words “any” and “or” require, in the absence of something indicating a different legislative intent, that the section be interpreted to reads as follows: “Any person who sells any clothing on the consecutive days of Saturday and Sunday; or any clothing accessories on the consecutive days of Saturday and Sunday; or any lawn mowers on the consecutive days of Saturday and Sunday * * * ” The fact that the various items are separated by semicolons rather than by commas does not alter the rule, and I find nothing in the section supporting the majority finding of a different legislative intent. It hardly makes sense to find that the Legislature thought that a seller of motor vehicles on Saturday might sell bed coverings or household linens on Sunday and that he should be punished if he did. If the Legislature had intended to make a person selling one of the items on Saturday subject to penalties if he sold another on Sunday, it could have so provided in very simple language.
DUE PROCESS
As is apparent from the majority opinion, appellees attack the constitutionality of Art. 286a on a number of grounds. If any one of the grounds of attack is sound, the trial court’s take-nothing judgment is correct and should be affirmed. In my opinion the statute is unconstitutional because it operates to deprive appellees of their property without due process of law in contravention of the Fourteenth Amendment to the Constitution of the United States and of § 19, Art. I, Constitution of Texas.
Persons engaged in selling the items of merchandise listed in section 1, Art. 286a, are engaged in a legitimate activity, and a legislative prohibition of the sale of such items, or limitation on the right to sell them, can only be squared with constitutional due process if it is a legitimate exercise of the police power. The legislative prohibition or limitation contained in the statute does not represent a proper exercise of the police power unless there is a reasonable relationship between its proscriptions and the protection of the public health, safety, morals or general welfare. Standards for determining whether such a relationship exists are anything but precise. *417We summarized them in State v. Richards, 157 Tex. 166, 301 S.W.2d 597, at 602 (1957), in these words:
“The line where the police power of the state encounters the barrier of substantive due process is not susceptible of exact definition. As a general rule the power is commensurate with, but does not exceed, the duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be with private property rights. The guarantee of due process does not deprive the state of the right to take private property by the exercise of such power in a proper and lawful manner, but it is essential that the power be used for the purpose of accomplishing, and in a manner appropriate to the accomplishment of, the purposes for which it exists. * * * ”
Section 4 of Art. 286a declares that the Act’s purpose is “to promote the health, recreation and welfare of the people of this state.” But, the legislative declaration that the Act’s purpose is to promote the health, recreation and welfare of the people is not enough; it must appear that there is a reasonable basis for a legislative conclusion that the proscriptions contained in the Act will in fact promote or protect the health, recreation and welfare of the people. If the rule were otherwise, “it would always be within legislative power to disregard the constitutional provisions giving protection to the individual.” Houston & T. C. R. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, at 653 (1905). The Legislature has “[a] large discretion * * * to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests,” State v. Richards, supra; “[b]ut a state may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them. * * * Constitutional protections having been invoked, it is the duty of the court to determine whether the challenged provision has reasonable relation to the protection of purchasers [the public] * * * and really tends to accomplish the purpose for which it was enacted.” Jay Burns Baking Co. v. Bryan, 264 U.S. 504, at 513, 44 S.Ct. 412, at 413, 68 L.Ed. 813, 32 A.L.R. 661 (1924).
“ * * * [T]he cases are in complete accord in holding that a mere assertion by the legislature that a statute relates to the public health, safety, or welfare does not of itself bring such statute within the police power of a state. Governmental action does not automatically become reasonably related to the achievement of a legitimate and substantial governmental purpose by mere assertion in the preamble of the legislation in question. Hence, in the exercise of such power, the legislature cannot, by its mere fiat, make that reasonable which is indisputably unreasonable.” 16 Am.Jur.2d 546, Constitutional Law § 281.
In the forepart of this opinion I said that Art. 286a was a Sunday opening law rather than a Sunday closing law. Actually, of course, the statute does not speak to the opening or closing of mercantile establishments ; it speaks only to the sale or offers for sale of the forty-six items or categories of merchandise. What possible relationship the sale or non-sale of the particular items of merchandise on the consecutive days of Saturday and Sunday can have to the public health, morals, recreation or welfare is not suggested by the State; and I have been unable to conjure up a reasonable relationship in my own mind. I judicially notice, as a matter of common knowledge, that drug stores and grocery stores, which are legally open on the consecutive days of Saturday and Sunday, sell and offer for sale a large number of the listed items on both days; and prohibition of the sale of such items on the two consecutive days does not by law require the closing of such stores. The utter incongruity of an effort to relate the provisions of Art. 286a to pro*418tection of public health, recreation, or welfare is so patent as to be inescapable. Most modern drug stores sell hand mirrors, clocks and flashlights. Mirrors and clocks are listed in section 1; flashlights are not. Is a flashlight “hardware”, and thus included in the list of items which may not be sold or offered for sale on the consecutive days of Saturday and Sunday? If it is, how has the public health, morals, recreation or welfare been benefited by a statute which, because he sold a flashlight on Saturday, prohibits the merchant from selling a mirror or clock, or even another flashlight, on Sunday? Being uncertain myself of the relationship between the proscriptions of Art. 286a and the health, recreation and welfare of the people, which may have been in the legislative mind, I turned for assistance to the brief filed in this court on behalf of the State. I found there only this relevant statement:
“Obviously, Article 286a, Texas Penal Code, relates to many things for the good of the public generally. The act is calculated to decrease the number of mercantile establishments that remain open both Saturday and Sunday, thus relieving traffic congestion and affording more families a day for family recreation and other activity when all family members can be present. Thus by reducing traffic congestion, affording families an opportunity to relax together at a common time the public health, welfare and recreation is benefited. This brief will not be lengthened by reciting the many public benefts Article 286a, Texas Penal Code is calculated to give the public generally.”
Laws which reduce traffic congestion and laws which afford family members an opportunity to relax together at a common time undoubtedly have a reasonable relationship to public health, recreation and welfare; but, can it reasonably be said that Art. 286a will do either of these things ?
The State’s argument of public benefits is premised upon the statement that “[t]he act is calculated to decrease the number of mercantile establishments that remain open on both Saturday and Sunday * * The premise seems clearly to be false. Under the law as it existed at the time Art. 286a was enacted, no stores which dealt solely in some or all of the merchandise listed in section 1 could legally be open for business on Sunday. Art. 283 prohibited labor in the stores and Art. 286 prohibited any merchant or dealer in the merchandise from permitting his place of business “to be open for the purpose of traffic.” If we assume that, with Art. 286a in effect, those persons who deal solely in some or all of the listed merchandise, and those persons who could not operate their places of business profitably on both days without selling some of the listed items of merchandise, would be forced by economic necessity to keep their places of business closed on either Saturday or Sunday, perhaps we could reasonably conclude that the Act is calculated to reduce the number of mercantile establishments which remain open on Saturday. Quite obviously, however, it is calculated to increase the number of establishments which remain open on Sunday, since, prior to Art. 286a, none was legally open on Sunday. The question thus posed by the State’s argument is whether an Act authorizing Sunday operation of business establishments which, theretofore, were legally open only on Saturday, is calculated to reduce traffic congestion and to afford more. family members a common time of relaxation. I think not.
Before enactment of Art. 286a, weekend shoppers for any one or more of the forty-six items listed in section 1 were required to do their shopping on Saturday and had a choice of shopping at any store dealing in the listed merchandise. A decrease in the number of stores open on Saturday may be calculated to relieve traffic congestion on that day at those points where stores are closed, but it is most assuredly calculated to increase traffic congestion on Saturday at those points where stores choose to remain open on that day. Moreover, the mere closing on Saturday and opening on Sunday *419of some of the affected stores is calculated to create traffic congestion on Sunday in areas where none has existed before on that day. Finally, the closing on Saturday and opening on Sunday of some of the affected stores is calculated to increase Sunday traffic congestion, more than proportionately, by bringing once again into the stream of traffic all of those shoppers who did not find merchandise to their liking, at prices to their liking, on Saturday. In so far as traffic congestion is concerned, the statute is thus calculated to have an effect of aggravating the evil it allegedly corrects. Perhaps the best evidence that the State’s traffic-reduction argument is without merit is that the majority of this court has declined to embrace or approve it.
The idea that the statute is calculated to afford more family members an opportunity to relax together at a common time seems altogether fanciful. The same argument has been universally used by courts to support and sustain the validity of Sunday closing laws — they provide a common day of rest when all family members can come together for relaxation and recreation. It is difficult to see how the argument can now be used to support and sustain a Sunday opening law which is calculated to result in some members of families working on Saturday and resting on Sunday while other members rest on Saturday and work on Sunday. The practical effect of the statute in this respect appears to be just the reverse of its stated purpose.
Just as with the traffic-reduction argument, the majority has also declined to embrace or approve the State’s common-day-of-rest argument. Indeed, the majority has rejected as applicable here the common-day-of-rest philosophy, so eloquently pervading the majority and concurring opinions in the four 1961 Supreme Court Sunday closing law cases. Instead, the majority has invented a “one-day-a-week-surcease-from-commerce” philosophy, and suggests that the due process attack is without validity because the new philosphy should be more satisfactory to Sabbatarians. Relief of religious burdens may avoid complaints by Sabbatarians on religious grounds, but I am at a loss to understand how relief of such burdens can create a reasonable relation between the statute’s proscriptions and the public health, recreation and welfare. I will examine this matter in somewhat greater depth in analyzing the 1961 Supreme Court cases.
As requiring a different result from the one I have reached, the State has relied primarily upon four cases decided by the Supreme Court of the United States, to wit: McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961); Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582, 81 S.Ct. 1135/6 L.Ed.2d 551 (1961); Braunfield v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed. 2d 563 (1961). The first case involved the validity of the Maryland Sunday laws. They proscribed all labor, business and other commercial activities on Sunday, with certain exceptions such as sale of foods, drugs, newspapers and gasoline, and certain other exceptions in particular localities. In the second case, the Court considered the validity of the Massachusetts Sunday laws which forbid the keeping open of shops and the doing of any labor, business or work on Sunday, with certain exceptions. A Pennsylvania law was under attack in the last two cases. It provides that whoever shall sell on Sunday certain items of merchandise shall be subject to a fine. The items listed are almost identical with some of those listed in section 1 of Art. 286a. The Supreme Court upheld the validity of the statutes of the three states against almost every conceivable constitutional attack, including violation of due process. It is to be noted, however, that the Maryland and Massachusetts statutes are true Sunday closing laws, comparable to the Texas statutes before enactment of Art. 286a, and that the Pennsylvania statute was considered as having the effect of a Sunday closing law. Notice should be taken at this point that crucial to the Court’s decisions *420was the common-day-of-rest philosophy. This, said the Court over and over again, was the sustainable purpose of the various laws.
In McGowan v. Maryland, supra, the Court said:
“The present purpose and effect of most of them [Sunday Closing laws] is to provide a uniform day of rest for all citizens * * 366 U.S., at 445, 81 S.Ct., at 1115.
“ * * * It is true that if the State’s interest were simply to provide for its citizens a periodic respite from work, a regulation demanding that everyone rest one day in seven, leaving the choice of the day to the individual, would suffice.
“However, the State’s purpose is not merely to provide a one-day-in-seven work stoppage. In addition to this, the State seeks to set one day apart from all others as a day of rest, repose, recreation and tranquility — a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the' everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days.” 366 U.S., at 450, 81 S.Ct., at 1118.
“Obviously, a State is empowered to determine that a rest-one-day-in-seven statute would not accomplish this purpose; that it would not provide for a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives might spend together. Furthermore, it seems plain that the problems involved in enforcing such a provision would be exceedingly more difficult than those in enforcing a common-day-of-rest provision.
“Moreover, it is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for late sleeping, for passive and active entertainments, for dining out, and the like. * * ” 366 U.S., at 451, 81 S.Ct., at 1118.
If the Supreme Court of the United States has correctly stated the purpose of laws requiring the closing of mercantile establishments on one day a week, that purpose can be served only by laws which require closing on Sunday; it cannot be served by laws which give a merchant a choice of closing on any day of the week or on another specific day of the week. It follows that the proscriptions of Art. 286a have no reasonable relation to the health, recreation or welfare of the people; and, therefore, that the Article is an arbitrary exercise of the police power, and should be declared unconstitutional.
SMITH and GREENHILL, JJ., join in this dissent.. All Article references are to Vernon’s Texas Penal Code.
. Emphasis mine throughout unless otherwise indicated.