(dissenting).
The plaintiffs here, a corporation and some individuals who are officers, stockholders or allegedly customers of the corporate plaintiff, and an Orthodox Jewish rabbi, sought by complaint to have a statutory three-judge court convene to determine the constitutionality of Section 5 of Chapter 136 of the General Laws of the Commonwealth of Massachusetts. The defendant is the Chief of Police of the City of Springfield wherein the corporate plaintiff has its place of business. The court permitted one joint amicus curiae brief to be filed by intervening parties for each side of the question.
The plaintiffs filed a motion for a preliminary injunction which was never acted upon by the court. The defendant filed a motion to dismiss. As the record in this case will show, the hearing was-devoted largely to arguments on the motion to dismiss. Some evidence was taken on the merits and various stipulations were filed with the court.
I am in complete disagreement with, my colleagues on the court as to what constitute the facts in this case. The corporate plaintiff is managed by one Chernock, who is a director and the owner of' 56% of its stock. In 1957 the Supreme-Judicial Court of Massachusetts affirmed’ a judgment of conviction against Chernock on three complaints charging him with a violation of the precise section of' the General Laws of Massachusetts, the-constitutionality of which has been challenged in this proceeding. Commonwealth v. Chernock, 336 Mass. 384, 145-N.E.2d 920. In the state proceedings the cases were submitted to the Supreme Court on an agreed statement of facts-which differs radically from what has been accepted by this Court as the basic facts in issue.
Paragraph 5 of the complaint alleges-that the corporate plaintiff is “ * * * selling food to Orthodox and Conservative Jewish persons, prepared in accordance with the tenets of their religion.”' Paragraph 11 of the complaint alleges-that “Crown Market is a completely Kosher Supermarket”. The foregoing allegations and other language in the complaint would lead one to believe that the corporate plaintiff is engaged exclusively in the sale of Kosher meats and *478foodstuffs having a religious significance. In support of the allegations of the complaint, Chernock testified that he was the ■owner of 50% of the stock of the corporation and that approximately 95% of its sales were of Kosher foods. Chernock further testified that some foodstuffs were sold to non-Jewish customers on ■Sundays.
On the other hand in the case of Commonwealth v. Chernock, supra, 336 Mass, .at page 385, 145 N.E.2d at page 921, the Massachusetts Supreme Judicial Court in its opinion stated as follows: “The cases were submitted on the following agreed facts. The defendant conducts a combination Kosher and Super Market which, because of its religious convictions, is closed to business every Saturday and Jewish holiday but remains open to business on Sundays. On the days specified in the complaint, which were ■Sundays, the plaintiff kept his market ■open after 10:00 o’clock in the forenoon and until closing time and did sell to the ■public Kosher meats, bakery goods, vegetables and canned goods of all types.” (Emphasis added.)
It is most disturbing to observe the ■discrepancies between the allegations of the complaint in this case and the agreed upon facts in the state court case. Quite ■obviously both cases are concerned with the same market and the same individual in the person of Chernock.1 The inference from the language of the complaint is that the corporate plaintiff is engaged ■exclusively in the business of selling Kosher meat and Kosher food products— as witness the words “a completely Kosher market”. On the other hand, the agreed statement of facts in the state court case make it clear that the market sells to the public all kinds of vegetables, groceries and bakery goods in addition to Kosher meats and Kosher foods — as witness the words “a combination Kosher and Supermarket”. There are no limitations in the corporate plaintiff’s charter, a certified copy of which I am annexing to this opinion, as to the character of foods it may sell. It would appear to me that in a case of this magnitude involving as it does the striking down of a state statute, there should be no doubt or confusion as to the facts. The court should know whether this market is a store for the sale of religious foods, if one may use that expression, or whether it is a supermarket selling all kinds of food to the general public. If it be the latter, as is indicated by the agreed statement in the state court case, then the fears expressed in the majority opinion that the religious rights of some persons are not being safeguarded may be laid at rest. In that event we need look no further to find the reason for the great volume of sales on Sundays, which would appear to be the very obvious reason that the corporate plaintiff’s competitors are closed on Sundays observing the general day of rest prescribed by the laws of Massachusetts. It is therefore my opinion that if the decision in this case is to turn in any degree on the factual situation, the interests of justice would best be served by reopening *479the case in this court for the purpose of taking testimony to establish the truth.
On the assumption that the alleged facts accepted by the court as to the nature and extent of the corporate plaintiff’s business are of no significance, and on the further assumption that the sole issue before the court is whether or not the Commonwealth of Massachusetts may constitutionally enact a statute providing for the general closing of shops, warehouses and workhouses on Sunday, then I would allow the motion to dismiss on the basis that this Court will not and should not exercise its equitable powers to prevent enforcement of a state criminal statute where an adequate means to test the validity of the statute in the state court exists. Spielman Motor Sales Co., Inc. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322. The complaint before the Court does not allege that irreparable harm will be suffered by the plaintiffs if this Court should refer the plaintiffs to their remedies in the state court and before the Supreme Court of the United States by way of certiorari.
The majority would exercise equitable power on the basis of the holding in Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222, to the effect that a three-judge district court may not decline to take jurisdiction of a suit to enjoin operation of a state criminal statute where the enforcement of the statute results in the denial of civil rights of a citizen and the state officials intend to enforce the statute. Assuming, only for the moment, that enforcement of the state statute in question could deprive one of the alleged plaintiffs of a civil right it is apparent from the stipulation of fact filed by the parties and from the majority opinion itself that the state court stands ready to enjoin enforcement of the statute pending adjudication and that the defendant stands ready to refrain from enforcing the statute pending adjudication.
The majority opinion further admits that this concerns only the corporate plaintiff for the individual plaintiffs, under existing Massachusetts law, cannot be charged with violation of this statute. The majority make a very tenuous argument that the only way that the individual plaintiffs may “vindicate the constitutional rights claimed is by obtaining equitable relief.” The so-called constitutional right claimed by the individual plaintiffs is the asserted right to purchase food at any hour and this asserted right allegedly flows from the constitutional rights to liberty and to the free exercise of religion. In essence the sole complaint of the individual plaintiffs is that it is inconvenient to be unable to shop at all hours on Sunday. This was frankly admitted by counsel for the plaintiffs in argument. Transcript pp. 50, 61. I believe that the individual plaintiffs are before the Court as “window dressing” to enable the corporate plaintiff to rely upon arguments that freedom of religion has been infringed and thereby help the corporate plaintiff to gain a commercial competitive advantage. For these reasons I would hold that none of the alleged plaintiffs has presented an infringement of a substantial right and that the requirements of Evers v. Dwyer, supra, have not been met. I would relegate the plaintiff corporation and alleged plaintiffs to the state courts for their remedies.
Since the majority opinion goes to the merits of the case I feel that I would be remiss in my duties if I did not state my views upon the merits.
There are two basic issues here presented :
1. Is the statute in question religious in nature?
2. If not religious in nature does the statute violate the equal protection clause of the Fourteenth Amendment?
People of State of Illinois ex rel. Mc-Collum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648 and Ever-son make it clear that a statute which aids a religion or all religions or no religion or favors one religion over another is unconstitutional as a violation of the Fourteenth Amendment. Those cases both turn upon the question of the ex*480penditure of public funds in aid of religion. On this point they are distinguishable. The cases do not declare unconstitutional a legislative enactment which recognizes the existence of a Supreme Being. The “high wall of separation” imported into those cases is fiscal in nature.2
Many examples of constitutional enactments recognizing the existence of a Supreme Being or of organized religion could be cited. A few are: the appointment of chaplains for the Armed Forces and for houses of legislature; the words “In God We Trust” upon currency; the inclusion of “under God” in the pledge of .allegiance; draft exemptions for clergymen and conscientious objectors; tax exemptions for religious organizations.
The statute before the Court is not religious in nature in the sense of McCollum and Everson. It provides for no expenditure of public funds in furtherance of any or all religions.3 It compels no religious observation nor does it interfere with any person’s religious practices. In the absence of a definitive statement by the state court as to the meaning or federal constitutionality of the state statute, this Court would be bound to pass upon these questions if properly presented. Doud v. Hodge, 350 U.S. 485, 76 S.Ct. 491, 100 L.Ed. 577. The converse is also true. It is for the highest court of the state to tell us the meaning and .application of a state statute. State of Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 273, 60 S.Ct. 523, 84 L.Ed. 744; United States v. Burnison, 339 U.S. 87, 89, 70 S.Ct. 503, 94 L.Ed. 675; In re Murchison, 349 U.S. 133, 135, '75 S.Ct. 623, 99 L.Ed. 942. This Court must give weight to the expression of the .state court. In the instant case there have been many expressions of the meaning of the state statute by the Supreme Judicial Court. These expressions have also made clear the federal constitutionality of the state statute.
It is clear that the statute before the court had some religious intent in its initial form. The preambles to the early enactments make this fact obvious. In the majority opinion much is made of this circumstance. For my part the fact that a statute has religious roots is not disturbing at all. Many of our laws have religious roots which lie deep in the religious background and traditions of the American people.4 Frankly, I can think of no better roots that a law might have. The statute, however, providing as it does for a day of rest and cessation from business activities is clearly within the police power of the state and no apologies need be made for its history and origin.
The Supreme Judicial Court of Massachusetts had occasion to pass upon the question now before this Court in 1876, long before the inclusion of the First Amendment in the Fourteenth and long before the development of the line of cases exemplified by McCollum and Ever-son. In these circumstances it cannot be said that the Supreme Judicial Court was writing its way around constitutional prohibitions or that the police power theory is recent contrivance.
The legislative intent in this statute was stated in Commonwealth v. Has, 122 Mass. 40, 42, as follows: “This act has been so frequently recognized in both civil and criminal cases, and its various provisions have been so often the subject of judicial decision, that its constitutionality can hardly be considered an open question. It is essentially a civil regulation, providing for a fixed period of rest *481in the business, the ordinary avocations and the amusement of the community. If there is to be such a cessation from labor and amusement, some one day must be selected for the purpose; and even if the day thus selected is chosen because a great majority of the people celebrate it as a day of peculiar sanctity, the legislative authority to provide for its observance is derived from its general authority to regulate the business of the community and to provide for its moral and physical welfare. The act imposes upon no one any religious ceremony or attendance upon any form of worship, and anyone, who deems another day more suitable for rest or worship, may devote that day to the religious observance which he deems appropriate. That one who conscientiously observes the seventh day of the week may also be compelled to abstain from business of the kind expressly forbidden on the first day, is not occasioned by any subordination of his religion, but because as a member of the community he must submit to the rules which are made by lawful authority to regulate and govern the business of that community.”
In Commonwealth v. White, 190 Mass. 578, 580, 77 N.E. 636, the Supreme Judicial Court referred to the preambles to the early enactments of the statute which sound in the day of rest purpose and in the religious observation purpose. This case does not hold that the statute is religious in purpose and intent. There the Court was concerned with what is “work of necessity” and determined that commercial cranberry picking was not a work of necessity within the meaning of the statute. The issue of religious freedom was not before the Court.
The language quoted above from Commonwealth v. Has has been recently affirmed in Commonwealth v. Chernock, 336 Mass. 384, 145 N.E.2d 920.
A thorough study of the Constitution of the Commonwealth of Massachusetts and the construction placed upon it by its highest court furnishes convincing proof that this state is second to none in the safeguarding and preservation of the rights and privileges of all of its inhabitants. The Constitution of Massachusetts in Part I, Article II, guarantees to all the freedom of religion. Part I, Article III, provides among other things that “all religious sects and denominations * * * shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.” (Inserted in 1833 by the Eleventh Article of Amendment.)
Article XVIII of the Articles of Amendment, after reasserting the freedom of religion, prohibits the use of any public funds for “any church, religious denomination or society.” (Inserted in 1917 by the Forty-Sixth Article of Amendment.)
These provisions of the Constitution of Massachusetts and many decisions of the Supreme Judicial Court indicate the scrupulous concern that the Commonwealth has for the rights, privileges and immunities of its inhabitants. In Volume 6 of the Opinions of the Attorney General (1922) at page 483, is to be found the statement that the Constitution of Massachusetts “guarantees life, liberty and property, and equal protection to the same extent as does the Fourteenth Amendment.”
It should not be inferred, however, that the Constitution of Massachusetts reflects any indifference towards religion and religious values. In its Preamble there is an acknowledgment by its framers of the “goodness of the great Legislator of the universe”, and a prayer for “His direction” in the establishment of the Constitution. Part I, Article II, declares that “it is the right as well as the duty of all men in society, publicly and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe.” Part I, Article III, contains the following language “ * * * the public worship of God and instructions in piety, religion, and morality, promote the happiness and prosperity of a people and the security of a republican government.” In In re Opinion of the Justices, 214 Mass. 599, at page 601, 102 N.E. 464, *482the Supreme Judicial Court said: “The Constitution of the commonwealth [Massachusetts] in several clauses inculcates the practice of religion and urges the public worship of God as essential means for the perpetuation of republican institutions. But in emphatic and unmistakable terms, it guarantees to all our people absolute freedom as to religious belief and liberty unrestrained as to religious practices, subject only to the conditions that the public peace must not be disturbed nor others obstructed in their religious worship or the general obligations of good citizenship violated.” That these guarantees exist for all, whether Christian or non-Christian, is settled beyond doubt by the decision of Glaser v. Congregation Kehillath Israel, 263 Mass. 435, 161 N.E. 619. In that case, 263 Mass, at page 437, 161 N.E. at page 620, it was said: “These great guarantees of religious liberty and equality before the law of all religions are not confined to adherents of the Christian religion or to societies and corporations organized for the promotion of Christianity. They extend likewise to the adherents of the ancient religion whose sacred scriptures form a part of the Bible. We are of the opinion that Jews as well as Christians are protected by these explicit declarations of religious equality.”
I have deemed it necessary to cite these provisions of the fundamental laws of Massachusetts and these few excerpts from the opinions of its highest court in view of the reference by the majority of this court to the decision of Commonwealth v. Has as being an “ad hoc improvisation” and to other similar references to the interpretation placed by the Supreme Judicial Court upon the laws of the Commonwealth. The majority of this court has seen fit to label the Supreme Court’s construction of the statute in the Has case as a “characterization” rather than as a construction of the law of Massachusetts.
I see nothing in the Constitution of Massachusetts, the decisions of its highest court, or the law now under attack, that warrants this court to challenge either the spirit of the law or the motives of that court. I perceive no occasion here to go behind the construction of the law of a sovereign state, placed upon it by its own highest court, which would appear to me to be in a better position to interpret its own law than this court. If there be occasions for a federal court to question the motives of the highest court of a state in construing its own statutory law, this is not one of them.
The Supreme Court of the United States has had two occasions to pass upon and to uphold statutes against claims that they violated the establishment of religion clause of the First Amendment or the clause banning any statute which prohibited the free exercise of religion contained in the same amendment. These cases are illustrative of many similar decisions by the Supreme Court of the United States. I select them because of the applicability of their language and because I think that they should be contrasted with the authority of the majority.
In Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244, the Court was faced with a defense to the charge of polygamy based upon the religious beliefs of the defendant. At pages 162-167, of 98 U.S. the Court said: “* * * (T)he question is raised whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.
“Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The First Amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interfer*483ence is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.
“The word 'religion’ is not defined in the Constitution. * * * The precise point of the inquiry is, what is the religious freedom which has been guaranteed.
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“* * * Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
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“ * * * Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
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“So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”
In Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, the Court was faced with a refinement of the “released time” program of McCollum in the sense that there was no expenditure of public funds to house the religious training classes or to oversee the children en route to the classes. In a six to three split the Court upheld the statute over objections that the statute violated the first and second clauses of the First Amendment. It was held that the state may cooperate with and recognize the existence of organized religion. At page 313 of 343 U.S., at page 684 of 72 S.Ct. it was said: “We are a religious people whose institutions presuppose a Supreme Being.”
In differing conditions the Supreme Court of the United States has passed upon statutes requiring the cessation of either all or some business on Sunday. In 1885, in Soon Hing v. Crowley, 113 U.S. 703, at page 710, 5 S.Ct. 730, at page 734, 28 L.Ed. 1145 the Court said, “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 labors. Such laws have always been deemed beneficial and merciful laws, especially to the poor and dependent, to the laborers in their factories and workshops, and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the states.” In Hennington v. State of Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166, in 1896, the Supreme Court set out the rule and the answer at pages 303-304, of 163 U.S. at page 1088 of 16 S.Ct., “The well-settled rule is that if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. * * * It (the statute) is none the less a civil regulation because the day on which the running of freight trains is prohibited is kept by many under a sense of religious duty. The legislature having, as will not be disputed, 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. It is not for the judiciary to say that the wrong day was fixed, much less that the legislature erred when it assumed that the best interests of all re*484quired that one day in seven should be kept for the purposes of rest from ordinary labor.”
The 1950 case of People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184, upheld a similar statute against the same objections of interference with religious freedom. The Court of Appeals for the State of New York recognized that the Sunday laws were religious in origin but were maintained by the legislature for public health and safety purposes. On appeal to the Supreme Court of the United States a motion to dismiss was granted on the basis that no substantial federal question was presented. Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345.
With regard to the comment in the footnote in the majority opinion on Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345, People v. Friedman, 302 N.Y. 77, 96 N.E.2d 184, the following is pertinent:
The footnote asserts that the “New York law has few characteristics or roots in history tending to indicate that it is a religious regulation”. The fact is that People v. Friedman, at 96 N.E.2d 186, asserts that “the so-called Sunday laws may be said to have a religious origin”. The case goes on to say that even if the Sunday law to-day (i.e. in 1950) is penal in nature, Sunday is now set aside as a day of rest as wise and necessary to set apart for both the physical and moral welfare of a state or community.
With reference to this footnote, attention should be drawn to the preliminary report of the joint legislative committee on Sabbath Law, State of New York, Legislative Document (1952), No. 50, published by Williams Press, Inc., Albany, New York, in 1952. This legislative document (at page 11) gives the chronology of New York laws both colonial and state. The first Sunday law from a New York colony was enacted in 1664 and was known as the “Duke of York’s Laws”. In 1685, the General Assembly passed the first New York Colonial statute on the subject — a bill against Sabbath breaking. Generally this Colonial statute forbade worldly labor, business, or work of ordinary callings, prohibited traveling and sports and any exercises except works of necessity or charity. In 1695 the Colonial Assembly enacted another act against profanation of the Lord’s Day, prohibiting traveling, servile labor, and working, etc.
In 1778 an act for suppressing immorality was first passed in New York as a state. This act repeated almost verbatim the prohibitions of the 1695 law. During the next hundred years there are only a few minor changes.
Finally, in 1881 the Penal Code was adopted and the prohibitions against work, labor, business, and sports were arranged in separate sections. Aside from the section on public traffic on Sunday, and the section on public sports on Sunday, there were very few amendments to the Sabbath article from 1881 to 1952, a period of approximately seventy years.
Section 2140 of the New York Penal Code, McKinney’s Consol.Laws, c. 40, entitled “The Sabbath”, sounds the keynote of the Sabbath article in the following language: “The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community”.
How then, can the footnote state that the New York statute has few characteristics or roots in history tending to indicate that it is a religious regulation, when the legislature of the State of New York specifically designated it as regulating a religious day for a period of over approximately 170 years and when the statute had colonial roots extending back for a further period of 114 years?
As to the statement that the Massachusetts statute is dominated by “prolix *485and irrational exceptions”, with the intimation that the New York statute was not so characterized, it might be pertinent to point out that the Legislative Document No. 50 (1950) above referred to has as its “Preamble” the following statement from the annual message to the Legislature by Governor Thomas E. Dewey under date of January 9, 1952:
“The Penal Law provisions on Sabbath observations date back many years. The original broad provisions have been whittled away through the years by numerous exceptions and the present provisions create an illogical and inconsistent pattern. Although it is legal to conduct professional baseball, football, and soccer games on Sunday in many communities, it is illegal to conduct other sporting events and activities similar to those which are permitted. There are many other incongruities and examples of disparate treatment. Many activities which do not interfere with the religious repose of the community are prohibited by existing law. There is need for a careful re-examination of these provisions. I recommend that your honorable bodies establish a joint legislative committee to study the problems”.
It is significant that the Governor of the State of New York clearly recognized that Sabbath Day regulations was a matter for the Legislature, and he merely indicated that the law could be modernized to permit “activities which do not interfere with the religious repose of the community.” To the intimation of the footnote on the Friedman case that the New York statute has few roots in history tending to indicate that it is a religious regulation, the true characteristics and roots of the statute may be found in expressions indicating a religious connotation from colonial laws in 1664 to the recommendation of the Governor of the State in 1952.
This brings us to the second issue, that of equal protection. With the religious issue disposed of, the possibility of violation of equal protection arises from the exceptions to the statute. So long as the exceptions are not unreasonable on their face we have no power to pass upon them. Smith v. Cahoon, 283 U.S. 553, 566-567, 51 S.Ct. 582, 587, 75 L.Ed. 1264, “The principle that the state has broad discretion in classification in the exercise of its power of regulation is constantly recognized by the decisions of this Court (citing cases). But the constitutional guaranty of equal protection of the laws is interposed against dis-criminations that are entirely arbitrary. In determining what is within the range of discretion and what is arbitrary, regard must be had to the particular subject of the state’s action.”
“1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 369.
The Supreme Judicial Court of Massachusetts has adopted similar standards for determining the constitutionality of a legislative enactment and has used language particlularly applicable here.
“The plaintiff contends that the statute imposes an arbitrary and unreasonable restriction upon its right to conduct *486its business, and deprives it of its property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and of arts. 1 and 10 of the Declaration of Rights of the Constitution of Massachusetts and by the Fourteenth Amendment to the Constitution of the United States. And the right to engage in such a business or occupation carries with it the making of contracts, the advertising of goods, the solicitation of customers, and the adoption of the various means that are usually employed to encourage trade and to extend the market for goods. Holcombe v. Creamer, 231 Mass. 99, 108, 109, 120 N.E. 354; In re Opinion of the Justices, 271 Mass. 598, 601, 171 N.E. 234; Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 113, 49 S.Ct. 57, 73 L.Ed. 204; New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 76 L.Ed. 747. But one cannot conduct his business or pursue his occupation in any way he may desire. He is subject to reasonable regulations designed to protect the public interest. A reasonable regulation governing the sales of property does not deprive the owner of his property without due process of law. Commonwealth v. Crane, 162 Mass. 506, 39 N.E. 187; Commonwealth v. Libbey, 216 Mass. 356, 103 N.E. 923, 49 L.R.A.,N.S., 879; Neb-bia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138.
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«* * * The Legislature possesses a large measure of discretion to determine what the public interests require and what means should be taken to protect those interests. The field for the legitimate exercise of police power is coextensive with the changing needs of society. The record does not negative the existence of any of the possible findings that have been mentioned. All rational presumptions are in favor of the validity of an act of the legislative department of the government. Perkins v. Inhabitants of Westwood, 226 Mass. 268, 115 N.E. 411. Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 35 N.E.2d 222; Morrissey v. State Ballot Law Commission, 312 Mass. 121, 130, 43 N.E.2d 385.
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“One assailing a statute on constitutional grounds has the burden of proving the absence of any conceivable grounds upon which the statute may be supported. ‘As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.’ O’Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251, 257-258, 51 S.Ct. 130, 135, 72 A.L.R. 1163. ‘The burden is not sustained by making allegations which are merely the general conclusions of law or fact. * * * Facts relied upon to rebut the presumption of constitutionality must be specifically set forth.’ Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138. * * *
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“The contention of the plaintiff that the statute imposes an arbitrary and unreasonable restriction upon its business cannot be sustained.” Merit Oil Co. v. Director of Division of Necessaries of Life, 319 Mass. 301, 302-306, 65 N.E.2d 529, 530.
Testing the statute before the Court by each of the tests set out I believe that the answer must be in favor of the validity of the statute. Essentially the test is whether or not the exceptions are reasonable or are so arbitrary that this Court would be warranted in invading the province of the General Court of Massachusetts. Each of these exceptions was engrafted upon the statute at a different time and each was engrafted by vote of the legislature of Massachusetts. Careful analysis of the exceptions warrants the conclusion that each exception either allows the operation of a busi*487ness which the General Court has determined is necessary or serves as an aid to the achievement of the rest and relaxation for which the legislature has set aside the day.
The late Chief Justice of the Supreme Court of the State of New Jersey, in an opinion upholding the state statute which banned the sale of automobiles on Sunday, said, “The State has an absolute right to enter here and force on all and everyone so engaged regulations for the benefit of the public, and it is not for the court to say that its action in doing so is contrary to the constitutional provisions against discrimination merely because there are classes similarly situated with respect to the public or social evils requiring similar legislation that are yet unregulated. * * * ” Gundaker Central Motors v. Gassert, 23 N.J. 71, 127 A.2d 566, 573. An appeal to the Supreme Court of the United States was dismissed for failure to present a substantial federal question. 354 U.S. 933, 77 S.Ct. 1397, 1 L.Ed.2d 1533.
I would ordinarily say nothing further but I believe that the opinion of the majority demands some comment by me. The factual statements of the majority opinion contain some unwarranted assumptions. They state that business considerations make operation of the corporate plaintiff’s store on Saturday night impracticable. If the store closed at 10 p.m. on Saturday night an average of four hours business could be conducted for most months of the year. It should be borne in mind that it is alleged that the customers of the corporate plaintiff's store are not casual passers-by nor persons who treat it as a convenient corner grocery. It is the basis of the complaint that the customers inconvenience themselves to shop at the store. The corporate plaintiff would pay no more to have its employees work on Saturday night and Sunday morning than it already pays them to work all day Sunday. I do not agree that Saturday night and Sunday morning operation within the statute would be impracticable.
The majority of the Court also state that it is common knowledge that a grocery store’s business is concentrated on Friday evening and Saturday. This contradicts the equally common knowledge that supermarketeering has changed the buying habits of the consumer and has tended to level out the volume of business of grocery stores. Based on a mis-as-sumption as to the buying habits of the consuming public the majority of the Court attribute the Sunday volume of the corporate plaintiff’s store to the buying habits of Orthodox and Conservative Jews. This volume might as well be attributed to the fact that the corporate plaintiff’s store is the only supermarket open on Sunday in the area. Transcript p. 120. Further, the manager of the corporate plaintiff’s store testified at hearing that Sunday business is not exclusively with Orthodox and Conservative Jews and that the store does not refuse to sell on Sunday to Gentiles. He said, “We don’t discriminate. It would be bad business not to (sell to whoever came into the store)”. It should also be added that examination of the day book of the corporate plaintiff, which was introduced in evidence, indicates that the corporate plaintiff’s store, on Labor Day, did a volume of business which was greatly disproportionate to the business done on Mondays which were not holidays. This on a day after a Sunday on which they did their usual heavy business. The conclusion which I draw from this fact is that the store’s Orthodox and Conservative customers either bought almost twice as much in this week as in other weeks or that the store was taking advantage of the fact that it was the only supermarket open on the holiday. The latter appeals more to reason than the former.5
It is stated in the majority opinion that “if the challenged law is constitutional the Crown Market can be open *488only five days”. This statement is correct when the distinction is added that the corporate plaintiff may not lawfully do business on Sunday, except during the hours established by the legislature, according to the secular law of the state, and that the corporate plaintiff may not do business lawfully between sundown on Friday and sundown on Saturday according to the law of Orthodox Judaism, which law is not part of the jurisprudence controlling this Court. The point I wish to make is that under the law with which we must concern ourselves, if the statute is constitutional, the corporate plaintiff is lawfully prohibited from doing business on only one day of the week.
If the bald statement quoted above is correct what is to prevent an unscrupulous business man from forming or joining a religious body which observes as its Sabbath the day of the week on which his business is slowest? If, in the view of the majority, he closes his place of business on his Sabbath, then he has the constitutionally protected right to open his business, whatever it may be and wherever it may be located, on Sunday and do business with any and all customers. I do not think that this argument need be further expanded in order to demonstrate the logical fallacy inherent in the position taken by the majority.
The majority accuse the Supreme Judicial Court of Massachusetts of intellectual dishonesty in writing the Has case when they say that the decision was an “ad hoc improvisation”, yet the majority blissfully ignore the very real distinction between the Has case and Commonwealth v. White, supra. However, the majority choose to describe the language of the Has case quoted above as “characterization” rather than as “construction” so that they could bring it under the rule of Society for Savings in City of Cleveland Ohio v. Bowers, 349 U. S. 143, 151, 75 S.Ct. 607, 99 L.Ed. 950, rather than the line of cases represented by State of Minnesota ex rel. Pearson v. Probate Court, supra, United States v. Burnison, supra, and In re Murchison, supra, all of which hold that a construction as to the meaning of a state statute by the highest court of a state is binding upon the Federal Court.
The majority of the court in its opinion is highly critical of the exceptions in Section 6 of Chapter 136 of the General Laws of Massachusetts, to the blanket prohibition of Section 5 and refers to some of them either facetiously or as being the likely result of action by “pressure groups”. I find nothing either in the record or in the law that warrants any such conclusions to be drawn. If there be anything in the legislative history of these exceptions which were enacted into law at various sessions of the Legislature and over a period of years that warrants such conclusions, it is unknown to me.6 The granting of these exceptions by the Legislature ap*489pear to me to be matters of public policy peculiarly within the competence of the Massachusetts Legislature and well beyond the competence of this court. If I were to draw any conclusions from a study of these exceptions, I would say that they were undoubtedly granted for the purpose of accommodating the law to the needs of a developing society and that they were made for the purpose of contributing towards the refreshment of the people’s participation in their day of rest. Some, perhaps, have been determined to be works of necessity under the present conditions of society. However that may be, they are legislative matters and matters of public policy aifecting the people of Massachusetts and are not in any sense matters for this court to discuss and debate. In my view, it constitutes an unwarranted intrusion for a Federal Court to substitute its judgment on such matters for the judgment of the members of the Legislature who are elected by, and are directly responsible to the people of the Commonwealth of Massachusetts.
The history of the Lord’s Day statute, which has been referred to as one of the “blue laws” of this Commonwealth by my colleagues, is one which dates back to the union of the states and is a part of the Golden Treasury of the kind of a civilization which every good citizen must try to perpetuate. It is not only a day of rest, but, quoting from the decision of Commonwealth v. McCarthy, 244 Mass. 484, at page 486, 138 N.E. 835, at page 836:
“ * ® * that the day should not be merely a day of rest from labor, but also a day devoted to public and private worship and to religious meditation and response, undisturbed by secular cares or amusements. * * * Whatever inconvenience might result at the present day from the literal and general enforcement of the Lord’s Day Act, and whatever hard cases may *490have arisen under it, it is still the law of the land, to be judicially interpreted and administered according to its true intent and meaning, and upon the same rules as would govern us in the interpretation of any other statute.”
The courts of the United States, the courts of the States, and those who help to frame our laws and who help to chart our way of life must make certain that the line is held within the law against any person who would make the law nothing more than an instrument for destroying religion in the name of democracy. I believe that this should be the credo of all people regardless of their religious beliefs.
It must never be forgotten that ours is a government of laws predicated upon majority rule, and it must be remembered that when this day was set the States of the Union had each reserved to itself the right to enact statutes within the boundary lines of its constitution for the comfort, safety, and convenience of its people and the spirit of rest, comfort, and quietness of a Sunday in the lives of the people of Massachusetts, with the importance of having in mind other economic factors, and with the recognition of the value of the obligations and responsibilities of parents and the happy relationship of members of families associated with this day which not only has the aspects of rest, recreation and association, but also spiritual reflection. We cannot become prisoners of a false philosophy, which is truly dialectical materialism, and which in plain language represents the philosophy of Marx, Engel and Lenin, neither can we deny the right of others to disagree with our point of view. But is the person promoting this suit actuated by the spirit of the early founders of this great country, is he safeguarding the rights and privileges of our American society or is he using this as a medium by which to destroy these spiritual and economic values, the inevitable result of which might well be the complete destruction of our way of life? And if this were to happen, of what value would be our Constitution and laws, and our democratic way of life?
It is difficult to escape the conclusion that this is an example of an attempt to strike down the Constitution of Massachusetts and the Lord’s Day as viola-tive of rights under the First and Fourteenth Amendments of the United States Constitution on the basis of alleged religious belief, so that articles of every nature and description, kosher or non-kosher, could be sold. Examination of some of the documents attached to the appendix, which represent a part of the opinion filed in the Clerk’s Office, clearly shows this.7
I am directing the Clerk of the Court to file as an appendix to the original copy of the opinion, which will be a matter of public record, copies of the following documents: Certified copies of Complaints against Harold Chernock doing business under the name and style of the “Crown Kosher Market, Inc.”, the Defendant’s Bill of Exceptions *491in the same case, which was filed on September 6, 1956, together with a brief filed by the Commonwealth of Massachusetts with the signature of the then District Attorney of the County of Hampden Stephen A. Moynahan; the brief of the defendant Chernock so called, doing business under the name and style of the “Crown Kosher Market, Inc.”, and an exemplified copy of a Bill in Equity with the request for a temporary restraining order filed in the Superior Court of the County of Hampden, with the caption for the plaintiff “Crown Kosher Super Market of Mass., Inc., alias Harold Chernock d/b/a Crown Market”, with the attorney for the petitioner in part the same as the one entered for the petitioner in the three-judge court case; and a copy of the Certificate of Incorporation of the Crown Kosher Super Market of Massachusetts attested to by the Secretary of the Commonwealth. It may be said parenthetically also that while there was an interlocutory decree for a temporary restraining order granted, this was obtained through no hearing but upon consent of counsel of record in this particular ease.
The so-called cash book offered by the complainant’s counsel, available for examination and marked as an exhibit, is a very small ledger book which contains figures running only from June, 1957, down to November, 1958. I am co-relating this with the footnote No. 5 on page 487 of 176 F.Supp. which discloses the fact that this store was open on every day in the year (with the exception of Saturdays, and other Jewish Holidays, and Thanksgiving Day) including Labor Day of 1957 and 1958, and that on all these days where business had been suspended by others, very substantial amounts running into four figures were taken in.8
These facts speak for themselves, but a fair inference from all these entries discloses the fact that the business of this Crown Kosher Market, Inc., alias Chernock, amounted to at least $600,000, and that about 40% of this business occurred on Sunday and on Mondays, particularly when a holiday was celebrated on Monday. They show figures of a very substantial nature on the 4th of July of 1957 and 1958. This is evidence of the commercial point of view in contradistinction to the spiritual and patriotic background, of a day dedicated to the courage and Americanism of our Founding Fathers, when there was truly a great heritage passed down to the people of the United States by a proclamation on that same day that a new nation was born in keeping with the written Declaration of Independence; and the Crown Kosher Meat Market so-called remained open.
In closing I feel constrained to say that the law sought to be invalidated here has been on the statute books of the Commonwealth of Massachusetts in substantially its present form since Massachusetts joined the Union. Until very recently there was scarcely a voice raised against what has become a traditional part of our way of life. Those who framed the Constitution of Massachusetts, and indeed those who framed the Constitution of the United States, saw nothing incompatible in the observation of the Lord’s Day as a day of rest, and there is nothing in the Constitution of either the United States or Massachusetts that admits of any such strained interpretation as is sought here to the First and Fourteenth Amendments. The opinion of the majority of the court, if allowed to stand, will advance the cause of religious freedom and liberty not one iota. Its inevitable effect will be to disunite and *492divide the people of this Commonwealth, to dislocate our economic set-up, and to lay the foundation for the growth and development of cancer “isms”, having in mind the economic values that aré co-related with other statutes of the Commonwealth regulating hours of work and hours of labor and the rights and privileges of owners of many places of business engaged in many specialties, who do not seek to carry on their business activities on the Lord’s Day. The law should be upheld.
I feel that I have discussed this matter sufficiently in the opinion, but I am disposed to re-emphasize the fact that ours is a government by the majority and that this majority should not Be unreasonably unfair with the rights of the minorities who sincerely observe their religious beliefs. The good Jewish people, particularly those who are Orthodox Jews, faithfully observe Saturday as their Sabbath, which serves as a day of comfort and rest for them, and they representing the working class, as well as the Christians, because of the forty hour week law enjoy this Saturday and abstain from work the same day.
They are permitted under the present Lord’s Day statute to purchase kosher meats on Sunday. In all other respects the food they partake of outside of special holy days in the liturgy of Orthodoxy is the same as that used by Christians, but we cannot forget that if there is any interference with their religious observances these questions should be settled by the General Court of Massachusetts, which is in a position to recognize these minority rights which after all are but a small percentage of the population. In this particular matter before the Court these petitioners have been engaged in business since 1954, and an examination of their charter rights clearly indicates that they have the power to open warehouses on Sunday. It is clear that the Jewish people who passed down through the corridors of centuries the precious spiritual values which have served as a foundation stone of respect for God would not for one minute support any movement where under the cloak of religion a one-man corporation was using a spiritual garment as a medium by which unjustly to enrich himself.
I would dismiss the complaint, or refuse the injunction, and declare the statute constitutional in the circumstances.
I am respectfully reserving the right to file an additional memorandum if I find it necessary to discuss other matters which are a part of the history of this case.
. The defendant’s bill of exceptions in the state court cases establishes the identity of the defendant in that case with the plaintiff in the instant case. For example, the defendant therein filed a motion to dismiss which was captioned “Commonwealth v. Harold Chernock D/B/A Crown Market”. The defendant’s brief in that case under the heading- “Issue No. 2” raised the same issues that are raised here, namely freedom of religion and equal protection of the law under the Massachusetts Constitution and Declaration of Bights. The same defenses under the First and Fourteenth Amendments were available to the defendant in the state court case. After conviction in the Superior Court of Massachusetts (the trial court), a bill of complaint was brought in that court by the defendant for the purpose of restraining the authorities from enforcing the law pending the outcome of an appeal to the Supreme Judicial Court. It is noteworthy that the petitioner in that complaint is “Crown Kosher Super Market of Mass., Inc. alias Harold Cher-nock D/B/A Crown Market.” Copies of these documents are being filed in the Clerk’s office of the U.S. District Court at Boston.
. See complete discussion of the source of this phrase in Reynolds v. United States, 98 U.S. 145, 162-164, 25 L.Ed. 244.
. See Doremus v. Board of Ed., 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475.
. By Executive Order and Presidential Proclamation, Christmas is designated each year as a holiday. This day, commemorating as it does the birth of Christ, is celebrated as a day of rest and cessation from business. No day could have deeper or more significant religious roots, yet if the reasoning of the majority is carried to its logical conclusion, such Presidential Proclamation contravenes the Constitution in its application to all persons, including non-Christian inhabitants of the United States.
. The corporate plaintiff offered in evidence a record of its sales (Ex. 1). It is interesting to note that on Sunday, June 30, 1957, its gross sales were $3,-*488583.61; on Wednesday, July 3, of the same year — $2,883.30, and on the following day, July 4, 1957, — $5,492.68. The religious convictions of some of the plaintiff’s customers cannot explain this statistical data.
. In the majority opinion it is stated that “the statute does not generically forbid the keeping open of a store on Sunday to sell food, but is just limits this liberty to selected types of stores. Employees of the favored stores are not less in need of rest than those of the Crown Market” etc. In a footnote relating to the subject matter the court has listed many of the exceptions which it characterizes as “whimsical”, “prolix” and “irrational”. In my judgment there is no warrant or justification for the phrase “favored stores” or for the harsh adjectives employed. What the Legislature has done is to give recognition to the nature of the day as a day of rest, leisure and relaxation by permitting the sale of some foods and beverages which are believed to be necessary or to contribute to the refreshment of that day. No markets are permitted to be open at any hours on Sunday except markets for the sale of Kosher meat and milk which may remain open until 10:00 A.M. All other markets are closed including the super markets and large general stores. The das-*489sification established by the Legislature quite obviously refers solely to the types of stores and the products they sell, and in no way to the race or religion of the proprietor or the employees.
In the absence of a legislative history of each enactment creating the various exceptions that appear in Section 6 of Chapter 136 of the General Laws, the mere listing of the exceptions is wholly without meaning. Those relating to sports will be found to be much the same as the laws of other states regulating the conduct of amateur and professional sports on Sundays. The provisions of the law which permits the digging of clams on Sunday but not the dredging for oysters is characterized in a footnote to the majority opinion as being “whimsical”. The fact is — and this is certainly common knowledge to the people of Massachusetts — that for generations, people residing along the seashore of the state have been digging clams for sport and for their own consumption when the tide is at a low ebb; whereas the dredging for oysters is a commercial enterprise involving the cultivation of oyster-beds, skillful dredging and other specialized activity. The distinction is not at all whimsical although it might appear to be so to the casual critic.
Further, the same footnote in the majority opinion states “News dealers whose stores are open every other day of the week (thus excluding Sabbath-observing Jews) may sell milk and tobacco at all times on Sunday”. No such unreasonable interpretation has ever been placed on this section of the statute by any court. The statute obviously refers to regular newsdealers whose places of business are permitted by law to be open throughout the week and it certainly does not mean that if an individual newsdealer sees fit to close his doors on any particular day, he is thereby prohibited from opening on Sundays. Such an interpretation is lacking in logic and plain common sense. To suggest that Jewish newsdealers are prohibited from making the same sales on Sunday as their Christian competitors is not a correct statement.
The other exceptions in the statute could be similarly reconciled, but the foregoing will suffice to illustrate that the people of Massachusetts and their legislators have not busied themselves throughout the years with enacting laws that are whimsical, prolix or irrational. Least of all are the exceptions discriminatory.
. Examination of the docket discloses that the appearance of the late Attorney General of the Oommonwealth of Massachusetts was filed on July 23, 1958. While three amendments to the complaint which were filed during the summer of 1958 were assented to by attorneys for the Chief of Police of Springfield, they did not contain the name of the Attorney General although counsel for the plaintiff well knew notice had been given to the Attorney General under the statute. After the successor to the Attorney Gea« eral had qualified the case was marked for hearing on October 30, several days before that the successor to the Attorney General requested a delay so that he might prepare and participate. At the hearing on November 3 the brief of the Oommonwealth and a stipulation of fact were filed. The stipulation of fact does not agree with the evidence presented. No evidence was offered by the Attorney General’s representative who was the only active counsel for the side adverse to the petitions.
. July 4, 1957, $5,492.68; September 1, Sunday, $4,179.58; September 2, Labor Day, $2,536.45; Christmas Day, $1,885.-86; January 1, 1958, Wednesday, $2,233.-66; July 4, 1958, $5,816.98; August 31, Sunday, $3,670.05; Monday, Labor Day, $2,173.52.