(dissenting).
I agree with the majority opinion in its conclusion that the Sunday Closing Law is constitutional, but I respectfully dissent from so much of the majority opinion which holds that the prosecutors may be restrained from prosecuting. My reasons have previously been stated. See dissent in City of Ashland v. Heck’s, Inc., Ky., 407 S.W.2d 421. The Heck opinion and the majority opinion here are based on claimed violations of the Fourteenth Amendment to the United States Constitution and section 2 of the Kentucky Constitution. In either case such claimed violation, if valid, could and should have been raised as a defense to the prosecution. Instead, both cases in recognizing such claimed violations of constitutional rights as the basis for equitable relief are very dangerous precedents in the hinderance of law enforcement.
In closing, I would point out that in this action it is sought to enjoin the duly elected and qualified Commonwealth’s Attorney and County Attorney from prosecuting the indictments, but nothing appears to prevent the trial judge from appointing a pro tern Commonwealth’s Attorney should both the named officers be absent at any term or part of term. KRS 69.060. Shelton v. Commonwealth, 224 Ky. 671, 6 S.W.2d 1094; Wells v. Miller, 300 Ky. 680, 190 S.W.2d 41. See KRS 69.310 on absence of the county attorney. The majority opinion in no way restrains the trial judge from holding a trial of the indictments involved.