Concurring Opinion by
Mr. Justice Roberts:Despite an opinion laced with support for the small businessman, love for the family, and reverence for the Sabbath, the opinion announcing the judgment of this Court totally fails to resolve, discuss, or even isolate the most important issue here presented: Does *56a statute which permits grocery stores employing less than ten people to open on Sunday, but which compels other grocery stores employing more than that number to close, violate the equal protection clause of the Constitution of the United States? In my opinion, an adequate answer to a question of this magnitude requires more than the conclusory assertion “a line must be drawn somewhere.” Furthermore, a study of the cases in this area convinces me that the statute here challenged is constitutionally infirm.
I shall assume that the raison d’etre for §1 of the Act of September 27, 1961, P. L. 1695, 18 P.S. §4699.15, is, as stated by the majority,1 to eliminate the “traffic congestion, unbearable noises, and a general condition wholly violative of the intent and purpose of the Sunday Closing Laws.” I am also aware that this Court should follow the holding in Two Guys v. McGinley, 366 U.S. 582, 81 S. Ct. 1135 (1961), in which the Supreme Court of the United States sustained, against an equal protection argument, our Act of August 10, 1959, P. L. 660, §1, 18 P.S. §4699.10 which interdicted the Sunday sale of certain products by any store, regardless of size. Nevertheless, I believe that Two Guys is distinguishable from the present case, and also that the statute here under attack will not accomplish the very purpose which the majority advances as the sole reason for its enactment.
Admittedly, the statute involved in Two Guys was carefully drafted to include those items usually sold by large discount department stores whose business activities on Sunday did indeed disrupt the peace and tranquility normally associated with our day of rest. However, unlike the present statute, the Two Guy’s prohibition was aimed at all stores which sold the list*57ed items, not just the larger establishments. Why, we might ask, did the Legislature resort to an “overkill” statute, when it was concerned with an evil perpetrated only by the big-volume operators? To me the answer is clear. It is one thing to say, as the Supreme Court in Two Guys did say, that it is “within the power of the legislature to have concluded that these businesses [discount department stores] were particularly disrupting the intended atmosphere of the day because of the great volume of motor traffic attracted, the danger of their competitors also opening on Sunday and their large number of employees.” 366 U.S. at 591, 81 S. Ct. at 1140. But it is quite another thing to use this rationale as a lever to give a competitive boost to smaller establishments. For the Legislature to decide that supermarkets, as well as discount stores, disrupt the desired Sunday atmosphere, is to legislate within the rationale of Two Guys. Yet, when the statute exempts the corner grocery store from its prohibition, we inject the element of economic discrimination into our Sunday closing law, and thus create an entirely different situation from that faced by the Supreme Court in Two Guys.
By the great weight of authority, other state appellate courts that have been called upon to pass on Sunday closing laws which distinguished between establishments selling the same products have found such laws violative of the equal protection clause. For example, in Terry Carpenter, Inc. v. Wood, 177 Neb. 515, 129 N.W. 2d 475 (1964), the Nebraska Supreme Court unanimously invalidated a Sunday closing law that exempted stores employing not more than two people. That court did not even suggest that the Nebraska legislature could have had any constitutionally valid purpose in making this economic discrimination. A statute exempting selected coastal counties in New Jersey met with a similar fate before the Superior Court of *58that state. Sarner v. Union Twp., 55 N.J. Super. 523, 151 A. 2d 208 (1959).2
The most frequently voiced equal protection argument based on economic discrimination has come in response to those closing laws whose exemptions result in permitting certain types of stores to open on Sunday and sell the same merchandise that neighboring stores, which are shut down, cannot sell. Although there is a split of authority in this area, a clear majority of the states have held their respective statutes violative of the equal protection clause of the Constitution of the United States. Two Illinois cases illustrate that the test in that state is whether the closing law gives a competitive advantage to one business over another. In City of Mt. Vernon v. Julian, 369 Ill. 447, 17 N.E. 2d 52 (1938), a closing ordinance was declared unconstitutional when it appeared that its exemptions permitted, inter alia, a grocery store to remain open and sell tobacco, while forcing a tobacco shop to close. Conversely, in Humphrey Chevrolet v. City of Evanston, 7 Ill. 2d 402, 131 N.E. 2d 70 (1955), an ordinance *59aimed at certain commodities, rather than the stores themselves, withstood attack by an automobile dealer when the court noted that nobody could sell cars on Sunday.3
There is one area, however, where an economically discriminatory closing law will be sustained. Significantly, in all the cases heretofore cited, state courts have noted that no valid legislative purpose could be found to sanction the economic schism produced by the statute. But where the facts are such that the economic discrimination itself is necessary to effectuate a state’s legitimate dual interest in both lessening Sunday congestion and also increasing recreation, then the law may stand. Such a factual framework supports the holding in McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101 (1961). The Maryland statute, see footnote 2, supra, permitted the operators of bathing beaches and amusement parks in Anne Arundel County to sell merchandise incidental to the operation of those establishments.4 Thus, the defendant discount *60store, for example, could not sell suntan oil or rubber ducks on Sunday, although these identical items could be sold at bathing beaches. In sustaining this act, Mr. Chief Justice Warren stated: “Here again, it would seem that a legislature could reasonably find that these commodities, necessary for the health and recreation of its citizens, should only be sold on Sunday by those vendors at the locations where the commodities are most likely to be immediately put to use.” 366 IJ.S. at 427-28, 81 S. Ct. at 1106.
The necessity for this minimal economic discrimination is plain. The Legislature, of course, has the power to pass legislation encouraging the use of a state’s recreational facilities on Sunday. But, the use of these facilities might be diminished if the public could not purchase, on the spot, the many and varied commodities needed to make the day of rest indeed restful. Furthermore, at best a minimal increase in traffic would result from the opening of a beachfront sundry store, since even the laziest of bathers would hardly use his car to travel from beach blanket to counter. On the other hand, if all stores could remain open to sell these supplies on Sunday, the traffic congestion could well exceed even the weekday flow, given the addition of beach traffic to the normal rush of shoppers.
The majority in the present case would have us believe that the economic discrimination in our statute is also necessary to decrease Sunday traffic while, at the same time, feed our population. I not only fail to share the majority’s concern over the imagined starvation of our citizenry if small grocery stores could not open on Sunday* but furthermore, as I read the present exemption for stores employing less than ten people, this statute might not even decrease traffic! *61Although the majority insists that, if an establishment employs more than ten persons during the week it cannot open on Sunday with a staff of less than ten, the statute does not dictate this result. At best, the statute is silent on this question. It is therefore equally reasonable (if not more reasonable, since the statute is directed against Sunday sales) that any store may open on Sunday if it employs less than ten persons on that day. Thus, I find nothing in this closing law to prevent a large supermarket from opening on Sunday, staffed for that day only by a manager and eight checkout cashiers, or perhaps by a butcher, a manager and seven cashiers. The point is simply this. In the case of a supermarket which does not, even during the week, employ a traditional sales staff, it is not the number of employees which determines whether people will shop there on Sunday, but rather the availability of the merchandise itself which controls. I am not necessarily suggesting that supermarkets, for a certainty, will open on Sunday with skeletal staffs. I merely point out that the language in McGowan requires the very clearest showing that economic discrimination will further a legitimate state interest before this, or any other court, may countenance such discrimination in a Sunday closing law. Absent such a showing, the present case is indistinguishable from all those in which similar legislation has been struck down.
Ironically, if the majority is so concerned about the flow of traffic on Sunday, this flow would be best decreased if the first two exemptions in 18 P.S. §4699.-15 were eliminated. (I share the majority view that the third exemption is properly limited to restaurants or “take out” stores, and thus do not suggest that it is unconstitutional.) Contrary to the majority’s position, I am certain that the elimination of these two exemptions would not invalidate the entire section with *62the resulting opening' of all supermarkets on Sunday, but would instead force them all to close. The Act of May 28, 1937, P. L. 1019, §55, 46 P.S. §555, provides that every statute shall be severable unless the court finds that the Legislature would not have enacted the law without the missing language, or that, without it. the statute is incomplete. Neither of these dangers are present here.
Clearly the statute would be complete without the exemptions. In fact, without them, the section merely has the effect of adding fresh meats, produce and groceries to the list of completely prohibited items for Sunday sales already set out in 18 P.S. §4699.10 and upheld in Two Guys. Moreover, to conclude that without the exemption for small stores and family stores, the Legislature would not have enacted this section is to exalt the questionable economic discrimination present in this statute over the legitimate state interest in Sunday’s tranquility—an exaltation that I would be loathe to ascribe either to our lawmakers or my brethren.
For all the foregoing reasons I firmly believe that the first two exemptions contained in this section violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States; and without constitutional sanction these exemptions cannot possibly stand, supported merely by the maxims advanced by the majority. However, despite my conclusion that two of the exemptions are unconstitutional, I concur in the majority’s5 result because in my view no establishment may sell groceries on Sunday. Thus, the court below properly denied relief to appellant.
Opinion by
Mr. Justice Cohen :The majority apparently sanctions the appellant’s resort to the courts of equity to restrain a criminal *63prosecution. Generally, our courts have been diligent in preventing the use of equity in the restraint of criminal prosecutions. We require that there be not only a substantial question regarding the constitutionality of the statute, but also a showing that its enforcement would cause irreparable damage to property.
Applying that rule to the present situation, Bertera complains that even though the Act of June 24, 1939, P. L. 872, §699.4, 18 P.S. §4699.4, and the Act of September 27, 1961, P. L. 1695, §1, 18 P.S. §4699.15 make it a crime to engage in certain businesses on Sunday, nevertheless, he has a large investment in his store which was made in the expectation of being able to operate that store on Sunday. He further alleges that the Act of 1361 permits certain retail establishments (not his) to operate on Sunday. Hence, he says, the Act is unconstitutional as to him.1
If the Act of 1961 were wholly unconstitutional, Bertera would then be subject to prosecution under the Act of 1939, P. L. 872. If the Act of 1961 is not totally unconstitutional, but the exemption is an unconstitutional exemption, the Act would be in effect without the exemption, and there is no allegation on Bertera’s part that the Act without the exemption is unconstitutional. Consequently, he would be prohibited from engaging in business regardless of the constitutionality of the exemption in the 1961 Act; and the proposed enforcement of the Sunday Closing *64Laws cannot under any circumstances be considered an unconstitutional interference with his business. Thus, Bertera’s position is unsound. Our Sunday laws generally have been upheld against constitutional attack. Two Guys v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. ed 2d 551 (1961), Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. ed 2d 563 (1961). Therefore, I take it that Bertera cannot successfully maintain that he could operate on Sunday without violating one or more constitutionally valid statutes. Even if the exemption contained in the Act of 1961 were invalid, the only result of striking it down would be to leave the Act in effect without the exemption, thus prohibiting Bertera from opening in any event. I see no substantial question of constitutionality here which justifies equity in assuming jurisdiction. Under these circumstances it is unnecessary even to consider the extent of harm to Bertera’s business.
I would vacate the decree of the court below and remand this proceeding to that court with instructions to dismiss the complaint for want of jurisdiction.
I regret that there is another aspect of this litigation which requires comment. While our Court had this case under consideration, a petition for a writ of prohibition was filed on Bertera’s behalf; and without notice to or answer by the parties sought to be restrained, the following order was entered:
.. “Now, this 18th day of October, 1967, upon presentation of the foregoing Petition for Writ of Prohibition, it is ordered and directed that such Writ be issued and that: (a) Justice of the Peace Otto Hughes is enjoined and prohibited from holding a hearing on the informations filed with him by Woodrow L. Clark charging John Bertera with violating the 1961 Statute of the Sunday Blue Laws, Section 699.15 added September 27, 1961, P. L. 1695. . Sec. 1 (18 P.S. Sec. 4699.-15) while the constitutionality of said statute.is under *65challenge and pending in this Beaver County Test case, (b) Justice of the Peace Otto Hughes and all other Justices of the Peace in Beaver County, Committing Magistrates and persons entitled to act in the capacity of Committing Magistrates in Beaver County, who being similarly situated, constitute a class, and whose numbers make it impracticable to name are enjoined and prohibited from taking any information from any persons whatsoever for alleged offenses under the 1961 Statute of the Sunday Blue Laws Section 699.15 added September 27, 1961, P. L. 1695. Sec. 1 (18 P.S. Sec. 4699.15) while the constitutionality of said statute is under challenge and pending in this Beaver County test case.
By the Court :
Musmanno
Justice of the Supreme Court of Pennsylvania-”
The entry of this order was not the action of the majority of our Court but was the unilateral act of one member. No individual member of our Court has the power to issue a writ of prohibition, just as no individual member of our Court has the power to quash an appeal, grant a new trial, or affirm or reverse a lower court’s judgment.
In Schlesinger Petition, 367 Pa. 476, 81 A. 2d 316 (1951), Chief Justice Drew, in reviewing the proceedings followed when a petition for writ of prohibition is filed, stated on page 479: “On May 29, 1951, the petitioner [Schlesinger] filed this petition for a writ of prohibition, and we, on the same day, granted a rule on Judge Musmanno to show cause, returnable June 4, 1951, and stayed all proceedings until further order of this Court.”
In Dauphin County Grand Jury Investigation Proceedings (Ho. 2), 332 Pa. 342, 343, 2 A. 2d 802 (1938), the proceedings pertaining to the issuance of a writ of *66prohibition were described as follows: “The chairman of the House Investigating Committee then filed a petition in the Supreme Court for a writ of prohibition. A rule to show cause was granted by the Supreme Court, and proceedings were stayed pending the disposition of the ease. A return to the rule was filed by the presiding judge. . . .”
In both cited cases and in every case published in our Reports, the courts have followed the correct procedure; that is, upon the filing of a petition for a writ of prohibition, the court grants a rule on the party sought to be restrained, thus giving the party an opportunity to answer. The Court may or may not stay proceedings pending disposition or further order. After the party sought to be prohibited files his return to the rule, the Court, not a single member thereof, either without or after oral argument determines whether the writ should issue. This is the only proper and constitutional procedure upon application for a writ of prohibition.2
For purposes of convenience, I shall hereafter refer to Mr. Justice Mttsmanno’s opinion as the majority opinion although it represents the views of only one Justice.
The efficacy of this holding has in no way been undermined by McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101 (1961). The Supreme Court in McGowan did uphold a Sunday closing law that exempted the sale of certain recreational items by those merchants who operated bathing beaches or amusements parks in Maryland’s resort county of Anne Arundel. However, the geographic distinctions made in that statute did not extend to all merchandise, as in Sarner. Moreover, the Anne Arundel provisions were clearly relevant to the legitimate legislative purpose of keeping bathing beaches operative and thus foster the recreational aspects of Sunday. In Sarner, any such legitimate purpose was obliterated by the carte blanche permission given to certain merchants to sell anything on Sunday as well as the senseless discrimination between different resort counties in New Jersey. Whether Anne Arundel County is the only Maryland resort county or whether, in fact, it was also the recipient of favorable legislative discrimination, as were the exempt counties in New Jersey, need not concern us here, for it was never argued, and hence never faced in ilcGowam,.
See also Nation v. Giant Drug Co., 396 P. 2d 431 (Wyo. 1964) (holding unconstitutional a closing law whose effect was, inter alia, that grocery stores could sell bread but bakeries could not, that drug stores could sell candy, but candy stores could not, and that gas stations could sell tires, but tire stores could not) ; Broadbent v. Gibson, 105 Utah 53, 140 P. 2d 939 (1943) (facts similar to Giant Drug, supra) ; State v. Karmil Merchandising Corp., 158 Me. 450, 186 A. 2d 352, 365-66 (1962) (in upholding closing law, court was very careful to point out that the stores permitted to open were not engaged in the same business as respondent-department stores) ; City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W. 2d 930 (1949) (semble). Contra, Charles Stores Co. v. Tucker, 263 N.C. 710, 140 S.E. 2d 370 (1965) ; Kirk v. Olgiati, 203 Tenn. 1, 308 S.W. 2d 471 (1957).
The opinion in McGowan indicates that the Maryland statute now contains an additional exemption for Anne Arundel stores employing not more than one person other than the owner. 366 U.S. at 423, 81 S. Ct. at 1103. However, since that amendment was added after the defendants were indicted, they did not argue that *60it was also unconstitutional. Accordingly, tlie Court did not pass on, or even discuss, this exemption.
See footnote 1, supra.
In Bargain City U.S.A., Inc. v. Dilworth, 407 Pa. 129, 179 A. 2d 439 (1962), and Rubin v. Bailey, 398 Pa. 271, 157 A. 2d 882 (1960), our Court held that the Sunday closing laws were not violative of the Constitution of the Commonwealth. These two decisions and the United States Supreme Court decision in Two Guys, infra, demonstrate that the constitutional validity of the Sunday closing laws has not been sufficiently impugned by the complaint filed here to warrant the intrusion of equity in the restraint of criminal prosecution.
The procedure in tlie case of Berkowitz v. Wilbar, 410 Pa. 309, 206 A. 2d 280 (1965), may be summarized as follows:
On January 9, 1958, Berko witz’s position at the Henry R. Landis State Hospital was established as one within the ‘•classified service” category. On November 1, 1963, Berkowitz received notice from the Director of Personnel of the Department of Health, at the instance of the Governor of the Commonwealth, that his status had been changed to place him in the category of “unclassified civil service.” On April 24, 1964, Berkowitz was notified by letter that his employment with the hospital was to terminate on May 12, 1964.
On May 1, 1964, Berkowitz appealed to the Commission contending that his change to “unclassified civil service” was illegal. The Commission determined that since he was in the “unclassified service” he had no right to a hearing. Berkowitz then filed a complaint in equity in the Commonwealth Court on May 12, 1964, against the Secretary of Health of the Commonwealth of Pennsylvania seeking a preliminary injunction to restrain the Secretary from dismissing him from his position with the hospital. The *67Court denied the injunction and Berkowitz took an appeal to our Court,
On May 18, 1964, X issued an order restraining the Secretary of Health from dismissing Berkowitz from his position and from interfering with or denying him any rights guaranteed him under the Civil Service Act and that such order should continue until argument on the restraint on May 26, 1964. Every member of our Court was notified by letter on May 18th as to the action taken in this matter. The order I issued staying Berkowitz’s dismissal was dissolved.
On the appeal our Court held that Berkowitz’s remedy was by way of an action of mandamus and not by an action seeking a preliminary injunction. Berkowitz instituted an action of mandamus to compel the Civil Service Commission to grant him a hearing. The Commonwealth Court issued an order directing the Commission to grant a hearing. The Commission complied and found the re-elassification improper and ordered Berkowitz to be reinstated with back pay. After appeal to our Court, on .January 6, 1967, our Court hnnded down an opinion affirming the Commission’s order. Wilbar v. Berkowitz, 424 Pa. 154, 225 A. 2d 538 (1967).