(concurring).
I agree with the judgment, but disagree with the reasons advanced in support thereof. In its effort to uphold the constitutionality of Article 286a, this Court admits that the Act can be held constitutional only by holding that Section 4a of the Act requires a certificate of the purchaser that an item is needed as an emergency for the welfare, health or safety of human or animal life and that the purchase is in fact an emergency purchase to protect the health, welfare or safety of human or animal life.
The Court also admits that its holding of “indefiniteness is a narrow one.” The Court then protects itself by candidly stating that “[We] are not to be understood, however, as holding or inferring that we would uphold the validity of Sec. 4a if it required only that a seller make an objective determination as to whether a purchase is an emergency purchase.”
It seems to me that the true question should be faced. The paramount question is whether we are going to hold Article 286a valid, as the Court has here, and thereby legalize a pure subterfuge designed to permit the violation of Articles 286 1 and 2872 of Vernon’s Annotated Penal Code.
To hold that Section 4a3 of Article 286a is valid is to destroy the effectiveness of Article 286. The holding by this Court renders inoperative Article 286, and renders futile any attempt to prosecute violations of Article 286, supra. There can be nothing but chaos and confusion as long as Article 286a is a part of the statutory law. Apparently the Legislature needs to face the issue as well as the Courts. Does Texas really want a “Sunday Closing Law”? Is Texas ready to recognize the reasons as to why some merchants do not recognize Sunday as a holiday? Are we to continue Article 286, supra, and enforce it as it is written? Texas should make up its mind and determine the basic question: Are we going to have a Sunday Closing Law which can be enforced, if we hold Article 286a unconstitutional ?
It is argued that whether or not Texas should have a “Sunday Closing Law” is not before this Court and that, therefore, we are not concerned with the validity of Article 286, supra. I recognize that to enact a “Sunday Closing Law” is solely within the prerogative of the Legislature, but I contend that the argument the respondent has advanced to demonstrate the unconstitutionality of Article 286a is unanswerable.
*114The respondent in its answer, filed in this cause urged that Article 286a, supra, was unconstitutional and that the state’s suit for injunction should be abated and dismissed on the grounds that :
“(a) That said statute is illegal, un- . constitutional and void in that it purports to prohibit the conduct by Defendant of a lawful business, thereby depriving this Defendant of its property and privileges without due process of law, contrary to Article I, Section 19, Constitution of the State of Texas.
“(b) Said statute is illegal, unconstitutional and void in that it is unduly oppressive to the conduct of lawful business by this Defendant, thereby constituting a deprivation of this Defendant’s property, privileges and immunities without due process of law, contrary to Article 1, Section 19, Constitution of the State of Texas.
“(c) Said statute is illegal, unconstitutional and void in that it purports to declare as a public nuisance per se the conduct of a lawful business by this Defendant which is not a public nuisance per se, thereby depriving this Defendant of its property, privileges and immunities without due process of law, contrary to Article 1, Section 17, Constitution of the State of Texas.
“(d) Said statute is illegal, unconstitutional and void in that it purports under the guise of a police regulation to make an arbitrary discrimination against this Defendant in the pursuit of a lawful occupation and business, contrary to and in violation of Article 14, Section 1, Constitution of the United States, which provides that ‘no state shall deny to any person within its jurisdiction the equal protection of the law.’
“(e) That said statute is illegal, unconstitutional and void, in that it purports to abridge the privileges of this Defendant to conduct and operate a lawful business, in violation of and contrary to Article 14, Section 1 of the Constitution of the Ünited States, which provides that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’
“(f) Said statute is illegal, unconstitutional and void in that it purports to deprive this Defendant of its property without due process of law, contrary to Article 14, Section 1 of the Constitution of the United States, which provides that ‘nor shall any State deprive any person of life, liberty or property, without due process of law.’
“(g) That said Statute is illegal, unconstitutional and void in that it purports to take property belonging to this Defendant, without Defendant’s consent, and without adequate compensation being made, contrary to Article 1, Section 17 of the Constitution of the State of Texas.
“(h) That said statute is illegal, unconstitutional and void in that it purports to authorize the damaging of this Defendant’s property without adequate compensation being made, and against this Defendant’s consent, contrary to Article 1, Section 17 of the Constitution of the State of Texas.
“(i) That said statute is illegal, unconstitutional and void in that it purports to authorize the application of this Defendant’s property to public use without adequate compensation being made, and without the consent of Defendant, contrary to Article 1, Section 17 of the Constitution of the State of Texas.
“(j) That said statute is illegal, unconstitutional and void in that it purports to prohibit the sale of certain specified listed items of goods, wares and merchandise usually carried by discount department stores which sell goods, wares and merchandise to the *115general public at discount prices substantially below the prices charged for similar merchandise by retail businesses generally which operate in the City of Corpus Christi, Texas, and in the State of Texas, and in so attempting to discriminate against such discount type of operations, said statute is vio-lative of due process of law and contrary to Article 14 of the Constitution of the United States and Sections 17 and 19 of Article 1 of the Constitution of the State of Texas.”
It is my position that Article 286a, supra, is an irredeemable violation of the Constitutions of the United States and the State of Texas. Of course Article 286 has been left as a part of the law for many years, but the enactment of Article 286a has pointed up the unconstitutionality of the entire statutory scheme of Sunday closing in Texas. Although Article 286 has been held constitutional, in a sense the Legislature has from time to time recognized that it was necessary to enact legislation either repealing or modifying Article 286. The Legislature has chosen the latter course only to bring about hopeless confusion. This Court by its decision has not resolved the question.
It is my view that Article 286a is unconstitutional and should be so held by this Court. The Respondent argues that:
“The Texas Legislature avoided the taint of unconstitutionality in Article 286a, Penal Code, by providing for a subjective test on the part of the purchaser, to be evidenced by a written certificate. Except for this escape valve of a subjective determination by the purchaser, Article 286a, Texas Penal Code, would be as wholly inoperative and void as being violative of due process as are the Missouri and Kansas Sunday Closing Laws as a result of the definite pronouncements of the highest judicial tribunals of those States. The Texas Legislature avoided the trap, and provided for the purchaser’s subjective determination test of Section 4a of Article 286a, Penal Code. Accordingly, this Texas Penal Statute is constitutional and valid.”
I cannot agree. The entire Act, let alone Section 4a, is so indefinitely framed and of such doubtful construction that its tests of enforcement are, of necessity, subjective rather than objective, thereby violating the fundamental guarantees of due process of law granted in the Texas and United States Constitutions. For example, the meaning of “any person” in Section 1 does not apply to corporations by virtue of provisions of our Penal Code and an opinion of the Attorney General of Texas. That opinion, Number WW-14S0, held:
“Section 1 of Article 286a * * * applies to any person, and provides that a violation thereof is a misdemeanor offense. This section cannot apply to corporations * * *.” (Emphasis added). Furthermore, Article 286a does not create a penal offense which can be committed by an employee of a natural person nor does it create an offense which can apply to a corporation or its employees.
It should be noted that no definitions are given of the words “certify,” “emergency,” “welfare,” “health,” “safety,” “human life” or “animal life,” contained in Section 4a. This section uses the term “emergency” but provides no standard by which the existence of an emergency may be gauged. “Emergency can mean different things to different people depending upon the manner of its use, whether it is being used in tort law or is used in a contract.” See In Re: Tschoepe et al., 13 F.Supp. 371, District Court Southern District, Corpus Christi, 1936.
I call your attention to the last sentence of Section 4a, which reads: “Provided such certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year.” Thus, depending on which way the Court holds, Section 4a either places the merchant in the unenviable position of being subject to criminal prosecution if his concept of *116■emergency varies from that of local law ■enforcement officials, or the purchaser is subjected to the embarrassment of signing an untrue certificate. Neither result should obtain. This Court’s holding jeopardizes the freedom of the purchaser, but allows the merchant to go free, although his statement of policy4 in regard to Article 286a is clearly designed to mislead the purchaser into believing that he would be violating no law by signing the certificate. The entire statement of policy is calculated to lead the purchaser into a trap, and under this Court’s construction, the purchaser cannot be prosecuted nor can the merchant be reached by the enforcement officers. What is the average person, who desires to purchase a useful article on Sunday, going to do when he construes an advertisement to mean that he may purchase items covered by law if he signs a certificate of necessity that his purchase is needed as an emergency for his own welfare? Naturally, the purchaser, under such belief, will agree with the merchant that a law which requires the signing of a certificate is “unfair and contrary to the American way of life, =|s * * ”
It is true that the merchant in this case professed allegiance to the law until ‘‘you change it.” However, the record in this case shows that an average of approximately fifteen (IS), out of a total number of Sunday purchasers substantially in excess of 200, indicated hesitancy or doubt about signing the certificate. In view of the failure of the law to define welfare, emergency, etc., together with the statement of policy announced by the merchant, I am constrained to believe that those who signed were not intentionally signing untrue certificates, but were misled or trapped into aiding the merchant in making a sale. Granting that the merchant was acting within the law, it is unescapable that the law declared in 286a is shocking and should be stricken down. We have a situation where the law apparently attempts the imposition of an objective test on the merchant to make an objective determination as to whether any purchase is an emergency purchase, and where the law also provides that the test of the exemption shall be the subjective test of the purchaser’s determination of the existence of an emergency. However, it conclusively appears that the statute under consideration is so vague and indefinite that men of common intelligence must guess as to its meaning and differ as to its application. We have a difference of opinion as to the meaning and application of the Act. I would apply the rule announced in Ex parte Chernosky, Criminal Appeals, 1949, 217 S.W.2d 673:
“A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law. ^
Aside from the reasons advanced thus far as to why Article 286a is unconstitutional, I briefly add that Article 286a is unconstitutional because the caption of the Act is fundamentally defective for either or both of the following reasons:
(a) Although Article 286a presumes to be a penal statute, there is no mention of penalties in the caption.
*117(b) Although. Article 286a amends portions of Articles 286 and 287, Vernon’s Annotated Penal Code, there is no mention of its amendatory provisions in the caption.
In conclusion I adopt the summation contained in the brief of Amicus Curiae, Jay S. Fichtner, an attorney of Dallas, Texas:
“Vagueness, indefiniteness and ambiguity pervades the whole of Article 286a itself; Section 1 does not even begin to make clear as to whom the Act applies, though it seems on its face to apply only to natural persons who are employers; Section 4a refers to ‘emergency certificates’, yet no standards are given by which either “health”, ‘welfare’, ‘safety’ or ‘emergency’ are to be measured or judged. People must necessarily guess as to whether they are covered by the Act; further they are unconscionably forced to speculate as to whether the ‘emergency’ on any given ‘emergency certificate’ is enough of an ‘emergency’ to comply with the provisions of Section 4a. An ‘emergency’ to one may not be to another; and what is ‘healthy’, ‘safe’, or for the ‘welfare’ of one may not be for another. But Article 286a forces the seller in every case, (in the absence of omniscience) to guess at both the meaning of the terms of the ‘emergency certificate’ and their application to the immediate sale; and this on pain of fine and imprisonment if the guess of his peers at a later trial differs from his own. Such a statute does not begin to meet the requirements of due process of law under the Constitution of both the United States and the State of Texas.
“But the vagueness and ambiguity is not confined to Article 286a itself; it is inherent in the effect Article 286a has upon Articles 286 and 287. A person who does what is prohibited in Section 1 is subjected to criminal and civil sanctions under 286a; but if he accepts an ‘emergency certificate’, Article 286a does not apply to his conduct, with the unhappy result that if the transaction is on a Sunday he has violated Article 286. And since the amendatory effect of Article 286a upon Articles 286 and 287 is invalidated because not mentioned in the Caption, Articles 286 and 287 still apply to the sale at the same time Article 286a applies; this problem is not solved by any implied repeal, since the legislature in Section 5a of Article 286a expressly states its intent not to repeal Articles 286 and 287. Thus Article 286a not only fails to state what acts are permitted and what acts are interdicted, but also lures the unsuspecting merchant into the withering cross-fire of Articles 286 and 287. Such a capricious, equivocal and arbitrary statute must not be allowed to stand.”
For the reasons stated, I would strike down the statute, and dissolve the injunction granted by the trial court.
. “Any merchant, grocer, or dealer in wares or merchandise, or trader in any business whatsoever, or the proprietor of any place of public amusement, or the agent or employe of any such person, who shall sell, barter, or permit his place of business or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty nor more than fifty dollars. The term place of public amusement, shall be construed to mean circuses, theaters, variety theaters and such other amusements as are exhibited and for which an admission fee is charged; and shall also include dances at disorderly houses, low dives and places of like character, with or without fees for admission. Act. Dee. 2, 1871, Acts 1883, p. 66, Acts 1887, p. 108.”
. “The preceding Article shall not apply to markets or dealers in provisions as to sales of provisions made by them before nine o’clock A.M., nor to the sales of burial or shrouding material, newspapers, ice, ice cream, milk, nor to any sending of telegraph or telephone messages at any hour of the day or night, nor to keepers of drug stores, hotels, boarding houses, restaurants, livery stables, bath houses, or ice dealers, nor to telegraph or telephone offices, nor to sales of gasoline, or other motor fuel, nor to vehicle lubricants, nor to motion picture shows, or theatres operated in any incorporated city or town, after one o’clock P.M.”
.“When a purchaser will certify in writing that a purchase of an item of personal property is needed as an emergency for the welfare, health or safety of human or animal life and such purchase is an emergency purchase to protect the health, welfare or safety of human or animal life, then this Act shall not apply; provided such certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year.”
. “YOU MAY PURCHASE ITEMS COVERED BYLAW:
“If you sign a certificate of necessity that your purchase is needed, as an emergency for either the health, Welfare, or Safety of Human or Animal Life.
* % ‡ >•:
“WE ASK THAT YOU COOPERATE WITH US IN OUR COMPLIANCE WITH THE NEW SUNDAY BLUE LAW, WHICH IS ADMITTEDLY AND DELIBERATELY DESIGNED TO LESSEN YOUR OPPORTUNITY TO SAVE AT DISCOUNT STORES SUCH AS SHOPPERS WORLD, A LAW WHICH WE DISAPPROVE OE AS UNFAIR AND CONTRARY TO THE AMERICAN WAY OE LIFE, BUT NEVERTHELESS, A LAW WHICH WE MUST AND WILL OBEY UNTIL YOU CHANGE IT!”