ZAYRE CORP. vs. ATTORNEY GENERAL.
Supreme Judicial Court of Massachusetts
Suffolk. February 11, 1977. — April 21, 1977.
372 Mass. 423
Prеsent: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, LIACOS, & ABRAMS, JJ.
1967); Fletcher v. United States, 332 F.2d 724, 726-727 (D.C. Cir. 1964). 4. We find no basis for mitigation of the sentence or other relief under G. L. c. 278, § 33E. Judgments affirmed.
Legislative and judicial history of
When a statute regulating economic activity is challenged on the basis that the classifications on which the regulatory scheme is based deny those subject to them the equal protection of the laws, the challenger must bear the heavy burden of overcoming the presumption of constitutionality which attaches to that statute. [432-434]
The exemptions in
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on December 8, 1976.
The case was reserved and reported by Wilkins, J.
Edward J. Barshak for the plaintiff.
Robert V. Greco, Assistant Attorney General (Thomas A. Waldron with him) for the defendant.
Alfred J. Mainini, for Christian Civil Liberties Union, amicus curiae, submitted a brief.
William N. Wheeler & Charles J. Wilkins, for Church League for Civic Welfare & others, amici curiae, submitted a brief.
Daniel A. Taylor, Chief Legal Counsel, & Marcia Casey March, Assistant Legal Counsel, for the Governor & another, amici curiae, submitted a brief.
Joseph A. Sullivan, James P. Loughlin, Robert M. Segal & Richard W. Coleman, for Massachusetts State Labor Council, AFL-CIO, amicus curiae, submitted a brief.
Alan S. Kuller, of New York, & Daniel F. Cashman, for Caldor, Inc., amicus curiae, submitted a brief.
LIACOS, J. Laws which regulate trade and commerce on Sundays have been in existence in this Commonwealth and elsewhere since colonial times. These laws popularly have been known as “Sunday closing laws,” “Blue Laws” or “common day of rest laws.” They once were challenged unsuccessfully as being unconstitutional in that they reflected an impermissible establishment of religion.2 Various courts, including the United States Supreme Court, have held that such laws are a valid exercise of State police power. See McGowan v. Maryland, 366 U.S. 420 (1961). After a relative period of quiescence, new attacks on such laws have been mounted recently. These recent challenges, while recognizing generally that such laws may reflect a valid exercise of State police power, proceed on the theory that the exemptions to the prohibition contained in such laws are so random, arbitrary and unrelated to legitimate
Such challenges have met with varying degrees of success.4 The recent decision of the New York Court of Appeals in People v. Abrahams, 40 N.Y.2d 277 (1976), declaring invalid that State‘s Sunday closing law on the grounds that the entire scheme of statutory exemptions was so random and arbitrary as to be in derogation of express constitutional guaranties, has given new hope to those who question the validity of such laws. Soon after that New York decision, a lower court in Connecticut, Connecticut v. Graber, No. Cr 15-45906 (Conn. C.P. New Britain 1976); as had one in Vermont, Vermont v. Ludlow Supermarket, Inc., No. 1085-75 (Dist. Ct. Windham Cir. 1975), proceeded to find constitutional infirmity in their State‘s statutory scheme.
In apparent reliance on this seeming avalanche of judicial precedent the plaintiff, which heretofore apparently had observed the general prohibition of
The matter first came on for hearing before a single justice on December 10, 1976. None of the requested relief was granted by him. Nevertheless, the plaintiff and many retailers similarly affected by the statute, opened for business on the two subsequent Sundays, December 12
The statement of agreed facts shows that the plaintiff is a Delaware corporation which operates thirty-four retail discount department stores in Massachusetts, with usual places of business in Natick and Framingham. The plaintiff also sells a wide variety of merchandise some of which is clearly within the exemptions of
The members of the plaintiff class include, but are not limited to, various department stores, discount, hardware and home supply stores and the like. The members of the class are typically located in shopping centers, downtown and suburban business areas and “free-standing areas ad-
The gravamen of the plaintiff‘s argument is not only that the entire scheme of exemptions is arbitrary and not rationally related to a legitimate State purpose, but also that certain types of stores, in particular health and sanitary supply stores (sometimes called health and beauty aid stores), as well as certain gift stores, are able to operate freely on Sunday, either due to the exemptions in the statute or the pattern of local law enforcement. As such the claim is that the statute operates in an arbitrary or irrational manner. As evidence of this, the plaintiff points to the statement of agreed facts which shows that in so far as the health and beauty aid stores are concerned, they tend to be located in areas coextensive with those оf the members of the plaintiff class and typically employ two to four employees on Sunday. Some, but not all, of these stores rope off or cover areas containing nonexempt merchandise.
So far as the so called gift stores are concerned, the parties agreed that the merchandise in those stores was different to some extent than merchandise sold by the plaintiff, but were unable to agree that the goods sold in these stores were within the exemption of
The plaintiff also apparently conceded in the statement of agreed facts that the provisions of
Having set forth the facts necessary to our decision, we go on to consider whether
1. Legislative and judicial history. It is not necessary
The seminal event concerning our view in this case occurred in 1961, when the United States Supreme Court reversed the decision of a three-judge Federal District Court and upheld the prior version of the Massachusetts Sunday law in Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961), rev‘g 176 F. Supp. 466 (D. Mass. 1959). In that case, the statute at issue was challenged on grounds that it constituted an establishment of religion or inhibited the free exercise thereof and further that the exemptions to the law were so numerous and arbitrary as to have no rational basis. 366 U.S. at 622 &
Less than one month after the decision in Gallagher, this court, in reliance on that decision and prior decisions of this court, Commonwealth v. Chernock, 336 Mass. 384 (1957); Commonwealth v. Has, 122 Mass. 40 (1877), held
Nonetheless, the earlier action of the lower Federal court (as it had in 1960, see 1960 Senate Doc. No. 525, see also the earlier study in 1954 House Doc. No. 2413) provided another reason for restudying Sunday closing laws. This resulted in the formation of the 1962 committee whose task it was to review the statute in order “to remove the inequities and inconsistencies of the present law while preserving its form and substance insofar as practical and reasonable as a uniform day of rest law.” 1962 Senate Doc. No. 404 at 3. The end result of the committee‘s proposal was the enactment of St. 1962, c. 616, § 2, now
The measure proposed by the committee‘s majority contained over twenty-five exemptions. The bill which was
The law enacted in 1962 did not differ markedly from the law upheld in both Gallagher and Chamberlain. See text in Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra at 636-639 (app. to opinion of Warren, C.J.). Indeed, one of the exemptions which the plaintiff finds particularly egregious,
Of the forty-nine exemptions now in the statute, thir-
2. General principles. The principles of law governing this case are both familiar and oft stated, see, e.g., New Orleans v. Dukes, 427 U.S. 297 (1976); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955); Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); First Nat‘l Bank v. Attorney Gen., 371 Mass. 773, 793-794 (1977); Pinnick v. Cleary, 360 Mass. 1 (1971); Commonwealth v. Chamberlain, supra. When a statute regulating economic activity is challenged on the basis that the classifications on which the regulatory scheme is based deny those subject to them the equal protection of the law the challenger must bear the heavy burden of overcoming the presumption of constitutionality which attaches to that statute. Commonwealth v. Henry‘s Drywall Co., 366 Mass. 539 (1974). Unless a classification is a “manifest excess of legislative power,” Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 412-413 (1972), unjustified by any conceivable set of facts or findings, Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686 (1971), or unless the
The reasons for this devolve not from an abdication of the judicial role, but a recognition of its proper place in our system of government. Cf. Lochner v. New York, 198 U.S. 45 (1905). See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). This principle of judicial restraint includes recognition of the inability and undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature. Ferguson v. Skrupa, 372 U.S. 726 (1963). Thus, along with the deference to the classification per se, a court will not invalidate a classification merely because the Legislature has not chosen to address an entire problem in defining a classification, Railway Express Agency, Inc. v. New York, supra; Williamson v. Lee Optical of Okla., Inc., supra, or because the classifications, be they slightly over or under inclusive, could have been drawn to more precise standards, New Orleans v. Dukes, supra. Compare Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695 (1962). Every economic classification is in some manner arbitrary but the drawing of the line between classifications is a task
3. The application of the principles to
The lеgislative dilemma in deciding the provisions of a common day of rest law is evident. On the one hand, there is the general policy for such a day such as that established in
We are aware of course that in an analogous situation the distinguished Court of Appeals of New York reached a contrary conclusion in People v. Abrahams, supra. However, the nature of the particular statute involved, its legislative history and the context within which the case arose lessen the degree to which it may be considered persuasive.
Abrahams arose less than a year after the same court in People v. Acme Mkts., 37 N.Y.2d 326 (1975), reversed a conviction under the New York “Sunday” law due to a pattern of discriminatory enfоrcement. Thus, Abrahams was decided in that context as well as a finding of prosecutorial indifference to enforcement of the law. See Simonetti v. Birmingham, 55 Ala. App. 163 (Crim. App.), cert. denied, 294 Ala. 192 (1975). The court also found that the law was flouted regularly by the public.
On the other hand, the record in this case is to the contrary. The statement of agreed facts indicates that the law has been generally respected, and that there has been a general but not uniform pattern of enforcement by the prosecuting authorities. In addition the Abrahams case suggests that the exemptions under the New York law were so numerous that Sunday was a day of rest in name only. Here, on the other hand, to the extent the plaintiff has offered any proof, we cannot conclude that the law does not accomplish its purpose. Thus, it is clear that, here, unlike the statute in New York, the law accomplishes its goal to a substantial degree.
In addition, the New York law invalidated in Abrahams evolved from a format conceived in 1881. In this Common-
The underlying legal standard set forth by the New York court was that the exemptions were “utterly lacking in cohesive scheme,” People v. Abrahams, supra at 285. Whether this imports a different legal standard of review is a matter open to debate. We note that elsewhere the Court of Appeals refers to the familiar standard of judicial review which we utilize here.26 Since each State court must examine a challenged statute in light of its own constitutional requirements (as well, perhaps under the Federal constitutional requirements) on the particular record placed before it, we consider Abrahams to be illuminating but not controlling. It seems clear to us that the substantial differences in history, experience and statutory structure, as well as the record before a court, make each
The process of balancing the various social and economic factors which influence the provisions of a common day of rest law calls for local legislative judgments as to the desirability, necessity or lack thereof of certain activities. The Constitution requires only that in making these legislative judgments and in conducting any subsequent amendatory process the Legislature have a rational basis for making a judgment. Gallagher, McGowan, and Two Guys explicitly support this view as the appropriate standard.
Thus, it is our task to consider whether the plaintiff has demonstrated a lack of any conceivable basis to the challenged exemptions, particularly (27) and (29).27 We conclude that it has not met this burden.
The principles set forth above suggest the ultimate resolution of this case in light of the plaintiff‘s two major lines of attack on the facial validity of the statute. The first such attack, that the purpose of the general prohibition in
The obvious State purpose is to providе a uniform day of rest and relaxation. If the exemptions were so numerous in operation as to defeat substantially that goal or if they were either inherently incapable of adequate enforcement or were in fact not being so enforced, see People v. Acme Mkts., supra; Simonetti v. Birmingham, supra, we could assume, without deciding, that there might be substantial merit to the plaintiff‘s argument. If this was the case however, the plaintiff has not proved it. Cf. First Nat‘l Bank v. Attorney Gen., supra. Instead, all it has succeeded
It is true that the entire scheme of objections cannot be called “cohesive.” Our response to that is that logical symmetry is not rеquired under either the State or United States Constitutions, Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra, Commonwealth v. Chamberlain, supra. So long as the particular exemptions have a rational basis consistent with the statutory purposes they will pass constitutional muster.
On this level, the record in the case does not allow us to say that any particular exemptions are entirely without conceivable justification. Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686, 695 (1971).
Two factors must be pointed out in this regard. First, in so far as only thirteen of the forty-nine exemptions apply to retail sales, we question whether the plaintiff has standing to raise the alleged irrationality of the remainder, once it is found that the existence of these others does not destroy the statutory purpose. Supreme Council of the Royal Arcanum v. State Tax Comm‘n, 358 Mass. 111 (1970).28
The second factor is that apart from exemptions (27) and (29), on which evidence was produced, the plaintiff has not introduced any evidence as to the operation of the others. Thus, even if it had standing to raise the invalidity of those exemptions beyond the purpose for which we have recognized it, the deficiencies in the record would preclude our finding that the presumption of constitutionality had been overcome. McGowan v. Maryland, supra. See Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 419 (1972) (Hennessey, J., dissenting); Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra. See also note 28, supra.
As to the exemptions relative to retail sаles other than those involved in (27) and (29), we see no reason to depart from the reasoning of Gallagher where it was said, “Many of the exceptions in the Massachusetts Sunday Laws are reasonably explainable on their face. Such items as tobaccos, confectioneries, fruits and frozen desserts could have been found by the legislature to be useful in adding to Sunday‘s enjoyment; such items as newspapers, milk and bread could have been found by the legislature to be required to be sold fresh daily. It is conceivable that the legislature believed that the sale of fish and perishable foodstuffs at wholesale would not detract from the atmosphere of the day, while the retail sale of these items would inject the distinctly commercial element that exists during the other six days of the week.” 366 U.S. at 622-623.
Many of the exemptions relating to retail sales in
The record is more adequate, however, concerning exemptions (27) and (29). As previously noted, exemption (27)29 is identical to the clause before the court in Gallagher with the addition of the proviso for personal health and sanitary supplies. In so far as this latter addition is concerned the Legislature may have reasoned that people needed access to such supplies аnd that stores primarily engaged in selling such supplies would not present a great threat to the public order of the day. Two Guys from Harrison-Allentown, Inc. v. McGinley, supra. The record does nothing to rebut this.
The statement of agreed facts lists items carried by both the plaintiff and stores engaged in the type of trade or commerce in exemption (27). It is clear that many of
However, the Legislature may have decided that only certain stores would find it economically viable to remain open with the other restrictions and that within this class the difficulties of enforcement, in so far as the selling of prohibited merchandise is concerned, did not outweigh the public benefit. While the record indicates that stores have not been uniform in their practices, and neither have law enforcement officials, a mere lack of uniformity is not sufficient proof to demonstrate the impossibility of enforcement. Cf. Simonetti v. Birmingham, supra.
In addition, the record supports rather than negates any judgment the Legislature may have made as to the effect of this provision in two ways. The record states that the greater value of items in terms of quantity and sales volume сarried by members of the plaintiff class are non-exempt items from which an inference can be drawn that it is economically unviable for such stores to open on Sunday for purposes of selling only the exempted merchandise. The plaintiff has not demonstrated that the stores primarily engaged in selling drugs and health and beauty items are at a similar disadvantage. This factor suggests that the Legislature was aware of the impact of the exemption and so intended it. Cf. Two Guys from Harrison-Allentown, Inc. v. McGinley, supra at 591. The record shows that stores open under exemption (27) generally employ two to four employees whereas members of the plaintiff class may employ 80 to 100 on any given day. While it is true that other members of the plaintiff class may also employ no more than two or three employees, the existence of “some inequality” as a result of the classification is insufficient to strike down the entire statutory scheme. Cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 51 (1973). Substantial distinctions between classes may be made with less than mathematical exactitude as long as there is some basis for the classification in the first place. New Orleans v. Dukes, 427 U.S.
Similar insufficiency in the record precludes any successful attempt to chаllenge exemption (29)30 as irrational. The statement of agreed facts concedes that many of the items sold by stores which the plaintiff claims have been exempt under exemption (29) are readily distinguishable from items sold by the plaintiff class members. However, the parties differ as to whether such items fall within the exempt class of merchandise. There is nothing in the record suggesting (other than a reference to forty specific stores) how many of these stores are in fact open on Sunday or how many employees are typically employed in any one of these stores. Thus, even if we were judicially to notice that the outlets referred to by the plaintiff were larger than “the quaint Cape Cod tourist shop or the cozy Berkshire County antique store” (which it is argued forms the original basis for the exemption), we cannot say on the facts before us that the two classes are so similar in terms of their impact on the Sunday closing scheme that the distinction between them and the members of the plaintiff class is arbitrary, irrational or invidious. See Vigeant v. Postal Tel. Cable Co., 260 Mass. 335 (1927); Hall-Omar Baking Co. v. Commissioner of Labor & Indus., supra.
The plaintiff‘s attack must fail for another reason. Much of the argument in its brief is directed at the imрossibility of defining the class of exempt merchandise under exemption (29). However, that argument misapprehends the nature of the classification set forth. The exemption in question is not a blanket exemption for “gifts, souvenirs, antiques, hand crafted goods and art goods,” but for the outlets that sell them, restricting its applicability to stores, “primarily engaged in the sale of such merchandise, or on
Finally, it is indeed possible that the Legislature could have determined that, although many retailers sell itеms which might fall within the class set forth in exemption (29), to permit only those who are primarily engaged in such trades to open on Sunday would serve both the purpose of having them available to the consuming public on Sunday and at the same time limit the nature and amount of commercial activity attendant on their sale. Cf. Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra. See also Two Guys from Harrison-Allentown, Inc. v. McGinley, supra. Thus, we cannot conclude on this record that the operation of exemption (29) effectuates an irrational, arbitrary or invidious discrimination against the plaintiff class.
4. Conclusion. Our purpose in this opinion is not to commend or condemn the legislative policies which have resulted in the evolution of
A judgment shall be entered accordingly.
So ordered.
BRAUCHER, J. (dissenting, with whom Kaplan, J., joins). I agree with much of what the court says, but not with its conclusion. In particular, I agree that the statement of agreed facts does not establish that
1. Federal law. Sunday laws undoubtedly had a “strongly religious origin,” but as presently written and administered most are “of a secular rather than of a religious character” and hence do not violate constitutional provisions relating to the establishment of religion. McGowan v. Maryland, 366 U.S. 420, 433, 444 (1961). Commonwealth v. Has, 122 Mass. 40, 42 (1877). The Massachusetts statutes were upheld against attack under the First and Fourteenth Amendments in Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961). Cf. Commonwealth v. Chamberlain, 343 Mass. 49 (1961) (Fourteenth Amendment). The litigation led to a comprehensive study and revision of what is now the “Common Day of Rest Law.” 1962 Senate Doc. No. 404.
2. The State Constitution. On issues with respect to “Part II, c. 1, § 1, art. 4, of our State Constitution, as limited by arts. 1, 7, 10 and 12 of its Declaration of Rights . . . of course, we are not bound by Federal decisions, which in some respects are less restrictive than our Declaration of Rights.” Corning Glass Works v. Ann & Hope, Inc., 363 Mass. 409, 416 (1973), and cases cited. Under the State Constitution, we may properly examine with care a statute “utterly lacking in cohesive scheme,” even though individual clauses of the statute could with ingenuity be found to have a variety of possible rational bases. People v. Abrahams, 40 N.Y.2d 277, 284-285 (1976). See Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 708-709 (1962), where we found it unnecessary to reach a similar question. Here a cohesive scheme can be found in the statute, but distinctions drawn along lines irrelevant to the purposes which the statute seeks to accomplish may be arbitrary and invalid. Id. at 707.
Even if the statute is not utterly lacking in cohesive scheme, our Constitution requires that “statutes in regard to the transaction of business must operate equally upon all citizens who desire to engage in the business, and that there shall be no arbitrary discrimination between different classes of citizens.” Commonwealth v. Hana, 195 Mass. 262, 266 (1907) (hawkers’ and pedlers’ law), quoted in Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 701 (1962).
3. ”Hodge-podge.” The plaintiff class consists of retailers who wish to open for business on Sundays. As to such retailers, most of
4. ”Super drugstores.” Section 6 (27), inserted in 1962, added to the traditional exemption for drugs and medicines a further exemption for “the retail sale of personal health and sanitary supplies.” The plaintiff complains of the vagueness and ambiguity of “personal . . . sanitary supplies,” and argues that the door is opened to Sunday sales by “super drugstores” of items not within the exemption. But it is not irrational to associate sanitation with health. Moreover, so far as the statute is concerned, the members of the plаintiff class are as free as any drugstore to sell the exempted items on Sunday and to test the limits of the exemption. If they find such sales uneconomic because of the way they choose to conduct their businesses, that fact does not establish arbitrary discrimination by the Legislature. Nor do they make out a case of arbitrary or discriminatory enforcement; it is agreed that some “super drugstores” are now defendants in criminal cases for violation of the Sunday law. I therefore agree with the court that
5. ”Gift and craft stores.” Section 6 (29), inserted in 1962, exempts: “The sale, at retail, of gifts, souvenirs, antiques, hand crafted goods and art goods, in an establishment primarily engaged in the sale of such merchandise, or on the premises of a licensed common victualler.” The stores which take advantage of this exemption include chains of stores located in shopping centers and business areas; these “gift and craft stores” sell many of the same categories and items of such merchandise as the members of the plaintiff class, but the latter are not “primarily
Since almost any article might be a “gift,” there is an inherent uncertainty in the scope of the exemption. The statute is a criminal statute, and the court cannot extend it to offenses not created by its language. Commonwealth v. Alexander, 185 Mass. 551, 553 (1904). A deed is not to be declared a crime upon ambiguous words or by a strained construction. Ralph‘s Mkt., Inc. v. Beverly, 353 Mass. 588, 590 (1968).
One may speculate that the Legislature intended to exempt what the plaintiff calls “the quaint Cape Cod tourist shop or the cozy Berkshire County antique store,” together with the gift shop in the roadside restaurant or motel. Such an exemption might be thought to contribute to the recreational atmosphere of the day. But the exemption is not drawn in such terms; it does not refer to size, location or setting. In a shopping center or business area, an attempt to distinguish generally between recreational shopping and serious shopping lacks plausibility. The exemption must be evaluated in terms of its present discriminatory effect. Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 703-704 (1962). Vigeant v. Postal Tel. Cable Co., 260 Mass. 335, 342 (1927). So evaluated, it fails the test. As it affects the plaintiffs, it relates neither to health nor to recreational atmosphere.
This conclusion is not contrary to our decisions in Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401 (1972), and Jewel Cos. v. Burlington, 365 Mass. 274 (1974). In the Mobil Oil case we upheld a prohibition of the use of games of chance in connection with sales by a dealer or seller of motor vehicle fuel, even though it did not apply to competing sellers of other goods. There was no direct prohibition of sales by gasoline stations, and no showing of a loss
The exemption has been in existence for some fifteen years, and one may doubt that the growth of large chains of “gift and craft stores” fully explains the present challenge. The record suggests that two additional factors contributed. First, the Sunday laws in the States on our borders have recently become inoperative, and many members of the plaintiff class are located near a State border and are in competition with stores in other States. Second, the problem came to a head in the Christmas shopping season, during which many retailers make a substantial portion of their total annual sales. While these factors may explain the importance of their grievance to the members of the plaintiff class, I do not think they add to or detract from their constitutional argument.
I would order the entry of a judgment declaring that
APPENDIX
General Laws c. 136, §§ 1, 5, as appearing in St. 1962, c. 616, § 2, and § 6 (amended through St. 1975, c. 697), reads:
Section 1: “Sunday shall be a common day of rest. Sections one to eleven, inclusive, of this chapter may be cited as the Common Day of Rest Law.”
Section 6: “Section five shall not prohibit the following:
“(1) Any manner of labor, business or work not performed for material compensation; provided, no public nuisance is created thereby.
“(2) The opening of a store or shop and the sale at retail of foodstuffs therein; provided, not more than a total of three persons, including the proprietor, are employed therein at any one time on Sunday and throughout the week.
“(3) The use or repair of any way or bridge, or the payment and collection of any toll incidental thereto.
“(4) The conduct of any publiс service the continuing operation of which is necessary for the maintenance of life, such as, but not limited to, the operation of municipal water and sewage disposal systems, the operation of hospitals and clinics, or the necessary services of physicians, surgeons, dentists and the like.
“(5) The making of emergency repairs for the purposes of immediate and necessary protection of persons, or property including realty, or the towing of any motor vehicle or boat for such purpose.
“(6) The manufacture, sale or distribution of steam, electricity, fuel, gas, oxygen, hydrogen, nitrogen, acetylene, carbon dioxide and the calcining of lime, manufacturing processes which for technical reasons require continuous operation, and the processing of checks, items, documents or data by a bank or trust company.
“(7) The operation of radio and television stations; the operation of telephone and telegraph systems; or the preparation, printing, publication, sale and delivery of newspapers, or the taking of pictures.
“(8) The opening and operation of any secular place of business not otherwise prohibited by law if the natural person in control of the business conscientiously believes that the seventh day of the week, or the period which begins at sundown on Friday night and ends at sundown on Saturday night, should be observed as the Sabbath, and causes all places of business in the commonwealth over which he has control to remain closed for secular business during the entire period of twenty-four consecutive hours which he believes should be observed as the Sabbath, and actually refrains from engaging in secular business and from laboring during that period.
“(9) The showing for sale or for rental of non-commercial real property to be used for residential purposes.
“(10) The opening of art galleries or the display and sale therein of paintings, objects of art, catalogues and pictures.
“(11) The operation of libraries.
“(12) The operation of public bathhouses.
“(13) The operation of boats for purposes of non-commercial fishing and recreation, or the sale of bait for fishing.
“(14) The catching or gathering of seafood and fresh water fish not otherwise prohibited by law.
“(15) The letting of horses, vehicles, boats or aircraft for pleasure.
“(17) The retail sale of fuel, gasoline and lubricating oil.
“(18) The retail sale of tires, batteries and automotive parts for emergency use.
“(19) The operation of a pleasure vehicle or the piloting of an aircraft.
“(20) The sale at retail of growing plants, trees or bushes, and articles incidental to the cultivation of such plants, trees or bushes; and the retail sale and delivery of cut flowers.
“(21) The cultivation of land, and the raising and harvesting of agricultural products and fruit, and the making of butter and cheese.
“(22) The sale, for consumption off the premises, of food prepared by a common victualler licensed under other provisions of law to serve on Sunday.
“(23) The selling or delivering of kosher meat or fish by any natural person who observes Saturday as the Sabbath by closing his place of business from sundown Friday to sundown Saturday.
“(24) The making and baking of bakery products and the sale thereof in a shop or store.
“(25) The retail sale of tobacco products, soft drinks, confectioneries, baby foods, fresh fruit and fresh vegetables, dairy products and eggs, and the retail sale of poultry by the person who raises the same.
“(26) The sale and delivery of ice.
“(27) The retail sale of drugs and medicines and the retail sale or rental of mechanical appliances prescribed by physicians or surgeons, and the retail sale of personal health and sanitary supplies.
“(28) The retail sale of greeting cards and photographic films.
“(29) The sale, at retail, of gifts, souvenirs, antiques, hand crafted goods and art goods, in an establishment primarily engaged in the sale of such merchandise, or on the premises of a licensed common victualler.
“(30) The opening of a store or shop primarily engaged in the retail sale of pets, and the sale therein of pets and articles necessary for the keeping, care and feeding of pets.
“(31) The transport of goods in commerce, or for a consideration, by motor truck or trailer, between the hours of midnight Saturday and eight o‘clock in the morning Sunday and between the hours of eight o‘clock in the evening and midnight Sunday.
“(32) The transport of goods by rail, water or air; or the loading or unloading of the same.
“(33) The transport of persons by licensed carriers and all matters incidental thereto, including the operation of all facilities incidental thereto.
“(34) The transport or processing of fresh meat, fresh poultry, fresh fish, fresh seafoods, fresh dairy products, fresh bakery products, fresh fruits or fresh vegetables, ice, bees, or Irish moss, when circumstances require that such work be done on Sunday; or all return trips necessitated thereby.
“(35) The transport of livestock, farm commodities and farming equipment for participation in and return from fairs, expositions or sporting events.
“(36) The operation of a lodging place, including the letting of
“(37) The carrying on of the business of bootblack before eleven o‘clock in the morning, provided that such business may be carried on at any time at public airports.
“(38) The employment for a consideration of musicians in parades by any post or camp of an incorporated organization of veterans of any war in which the United States of America was engaged, or by any incorporated civic, religious or fraternal organization, or by any company or association of policemen or firemen.
“(39) The necessary preparation for, and the conduct of, events licensed under section four, or activities as to which, under the provisions of paragraph (7) of section four, sections two, three and four do not apply.
“(40) Any labor, business or work necessary to the performance of or incidental to any religious exercises, including funerals and burials, the execution of wills or codicils, the preparation of contracts, the execution of federal, state or municipal tax returns or reports, the preparations for trials by lawyers or any other activity not prohibited nor required to be licensed on Sunday.
“(41) Work lawfully done by persons working under permits granted under section seven.
“(42) The conduct of the business of an innholder or common victualler.
“(43) The conduct of any business licensed under chapter one hundred and thirty-eight which may be conducted on Sunday in accordance with the provisions of said chapter.
“(44) The operation of a car-washing business between eight o‘clock in the forenoon and one о‘clock in the afternoon, provided that such business may be carried on at any time if not more than a total of two persons are employed therein at any one time on Sunday and throughout the week.
“(45) The operation of a coin-operated self-service laundry.
“(46) The operation of a coin-operated car-washing business.
“(47) The sale of tickets or shares for the state lottery.
“(48) The operation of a self-service auto repair center.
“(49) The transport of amusement devices, such as carousels, ferris wheels, inclined railways and other similar devices, concessions stands and tents from one location to the next between eight o‘clock in the forenoon and one o‘clock in the afternoon.”
Notes
The plaintiff has attempted to strengthen its position by arguing that the irrationality of the classification is illustrated by the pattern of discriminatory enforcement which exists. However, the record shows only that the laws have been generally but not universally enforced. This is not sufficient proof to sustain an allegation of discriminatory enforcement as measured by cases such as Simonetti v. Birmingham, 55 Ala. App. 163 (Crim. App.), cert. denied, 294 Ala. 192 (1975), and People v. Acme Mkts., 37 N.Y.2d 326 (1975). Cf. Oyler v. Boles, 368 U.S. 448 (1962). Moreover, the record shows that the chief law enforcement officer of the Commonwealth, the Attorney General, directed continuing enforcement of the law even after the hearing before the single justice. Any discrimination which may be shown does not derive from the actions of State officials nor has it been shown to be other than as a result of different municiрal policies. This latter factor does not implicate the equal protection clause. McGowan v. Maryland, 366 U.S. 420 (1961). Thus on this record the plaintiff‘s argument receives no additional support from the allegations.
It should also be noted here that the record before the single justice at least indicated that the law here was not observed or generally was ineffective, thus bringing this case closer to the facts of People v. Abrahams, 40 N.Y.2d 277 (1976). However, the facts now before the full court indicate differently.
Moreover, the plaintiff points out that we may see an X-rated movie on Sunday and buy a newspaper, but may not purchase a magazine or Bible. While this is true, it should be noted that a person may also