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June 2, 1960

Dave FASS et al., Plaintiffs,
Frederick ROOS et al., Defendants

The opinion of the court was delivered by: MCLAUGHLIN

In this case, which attacks the constitutionality of the 1959 New Jersey Sunday Closing Act (N.J.S.A. 2A:171-5.8 to 5.18), on December 11, 1959, we denied an application for a preliminary injunction. At that time the New Jersey case calling for a construction of the Act, Two Guys From Harrison, Inc., et al. v. Furman, 1959, 59 N.J.Super. 313, 156 A.2d 57, was on appeal to the state's highest court and had not been argued. On March 28, 1960, while the Two Guys suit was pending and undecided, plaintiffs filed a petition in this cause. They alleged that there had been no decision in Two Guys, that meanwhile they had been forced to remain closed on Sundays and that it would be impossible for them to continue in business if that condition continued. They asked that the stay of these proceedings allowed by our order of December 11, 1959 be vacated and that a rehearing on the application for a preliminary injunction be had and that a preliminary injunction issue restraining defendants from interfering with the conduct of plaintiffs' business on Sundays. Prior to this rehearing, the opinion in Two Guys was filed. It upheld the constitutionality of the 1959 Act against the attacks before the court; it remanded for trial the allegation in the complaint that the statutory classification is arbitrary and denies equal protection of the law. In connection with the rehearing plaintiffs asserted certain points based on the state court opinion. These are covered infra.

The complaint alleges that the statute is unconstitutional as against the plaintiffs, (1) because it constitutes a law respecting religion; (2) because it prohibits the free exercise of religion; (3) because the specification of the goods forbidden for sale on Sunday and the exclusion of all other goods are irrational and arbitrary; (4) because the law provides for local option, i.e. it gives the various counties in the state the individual right to accept or reject it.

 Taking up the first two questions, the state Supreme Court has now said in its Two Guys opinion *fn1" that the New Jersey Sunday Closing Law 'cannot be identified in its operative provisions with any sectarian tenet.' It categorically holds that the statute cannot be stamped as religious because it 'in terms follows no sectarian line. The presumption of constitutionality does not yield so easily.' In the discussion concerning the 1951 New Jersey Sunday Closing Law, N.J.S.A. 2A:171-1 et seq., which it concludes is superseded by the 1959 Act, the opinion states: 'The question whether the legislative decision impinges upon the freedom of those who observe religiously the seventh day of the week may be another matter. See Crown Kosher Super Market of Mass., Inc. v. Gallagher, supra (176 F.Supp. 466). It is not before us, and we intimate no view.' In its brief the state makes no comment on the situation above disclosed. Nor has there been any move by either side for rehearing for the possible clarification of the court's position on these points. *fn2" Actually the two questions were squarely before the court in the Two Guys complaint, paragraph 17(b) which reads: 'Said statute is invalid in that it * * * is a law respecting the establishment of religion and denying the free exercise of religion and is violative of the provisions of the First and Fourteenth Amendments of the Constitution of the United States and are violative of Article 1, Paragraph 4 of the Constitution of the State of New Jersey.' There is no indication in the state opinion that this position was ever abandoned. Nor was any motion made to dismiss those particular charges. Plaintiffs say that Two Guys From Harrison, Inc. in the New Jersey litigation could not have urged the religious grounds as it is a corporation. This contention is contrary to the fact and the very decision upon which plaintiffs rely. Crown Kosher Super Market of Mass. v. Gallagher, D.C.Mass.1959, 176 F.Supp. 466, 472, makes it at least questionable. *fn3" Nevertheless, assuming plaintiffs' assertion to be correct i.e. that the state court has not as yet ruled on the contention that the 1959 law denies the practice of certain religions, the proposition that it does is, course, still insisted upon by plaintiffs under the Crown Kosher doctrine. And that precise question is currently before the United States Supreme Court. In the latest decision dealing with the subject, an Eastern District Pennsylvania three judge court dismissed the complaint. *fn4" An appeal has been taken by plaintiffs to the United States Supreme Court. The Supreme Court will undoubtedly accept it for full argument along with the three similar appeals to be heard by it. *fn5"

 The arbitrary classification as noted has not been disposed of by the New Jersey Supreme Court. The remaining contention, local option, warrants no discussion at this time. *fn6"

 With plaintiffs themselves affirmatively insisting that the religious questions before us and raised by the Two Guys complaint in the state cause have not been as yet passed upon by the state court; with those questions themselves now before the United States Supreme Court for consideration and determination; with the New Jersey Sunday Closing Law having been generally upheld by the Supreme Court of that state and the arbitrary classification charge not finally concluded, we are satisfied that plaintiffs have not sustained their heavy burden of establishing their right to a preliminary injunction against enforcement of the state criminal statute involved. A federal court cannot interfere where the proceedings are already pending in a state court nor enjoin future prosecutions under the statute in question unless the statute provides such enormous penalties as to preclude testing its validity in the state courts. Cline v. Frink Dairy Co., 1927, 274 U.S. 445, 451-453, 47 S. Ct. 681, 71 L. Ed. 1146; Fenner v. Boykin, 1926, 271 U.S. 240, 46 S. Ct. 492, 70 L. Ed. 927; Ex parte Young, 1908, 209 U.S. 123, 146-148, 28 S. Ct. 441, 52 L. Ed. 714. In none of the suits on appeal to the Supreme Court of the United States is there a preliminary injunction against the state other than in Crown Kosher where it necessarily appears because that court held the Massachusetts' Act, M.G.L.A. c. 136, ยง 1 et seq., unconstitutional. While plaintiffs may be sustaining some economic inconvenience and loss, under the facts and pertinent law they have not shown the irreparable injury required by this type of action in order for us to rightfully enjoin the state law involved. Cline v. Frink Dairy Co., supra; Fenner v. Boykin, supra, Ex parte Young, supra.

 With respect to the state criminal enforcement phase of this case, we are as always deeply appreciative of the true and unfailing courtesy of the Hudson County Court. However, again assuming that the New Jersey Supreme Court to date has not considered the mentioned religious phases of the constitutional issues in connection with that state's closing law, it is of course, important that it have the opportunity to do so at the earliest practicable moment. Since the petition for rehearing in Two Guys does not touch these and there is nothing else that we are aware of before the state court bearing on them, we sincerely hope for a prompt ruling in the criminal appeal by the Hudson County Court. Appeal from such a judgment would be then available to the state Supreme Court for its early consideration and determination. As we have stated, under the facts and law we have no right to interfere at this time in the criminal action pending against the plaintiffs. Fenner v. Boykin, supra, 271 U.S. at pages 243-244, 46 S. Ct. at page 493. And generally we adhere to what is sound federal practice in awaiting the construction by the New Jersey courts of any remaining constitutional questions arising out of that state's Sunday Closing Law. Harrison v. N.A.A.C.P., 1959, 360 U.S. 167, 79 S. Ct. 1025, 3 L. Ed. 2d 1152; County of Allegheny v. Frank Mashuda Co., 1959, 360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 1163; Martin v. Creasy, 1959, 360 U.S. 219, 79 S. Ct. 1034, 3 L. Ed. 2d 1186. *fn7" The state courts have proceeded with all reasonable expedition in dealing with the complexities of the 1959 law and will, we know, continue so to do.

 Plaintiffs' application for vacation of the stay and for a preliminary injunction against the enforcement of the Sunday Closing Act as to them will be denied. Further proceedings in the case will be stayed as stated in the prior order of this court until after the New Jersey Supreme Court has reached a final determination in the above referred to suit of Two Guys From Harrison, Inc., et al. v. Furman. In addition further proceedings in this case will be stayed until the pending criminal proceedings under the Sunday Closing Act in the Hudson County Court against plaintiffs have been finally concluded and until final determination by the United States Supreme Court of the Sunday Closing appeals now before it or until further order of this Court.

 In the light of the situation above outlined, defendants' motion to dismiss the complaint will be denied.

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