their liberty and property without due process of law by working an unjust discrimination against plaintiffs in favor of other types of retail outlets
'by reason of the nature of the business of discount department store operation wherein plaintiffs and plaintiffs' concessionaires conducted their business for the benefit of week end consumers * * *'.
The defendants moved to dismiss on the grounds that (1) reasons of policy and comity require that this court should decline to adjudicate the controversy and (2) that previous judicial decisions authoritatively establish that the Act does not violate freedom of religion and does not constitute a deprivation of due process of law or of the equal protection of the laws.
The parties have appeared and argued their applications to a court of three judges pursuant to Title 28 U.S.C.A. §§ 2281 and 2284.
It is now well established doctrine that federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. Harrison v. N.A.A.C.P., 1959, 360 U.S. 167, 176, 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. 2d 1163; Martin v. Creasy, 1959, 360 U.S. 219, 79 S. Ct. 1034, 3 L. Ed. 2d 1186. Moreover federal courts cannot enjoin future criminal prosecution unless 'the circumstances are exceptional and the danger of irreparable loss is both great and immediate.' Cline v. Frink Dairy Co., 1927, 274 U.S. 445, 451-453, 47 S. Ct. 681, 683, 71 L. Ed. 1146; Fenner v. Boykin, 1926, 271 U.S. 250, 46 S. Ct. 492, 70 L. Ed. 927; Beal v. Missouri Pacific R. Co., 1940, 312 U.S. 45, 61 S. Ct. 418, 85 L. Ed. 577; Watson v. Buck, 1940, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed. 1416 and Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324.
In Fass v. Roos, D.C.D.N.J.1960, 184 F.Supp. 353 a three judge court of this district had before it the same statute and almost the identical issues involved here.
It stayed any adjudication of the constitutionality of the statute and declined to issue a preliminary injunction pending the final determination of issues in the New Jersey Courts and the United States Supreme Court, saying:
'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 (Two Guys from Harrison v. Furman, 1960, 32 N.J. 199, 160 A.2d 265); 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 the 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.' 184 F.Supp. at page 355.
The New Jersey Courts still have before them the following 'unfinished business':
(1) The issue of fact as to whether the classification of banned products was arbitrary, remanded for trial to the Law Division of the Superior Court of New Jersey in Two Guys from Harrison
v. Furman, 1960, 32 N.J. 199, 160 A.2d 265, awaits pretrial proceedings in that court.
(2) On January 16, 1961, the Supreme Court of New Jersey granted a motion for certification in State v. Fass, the chief issue in which is whether the Act prohibits the free exercise of religion.
(3) In State v. Monteleone, et al., pending before the Appellate Division of the Superior Court of New Jersey (the appeal of the individual plaintiffs in one of the present cases) certain penalty provisions are awaiting construction (Docket No. A-241-60). The opinion below may be found in 63 N.J.Super. 596, 165 A.2d 39 (Cty.Ct.1960).
Furthermore the guidance of the United States Supreme Court is much nearer than it was when Fass v. Roos, supra, was decided. During the week of December 5, 1960 the Court heard oral arguments in four cases which present the same basic issues involved here. They are Two Guys from Harrison-Allentown, Inc. v. McGinley, D.C.E.D.Pa.1959, 179 F.Supp. 944; McGowan v. State of Maryland, 1959, 220 Md. 117, 151 A.2d 156; Crown Kosher Super Market of Mass., Inc. v. Gallagher, D.C.D.Mass.1959, 176 F.Supp. 466; Braunfeld v. Gibbons, D.C.E.D.Pa.1959, 184 F.Supp. 352, 353. See 29 U.S.L. Week 3173 (December 13, 1960).
Plaintiffs, however, seek to distinguish this case from Fass v. Roos, supra, by alleging that there was only one conviction in it, while here there have been three convictions of employees of various concessionaires of Bargain City.
They also allude to the arrest on December 18, 1960, of one Anthony Feoli, another employee of a Bargain City concessionaire, although he has not been brought to trial as yet. It is argued that under the terms of the Act
'* * * Feoli, every director, officer, manager, agent and employee of Feoli's employer and every director, officer, manager, agent, and employee of plaintiff, Bargain City, U.S.A. shall be liable for a fine of not less than $ 200 or more than $ 500 and subject to possible imprisonment for a period of not less than thirty days or more than six months or both.' Plaintiffs' br. pp. 14-15.
The difficulty with plaintiffs' position is that there is no allegation that Feoli (not a plaintiff or as yet put to trial), or any plaintiff is a fourth offender under the Act. While it does provide the above penalties for a fourth offense nowhere is it alleged that proceedings have been instituted for such penalties against any officer of Bargain City or Feoli's employer, whoever that may be, or any other.
Plaintiffs press further that in the event of Feoli's conviction the additional penalty of the Act, that the premises may be deemed a nuisance upon a fourth conviction, may come into play.
Under the penalty sections of the New Jersey Nuisance Statute
the plaintiffs contend that they are exposed to the hazard of confiscation of the entire inventory contained within the store and by virtue of a nuisance being a misdemeanor every official of the plaintiff, Bargain City, may be imprisoned. Here, as in the case of the consideration of the other sanctions which may be imposed on a fourth conviction, the danger is speculative and is not of such imminence as to warrant interference by this court now, if ever. The plaintiffs in the Monteleone case (Civil Action 1039-60) do allege that the defendants have threatened
'* * * that upon the fourth conviction of any persons upon plaintiff, Bargain City, U.S.A. store premises, that they would enforce the provisions of N.J.S.A. 2A:171-5.8, et seq., and of the nuisance provisions of the New Jersey State Law * * *'
The defendants, however, in their answer, deny such allegations 'to the extent of the characterization of actions by the appropriate law enforcement officials;' stating that 'the latter have merely performed the duties required by law.' In the face of these pleadings the alleged threat can hardly be termed certain or immediate. Professor Moore has said:
'But although a state statute may be unconstitutional, a federal injunction against its enforcement by criminal prosecution, either as to the entire statute or its separate and distinct prohibitions, is not to be granted unless it appears that there is a specific threat that prosecutions are to be begun so immediately and in such numbers and manner that, unless restrained, plaintiff will suffer the exceptional and irreparable injury which alone justifies equitable suspension of proceedings in criminal courts * * *' 7 Moore, Federal Practice, § 65.20, at p. 1694 (2d ed. 1955).
Without intimidating any determination as to whether plaintiffs' prayers for relief would be granted, were there imminent danger of the invocation of the sanctions against them under the fourth conviction provision of the Act, absent such imminent danger we reach a result similar to that in Fass v. Roos, supra.
We have not overlooked the objections of the defendants to plaintiffs' standing to challenge the Act on religious grounds. In view of the disposition we make of these cases we take no position on that issue now.
Finally we make the general observation that the several suits presently pending to test the Act in both state and federal courts are necessarily time taking because of the many complicated technical issues which are raised. They have been and are being prosecuted diligently and with normal speed. To add another decision in the cases at bar quite duplicative of those already under scrutiny on the eve of the final determinations that confidently may be expected soon would not advance the cause of comity. Fass v. Roos, supra, 184 F.Supp. at page 356.
Plaintiffs' application for injunction and defendants' motion to dismiss are denied. Further proceedings in these cases will be stayed until a final decision is reached in Two Guys From Harrison v. Furman, supra; State v. Fass, now in the Supreme Court of New Jersey as aforesaid; State v. Monteleone, now before the Appellate Division of the Superior Court of New Jersey previously noted, and until the United States Supreme Court finally determines the appeals now before it in Two Guys from Harrison-Allentown, Inc. v. McGinley, supra; McGowan v. State of Maryland, supra; Crown Kosher Super Market of Mass., Inc. v. Gallagher, supra; and Braunfeld v. Gibbons, supra, or until further order of this court.
An order should be submitted in conformity with the foregoing opinion.