Crown Kosher Super Market of Mass., Inc. v. Gallagher

• Decision Date: 20 July 1959
• Docket Number: No. 58-471-M.,58-471-M.
• Citation: 176 F. Supp. 466
• Parties: CROWN KOSHER SUPER MARKET OF MASS., INC., Corporate Plaintiff, and Irving Heafitz, Morris Chaitovsky and Ruth B. Cohen, suing on behalf of themselves and others similarly situated and Rabbi Moses D. Sheinkopf, Chief Orthodox Rabbi of the United Orthodox Congregations of Springfield and President of the Massachusetts Council of Rabbis, suing on behalf of himself and other Rabbis similarly situated, Individual Plaintiffs, v. Raymond P. GALLAGHER, Chief of Police of the City of Springfield, Massachusetts, Defendant.
• Court: U.S. District Court — District of Massachusetts

176 F. Supp. 466

CROWN KOSHER SUPER MARKET OF MASS., INC., Corporate Plaintiff, and Irving Heafitz, Morris Chaitovsky and Ruth B. Cohen, suing on behalf of themselves and others similarly situated and Rabbi Moses D. Sheinkopf, Chief Orthodox Rabbi of the United Orthodox Congregations of Springfield and President of the Massachusetts Council of Rabbis, suing on behalf of himself and other Rabbis similarly situated, Individual Plaintiffs, v. Raymond P. GALLAGHER, Chief of Police of the City of Springfield, Massachusetts, Defendant.

No. 58-471-M.

United States District Court D. Massachusetts.

May 18, 1959.

Dissenting Opinion June 5, 1959.

On Petition for Rehearing July 20, 1959.

COPYRIGHT MATERIAL OMITTED

Herbert B. Ehrmann, Samuel Markell, Edward L. LaVine, Goulston & Storrs, Boston, Mass., Irving S. Ribicoff, David Kotkin, Ribicoff & Kotkin, Hartford, Conn., Samuel L. Fein, Fein, Cavanaugh & Kimball, Springfield, Mass., for plaintiffs.

S. Thomas Martinelli, Asst. City Sol., Matthew J. Ryan, Jr., City Sol., John J. O'Connor, Asst. City Sol., Springfield, Mass., for defendant.

Joseph H. Elcock, Jr., Asst. Atty. Gen., Edward J. McCormack, Jr., Atty. Gen., for Commonwealth of Massachusetts, amicus curiae.

Leo Pfeffer, New York City, for International Religious Liberty Ass'n, amicus curiae.

Howard S. Whiteside, Boston, Mass., for Southern New England Conference of Seventh Day Adventists, amicus curiae.

Henry M. Leen, Boston, Mass., for Archdiocesan Council of Catholic Men, amicus curiae.

Herbert S. Avery, Boston, Mass., for The Lord's Day League of New England, amicus curiae.

Before MAGRUDER and WOODBURY, Circuit Judges, and McCARTHY, District Judge.

MAGRUDER, Circuit Judge.

It is always an unpleasant task for a lower federal court to sit in review upon the constitutionality of state legislation, but sometimes a three-judge district court can find no escape from doing that, under 28 U.S.C. §§ 1331, 1343, 2281 and 2284. We believe the present to be such a case.

The attack which we have to consider is upon the validity, under the Federal Constitution, of the modern version of what started as one of the famous "blue laws" enacted by the Great and General Court of Massachusetts in colonial days. Specifically, we refer to the so-called "Lord's day" statute, still on the books in Massachusetts. M.G.L.A. c. 136 § 1 et seq. So far as we are aware, the Supreme Judicial Court has had no occasion to pass on the validity of this statute under the Federal Constitution, though that court has, rather gingerly and briefly, upheld the statute against attacks based upon the state Constitution. See Commonwealth v. Has, 1877, 122 Mass. 40; Commonwealth v. Chernock, 1957, 336 Mass. 384, 145 N.E.2d 920.

The federal complaint now before us seeks a declaration that certain provisions of the "Lord's day" statute of Massachusetts are unconstitutional, as applied to the plaintiffs. Preliminary and final injunctions restraining the defendant, the Chief of Police of the City of Springfield, from enforcing against the plaintiffs the criminal provisions of the law were asked for. A three-judge court was designated to hear the suit, pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284. The motion for a preliminary injunction was not pressed, after the parties had informally agreed that the plaintiffs would not be prosecuted until after decision of this case. The defendant filed a motion to dismiss, which was consolidated with the hearing on the merits before this court.

Counsel for the Commonwealth has appeared to oppose the relief prayed, and by leave of court consolidated briefs were filed on behalf of two pairs of amici curiae, The Lord's Day League of New England and the Archdiocesan Council of Catholic Men, arguing that the statute should be upheld, and the International Religious Liberty Association, together with the Southern New England Conference of Seventh Day Adventists, urging that the statute is unconstitutional.

Joined as plaintiffs were Crown Kosher Super Market of Mass., Inc., a corporation operating a kosher supermarket in Springfield, Massachusetts, three named customers thereof, suing on behalf of themselves and others similarly situated, and a rabbi suing on behalf of himself and other rabbis similarly situated.

Most of the facts were stipulated by the parties, but some additional oral and documentary evidence was presented by the plaintiffs at the hearing before us.

The corporate plaintiff's supermarket (hereinafter called the Crown Market) offers for sale all categories of food ("one stop shopping"); all of its meats and meat products are kosher, and something like 95 per cent of the rest of its stock is kosher. The Crown Market is the only store of this kind in the area of Springfield; apparently it is the only one within 26 miles or more.¹ But Springfield has several kosher butcher shops and some delicatessen shops and supermarkets which sell certain kosher products.

The four officers and stockholders and the six directors of the corporate plaintiff are all adherents of the Orthodox Jewish faith, who duly observe the Jewish Sabbath, from sundown Friday to sundown Saturday. A very substantial percentage of the corporate plaintiff's customers are Orthodox Jews, and most of the others are Conservative Jews who observe the Jewish Sabbath.

The due observance of the Jewish Sabbath requires total abstinence from business and work of even the most trivial sort. Any riding in automobiles or other conveyances and walking extraordinary distances are forbidden. With particular reference to this case, the religious belief of the officers, directors and stockholders of the corporate plaintiff completely precludes the operation of the store on the Jewish Sabbath, since that would be doing business vicariously and causing others to work on the Sabbath. The large majority of Crown Market's customers, who share these beliefs, may not shop on the Sabbath, nor may they cook. Preparation for meals during the 24 hours of the Jewish Sabbath, and especially for the traditional family feast on Friday night, consumes most of the daylight hours on Friday.

It follows that the Crown Market (like other kosher stores) is not open for business between sundown Friday and sundown Saturday, and on thirteen Jewish holidays each year. Even if the store were open on Saturday, the great majority of its patrons could not take advantage of it, just as they cannot take advantage of the other stores which are open Friday night and Saturday and sell some kosher food. Business considerations make operation on Saturday night impracticable. If, after sundown, the store were prepared for business (for instance, by cutting meat) and were then opened, few hours would remain before a suitable closing time; the twelve store employees (six of whom are butchers) would demand extra wages for their trouble, and most customers would find it inconvenient, if not impossible, to shop during those night hours, especially those who would have to travel significant distances starting after sundown.

But it is common knowledge that the normal pattern of a grocery store's business shows a gradual increase in volume, from very little business on Monday to somewhat more during the day on Friday. The stores are jammed and a vast amount of business is done on Friday evening and Saturday. Since the Orthodox and Sabbath-observing Conservative Jews, such as the customers of the corporate plaintiff, cannot shop on Friday night or Saturday, and they have spent the Sabbath as a day of rest or religious celebration and family communion, Sunday is the only day which has for them the advantages as a shopping day that Saturday has for the majority of the people.

Under these circumstances, it is not surprising that more than one-third of Crown Market's gross sales each week are made on Sunday. It would not be practicable for Crown Market to sell only kosher meat from 6 A.M. to 10 A.M. on Sunday, as permitted by law, for economic reasons similar to those preventing operations on Saturday night after sundown. The few sales would not justify the great expense.

The Crown Market is open for business from 8 A.M. to 6 P.M. every Sunday, and has been open every Sunday (excluding Jewish holidays) since it was established August 18, 1953. It thus has been and is violating the statute, the constitutionality of which is being attacked in this proceeding. The manager of the Crown Market (who is also the corporate plaintiff's president and owns 50 per cent of the stock thereof) was convicted of violation of the challenged provisions of the Lord's day law in the Massachusetts state court. His exceptions in that trial, which questioned the constitutionality of the law under the state constitution but raised no federal constitutional issue, were overruled by the Supreme Judicial Court. Commonwealth v. Chernock, supra, 1957, 336 Mass. 384, 145 N.E.2d 920. Even if the defendant had pleaded res judicata (which he has not, see Rule 8(c), F.R. Civ.P., 28 U.S.C.A.), it seems obvious enough that the corporate plaintiff is not bound by Commonwealth v. Chernock, nor is any of the individual plaintiffs.

The defendant threatens to enforce the law to the full extent of his authority. Thus it must be taken that he will institute repeated criminal prosecutions against the corporate plaintiff, its four officers and stockholders, and its six directors and twelve employees, for each violation, that is, for each Sunday on which Crown Market is open for business.

Two of the three named customer-plaintiffs are residents of Springfield and the third is a resident of Turners Falls, 43 miles to the north. All are Orthodox Jews who are regular customers of the corporate plaintiff's store. These three customers adequately represent a class of Orthodox Jewish people of the area served by the corporate plaintiff's store; they seek to enforce, by obtaining a common relief, their several rights which depend,...