Moss v. Hornig

• Citation: 214 F. Supp. 324
• Decision Date: 09 May 1962
• Docket Number: Civ. No. 9261.
• Court: U.S. District Court — District of Connecticut
• Parties: Joseph MOSS v. Albert H. HORNIG.

214 F. Supp. 324

Joseph MOSS v. Albert H. HORNIG.

Civ. No. 9261.

United States District Court D. Connecticut.

May 9, 1962.

George J. Malinsky, Georgetown, Conn., for plaintiff.

Albert L. Coles, Atty. Gen., Louis Weinstein, Asst. Atty. Gen., Hartford, Conn., for defendant.

BLUMENFELD, District Judge.

The plaintiff seeks injunctive relief from pending state criminal proceedings in which he is charged with violation of Conn.Gen.Stat. § 53-300 (Rev. of 1958), prohibiting Sunday retail sales. Alleging that the statute is unconstitutional, he applies for an injunction and requests a three-judge court be convened to hear his application, pursuant to 28 U.S.C. § 2281.

The Three-Judge Court

28 U.S.C. § 2281, provides that an injunction

"restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

Mere allegations that a state statute is unconstitutional do not automatically require a district judge to initiate the procedure under 28 U.S.C. § 2284, to invoke a three-judge court. What was made plain by Judge Friendly in Bell v. Waterfront Comm. of N. Y. Harbor, 2 Cir., 1960, 279 F.2d 853, 857-858, has been confirmed by the Supreme Court in Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512, where it is stated, at 514, that "Section 2281 does not require a three-judge court when the claim that a statute is unconstitutional is wholly unsubstantial, legally speaking non-existent;" i. e. when "prior decisions make frivolous any claim that a state statute on its face is not unconstitutional." That is the situation here.

In four cases decided less than a year ago, the Supreme Court laid to rest all claims against the constitutionality of Sunday closing laws. The conviction of employees of a discount department store under Maryland statutes for selling various articles on Sunday was upheld in McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L.Ed.2d 393 (1961). The challenge to the Pennsylvania Sunday laws in Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961) was rejected, although the statute provided stiffer penalties for sale of certain commodities by retailers than for other business transactions. The court found that such a classification was justifiable because of: (1) the interference with peace and quiet caused by the large number of cars attracted to retail stores; (2) the pressure upon competitors to keep open on Sundays; and (3) the large number of employees involved.

Free Exercise of Religion

In Bruenfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), a retailer of the Orthodox Jewish faith also challenged the Pennsylvania laws on the ground that the enforced Sunday closing of his store, combined with the voluntary closing on Saturday for religious reasons, would impose such a heavy economic handicap upon his business that he would be unable to continue it. In spite of express recognition that the law operated "so as to make the practice of * * * religious beliefs more expensive", the statute was held to be valid "to advance the State's secular goals * * * despite its indirect burden on religious observance * * *" 366 U.S. at 607, 81 S.Ct. at 1148.

Joseph Moss keeps his store open on Saturdays too. Even if he did refrain from doing business on Saturday because of the practice of his religious beliefs, Conn.Gen.Stat. § 53-303 exempting those who observe Saturday as a day of rest from the penalty of the Sunday law, would relieve him of what Mr. Justice Stewart's dissenting opinion, 366 U.S. at 616, 81 S.Ct. at 1152, described as the compulsion "to choose between his religious faith and his economic survival." The plaintiff in this case does not come within two long jumps of having a claim with as much merit as Braunfeld's. Not only does Conn.Gen.Stat. § 53-300 not infringe upon the free exercise of religion, but the plaintiff has no standing to make the claim. 366 U.S. at 429, 81 S.Ct. at 1106.

Discriminatory Classification

Although the exemptions to prohibited transactions which all states, including Pennsylvania, Maryland and Connecticut, have in their Sunday closing laws are less complex than those of Massachusetts, the Supreme Court concluded that even those of Massachusetts do not create such an arbitrary classification as to constitute a violation of the equal protection clause. Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536 (1961). A comparison of the exemptions in each state's law may be readily made by reference to the chart in Appendix II to Mr. Justice Frankfurter's opinion, 366 U.S. at 555, 81 S.Ct. at 1206. As one would expect, those in the law of the Commonwealth of Massachusetts, with a similar historical background, show a striking similarity to those in the law of its neighboring State of Connecticut. Although the Massachusetts statute has more exceptions, the only difference between those which are common to both is that Connecticut permits the sale of antiques on Sunday, whereas Massachusetts permits the sale of art catalogues and art works. Since the Connecticut Supreme Court of Errors in State v. Shuster, 145 Conn. 554, 145 A.2d 196 (1958) has already sustained this as a reasonable classification, in view of the cultural and artistic benefits to be derived from antique hunting, this is a difference without a distinction. Conn.Gen.Stat. § 53-300, does not violate the equal protection clause of the Fourteenth Amendment.

Establishment of Religion

The plaintiff's claim that the statute violates the First Amendment's prohibition against "an establishment of religion" is equally without merit. This claim rests upon the plaintiff's contention that the Supreme Court of Errors of Connecticut has stated that this statute is religious as well as secular in purpose. He points out the following sentence:

"The purpose of the statute, as its title and history indicate, is to secure a fitting observance of Sunday both as a day for religious worship and as a day for rest and recreation." State v. Hurliman, 143 Conn. 502, 507, 123 A.2d 767, 769 (1956).

However, this should be read as referring to the original purpose of the law, for I have no doubt that only this was intended, because, in support of the quoted statement, the court cited the early decision of State v. Miller, 68 Conn. 373, 36 A. 795 (1896), the opinion of which makes that clear. The Miller case traced the legislative trend away from the original religious aspect of the statute to the secular purposes which had become dominant by 1896. The court in Hurliman did not even advert to the prior decision in Wetherell v. Hollister, 73 Conn. 622, 625, 48 A. 826 (1901), which had also stated:

"We suppose that the primary purpose of Sunday legislation has been to secure to private citizens the quiet enjoyment of Sunday as a day of rest and to encourage the observance of moral duties, not to enforce an institute of religion. The legislation exempting persons who observe Saturday as a day of rest, from the penalty of the Sunday law, shows this. General Statute § 1572 now Conn.Gen.Stat. § 53-303"

In the latest case decided by the Supreme Court of Errors, State v. Shuster (supra), Judge Mellitz dispelled any argument that the statute's purpose is religious, 145 Conn. at pp. 557-558, 145 A.2d at p. 197:

"* * * we must bear in mind that the primary purpose of the legislation is not to enforce an institute of religion. Wetherell v. Hollister, 73 Conn. 622, 625, 48 A. 826. Although such statutes as this may be said to have had a religious origin, they are upheld as a valid exercise of the police power in recognition of the fact `that the first day of the week by general consent is set apart `for rest', in accord with the general experience of mankind that it is wise and necessary to set apart such a day at stated intervals for both the physical and moral welfare of the members of a State or community.' People v. Friedman, 302 N.Y. 75, 79, 96 N.E.2d 184, appeal dismissed, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; Soon Hing v. Crowley, 113 U.S. 703, 710, 5 S.Ct. 730, 28 L.Ed. 1145; Hennington v. Georgia, 163 U.S. 299, 304, 318, 16 S.Ct. 1086, 41 L.Ed. 166; Petit v. Minnesota, 177 U.S. 164, 165, 20 S. Ct. 666, 44 L.Ed. 716. Such legislation is being increasingly regarded as day-of-rest legislation rather than as Sabbath or Sunday closing laws. State v. Crabinski, 33 Wash.2d 603, 606, 206 P.2d 1022."

Finally, it should be noted that Mr. Justice Frankfurter, concurring in McGowan v. Maryland (supra) fn. 82 at page 498 of 366 U.S., at page 1174 of 81 S.Ct., interprets the Shuster decision as holding that Connecticut's law has "* * * an exclusively secular function * * *."

This court is not bound to accept the characterization placed upon the statute by the state court in passing upon the question of constitutionality. Gallagher v. Crown Kosher Super Market (supra), 366 U.S. at 629, 81 S.Ct. at 1128; Society for Savings, etc. v. Bowers, 349 U.S. 143, 151, 75 S.Ct. 607, 99 L.Ed. 950 (1955). While I do not read the Hurliman case as giving any support to the plaintiff's contention that this statute has a religious purpose, I am free, in any event, to rely solely upon the decisions of the United States Supreme Court. Since the opinions in the four recent Supreme Court cases in Volume 366 establish beyond question that the constitutional issues presented by the plaintiff in this case are transparently fictitious, there is no warrant for submitting them to a three-judge court. Bailey v....