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, [469]*469after 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 Confer•ence 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 [470]*470of 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, however, on common questions of law and fact within the meaning of Rule 23(a) (3), F.R.C.P.
The named plaintiff-rabbi is the Chief Orthodox Rabbi of The United Orthodox Congregations of Springfield and is the president of the Massachusetts Council of Rabbis. He has been duly authorized by the latter organization to represent it in the prosecution of this action. Besides his religious duties as leader and teacher [471]*471of his congregation, this rabbi has the duty (which he may and in fact does discharge through an inspector appointed by him) of inspecting kosher markets and butcher shops daily except on the Jewish Sabbath to ensure compliance with Jewish dietary laws. The inspector comes to the Crown Market at 8 A.M. on Sunday for the washing of any meat from animals slaughtered on the previous Thursday which is on hand. Among the dietary rules enforced is that fresh meat must be rewashed every 72 hours, that only meats and seafood of certain kinds and quality may be eaten, and that meat and dairy products must not be commingled, even by the use of the same implements for both. We think that the plaintiff-rabbi adequately represents a class, and that this class seeks to enforce by a common relief certain common rights and certain several rights which depend upon common questions of law and fact within the meaning of Rule 23 (a)(1) and (3), F.R.C.P.
Preliminarily the defendant relies upon a point of equity jurisdiction hased upon the justifiable reluctance of federal courts of equity to interfere by way of injunction with the operation of a state criminal statute. As stated in Spielman Motor Sales Co., Inc. v. Dodge, 1935, 295 U.S. 89, 95, 55 S.Ct. 678, 680, 79 L.Ed. 1322, “there must be exceptional circumstances and a clear showing that .an injunction is necessary in order to afford adequate protection of constitutional rights.” In Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S.Ct. 877, 880, 87 L.Ed. 1324, in which similar language occurs, the actual decision was that the bill should be dismissed for “want of equity”, since an injunction against enforcement of the ordinance was unnecessary because, in parallel litigation, the Supreme Court had already adjudicated that the ordinance was unconstitutional. Murdock v. Commonwealth of Pennsylvania, 1943, 319 U.S. 105, 63 S.Ct. 891, 87 L.Ed. 1292.
It would be nice if we could say to these plaintiffs, “Go ahead and violate ;the challenged statute, and urge your defense based upon federal constitutional grounds in the course of the state court proceeding.” But the matter is not so simple as that. It seems clear, from the recent decision in Evers v. Dwyer, 1958, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222, that when enforcement of a state criminal statute results in the denial of civil rights of a citizen and the state officials intend to enforce the statute unless and until its unconstitutionality has been finally adjudicated, a three-judge district court may not decline as a matter of discretion to take jurisdiction of a suit to enjoin the operation of the statute. Furthermore, this argument by the defendant really relates only to the corporate plaintiff. Because there is an exception in the statute that permits persons situated as are the plaintiff-customers and the plaintiff-rabbis to perform “secular business and labor” on Sunday, these particular individual plaintiffs cannot, either by shopping at the corporate plaintiff’s store or by inspecting it, or by any other act in the capacities in which they appear here, violate the Sunday law. It is evident that for them the only method by which they can vindicate the constitutional rights claimed is by obtaining equitable relief.
As stated in the complaint, the grounds for challenging the Sunday law are all founded upon the Fourteenth Amendment. Simply stated, these are: (1) That the Lord’s day law is a law respecting the establishment of religion and denying the free exercise of religion and hence is violative of the due process clause of the Fourteenth Amendment. See Douglas v. City of Jeannette, supra, 319 U.S. at page 162, 63 S.Ct. at page 880; (2) that the statute deprives the corporate plaintiff of its property and the other plaintiffs of their liberty arbitrarily and therefore is a denial of due process of law guaranteed by the Fourteenth Amendment; and (3) that the statute denies the corporate plaintiff the equal protection of the laws guaranteed by the Fourteenth Amendment. It can hardly be disputed that the corporate plaintiff has standing to assert the [472]*472grounds numbered 2 and 3 supra, and that the individual plaintiffs have standing to assert the grounds numbered 1 and 2 supra. If we were required to go into the matter, which we are not now, we would be prepared to hold that the facts of this case bring it squarely within the exception to the Supreme Court’s “rule of practice” forbidding one party to assert somebody else’s constitutional rights, so that all plaintiffs could argue all grounds. See Pierce v. Society of Sisters, 1925, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Pearl Assurance Co., Limited, of London, England v. Harrington, D.C.Mass.1941, 38 F.Supp. 411, affirmed 1941, 313 U.S. 549, 61 S.Ct. 1120, 85 L.Ed. 1514; Bar-tels v. State of Iowa, 1923, 262 U.S. 404, 410-411, 43 S.Ct. 628, 67 L.Ed. 1047; Barrows v. Jackson, 1953, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586.
It is clear that the first Sunday law, enacted in 1653, and the various modified versions thereof also enacted in the colonial period, had the religious purpose to compel a seemly observance of that day of the week celebrated as the Sabbath (Sunday) by the dominant Christian sect. See Colonial Laws of Mass. 132-33, 134; Mass. Bay Province Acts 1692-93, c. 22; 1716-17, c. 13; 1727-28, c. 5; 1760-61, c. 20. See also the codification of 1782, passed by the legislature assembled under the Constitution of the Commonwealth of Massachusetts. Mass. Acts 1782, c. 23. These enactments were prior to the adoption of the Constitution of the United States and long before the adoption of the Fourteenth Amendment.
In enactments subsequent to the creation of the Federal Union, the Massachusetts legislature began to eliminate some provisions from the earlier prohibitory clauses of its Sunday laws. See Mass. Acts 1791, c. 58; R.S.1836, c. 50.
In 1858 the legislature, apparently yielding to various pressure groups, commenced the practice of writing in various, exceptions to the general prohibition, against secular activities on the Lord’s-day, which has resulted in amendments-by some seventy-odd different enactments.2
The result of all this is that the Sunday law, as it now exists on the books, is-an almost unbelievable hodgepodge.. Chapter 136 of the Massachusetts General Laws, entitled “Observance of the' Lord’s day”, contains in § 5 the general prohibition which defendant is threatening to apply to the plaintiffs: “Whoever on the Lord’s day keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, except works of necessity and charity, shall be' punished by a fine of not more than fifty dollars.” (There is no doubt that the “Lord’s day” as used in the statute means Sunday.) Then § 6 and the succeeding sections contain miscellaneous exceptions and qualifications, none of which do these plaintiffs any good. One of such exceptions might have seemed as an original matter to be applicable to the corporate plaintiff. It is provided in one part of § 6: “Nor shall it prohibit the performing of secular business and labor on the Lord’s day by any person who conscientiously believes that the seventh day of the week ought to be observed as the Sabbath and actually refrains from secular business and labor on that day, if he dis-tux-bs no other person thereby”. But the Supreme Judicial Court has held, and of course that court’s interpretation of the state statute is binding upon us, that this [473]*473particular exception does not excuse the separate offense of keeping one’s shop open on the Lord’s day, although the defendant in conscience believes that the seventh day of the week ought to be observed as the Sabbath and actually refrains from secular business on that day. Commonwealth v. Has, supra, 122 Mass. 40. To the same effect see Commonwealth v. Kirshen, 1907, 194 Mass. 151, 80 N.E. 2; Commonwealth v. Starr, 1887, 144 Mass. 359, 11 N.E. 533.
Much is made by the defendant of the following extract from the opinion of the Supreme Judicial Court in Commonwealth v. Has, supra, 122 Mass, at page 42:
“This act has been so frequently recognized in both civil and criminal cases, and its various provisions have been so often the subject of judicial decision, that its constitutionality can hardly be considered an •open question. It is essentially a •civil regulation, providing for a fixed period of rest in the business, the ordinary avocations and the amusements of the community. If there is to be such a cessation from labor and amusement, some one day must be selected for the purpose; and even if the day thus selected is chosen because a great majority of the people •celebrate it as a day of peculiar sanctity, the legislative authority to provide for its observance is derived from its general authority to regulate the business of the community and to provide for its moral and physical welfare. The act imposes upon no one any religious ceremony •or attendance upon any form of worship, and any one, who deems another day more suitable for rest or worship, may devote that day to the religious observance which he deems appropriate. That one who conscientiously observes the seventh day •of the week may also be compelled to Abstain from business of the kind expressly forbidden on the first day, is not occasioned by any subordination •of his religion, but because as a member of the community he must submit to the rules which are made by lawful authority to regulate and govern the business of that community.”
This description of the Massachusetts Sunday law as being merely a “day-of-rest” statute, enacted pursuant to the police power, is answered by an examination of the statute, particularly those numerous provisions which permit various activities on Sunday, which certainly are not “works of necessity and charity”, at specified hours and places designed not to affront godly persons worshiping in their churches during the usual morning hours. Moreover, the exceptions, permitting a great variety of functions on Sunday, are not by § 6 made conditional upon the observance of some other day in the week as a day of rest. In fact there is on the statute books a wholly separate requirement, Mass. G.L. c. 149, § 48, imposing upon employers of labor the obligation to see to it that their employees are allowed “at least twenty-four consecutive hours of rest, which shall include an unbroken period comprising the hours between eight o’clock in the morning and five o’clock in the evening, in every seven consecutive days.” The characterization of the Sunday law as being merely a civil regulation providing for a “day of rest” seems to have been an ad hoc improvisation in Commonwealth v. Has, supra, because of the realization that the Sunday law would be more vulnerable to constitutional attack under the state Constitution if the religious motivation of the statute were more explicitly avowed. At any rate, that characterization of the statute is contradicted by other pronouncements of the Supreme Judicial Court both before and after the date of the decision in Commonwealth v. Has. See, for instance, Pearce v. Atwood, 1816, 13 Mass. 324, 345-346; Bennett v. Brooks, 1864, 91 Mass. 118, 121; Davis v. City of Somerville, 1880, 128 Mass. 594, 596; Commonwealth v. White, 1906, 190 Mass. 578, 580-581, 77 N.E. 636, 637, 5 L.R.A.,N.S., 320. In the last-named case, blissfully [474]*474ignoring what was said in Commonwealth v. Has, the Supreme Judicial Court said:
“In construing this statute it is to be borne in mind that, so far as material to the question before us, it is simply the continuation of a law which, from a very early time in the history of the colony, has been constantly upon our statute books. It is one of a series of statutory provisions enacted to secure the proper observance of the Lord’s day, as understood by our forefathers. Their idea of the Lord’s day, the manner in which it should be spent, and the object of the system of statutes passed from time to time to secure its proper observance, are set forth in the various preambles to those statutes. One of these is in the following language : ‘Whereas it is the duty of all persons, upon the Lord’s day, carefully to apply themselves, publickly and privately to religion and piety, the prophanation of the Lord’s day is highly offensive to Almighty God, of evil example, and tends to the grief and disturbance of all pious and religiously disposed persons, therefore,’ etc. See Prov. St. 1760-61, c. 20, § 1; 4 Prov. Laws, (State ed.) 415. Perhaps the most instructive preamble is that which precedes St. 1791, p. 851, c. 58, which was the first general statute passed on this subject after the adoption of our State Constitution. It reads as follows: ‘Whereas the observance of the Lord’s Day is highly promotive of the welfare of a community, by affording necessary seasons for relaxation from labor and the cares of business; for moral reflections and conversation on the duties of life, and the frequent errors of human conduct, for public and private worship of the Maker, Governor and Judge of the world and for those acts of charity which support and adorn a Christian society: And whereas some thoughtless and irreligious persons inattentive to the duties and benefits of the Lord’s Day, profane-the same, by unnecessarily pursuing-their worldly business and recreations on that day, to their own great-damage, as members of a Christian society; to the great disturbance of well disposed persons, and to the great damage of the community, by producing dissipation of manners and immoralities of life: Be it therefore enacted,’ etc. Such was the idea of the Lord’s day for the observance of which this system was devised.”
In fact, the joint brief filed by The Lord’s Day League of New England and the Archdiocesan Council of Catholic Men “lets the cat out of the bag”, so to speak, in the following statement: “Each organization has various aims and purposes, but have, in common, the purpose of preventing the further secularization and commercialization of the Lord’s Day.”
Fortunately, in passing upon the constitutionality of the state statute, we do not have to accept the characterization of it made in Commonwealth v. Has, supra. See Society for Savings in City of Cleveland, Ohio v. Bowers, 1955, 349 U.S. 143, 151, 75 S.Ct. 607, 99 L.Ed. 950.
It seems to us that all the objections which have been taken under the Fourteenth Amendment to the constitutionality of the statute in question are well taken.
As to the freedom of religion provisions of the First Amendment which the Supreme Court has explicitly told us have been incorporated into the due process clause of the Fourteenth Amendment and have thus become binding on the states, see Thornhill v. State of Alabama, 1940, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093; Douglas v. City of Jeannette, supra, 1948, 319 U.S. 157, 162, 63 S.Ct. 877, 87 L.Ed 1324; Thomas v. Collins, 1945, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430.
We may start with the classic statement from Everson v. Board of Education, 1947; 330 U.S. 1, 15-16, 67 S.Ct. 504, 511, 91 L.Ed. 711:
[475]*475“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or dis-beliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa,. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’ Reynolds v. United States, 1878, 98 U.S. [145] at page 164, 25 L.Ed. 244.”
To the above may be added the statement by the Court in the Everson case, 330 U.S. at page 18, 67 S.Ct. at page 513:
“State power is no more to be used so as to handicap religions, than it is to favor them.”
What Massachusetts has done in this statute is to furnish special protection to the dominant Christian sects which celebrate Sunday as the Lord’s day, without furnishing such protection, in their religious observances, to those Christian sects and to Orthodox and Conservative Jews who observe Saturday as the Sabbath, and to the prejudice of the latter group. It is clear that by denying to the plaintiffs the liberty to work, shop, or pursue other “secular” conduct on Sunday, the law puts an economic penalty upon a person observing as his Sabbath some other day than Sunday by depriving him of the productive use of one further day of the week. In other words, whereas ordinary grocery stores are open six days a week, if the challenged law is constitutional the Crown Market can be open only five days, and none of these five days would include a day of the week end, when a large percentage of the week’s sales is normally obtained. Even assuming that the Crown Market could stay in business on such a basis, it could do so only under great handicap as against other supermarkets. Crown Market’s Orthodox customers also lose much of the value of their Sunday under the same penalty, since if the law is constitutional they may not shop on either Saturday or Sunday. Without doubt if they remain faithful to their religious convictions, they will be under a very substantial disadvantage as compared with shoppers whose Sabbath is observed on Sunday. The rabbi-plaintiffs would be hindered in their function of supervising the food to be eaten by the members of their congregations, and they would also suffer great detriment in their efforts to preserve, in these circumstances, due observance of the Jewish Sabbath and of the dietary laws by them.
For reasons closely related to those just set forth, the objection is well taken that, in furtherance of no legitimate interest which Massachusetts is entitled to safeguard, the statute arbitrarily requires Crown Market to be closed on Sunday, thereby causing the corporate plaintiff to lose potential sales and to be denied the right to use its property on Sunday, with the result of depriving the corporate plaintiff of liberty and property and the other plaintiffs of liberty, without due process of law, contrary to the Fourteenth Amendment.
We think in addition that, on the decided cases, the discriminations apparent on the face of the statute constitute a denial of the equal protection of the laws, forbidden as well by the Fourteenth Amendment. See Smith v. Cahoon, 1931, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264; City of Springfield v. Smith, 1929, 322 Mo. 1129, 19 S.W.2d 1; Allen v. City of [476]*476Colorado Springs, 1938, 101 Colo. 498, 75 P.2d 141; City of Mt. Vernon v. Julian, 1938, 369 Ill. 447, 17 N.E.2d 52, 119 A.L.R. 747; Ex parte Hodges, 1938, 65 Old.Cr. 69, 83 P.2d 201; Arrigo v. City of Lincoln, 1951, 154 Neb. 537, 48 N.W. 2d 643; Henderson v. Antonacci, Fla. 1952, 62 So.2d 5.
Without elaborating the many discriminatory exceptions, two vices may be noted as examples: The statute does not generically forbid the keeping open of a store on Sunday to sell food, but it just limits this liberty to selected types of stores.3 Employees of the favored stores are not less in need of rest than those of the Crown Market, nor does any reason appear why the operation of those stores is less calculated to disturb the rest of citizens than do the operations of the Crown Market. And many classes of work which are excepted are surely no-less destructive of public rest and relaxation than the opening of the Crown Market would be.4
We ought to comment briefly on two-Supreme Court cases much relied upon, by the defendant.5 In Hennington v. State of Georgia, 1896, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166, the only claim considered by the Court was that, under the commerce clause, a state could not. prohibit the running of a railroad train, in interstate commerce on Sunday. The-Court held simply that congressional! silence could not foreclose the field to-[477]*477state regulation. The opinion assumed that the statute was for the purpose of securing a day of rest, as the Georgia Supreme Court had held, and reasoned from this premise (163 U.S. at page 307, 16 S.Ct. at page 1089). Also, it may be pointed out that this is a pretty old case, which was decided before the modern development of limitations upon the powers of the states implicit in the Fourteenth Amendment. In Petit v. State of Minnesota, 1900, 177 U.S. 164, 20 S.Ct. 666, 667, 44 L.Ed. 716, the Supreme Court did affirm a conviction under a Minnesota statute, M.S.A. §§ 614.29, 614.30, prohibiting all labor on Sunday “excepting the works of necessity or charity.” The statute contained the provision that keeping open a barber shop on Sunday “shall not be deemed a work of necessity or charity.” The Court sustained the conviction of the defendant barber on alternate grounds: (1) That “necessity or charity” did not as a matter of fact include barber shops, so that the proviso really added nothing, and (2) even if barber shops might otherwise be excused from closing, it could not be said that the classification in the circumstances was unreasonable, since courts will take judicial notice of the fact that, in view of the custom of keeping barber shops open in the evening as well as in the day, the employees in them work more, and during later hours, than those engaged in most other occupations.
This opinion shall constitute the findings of fact and conclusions of law in accordance with Rule 52(a), F.R.C.P.
The form of our decree pursuant to the foregoing opinion will be settled by counsel upon due notice.
McCARTHY, J., dissents from the opinion and judgment of the Court', and will file a dissenting memorandum at a later date.