Zayre Corp. v. Attorney General

362 N.E.2d 878, 372 Mass. 423, 1977 Mass. LEXIS 937

• Court: Massachusetts Supreme Judicial Court
• Decided: April 21, 1977
• Status: Published

Opinions

Liacos, J.

Laws which regulate trade and commerce on Sundays have been in existence in this Commonwealth and elsewhere since colonial times. These laws popularly have been known as “Sunday closing laws,” “Blue Laws” or “common day of rest laws.” They once were challenged unsuccessfully as being unconstitutional in that they reflected an impermissible establishment of religion.² Various courts, including the United States Supreme Court, have held that such laws are a valid exercise of State police power. See McGowan v. Maryland, 366 U.S. 420 (1961). After a relative period of quiescence, new attacks on such laws have been mounted recently. These recent challenges, while recognizing generally that such laws may reflect a valid exercise of State police power, proceed on the theory that the exemptions to the prohibition contained in such laws are so random, arbitrary and unrelated to legitimate State purposes that they deny those subject to the prohibition due process and equal protection of law.³

Such challenges have met with varying degrees of success.⁴ The recent decision of the New York Court of Appeals in People v. Abrahams, 40 N.Y.2d 277 (1976), declaring invalid that State’s Sunday closing law on the grounds that the entire scheme of statutory exemptions was so random and arbitrary as to be in derogation of express constitutional guaranties, has given new hope to those who question the validity of such laws. Soon after that New York decision, a lower court in Connecticut, Connecticut v. Graber, No. Cr 15-45906 (Conn. C.P. New Britain 1976); as had one in Vermont, Vermont v. Ludlow Supermarket, Inc., No. 1085-75 (Dist. Ct. Windham Cir. 1975), proceeded to find constitutional infirmity in their State’s statutory scheme.

In apparent reliance on this seeming avalanche of judicial precedent the plaintiff, which heretofore apparently had observed the general prohibition of G. L. c. 136, § 5, the Massachusetts “Blue Laws,” opened for business on Sunday, November 28, 1976, the first weekend of the so called Christmas rush, in Springfield. The plaintiff was complained of in a District Court for violations of the statute. The plaintiff closed the following Sunday, December 5 and on December 8 filed a complaint with the county court seeking declaratory and injunctive relief against the enforcement of G. L. c. 136, §§ 5, 6, and the pending criminal prosecutions.

The matter first came on for hearing before a single justice on December 10,1976. None of the requested relief was granted by him. Nevertheless, the plaintiff and many retailers similarly affected by the statute, opened for business on the two subsequent Sundays, December 12 and 19. Such business establishments became the subject of over 300 criminal complaints now pending in the District Courts.⁵ The record indicates that the plaintiff did not open after Sunday, December 19, that is, after the end of the so called Christmas shopping season.⁶ On December 24, the single justice certified a class represented by Zayre Corp. consisting of “retailers who wish to open for business on Sundays” and the case was thereupon reserved and reported without decision to the full court on a statement of agreed facts, appendix and briefs.⁷

The statement of agreed facts shows that the plaintiff is a Delaware corporation which operates thirty-four retail discount department stores in Massachusetts, with usual places of business in Natick and Framingham. The plaintiff also sells a wide variety of merchandise some of which is clearly within the exemptions of G. L. c. 136, § 6, others of which are arguably so, but the great majority of which, in terms of quantity and sales volume, are items whose sale on Sunday is prohibited by § 5.⁸

The members of the plaintiff class include, but are not limited to, various department stores, discount, hardware and home supply stores and the like. The members of the class are typically located in shopping centers, downtown and suburban business areas and “free-standing areas adjacent to highways.” A department store in the class may employ over 150 employees, of which 80 to 100 may be working at any given time. Other members of the class may have only two or three employees. Prior to November 28, the class members typically observed the provision of § 5.

The gravamen of the plaintiff’s argument is not only that the entire scheme of exemptions is arbitrary and not rationally related to a legitimate State purpose, but also that certain types of stores, in particular health and sanitary supply stores (sometimes called health and beauty aid stores), as well as certain gift stores, are able to operate freely on Sunday, either due to the exemptions in the statute or the pattern of local law enforcement. As such the claim is that the statute operates in an arbitrary or irrational manner. As evidence of this, the plaintiff points to the statement of agreed facts which shows that in so far as the health and beauty aid stores are concerned, they tend to be located in areas coextensive with those of the members of the plaintiff class and typically employ two to four employees on Sunday. Some, but not all, of these stores rope off or cover areas containing nonexempt merchandise.

So far as the so called gift stores are concerned, the parties agreed that the merchandise in those stores was different to some extent than merchandise sold by the plaintiff, but were unable to agree that the goods sold in these stores were within the exemption of G. L. c. 136, § 6 (29). It appears that members of the plaintiff class sell some items similar to those sold in gift stores. It was agreed that these gift stores typically are open on Sunday, have not been prosecuted for violations of § 5 and generally do not rope off or cover up prohibited classes of merchandise on Sunday.⁹

The plaintiff also apparently conceded in the statement of agreed facts that the provisions of G. L. c. 136, §§ 5, 6, had, prior to the case, been observed by most, but not all retailers, and had been generally, but not universally enforced.¹⁰

Having set forth the facts necessary to our decision, we go on to consider whether G. L. c. 136, §§ 5, 6, are constitutionally infirm. It is important to point out that this case does not concern the validity of the law per se in that all sides agree the subject of the legislation is within the police power of the State. All we are concerned with¹¹ is whether the pattern of exemptions renders the statute in its present form constitutionally infirm. To consider these issues, a consideration of the legislative and judicial history of the statute is of some import.

1. Legislative and judicial history. It is not necessary to detail the complete history of Sunday closing laws either in the United States or Massachusetts. The former task was done in both the main opinion, and in the separate opinion of Mr. Justice Frankfurter, in McGowan v. Maryland, 366 U.S. 420, 459 (1961), and the latter was adverted to in the Frankfurter opinion and set forth in greater detail by the minority members of the Governor’s Special Committee to Consider the Laws Relative to Lord’s Day Observance. 1962 Senate Doc. No. 404, 17-27. It is sufficient to state that Massachusetts has had such a law since 1650. Id. at 17. See McGowan v. Maryland, supra at 545-546, app. I to opinion of Frankfurter, J.; Note, a General Survey of the Sunday and Holiday Laws in New England, 39 B.U.L. Rev. 553 (1959). The general philosophy of the various enactments and versions of the Sunday law up to and including the present G. L. c. 136 is to begin with a general prohibition of all work, labor and amusements on Sunday and then to engraft on that general prohibition the exemptions which the Legislature deems required by necessity or the general purpose of the statute. As noted by the minority members of the special committee, this process of engrafting exemptions has been both active and continuous in the Twentieth Century.¹² 1962 Senate Doc. No. 404 at 18.

The seminal event concerning our view in this case occurred in 1961, when the United States Supreme Court reversed the decision of a three-judge Federal District Court and upheld the prior version of the Massachusetts Sunday law in Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961), rev’g 176 F. Supp. 466 (D. Mass. 1959). In that case, the statute at issue was challenged on grounds that it constituted an establishment of religion or inhibited the free exercise thereof and further that the exemptions to the law were so numerous and arbitrary as to have no rational basis. 366 U.S. at 622 & n.2. The Court in Gallagher, as it did in McGowan v. Maryland, supra, rejected the equal protection challenges as well as the other challenges. It held as to equal protection that the plaintiffs there had not sustained their burden on the issue of irrationality sufficient to overcome the presumption of validity which attaches to statutes regulating economic activity. Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra at 624.

Less than one month after the decision in Gallagher, this court, in reliance on that decision and prior decisions of this court, Commonwealth v. Chernock, 336 Mass. 384 (1957); Commonwealth v. Has, 122 Mass. 40 (1877), held G. L. c. 136, §§ 5, 6, constitutional and rejected, as had the Supreme Court, the contention that the exemptions in § 6 had destroyed any rational basis for § 5. Commonwealth v. Chamberlain, 343 Mass. 49, 53 (1961). In Chamberlain, the court held that in the absence of sufficient proof showing the irrationality of the scheme of exemptions, the question of the number of exemptions to the prohibition was a subject for “legislative determination.”¹³

Nonetheless, the earlier action of the lower Federal court (as it had in 1960, see 1960 Senate Doc. No. 525, see also the earlier study in 1954 House Doc. No. 2413) provided another reason for restudying Sunday closing laws. This resulted in the formation of the 1962 committee whose task it was to review the statute in order “to remove the inequities and inconsistencies of the present law while preserving its form and substance insofar as practical and reasonable as a uniform day of rest law.” 1962 Senate Doc. No. 404 at 3. The end result of the committee’s proposal was the enactment of St. 1962, c. 616, § 2, now G. L. c. 136, §§ 5, 6.

The measure proposed by the committee’s majority contained over twenty-five exemptions. The bill which was finally enacted contained forty-three. Even the bill proposed by the minority members contained almost fifteen exemptions. The substance of the majority proposal was enacted in St. 1962, c. 616, § 2. Among the exemptions added to the committee’s proposal were those which seemingly furthered the purpose of the law such as allowing the opening of libraries and public bathhouses, as well as the sale of certain merchandise which was primarily recreational in character. As the committee indicated had been past practice, however, there was a continuing legislative effort to balance societal needs with the underlying policy of the law. The Legislature has enacted fifteen different amendments to § 6,¹⁴ bringing the total number of exemptions up to forty-nine. Among those exemptions added were the operation of coin-operated laundries and car washes as well as the sale of State lottery tickets.

The law enacted in 1962 did not differ markedly from the law upheld in both Gallagher and Chamberlain. See text in Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra at 636-639 (app. to opinion of Warren, C.J.). Indeed, one of the exemptions which the plaintiff finds particularly egregious, G. L. c. 136, § 6 (27), is almost identical to one contained in the earlier enactment. The exemption now allows “[t]he retail sale of drugs and medicines and the retail sale or rental of mechanical appliances prescribed by physicians or surgeons, and the retail sale of personal health and sanitary supplies.” G. L. c. 136, § 6 (27), as appearing in St. 1962, c. 616, § 2. Only the last clause, relating to the sale of health and sanitary supplies differentiates that provision from the one before the courts in both Gallagher and Chamberlain. The earlier law however contained no “giftshop” provisions, see G. L. c. 136, § 6 (29).

Of the forty-nine exemptions now in the statute, thirteen concern the subject of retail sales,¹⁵ six concern the transportation of persons and property,¹⁶ seven concern recreational activity,¹⁷ four concern the operation of hotels and restaurants,¹⁸ three exempt self-service activity requiring no outside labor presence,¹⁹ four exempt public service and emergency activity,²⁰ and the remainder do not fit into any one category.²¹

2. General principles. The principles of law governing this case are both familiar and oft stated, see, e.g., New Orleans v. Dukes, 427 U.S. 297 (1976); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955); Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949); West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); First Nat’l Bank v. Attorney Gen., 371 Mass. 773, 793-794 (1977); Pinnick v. Cleary, 360 Mass. 1 (1971); Commonwealth v. Chamberlain, supra. When a statute regulating economic activity is challenged on the basis that the classifications on which the regulatory scheme is based deny those subject to them the equal protection of the law the challenger must bear the heavy burden of overcoming the presumption of constitutionality which attaches to that statute. Commonwealth v. Henry’s Drywall Co., 366 Mass. 539 (1974). Unless a classification is a “manifest excess of legislative power,” Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 412-413 (1972), unjustified by any conceivable set of facts or findings, Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686 (1971), or unless the statute “trammels fundamental personal rights or is drawn upon inherently suspect distinctions,” New Orleans v. Dukes, supra at 303, a court will not or should not invalidate a classification which is rationally related to a legitimate State interest.²² First Nat’l Bank v. Attorney Gen., supra. Pinnick v. Cleary, supra.

The reasons for this devolve not from an abdication of the judicial role, but a recognition of its proper place in our system of government. Cf. Lochner v. New York, 198 U.S. 45 (1905). See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). This principle of judicial restraint includes recognition of the inability and undesirability of the judiciary substituting its notions of correct policy for that of a popularly elected Legislature. Ferguson v. Skrupa, 372 U.S. 726 (1963). Thus, along with the deference to the classification per se, a court will not invalidate a classification merely because the Legislature has not chosen to address an entire problem in defining a classification, Railway Express Agency, Inc. v. New York, supra; Williamson v. Lee Optical of Okla., Inc., supra, or because the classifications, be they slightly over or under inclusive, could have been drawn to more precise standards, New Orleans v. Dukes, supra. Compare Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695 (1962). Every economic classification is in some manner arbitrary but the drawing of the line between classifications is a task to be exercised at the discretion of the appropriate branch of government. That branch of government in our system is the Legislature.

3. The application of the principles to G. L. c. 136, §§ 5, 6. Perhaps in no other area is the need for this allocation of power better illustrated than in the instant case. “In the case of Sunday legislation, an extreme complexity of needs is evident. This is so, first, because one of the prime objectives of the legislation is the preservation of an atmosphere — a subtle desideratum, itself the product of a peculiar and changing set of local circumstances and local traditions. But in addition, in the achievement of that end, however formulated, numerous compromises must be made. Not all activity can halt on Sunday. Some of the very operations whose doings most contribute to the rush and clamor of the week must go on throughout that day as well, whether because life depends upon them, or because the cost of stopping and restarting them is simply too great, or because to be without their services would be more disruptive of peace than to have them continue. Many activities have a double aspect: providing entertainment or recreation for some persons, they entail labor and workday tedium for others.” McGowan v. Maryland, 366 U.S. at 524-525 (opinion of Frankfurter, J.). See Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961); Braunfield v. Brown, 366 U.S. 599 (1961).

The legislative dilemma in deciding the provisions of a common day of rest law is evident. On the one hand, there is the general policy for such a day such as that established in § 5. See G. L. c. 136, § 1. On the other hand, there is a recognition that certain activities must, for societal needs, be allowed to continue; that allowing certain activities will facilitate, not frustrate, the attainment of that goal and that in some instances the potential economic loss resulting from Sunday prohibition will far outweigh the benefits to be gained in furtherance of the general policy. In addition, a Legislature could decide that the benefits to be gained could be more than outweighed by the costs in terms of fair, even-handed law enforcement due to the difficulty of enforcing some prohibitions. McGowan v. Maryland, supra at 526 (Frankfurter, J.).²³

We are aware of course that in an analogous situation the distinguished Court of Appeals of New York reached a contrary conclusion in People v. Abrahams, supra. However, the nature of the particular statute involved, its legislative history and the context within which the case arose lessen the degree to which it may be considered persuasive.

Abrahams arose less than a year after the same court in People v. Acme Mkts., 37 N.Y.2d 326 (1975), reversed a conviction under the New York “Sunday” law due to a pattern of discriminatory enforcement. Thus, Abrahams was decided in that context as well as a finding of prosecutorial indifference to enforcement of the law. See Simonetti v. Birmingham, 55 Ala. App. 163 (Crim. App.), cert. denied, 294 Ala. 192 (1975). The court also found that the law was flouted regularly by the public.

On the other hand, the record in this case is to the contrary. The statement of agreed facts indicates that the law has been generally respected, and that there has been a general but not uniform pattern of enforcement by the prosecuting authorities. In addition the Abrahams case suggests that the exemptions under the New York law were so numerous that Sunday was a day of rest in name only. Here, on the other hand, to the extent the plaintiff has offered any proof, we cannot conclude that the law does not accomplish its purpose. Thus, it is clear that, here, unlike the statute in New York, the law accomplishes its goal to a substantial degree.

In addition, the New York law invalidated in Abrahams evolved from a format conceived in 1881. In this Commonwealth, however, not only were there studies in 1953,1960 and 1962 (see text supra at 430), but there was a complete revision of the law as a result of the last cited study. Moreover, not only did the New York statute differ in its various provisions from G. L. c. 136, a not inconsequential factor, but the New York court was influenced heavily by local experience in the administration of the statute.²⁴ To the extent both of these factors were critical to the decision in that case, we find that the particular provisions of our statute and our own experience with it do not weigh as heavily on the side of finding constitutional infirmity as they did in New York.²⁵

The underlying legal standard set forth by the New York court was that the exemptions were “utterly lacking in cohesive scheme,” People v. Abrahams, supra at 285.

Whether this imports a different legal standard of review is a matter open to debate. We note that elsewhere the Court of Appeals refers to the familiar standard of judicial review which we utilize here.²⁶ Since each State court must examine a challenged statute in light of its own constitutional requirements (as well, perhaps under the Federal constitutional requirements) on the particular record placed before it, we consider Abrahams to be illuminating but not controlling. It seems clear to us that the substantial differences in history, experience and statutory structure, as well as the record before a court, make each decision one which is the peculiar responsibility of the State court before which such an issue is raised.

The process of balancing the various social and economic factors which influence the provisions of a common day of rest law calls for local legislative judgments as to the desirability, necessity or lack thereof of certain activities. The Constitution requires only that in making these legislative judgments and in conducting any subsequent amendatory process the Legislature have a rational basis for making a judgment. Gallagher, McGowan, and Two Guys explicitly support this view as the appropriate standard.

Thus, it is our task to consider whether the plaintiff has demonstrated a lack of any conceivable basis to the challenged exemptions, particularly (27) and (29) ,²⁷ We conclude that it has not met this burden.

The principles set forth above suggest the ultimate resolution of this case in light of the plaintiff’s two major lines of attack on the facial validity of the statute. The first such attack, that the purpose of the general prohibition in G. L. c. 136, § 5, has been “so altered and obscured by the accumulation of statutory classifications and exemptions under § 6” with such classifications being unrelated to any legitimate State purpose can be disposed of readily.

The obvious State purpose is to provide a uniform day of rest and relaxation. If the exemptions were so numerous in operation as to defeat substantially that goal or if they were either inherently incapable of adequate enforcement or were in fact not being so enforced, see People v. Acme Mkts., supra; Simonetti v. Birmingham, supra, we could assume, without deciding, that there might be substantial merit to the plaintiff’s argument. If this was the case however, the plaintiff has not proved it. Cf. First Nat’l Bank v. Attorney Gen., supra. Instead, all it has succeeded in proving is a general, if not uniform, pattern of compliance and enforcement with the law. It has also succeeded in proving, in the only matters where it did adduce any evidence, that a miniscule percentage of retail outlets come within the specific exemptions. In light of this record we can only conclude that the law even with its forty-nine exemptions accomplishes its purpose in substantial part, that is, to provide a common day of rest. As such, it cannot be said that the exemptions in operation are so numerous as to obscure any legitimate State purpose.

It is true that the entire scheme of objections cannot be called “cohesive.” Our response to that is that logical symmetry is not required under either the State or United States Constitutions, Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra, Commonwealth v. Chamberlain, supra. So long as the particular exemptions have a rational basis consistent with the statutory purposes they will pass constitutional muster.

On this level, the record in the case does not allow us to say that any particular exemptions are entirely without conceivable justification. Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686, 695 (1971).

Two factors must be pointed out in this regard. First, in so far as only thirteen of the forty-nine exemptions apply to retail sales, we question whether the plaintiff has standing to raise the alleged irrationality of the remainder, once it is found that the existence of these others does not destroy the statutory purpose. Supreme Council of the Royal Arcanum v. State Tax Comm’n, 358 Mass. Ill (1970).²⁸

The second factor is that apart from exemptions (27) and (29), on which evidence was produced, the plaintiff has not introduced any evidence as to the operation of the others. Thus, even if it had standing to raise the invalidity of those exemptions beyond the purpose for which we have recognized it, the deficiencies in the record would preclude our finding that the presumption of constitutionality had been overcome. McGowan v. Maryland, supra. See Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 419 (1972) (Hennessey, J., dissenting); Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra. See also note 28, supra.

As to the exemptions relative to retail sales other than those involved in (27) and (29), we see no reason to depart from the reasoning of Gallagher where it was said, “Many of the exceptions in the Massachusetts Sunday Laws are reasonably explainable on their face. Such items as tobaccos, confectioneries, fruits and frozen desserts could have been found by the legislature to be useful in adding to Sunday’s enjoyment; such items as newspapers, milk and bread could have been found to be required to be sold fresh daily. It is conceivable that the legislature believed that the sale of fish and perishable foodstuffs at wholesale would not detract from the atmosphere of the day, while the retail sale of these items would inject the distinctly commercial element that exists during the other six days of the week.” 366 U.S. at 622-623.

Many of the exemptions relating to retail sales in § 6 pass constitutional muster by a similar rationale. For example, exemption (2) allowing food stores employing three or less employees to remain open accounts for the societal need to have such products available on a continuing basis, yet limits the impact on the labor force and the tranquility of the day by restricting the size of the store which may so operate. See State v. S.S. Kresge, Inc., 364 A.2d 868 (Me. 1976). See also Giant of Md. Inc. v. State’s Attorney for Prince George’s County, 267 Md. 501, appeal dismissed, 412 U.S. 915 (1973). Similarly, the Legislature may have reasoned that it was necessary that gasoline could be available on Sunday, to further transportation for recreational purposes, but that other items necessary for a motor vehicle were not needed unless their purchase would facilitate the actual operation of the motor vehicle on that day, thus accounting for exemption (18) allowing the sale of these needs on an emergency basis. Again, the end result is that the plaintiff has not gone beyond the point of bare assertion of irrationality in regard to these exemptions as a means of substantiating its argument. In the absence of more, the presumption of validity prevails.

The record is more adequate, however, concerning exemptions (27) and (29). As previously noted, exemption (27)²⁹ is identical to the clause before the court in Gallagher with the addition of the proviso for personal health and sanitary supplies. In so far as this latter addition is concerned the Legislature may have reasoned that people needed access to such supplies and that stores primarily engaged in selling such supplies would not present a great threat to the public order of the day. Two Guys from Harrison-Allentown, Inc. v. McGinley, supra. The record does nothing to rebut this.

The statement of agreed facts lists items carried by both the plaintiff and stores engaged in the type of trade or commerce in exemption (27). It is clear that many of the items are clearly health and sanitary supplies. It is also clear that many are not.

However, the Legislature may have decided that only certain stores would find it economically viable to remain open with the other restrictions and that within this class the difficulties of enforcement, in so far as the selling of prohibited merchandise is concerned, did not outweigh the public benefit. While the record indicates that stores have not been uniform in their practices, and neither have law enforcement officials, a mere lack of uniformity is not sufficient proof to demonstrate the impossibility of enforcement. Cf. Simonetti v. Birmingham, supra.

In addition, the record supports rather than negates any judgment the Legislature may have made as to the effect of this provision in two ways. The record states that the greater value of items in terms of quantity and sales volume carried by members of the plaintiff class are nonexempt items from which an inference can be drawn that it is economically unviable for such stores to open on Sunday for purposes of selling only the exempted merchandise. The plaintiff has not demonstrated that the stores primarily engaged in selling drugs and health and beauty items are at a similar disadvantage. This factor suggests that the Legislature was aware of the impact of the exemption and so intended it. Cf. Two Guys from Harrison-Allentown, Inc. v. McGinley, supra at 591. The record shows that stores open under exemption (27) generally employ two to four employees whereas members of the plaintiff class may employ 80 to 100 on any given day. While it is true that other members of the plaintiff class may also employ no more than two or three employees, the existence of “some inequality” as a result of the classification is insufficient to strike down the entire statutory scheme. Cf. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 51 (1973). Substantial distinctions between classes may be made with less than mathematical exactitude as long as there is some basis for the classification in the first place. New Orleans v. Dukes, 427 U.S. (1976). The plaintiff has not shown the absence of this basis.

Similar insufficiency in the record precludes any successful attempt to challenge exemption (29)³⁰ as irrational. The statement of agreed facts concedes that many of the items sold by stores which the plaintiff claims have been exempt under exemption (29) are readily distinguishable from items sold by the plaintiff class members. However, the parties differ as to whether such items fall within the exempt class of merchandise. There is nothing in the record suggesting (other than a reference to forty specific stores) how many of these stores are in fact open on Sunday or how many employees are typically employed in any one of these stores. Thus, even if we were judicially to notice that the outlets referred to by the plaintiff were larger than “the quaint Cape Cod tourist shop or the cozy Berkshire County antique store” (which it is argued forms the original basis for the exemption), we cannot say on the facts before us that the two classes are so similar in terms of their impact on the Sunday closing scheme that the distinction between them and the members of the plaintiff class is arbitrary, irrational or invidious. See Vigeant v. Postal Tel. Cable Co., 260 Mass. 335 (1927); Hall-Omar Baking Co. v. Commissioner of Labor & Indus., supra.

The plaintiff’s attack must fail for another reason. Much of the argument in its brief is directed at the impossibility of defining the class of exempt merchandise under exemption (29). However, that argument misapprehends the nature of the classification set forth. The exemption in question is not a blanket exemption for “gifts, souvenirs, antiques, hand crafted goods and art goods,” but for the outlets that sell them, restricting its applicability to stores, “primarily engaged in the sale of such merchandise, or on the premises of a licensed common victualler.” The rationality of the latter finds implicit support in Jewel Cos. v. Burlington, 365 Mass. 274 (1974). In so far as the exemption is concerned, the Legislature may well have concluded that such stores would derive most of their business from both inter- and intra-State tourism, much of which takes place on weekends. Thus, the Legislature well may have concluded that the purposes of the Sunday law are facilitated by allowing such stores to be open. Also, it would not be an unjustifiable conclusion that the harm of requiring such stores to close would outweigh the potential benefits to the vitality of the tourism industry as well as to the desired character of the day.

Finally, it is indeed possible that the Legislature could have determined that, although many retailers sell items which might fall within the class set forth in exemption (29), to permit only those who are primarily engaged in such trades to open on Sunday would serve both the purpose of having them available to the consuming public on Sunday and at the same time limit the nature and amount of commercial activity attendant on their sale. Cf. Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra. See also Two Guys from Harrison-Allentown, Inc. v. McGinley, supra. Thus, we cannot conclude on this record that the operation of exemption (29) effectuates an irrational, arbitrary or invidious discrimination against the plaintiff class.

4. Conclusion. Our purpose in this opinion is not to commend or condemn the legislative policies which have resulted in the evolution of G. L. c. 136, §§ 5, 6, or to commend the current statute as a model of clarity and precision.³¹ The current statute may be viewed as having faults within it. However, these faults are not equivalent to constitutional infirmity. Our task has been to ascertain whether the classifications violate the constitutional rights of the plaintiff. Our examination of both the law and the record has led us to the conclusion that they do not.

A judgment shall be entered accordingly.

So ordered.

2 See, e.g., Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961), rev’g 176 F. Supp. 466 (D. Mass. 1959).

3 See, e.g., People v. Abrahams, 40 N.Y.2d 277 (1976); Genesco, Inc. v. J.C. Penney Co., 313 So. 2d 20 (Miss. 1975).

4 Compare People v. Abrahams, supra; Rutledge v. Gaylord’s, Inc., 233 Ga. 694 (1975), with Bill Dyer Supply Co. v. State, 255 Ark. 613 (1973); Genesco, Inc. v. J.C. Penney Co., supra.

5 The plaintiff requested injunctive relief again on December 15, but the single justice declined to take any action.

6 The plaintiff’s initial complaint indicated that a sizeable percentage of its annual sales volume is done during the period in question.

7 We note that the record reveals a substantial divergence of opinion between the Governor of the Commonwealth and the Attorney General of the Commonwealth, local law enforcement personnel, retailers, labor unions and others not only as to the validity of G. L. c. 136, §§ 5, 6, but also as to whether the law ought to continue to be enforced pending resolution of the plaintiff’s claim by the courts. These and other factors, including the recent precedent in sister States, arguably favoring the plaintiff’s claim, fully justify the wisdom of the single justice in assisting the parties to prepare the record and to reserve and report the matter without decision to the full court.

8 The relevant statutory provisions are reproduced in an appendix to this opinion.

9 The record refers to specific stores in the health and beauty aid and gift store category.

10 In fact, the record shows that seven CVS stores, which are typical of the health and beauty aid stores, are presently defendants in cases for violations of the statute.

The plaintiff has attempted to strengthen its position by arguing that the irrationality of the classification is illustrated by the pattern of discriminatory enforcement which exists. However, the record shows only that the laws have been generally but not universally enforced. This is not sufficient proof to sustain an allegation of discriminatory enforcement as measured by cases such as Simonetti v. Birmingham, 55 Ala. App. 163 (Crim. App.), cert. denied, 294 Ala. 192 (1975), and People v. Acme Mkts., 37 N.Y.2d 326 (1975). Cf. Oyler v. Boles, 368 U.S. 448 (1962). Moreover, the record shows that the chief law enforcement officer of the Commonwealth, the Attorney General, directed continuing enforcement of the law even after the hearing before the single justice. Any discrimination which may be shown does not derive from the actions of State officials nor has it been shown to be other than as a result of different municipal policies. This latter factor does not implicate the equal protection clause. McGowan v. Maryland, 366 U.S. 420 (1961). Thus on this record the plaintiff’s argument receives no additional support from the allegations.

It should also be noted here that the record before the single justice at least indicated that the law here was not observed or generally was ineffective, thus bringing this case closer to the facts of People v. Abra-hams, 40 N.Y.2d 277 (1976). However, the facts now before the full court indicate differently.

11 We do not consider whether a proper class was certified or whether Zayre Corp. is a fit class representative. Neither do we consider the propriety of intervening in pending criminal prosecutions, see Norcisa v. Selectmen of Provincetown, 368 Mass. 161 (1975), both because the Attorney General has not urged this and because of the importance of the question presented. Cf. Sosna v. Iowa, 419 U.S. 393, 396-397 & n.3 (1975).

12 “Indeed since 1900 few yearly legislative sessions have failed to add at least one new provision concerning Sunday activities to the Massachusetts statutes.”

13 See Annot., 57 A.L.R.2d 975 (1958), for collection of cases where similar challenges were made in State and Federal courts prior to McGowan.

14 See St. 1963, c. 230; St. 1964, c. 9; St. 1964, c. 216; St. 1965, c. 243; St. 1965, c. 370; St. 1965, c. 488; St. 1967, c. 311; St. 1968, c. 340; St. 1968, c. 392; St. 1969, c. 267; St. 1970, c. 76; St. 1970, c. 309; St. 1972, c. 675; St. 1974, c. 219; St. 1975, c. 697.

¹⁵

G. L. c. 136, § 6 (2), (10), (17), (18), (20), (24)-(30), (47).

¹⁶

G. L. c. 136, § 6 (31)-(35), (49).

¹⁷

G. L. c. 136, § 6 (11)-(16), (19).

¹⁸

G. L. c. 136, § 6 (22), (36), (42), (43).

¹⁹

G. L. c. 136, § 6 (45), (46), (48).

²⁰

G. L. c. 136, §6 (3)-(5), (41).

21 See, e.g., G. L. c. 136, §6(1) uncompensated work; (6) activities requiring continuous production; (8), (23), exemption for those observing Saturday sabbath; (40) work incidental to religious exercise and some legal work.

22 There has been a suggestion in some of our prior decisions that, in regard to the equal protection concept, the Federal decisions may reflect a standard of review less restrictive than that required by the Massachusetts Declaration of Rights. See Corning Glass Works v. Ann & Hope, Inc., 363 Mass. 409, 416 (1973); Hutcheson v. Director of Civil Serv., 361 Mass. 480, 490 (1972). It is not necessary here to explore such possible distinction as the common day of rest cases previously decided by this court apply the same standard as the Federal courts. See Jewel Cos. v. Burlington, 365 Mass. 274 (1974); Commonwealth v. Chamberlain, 343 Mass. 49 (1961). See also Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 700 (1962), where we stated: “If a rational basis may be discerned for distinguishing between businesses which in many respects are similar, Sunday closing laws which exempt some such businesses are not unconstitutional because of the exemptions. McGowan v. Maryland....”

23 It is arguable that a State Supreme Court reviewing a State statute should or could exercise more latitude in evaluating the efficacy of legislative judgments than should a Federal court in the same position for reasons of comity. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911). However, the underlying rationales, discussed supra for such deference in the Federal courts, are equally applicable within the confines of our own system. See our prior comment, note 22, supra.

24 The importance of both of these factors is well illustrated in Judge Fuchsberg’s concurring opinion where he details the difficulty of defining the application of the New York statute to laundries. 40 N.Y.2d at 288. Cf. Commonwealth v. Chamberlain, supra. See St. 1967, c. 311 (exempting coin-operated, self-service laundries).

25 It should also be noted that New York, unlike Massachusetts, did not have the benefit of a Supreme Court ruling on the constitutional propriety of its basic statutory scheme.

26 “Respect for legislative wisdom and prerogatives as well as a proper sense of judicial power compels deference to enactments which are rationally related to the intended purpose. Consequently unconstitutionality on the grounds of irrationality is the weakest ground for striking down a statute and is seldom used.” People v. Abrahams, supra at 285.

27 The case of Morey v. Doud, 354 U.S. 457 (1957), suggested at least a lesser if not a shifted burden in a challenge to a closed ended classification such as the exemptions in G. L. c. 136, § 6. However, the plaintiff can draw no support from the case anymore as it has been overruled in New Orleans v. Dukes, supra.

28 For example, we do not see how the plaintiff has standing to raise the fact that a lawyer may only prepare for trial, but not do other work. Even if it does, the Legislature could have concluded that, given the opening of court Monday morning and the necessities of trial preparation, the potential harm from forbidding such activity outweighed the benefit to the public good from its prohibition, in view of the necessity to operate a court system with adequately prepared lawyers.

Moreover, the plaintiff points out that we may see an X-rated movie on Sunday and buy a newspaper, but may not purchase a magazine or Bible. While this is true, it should be noted that a person may also see “My Fair Lady” or “The Sound of Music” on Sunday. More importantly, the Legislature could have reasoned in regard to movies that their allowance would add to, rather than detract from, the character of the day. In addition, in so far as there is a special provision for newspapers, the Legislature could have reasoned that they must be sold on a daily basis without exception to preserve their value, but the same was not necessary for magazines or books. If such distinctions are irrational in operation, the record does not show it. Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., supra at 623. Similar rationales could be devised for the other “inconsistencies and contradictions” pointed out by the plaintiff, but in regard to most, nothing in the record demonstrates the correctness of the plaintiff’s contentions.

29 “(27) The retail sale of drugs and medicines and the retail sale or rental of mechanical appliances prescribed by physicians or surgeons, and the retail sale of personal health and sanitary supplies.”

30 “ (29) The sale, at retail, of gifts, souvenirs, antiques, hand crafted goods and art goods, in an establishment primarily engaged in the sale of such merchandise, or on the premises of a licensed common victualler.” G. L. c. 136, § 6 (29), as appearing in St. 1962, c. 616, § 2.

31 The record indicates that Massachusetts businesses may suffer an economic disadvantage due to the fact that the surrounding States of New York, New Hampshire, Connecticut and Rhode Island (in part, see R.I. Gen. Laws '§ 5-23-2 [Supp. 1976]) do not, as of now, have valid and enforceable common day of rest laws. Such economic factors do not affect the resolution of the constitutional issues in this case; rather these are factors which only the Legislature may properly consider.