# Crown Kosher Super Market of Mass., Inc. v. Gallagher > District Court, D. Massachusetts · July 20, 1959 · 176 F. Supp. 466 URL: https://www.frixlaw.com/law-library/cases/9638308 ## Case - **Full name:** 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:** District Court, D. Massachusetts - **Decided:** July 20, 1959 - **Citations:** 176 F. Supp. 466 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** McCarthy, Magruder, Wood-Bury - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., 366 U.S. 617 (1961). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638308 ## Opinion text On Petition for Rehearing PER CURIAM. We have before us a paper wherein the Attorney General for the Commonwealth of Massachusetts comes “and moves that a new trial be granted in the above entitled matter”. This may seem somewhat curious because, although an appearance was filed on behalf of the Governor and the Attorney General, the Attorney General has not appeared for the sole defendant, nor does he purport to act for him. We must assume, however, that in effect the Commonwealth intervened as a party defendant pursuant to its undoubted right to do so under 28 U.S.C. § 2284 (2), and that the failure to file a formal petition for intervention was just an administrative omission. Thus we take it in the present movant’s favor that he has standing to seek a new trial. Ground 1 of the motion for a new trial is that: “The evidence submitted is insufficient as a matter of law to sustain findings of fact.” Ground 2 reads: “The findings of fact made by the Court are inconsistent with such evidence as was submitted.” These grounds are of course important if true. But it must be remembered that in an equity case the court is the trier of the facts. It is the *493 court which must weigh the testimony and other evidence, observe the demeanor of the witnesses, and find the facts. It is abundantly clear that there is evidence to support the findings of fact, and the majority of the court are content to abide by those findings on the evidence submitted. Ground No. 3 complains of the court’s finding that most of the facts were stipulated by the parties, whereas the stipulation actually was limited to the tenets of the Orthodox Jewish faith and did not relate to particular facts affecting the petitioners. This asserted ground for a new trial is patently absurd, in the face of an examination of the stipulations of fact signed by the movant’s attorney, especially the supplementary stipulation. Ground No. 7, in which it is stated that the “evidence clearly shows that the meat was not washed on Sunday”, is based upon a clear misstatement of the court’s finding that “The inspector comes * * on Sunday for the washing of any meat from animals slaughtered on the previous Thursday which is on hand.” [Italics added.] In any event, this is a tempest in a teapot concerning a very minor matter. The findings attacked by grounds numbered 4, 5, 6 and 8 are supported by substantial credible testimony, by the stipulations of fact, and by the exhibits, just as is the finding that 95 per cent of Crown Market’s stock is kosher. Ground No. 9 objects to the statement in the court’s opinion that the plaintiff customers and plaintiff rabbis cannot, by any act of shopping at the corporate plaintiff’s store or by inspecting it, violate the Sunday law. It was stipulated that the plaintiff customers were Orthodox Jews; the rabbis, needless to say, are orthodox. These persons are squarely exempted from the Sunday law by c. 136, § 6, even as construed in Commonwealth v. Starr, 1887, 144 Mass. 359 , 11 N.E. 533 . Ground No. 10 objects that the judgment is invalid because the majority opinion interpreted the Massachusetts Sunday law in a manner contrary to the interpretation placed upon it by the state courts. The court was bound to accept as its premise the interpretations put upon the Sunday law by the Supreme Judicial Court, and it did so. In fact, at the oral argument before us we understood mov-ant to contend that all the plaintiffs were within the exception contained in § 6; but the court was obliged to accept the contrary holding of the Starr case, supra. The majority did reject, which it had the right to do, the characterization of the statute in Commonwealth v. Has, 1877, 122 Mass. 40 as being merely a police measure designed to preserve a day of rest. We rejected that characterization as sporadic in the state decisions and unsound on the face of the statute. It is also to be noted that the Supreme Judicial Court has never had occasion to pass on the federal constitutional questions presented in this case. Ground No. 11 objects that there is some inconsistency between the court’s decree, which holds the statute unconsti' tutional merely as applied to the petitioners in this case, and the court’s opinion, which states that the statute violates the Federal Constitution because it was a statute respecting an establishment of religion. This objection is based upon a tortured reading of one phrase of the opinion torn out of context. It is apparent that the only question argued or considered was the alleged unconstitutionality of the statute as applied to these complaining persons. It seems hardly necessary to answer the objection contained in ground 12 of the motion that the decree entered by this court “has the effect of preferring members of the orthodox Jewish faith to members of any other religious sect.” This objection ignores, among other things, the fact that the court held that these plaintiffs were unconstitutionally discriminated against. We can only knock out that which we find to be unconstitutionally discriminatory; we cannot go *494 further and legislate a wholly even balance between the competing interests. Ground No. 14 objects that the decree purports “to restrain only a local police chief and does not extend to a State official”, whereas under 28 U.S.C. § 2281 the power of a three-judge court is limited to restraining the action “of any officer of such State in the enforcement or execution of such statute”. This objection is insubstantial in view of the answer and stipulation, both of which conceded that the defendant police chief did and would enforce the state law. Browder v. Gayle, D.C.M.D.Ala.1956, 142 F. Supp. 707 , affirmed 1956, 352 U.S. 903 , 77 S.Ct. 145 , 1 L.Ed.2d 114 . Besides, this question is probably rendered moot by the Attorney General’s intervention as a party defendant. Grounds 13 and 15 may be discussed together. In ground 13 it is objected that “Additional evidence is available as indicated in the minority opinion to establish that the corporate plaintiff in the present proceeding was actually a party in State proceedings and therefore is es-topped to obtain the relief requested in the present proceeding.” More generally, in ground 15 “the Attorney General seeks a new trial for purposes of clarifying and elucidating further the conflicting factual situation described in the minority opinion.” The State’s titling of an indictment brought against “Harold Chernock d/b/a Crown Market” cannot be laid at the door either of Chernock or of the corporation. Further, the plaintiff Crown Market is certainly a corporation, whereas, as the answer admits, the state prosecution and conviction were solely of the individual Chernock. See also Browder v. Gayle, supra. The auxiliary civil action in the state courts never reached the merits before its dismissal as moot. Moreover, grounds 13 and 15 are both insufficient in failing to indicate what clarifying evidence could be introduced at a new trial, unless the only evidence is that described in the dissenting opinion. Assuming that it is so, the movant has wholly failed to demonstrate either that the failure to introduce such evidence was excusable or, more important, that any new evidence is available which would affect the result. It may be that the case might have been presented to us differently if another had been in charge of defending it. But we must act on the evidence presented to us in an adversary proceeding, not on matters dehors the record found in an ex parte investigation. Webster Eisenlohr, Inc. v. Kalodner, 3 Cir., 1944, 145 F.2d 316 , certiorari denied 1945, 325 U.S. 867 , 65 S.Ct. 1404 , 89 L.Ed. 1986 . An order will be entered denying the motion for a new trial. MCCARTHY, District Judge, dissents from the denial of the motion for a new trial, and reserves the right to file a memorandum at a later date. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638308. Public record. Not legal advice.