The opinion
TYSON, Judge
(concurring).
The proof offered by the City of Birmingham in support of its complaint against the appellant is, in my judgment, tenuous at best. The officer in question came in on Sunday afternoon while a “shift change” was in progress. One line of customers was being closed, and the other customers directed to the lines under other persons. The officer did not determine sufficiently, in my judgment, who were and were not “employees” in the instant cause.
Equally significant are the admissions on the part of the City of Birmingham “of selective law enforcement” due to a shortage of man power. The details of this are set forth in the comprehensive opinion of my distinguished brother, Judge Harris, in this cause. I join in his call upon the Legislature of Alabama to further define the meaning of the terms “employee” and “four employees” allowable under Act 431. See Caiola v. City of Birmingham, 288 Ala. 486 , 262 So.2d 602 .
In the instant cause the appellant was clearly licensed as a “convenience store” for the operation of such a store on Sunday. Further, he had a legitimately licensed pharmacy open and under the supervision of a registered pharmacist during business hours. Both aspects of this operation had been approved by appropriate inspection.
It seems incongruous for one roof to have a label “drug store” and sell the items enumerated in my brother’s opinion, and yet next door deny the protection of the law to another roof labeled “grocery store” with four or less employees and a licensed pharmacy therein.
I therefore join in the reversal and rendering of this cause.