The opinion
CATES, Presiding Judge
(dissenting) :
I can’t see how two wrongs make a right. Because a city doesn’t have enough policemen should admitted law breakers go *179 free? The fact that the city winks at its concessionaires does not confer a liberty on others to break a State law. Simonetti is patently in violation of the basic blue law, Code 1940, T. 14, § 420. This case does not involve the constitutionality thereof.
Martin Luther postulated the connubial immiscibility of Theology and Law. Today we collide with so-called “felt necessity” as expressed by our Legislature in Act No. 431, approved by the Governor, September 12, 1966.
This statute, unlike most others, contains a declaration of a legislative finding and policy. The heart of this declaration appears to be (1) a public necessity to buy groceries on Sunday in Jefferson County and (2) that no more than four employees can simultaneously be on duty in a store selling groceries. Such specious classification is facially discriminatory.
Nowhere does this loophole statute mention “convenience stores.” However, in Caiola v. City of Birmingham, 288 Ala. 486 , 262 So.2d 602 , such a distinction was legitimized. The opinion therein fails, among other things, to recognize the danger of shoplifting and robbery in a store with only four employees on duty. The rationale of Caiola, supra, should not prevail today.
Even if the enforcement of a law is selective, it does not necessarily follow that this is unconstitutionally invidious discrimination. Selective or random enforcement may occur when the meaning or constitutionality of the law is in doubt and a test case is needed.
Such enforcement may also be justified when examples are sought in order to deter other violators, as part of a bona fide pattern of general enforcement so that general compliance will follow. Only when the enforcement discriminates against the persons prosecuted, without any intention to follow up with general enforcement against others, may a constitutional violation be found.
On this record I cannot see the malicious and uneven enforcement denounced in Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 .
Birmingham is a city of over 300,000 persons. We are not advised as to what the census of 1970 shows as to the number of retail establishments. The testimony of the chief of police and others that law enforcement is a vast undertaking of a Sisphyean magnitude is no reason to put in the principle of desuetude. Otherwise, laws such as those against illegal liquors and drugs (e. g., marihuana) could well be said to be repealed because of the impossibility of enforcement. Law stands as man’s moral monument.
To show that the police are picking on him the defendant has the burden, inter alia, to show that the constabulary are acting with malice toward him. See People v. Utica Daw’s Drug Co., 16 A.D.2d 12 , 225 N.Y.S.2d 128 ; and Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 , 81 S.Ct. 1135 , 6 L.Ed.2d 551 . That burden I don’t think Simonetti has satisfied. He is entitled to equal protection of law, not protection from law.
With all the hue and cry for law and order our police must, in cases of non violent misdemeanors and ordinance breaches, necessarily rely on citizens to help, either by lawful arrests or by making sworn complaints. But an officer who sees a law broken is duty bound to bring the culprit to book.
I respectfully dissent.
“State v. Cranston, 59 Idaho 561 , 85 P.2d 682 (1938):
“If the Sunday closing law is unwise, antiquated, unenforced or unenforceable (all non-judicial questions) the legislature is the place for those to go who are dissatisfied and there disclose their grievances. More appeals to the lawmaking bodies for amendments and repeals of what are deemed by many to be ineffective or bad laws and less urgency *180 upon courts to modify or hold invalid such laws would go a long way toward the orderly and acceptable administration of all laws.”