The opinion
DeCARLO, Judge
(concurring) :
My learned brother in writing for a majority of this court did not find contrary to Caiola v. City of Birmingham, 288 Ala. 486 , 262 So.2d 602 ; Reynolds v. McFadyen, 259 Ala. 235 , 66 So.2d 89 ; Lane v. McFadyen, 259 Ala. 205 , 66 So.2d 83 , or Langan v. Mobile Winn-Dixie, Inc., 277 Ala. 583 , 173 So.2d 573 . He found a discrimination on behalf of the local authorities in their unequal application of the law.
The majority opinion points to the case of John Lawhon Furniture Company, in Jefferson County, wherein Federal Judge Sam Pointer enjoined the Jefferson County Sheriff’s Department from initiating arrests on its own against the furniture company.
The facts of the Lawhon matter are not as persuasive as those involved here. Simonetti’s arrest did not result from a complaint, but solely because an officer singled him out. In Lawhon no attempt at compliance with the Sunday Blue Law was shown.
To avoid prosecution, Simonetti’s only recourse would have been to close the store until the shift change was completed. I don’t believe the legislature intended for this law to be enforced in such a stringent manner.
In Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 , the petitioner had been convicted of violating an ordinance that made it a misdemeanor to maintain a laundry without a license from a board of supervisors.
Although the U. S. Supreme Court did not hold the statute void, it did condemn its application and held the board had discriminated against petitioner and other people similarly situated by denying them permits while granting them to others.
The ordinance in Yick Wo, supra, required the exercise of some discrimination by the licensing authority, and the Supreme Court held that the supervisors had abused that discretion.
The ordinance sought to be enforced against Simonetti, by the City of Birmingham, leaves no room for an exercise of discretion via selective enforcement.
We have seen by the testimony presented that the law was not generally enforced but enforced on a complaint basis only. Admittedly, appellant’s arrest did not even result from a complaint.
Hence, we have a similar discretion being abused by the City, when they arbitrarily administer an ordinance without any general scheme of enforcement.
A serious or heinous crime is not involved here. What is involved is a victimless crime, resulting from a violation of the City’s Sunday Closing Law. Simonetti was engaged in a lawful grocery business just as the petitioner in Yick Wo, supra, was engaged in laundering. There is a distinction between extending protection from discriminatory enforcement to appellant and extending it to those obviously violating our drug and liquor laws.
The conclusion that the City’s action must be even-handed seems inescapable and though there is no right to violate a city ordinance, there is a right to equal treatment in its enforcement. City of Covington v. Gausepohl, 250 Ky. 323 , 62 S.W.2d 1040 .
*181 We agree that selective enforcement per se is not constitutionally impermissible, however, when that selective enforcement is designed to prosecute a person without any intention of general enforcement, then it is a violation. People v. Utica Daw’s Drug Co., 16 A.D.2d 12 , 225 N.Y.S.2d 128 .
Selective enforcement implies discriminatory enforcement. It cannot be overlooked that an acquittal of Simonetti would not bar a future conviction, where enforcement on a non-discriminatory basis is undertaken.
The majority opinion did not intimate the Sunday Closing Law was unconstitutional nor did it find this ordinance should not be enforced against appellant because of desuetude or laxity. On the contrary, it criticized the uneven application of the law.
Without question, the majority holding invited a definitive interpretation of the law by our legislature and a general enforcement of the ordinance by the City— nothing more.