(dissenting). I dissent for the reason that, in my opinion, there has been purposeful discrimination against the appellant in violation of his rights under the Fourteenth Amendment to the Constitution of the United States. Appellant was convicted of violating Ark. Stats. § 41-3802 by keeping his grocery store open on Sundays. The statute provides: “Every person who shall, on Sunday, keep open any store or retail any goods, wares and merchandise, or keep open any dram shop or grocery, or who shall keep the doors of the same so as to afford ingrees [ingress] or egrees [egress], or retail or sell any spirits or wine, shall, on conviction thereof, be fined in any sum not less than twenty-five [$25.00] dollars, nor more than one hundred dollars [$100.00].” Thus, it will be seen that it is a violation of the law to keep open any store or retail any goods, wares and merchandise on Sunday.
Amendment No. Fourteen to the Constitution of the United States provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. The sole question here is whether the appellant has been denied that protection. Tbe statute prohibiting the sale on Sunday of goods, wares and merchandise, on its face, is fair, and no contention is made that it is invalid ; but the manner of enforcement is in violation of the Fourteenth Amendment. Although a law is fair on' its face and impartial in appearance, yet, if it is applied and administered in an unequal manner it is within the prohibition of the Constitution.
In Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, the court said: “The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution.” Although the statute prohibits the sale of any goods, wares or merchandise on Sundays, the law enforcement officers are permitting other places of business to remain open and are allowing the barter and sale of almost every known kind of merchandise, except groceries.
It was held in Tarrance v. Florida, 188 U. S. 519, 23 S. Ct. 402, 47 L. Ed. 572, that an actual discrimination is as potential in creating a denial of equal rights as a discrimination made by law. A large latitude is allowed to the states for classification upon any reasonable basis and what is reasonable is a question of practical details into which fiction cannot enter. Kidd v. Alabama, 188 U. S. 730, 23 S. Ct. 401, 47 L. Ed. 669. In the absence of any showing of reasonable basis for the discrimination by the administrative officers, as here, the court has no right to conjure up possible situations which might justify the discrimination. Mayflower Farms v. Ten Eyck, 297 U. S. 266, 56 S. Ct. 457, 80 L. Ed. 675. Discrimina-tions are not to be supported by mere fanciful conjecture and cannot stand as reasonable if they offend the plain standards of common sense. “That is to say, mere difference is not enough: the attempted classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.’ Gulf, Colorado & Santa, Fe Ry. v. Ellis, 165 U. S. 150, 155, 17 S. Ct. 255, 41 L. Ed. 666. Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision. ’ ’ Hartford Steam Boiler Inspection and Insurance Company v. Harrison, 301 U. S. 459, 57 S. Ct. 838, 81 L. Ed. 1223.
Drug stores are permitted to stay open on Sunday and it is a matter of common knowledge that they sell a large assortment of merchandise. In fact, variety or department stores would be more appropriate names; they sell all kinds of goods, including home appliances and wearing apparel. We know that sporting goods stores, also allowed to do business on Sunday, sell guns and ammunition, fishing tackle, boats and motors, shoes, boots, clothing, stoves, electrical appliances, and almost everything a person needs for hunting, fishing and outdoor activities. Bakeries are permitted to remain open, and we know that they sell practically nothing that is not sold in grocery stores. Certainly there is nothing obnoxious about the grocery business that would justify discrimination ; in fact, such discrimination as is shown here cannot be justified on any reasonable basis. And although classification is permitted without denying the equal protection of the laws, a classification based on no adequate reason is invalid. Kansas City Southern Railway Co. v. Road Improvement District No. 6 of Little River County, Arkansas, 41 S. Ct. 604, 256 U. S. 658, 65 L. Ed. 1151, reversing 139 Ark. 424, 215 S. W. 656, 217 S. W. 773. The Supreme Court of the United States said, in Power Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. Ed. 1165, reversing 169 Ark. 748, 276 S. W. 599: ‘ ‘ The clause in the Fourteenth Amendment forbidding a State to deny to any person within its jurisdiction the equal protection of the laws is a pledge of the protection of equal laws, Truax v. Corrigan, 257 U. S. 312, 333, 42 S. Ct. 124, 66 L. Ed. 254; Atchison, Topeka & Santa Fe Ry. Co. v. Vosburg, 238 U. S. 56, 59, 35 S. Ct. 675, 59 L. Ed. 1119, and extends as well to corporate as to natural persons, Smyth v. Ames, 169 U. S. 466, 522, 18 S. Ct. 418, 42 L. Ed. 819; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 154, 17 S. Ct. 255, 41 L. Ed. 666; Santa Clara County v. Southern Pacific R. R. Co., 118 U. S. 394, 396, 6 S. Ct. 1132, 30 L. Ed. 118. It does not prevent a State from adjusting its legislation to differences in situation or forbid classification in that connection; but it does require that the classification be not arbitrary but based on a real and substantial difference having a reasonable relation to the subject of the particular legislation. Truax v. Corrigan, supra, p. 337; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, supra, 155; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78; Ft. Smith Light & Power Co. v. Board of Improvement, ante, p. 387.”
The legislature of the state has not seen fit to discriminate against grocery stores by placing them in a category separate and apart from other mercantile establishments, and provide that they must remain closed on Sundays while other places of business are permitted to remain open; and for the administrative officers of the state to take it upon themselves to inflict such discrimination is clearly contrary to the plain provisions of the Fourteenth Amendment. Hence, I respectfully dissent.