(dissenting).
I respectfully dissent and would, therefore, reverse and remand the case to the District Court with directions to enjoin any discrimination whatsoever in the enforcement of the statute amongst all those pursuing the same or different business or occupations not within the statutory exceptions.
The courts of Georgia are the proper courts to pass upon the meaning of a Georgia statute (including any exceptions thereto) and, assuming that the Georgia courts have reasonably interpreted a constitutional statute — and there is no contention to the contrary in this case — no obstacle exists to the fair enforcement of such a statute. It is then up to the authorities charged with the enforcement of State laws to enforce them fairly, as interpreted, until their repeal.
While it is generally true that one is not entitled to complain of non-enforcement as to others when a given statute is sought to be enforced against him, it is also true that invidious, purposeful selectivity or discrimination in the enforcement of a statute cannot be squared with the Fourteenth Amendment’s mandate of Equal Protection of the Law.
An examination of the statute herein involved reveals that by its terms it applies to “any person who shall pursue his business or the work of his ordinary calling.” But for its exemption of “works of necessity or charity,” it admits of no classifications whatever. Consequently, the statute provides no basis for. any differential enforcement outside the area of works of necessity or charity. Accordingly, no support can be found in the statute for enforcement thereof as to one type of business or occupation and non-enforcement as to other covered businesses or occupations. In my view, enforcement in such a manner contravenes the rights of those against whom it is so enforced to equal protection under the law as guaranteed by the Fourteenth Amendment and should be enjoined.
*255While prosecuting authorities have the right, and, indeed, in many instances the duty, to exercise some judgment and discretion in the enforcement of statutes, it is not their prerogative to carve out exceptions to statutes of universal or general application,1 particularly, when such exceptions have been previously explicitly rejected by the courts of the state enacting the statute.
The contention was advanced by appellants in support of their motion to enlarge the injunction already issued by the district court that certain businesses and occupations, which the courts of Georgia have held to be subject to the Sunday work prohibition and without the ambit of the statutory exceptions, are being permitted to be conducted on Sunday with impunity while the statute is still being enforced as to petitioners, retail merchants. If this be the case, and the record as presently before us indicates that it is, petitioners are entitled to injunctive relief.
The right to engage in one’s regular business or occupation is fundamental to our political heritage and our economic philosophy of free enterprise. Any regulation of that right should be not only reasonable on its face in light of the governmental purpose of such regulation, but should be applied with serupulous equality. It, therefore, appears less than just to close the courthouse doors to appellants on the ground that they have no standing to seek relief from unequal treatment since those in the same business or occupation are subject to the same unequal treatment. To so hold, it seems, reveals a basic misconception of the phrase “similarly situated.”
Without the excepted classifications, all persons, all businesses, all occupations and all activities are similarly situated in the contemplation of the statute.2
Thus, those “similarly situated” in this case are all persons pursuing their regular business or calling, other than in the spheres of charity or necessity. The statute applies to “any person” and, therefore, those “similarly situated,” for purposes of this statute, are “all persons” and are those entitled to be treated alike. The fact that a retail merchant is more “similarly situated” with other retail merchants, for example, than he is with a florist or pet shop operator, does not compel the conclusion that the retail merchant and the florist and the pet shop operator are not “similarly situated” so far as this statute is concerned. To hold otherwise is to read Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) too narrowly.
. In Zayre of Georgia, Inc. v. City of Atlanta, 276 F.Supp. 892 (N.D.Ga.1967) Judge Lewis R. Morgan, now of this Court, wrote:
“McGowan and Two Guys make it clear that a state can constitutionally effect and maintain Sunday closing laws. These cases also make it clear that the state can choose to create reasonable exceptions, either by legislation or judicial action; however, this Court is of the opinion that neither case stands for the proposition that municipalities may choose to carve out exceptions via selective enforcement of the state statute.”
. The Supreme Court of Georgia in Hennington v. State, 90 Ga. 396, 17 S.E. 1009 (1892), aff'd sub nom. Hennington v. State of Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166 (1896) made the following comments concerning the statute.
“It applies alike to all business, vocations, and occupations. It concerns the general policy of the state and all interests, whether agricultural, mechanical, manufacturing, commercial, professional, or what not. It is universal, and rigidly impartial, making no discrimination whatever for or against commerce or anything else. It puts no obstacle in the way of trade or its operations which is not encountered by every other class of worldly business or employment. Nontrading days are nonbusiness days, generally, and nonworking days for all the people. Trade may go when anything else can. It stops only when, and so long as, there is a complete suspension of worldly enterprise and activity. It is required to take no rest which is not appointed for everything else to take.”