dissenting:
I respectfully dissent from the conclusion reached by the majority. It will not be denied that House Bill No. 45 of the Fortieth General Assembly, the subject of judicial scrutiny in the instant case, was and is special legislation. By this enactment the General Assembly singled out one segment of business of our state, to the exclusion of all others, a segment which inherently has no more to do with the public peace, health, morals and safety than the sale of “automobile accessories * * * towing or wrecking” which activities are specifically exempted from the provisions of the Act. To me the definition of a “motor vehicle” in Section 1 of the Act is most artificial and clearly discriminatory. Why this definition “a self-propelled vehicle” excluded “farm tractors and other machines and tools used in the production, harvesting and care of farm products” we may only conjecture. The cases which have approved Sunday Closing laws for automobile dealers had no such exception in the definition of a motor vehicle.
Under this exception dealer “A” having a place of business directly across the street from dealer “B” could remain open for business on the Sabbath day because he had for sale farm tractors, trucks, machines and tools used in the production, harvesting and care of farm products. At the same time dealer “A” might have on his premises a dozen or a hundred motor vehicles as defined in the limited language of the 1955 Act. It will not do to say that dealer “A” cannot sell one of his motor vehicles on Sunday, for he is permitted to remain open, attract customers by advertising and otherwise make contacts with the buying public, while dealer “B” (directly across the street) who does not have a farm tractor or dump truck on his lot must remain closed. We would be naive indeed if we believed that trucks and motor vehicles, even under the limited definition of the Act, are not used in the “harvesting and care of farm *201products.” These may be sold because of their relationship to agriculture throughout the vast farming districts of this state. By the terms of this Act the sale of these machines is not offensive to the peace, morals, health, welfare and safety of the people of this state, but that of a shiny new automobile is. When the General Assembly enacts a statute which includes all engaged in the industry then we may with propriety determine whether we will continue to follow Rosenbaum v. Denver, 102 Colo. 530, and the recent pronouncement in Gundaker Central Motors, Inc. v. Gassert (N.J.), 127 A. (2d) 566. We “cannot close our eyes to reality” as stated in the majority opinion. I am convinced that the exception in Section 1 of the 1955 enactment renders the act discriminatory and offensive to the provisions of the constitution prohibiting special legislation.
I am satisfied that the case of Denver v. Schmid is directly in point. There Denver adopted an ordinance closing barber shops on Sunday and holidays from which prohibition “beauty parlors” were expressly excluded. There this court, speaking through Mr. Justice Burke, said: “That this ordinance is unreasonably arbitrary appears to us self-evident. * * * It does not apply to a particular trade or occupation because it is common knowledge that much of the work of barbershops is also performed in beauty parlors which are expressly excepted.” The ordinance there considered was declared void. See, also, Allen v. Colorado Springs, 101 Colo. 498, 75 P. (2d) 141; Mergen v. Denver, 46 Colo. 385, 104 Pac. 399; Denver v. Bach, 26 Colo. 530, 58 Pac. 1089.
Section 25 of Article 5 of the Colorado Constitution prohibits the General Assembly from passing special legislation. “Where a general law can be made applicable, no special law shall be enacted.” So declares the fundamental law of this Commonwealth. Why make fish of one dealer in motor vehicles and fowl of another? The Constitution says it cannot be done. The act here considered arbitrarily imposes upon dealers in certain com*202modities disabilities on Sunday, and yet allows others who are in the same general field and business to • be free from such disabilities on the first day of the week. There should be some substantial reason back of the prohibition on one business or avocation and not upon another which to all intents and purposes is the same as the one on which the statute operates. Denver v. Bach, supra.
In brief, I am of the opinion that the 1955 Act unduly prefers a dealer in motor vehicles used for one purpose over the identical vehicles used for another purpose. Such being my conclusion, in view of the several decisions in this state to the effect that where a statute, criminal in nature, admits of two constructions, we must adopt the construction most favorable to the person charged with the violation of the law, I feel that the Act is discriminatory, and hence invalid.
When the General Assembly enacts a general closing law with reference to all dealers engaged in this field it will be time to consider the other matters involved in this case. These are some of the reasons why I think the act violative of the fundamentals on which our decisions must be predicated.