(dissenting) :
I believe the three employee classification is unconstitutional and would reverse.
While the State may constitutionally limit business activity on Sunday, all persons similarly situated must be af*322fected equally by the statute. State v. McGee, 237 N. C. 633, 75 S. E. (2d) 783 (1953). Code Section 53-1-50 blatantly discriminates against larger grocery stores in favor of smaller ones. It is obvious that a small grocery or convenience store can operate adequately with three or less employees. It is equally clear that a large supermarket cannot efficiently serve its customers and guard against shoplifting with only three employees. The statute therefore has the effect of treating persons engaged in the same business differently.
The majority concludes the statute furthers the overall purpose of Sunday closing laws by minimizing commercial activity and providing a uniform day of rest for all citizens. I disagree. A large store which attempts to remain open on Sunday and comply with the statute will provide substandard service to its customers and be an easy target for shoplifters.
The rationale offered by the majority fails to convince me that any reasonable justification exists to treat small grocery stores more favorably than large ones. Such an arbitrary classification, devoid of any rational basis, is precisely the type of discrimination proscribed by the equal protection clause.
In Piggly Wiggly v. City of Jacksonville, 336 So. (2d) 1078 (Ala. 1976), the Alabama Court concluded that a four-employee classification was without reasonable justification and therefore unconstitutional. Similarly, a Nebraska statute which permitted stores with two or less persons to remain open on Sunday was held to violate the equal protection clause. Terry Carpenter, Inc. v. Wood, 177 Neb. 515, 129 N. W. (2d) 475 (1964). In Bertera's Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A. (2d) 197 (1967), a statute permitting grocery stores employing less than ten people to stay open on Sunday was held unconstitutional. I concur in the decisions of these courts and would hold that portion of Code Section 53-1-50 violative of the *323equal protection clause of the State and Federal Constitutions.
In any event, appellant Smith is not -guilty of violating the Blue Laws because two separate businesses existed under the roof of Ingles Grocery Store. Both a grocery store and a delicatessen were in operation, with three employees working at each business in compliance with the statute. Mr. Smith had procured two separate business licenses from the City of Easley, one for a grocery store and one for a restaurant. Had the two businesses been conducted in separate buildings, .there would -have been no alleged violation of the Blue Laws. I do not believe the City of Easley can benefit by collecting two license fees and Mr. Smith be penalized because he chose to operate two separate businesses under one roof.
Moreover, the trial judge committed reversible error when he charged the jury on the facts. The judge stated:
“Therefore, I will charge you that it is a violation of the statutory laws of this state for a grocery store, which has a bakery, restaurant or delicatessen as part of that store, to be open and doing business on Sunday where more than three persons, including the owners or proprietors, are employed at any one time. If a bakery, restaurant, delicatessen or similar operation is located within a grocery store and operates simultaneously with the operation of the grocery store, it shall not be considered as a separate business.”
(Tr. pages 27-28).
In my view, the judge’s charge relates to the ultimate issue in the case and usurps the jury’s role. Therefore, I would hold it to be an impermissible charge on the facts.
I would reverse.