concurring specially.
It is my opinion that Sections 3 and 5 of "The Common Day of Rest Act of 1974” are unconstitutional. I find no constitutional infirmity in the remainder of the Act, and because of the elaborate severability section of the Act (Sec. 12), I would hold only Sections 3 and 5 to be unconstitutional.
Section 3 provides: "Any person operating a business who, on both the two (2) consecutive days of Saturday and Sunday, sells, offers for sale, or shall compel, force or oblige his employees to sell any item, except those businesses, activities and items exempted from the provisions of this Act, shall be guilty of a misdemeanor. Each item illegally sold shall constitute a separate offense.”
It is clear that the seller of a non-exempt item on Saturday does not commit a crime unless he sells another non-exempt item on the succeeding Sunday. And a seller of a non-exempt item on Sunday does not commit a crime, unless he has sold another non-exempt item on the preceding Saturday. This section does not prohibit the sale of non-exempt items on either Saturday or Sunday. What it attempts to prohibit, and seeks to make a criminal act, is the sale of two or more non-exempt items on two successive days, Saturday and Sunday. The prohibition is not against the sale of the items per se, but the prohibition is against the sale of the items on two successive days.
The state through this section of the Act has said that one can sell an item on Saturday, and that is not a crime; but if one sells another item like it on Sunday, the second sale is a criminal act; and the second sale on Sunday, in and of itself not a criminal act, converts the first sale on the preceding Saturday into a criminal act.
The state argues that this is a valid exercise of the state’s police power. I disagree.
The police power of the state is not unlimited, and when the General Assembly enacts a statute that invokes the police power, as this statute does, it is the duty of the courts to declare the statute unconstitutional if the police *700power limits are exceeded.
The police power of the state is constitutionally inhibited by Georgia’s Due Process Clause (Code Ann. § 2-103), by Georgia’s Equal Protection Clause (Code Ann. § 2-102), and by Georgia’s Police Power Clause (Code Ann. § 2-2502). The latter provides: "The exercise of the police power of the State shall never be abridged, nor so construed as to permit the conduct of business in such manner as to infringe the equal rights of others, or the general well being of the State.”
My view is that each of these clauses individually and all three of them in concert render Section 3 of the Act unconstitutional. Georgia’s Constitution also very plainly says: "Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the Judiciary shall so declare them.” Code Ann. § 2-402.
Section 3 of the Act, because of the numerous exemptions contained in other parts of the Act, is applicable only to retail merchants. It creates a crime out of two transactions, if made on successive days, which are individually non-criminal. The crime created by this statute, and which is so stringently limited in its application by all of the exemptions set forth in other parts of the Act, deprives retail merchants of their property rights and their liberty without due process of law as that concept is used in Georgia’s Constitution. This criminal prohibition and its limited intended application explicitly stated in the Act violate basic values of property and liberty contained in the substantive concept, as I understand it, of due process of law. Further, this created crime, when examined in the context of the entire Act, has no reasonable relationship to the expressed purpose of the Act: ". . . To promote the health, recreation, welfare, repose and religious liberty of each individual of this state.”
Section 3 of the Act operates directly upon and infringes the constitutional rights of property and liberty possessed by retail merchants, it bears no rational relationship to the stated purpose of the Act, and it encroaches upon personal liberty in the guise of promoting a state interest which is quite subordinate to *701individual rights of property and liberty. Section 3 therefore exceeds the state’s police power limits in that it contravenes the Due Process Clause of the Georgia Constitution.
For similar reasons Section 3 also violates the Equal Protection Clause and the Police Power Clause. It establishes a crime applicable to one "Classification,” retail merchants. This classification, considered in the over-all context of the Act with its many exemptions, bears no rational relationship to the establishment of a day of rest for the people of Georgia. In short, the Act, under the guise of establishing a day of rest, is nothing more and nothing less than a "Saturday Closing or Sunday Closing of Retail Businesses Act.”
Section 5 of the Act makes the operation of a non-exempt business on both of two days, Saturday and Sunday, a "public nuisance.” The operation of such a business on either Saturday or Sunday is not a nuisance, but the operation of the same business on the two consecutive days is declared by Section 5 to be a nuisance subject to being enjoined by the district attorney or any other person or persons.
The General Assembly has declared that a business operated on Saturday but not on Sunday is not a nuisance; if it is operated on Sunday but not on Saturday, it is not a nuisance; but if it is operated on both Saturday and Sunday, then it is a "public nuisance.” This declaration exceeds the limits of the state’s police power, and, for the same reasons given with respect to Section 3, it violates the Due Process, Equal Protection, and Police Power Clauses of the Georgia Constitution.
For the reasons stated, I concur in the judgment rendered by the court.