(concurring).
I dissent from the majority’s refusal to invalidate the Sunday Trading Law’s exemption of stores employing less than ten persons.1 I agree that the exemption for family-operated businesses is unconstitutional.2 Because, in my view, both invalid exceptions are severable,3 I would affirm the decree of the chancellor.4
What is the justification for exempting small stores from the Sunday Trading Law? The majority, while devoting much attention to the propriety of drawing the line at a particular size (less than ten employees) fails to properly consider the relationship to the purposes of this *331law of discrimination based solely on number of employees. I adhere to the view, expressed in my concurring opinion in Bertera’s Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 55, 236 A.2d 197, 215 (1967), that there is no rational relationship between, the arbitrary economic distinction created by the exception and the purposes of the Sunday Trading Law.
As noted in that opinion:
“It is one thing to say, as the Supreme Court in Two Guys did say, that it is ‘within the power of the legislature to have concluded that these businesses [discount department stores] were particularly disrupting the intended atmosphere of the day because of the great volume of motor traffic attracted, the danger of their competitors also opening on Sunday and their large number of employees.’ 366 U.S. at 591, 81 S.Ct. 1140. But it is quite another thing to use this rationale as a lever to give a competitive boost to smaller establishments. For the Legislature to decide that supermarkets, as well as discount stores, disrupt the desired Sunday atmosphere is to legislate within the rationale of Two Guys. Yet, when the statute exempts the corner grocery store from its prohibition, we inject the element of economic discrimination into our Sunday closing law, and thus create an entirely different situation from that faced by the Supreme Court in Two Guys.”
428 Pa. at 55-56,236 A.2d at 216.
Indeed, the majority today agrees that, “[e]conomic discrimination, in and of itself, is not a legitimate legislative objective. Economic discrimination can be tolerated constitutionally only when it is incidental to some other legitimate legislative objective.”
Ante, at 213.
Despite this recognition, the majority fails to demonstrate the relation of the exemption for small stores to *332any other legislative objective. If the purpose of the Sunday Trading Laws is to curtail traffic and noise, see Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 591, 81 S.Ct. 1135, 1140, 6 L.Ed.2d 551 (1961), then the exclusion permitting only small retail stores to operate on Sunday has no relevance to this objective. It is not the number of workers employed at a store or their family relationship that determines whether a shopper will give up his Sunday rest. Rather, the needs of the shopper and his expectation of finding products he desires shape his decision. Although the anticipation that the items sought can be purchased may be affected by the number of stores open on Sunday, it is unaffected by the number of employees working at the store or their family ties to one another. Clearly, the considerations which require us to strike down the family store exemption dictate that the small store exemption is also impermissible. The Commonwealth is not free to prevent some businesses, chosen by an arbitrarily discriminatory formula, from operating while permitting others to remain open.
The exemption cannot be justified as legitimate legislative line-drawing. Because the classification of stores solely according to the number of employees is manifestly irrational, the location of the line is irrelevant.
Here the Legislature chose to differentiate solely on a ground unrelated to its objective. And a statutory discrimination that has no rational basis plainly cannot withstand an equal protection challenge. Hence, the exceptions are constitutionally impermissible.
JONES, C. J., joins in this concurring opinion.. Although the Court was faced with this issue in Bertera’s Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A.2d 197 (1967), that case is not controlling because there was no opinion of the court. Justice Musmanno filed an opinion announcing the result. Chief Justice Bell and Mr. Justice Roberts wrote concerring opinions. Mr. Justice (now Chief Justice) Jones and Mr. Justice Eagen concurred in the result. Mr. Justice O’Brien filed a dissenting opinion. Mr. Justice Cohen filed a separate opinion.
. Consequently, I join in Part II of the Opinion of the Court.
. Bertera’s Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 55, 236 A.2d 197, 210 (1967); see State Board of Chiropractic Examiners v. Life Fellowship, 441 Pa. 293, 298-300, 272 A.2d 478, 481 (1971).
. Because appellant only challenges the validity of the statutory exemptions, none of the opinions in this case are to be read as expressing any view on the constitutionality vel non of the Sunday Trading Laws.