(dissenting).
The Court of Criminal Appeals was established and its jurisdiction fixed by Act No. 987, Acts of Alabama 1969. Section 10 of that act states in part, “The decisions of the supreme court shall govern the holdings and decisions of the courts of appeals,
The Supreme Court of Alabama has upheld both Title 14, Section 420, Code of Alabama 1940 and Act No. 431, Acts of Alabama 1966, Second Special Session, approved September 12, 1966, the Sunday closing laws relating to the state generally and to counties having a population over 500,000 or more, respectively. Lane v. McFadyen, 259 Ala. 205, 66 So.2d 83; Caiola v. City of Birmingham, 288 Ala. 486, 262 So.2d 602.
In the case of Reynolds v. McFadyen, 259 Ala. 235, 66 So.2d 89, Justice Lawson, speaking for the Supreme Court, held that the petitioner in that case was not entitled to be discharged on habeas corpus on the basis of parol proof going to show the arbitrary and discriminatory manner in which the Sunday closing laws of the city of Mobile were administered by the law enforcement officials of that city.
That Court has also held that the legislative classification which includes grocery stores is not arbitrary even though it may result in some inequities. Langan v. Mobile Winn-Dixie, Inc., 277 Ala. 583, 173 So.2d 573.
The sole question before this court, therefore is whether there has been an unconstitutional application of the Birmingham city ordinance enacted pursuant to Act No. 431, supra.
Much evidence was adduced to the effect that various types of business establishments in Birmingham remained open on Sunday, i. e. variety type drug stores, bowling alleys, and concession stands at the municipal airport, city zoo, Vulcan Park and municipal golf courses. However, there was no substantial showing of mass violations of the ordinance by grocery stores and supermarkets nor a complete failure by city authorities to enforce the ordinance against grocery stores and supermarkets. To the contrary, evidence was introduced as to surveys or investigations being made around Birmingham which showed a general compliance with the Sunday closing ordinance by grocery stores. Convenience stores with no more than four employees are exempt under the ordinance and under Act No. 431, supra, and were not considered.
The Alabama Supreme Court in a recent lengthy opinion by Justice Bloodworth held that failure by the state to enforce truck weight statutes over a long period of time did not invalidate those statutes nor prevent law enforcement officers from beginning to enforce such long neglected laws. Department of Public Safety v. Freeman Ready-Mix Co., 292 Ala. 380, 295 So.2d 242.
There is bound to be some inequity in enforcement of any statute which is designed to regulate the conduct of a large number of people. To follow the reasoning of the majority in this case would invalidate any conviction on a showing by a defendant that the police did not arrest, or were not staffed to arrest, every single person violating a statute similar in nature to the one under which he was charged.
I am not convinced from the facts of the instant case that the enforcement complained of was malicious in nature or amounted to such an invidious discrimination between grocery store operators as to justify this court in departing from established precedent to judicially rewrite the Sunday closing laws.
CATES, P. J., joins in this dissent.