Dissenting-Opinion
Bobbitt, J.I dissent from the majority opinion for the following, reasons:
The question which is determinative in this, case is whether or not the Act in question violates Article 4, §22 of the.Constitution of Indiana,1 because it imposes *328upon motor vehicle dealers as defined in the Act2 a greater penalty for engaging in their usual business on Sunday, than is imposed by the general Sunday closing law3 on all persons over 14 years of age who engage in their usual vocation, or perform “common labor” on Sunday.
I heartily endorse the principle of the general Sunday closing law which enforces one day of rest out of seven. We have had such a law in Indiana since 1818 (Acts of 1817, ch. 57), and its constitutionality has been firmly established. State v. Hogreiver (1899), 152 Ind. 652, 659, 660, 53 N. E. 921, 45 L. R. A. 504; Carr v. State (1911), 175 Ind. 241, 249, 93 N. E. 1071, 32 L. R. A. (N. S.) 1190.
I have no quarrel with the statements of law in the majority opinion, but the questions here presented cannot be decided on the basis of the reasoning applicable to a general Sunday closing law.
The general Sunday closing law (Acts 1941, ch. 75, §1, p. 191, being §10-4301, Burns’ 1956 Replacement) also applies to the sale of automobiles at retail. Hence, we are not here faced with a first enactment of a penal statute relating to Sunday closing as was true in Gundaker Central Motors v. Gassert (1956), 23 N. J. 71, 127 A. 2d 566. Here in Indiana there was already in effect a law, applying to all labor save that which falls within the two exceptions in the statute, prohibiting work on Sunday and imposing a fine of not less than $1 nor more than $10 for violation thereof. The legislature then passed a new and separate Act (the *329one here in question) applying only to automobile dealers who sell at retail and imposing upon them, for engaging in their usual occupation on Sunday, a special penalty consisting of a fine of not to exceed $100 to which may be added imprisonment not to exceed ten days, with additional fines and prison sentences for second and subsequent offenses.
It appears without successful dispute, that the purpose of both Acts (the general Sunday closing law, and the one here in question) is to compel the observance of Sunday as a day of rest. The offense under each Act is working on Sunday, and the common right involved is the same in both cases.
Is it any more of a crime for an automobile dealer to work on Sunday than it is for a real estate dealer, nurseryman, grocer, farm implement dealer, supermarket operator, automobile accessory dealer, or a person engaged in “common labor,” or anyone else? The subject and purpose of both Acts is the same, and the act constituting the violation (working on Sunday) is the same. This is not true in embezzlement, burglary or arson. In these neither the purpose nor the act constituting the crime is the same.4 Is there any fair and reasonable basis for crimes of different degrees for working on Sunday?
It is asserted that ch. 222 of the Acts of 1957, §2, p. 490, being §10-4305, Burns’ 1956 Replacement (Cum. Supp.) is a general law because it operates alike upon all within a defined class. This does not necessarily make it a general law, as this Court has repeatedly held:
*330“It is. well settled that a law is not necessarily: general merely because it operates upon all,within a defined class, but back of that fact must be found' a substantial reason why it is made to operate bnly upon such class. Classifications, when allowable, can only be made upon natural, intrinsic or eopstitutionáí distinctions, and special privileges, peculiar disabilitiés, or burdensome conditions in the exercise of a common right, may not be conferred-or imposed upon a class of persons arbitrarily selected from the general body of citizens standing in the same relation to the subject-matter of the law. Kraus v. Lehman (1908), post, 408 [170 Ind. 408, 83 N. E. 714]; Bedford Quarries Co. v. Bough (1907), 168 Ind. 671 [80 N. E. 529, 14 L. R. A. (N. S.) 418]; Town of Longview v. City of Crawfordsville (1905), 164 Ind. 117 [73 N. E. 78], 68 L. R. A. 622.” Armstrong v. State (1908), 170 Ind. 188, 193, 84 N. E. 3, 4, 15 L. R. A. (N. S.) 646. See also: Henderson v. Antonacci (Fla., 1952), 62 So. 2d 5, 9.
What natural, intrinsic or constitutional distinction--is there between automobile sales on Sunday and'.the sale of any article in the conduct of the businesses-'above mentioned? The question furnishes its own'answer .-■
The Act here in question cannot be upheld upótí ány religious principle or belief because of our constitutional provisions' requiring a complete separation of " Church and State.5 This country was founded upon the 'principle that all men should have the right to wbrship God according to the dictates of their own consciences; and this includes the right of non-worship' as • well as the right:to determine that the Sabbath shall, bb;.some day other- than Sunday. Prior- to the adoption .-of our Federal Constitution some of the colonies had -laws requiring people to attend church services on the Sabbath. *331However,.after the adoption of the First Amendment to the ¡Constitution of the United States, such laws were invalid on the ground that the State was .intermingling, in, .the:affairs of the. church, and Sunday closing laws are now sustained under the police power as health and. sanitary ..-measures for the general welfare, on the ground ,of .necessity for. periodical relaxation .and rest from,,mental and physical toil, Carr v. State, supra (1911), 175 Ind. 241, 261, 93 N. E. 1071, 32. L. R. A. (N. S.) 1190; Henderson v. Antonacci, supra (Fla., 1952), 62 So. 2d 5, 8; McKaig v. Kansas City (1953), 363 Mo. 1033, 256 S. W. 2d 815, 816, and’cases there cited. See also cases cited in Judge Achor’s opinion under "First.”
The principle applicable here is ably seated in The People v. Norvell (1938), 368 Ill. 325, 327, 13 N. E. 2d 960, 961, as follows:
“The privilege of a citizen to use his property according to his own will' is not only a liberty but a property ..right, subject only to such restraints as the common welfare may require, and while new burdens may be placed on the property when the public welfare demands it, this power is limited to enactment's having direct reference to the public health, comfort, safety, morals and welfare.” See also; Mosco v. Dunbar (1957), 135 Colo. 172, 196, 309 P. 2d 581, 593 (Dissenting Opinion).
If the, statute here in question is to be upheld,, it must be because it is a valid exercise of the police power, for the protection of the public health, morals, safety or welfare. Kirtley v. State (1949), 227 Ind. 175, 181, 84 N. E. 2d 712.
I . cap think of no reason, and none has been suggested by appellant or stated in the majority opinion, why the health, morals, safety or welfare of the public would be protected to any greater degree than is already ‘provided by the general Sunday closing law, by *332imposing a heavier penalty upon automobile dealers, who keep their places of business open on Sunday, than is imposed upon dealers in all other commodities, except works of charity and necessity, for doing the same thing. Certainly, it is no greater crime for automobile dealers to deprive their employees of a day of rest and relaxation than it is for automobile accessory dealers, real estate dealers, supermarkets, nurserymen, filling station operators or the operators of any other legitimate business to do likewise.
Yet, automobile dealers are, under the Act here in question, subject to special and much greater penalties than are imposed upon dealers in other commodities. The imposition of greater penalties upon automobile dealers as defined in the Act, in my opinion, does not concern the public health, morals, safety or welfare.
If one purpose of the Act, as Judge Achor’s opinion seems to indicate, is to abate a nuisance, the remedy is misconceived. If any dealer creates a nuisance or disturbs the peace by the use of loud speakers or public address systems, those affected thereby may abate the same by a proper action. Sunday closing laws cannot be sustained upon this ground. Neither can the reason for a Sunday closing law be extended to include the theory that it provides a day for “moral development and worship,” as the majority opinion would do. If this is a ground upon which Sunday closing laws may be sustained, then it certainly is no greater crime for an automobile dealer to deprive his employees of these opportunities than it is for employers in any other business to force their employees to work on Sunday. The purpose is the same and the result identical.
Christianity cannot be legislated. It can only come from the development of man’s inner spirit, and laws *333when motivated by and enacted for such purpose can only serve as a weapon for intolerance.
The question of the validity of any contracts which might have been made on Sunday is not an issue in this case. Since this question was not considered by the trial court, it is improperly considered here. See cases cited in Note (4) of majority opinion.
Since the majority opinion has attempted to decide this question, I feel compelled to add that, if contracts for the sale of automobiles are executed on Sunday, such fact would not be grounds for sustaining the law here in question. The general public certainly has no interest in a contract between an automobile dealer and his customers. The only persons affected thereby are the parties to the contract.
Many other things, including amateur baseball games, midget and stock car auto races, and even churches create traffic hazards on Sunday. (The writer of this dissent was the author of a majority opinion of this Court,6 holding that the building of a church could not be prohibited because it would allegedly cause a traffic hoyará.) No reasonable person can say that it is a crime in any greater degree for automobile dealers to add to the traffic congestion on Sunday than it is for any other business or sport to do so. I doubt if the noise made by autmobile sales lots is any greater than that occasioned by midget and stock car races which are held on Sunday in many places in Indiana.
A careful study of the record in this case convinces me that the primary purpose of the Act in question is not to promote the general health and welfare, but to serve the selfish interests of a group of automobile *334dealer,?;,yiho; would, by the-aid-of an invalid. -Act--of -.the legislature, force- acceptance of the business practices of. one, group .upon all persons engaged in .the.business of selling, automobiles at retail, and thus further extend the > Ipnjg ¡-strangling fingers of bureaucracy,,to. control another,.legitimate..business. ... ,
“If the law prohibits that which is-harmless (itself, or requires that to be done which does not tend to promote the health, comfort, morality, safety or welfare of society, it will be an unauthorized exercise of power, and-upon proper presentation it is the duty of the courts to declare such a law void. The People v. Steele, supra [(1907), 231 Ill. 340, 83 N. E. 236, 14 L. R. A. (N. S.) 361], p. 345. Weisenberger v. State, supra [(1921), 202, Ind. 424, 175 N. E. 238], p. 429. People v. Weiner, supra [(1915), 271 Ill. 74, 110 N. E. 870, L. R. A. 1916C 775], p. 78. Liggett Co. v. Baldrige, 278 U. S. 105, 73 L. Ed. 204.” Kirtley v. State, supra (1949), 227 Ind. 175, 181, 84 N. E. 2d 712, 714.
■Automobile dealers are already subject to.the same penalty, as .-are other persons engaged in..their usual occupation, on Sunday, and the only purpose of the .Act fixing -.a- greater and special penalty on them for so doing is. to place a further and additional restraint upon their. individual freedom and private initiative,.
My, observation has- been that the competitiye spirit is. np greater in the automobile business than it is in the grocery, real estate, farm implement,, electrical appliance, auto .accessory, filling station, and many other, businesses, nor is there anything in the record here "to justify any different conclusion. Special sections in' the Sunday editions of our local newspapers advertising real estate for sale on Sunday, attest to the “severity” of competition in this business.
As a rule few cars are purchased unless the family has' had an opportunity to see and examiné them, and *335in.many, instances Sunday afternoon is the only-time when the family, as a uni-t, is free to shop for-a new car: This same condition applies likewise'' to the purchase of a home. It is easy to understand then, that on a recent rainy Sunday in Indianapolis more than 15,000 people inspected new homes.7
If the majority opinion is to be the law in Indiana, then there is nothing to prevent the next session of the legislature, -from fixing special and higher penalties on real estate dealers and thus prohibiting the ■ sale and display-of houses on Sunday, thereby depriving many families of the opportunity of inspecting their' future homes together. Both an automobile and a,home represent substantial investments. In most families it is probably- the largest single expenditure in the li,y,es of the people involved. This being'true, it is 'only; reasonable that the family desire to make this purchase together.' By the majority opinion many are deprived of the opportunity to purchase their family aiitomobile together. There are many more families buying; automobiles than there are automobile salesmen.
As the Supreme Court of Missouri said in McKaig v. Kansas City, supra (1953), 363 Mo. 1033, 1037, 256 S. W. 2d 815, 817, as follows:
“The test of a special law is the appropriateness of its provisions to the objects that it excludes; It-is not, therefore, what a law includes, that makes it special, but what it excludes.”
Also, that Court, in considering the validity of an ordinance- of the City of Kansas City which prohibited any dealer from keeping open his place of business for the purpose of selling and trading automobiles on. Sunday and six national holidays, further said, at pages 817, 818 of 256 S. W. 2d, as follows: .
*336“The ordinance before us excludes all persons engaged in the business of selling all commodities and all merchandise except automobiles. In other words, it excludes all persons engaged in the business of selling television sets, radios, phonographs, refrigerators, washing machines, electric and gas ranges and heaters, trailers, golf equipment, furniture, hardware, clothing and many other articles.
“Do not the citizens of Kansas City who sell the above-named articles of merchandise need the same rest on Sundays as the persons engaged in the business of selling automobiles?
“Do not the customers of the people who sell the above-named articles of merchandise need the same rest on Sundays as the customers who buy from an automobile dealer?
“Is not the police surveillance the same at the place where the above-named articles of merchandise are sold as the place where automobiles are sold?
“Of course, these questions answer themselves.
“There is no reasonable basis for singling out those people who are engaged in the business of selling automobiles and excluding those people who sell the above enumerated articles of merchandise who are permitted to keep open their places of business on Sundays and the six named holidays.”
This, in my opinion, seems to be sound and logical reasoning and is a complete answer to the question in the case at bar.
Moreover, this Court has also spoken regarding a law which attempted to fix a greater penalty on barbers who operated their shops on Sunday, than that provided in the general Sunday closing law for similar offenses when committed by persons who operate other businesses.
In Armstrong v. State, supra (1908), 170 Ind. 188, at page 192, 84 N. E. 3, 4, 15 L. R. A. (N. S.) 646, this Court, speaking through Judge Montgomery, said:
*337“But the act in question merely makes the desecration of the Sabbath by a barber a special crime, and to that affixes punishment different from that imposed upon others for like offenses, and clearly falls within the inhibition of §22, article 4, of the Constitution of this State.” Citing authorities.
That is exactly what the Act here in question does to automobile retail dealers, and for the reasons above stated, it clearly violates the provisions of Art. 4, §22 of the Constitution of Indiana.
All persons have a common right to engage in lawful pursuits of their choice and, in my opinion, automobile dealers stand in no different relation to the subject-matter of the Act here in question than do persons engaged in any other lawful business.
I heartily agree that every person should have a day of rest as our general Sunday law provides, but I do not believe that the legislature can fix one penalty for one person who fails to observe Sunday as a day of rest, and a different penalty for another. We cannot, except by arbitrary and unreasonable Acts of the legislature, have different classes of crimes for failure to observe the Sabbath. In my opinion it is no greater crime for one person to desecrate the Sabbath than it is for another to do so.
It is true, as Judge Achor states in the majority opinion, that statutes and ordinances pertaining to Sunday sales of automobiles have been held constitutional in the States of Colorado, Michigan, Nebraska and New Jersey. However, it appears from an examination of the cases so holding that the question of the law or ordinance being a special one for the punishment of crimes, as prohibited by Article 4, §22 of our State Constitution, was not an issue in any one of them. It is my opinion that these cases do not support the *338position of the majority opinion on the question raised under Article 4, §22, supra, in the case at bar.
I wquid-- affirm the; j u-dgment of the trial court;
Note.-Reported in 149 N. E. 2d 808.
. The relevant part of Art. 4, §22 of the Constitution of Indiana is as follows:
“The General Assembly shall not pass local or special laws, in any of the following enumerated cases, that is to say :
For the punishment of crimes and misdemeanors; . . .”
. Acts 1957, ch. 222, p. 490, being §§10-4304, 10-4305, Burns’ 1956 Replacement (Cum. Supp.).
. Acts 1941, ch. 75, §1, p. 191, being §10-4301, Burns’ 1956 Replacement.
. See: Sections 10-1701 — 10-1717, Burns’ 1956 Replacement; Sections 10-701 — 10-706, Burns’ 1956 Replacement; Sections 10-301 — 10-309, Burns’ 1956 Replacement.
. Article 1, §2 of the Constitution of Indiana provides that: “All men shall be secured in their- natural right' to worship Almighty God, according to the dictates of their own. cohscienfces.”
See also: First Amendment of the-United States Constitution.
. Bd. of Zoning Ap. of Decatur v. Jehovah’s Witnesses (1954), 233 Ind. 83, 117 N. E. 2d 115.
. The Indianapolis Star, April 28, 1958, page 15.