dissenting.
G.S. 18A-33 (b) reads in pertinent part as follows:
“ . . . [T]he governing bodies of all municipalities and counties in North Carolina shall have, and they are hereby vested with, full power and authority to regulate and prohibit the sale of malt beverages and/or wine (fortified or unfortified) from 1:00 P.M. on each Sunday until 7:00 A.M. on the following Monday. Provided, however, that municipalities and counties shall have no authority under this subsection to regulate or prohibit sales after 1:00 P.M. on Sundays by establishments having a permit issued under G.S. 18A-30 (2) and (4).”
Pursuant to the authority contained in the foregoing statute, the Town of Gibsonville adopted an ordinance providing in pertinent part as follows: “The sale of malt beverages and wine (fortified or unfortified) from 1:00 P.M. on each Sunday until 7:00 A.M. on the following Monday is prohibited. ...” However, in order to comply with the proviso contained in G.S. 18A-33(b) the ordinance is not enforced against establishments having a permit issued under G.S. 18A-30(2) and (4), that is, holders of “brown bagging” permits. Plaintiffs contend this amounts to an unconstitutional discrimination against them and bring this action to remove the discrimination.
We have held in numerous cases that the observance of Sunday as a day of rest has a reasonable relationship to the public peace, welfare, safety and morals, and that such requirement rests within the police power of the State — a power often delegated by the State to its municipalities. Clark’s Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E. 2d 364 (1964); State v. Trantham, 230 N.C. 641, 55 S.E. 2d 198 (1949).
In enacting statutes or ordinances for the observance of Sunday, the State, or a municipality to which the power has been delegated, may determine and classify the pursuits, occupations or businesses to be excluded from Sunday operations; and if the classifications are based upon reasonable distinctions and *533have some reasonable relationship to the public peace, welfare, safety and morals, they will be upheld. State v. McGee, 237 N.C. 633, 75 S.E. 2d 783 (1953); State v. Towery, 239 N.C. 274, 79 S.E. 2d 513 (1954). “The one requirement is that the ordinance must affect all persons similarly situated or engaged in the same business without discrimination.” State v. Trantham, supra. Conversely, if the classifications are based upon unreasonable distinctions and have no reasonable relationship to the public peace, welfare, safety and morals, they violate due process and deny equal protection of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution and Article I, section 19 of the Constitution of North Carolina.
Involved in this case is the business of selling beer and wine for off-premises consumption. As I view it, no legitimate reason appears why the Sunday sale of beer and wine for off-premises consumption by the holder of a “brown bagging” permit tends to “sustain life, promote health, and advance the enjoyment of Sunday as a day of rest,” Charles Stores v. Tucker, 263 N.C. 710, 140 S.E. 2d 370 (1965), so as to come within the permissible Sunday pursuits, while the Sunday sale of beer and wine for off-premises consumption by a grocery store or any other lawful business establishment profanes the Sabbath and offends the purposes for which the statute or ordinance was enacted so as to come within the impermissible Sunday pursuits. Such classification, in my opinion, is founded upon unreasonable distinctions, discriminates against those engaged in the sale of wine and beer for off-premises consumption who are not holders of “brown bagging” permits, and has no reasonable relation to the objective sought by enactment of the statute or ordinance. Insofar as observance of the Sabbath is concerned, what is the reasonable distinction between selling for off-premises consumption a six-pack of beer in a brown bagging establishment and selling for off-premises consumption the same six-pack in a grocery store? I fail to see it.
It necessarily follows that insofar as G.S. 18A-33(b), and the Gibsonville ordinance by the manner of its enforcement, attempt to put in different classifications the sale of wine and beer for off-premises consumption by those who do and those who do not hold brown bagging permits — the one allowed and the other prohibited — said statute and discriminatory enforcement of the ordinance are unconstitutional and should not be upheld. Businesses which are essentially the same — selling beer *534and wine for off-premises consumption — should not be treated in law as though they are different. Discrimination exists when, under the same conditions, persons engaged in the same business are subjected to different restrictions and permitted to enjoy different privileges. Such discrimination impairs equality of protection and denies due process of law which is vouchsafed for all men by both State and Federal Constitutions.
For the reasons stated I would affirm the decision of the Court of Appeals and hold unconstitutional that portion of G.S. 18A-33(b) which requires discriminatory enforcement of the ordinance against Sunday sales of wine and beer for off-premises consumption. Gibsonville could then enforce its ordinance without discrimination or repeal it, according to the wishes of its citizens.