dissenting.
The basic question posed by this appeal is accurately stated in the majority opinion as follows: “The ordinance prohibits the sale or offering for sale within the city on Sunday of 'any goods, wares or merchandise,’ except as expressly permitted by the ordinance. It *672does not refer to or apply to sales of real property. The plaintiff in this action does not contend that the ordinance discriminates unconstitutionally against it by reason of the provisions authorizing sales on Sunday of certain types of 'goods, wares and merchandise' other than mobile homes. Its contention is that by an ordinance, otherwise valid, a city may not prohibit the selling or offering for sale on Sunday of mobile homes, by a general prohibition of the selling or offering for sale of 'goods, wares and merchandise,’ if the city does not also prohibit the selling or offering for sale on Sunday of 'conventional homes’; that is, homes so affixed to land as to become real property. This is the only question presented by this appeal which has not previously been determined by this Court.” Elsewhere in the majority opinion the question is stated in these words: “The determinative question is whether the legislative body could reasonably conclude that the customary practices and procedures followed in selling mobile homes, not yet located where they are to be used as homes, are substantially more likely to impair Sunday as a day of general rest and relaxation than are the customary practices and procedures followed in selling homes already built upon the lots on which their owners will live in them.”
Pertinent portions of the ordinance in question and the essential allegations of the complaint are accurately stated in the majority opinion. The demurrer admits the truth of these allegations. It is my view that the demurrer should be overruled, the temporary order restraining enforcement of the ordinance against plaintiff continued until the final hearing, and, if plaintiff’s allegations are sustained by proof upon the trial, defendant should be permanently restrained from the discriminatory enforcement of said ordinance against this plaintiff.
Requiring the observance of Sunday as a day of rest has a reasonable relationship to the public peace, welfare, safety and morals, and therefore rests within the police power of the State — a power delegated by the State to its municipalities. Charles Stores v. Tucker, 263 N.C. 710, 140 S.E. 2d 370; Clark’s Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E. 2d 364; State v. Trantham, 230 N.C. 641, 55 S.E. 2d 198.
In enacting ordinances for the observance of Sunday, a municipality 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 have 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; *673State v. Towery, 239 N.C. 274, 79 S.E. 2d 513. “The one requirement is that the ordinance must affect all persons similarly situated or engaged in the same business without discrimination.” State v. Tran-tham, 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 Constitution of the United States and Article I, Section 17, of the Constitution of North Carolina.
Involved in this case is the business of selling homes. As I view it, no legitimate reason appears why the sale of conventional homes tends to “sustain life, promote health, and advance the enjoyment of Sunday as a day of rest” (Charles Stores v. Tucker, supra) so as to come within the permissible Sunday pursuits, while the sale of mobile homes profanes the Sabbath and offends the purposes for which the 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 mobile homes, and has no reasonable relation to the stated objective of the ordinance. Hence, insofar as the ordinance attempts to put the sale of mobile homes and the sale of conventional homes in different classifications for enforcement purposes — the one prohibited and the other allowed — it is unconstitutional and should not be upheld. Businesses which are essentially the same (selling homes) must 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 by both State and Federal Constitutions.
Furthermore, plaintiff has had no opportunity to support its allegations with evidence. So far as we know at this juncture, the customary practices and procedures followed in selling mobile homes are no more likely to impair Sunday as a day of general rest and Relaxation than the customary practices and procedures followed in selling conventional homes. To conclude otherwise upon the hearing of a demurrer ore tenus is unwarranted. Plaintiff is entitled to its day in court.
For the reasons stated, I respectfully dissent.
BRANCH and Moore, JJ., join in this dissent.