TREASURE CITY OF FAYETTEVILLE, INC., a corporation, on behalf of itself and such other persons, firms and corporation as are similarly affected by North Carolina General Statute 14-346.2 v. W. G. CLARK, Sheriff of Cumberland County, 261 N.C. 130

Bobbitt, J. In Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E. 2d 764, this Court on May 23, 1962, held void the 1961 Act (S.L. 1961,

Chapter 1156) oodiñed ais G.S. 14-346.2 (1961 Supplement), on the ground it was “unconstitutionally vague, uncertain and indefinite.” The 1963 Act now challenged .by plaintiff as unconstitutional is entitled “AN ACT TO REWRITE G.S. 14-346.2 TO PROHIBIT CERTAIN BUSINESS ACTIVITIES ON SUNDAY.” Even so, the 1963 Act is an entirely new, independent and complete statute. As in Surplus Store, Inc. v.

Hunter, supra, and for like reasons, this Court deems it appropriate to' pass now upon the validity of -the 1963 Act, notwithstanding .the general rule that the constitutionality of a statute may not be 'Challenged in an action to enjoin its enforcement. Plaintiff alleges iand contends the 1963 Act is void on the ground, inter alia, it violates

Article II,

Section 29, of the Constitution of North Carolina, which, in pertinent part, provides: “The General Assembly shall not pass any local, private, or special act or resolution . . . regulating labor, trade, mining, or manufacturing; . . . Any local, private or ¡special act or resolution passed in violation of the provisions of this

section shall be void. The General Assembly shall have power to pass general laws regulating matters ¡set out in this section.” The 1963 Act, within the portions of-North Carolina to which it applies, regulateé trade by prohibiting the ¡sale on Sunday ¡of certain articles of merchandise. For a definition of “trade,” see S. v. Dixon, 215 N.C. 161, 164, 1 S.E. 2d 521, and Speedway, Inc. v. Clayton, 247 N.C. 528, 533, 101 S.E. 2d 406. The crucial question iis whether the 1963 Act is a “local, private or special act” as contended by plaintiff, or a general law as contended iby defendant. If a “local, private or ¡special act,” the 1963 Act, by the express provisions of

Article II,

Section 29, is void. In McIntyre v. Clarkson, 254 N.C. 510, 119 S.E. 2d 888, this Court, m opinion ¡by Moore, J., ¡discussed and defined local and special legislation in contradistinction to general laws. The legal principles there ¡stated control decision as to the validity of the 1963 Act. The 1963 Act does not apply to any portion of twenty-five counties, to wit, Avery, Currituck, Wilkes, Madison, Yancey, Watauga, Graham, Cherokee, Clay, Hyde, Henderson, Mitchell, Camden, Swain, Pamlico, Carteret, Brunswick, Dare, Haywood, Jack-sou, Macon, Neiw Hanover, Pender, Polk -and Transylvania.

It does not apply to portions o-f four other counties, -to wit, Chimney Rock Township of Rutherford County, Colly Township of Bladen County, and the portions of Ashe and All-aghany Counties within the -right of iway of the Blue Ridge Parkway. (Note: The separate provisions for the exemption of Edney-vi'lle Township of Henderson County, Blowing Rock Township of Wa-tauga County ¡and- the portion of Watauga County within the right of way of tlie Blue Ridge Parkway may be disregarded as surplusage.) The 1963 Act does not define a resort area or a tourist area.

Nor does it contain1 a general statewide exemption of -resort areas or tourist areas. It purports to classify specific -counties or portion© of specific counties and no other portions of North Carolina “-as resort or tourist areas.” Mindful of the slogan, “Variety Vacationl-and,” it is doubtful whether there is any county in North Carolina which does not have within its borders -an -area Which -could be -reasonably described a-s a resort area or -a-s -a tourist -area. Reference to the following matters of common knowledge (among many such instances) will suffice.

Portions of Buncombe County fall within -any reasonable definition of a resold area land of a tourist area. This is- true a© to -portions of M-oore County. Onslow County, to which the 1963 Act applies, and coastal counties exempted therefrom, contain areas equally ind-entifiable -as resort areas -or tourist areas. Any list of outstanding tourist attractions -in North Carolina would include the Old Salem Restoration, the Nonth ‘Carolina Museum of Aid and Try-on Palace. Yet no portion of Forsyth, Wake or Craven Counties is -exempted -from the 1963 Act.

It is clear there are many -areas within the portions of North Carolina to which the 1963 Act applies which would fall within -any reasonable definition of a reisort -area or a tourist area as well as -or better .than many of the areas exempted from its -operation. M-oreover, the 1963 A-ct applies -to- the sale -of articles of merchandise appropriate primarily -to the needs -of permanent residents rather th-an to the distinctive needs of patrons -of a resort area -or of a tourist area.

It -contains no prohibition w-ith reference to- food, -drugs, lodgings, automotive supplies and services or -other -ardides or servi-ces appropriate to the distinctive needs of tourists. Nor 'does it prohibit the operation of places of -amusement, entertainment or recreation -or the sale o-f merchandise -appropriate to the -distinctive needs of patrons thereof.

Consideration of the -articles of merchandise to which -the 1963 Act applies (e.g., 'business -or office furnishings) dispels the suggestion -that, there exists in- a resort area o-r -in -a tourist -area -a need for the sale of such merchandise on Sunday sufficiently distinctive to -constitute a reasonable basis for .the separate 'classification of such areas with reference to the sale of such ‘articles of merchandise. In McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S.

Ct. 1101; cited in support of defendant’s position, the constitutionality of a Maryland statute was challenged on grounds different from that now under consideration. Even so, it is noteworthy that the Maryland statute exempted from its operation in Anne Arundel County the retail sale of “merchandise essential to, or customarily sold at, or incidental to, the operation of” .bathing beaches, ‘amusement parks, etc.

The 1963 Act is not general because it does not apply to and operate uniformly “on all members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law.” S. v. Dixon, supra, concurring opinion of Barnhill, J. (later C.J.); McIntyre v. Clarkson, supra.

On the contrary, it .applies to and operates only on merchants in designated ¡counties or portions thereof and not on similarly situated merchants in other .counties or portions thereof and mo reasonable basis exists for the attempted classification of the exempted counties or portions thereof as resort areas or tourist areas. Cf. Sarner v. Union Twp. (N.J. Super.), 151 A. 2d 208. Hence, the 1963 Act must be considered a local and ¡special act in violation .of

Article II,

Section 29, and therefore void. Accordingly, tbe judgment of the court below is reversed and the cause is remanded for further proceedings consistent with the law as stated herein. Decision on the .ground stated above rendáis unnecessary a discussion of other grounds on which plaintiff attacked the 1963 Act as unconstitutional. Reversed and remanded.