¶1Dissenting Opinion.
¶2The accused appeals from a conviction of the offense of violating Act No. 18 of 1886, known as the Sunday Law, by selling in a public market of tlie city of New Orleans, articles of human food known as groceries.
¶3The. ordinances of the city of New Orleans establishing and regulating its public markets, have, from a remote period, and do still, authorize the selling therein of all articles of human food, including such groceries.. Jewell’s Digest, pp. 268 and 269.
¶4The article of the ordinance now in force provides “ that all kinds of meats, fowl, game, fish, vegetables, and all other articles of human food may be bought and sold at the public markets, etc.”
¶5The 1st section of Act 18 provides that “ all stores, shops, saloons and all places of public business, etc., are hereby required to be closed at twelve o’clock on Saturday nights, and remain closed continuously for tweuty-four hours, etc.”
¶6Section 3 declares “that the provisions of this Act shall not apply to f * public and private markets, etc.”
¶7I quite agree with the learned judge a quo that, in interpreting this exemption, we are to search for and give effect- to the probable and reasonable intent of t-lie legislature, in employing the terms “ public and private markets.”
¶8If it should happen that in some particular town or city of the State the local municipal ordinances authorized the sale of dry goods, woodenware and all other articles of commerce, in the public market, I *547should not consider that such traffic was within the exemption contemplated by the legislature.
¶9We are to infer that, in exempting public markets, the legislature meant public markets as commonly and customarily organized and covering the kind of traffic ordinarily authorized and conducted in such markets.
¶10We have seen that, at the time of the passage of this law and long before its passage, the public markets of this city, the most prominent and generally known of all in the State, were established for the purchase and sale of “ all articles of human food.”
¶11We are not advised whether or not public markets as organized in other towns and cities embrace like privileges; but I think we may say that generally, at least in cities, they do, and that anyone would expect to find in them such articles as butter, lard, cheese, bread, rice, meal, salt meats and other like articles of daily consumption for human food, and that a market where such thing's could not he procured would illy serve the convenience of the people for which they are established.
¶12We are referred to two dicta by this Court on the subject which confirms this view. In one ease the Court defines a public market to be “a place to which the public have free admission for the purpose of purchasing provisions.” Heirs of David vs. N. O., 16 Ann. 407.
¶13In another, Chief Justice Merrick said, a market “is a place to which all persons have a right to resort daily, to supply themselves with such provisions and necessaries as are there vended.”
¶14The learned counsel for defendant also quotes the language of the Supreme Court of Ohio, viz: “A municipal market constitutes 1st., any place for the sale of provisions and articles of daily consumption; 2d., convenient fixtures; 3d., a system of police regulations, fixing the market hours, making provisions for lighting, watching, cleaning, etc.; 4th., proper officers to preserve proper order and enforce .obedience to the rules.” Cincinnati vs. Buckingham, 10 Ohio, 257.
¶15These expressions indicate, as I think, the legal and popular idea of the ordinary, modern, municipal market, to which, undoubtedly, the legislature referred.
¶16I can discover no reason or authority to coniine the term to the narrower meaning of a place for the sale of fresh meats, fresh fish, game, poultry, vegetables and fruit exclusively, as adopted by- the judge a, quo and contended for by the State, on the ground that such articles must be procured on the day upon which they are used.
¶17Many vegetable» and fruits, such as potatoes, cabbages, onions, beans, apples, oranges, lemons, bananas, etc., are quite as free from *548any necessity of being procured on the day of use, as are lard, butter, cheese, etc., which fall under the denomination of groceries.
¶18We are to remember, too, that the wants of all classes of people are to be considered. The poor man, who receives his wages on Saturday night, has not always been able to provide his Sunday dinner in advance. When he goes to market on Sunday morning, his scanty purse may not afford the luxury of fresh meat, fresh fish and game. Shall ho be deprived of his rasher of bacon or cut of cheese ? The careless housekeeper may have forgotton to replenish her store of butter, or lard, or meal, or rice, or salt and pepper ? Shall her Sunday dinner be, therefore, spoiled?
¶19I feel safe in holding that the public markets, as established in New Orleans for the sale of all articles of human food, are not exceptional and fall clearly within the exemption intended and expressed by the legislature. 1 have not found, or been referred to, any definition of a public market; by any lexicographer or other authority, placing a more restricted meaning on the term than 1 have now given it; and, on the contrary, they generally assign to it a more extensive significance. Bouvier’s Law Dic. Verbo, Market; Webster’s Die. Id.; Richardson’s Die. Id.; Worcester’s Die. Id.
¶20They all agree that it is a place for the sale of “ provisions.”
¶21Not only have the people a direct interest in having this exemption sustained; but the city of New Orleans has a like interest, and has appeared, at our bar, through her law officer, in support of it.
¶22It directly affects the city’s revenues which are, to a considerable amount, derived from the leases of these markets, which have been executed upon the faith of their status as recognized by law, and the consideration thereof would be sensibly impaired by the change in that status for which the State now contends.
¶23I discover no force in the argument that, because the exemption applies equally to “public and private markets,” therefore only the traffic authorized in private markets should be considered as authorized in public markets. A private market is one thing, a public market is another. Each is separately regulated by law, and must stand on its own 'footing. The exemption extended to both neither enlarges nor diminishes the privileges of either.
¶24It is claimed, however, that the construction now given to the law would render it, to that extent, unconstitutional, because, in permit*549ting persons occupying stalls in the market to sell groceries on Sunday, while denying the like privilege to other dealers in groceries, it would violate the right of the latter to that equality of rights and privileges which is secured by the constitutional provisions, guaranteeing to all citizens the “ equal protection of the laws.” But it is well settled that these provisions do not prevent the Legislature from determining whether “ a particular rule shall extend to all its citizens only,” and that “ all that can be required in such cases is that the laws shall be general in their application to the class or locality to which they apply.” Cooley Constitutional Lim. 4 Ed. pp. 488-9. The occupant of a stall in a public market, who, for the public convenience, is allowed to sell those special kinds of groceries used for human food, within certain limited hours of each day (viz: under present ordinances, between the hours of 6 and 10 a. m.) and subject to all other markef regulations and police control, certainly belongs to a very different class from the ordinary private dealer in groceries, who occupies and controls Ms own store, who sells there, or may sell, not only articles of human food, but many other articles ordinarily embraced in the grocers’ stock in trade, who opens and closes at his pleasure, and whose business is subject to no peculiar police control and regulation. If they belonged to the same class, with much greater force might the market vendor complain that his constitutional rights were violated because he was compelled to close his establishment every day at 10 o’clock a. m., while other grocers were at liberty to keep open all day.
¶25They belong to totally different classes. No law forbids any grocer from renting a stall in the public market, if any be vacant, and acquiring the same privileges accorded to that class of citizens. There is no discrimination between citizens, but only between different classes of citizens, classes equally open to all, and the discrimination is based upon obvious considerations of public policy and convenience, which amply support and justify it.
¶26For all the foregoing reasons I think the Court has placed too narrow a construction on the law, one not contemplated by the Legislature, hostile to the interests of the city and to the convenience of the people, and calculated, if enforced, to make the law odious by subverting the very public convenience which the exemption was obviously intended to subserve.