LEGAL ANALYSIS 59 



that: (a) the accident rate for the excepted carriers was lower than 

 for carriers generally, or (b) carriers of those excepted products 

 were so numerous and yet individually of such scattered locale on 

 various farms and in seaport areas, and individually of such small 

 scale that the enforcement of an insurance requirement would be 

 much more expensive for them than for carriers generally. Would 

 these factors have furnished a rational basis for the court to sustain 

 the legislation?] 



A somewhat similar case occurred in a 1936 case, Mayflower 

 Farms, Inc. v. Ten Eyck,^ which involved a challenge to part of 

 New York State's milk control law. The minimum price for fluid 

 milk was legislatively fixed as of a date in April, 1933, at a time 

 when the small distributors were selling their product to the retailers 

 for about one cent per quart less than were the distributors of well- 

 advertised brands. The legislature allowed this differential thereafter 

 to persist, but only as to those who were in business on that date, 

 thus excluding from its benefit those who would enter the milk busi- 

 ness thereafter. Even though they would not have a well-advertised 

 brand, they would have to sell at the same price as those who did 

 have such a brand. In the face of three dissenters, the Supreme 

 Court struck down the legislation as violating the Equal Protection 

 Clause, seeing no relation between the classification separating those 

 in business in April, 1933, from those who would enter it later and 

 the purpose of the general statute, i.e., to keep an economically 

 healthy dairy industry in order to assure an adequate supply of whole- 

 some milk to the consumers. The dissent, written by Mr. Justice 

 Cardozo, joined by Mr. Justice Brandeis and Mr. Justice Stone, 

 readily found reasons for the continuation of the price differential 

 for only those in business on that date, to keep them as healthy 

 competitors to the larger, more powerful distributors, who. if not 

 so checked, might constitute too powerful a concentration of eco- 

 nomic power for the public good. Mr. Justice Cardozo further 

 found, though, that not the same considerations would apply to a 

 person who later wanted to get into the business, in that he would 

 not have the investment of capital already put in by those in the 

 business on the April, 1933 date; further, the measure was ihen 

 looked upon as a means, temporary in nature, to tide over until 

 normalcy should take the place of depression; if such be the purpose, 



5. 297U. S. 266 (1936) 



