62 SALMON GEAR LIMITATION 



Speaking through Mr. Justice Burton, simply was not persuaded, 

 saying that the distinction between American Express Co. and the 

 companies which were subject to the act was not sufficiently related 

 to the purpose of the act. At the same time, the court was struck 

 by the accompanying economic advantages to American Express 

 Co. This decision drew strong dissents from Mr. Justice Black and 

 Mr. Justice Frankfurter, the latter being joined in his opinion by 

 Mr. Justice Harlan. Mr. Justice Frankfurter said: 



"I regretfully find myself unable to appreciate why the State . . . may 

 not choose to allow small units to carry on a business so fraught with 

 public interests under the regulations devised by the statute under review, 

 while at the same time it finds such measures of control needless in a case 

 of a 'world-wide enterprise of unquestioned solvency and high financial 

 standing.' The rational differentiation is of course that the latter enterprise 

 contains within itself, in the judgment of Illinois, the necessary safeguards 

 for solvency and reliability in issuing money orders and redeeming them. 

 Surely this is a distinction of significance in fact that the law cannot view 

 with a glass eye."^^ 



From these cases one can extract two things: (a) a formula for 

 applying the Equal Protection Clause: and (b) a sense for what the 

 United States Supreme Court will do with any particular set of facts, 

 in fitting them to the formula. First, for the formula, it seems accurate 

 to state it thus: The Equal Protection Clause requires the state to 

 refrain from only those discriminations which can be called "invidi- 

 ous." An invidious discrimination is one in which, though the court 

 finds the general legislative purpose to be valid, the court further 

 finds that the classification of persons who are subject to the legisla- 

 tion has no reasonable relation to the purpose to be accomplished. 

 For example, in the Smith v. Goheen^^ case, the court assumed the 

 purpose of protecting the traveling public to be valid, then found 

 that whether the truck driver carried fish or washing machines had 

 no relationship to accomplishing that purpose. The classification 

 based on the type of product carried was thus a violation of the Equal 

 Protection Clause. On the other hand, the court, particularly since 

 the days of the depression, has been most tolerant in finding this 

 reasonable relationship to exist. Illustrative of this tolerance is the 

 opinion of Mr. Justice Douglas in the Williamson v. Lee OpticaP'^ 

 case, where he discusses certain examples of what constitutes rea- 



ls. Id. at 474. 



16. 283 U. S. 553 ( 193 1 ), discussed supra, n. A. 



17. 348 U.S. 483 ( 1955), discussed 5///7/7/, n. 12. 



