Morey v. Doud/Dissent Black

by Hugo Black

United States Supreme Court

354 U.S. 457

Morey  v.  Doud

 Argued: April 24, 1957. --- Decided: June 24, 1957

Mr. Justice BLACK, dissenting.

The Illinois statute involved here provides a state-wide regulatory plan to protect the public from irresponsible and insolvent sellers of money orders. The Act specifically exempts the American Express Company's money orders from its regulatory provisions because, as the Court recognizes, that company 'is a world-wide enterprise of unquestioned solvency and high financial standing.' I cannot agree with the Court that this exemption denies actual and potential competitors of the American Express Company equal protection of the laws within the meaning of the Fourteenth Amendment. Only recently this Court held that '(t)he prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. And here, whatever one may think of the merits of this legislation, its exemption of a company of known solvency from a solvency test applied to others of unknown financial responsibility can hardly be called 'invidious.' Unless state legislatures have power to make distinctions that are not plainly unreasonable, then the ability of the States to protect their citizens by regulating business within their boundaries can be seriously impaired. I feel it necessary to express once again my objection to the use of general provisions of the Constitution to restrict narrowly state power over state domestic economic affairs. ^[1]

I think state regulation should be viewed quite differently where it touches or involves freedom of speech, press, religion, petition, assembly, or other specific safeguards of the Bill of Rights. It is the duty of this Court to be alert to see that these constitutionally preferred rights are not abridged. ^[2] But the Illinois statute here does not involve any of these basic liberties. And since I believe that it is not 'invidiously discriminatory,' I would not hold it invalid.

Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.

The sole question before the Court is whether the Fourteenth Amendment of the United States Constitution, in prohibiting a State from denying any person 'the equal protection of the laws,' has barred Illinois from formulating its domestic policy as it did, in an area concededly within the regulatory power of that State. As is usually true of questions arising under the Equal Protection Clause, the answer will turn on the way in which that clause is conceived. It is because of differences in judicial approach that the divisions in the Court in applying the clause have been frequent and marked. It is, I believe, accurate to summarize the matter by saying that the great divide in the decisions lies in the difference between emphasizing the actualities or the abstractions of legislation.

The more complicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities. Statutes, that is, are directed to less than universal situations. Law reflects distinctions that exist in fact or at least appear to exist in the judgment of legislators those who have the responsibility for making law fit fact. Legislation is essentially empiric. It addresses itself to the more or less crude outside world and not to the neat, logical models of the mind. Classification is inherent in legislation; the Equal Protection Clause has not forbidden it. To recognize marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic.

The controlling importance of the difference in approach to a problem arising under the Equal Protection Clause is sharply illustrated by one's view of the decisions in cases like Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770, and Hartford Steam Boiler Inspection & Insurance Co. v. Harrison, 301 U.S. 459, 57 S.Ct. 838, 81 L.Ed. 1223. The Court relies on them. For me they are false leads. Both these decisions prevailed by the narrowest margin; both evoked powerful dissents; both manifest the requirement of non-discriminatory classification as an exercise in logical abstractions. They breathe the spirit of decisions like Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679, and Colgate v. Harvey, 296 U.S. 404, 56 S.Ct. 252, 80 L.Ed. 299, which were respectively overruled in Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, and Madden v. Commonwealth of Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590. The last two cases heeded the admonition that 'it is important for this court to avoid extracting from the very general language of the Fourteenth Amendment a system of delusive exactness * * *.' Louisville and Nashville R. Co. v. Barber Asphalt Co., 197 U.S. 430, 434, 25 S.Ct. 466, 467, 49 L.Ed. 819.

In regulating its banking facilities, Illinois was drawing on one of the oldest and most far-reaching of legislative powers. The public needs to be protected in the issuing and selling of money orders, and people with limited means are especially to be safeguarded. If Illinois chose, the State itself could take over the money order business. See Noble State Bank v. Haskell, 219 U.S. 104, 113, 31 S.Ct. 186, 188, 55 L.Ed. 112. Just as it was found that there was nothing in the Constitution of the United States to bar a State from engaging in the businesses of manufacturing and marketing farm products and of providing homes for its people, Green v. Frazier, 253 U.S. 233, 40 S.Ct. 499, 64 L.Ed. 878, so, surely, there is nothing to prevent Illinois from engaging in this business directly, or through a money dispensary similar to the mode by which some States engage in the liquor business. I know of nothing in the Fourteenth Amendment that would bar the State from discharging its responsibility to its citizens by having the business conducted by what the Court recognizes to be 'a world-wide enterprise of unquestioned solvency and high financial standing,' to wit, the American Express Co.

I regretfully find myself unable to appreciate why the State, instead of thus dealing with the problem, 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.

But it is suggested that the American Express Co. may not continue to retain 'its present characteristics,' while sellers of competing money orders may continue to be subject to the Act, even though their characteristics become 'substantially identical with those the American Express Co. now has.' What is this but to deny a State the right to legislate on the basis of circumstances that exist because a State may not in speculatively different circumstances that may never come to pass have such right? Surely there is time enough to strike down legislation when its constitutional justification is gone. Invalidating legislation is serious business and it ought not to be indulged in because in a situation not now before the Court, nor even remotely probable, a valid statute may lose its foundation. The Court has had occasion to deal with such contingency more than once. Regulatory measures have been sustained that later, in changed circumstances, were found to be unconstitutional. Compare Willcox v. Consolidated Gas Co., 212 U.S. 19, 29 S.Ct. 192, 53 L.Ed. 382, with Newton v. Consolidated Gas Co., 258 U.S. 165, 42 S.Ct. 264, 66 L.Ed. 538, and Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, with Chastleton Corp. v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841.

"Legislation which regulates business may well make distinctions depend upon the degree of evil.' Heath & Milligan Mfg. Co. v. Worst, 207 U.S. 338, 355, 356, 28 S.Ct. 114 (119), 52 L.Ed. 236, 244. It is true, no doubt, that where size is not an index to an admitted evil the law cannot discriminate between the great and small. But in this case size is an index.' Engel v. O'Malley, 219 U.S. 128, 138, 31 S.Ct. 190, 193, 55 L.Ed. 128. Neither the record nor our own judicial information affords any basis for concluding that Illinois may not put the United States Post Office, the Western Union Co., and the American Express Co. in one class and all the other money order issuers in another. Illinois may not the less relieve the American Express Co. from regulations to which multitudinous small issuers are subject because that company has its own reliabilities that may well be different from those of the United States Post Office and the Western Union Telegraph Co. The vital fact is that the American Express Co. is decisively different from those money order issuers that are within the regulatory scheme.

Sociologically one may think what one may of the State's recognition of the special financial position obviously enjoyed by the American Express Co. Whatever one may think is none of this Court's business. In applying the Equal Protection Clause, we must be fastidiously careful to observe the admonition of Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo that we do not 'sit as a super-legislature.' (See their dissenting opinion in the ill-fated case of Colgate v. Harvey, 296 U.S. 404, 441, 56 S.Ct. 252, 264, 80 L.Ed. 299. See also Asbury Hospital v. Cass County, 326 U.S. 207, 214-215, 66 S.Ct. 61, 64-65, 90 L.Ed. 6.)

Notes

1. See, e.g., my dissents in H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 562-564, 69 S.Ct. 657, 683-684, 93 L.Ed. 865; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 462, 64 S.Ct. 208, 224, 88 L.Ed. 149; Adamson v. People of State of California, 332 U.S. 46, 79-84, 67 S.Ct. 1672, 1689, 1692, 91 L.Ed. 1903. Cf. Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124; American Sugar Refining Co. v. State of Louisiana. 179 U.S. 89, 92, 21 S.Ct. 43, 44, 45 L.Ed. 102; Slaughter-House Cases, 16 Wall. 36, 81-82, 21 L.Ed. 394.
2. Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155. And see my dissenting opinions in Beauharnais v. People of State of Illinois, 343 U.S. 250, 267, 72 S.Ct. 725, 736, 96 L.Ed. 919, and Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408. Cf. Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093, and my concurring opinion in Oyama v. State of California, 332 U.S. 633, 647, 68 S.Ct. 269, 275, 92 L.Ed. 249.