336 U.S.

106
69 S.Ct. 463
93 L.Ed. 533

RAILWAY EXPRESS AGENCY, Inc., et al.

v.
PEOPLE OF STATE OF NEW YORK.
No. 51.
Argued Dec. 6, 1948.
Decided Jan. 31, 1949.

Appeal from the Court of Appeals of the State of New York.

Mr. Ralph M. Carson, of New York City, for appellants.
Mr. Stanley Buchsbaum, of New York City, for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.

Section 124 of the Traffic Regulations of the City of New York1 promulgated
by the Police Commissioner provides:

'No person shall operate, or cause to be operated, in or upon any street an

advertising vehicle; provided that nothing herein contained shall prevent the
putting of business notices upon business delivery vehicles, so long as such
vehicles are engaged in the usual business or regular work of the owner and not
used merely or mainly for advertising.'

Appellant is engaged in a nation-wide express business. It operates about 1,900

trucks in New York City and sells the space on the exterior sides of these trucks
for advertising. That advertising is for the most part unconnected with its own
business.2 It was convicted in the magistrates court and fined. The judgment of
conviction was sustained in the Court of Special Sessions. 188 Misc. 342, 67
N.Y.S.2d 732. The Court of Appeals affirmed without opinion by a divided
vote. 297 N.Y. 703, 77 N.E.2d 13. The case is here on appeal. Judicial Code
237(a), 28 U.S.C. 344(a), as amended, 28 U.S.C.A. 344(a) (now 1257).

The Court in Fifth Ave. Coach Co. v. City of New York, 221 U.S. 467, 31 S.Ct.
709, 55 L.Ed. 815, sustained the predecessor ordinance to the present
regulation over the objection that it violated the due process and equal
protection clauses of the Fourteenth Amendment. It is true that that was a
municipal ordinance resting on the broad base of the police power, while the
present regulation stands or falls merely as a traffic regulation. But we do not
believe that distinction warrants a different result in the two cases.

The Court of Special Sessions concluded that advertising on vehicles using the
streets of New York City constitutes a distraction to vehicle drivers and to
pedestrians alike and therefore affects the safety of the public in the use of the
streets.3 We do not sit to weigh evidence on the due process issue in order to
determine whether the regulation is sound or appropriate; nor is it our function
to pass judgment on its wisdom. See Olsen v. State of Nebraska, 313 U.S. 236,
61 S.Ct. 862, 85 L.Ed. 1305, 133 A.L.R. 1500. We would be trespassing on one
of the most intensely local and specialized of all municipal problems if we held
that this regulation had no relation to the traffic problem of New York City. It
is the judgment of the local authorities that it does have such a relation. And
nothing has been advanced which shows that to be palpably false.

The question of equal protection of the laws is pressed more strenuously on us.
It is pointed out that the regulation draws the line between advertisements of
products sold by the owner of the truck and general advertisements. It is argued
that unequal treatment on the basis of such a distinction is not justified by the
aim and purpose of the regulation. It is said, for example, that one of appellant's
trucks carrying the advertisement of a commercial house would not cause any
greater distraction of pedestrians and vehicle drivers than if the commercial
house carried the same advertisement on its own truck. Yet the regulation
allows the latter to do what the former is forbidden from doing. It is therefore
contended that the classification which the regulation makes has no relation to
the traffic problem since a violation turns not on what kind of advertisements
are carried on trucks but on whose trucks they are carried.

That, however, is a superficial way of analyzing the problem, even if we

assume that it is premised on the correct construction of the regulation. The
local authorities may well have concluded that those who advertised their own
wares on their trucks do not present the same traffic problem in view of the
nature or extent of the advertising which they use. It would take a degree of
omniscience which we lack to say that such is not the case. If that judgment is
correct, the advertising displays that are exempt have less incidence on traffic
than those of appellants.

We cannot say that that judgment is not an allowable one. Yet if it is, the
classification has relation to the purpose for which it is made and does not
contain the kind of discrimination against which the Equal Protection Clause
affords protection. It is by such practical considerations based on experience
rather than by theoretical inconsistencies that the question of equal protection is
to be answered. Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 1 4,
34 S.Ct. 281, 282, 58 L.Ed. 539; Marcus Brown Holding Co. v. Feldman, 256
U.S. 170, 198, 199, 41 S.Ct. 465, 466, 65 L.Ed. 877; Metropolitan Casualty Co.
of New York v. Brownell, 294 U.S. 580, 585, 586, 55 S.Ct. 538, 540, 541, 79
L.Ed. 1070. And the fact that New York City sees fit to eliminate from traffic
this kind of distraction but does not touch what may be even greater ones in a
different category, such as the vivid displays on Times Square, is immaterial. It
is no requirement of equal protection that all evils of the same genus be
eradicated or none at all. Central Lumber Co. v. State of South Dakota, 226
U.S. 157, 160, 33 S.Ct. 66, 67, 57 L.Ed. 164.

It is finally contended that the regulation is a burden on interstate commerce in

violation of Art. I, 8 of the Constitution. Many of these trucks are engaged in
delivering goods in interstate commerce from New Jersey to New York. Where
traffic control and the use of highways are involved and where there is no
conflicting federal regulation, great leeway is allowed local authorities, even
though the local regulation materially interferes with interstate commerce. The
case in that posture is controlled by South Carolina State Highway Department
v. Barnwell Bros., 303 U.S. 177, 187 et seq., 58 S.Ct. 510, 514, 82 L.Ed. 734.
And see Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969, 135
A.L.R. 1347.

10

Affirmed.

11

Mr. Justice RUTLEDGE acquiesces in the Court's opinion and judgment,

dubitante on the question of equal protection of the laws.

12

Mr. Justice JACKSON, concurring.

13

There are two clauses of the Fourteenth Amendment which this Court may
invoke to invalidate ordinances by which municipal governments seek to solve
their local problems. One says that no state shall 'deprive any person of life,
liberty, or property, without due process of law'. The other declares that no state
shall 'deny to any person within its jurisdiction the equal protection of the laws.'

14

My philosophy as to the relative readiness with which we should resort to these

two clauses is almost diametrically opposed to the philosophy which prevails

on this Court. While claims of denial of equal protection are frequently
asserted, they are rarely sustained. But the Court frequently uses the due
process clause to strike down measures taken by municipalities to deal with
activities in their streets and public places which the local authorities consider
to create hazards, annoyances or discomforts to their inhabitants. And I have
frequently dissented when I thought local power was improperly denied. See,
for example, opinion in Douglas v. City of Jeannette and companion cases, 319
U.S. 157, 166, 63 S.Ct. 877, 882, 87 L.Ed. 1324; and dissents in Saia v. People
of State of New York, 334 U.S. 558, 566, 68 S.Ct. 1148; Prince v.
Commonwealth of Massachusetts, 321 U.S. 158, 176, 64 S.Ct. 438, 447, 88
L.Ed. 645.
15

The burden should rest heavily upon one who would persuade us to use the due
process clause to strike down a substantive law or ordinance. Even its provident
use against municipal regulations frequently disables all governmentstate,
municipal and federal from dealing with the conduct in question because the
requirement of due process is also applicable to State and Federal
Governments. Invalidation of a statute or an ordinance on due process grounds
leaves ungoverned and ungovernable conduct which many people find
objectionable.

16

Invocation of the equal protection clause, on the other hand, does not disable
any governmental body from dealing with the subject at hand. It merely means
that the prohibition or regulation must have a broader impact. I regard it as a
salutary doctrine that cities, states and the Federal Government must exercise
their powers so as not to discriminate between their inhabitants except upon
some reasonable differentiation fairly related to the object of regulation. This
equality is not merely abstract justice. The framers of the Constitution knew,
and we should not forget today, hat there is no more effective practical
guaranty against arbitrary and unreasonable government than to require that the
principles of law which officials would impose upon a minority must be
imposed generally. Conversely, nothing opens the door to arbitrary action so
effectively as to allow those officials to pick and choose only a few to whom
they will apply legislation and thus to escape the political retribution that might
be visited upon them if larger numbers were affected. Courts can take no better
measure to assure that laws will be just than to require that laws be equal in
operation.

17

This case affords an illustration. Even casual observations from the sidewalks
of New York will show that an ordinance which would forbid all advertising on
vehicles would run into conflict with many interests, including some, if not all,

of the great metropolitan newspapers, which use that advertising extensively.

Their blandishment of the latest sensations is not less a cause of diverted
attention and traffic hazard than the commonplace cigarette advertisement
which this truck-owner is forbidden to display. But any regulation applicable to
all such advertising would require much clearer justification in local conditions
to enable its enactment than does some regulation applicable to a few. I do not
mention this to criticize the motives of those who enacted this ordinance, but it
dramatizes the point that we are much more likely to find arbitrariness in the
regulation of the few than of the many. Hence, for my part, I am more
receptive to attack on local ordinances for denial of equal protection than for
denial of due process, while the Court has more often used the latter clause.
18

In this case, if the City of New York should assume that display of any
advertising on vehicles tends and intends to distract the attention of persons
using the highways and to increase the dangers of its traffic, I should think it
fully within its constitutional powers to forbid it all. The same would be true if
the City should undertake to eliminate or minimize the hazard by any generally
applicable restraint, such as limiting the size, color, shape or perhaps to some
extent the contents of vehicular advertising. Instead of such general regulation
of advertising, however, the City seeks to reduce the hazard only by saying that
while some may, others may not exhibit such appeals. The same display, for
example, advertising cigarettes, which this appellant is forbidden to carry on its
trucks, may be carried on the trucks of a cigarette dealer and might on the
trucks of this appellant if it dealt in cigarettes. And almost an identical
advertisement, certainly one of equal size, shape, color and appearance, may be
carried by this appellant if it proclaims its own offer to transport cigarettes. But
it may not be carried so long as the message is not its own but a cigarette
dealer's offer to sell the same cigarettes.

19

The City urges that this applies equally to all persons of a permissible
classification, because all that it does is (1) forbid all inhabitants of New York
City from engaging in the business of selling advertising space on trucks which
move as part of the city traffic; (2) forbid all truck owners from incidentally
employing their vehicles for such purpose, with the exception that all truck
owners can advertise their own business on their own trucks. It is argued that,
while this does not eliminate vehicular advertising, it does eliminate such
advertising for hire and to this extent cuts down the hazard sought to be
controlled.

20

That the difference between carrying on any business for hire and engaging in
the same activity on one's own is a sufficient one to sustain some types of
regulations of the one that is not applied to the other, is almost elementary. But

it is usual to find such regulations applied to the very incidents wherein the two
classes present different problems, such as in charges, liability and quality of
service.
21

The difference, however, is invok d here to sustain a discrimination in a

problem in which the two classes present identical dangers. The courts of New
York have declared that the sole nature and purpose of the regulation before us
is to reduce traffic hazards. There is not even a pretense here that the traffic
hazard created by the advertising which is forbidden is in any manner or degree
more hazardous than that which is permitted. It is urged with considerable force
that this local regulation does not comply with the equal protection clause
because it applies unequally upon classes whose differentiation is in no way
relevant to the objects of the regulation.

22

As a matter of principle and in view of my attitude toward the equal protection

clause, I do not think differences of treatment under law should be approved on
classification because of differences unrelated to the legislative purpose. The
equal protection clause ceases to assure either equality or protection if it is
avoided by any conceivable difference that can be pointed out between those
bound and those left free. This Court has often announced the principle that the
differentiation must have an appropriate relation to the object of the legislation
or ordinance. See, for example, Mayflower Farms v. Ten Eyck, 297 U.S. 266,
56 S.Ct. 457, 80 L.Ed. 675; Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75
L.Ed. 1264. In the latter case a motor vehicle regulation was struck down upon
citation of many authorities because 'such a classification is not based on
anything having relation to the purpose for which it is made.' 283 U.S. 553,
567, 51 S.Ct. 582, 587. If that were the situation here, I should think we should
reach a similar conclusion.

23

The question in my mind comes to this. Where individuals contribute to an evil

or danger in the same way and to the same degree, may those who do so for
hire be prohibited, while those who do so for their own commercial ends but
not for hire be allowed to continue? I think the answer has to be that the
hireling may be put in a class by himself and may be dealt with differently than
those who act on their own. But this is not merely because such a
discrimination will enable the lawmaker to diminish the evil. That might be
done by many classifications, which I should think wholly unsustainable. It is
rather because there is a real difference between doing in self-interest and doing
for hire, so that it is one thing to tolerate action from those who act on their
own and it is another thing to permit the same action to be promoted for a price.

24

Certainly the presence of absence of hire has been the hook by which much

highway regulations has been supported. Rights usual to passengers may be

denied to the nonpaying guest in an automobile to limit vexatious litigation.
Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221, 65 A.L.R. 939. A
state may require security against injuries from one using the highways for hire
that it does not exact from others because, as Mr. Justice Sutherland put it, 'The
streets belong to the public and are primarily for the use of the public in the
ordinary way. Their use for the purposes of gain is special and extraordinary,
and, generally at least, may be prohibited or conditioned as the Legislature
deems proper.' Packard v. Banton, 264 U.S. 140, 144, 44 S.Ct. 257, 259, 68
L.Ed. 596. In the case of those who let out automobiles to those who drive
them, the Court, through Mr. Justice Butler, said of the State, 'It may prohibit
or condition as it deems proper the use of city streets as a place for the carrying
on of private business.' Hodge Drive-It-Yourself Co. v. City of Cincinnati, 284
U.S. 335, 337, 52 S.Ct. 144, 145, 76 L.Ed. 323. See also Sproles v. Binford,
286 U.S. 374, 393, 52 S.Ct. 581, 586, 76 L.Ed. 1167; Stephenson v. Binford,
287 U.S. 251, 278, 53 S.Ct. 181, 189, 77 L.Ed. 288, 87 A.L.R. 721; Hicklin v.
Coney, 290 U.S. 169, 54 S.Ct. 142, 78 L.Ed. 247; Stanley v. Public Utilities
Commission, 295 U.S. 76, 55 S.Ct. 628, 79 L.Ed. 1311; Aero Mayflower T
ansit Co. v. Georgia Public Service Commission, 295 U.S. 285, 55 S.Ct. 709,
79 L.Ed. 1439; Dixie Ohio Express Co. v. State Revenue Commission, 306
U.S. 72, 59 S.Ct. 435, 83 L.Ed. 495. The rule was flatly stated for the Court by
Mr. Justice Brandeis: 'In dealing with the problem of safety of the highways, as
in other problems of motor transportation, the state may adopt measures which
favor vehicles used solely in the business of their owners, as distinguished from
those which are operated for hire by carriers who use the highways as their
place of business.' Bradley v. Public Utilitics Commission, 289 U.S. 92, 97, 53
S.Ct. 577, 579, 77 L.Ed. 1053, 85 A.L.R. 1131. However, it is otherwise if the
discriminations within the regulates class are based on arbitrary differences as
to commodities carried having no relation to the object of the regulation. Smith
v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264. See also Quaker City
Cab Co. v. Commonwealth of Pennsylvania, 277 U.S. 389, 48 S.Ct. 553, 72
L.Ed. 927.
25

Of course, this appellant did not hold itself out to carry or display everybody's
advertising, and its rental of space on the sides of its trucks was only incidental
to the main business which brought its trucks into the streets. But it is not
difficult to see that, in a day of extravagant advertising more or less subsidized
by tax deduction, the rental of truck space could become an obnoxious
enterprise. While I do not think highly of this type of regulation, that is not my
business, and in view of the control I would concede to cities to protect citizens
in quiet and orderly use for their proper purposes of the highways and public
places, see dissent in Saia v. People of State of New York, 334 U.S. 558, 68

S.Ct. 1148, I think the judgment below must be affirmed.

This regulation was promulgated by the Police Commissioner pursuant to the

power granted the police department under 435 of the New York City Charter
which provides as follows: 'The police department and force shall have the
power and it shall be their duty to * * * regulate, direct, control and restrict the
movement of vehicular and pedestrian traffic for the facilitation of traffic, and
the convenience of the public as well as the proper protection of human life and
health; * * * The commissioner shall make such rules and regulations for the
conduct of pedestrian and vehicular traffic in the use of the public streets,
squares and avenues as he may deem necessary * * *.'

The advertisements for which appellant was convicted consisted of posters

from three by seven feet to four by ten feet portaying Camel Cigarettes,
Ringling Brothers and Barnum & Bailey Circus, and radio tation WOR. Drivers
of appellant's trucks carrying advertisements of Prince Albert Smoking
Tobacco and U.S. Navy were also convicted.

The element of safety was held to be one of the standards by which the
regulations of the Police Commissioner were to be judged. We accept that
construction of the authority of the Police Commissioner under 435 of the
Charter, note 1, supra. See Price v. State of Illinois, 238 U.S. 446, 451, 35 S.Ct.
892, 894, 59 L.Ed. 1400; Hartford Accident & Indemnity Co. v. N. O. Nelson
Co., 291 U.S. 352, 358, 54 S.Ct. 392, 394, 78 L.Ed. 840; Central Hanover Bank
& Trust Co. v. Kelly, 319 U.S. 94, 97, 63 S.Ct. 945, 947, 87 L.Ed. 1282.