336 U.S. 106 (1949), 51, Railway Express Agency, Inc. v. New York

Docket Nº:No. 51
Citation:336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533
Party Name:Railway Express Agency, Inc. v. New York
Case Date:January 31, 1949
Court:United States Supreme Court
 
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336 U.S. 106 (1949)

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

Railway Express Agency, Inc.

v.

New York

No. 51

United States Supreme Court

Jan. 31, 1949

Argued December 6, 1948

[69 S.Ct. 464] APPEAL FROM THE COURT OF APPEALS OF NEW YORK

Syllabus

A New York City traffic regulation forbids the operation of any advertising vehicle on the streets, but excepts vehicles which have upon them business notices or advertisements of the products of the owner and which are not used merely or mainly for advertising. An express company, which sold space on the exterior sides of its trucks for advertising and which operated such trucks on the streets, was convicted and fined for violating the ordinance. Upon review here of the state court judgment, held:

1. The regulation does not violate the due process clause of the Fourteenth Amendment. Pp. 108-109.

(a) The function of this Court upon such review is not to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate, nor to pass judgment on the wisdom of the regulation. P. 109.

(b) This Court can not say that the regulation has no relation to the trnffic problem of the City. P. 109.

2. The exemption of vehicles having upon them advertisements of products sold by the owner does not render the regulation a denial of the equal protection of the laws. Pp. 109-110.

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(a) This Court can not say that the advertising which is forbidden has less incidence on traffic than that which is exempted. P. 110.

(b) The regulation is not rendered invalid by the fact that it does not extend to whet may be even greater distractions affecting traffic safety, such as the spectacular displays at Times Square. P. 110.

3. The regulation does not burden interstate commerce in violation of Art. I, § 8 of the Federal Constitution. P. 111.

(a) 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. P. 111.

297 N.Y. 703, 77 N.E.2d 13, affirmed.

Appellant was convicted and fined for violation of a traffic regulation of the City of New York. The conviction was sustained by the Court of Special Sessions. 188 Misc. 342, 67 N.Y.S.2d 732. The Court of Appeals affirmed. 297 N.Y. 703, 77 N.E.2d 13. On appeal to this Court, affirmed, p. 111.

DOUGLAS, J., lead opinion

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

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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 nationwide 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), [69 S.Ct. 465] as amended, now 28 U.S.C. § 1257.

The Court, in Fifth Ave. Coach Co. v. New York, 221 U.S. 467, 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

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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. Nebraska, 313 U.S. 236. 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

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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. Pennsylvania, 232 U.S. 138, 144; Marcus Brown Holding Co. v. Feldman, 256 U.S. 170, 198-199; [69 S.Ct. 466] Metropolitan Casualty Co. of New York v. Brownell, 294 U.S. 580, 585-586. 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. South Dakota, 226 U.S. 157, 160.

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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 Hwy. Dept. v. Barnwell Bros., 303 U.S. 177, 187 et seq.. And see Maurer v. Hamilton, 309 U.S. 598.

Affirmed.

MR. JUSTICE RUTLEDGE acquiesces in the Court's opinion and judgment, dubitante on the question of equal protection of the laws.

JACKSON, J., concurring

MR. JUSTICE JACKSON, concurring.

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."

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...

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