Railway Express Agency v. People of State of New York

Decision Date31 January 1949
Docket NumberNo. 51,51
Citation336 U.S. 106,69 S.Ct. 463,93 L.Ed. 533
CourtU.S. Supreme Court

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; pro- vided 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.


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

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 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.

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 government—state, 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.

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 af- fected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

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...

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