Railway Express Agency v. New York/Opinion of the Court
Section 124 of the Traffic Regulations of the City of New York  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.  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.  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.
^1 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 * * *.'
^2 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.
^3 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.