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. 336 U. S.
(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. 336 U. S.
(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. 336 U. S.
Page 336 U. S. 107
(a) This Court can not say that the advertising which is
forbidden has less incidence on traffic than that which is
exempted. P. 336 U. S.
(b) The regulation is not rendered invalid by the fact that it
does not extend to what may be even greater distractions affecting
traffic safety, such as the spectacular displays at Times Square.
P. 336 U. S.
3. The regulation does not burden interstate commerce in
violation of Art. I, § 8 of the Federal Constitution. P.
336 U. S.
(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. 336 U. S.
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. 336 U. S.
MR. JUSTICE DOUGLAS delivered the 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
Page 336 U. S. 108
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. [Footnote 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, 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
Page 336 U. S. 109
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. [Footnote 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
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
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
Page 336 U. S. 110
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
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.
, 232 U. S. 144
Marcus Brown Holding Co. v. Feldman, 256 U.
, 256 U. S.
-199; Metropolitan Casualty Co. of New York v.
Brownell, 294 U. S. 580
294 U. S.
-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
226 U. S.
Page 336 U. S. 111
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.
, 303 U. S. 187
. And see Maurer v. Hamilton, 309 U.
MR. JUSTICE RUTLEDGE acquiesces in the Court's opinion and
on the question of equal protection of
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 portraying
Camel Cigarettes, Ringling Brothers and Barnum & Bailey Circus,
and radio station WOR. Drivers of appellant's trucks carrying
advertisements of Prince Albert Smoking Tobacco and U.S. Navy were
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. Illinois,
238 U. S. 446
238 U. S. 451
Hartford Accident & Indemnity Co. v. N. O. Nelson Co.,
291 U. S. 352
291 U. S. 358
Central Hanover Bank & Trust Co. v. Kelly,
319 U. S. 94
310 U. S.
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
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
Page 336 U. S. 112
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
opinion in Douglas v. Jeannette
companion cases, 319 U. S. 157
319 U. S.
,; and dissents in Saia v. New York,
334 U. S. 558
334 U. S. 566
Prince v. Massachusetts, 321 U. S. 158
321 U. S.
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,
that 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.
Page 336 U. S. 113
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 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
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
Page 336 U. S. 114
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.
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.
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.
The difference, however, is invoked 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
Page 336 U. S. 115
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.
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
Smith v. Cahoon, 283 U. S. 553
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. 283
553, 283 U. S. 567
If that were the situation here, I should think we should reach a
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
Page 336 U. S. 116
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.
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.
. 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
264 U. S. 144
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 Co. v. Cincinnati, 284 U. S. 335
284 U. S. 337
See also Sproles v. Binford, 286 U.
, 286 U. S. 393
Stephenson v. Binford, 287 U. S. 251
287 U. S. 278
Hicklin v. Coney, 290 U. S. 169
Stanley v. Public Utilities Commission, 295 U. S.
; Aero Mayflower Transit Co. v. Georgia
Commission, 295 U. S. 285
Dixie Ohio Express Co. v. State Revenue Commission,
306 U. S. 72
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 Utilities
Page 336 U. S. 117
U.S. 92, 289 U. S. 97
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.
. See also Quaker City Cab Co. v.
Pennsylvania, 277 U. S. 389
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,
dissent in Saia v. New York, 334 U.
, I think the judgment below must be affirmed.