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Railway Express Agency, Inc. v. New York

Citation. 336 U.S. 106 (1949)
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Brief Fact Summary.

Appellant challenged the state law that prohibited him from running an advertising vehicle containing advertisements that had nothing to do with its own business.

Synopsis of Rule of Law.

The Equal Protection Clause does not necessarily prohibit all evils of the same kind.


The Traffic Law of the City of New York provides that no person shall operate in or upon any street an advertising vehicle; provided that nothing contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business of the owner and not used merely 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. Appellant was convicted and fined.


Doe the Traffic Law of the City of New York prohibiting anyone from operating an advertising vehicle containing advertisements that have nothing to do with its own business violate the Constitution?


No, the State law’s 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. 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 different categories, such as the vivid displays on Times Square, is immaterial.


Justice Jackson

Instead of a general regulation of advertising, the New York City seeks to reduce the hazard only by saying that while some may, others may not exhibit such appeals. The same display, for instance, 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. As a matter of principle, differences of treatment under law should not 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.


The appellant points out that the regulation draws the line between advertisements of products sold by the owner of the truck and general advertisements. He argued that unequal treatment on the basis of such a distinction is not justified by the aim and purpose of the regulation and 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. The Court rejected this argument as a superficial way of analyzing the problem. The local authorities may well have concluded that those who advertise their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising that they use. The Court concluded that it would take a degree of omniscience which the courts lack to say that such is not the case.

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