40 N.J. 157 | N.J. | 1963
The opinion of the court was delivered by
The plaintiff filed a complaint in the Law Division seeking a declaration that N. J. S. 2A:170-76 is unconstitutional and other relief. Erom an adverse judgment it appealed to the Appellate Division and we certified before argument there.
The plaintiff is engaged in the automatic vending machine business and from time to time has installed its machines at various locations throughout the State. The machines deliver packages of prophylactics (condoms) to persons who deposit designated coinage. Most of the machines have been located at gasoline stations and diners. Beginning in 1951 and continuing thereafter, various law enforcement officials at State, county and local levels, have either confiscated the machines or have threatened arrests if the machines were not removed. The officials acted under N. J. S. 2A:170-76 which provides, in pertinent part, that any person who, without just cause, utters or exposes to the view of another, or possesses with intent to utter or expose to the view of another, or to sell the same, any instrument, medicine or other thing designed for the prevention of conception, is a disorderly person. The plaintiff’s contention is that the use of the words “without just cause” renders the statute so vague as to make it void under the United States and New Jersey Constitutions. See State v. Kinney Bldg. Drug Stores, Inc., 56 N. J. Super. 37 (Essex Cty. Ct. 1959). But cf. State v. Tracy, 29 N. J. Super. 145 (App. Div. 1953), certif. denied 15 N. J. 79 (1954); State v. Kohn, 42 N. J. Super. 578 (Essex Cty. Ct. 1956); cf. also State v. Hudson County News Co., 35 N. J. 284 (1961). In the Law Division, Judge Waugh rejected the
The history of our legislation dealing with contraceptives may be referred to for whatever light it sheds as to the scope and meaning of the current enactment. An 1869 statute dealing with obscenity made it a punishable offense to sell or give away any article or medicine for the prevention of conception. L. 1869, c. 440, p. 1115. Similarly, an 1873 statute made it unlawful to sell or give away an article of medicine for the prevention of conception but it contained an express declaration that nothing therein shall render it unlawful for a physician to prescribe any medicine he may judge to be useful and proper. L. 1873, c. 408, p. 77. In the same year the United States Congress passed the well-known Comstock Act. 17 Stat. 598; see 18 U. S. C. A. §§ 1461, 1462. That statute declared as nonmailable, every article or thing designed or intended for preventing conception. Though it was absolute in terms, pertinent exceptions were declared in the course of its interpretation by the federal courts. See Youngs Rubber Corporation v. C. I. Lee & Co., 45 F. 2d 103 (2 Cir. 1930); Davis v. United States, 62 F. 2d 473 (6 Cir. 1933); United States v. One Package, 86 F. 2d 737 (2 Cir. 1936); United States v. Nicholas, 97 F. 2d 510 (2 Cir. 1938); Consumers Union of the United States v. Walker, 79 U. S. App. D. C. 229, 145 F. 2d 33 (D. C. Cir. 1944); United States v. H. L. Blake Company, 189 F. Supp. 930 (W. D. Ark. 1960). See Stone and Pilpel, “The Social and Legal Status of Contraception,” 22 N. C. L. Rev. 212, 221 (1944); Note, “Contraceptives and the Law,” 6 U. Chi. L. Rev. 260, 264 (1939).
In Youngs Rubber, supra, the court noted that the intent to prevent a proper medical use of drugs or other articles merely because they are capable of illegal use is “not lightly
The terms of L. 1873, c. 408 were embodied in sections 45 and 49 of the 1874 revision of the act for the punishment of crimes; in addition, that revision set forth in section 44 that if any person without just cause shall utter or expose any thing designed for the prevention of conception, he shall be subject to fine or imprisonment. The revision of 1898 deleted sections 45 and 49 and section 44 became section 53. See L. 1898, c. 235, p. 808. Section 53 was subdivided in the revi
In State v. Hudson County News Co., supra, the “without just cause” clause in N. J. 8. 2A:115-2 was attacked as too vague to satisfy constitutional requirements. We rejected the attack in an opinion which found the clause to' be reasonably certain and fairly informative in the light of its contextual purpose and common understanding; it was found to protect “those who may possess and distribute obscene material in the course of Iona fide scientific, medical or comparable research or study or in the course of law enforcement activities or in other like circumstances where the nature of the possession and distribution is not related to the appeal to prurient interest.” See 35 N. J., at p. 297. We recognize that our definition of the clause in the context of N. J. 8. 2A:115-2 has little relation to the proper definition of the clause in the context of N. J. 8. 2A:170-76. Nevertheless the Hudson County News Co. case is significant here for it serves to' illustrate the traditional course of judicial interpretation which strains to give reasonable definiteness to general legislative standards and thereby avoid constitutional challenge. See United States v. Harriss, 347 U. S. 612, 618, 74 S. Ct. 808, 812, 98 L. Ed. 989, 996 (1954); Screws v. United States, 325 U. 8. 91, 98, 65 S. Ct. 1031, 1033, 89 L. Ed. 1495, 1500 (1945); Note, “The Void-For-Vagueness Doctrine in the Supreme Court,” 109 U. Pa. L. Rev. 67 (1960); cf. Collings, “Unconstitutional Uncertainty — An Appraisal,” 40 Cornell L. Q. 195, 223 (1955); Proprietary Ass’n v. Board of Pharmacy of N. J., 16 N. J. 62 (1954).
The first case which dealt specially with N. J. 8. 2A :170-76 was State v. Tracy, supra, decided in 1953. There the de
The issues raised by the defendant in Tracy and discussed in the Appellate Division’s opinion should be considered in the light of State v. Kohn, supra, where a wholesale rubber goods dealer and his employee were convicted in the municipal court on the basis of their sale of condoms to a detective. The defendants appealed and attacked N. J. S. 2A:170 — 76 as invalid by reason of its vagueness. Their attack failed and the statute was upheld in an opinion which referred extensively to the federal decisions and suggested that when the Degislature enacted N. J. S. 2A:170-76 it meant to equate the “without just cause” clause with those decisions. It pointed out that in Tracy the defendant, whose distribution through vending machines was necessarily indiscriminate, could not be in any position to assert just cause, whereas the physician and the druggist, as well as the jobber who sells to them, could be in such position. The court expressed the view that the presence of the clause indicated that the intent of the possessor “was an important issue and a major subject of proof” (cf. State v. Hudson County News Co., supra, 35 N. J., at p. 294); in this connection it may be noted that under our cases the burden of negating just cause
In State v. Kinney Bldg. Drug Stores, Inc., supra, a registered pharmacist and his assistant, without making inquiries, sold prophylactics to detectives in the employ of the Newark Police Department. They were convicted in the municipal court for violation of N. J. S. 2A:170-76 and appealed to the Essex County Court where they moved to dismiss on the ground that the statute was unconstitutional. Their motion was granted upon the court’s holding that the “without just cause” clause was too vague and was incapable of judicial construction. The court considered that application of the clause might entail inquiry in each case as to the personal and moral justifications for the practice of birth control by the individuals concerned. Thus it suggested that the decision might hinge “upon the social, religious, economic, and environmental orientation of the individual,” that one court might hold a married couple could prevent conception for any reason whatsoever whereas another court might hold otherwise, and that one court might consider spacing of birth, extreme poverty and possible childbirth death to be just cause whereas another court might hold otherwise. See 56 N. J. Super., at p. 43. If application of the clause entailed the foregoing course with its intolerable intrusions into most private realms, we would readily approve the holding of unconstitutionality. We are satisfied, however, that the Legislature never contemplated any such course and that the statute may now be construed to avoid it while at the same time giving its terms fair meaning and effect. See United States v. Harriss, supra; Screws v. United States, supra; Daly v. Daly, 21 N. J. 599, 604 (1956); Woodhouse v. Woodhouse, 17 N. J. 409, 416 (1955).
Most people in our State would ñnd the promiscuous and indiscriminate sale of contraceptives through vending machines in public places to be offensive and there is no reason to question that when the Legislature enacted N. J. S. 2A:170-76 it did not contemplate that such mode of sale would be permissible. Indeed, it would not only offend sensibilities but would also remove all measure of control aimed at avoiding sales to the very young or in other circumstances evidencing intended use incident to illegal conduct. The plaintiff’s complaint, as supplemented by its stipulation of facts, discloses that both before and after N. J. S. 2A :170-76
The ultimate policy as to the manner of regulating the sale of contraceptives within the State rests with the Legislature rather than the courts. It may readily set forth its wishes in specific detail and have them enforced, subject to constitutional limitations. It has not done so but has deliberately used general language with the knowledge that the courts will from time to time be called upon for its definition 'and application. Where, as here, the definition is given in a declaratory judgment proceeding involving a nonmarginal situation, the public interest is well served, since issues of constitutionality are avoided, considerations of fairness are not violated, and the Legislature remains free to take action if it considers that the judicial definition does not express its purposes. More troublesome is a proceeding where, after accusation in a marginal situation, judicial definition is sought for purposes of retroactive application. Since that case does not confront us, we need not deal with it other than to caution again that legislation should always give fair warning
Affirmed.
For affirmance — Justices Jacobs, Fkancis, Peoctoe, Hall, Schettino and Haneman — 6.
For reversal — None.