Sanitary Vendors, Inc. v. Byrne

• Decision Date: 17 January 1962
• Docket Number: No. L--11133,L--11133
• Citation: 178 A.2d 259,72 N.J.Super. 276
• Parties: SANITARY VENDORS, INC., a New Jersey corporation, Plaintiff, v. Brendan T. BYRNE, Prosecutor of Essex County; Norman Heine, Prosecutor of Camden County; Alvin E. Granite, Prosecutor of Gloucester County; Guy W. Calissi, Prosecutor of Bergen County; Laurence A. Whipple, Prosecutor of Hudson County; Edward J. Dolan, Prosecutor of Middlesex County; Vincent P. Keuper, Prosecutor of Monmouth County; H. Douglas Stine, Prosecutor of Union County; Thomas J. Muccifori, Assistant Prosecutor of Ocean County; Frank C. Scerbo, Prosecutor of Morris County; Clyde C. Jefferson, Prosecutor of Hunterdon County; Frank A. Dolan, Prosecutor of Sussex County; Stanley E. Rutkowski, Prosecutor of Mercer County; Arthur S. Meredith, Prosecutor of Somerset County and the State of New Jersey, Defendants.
• Court: New Jersey Superior Court

Page 276

72 N.J.Super. 276

178 A.2d 259

SANITARY VENDORS, INC., a New Jersey corporation, Plaintiff, v. Brendan T. BYRNE, Prosecutor of Essex County; Norman Heine Prosecutor of Camden County; Alvin E. Granite, Prosecutor of Gloucester County; Guy W. Calissi, Prosecutor of Bergen County; Laurence A. Whipple, Prosecutor of Hudson County Edward J. Dolan, Prosecutor of Middlesex County; Vincent P Keuper, Prosecutor of Monmouth County; H. Douglas Stine Prosecutor of Union County; Thomas J. Muccifori, Assistant Prosecutor of Ocean County; Frank C. Scerbo, Prosecutor of Morris County; Clyde C. Jefferson, Prosecutor of Hunterdon County; Frank A. Dolan, Prosecutor of Sussex County; Stanley E. Rutkowski, Prosecutor of Mercer County; Arthur S. Meredith, Prosecutor of Somerset County and the State of New Jersey, Defendants.

No. L--11133.

Superior Court of New Jersey Law Division.

Jan. 17, 1962.

David Schechner, Newark, for plaintiff.

Evan W. Jahos, Deputy Atty. Gen., for defendants (David D. Furman, Atty. Gen., attorney).

WAUGH, A.J.S.C.

This is a declaratory judgment action brought under N.J.S. 2A:16--50 et seq., N.J.S.A., to determine the validity of N.J.S. 2A:170--76, N.J.S.A., a section of the Disorderly Persons Act. The parties have stipulated as to the facts.

The plaintiff Sanitary Vendors, Inc. is a New Jersey corporation engaged in the vending machine business in 14 counties throughout the State. At various locations it has installed automatic vending machines which deliver packages of prophylactics or condoms to persons who deposit a certain amount of coinage in the machine.

At various times since 1951 the defendants and other law enforcement authorities, in the enforcement of N.J.S. 2A:170--76, N.J.S.A., have confiscated vending machines operated by the plaintiff. Agents of the plaintiff and owners of the location have been threatened with arrest if they resisted the removal of machines. As a result of the defendant's actions, the plaintiff brought this action to have N.J.S. 2A:170--76, N.J.S.A. declared unconstitutional and therefore unenforcible; to enjoin the defendants and other law enforcement officers from enforcing the act; and to declare the rights and status of the plaintiff under N.J.S. 2A:170--76, N.J.S.A.

N.J.S. 2A:170--76, N.J.S.A. states:

'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 or purporting to be designed for the prevention of conception or the procuring of abortion, or who in any way advertises or aids in advertising the same, or in any manner, whether the recommendation for or against its use or otherwise, gives or causes to be given, or aids in giving any information how or where any such instrument, medicine or other thing may be had, seen, bought or sold, is a disorderly person.'

Unquestionably, the plaintiff is entitled to a declaration of its rights and status under the statute. Lucky Calendar Co. v. Cohen, 19 N.J. 399, 117 A.2d 487 (1955), reaffirmed at rehearing, 20 N.J. 451, 119 A.2d 14 (1956), is squarely in point. There the plaintiff corporation, which was warned that its activities in the sales promotional field would cause it to be subject to criminal proceedings as in violation of our lottery statutes, was held entitled to a declaratory judgment.

Chief Justice Vanderbilt, speaking for our Supreme Court in Lucky Calendar at pages 408, 409, of 19 N.J., at page 493, of 117 A.2d said:

'In this case there is a Bona fide justiciable controversy as to the legal rights of the plaintiff to engage in the kind of activity discussed herein * * *. Accordingly, there are present the necessary elements for a declaratory action. Borchard, Declaratory Judgments (2d. ed. 1941), chapter II. * * * The advantages of such a proceeding are summarized in Borchard, supra, at page 1020:

'The criminal prosecution is at best a crude weapon of social control. While it may be the only instrument available to punish and exercise, if possible, the major offenses against society, it is quite unsuited to the more subtle adjustments of competition, business practice and regulation which mark the impact of modern industry and business on all classes of society. What is here needed is not the policeman's club but the arbitrator's and traffic manager's refinement and direction of legislative correctives in the light of social need. The criminal trial is hardly the forum for making such adjustments, and for arguing out the shadowy and movable line between the permissible and the unprivileged practice."

Another circumstance making a declaratory judgment necessary in this case is the existence of three reported decisions touching upon the general subject matter of the statute here under consideration, namely, State v. Tracy, 29 N.J.Super. 145, 102 A.2d 52 (App.Div.1953); State v. Kohn, 42 N.J.Super. 578, 127 A.2d 451 (Cty.Ct.1956); and State v. Kinney Bldg. Drug Stores, Inc., 56 N.J.Super. 37, 151 A.2d 430 (Cty.Ct.1959).

In State v. Tracy, 29 N.J.Super. 145, 102 A.2d 52 (App.Div.1953), the Appellate Division upheld the conviction of the defendant as a disorderly person for violating N.J.S. 2A:170--76, N.J.S.A. The defendant there sold prophylactics by machine, the same factual situation as involved here.

The holding of the court in Tracy may be said to be:

(1) The court may take judicial notice that the prophylactics 'have the appearance of being' designed as contraceptives;

(2) the statutory words 'designed or purporting to be designed for the prevention of conception' do not require proof that they were 'designed exclusively for that purpose';

(3) the State need not prove an intent on the vendor's part to sell for an illegal purpose; and

(4) as a corollary to 3, the statute does not require proof of a criminal purpose.

In Tracy, the court by way of Obiter dicta said at page 151 of 29 N.J.Super., at page 55 of 102 A.2d:

'There are two things to be said as to these federal cases. First, other courts faced with statutes similar to the federal statutes--similar, in that they contain no exception to cover the matter of proper medical use--have rejected the federal authorities, refusing to inject into their statutes such an exception. State v. Nelson, 126 Conn. 412, 11 A.2d 856 (Sup.Ct.Err.1940); Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582 (Sup.Ct.Err.1942); Commonwealth v. Gardner, 300 Mass. 372, 15 N.E.2d 222 (Sup.Jud.Ct.1938); Lanteen Laboratories, Inc. v. Clark, 294 Ill.App. 81, 13 N.E.2d 678 (App.Ct.1938). Second, the New Jersey statute is not so unreasonable as to warrant the taking of liberties with its language. Indeed, it is quite different from the statute first enacted in New Jersey, L.1869, p. 1115, which was unqualified in its terms, and which in that respect was like the Comstock Act of 1873, now 18 U.S.C. § 1461, supra, and like other similar statutes enacted then and thereafter in a nation-wide movement (cf. Lanteen Laboratories, Inc. v. Clark, 294 Ill.App. 81, 13 N.E.2d 678 (App.Ct.1938)). However, the Revision of 1877, p. 234, § 44, introduced into our statute the words 'without just cause,' a phrase not found in the federal acts; and these words make provision for the very situations that concern the federal courts, the cases of 'proper medical care' and the like. * * *'

That this is Obiter is clear from the opinion at page 148 of 29 N.J.Super., at page 53 of 102 A.2d, wherein the court says:

'* * * However, with respect to the statutory provision as to 'just cause,' no question was raised below, and the briefs here do not go into it. Cf. 153 A.L.R. 1218, 1220, 1221.'

In State v. Kohn, 42 N.J.Super. 578, 127 A.2d 451 (Cty.Ct.1956), the defendant was owner of a wholesale and retail rubber goods business. Codefendant Simon was an employee who sold a package of condoms to a detective, and as a result both defendants were convicted for violating N.J.S. 2A:170--76, N.J.S.A., Kohn in that he did possess, and Simon in that he did sell 'without just cause * * * an article known as a rubber prophylactic * * * designed and purportedly designed for the prevention of conception.'

On appeal to the County Court the defendants attacked N.J.S. 2A:170--76, N.J.S.A. 'as invalid by reason of its vagueness.' They argued that 'a statute, especially one with criminal sanctions, which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application is invalid, and violates 'the first essential of due process of law. " The court, after giving a complete history of the particular legislation involved, sustained the statute and held that the words 'without just cause' meant 'proper medical care' 'and the like.' It held that just cause might be proven by a defendant 'by all the circumstances of the case.'

The plaintiffs here urge that the County Court judge who decided Kohn misread Tracy. This court is of the opinion that the confusion is with counsel. Tracy determines that Mens rea or criminal intent is not required to be proven in this type of case. It nowhere suggests that a defendant is not completely free to show cause, as Judge Gaulkin puts it on page 586, of 42 N.J.Super., on page 455 of 127 A.2d, 'the purpose of possession, i.e., the intent * * * not by private thoughts of the defendant but as intent is usually proven, namely by all of the circumstances in the case.'

In State v. Kinney Bldg. Drug Stores, Inc., 56 N.J.Super. 37, 151 A.2d 430 (Cty.Ct.1959), defendants were convicted of uttering 'without just cause a thing purporting to be designed for the prevention of conception * * *.' On appeal, a motion was made to dismiss the complaint for the reason that the statute upon which the alleged offenses are predicated (N.J.S. 2A:170--76, N.J.S.A.) is unconstitutional under both the N.J.Const.1947, Art. I, par....