For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Oliphant. The opinion of the court was delivered by Vanderbilt, C.J.
In a recent decision, 19 N.J. 399 (1955), this court decided adversely to the plaintiff its suit for a declaratory judgment not merely with respect to its "coupon calendar" mentioned in the complaint and stipulation of facts, but also with respect to its "jingle calendar" which was produced at the oral argument by the defendant.
The plaintiff then moved for a rehearing on various grounds, one of which asserted that it was denied due process with respect to the jingle calendar. To remove any possible doubt on that score we granted a rehearing limited to that ground alone, 20 N.J. 160, December 5, 1955.
The stipulation of facts in the case set forth that the plaintiff and the American Stores Company (which operates 278 Acme Stores in New Jersey) had contracted to introduce and operate the coupon calendar program in this State, but because of the doubt cast on the legality of the program by the defendant and his threat of criminal prosecution if it was pursued in his county, it did not desire to subject itself and its customer, The American Stores Company, to the hazards incident to a continuance of the program. This
quite naturally led the trial court to believe that there was a bona fide controversy involving a substantial part, if not the whole, of the plaintiff's business here, and that the inception of the program was imminent. The trial judge (36 N.J. Super. 300 (Law Div. 1955)), in disposing of the procedural preliminaries, correctly noted that:
"The first question presented is whether an actual controversy exists that is ripe for judicial interpretation. The Uniform Declaratory Judgments Act cannot be used to decide or declare rights or status of parties upon a state of facts which are future, contingent and uncertain. The act is not to be used to obtain advisory opinions. Tanner v. Boynton Lumber Co., 98 N.J. Eq. 85 (Ch. 1925)."
This court, too, in its opinion (19 N.J. 399, 408-409) naturally relied upon the allegations of the stipulation of facts which led us to believe that substantial business operations of the plaintiff in this State were at stake and that its customer, The American Stores Company, was in agreement with it.
We now learn from the papers now submitted to us that the facts are totally different from those presented to us on the original argument. The plaintiff did not reveal until the filing of its papers on the present reargument that it had several different types of promotion schemes available for use under the name "Lucky Calendar." It did not inform the court in its brief prior to the argument, or even in the oral argument on September 27, 1955, that it had contracted with The American Stores Company for an entirely new and different promotion for New Jersey, i.e., the Lucky Calendar Jingle Contest.
Not only was the Coupon Calendar not in use at the time the plaintiff was asking this court for a declaratory judgment, but we are now informed, for the first time, that The American Stores Company had specifically refused to use the Lucky Calendar Coupon promotion in New Jersey because in the opinion of its general counsel the program was an illegal lottery under the laws of New Jersey and that it had refused to be a party to a test case to be instituted here because it "was not the policy of the company to become
involved in the interpretation of criminal statutes." In fact The American Stores Company advised the plaintiff that
"If ultimately they were successful in establishing the legality of a promotion of this nature (the coupon calendar), if in the future we again used the Lucky Calendar promotion, we would consider its operation in New Jersey."
Thus it is now admitted that there was in fact no uncertainty on the part of The American Stores Company as to the illegality of the coupon calendar, contrary to what was alleged in the complaint and the stipulation of facts.
Even after the decision of the trial court sustaining the alleged legality of the coupon calendar, The American Stores Company still refused to use the coupon drawing type of promotion in New Jersey, because it did not consider the decision of that court binding throughout the State, adhering, it is obvious, to its belief that the coupon program was illegal and would be so construed by our appellate courts.
The jingle calendar promotion program was instituted here, according to the plaintiff, "about the second or third week of September, 1955, to run for a period of 13 weeks up to and including December 17, 1955."
This was the state of affairs that existed September 27, 1955, the day of argument of the appeal from the judgment of the trial court in plaintiff's favor. At the oral argument the Deputy Attorney-General presented to the court a copy of the jingle calendar then in use. The plaintiff's counsel stated on the motion for reargument that he did not expect that the jingle calendar would be mentioned or referred to until he heard and saw it presented to this court by his opponent. This court would never have known of this vital change in the facts submitted to it in the stipulation of facts if the jingle calendar had not been called to its attention by the defendant. An action for ...