Defendant Kohn owns a wholesale and retail rubber goods business, and defendant Simon is one of his employees. Simon sold a package of condoms to a detective and as a result defendants were convicted of violating N.J.S. 2 A:170-76, Kohn in that he did possess, and Simon in that he did sell (in the words of the complaints) "without just cause * * * an article known as a rubber prophylactic * * * designed and purportedly designed for the prevention of conception." Defendants appeal.
Since no stenographic record was made below, these appeals came before this court for a "plenary trial de novo without a jury." R.R. 3:10-10. In their openings, before any testimony was taken, counsel for defendants vigorously attacked N.J.S. 2 A:170-76 as invalid by reason of its vagueness. Counsel agreed to treat the openings as motions to dismiss the complaints, and the taking of testimony was deferred until a ruling on the motions. Excellent briefs were thereafter filed by all counsel, after which the matter was ably argued orally.
Defendants' argument may be summarized as follows:
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." A law must adequately inform persons of the things they are forbidden to do. In support of these propositions defendants cite United States v. L. Cohen Grocery Co. , 255 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516 (1921); Connally v. General Construction Co. , 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926); Lanzetta v. New Jersey , 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939); State v. N.Y. Central R.R. Co. , 37 N.J. Super. 42 (App. Div. 1955).
N.J.S. 2 A:170-76 provides:
"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 by 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."
When this statute was first passed (L. 1869, p. 1115) it did not contain the words "without just cause." The statute then "was unqualified in its terms * * * like * * * 18 U.S.C. § 1461 * * * and like other similar statutes enacted then and thereafter in a nation-wide movement," State v. Tracy , 29 N.J. Super. 145, 151 (App. Div. 1953).
Although our statute has been on our books since 1869, no reported case arose under it prior to the Tracy case. When similar statutes came before other courts, those courts fell into two groups in their constructions. Some, including the federal courts, held that although their statutes by their terms absolutely forbade possession of or traffic in contraceptives, "the intention to prevent a proper medical use of * * * articles merely because they are capable of illegal use is not lightly to be ascribed" to a legislature. Youngs Rubber Corp. v. C.I. Lee & Co. , 45 F.2d 103,
108 (2 Cir. 1930); U.S. v. One Package , 86 F.2d 737 (2 Cir. 1936); State v. Arnold , 217 Wis. 340, 258 N.W. 843 (Sup. Ct. 1935); Commonwealth v. Corbett , 307 Mass. 7, 29 N.E. 2 d 151 (Sup. Jud. Ct. 1940). Therefore those courts required that there be shown "an intent * * * that the article * * * be used for illegal contraception." Tracy , 29 N.J. Super. , at page 150; Youngs Rubber Corp. v. C. I. Lee & Co., supra; United States v. One Package, supra; United States v. Nicholas , 97 F.2d 510 (2 Cir. 1938); Davis v. United States , 62 ...