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State v. Kinney Building Drug Stores Inc.

Decided: May 11, 1959.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KINNEY BUILDING DRUG STORES, INC., ET AL., DEFENDANTS-APPELLANTS



Conklin, J.c.c.

Conklin

[56 NJSuper Page 38] These three matters come before the court on appeals from the Newark Municipal Court. Although no testimony was taken before this court, it is agreed between the parties that on September 25, 1958 detectives in the employ of the Newark Police Department purchased articles for the prevention of conception. The sales were made in the Kinney Building Drug Stores, Inc., one by the registered pharmacist, and the other by his assistant. Apparently, neither of the persons inquired as to the circumstances

under which they would be put to use, nor did they inquire as to why the purchases were being made.

As the direct and proximate result of these two sales, the Kinney Building Drug Stores, Inc., and its two employees were charged with violation of N.J.S. 2 A:170-76, a section of the Disorderly Persons Act.

The complaint against Kinney states:

"He said Kinney Building Drug Store, Inc., did then and there without just cause possess with the intent to utter same, certain things purported to be designed for the prevention of conception, in violation of R.S. 2 A:170-76, on the twenty-fifth day of September, A.D., 1958, at Newark, aforesaid."

As to the individual defendants, it is complained:

"* * * did then and there utter without just cause a thing purporting to be designed for the prevention of conception * * *."

The trials in the Newark Municipal Court resulted in convictions of all three defendants and, pursuant to R.R. 3:10-1 et seq. , the three defendants appealed to the Essex County Court. The three defendants moved for "a more specific complaint," which motions were denied. The Kinney Building Drug Stores, Inc., now moves, in which the other defendants join by amendment of the pleadings and with consent of the State, to dismiss the said complaints for the reason that the statute upon which the alleged offenses are predicated, N.J.S. 2 A:170-76, is unconstitutional under both the N.J. Const. 1947, Art. I, par. 1, and the U.S. Const., Amend. XIV, ยง 1.

"Section 1. * * * No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The court would be remiss in not commenting that the question posed was not only well briefed and argued by the State (the State properly represented pursuant to R.R.

4:37-2), and the defendants, but the amici curiae as well, namely, the New Jersey Catholic Conference, Episcopal Diocese, Youngs Rubber Corp., Ortho Pharmaceutical Corp., New Jersey Council of Churches, ...


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