This is a declaratory judgment action brought under N.J.S. 2A:16-50 et seq. , to determine the validity of N.J.S. 2A:170-76, 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 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 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.
"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."
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 (1955), reaffirmed at rehearing, 20 N.J. 451 (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, 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 (2 d 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 (App. Div. 1953); State v. Kohn , 42 N.J. Super. 578 (Cty. Ct. 1956); and State v. Kinney Bldg. Drug Stores, Inc. , 56 N.J. Super. 37 (Cty. Ct. 1959).
In State v. Tracy , 29 N.J. Super. 145 (App. Div. 1953), the Appellate Division upheld the conviction of the defendant as a disorderly person for violating N.J.S. 2A:170-76. 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 ...