For affirmance -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The plaintiff filed a complaint in the Law Division seeking a declaration that N.J.S. 2A:170-76 is unconstitutional and other relief. From an adverse judgment it appealed to the Appellate Division and we certified before argument there.
The plaintiff is engaged in the automatic vending machine business and from time to time has installed its machines at various locations throughout the State. The machines deliver packages of prophylactics (condoms) to persons who deposit designated coinage. Most of the machines have been located at gasoline stations and diners. Beginning in 1951 and continuing thereafter, various law enforcement officials at State, county and local levels, have either confiscated the machines or have threatened arrests if the machines were not removed. The officials acted under N.J.S. 2A:170-76 which provides, in pertinent part, that 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 for the prevention of conception, is a disorderly person. The plaintiff's contention is that the use of the words "without just cause" renders the statute so vague as to make it void under the United States and New Jersey Constitutions. See State v. Kinney Bldg. Drug Stores, Inc., 56 N.J. Super. 37 (Essex Cty. Ct. 1959). But cf. State v. Tracy, 29 N.J. Super. 145 (App. Div. 1953), certif. denied 15 N.J. 79 (1954); State v. Kohn, 42 N.J. Super. 578 (Essex Cty. Ct. 1956); cf. also State v. Hudson County News Co., 35 N.J. 284 (1961). In the Law Division, Judge Waugh rejected the
plaintiff's contention and took the position that the quoted phrase makes suitable provision for cases of proper medical care and the like. Sanitary Vendors, Inc. v. Byrne, 72 N.J. Super. 276, 286 (Law Div. 1962). He expressed no doubt that the indiscriminate distribution of contraceptives through vending machines was in violation of the terms and purposes of the statute. 72 N.J. Super., at pp. 283, 287.
The history of our legislation dealing with contraceptives may be referred to for whatever light it sheds as to the scope and meaning of the current enactment. An 1869 statute dealing with obscenity made it a punishable offense to sell or give away any article or medicine for the prevention of conception. L. 1869, c. 440, p. 1115. Similarly, an 1873 statute made it unlawful to sell or give away an article of medicine for the prevention of conception but it contained an express declaration that nothing therein shall render it unlawful for a physician to prescribe any medicine he may judge to be useful and proper. L. 1873, c. 408, p. 77. In the same year the United States Congress passed the well-known Comstock Act. 17 Stat. 598; see 18 U.S.C.A. §§ 1461, 1462. That statute declared as nonmailable, every article or thing designed or intended for preventing conception. Though it was absolute in terms, pertinent exceptions were declared in the course of its interpretation by the federal courts. See Youngs Rubber Corporation v. C.I. Lee & Co., 45 F.2d 103 (2 Cir. 1930); Davis v. United States, 62 F.2d 473 (6 Cir. 1933); United States v. One Package, 86 F.2d 737 (2 Cir. 1936); United States v. Nicholas, 97 F.2d 510 (2 Cir. 1938); Consumers Union of the United States v. Walker, 79 U.S. App. D.C. 229, 145 F.2d 33 (D.C. Cir. 1944); United States v. H.L. Blake Company, 189 F. Supp. 930 (W.D. Ark. 1960). See Stone and Pilpel, "The Social and Legal Status of Contraception," 22 N.C.L. Rev. 212, 221 (1944); Note, "Contraceptives and the Law," 6 U. Chi. L. Rev. 260, 264 (1939).
In Youngs Rubber, supra, the court noted that the intent to prevent a proper medical use of drugs or other articles merely because they are capable of illegal use is "not lightly
to be ascribed to Congress" and that the terms of the statute should be read so as to require an intent on the part of the sender that the articles mailed "be used for illegal contraception." 45 F.2d, at p. 108. In the Nicholas case Judge Learned Hand referred to Youngs Rubber as holding that since contraceptive articles may have lawful uses, statutes prohibiting them should be read "as forbidding them only when unlawfully employed." 97 F.2d, at p. 512. In the states, permissible modes of sale of contraceptives have often been specifically enumerated. See Note, "Some Legislative Aspects of the Birth-Control Problem," 45 Harv. L. Rev. 723 (1932); Hudson, "Birth Control Legislation," 9 Clev.-Mar. L. Rev. 245, 255-256 (1960). In City of Toledo v. Kohlhofer, 96 Ohio App. 355, 122 N.E. 2 d 20 (1954), the court dealt with a Toledo ordinance which prohibited the sale of contraceptive devices but made an exception in favor of physicians and druggists in their legitimate business. See McConnell v. Knoxville, 172 Tenn. 190, 110 S.W. 2 d 478, 113 A.L.R. 966 (1937). In holding that a prosecution under the ordinance could not be successfully maintained in the absence of a showing of knowledge by the seller that the contraceptive was to be used for "an unlawful purpose," 122 N.E. 2 d, at p. 26, the court relied specifically on the federal decisions. See also Commonwealth v. Corbett, 307 Mass. 7, 29 N.E. 2 d 151 (1940); cf. State v. Arnold, 217 Wis. 340, 258 N.W. 843, 846 (1935), where the court suggested that the seller's unlawful purpose could readily be inferred from the sale of contraceptives via a vending machine in a public place. See State v. Kohn, supra, 42 N.J. Super., at p. 586.
The terms of L. 1873, c. 408 were embodied in sections 45 and 49 of the 1874 revision of the act for the punishment of crimes; in addition, that revision set forth in section 44 that if any person without just cause shall utter or expose any thing designed for the prevention of conception, he shall be subject to fine or imprisonment. The revision of 1898 deleted sections 45 and 49 and section 44 became section 53. See L. 1898, c. 235, p. 808. Section 53 was subdivided in the revision
of 1937. The provision against the sale without just cause of contraceptives (and abortifacients) became R.S. 2:105-3 and the provision against the sale without just cause of obscene books and pictures became R.S. 2:140-2. In the latest revision, effective January 1, 1952, R.S. 2:105-3 was designated as a disorderly offense rather than a crime; it became N.J.S. 2A:170-76 and R.S. 2:140-2 became N.J.S. 2A:115-2.
In State v. Hudson County News Co., supra, the "without just cause" clause in N.J.S. 2A:115-2 was attacked as too vague to satisfy constitutional requirements. We rejected the attack in an opinion which found the clause to be reasonably certain and fairly informative in the light of its contextual purpose and common understanding; it was found to protect "those who may possess and distribute obscene material in the course of bona fide scientific, medical or comparable research or study or in the course of law enforcement activities or in other like circumstances where the nature of the possession and distribution is not related to the appeal to prurient interest." See 35 N.J., at p. 297. We recognize that our definition of the clause in the context of N.J.S. 2A:115-2 has little relation to the proper definition of the clause in the context of N.J.S. 2A:170-76. Nevertheless the Hudson County News Co. case is significant here for it serves to illustrate the traditional course of judicial interpretation which strains to give reasonable definiteness to general legislative standards and thereby avoid constitutional challenge. See United States v. Harriss, 347 U.S. 612, 618, 74 S. Ct. 808, 812, 98 L. Ed. 989, 996 (1954); Screws v. United States, 325 ...