omission and the words on their face were ambiguous, indefinite and uncertain. In Brewer, election officers were required by statute to perform certain duties after the ballots had been cast; violation of some of their duties was alleged but no fraud or intent to affect the election or its result was charged, nor was there any allegation that the election or its result had been affected. In Cline, the statute made it unlawful to make 'any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries' unless such persons conducted their operations 'at a reasonable profit' and the products involved could not 'otherwise be marketed.' These loose terms, meaningless as far as practical enforcement is concerned, cannot be set up as reasonably comparable to the state law before us. The latter has been construed by New Jersey's highest court as meaning 'If his place was open for the purpose of doing business indiscriminately with the public in the goods and wares usually sold therein, there was open exposure to sale within the statutory proviso'. We must agree with the fundamental soundness of that conclusion. And it is in accord with applicable federal law. In McGowan itself, supra, 366 U.S. p. 428-429, 81 S. Ct. p. 1106, the Supreme Court held regarding a Sunday Closing Law exemption clause, far less concise than the one here:
'Another question presented by appellants is whether Art. 27, § 509, which exempts the Sunday retail sale of 'merchandise essential to, or customarily sold at, or incidental to, the operation of' bathing beaches, amusement parks et cetera in Anne Arundel County, is unconstitutionally vague. We believe that business people of ordinary intelligence in the position of appellants' employer would be able to know what exceptions are encompassed by the statute either as a matter of ordinary commercial knowledge or by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county. See United States v. Harriss, 347 U.S. 612, 617-618 (74 S. Ct. 808, 98 L. Ed. 989). Under these circumstances, there is no necessity to guess at the statute's meaning in order to determine what conduct it makes criminal. Connally v. General Construction Co., 269 U.S. 385, 391 (46 S. Ct. 126, 70 L. Ed. 322).'
United States v. Petrillo, 332 U.S. 1, 7-8, 67 S. Ct. 1538, 1542, 91 L. Ed. 1877 (1947), stresses that in construing a state statute, such as Section 4, '* * * the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.' Roth v. United States, 354 U.S. 476, 490, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), categorically follows the Petrillo standard.
New Jersey also urges that the interpretation of the New Jersey statute, N.J.S.A. 2A:174-4, is exclusively a state concern and not justiciable in a federal court. It is argued that we are faced with a clear instance of judicial construction and therefore bound by the state court interpretation of Section 4. We are satisfied that the point is substantial but in view of our above conclusions it is unnecessary to pass upon it at this time.
The facts are generally admitted and the findings regarding them are as appear in this opinion.
The conclusions of law are as appear in this opinion.
By the express agreement of the parties in open court this case has been submitted for decision on its merits.
The amended complaint will be dismissed with prejudice and for nothing holden.
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