For affirmance -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J. Hall, J., concurring in result.
The Law Division entered a judgment declaring Chapter 174 of the Laws of 1962 (N.J.S. 2A:170-77.2a, 77.2b) to be constitutional. The plaintiff appealed to the Appellate Division and we certified before argument there.
In 1960 a joint legislative commission was created to study and investigate obscenity in certain publications and to report its findings together with legislative proposals. In due course the commission submitted its final report. See N.J. Legislature, Joint Commission to Study Obscenity in Certain Publications, Final Report (1962). It made a conclusional finding that the "sale of obscene and pornographic materials constitutes a serious threat to the ethical and moral well-being of the youth of the State and thus creates a clear and present danger to all its citizens." It also made several legislative recommendations. Firstly, it recommended that the definition of obscenity expressed in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2 d 1498 (1957), be incorporated in Chapter 115 of Title 2A of the New Jersey Statutes. This was done by the enactment of Chapters 165 and 166 of the Laws of 1962 (N.J.S. 2A:115-1.1; N.J.S. 2A:115-3.4). Secondly, it recommended that there be statutory authority for the use of a limited injunction against the sale of obscene materials. This was provided for in Chapter 166 of the Laws of 1962 (N.J.S. 2A:115-3.5). Thirdly, it recommended that, in order to strengthen existing legislation dealing with tie-in sales (N.J.S. 2A:115-3.1; cf. N.J.S. 2A:170-77.2), "the shipment by a distributor of any publication not previously ordered by name in writing by the newsdealer should be declared a disorderly act." Assembly Bill No. 492 was introduced to implement this recommendation. The introducer's statement set forth the purpose of the bill as being to relieve retailers who sell newspapers, magazines, periodicals, pocket books and the like, of the burden of handling and storing "unwanted materials." It also noted that the bill was intended to place the responsibility for handling "objectionable material" upon the retailer since he will have to order it and,
"at the same time, to prevent distributors from disseminating the increasing supply of obscene publications for which they claim no responsibility."
The bill passed both the Assembly and the Senate but was conditionally vetoed by the Governor. In his veto message, the Governor expressed the view that while efforts designed to eliminate obscenity should be supported, care must be taken to insure that those efforts do not infringe on the constitutional right of free expression. He considered that the bill as passed was unduly broad and would seriously hamper the distribution of all publications whether obscene or not, and he voiced the thought that the evils aimed at by the Legislature could be dealt with effectively without impairment of any of the constitutional freedoms. He suggested that the bill be altered to permit a distributor to deliver publications to a retailer as theretofore, except where the retailer has given written direction that a particular publication shall not be sent; in such event, the distributor would be obliged to honor the direction and if he failed to do so the retailer would be enabled to notify him to remove, promptly and without charge, the unordered and unwanted publication under penalty of law. The Governor's suggestion was adopted by the Legislature and the altered bill, as passed and approved by the Governor, became Chapter 174 of the Laws of 1962. It reads as follows:
"1. No person, firm or corporation engaged in the business of distribution of books, magazines or publications of any kind to retail dealers, after notification in writing by a retail dealer not to send or deliver to such dealer any book, magazine or other publication, shall send or deliver to such dealer such book, magazine or other publication.
2. Any person, firm or corporation which fails to comply with the provisions of section 1 of this act, after oral or written notification of such failure to comply by a retail dealer, shall forthwith remove from the possession of such dealer the book, magazine or other publication which was improperly delivered without cost or charge to the dealer. Any person, firm or corporation failing or refusing to remove such publications by the end of the second business day following notification of improper delivery shall be a disorderly person and
shall be subject to a fine of not less than $500.00 or imprisonment for 30 days or both."
After the passage of the law, the plaintiff received a letter from the Hudson County Prosecutor's office inviting it to attend a conference where the new laws relating to "obscene publications and the sale and distribution of all magazines and publications" would be considered. At that conference the representative of the prosecutor stated that his office would immediately prosecute any violations of Chapter 174. Similarly the Chief of Police of East Orange, Essex County, addressed a letter to newsdealers, citing Chapter 174 and requesting that violation by any distributor be called to his attention so that action might be taken forthwith. Thereafter the plaintiff filed a petition in the Law Division of the Superior Court, naming the Attorney General and the Prosecutors of Hudson and Essex Counties as defendants, and seeking a declaration that Chapter 174 is unconstitutional. The petition alleged that the plaintiff is a wholesale distributor of newspapers, magazines, paperback books and other publications and does business in the State of New Jersey including Hudson and Essex Counties; it distributes publications to over 1500 retail dealers and its sales amount to $6,000,000 annually; its policy has always been to refrain from delivering any title or titles "if so requested by any dealer"; its practice is "to make a pickup once every week of all returns from retail dealers"; and, if it were required to arrange for the pickup of particular unwanted publications as provided by Chapter 174, it would be subjected to additional expenditures and its present method of distribution would be rendered "economically unfeasible."
The petition sought a preliminary injunction; and an order to show cause why such relief should not be granted was issued. Answers were filed by the defendants and the order to show cause came on for hearing before Judge Fusco. At that time counsel agreed that there were no material factual disputes and that the matter could be disposed of as though on final hearing. No question was presented as to the
suitability of the proceeding which was under the Declaratory Judgments Act. N.J.S. 2A:16-50 et seq.; Lucky Calendar Co. v. Cohen, 19 N.J. 399, 408-409 (1955). After hearing argument, the court determined that the statute is constitutional and a judgment to that effect was entered. In support of its appeal, the plaintiff advances the same three points which were rejected below. It contends that Chapter 174 (1) imposes "an arbitrary and oppressive restriction on a lawful business" and thereby denies due process, (2) impairs ...