of a plastic material other than glass since it requires them to be melted). This enactment reflects a concern for unintended misuse or injury, not unlike the concern reflected by N.J.S.A. 2A:170-25.16 (discard or abandonment of intact TV picture tubes in certain cases), and N.J.S.A. 2A:170-25.2 (discard or abandonment of refrigerators, freezers, etc., having a latched door, in places accessible to children).
New Jersey has also made it a disorderly act to grow marijuana, N.J.P.L. 1952, c. 106, N.J.S.A. 2A:170-25.1, and in the period when "glue sniffing" was popular among young people, it acted in that field, N.J.S.A. 2A:170-25.9 to 25.13 (1965, as amended 1971).
The court has found no reported New Jersey decision on the subject of State law pre-emption, either in regard to the subject-matter of the challenged ordinance, or in regard to the New Jersey Controlled Dangerous Substances Act, or the various statutes mentioned in regard to sale or possession of hypodermic syringes or needles, the discard or abandonment thereof, the growing of marijuana, or the discard or abandonment of TV picture tubes or latched refrigerators, and the like.
In these circumstances the court is bound to follow the principles laid down by Judge Garth in D'Iorio v. County of Delaware, 592 F.2d 681 (CA-3, 1978), whose three-part test is met here on the State-law pre-emption issue, and under the circumstances of this case call for the exercise of discretion to abstain on the point.
This point is not the same as the matter of abstention in respect to some possible saving construction of the ordinance, if there be no pre-emption but if the ordinance be defective for vagueness or overbreadth.
Perhaps the best examples here are in the field of obscenity laws, an extremely difficult subject at best and one as to which the decisions of the Supreme Court of the United States over a period of time have left the legislative, legal and judicial community in a state of amorphous uncertainty.
In 1972, a three-judge court held a 1971 New Jersey obscenity statute unconstitutional for failure to clear the three hurdles specified by Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966). See Cine-Com., etc. v. Lordi, 351 F. Supp. 42 (D.N.J., 1972). The same result was reached by a three-judge court in Hamar Theatres v. Cryan, 365 F. Supp. 1312 (D.N.J., 1973), although by that time a new test had been articulated by Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) and related cases.
Thereafter, following the grant of certiorari and the entry of orders vacating judgments of conviction and remand for further consideration in light of Miller, a New Jersey case reached the Supreme Court of New Jersey, State v. DeSantis, 65 N.J. 462, 323 A.2d 489 (1974). In that case a unanimous court adopted a saving construction, in statute-like text, 65 N.J. at 474, 323 A.2d 489, yet it felt obliged to set aside the convictions because neither the statute nor the existing decisions had given defendants fair notice and due warning of the limited saving construction, which was prospective only.
But, see, Proprietary Ass'n. v. Board of Pharmacy, 16 N.J. 62, 106 A.2d 272 (1954), where a unanimous court in an opinion by Mr. Justice Jacobs (who also wrote the court's opinion in DeSantis ) directed the dismissal of a declaratory judgment suit to construe the term "nonpoisonous patent or proprietary medicines", as used in N.J.S.A. 45:14-29 on the ground that the matter was one for legislative consideration, and despite the fact that the record at the trial level did contain expert testimony in regard to a long list of specific medications adequate to allow declaratory adjudication for them in the absence of a general judicial articulation of the meaning of the statutory expression. It may be that this result was due, at least in part, to the failure to raise federal constitutional issues of vagueness and due process, issues which at the time were not advanced with the frequency they are today. Compare the perceptive opinion of Judge Colie, 27 N.J.Super. 204, 99 A.2d 52 (Law, 1953), at the trial level.
Vagueness and overbreadth
The concepts of vagueness and overbreadth are both grounded, so far as the States and their subdivisions are concerned, on the Due Process Clause of U.S.Const. Amend. 14.
This limitation on the exercise of the power of government finds its origin in Art. 39 of Magna Charta granted at Runnymede by King John June 15, 1215 (and recognized as valid despite the later Papal Bull declaring it void for duress):
"No freeman shall be taken or imprisoned, or disseized, or outlawed, or banished, or in any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, Or by the law of the land." (Emphasis added).