For the prosecutor, Sher & Sher (Saul Sher, of counsel).
For the respondents, Charles A. Rooney (Edward A. Malone, of counsel).
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PERSKIE, J. Prosecutor challenges the propriety of the judgment of conviction against it in the First Criminal Court
of the Bureau of Combustibles of Jersey City, which charged that, on March 17th, 1941, it was the owner of a tank wagon which it used for the "transportation of oil" within the corporate limits of Jersey City without having secured a permit for so doing, "contrary to and in violation of paragraph 6, chapter 3, paragraph 16 of the Rules and Regulations of the Board of Fire Commissioners of Jersey City," passed on April 3d, 1907, pursuant to the provisions of "C. 249, Pamph. L. 1906, p. 526, now N.J.S.A. 40:174-120."
The facts which give rise to the challenge are free from substantial dispute.
Prosecutor is engaged in the retail business of selling fuel oils, graded as numbers 2, 5 and 6. Its place of business is in the Town of Kearny, New Jersey, where it maintains its storage tanks, garages, trucks, tank wagons and equipment. It makes deliveries of its products to its customers in some 250 municipalities embraced within the territory "from the Raritan River up to the New York State line." It uses between six and twenty of its trucks or tank wagons, depending upon the season of the year.
Prosecutor neither maintains an office, nor keeps its products, nor its equipment in the City of Jersey City. The only times its trucks and tank wagons are in Jersey City are when they are used for the purpose of making deliveries of oil to prosecutor's customers in Jersey City and when the trucks and tank wagons are used for transporting oil through the city.
In the course of its business prosecutor admittedly did use, as charged, one of its tank wagons for the "transportation of oil" (grade number 6), to one of its customers in the City of Jersey City without having first secured a permit, as allegedly required, for so doing.
Let us briefly analyze the legislation (state and local) upon which the complaint, proofs ...