For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Jacobs, J. Vanderbilt, C.J., and Wachenfeld, J., concurring in result.
The respondent Safeway Stores, Inc. was convicted in the Municipal Court of Clifton for violation of R.S. 51:1-96; a similar conviction was entered in the Municipal Court of Jersey City against the respondent Hotel Bar Foods, Inc. On appeals duly taken, the Safeway Stores conviction was reversed in the Passaic County Court and the Hotel Bar Foods conviction was reversed in the Hudson County Court. Thereafter the State filed separate notices of appeal to the Appellate Division and they were consolidated in that court. We granted certification under R.R. 1:10-1(a).
The facts in the Safeway case as found in the County Court were as follows: The Clifton Superintendent of Weights and Measures visited a Safeway retail grocery store located at 385 Lakeview Avenue and weighed packages of butter which were labeled to show the net weight of one pound. One had a net weight of one-fourth of an ounce less than the stated net weight, another had a net weight of three-eighths of an ounce less than the stated net weight, and some weighed "one pound net or more." The butter had been packaged for and delivered to Safeway "f.o.b. railway freight car at Chicago, Illinois, and was promptly shipped to New Jersey by rail in interstate commerce." At the time the butter was packaged and shipped "the average net weight of each package was at least one pound, one-eighth ounce." While at the Safeway store the Clifton superintendent also weighed packages of beans which were labeled to show the net weight of one pound. Two of the packages had a net weight of one-half ounce less than the stated net weight, one of the packages had a net weight of one-fourth ounce less
than the stated net weight, and some of the packages "weighed one pound net or more." The beans had been packaged at Saginaw, Michigan, and were sold to Safeway "f.o.b. railway freight car at Saginaw," and were promptly shipped to Safeway in New Jersey by rail in interstate commerce. At the time the beans were packaged and shipped "the average net weight of each package in the shipment was at least one pound, one-eighth ounce."
The facts in the Hotel Bar Foods case as found in the County Court were as follows: An assistant superintendent of weights and measures of the City of Jersey City visited a retail grocery store at 212 Washington Street where he took 15 packages of butter bearing the label "Hotel Bar Butter, 1-lb. Net, Distributed by Hotel Bar Butter Co., N.Y." He found that they each weighed one pound gross, including the wrapping. The dry weight of the wrapping "was between one-fourth and three-eighths of an ounce." Although the County Court did not embody it in its findings of fact, there was testimony establishing that Hotel Bar Butter is packaged at the company's New York plant by modern machines which are set at one-eighth above the pound to provide for normal shrinkage through evaporation.
The sole offenses actually charged in the complaints filed against Safeway and Hotel Bar were alleged violations of R.S. 51:1-96; the County Courts held that statute to be inapplicable to packaged food such as that sold by Safeway and Hotel Bar. They expressed the view that the applicable and controlling statute was R.S. 51:1-29 which provides specifically that no person shall possess or sell "any article of food in package form" unless the net quantity of the contents be plainly and conspicuously marked on the outside of the package in terms of weight, measure or numerical count. That statute, however, provides that "Reasonable variations, tolerances and exemptions as to small packages shall be permitted"; the County Courts found that the State Superintendent of Weights and Measures had "not fixed any tolerances for, or deviations from, stated label weight of food in package form."
The original source of R.S. 51:1-96 was chapter 201 of the Laws of 1911. That was entitled "An Act to establish a uniform standard of weights and measures in this State, to establish a department of weights and measures, and to provide penalties for the use of other than standard or legal weights and measures." See Const. 1947, Art. IV, Sec. VII, par. 4. The history and terms of the act indicate that the problem then being dealt with was one of false weighing and measuring apparatuses. As expressed in the 1912 Report of the Department of Weights and Measures (at page 5): "incorrect instruments and appliances were sold to dealers" and honest merchants "found they could meet their competitors in everything save that of short weighing and measuring." Food was then generally sold from bulk and purchasers were dependent on the accuracy of the scales and measures and the integrity of the individual retailers. The 1911 act prescribed the standards of weights and measures and directed the state superintendent to fix tolerances of at least one-half of one per cent. L. 1911, c. 201, p. 424. In section 26 it provided that any person who injures or defrauds another by use of "a false weight, measure or other apparatus, for determining the quantity of any commodity, or article of merchandise, or sells or exposes for sale less than the quantity he represents" should be guilty of a misdemeanor. Although the latter language was very broad in scope it would seem clear that the Legislature did not at that time envision the later developments which encompassed the widespread retail sale of packaged food without any accompanying weighing or measuring.
In the 1914 Report of the Department of Weights and Measures, the State Superintendent referred to a net weight container bill which had been introduced in the Legislature and which required that food in package form bear labels setting forth the net weight, numerical count or measure. In support of the bill, he made the following comments (at page 12):
"The preference these days seems to be in favor of package goods, notwithstanding they cost more than goods in bulk. There is not
much difference in the quality usually. It costs to place foodstuffs in packages. Then there is the advertising to be considered and the giving of premiums, both of which are necessities that cannot be dispensed with. Manufacturers, to realize on their investments, must get a higher price for their goods and reduce the contents of the packages. This course has been uniformly followed, with the result that today we pay more and get less when buying package goods. There is no doubt upon this point. After considering the matter, we are of the opinion that people want package goods -- they're cleaner. Since they want them, let them have them, but, first, let them see what they are paying for and getting -- that is what our Net Weight Container bill seeks to bring about. Most of the large manufacturers mark the weight of contents on their packages; some others make no reference on their packages to weight of contents. The bill we have presented will place competition on a ...