This is a trial de novo in the Essex County Court upon appeal from a judgment of conviction in the Municipal Court of the City of Newark for a violation of R.S. 51:1-29 in that the defendant "did expose for sale and did sell 15 packages of butter which were represented to be one pound net, which packages did in fact weigh less than one pound net."
This matter having been tried by the Court without a jury, the following facts were elicited: On September 30, 1959, Michael Giuliano and Charles Riccardi of the Division of Weights and Measures made an inspection of the butter in question at the retailer's premises and found each package to be short of the stated net weight by one-half to three-eighths of an ounce. The court notes parenthetically that the retailer was originally a party defendant but apparently with the State's consent the complaint against the retailer was dismissed. If this was done on the theory that the wholesaler ought to take the fall so to speak, it was improper. Retailers properly found guilty of short weight will soon buy only from wholesalers who pack properly to allow for normal shrinkage. The butter in question had been
packaged by the defendant and supplied to the retail store by a distributor. A coded marking on the wrappers indicated that a minimum of 23 days had elapsed from the date the butter therein contained had been packed until it was inspected on September 30. Further testimony indicated that butter has a tendency to shrink due to its high water content, and that a variance in temperature will induce shrinkage.
"No person shall distribute or sell, or have in his possession with intent to distribute 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.
Reasonable variations, tolerances and exemptions as to small packages shall be permitted. The state superintendent shall by order fix such tolerances and exemptions as to small packages as shall have been or may hereafter be fixed by the secretary of the treasury, the secretary of agriculture and the secretary of commerce of the United States of America.
Such tolerances and exemptions shall be published at the end of the session laws of the legislature next thereafter published after the making of said order and shall take effect when so published.
If any such tolerance or exemption, so adopted, shall be changed by the three secretaries above named, it shall not continue in effect in this state after such change has become effective. Any such order may be prima facie proven in any court by the mere production of the volume of such laws containing the publication thereof.
Any person violating any of the provisions of this section shall for the first offense be liable to a penalty of not less than twenty-five nor more than fifty dollars, and for a second offense to a penalty of not less than fifty nor more than one hundred dollars, and for each subsequent offense to a penalty of not less than one hundred nor more than two hundred dollars."
The only reported opinion construing this statute is State v. Hotel Bar Foods , 18 N.J. 115 (1955), most of which it is noted is by way of dictum , since the convictions there under review were for violations of R.S. 51:1-96. In that opinion the court stated at page 123:
"The Superintendent never adopted any regulations pursuant to the statutory direction that reasonable ...