Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
Brillo Manufacturing Company, Inc. (Brillo) was convicted in the municipal court upon a complaint which charged that Brillo "at premises known as Steve & Jim's Market, * * * did then and there have in their possession and sell one (1) package of Brillo Soap Pads marked (12) twelve in a box and which actually did contain 11 pads contrary to R.S. 51:1-96 (third offense) * * *." Brillo appealed to the Bergen County Court. In that court the trial de novo proceeded, without objection, as if the complaint charged not an actual sale, or possession, but rather exposure "for sale less than the quantity represented," of a commodity defined in N.J.S.A. 51:1-96. The County Court found defendant guilty of this charge, and fined it $150. Defendant now appeals to this court.
There is no dispute as to the facts. Brillo manufactures and sells steel wool products, the best known of which is "Brillo Soap Pads." These are soap-impregnated metal fiber pads used for household cleaning purposes. They are packaged by defendant in boxes marked as containing 20, 12 and 5 pads each.
On August 25, 1959 the Superintendent of Weights and Measures of Garfield visited Steve & Jim's Market and there inspected eleven boxes of "Brillo Soap Pads." Each of these boxes was marked as containing twelve pads. Nine did contain twelve pads, but two contained only eleven. One of these two boxes was marked in evidence.
It is conceded by the State that defendant had no intent to defraud, nor to put less than twelve pads in each box. The defendant's evidence showed how the pads are prepared, packaged and inspected. The packing is done by the combined effort of people and machines. In front of each machine five girls make the actual count of the number of pads which the machine is to thrust into the boxes. These girls sit at a table on which there are a great number of the pads. As a conveyor moves in front of them, each girl places six pads in a cup on the conveyor. A sixth girl watches to see that each cup contains the required number of pads. The mechanical part of the packing is done by the machines, which push the contents of two cups into the open box, forming two rows or tiers within the box. The box is then mechanically closed (but not sealed) and is carried off by the conveyor.
The testimony was to the effect that Brillo has several plants; in the plant from which the package in evidence came there are four such machines; in addition to the girl who watches the count there are an inspector for each of these machines who watches to see that it operates properly and three supervisors on the floor who oversee the entire operation. The supervisors, as part of their duties, spot check the boxes throughout the day to make sure the machines are performing accurately.
Defendant admitted that occasionally the plunger of a machine will pull a pad out of a box before closing it. When that happens, the inspector immediately stops the machine and calls one of the supervisors, who takes the machine out of production. The engineering and machine departments then take over, and the machine is not put back into production until it operates properly. When a machine is taken out of production because of improper count in packaging at least five cases previously packed by this machine, or more if necessary, are opened and examined to determine where the miscount started. Brillo maintains an engineering department
consisting of five graduate engineers, and a machine department of forty trained machinists. The engineering department issues the necessary instructions to the machine department as to what adjustments are to be made, and inspects the machine thoroughly after all adjustments have been made by the machine department before the machine is put back into production.
Defendant's witnesses testified that Brillo has been unable to design or obtain equipment which would count the pads mechanically, because it is impossible to impregnate the pads with soap in a manner which will make them sufficiently identical in size, weight and shape to be counted by a machine. Defendant's witnesses testified that every effort is still being made to have such machinery designed, but thus far without success. Defendant ships hundreds of thousands of packages of the pads weekly from the factory which shipped the box marked in evidence.
Upon this appeal Brillo argues, first, "that the short count of the Brillo soap pad package, which is the subject matter of the complaint, falls within the purview of R.S. 51:1-97 [which expressly requires a showing of knowledge] and that section superseded" that portion of section 96 which deals with one who "sells or exposes for sale less than the quantity he represents." Second, even if 97 did not supersede 96 by implication, and 96 does apply, to justify a conviction under 96 the State must show that someone was injured or defrauded by defendant's acts; and since injury was not shown in this case (because the boxes were not sold to anyone) and the State concedes there was no recklessness, willfulness or intent to defraud, defendant was entitled to an acquittal.
The State denied that section 97 repealed or otherwise affected section 96. Moreover, says the State, even if section 97 did affect section 96 with reference to such commodities as are defined in section 97, the Brillo pads are not such a commodity. Therefore section 96 governs, and under ...