Goldmann, Foley and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
[90 NJSuper Page 10] Defendant appeals his conviction in the county district court for violating N.J.S.A. 56:6-2(e), part of "An Act to regulate the retail sale of motor fuels" (L. 1938, c. 163, as amended), which provides:
"No rebates, allowances, concessions or benefits shall be given, directly or indirectly, so as to permit any person to obtain motor fuels from a retail dealer below the posted price or at a net price lower than the posted price applicable at the time of the sale."
The trial judge, sitting without a jury, heard the matter on an agreed statement of facts. On January 30, 1964 two Motor Fuels Tax Bureau field representatives, Gross and Soriano, drove to defendant's service station in Gross' car and stopped at an "Esso" gasoline pump bearing the posted price of 29.9 cents a gallon. Gross told station employee Benacquista to "Fill it with Esso Regular." He put the pump nozzle on automatic, started to fill the tank, but then left to service another vehicle. Gross, fearful that there might be an overflow, approached another attendant, Wilson, and requested that he finish filling the tank. Wilson did so and then asked Gross, "What do you get -- the double stamps or the two off?" Gross replied, "I guess I'll take the two off today."
Timely objection was taken to this exchange on the grounds that defendant was not present at the time of the conversation, there was no proof of his acquiescence or consent thereto, and so the conversation was not binding upon him. The court overruled the objection and permitted Gross to continue with his testimony.
Gross stated that he purchased about 7 1/2 gallons of gasoline at the posted price of 29.9 cents, the pump indicator registering the sale as $2.24. Wilson said, "That will be $2.10," took three $1 bills from Gross and handed them to Benacquista, who went over to the outside cash register, returned and looked at the pump, and then gave Gross 90 cents change. Gross remarked, "Ninety cents change, right?" and Benacquista replied, "Right!" Gross and Soriano then identified themselves to the two attendants as Motor Fuels Tax Bureau field representatives.
The parties stipulated that if Soriano took the stand his testimony would be the same as Gross'. Plaintiff having rested, defendant moved for dismissal of the complaint on the following grounds, among others:
(a) Notwithstanding the proceedings were in the form of a civil action, the Motor Fuels Act authorizes arrest and was quasi -criminal in nature, requiring proof that Wilson's act was authorized or directed by defendant;
(b) Defendant had no knowledge of the alleged violation; any conversation held out of his presence was not admissible;
(c) The statute, being in derogation of the common law, had to be strictly construed; no liability could attach thereunder because it did not specifically provide that the acts of an employee were binding upon the employer; and
(d) The statute did not provide that the allowance of a cash discount alone ...