Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
Defendant appeals from a judgment imposing a penalty of $50 for violation of a regulation promulgated by the state superintendent of the Division of Weights and Measures under the authority of Title 51, Chapter 1, of the statute which deals with the subject of sales of products by measure, weight or containers.
The facts are not in dispute. Defendant conducts a business in Union City under a "Chicken Delight" franchise where pieces of chicken are cooked to order and sold in buckets for off-premises consumption. On February 28, 1968
Charles Krol, regional supervisor of the Division, after examining the menu at defendant's place of business, placed an order for 12 pieces of chicken priced at $3.12. Defendant placed the chicken parts in a batter, cooked them in an electric oven for about 15 minutes, and then delivered them to Krol in a cardboard bucket. The chicken parts were not weighed before or after they were cooked.
Krol brought suit in the county district court charging the defendant with having sold poultry by the bucket and not by net weight in violation of Regulation 16, promulgated pursuant to N.J.S.A. 51:1-61, and sought recovery of a penalty prescribed by N.J.S.A. 51:1-89. At the conclusion of the trial the court entered judgment in favor of the plaintiff imposing a $50 penalty against the defendant. This appeal followed.
Regulation 16 was promulgated by the state superintendent under the purported authority of N.J.S.A. 51:1-61, which states:
"The state superintendent may make rules and regulations, which shall govern the sale of commodities."
Regulation 16 provides as follows:
"Meat and poultry to be sold by net weight only.
1. All meat and/or poultry, offered for sale or sold in the State of New Jersey, shall be offered for sale or sold on the basis of avoirdupois net weight only, and every person, firm, corpartnership or corporation selling or offering for sale any meat and/or poultry shall at the time of sale or delivery thereof weigh by avoirdupois weight the quantity of meat and/or poultry sold or delivered and for such purpose shall use a scale tested and sealed by the State Department of Weights and Measures or by any county or municipal superintendent or Assistant Superintendent of Weights and Measures.
3. The term 'poultry' as used in this act shall mean and include chickens, ducks, geese, turkeys, guineas, and all products the basic ingredient of which is poultry of the prescribed classes; it being provided, however, that ...