(dissenting).
I do not profess to have greater reluctance to declare a law invalid than any of my Associates. But I cannot agree to the conclusion arrived at, and believe that the section of the law in question should be held valid, and so interpreted as to give effect to the intention of' the legislature. Holding that view, it seems to me that the conviction was right.
The trial court instructed the jury: “If you find from all the-evidence in this case, beyond a reasonable doubt, that state’s Exhibit No. 1 [the butter sold] was made in imitation of butter of a shade and tint of yellow, and you further find from the evidence in the case-that the said shade or tint of yellow was produced by an intentional combination and mixture of the ingredients thereof, made for the purpose of producing the said shade and tint of yellow, so that the same-should be in imitation of butter of a shade or tint of yellow, and. *96the manufacturer thereof could have used and chosen the ingredients used in the manufacture of state’s Exhibit No. 1, so that the same would not be in imitation of butter of any shade or tint of yellow, but intentionally and purposely so combined and mixed the said ingredients for the purpose of producing the same in imitation of butter of a shade or tint of yellow, then your verdict should be a verdict of guilty.”
“Under the law, the manufacturer of the article would have no right to put together a combination of ingredients, in the manufacture of oleomargarine, for the purpose of imitating butter of a shade or tint of yellow, as provided under the law which I have charged you. But the manufacturer has a right to combine proper ingredients for the manufacture of oleomargarine for the purpose of producing the same, and producing thereby a wholesome and palatable food; and if in such production, and in such commingling of the constituents necessary thereto, the result is an article in the imitation of butter, as provided by the statute, of a shade or tint of yellow, it is not a violation of such law.
“I charge you, gentlemen, further, that there is no law in the state of Minnesota prohibiting the manufacture and sale of oleomargarine as such, and placing it upon the market as such. The law that is against it is, as I have read to you, that it shall not be made in imitation of butter or any shade or tint of yellow; and I charge you that it shall not be so purposely made in imitation of butter of a shade or tint of yellow.”
It must then be assumed, upon this charge, that the jury found that the article sold by defendant was oleomargarine, designedly made by the collection of such ingredients, or the adoption of such process of extracting, preparing, or combining them as to imitate butter of a yellow shade or tint. The evidence amply sustains this finding of a wilful purpose to imitate the yellow color of butter in the manufacture of Exhibit 1.
It was admitted that Swift & Company was the manufacturer of this oleomargarine at South St. Paul, Minnesota. Three brands of its oleomargarine were received in evidence, the Premium, the Crown, *97and the Lilly. Each brand consisted of two kinds, the white and the yellow. Exhibit 1 is the yellow Premium brand. These brands sell at different prices; the Premium being the highest priced. There is no difference in the price between the white and yellow kind of the same brands. The demand for white is only one-tenth of that for the yellow. The chief constituent of all appears to be oleo oil, extracted from the fat of beef. Of this, about fifty per cent is used in the white kind and five per cent more in the yellow, except in the yellow of the Premium brand. Another ingredient is cotton seed oil. Of this, fifteen to twenty per cent is used in the yellow and five to ten per cent in the white oleomargarine. In the yellow Premium, butter is used instead of the milk and cream used in the other kinds.
It also appeared that by using so-called June butter color might be added; also by selecting the fats from which the oleo oil is extracted, as well as by variation in temperature and pressure in extracting it. Bleached cotton seed oil may be obtained which is colorless, and, by varying the temperature in the manufacture of cotton seed oil, the yellow color may be controlled to a certain extent. The difference in the demand is a motive for the attempt to make the yellow the imitation of the ordinary butter color.
Originally oleomargarine was made with hardly any shade of .yellow, unless coloring matter was added. Then Congress enacted a law placing a higher tax on oleomargarine, where artificial coloring matter was used. Thereupon the ingenuity of the manufacturer was directed to so select, make, and combine the necessary ingredients as to produce the desired butter color without the addition of any specific substance for the purpose of giving color alone. The effort was successful, and legislation against the use of colors to produce the ordinary butter yellow failed to protect the consumer against deception. Manifestly the act in question was directed against this newly discovered method of manufacture, whereby the desired yellow butter color was attained without the use of special coloring matter. The claim that it is more expensive to use milk and cream than butter to give the butter flavor falls, when it is observed that the June butter is used only in the highest priced yellow brand.
That the legislature has the right to regulate the sale of a food *98product made in imitation of and as a substitute for a staple article of well-known origin and food value, so that the public may be protected from deception, is so well settled that authorities need not be cited. The right of the legislators to not only regulate, but prohibit, the sale of oleomargarine is held in Butler v. Chambers, 36 Minn. 69, 30 N. W. 308, 1 Am. St. 638, and the cases there cited. The title of the act (chapter 183, p. 227, Laws 1911) shows the purpose to be to regulate the manufacture and sale of oleomargarine, not to prohibit; and with that end in view the law must be interpreted. Therefore the narrow, literal construction that, if the product contains any tint or shade of yellow, its sale is prohibited must be rejected, because no oleomargarine has been made, or’ is being made, absolutely free from the tint of yellow. Courts ought not to accuse legislators of an attempt to prohibit by underhanded indirection, when they openly profess to regulate only. Therefore, to give meaning and effect to the manifest intention of the act, the phrase “imitation of butter of any shade or tint of yellow” must be construed as equivalent to “imitate yellow butter.” In ordinary parlance, butter is called white or yellow. We speak of winter butter as white, and with “June butter” is understood an article of a pronounced yellow color. Although, strictly speaking, there is some yellow in the whitest winter butter, it is often designated as white. It should also be borne in mind that the manufacturers of oleomargarine make what is termed “white,” as distinguished from the so-called “yellow,” kind of the same brand. With knowledge that the efforts of the manufacturers to imitate the yellow butter in the product, without the addition of colors, but by manipulating the process and ingredients, had partially or, perhaps, wholly succeeded, the inference is not strained that the legislature intended to prohibit the sale of oleomargarine so manufactured that a yellow butter color was imparted to it from whatever cause.
The ordinary method of manufacture from the usual ingredients seems to produce the white oleomargarine, so-called. This product contains the same ingredients as the yellow, is as easy to make, and has the same taste and food value. Either dyes must be used or else the manufacturer must resort to intentional selection, manipula*99tion, and combination of the ingredients to produce the yellow kind. To construe the law to mean that the oleomargarine manufactured and sold must not imitate yellow butter, there is no prohibition, only regulation. It merely requires the manufacturer to abstain from taking pains to make the product imitate yellow butter, to the end that the consumer, when he eats a substance which looks like ordinary yellow butter, knows he is not eating oleomargarine.
The contention may be made that this discriminates against the so-called white butter and yellow oleomargarine, and the consumer of the product that is light or white has no notice of what he eats from that color. Grant this to be true, it is an argument that should appeal to the legislators, but ought to have little weight when addressed to a court, asking that a legislative act be declared of no effect or meaning. It may be urged that the purity, wholesomeness, and nutritive value of oleomargarine is not surpassed by butter; and hence the mere sentiment of the consumer ought not to be considered. One may, with equal force, say that when a pound of oleomargarine is just as good in every respect as a pound of butter, it is utterly immaterial to the purchaser which he gets. But it is well settled that laws may properly be passed to protect both purchaser and consumer against deception.
It may be conceded that the manufacture and sale of oleomargarine should be restricted only in so far as to insure its being wholesome and nourishing; that freé rein should be given to the manufacturer to produce an imitation of butter that is perfect as to all its qualities, including that which appeals to the eye; that a substitute for butter, equally good, which could be had at a much cheaper price would be a blessing to the consumer in these times of high prices; that the poor consumer who is not able to buy “golden” butter should not be compelled to advertise his poverty to the guest or neighbor who happens' to drop in at meal time, and sees some ordinary whitish oleomargarine on the table. But these, and other suggestions of like kind, are all arguments properly addressed to the legislators, who undoubtedly know that, while consumers, without doubt, desire to have the price of such a necessary article of food as butter reduced by the manufacture and sale of cheaper substitutes, nevertheless their *100taste rebels at eating the latter. Nearly all of us want “the other fellow” to eat the oleomargarine, while we eat the butter. Courts have no right to invalidate or emasculate statutes, because deemed unwise or inexpedient.
Nor should it be held that there is no violation of the statute, if the product can be made in imitation of yellow butter without the addition or use of any coloring matter, not a necessary constituent. The legitimate aim of the legislature by this law was, no doubt, to so regulate the manufacture and sale of oleomargarine that, if the consumer desired protection against deception, he should have it in the color of the compound. The law may be said to amply protect the purchaser, and also, to a certain extent, the consumer by provisions of labels, placards, and notices where the product is served. But people do not always conform to law, and especially is this true when you reach small eating places and private boarding houses; and it is certainly within the province of the legislature to add this further regulation, so that we may know, if we care so to do, that when we eat what looks like yellow butter we are not eating oleomargarine. The design in the law being to give notice, as far as it may well be given by way of color or appearance'to the eye, that the oleomargarine allowed to he manufactured and sold is not butter, we must eliminate the interpretation that violation depends on how the yellow color was produced. There are harmless dyes or colors which do not at all affect the wholesome qualities of the food products to which they may be added. The provision under consideration was not aimed at the means by which the yellow appearance in the compound is obtained, but rather at the result.
Appellant also contends that if the law be construed to prohibit the manipulation of the ingredients in the manufacture, so that the yellow butter color is obtained, there is no certainty or uniform basis upon which to place a conviction. Jurors have different ideas of shades of yellow in butter; and a jury in one case or one locality may find the sale of the product a violation which a jury in another case or in another locality may find the opposite. But, if the interpretation is given that ingredients in the act refer to dyes or sub*101stances introduced into the compound for the sole purpose of giving color, the suggested difficulty is obviated.
While we appreciate the force of this claim, it appears to us that the construction contended for, as hereinbefore stated, would render ineffectual the object sought to be attained by the law, namely, that the consumer may judge from the appearance of what he partakes whether it be ordinary yellow butter or oleomargarine. Moreover, in regulatory statutes of this nature, the line of demarcation between the forbidden and the permissible is not always easy to find. For example, it is criminal to run an automobile at a greater speed than is reasonable. This leaves it so that one jury may find the speed of twenty-five miles an hour an offense, while another jury may fail to so find under the same conditions. This may render the result of the prosecution doubtful; but we do not think the statute is thereby rendered void.
The case of State v. Hammond Packing Co. 105 Minn. 359, 117 N. W. 606, should not he considered out of harmony with the views herein expressed. By the stipulation in that case, it was made to appear that there was no design in selecting the ingredients to obtain butter color. Furthermore, it did not appear that the white could be as readily manufactured as the yellow from essentially the same ingredients. The court says: “In order to sustain this, a criminal prosecution, there must have been evidence of intent that the oleomargarine was made or colored to imitate yellow butter.” The expression is used “made to imitate yellow butter.”
In the case of Meyer v. State, 134 Wis. 156, 114 N. W. 501, 14 L.R.A.(N.S.) 1061, under a law similar to ours, it was held that the state must show a conscious imitation of yellow butter, but that it is immaterial whether this be done by the addition of a dye or by the selection of ingredients. State v. Armour Packing Co. 124 Iowa, 323, 100 N. W. 59, 2 An. Cas. 448, is also an instructive case, but goes so far as to hold that no intent to imitate yellow butter need be shown. If the product imitated yellow butter, the law was violated.
The case of People v. Arenberg, 105 N. Y. 123, 11 N. E. 277, 59 Am. Rep. 483, holds that an intentional imitation of dairy butter *102by the addition of harmless coloring matter, not essential to the compound, shows a violation of the law; but the question is not presented whether or not an intentional selection, manipulation, and combination of the essential ingredients of oleomargarine, so as to simulate butter color, does not also show a violation.
The case of Bennett v. Carr, 134 Mich. 243, 96 N. W. 26, holds that an act in that state, prohibiting the sale of any product in imitation of yellow butter, does not prevent the sale of oleomargarine, the yellow color of which is produced naturally from its food ingredients. But the court arrives at this conclusion on the ground that when the statute was enacted “the only method in use in causing the oleomargarine to look like yellow butter was the introduction of some extraneous coloring matter. This was the mischief to be remedied.” A prior statute, not repealed, defined the oleomargarine which could be made and sold. "With this statute, defendant had complied. Construing the two statutes together, the ruling above stated was made.
It appears to me that the law should be given effect. If that be done, it must be conceded that defendant had a fair trial, and the conviction should be affirmed.
I am authorized to say that Mr. Justice Philip E. Brown concurs in this dissent.