START, C. J.
The defendant was convicted in the municipal court of the city of Minneapolis of the offense of selling a can of cottolene, manufactured in imitation of lard, and designed to take its place, without labeling the package “Lard Substitute.” He was sentenced to pay a fine of $25 and costs. He appealed from the judgment, and the important question for our decision is whether his conviction was justified by the evidence.
The statute upon which the conviction rests is G. S. 1894, §§ 7028, 7037. So far as here material, section 7028 is to the effect that every person who manufactures or sells any substance made in the semblance of lard, or as an imitation thereof, or a substitute therefor, designed to take the place of lard, shall cause the package containing it to be labeled “Lard Substitute.” The original of this section is Laws 1891, c. 12, § 3, and it has never been directly amended; but section 12 of the same chapter, which originally declared any violation of the provisions of the act to [44]*44be a misdemeanor and fixed the penalty, was by Laws 1893, c. 126, amended by adding thereto substantially this:
“Provided, however, that the provisions of this aot shall not apply to cottolene, a compound consisting of a mixture of beef stearine and refined cotton-seed oil, where the * * * package * * * shall be * * * labeled * * * with the word ‘cottolene/ * * * and provided further, that said cottolene shall not be manufactured in imitation of lard, and shall not contain any substance deleterious to health.”
Section 12, as so amended, is now section 7037.
It is to be observed that the offense is defined by section 7028, and the gist of it is the selling of any substance made in the semblance of lard, or in imitation thereof, or a substitute therefor, designed to take the place of lard, unless the package containing it is labeled as required, while the proviso of section 7037 excepts from the operation of section 7028 cottolene, consisting of the mixture therein designated, if labeled as such, and if it is not manufactured in' imitation of lard, and does not contain any substance deleterious to health. This proviso, then, must be construed as an exception to the statute creating the offense, and as imposing the burden upon a defendant charged with the offense, and shown to have sold any substance made in the semblance of lard, or as an imitation thereof, or a substitute therefor, designed to take the place of lard, without the label, of proving that the article sold was within the exception. State v. Corcoran, 70 Minn. 12, 72 N. W. 732. No testimony was offered on behalf of the defendant, but it is here claimed that the state affirmatively proved that the artiple sold was within the exception, and that the proviso to section 7037 was fully complied with by the defendant in making the sale. If this be so, it follows that the evidence is not.sufficient to sustain the conviction. The evidence, however, was practically conclusive that the article sold was intended as a substitute for lard, and that it resembled in its appearance commercial lard; that is, lard made exclusively from the fat of the hog, and prepared and sold by the large packing houses of the country. But'the defendant insists that such resemblance was a natural one, and has no tendency to establish [45]*45the fact that it was manufactured in imitation of lard, within the meaning of the statute. That is, it is claimed that the selling of cottolene, which is designed to take the place of lard, without labeling it “Lard Substitute,” is not within the statute, although it resembles lard made exclusively from the fat of the hog, unless such resemblance is artificially and intentionally created in manufacturing it. This limitation of the meaning of the words of the statute, “manufactured in imitation of lard,” is too narrow. The meaning of these words i.s to be ascertained by reading them in connection with the provisions of section 7028, which were construed and held constitutional in the case of State v. Aslesen, 50 Minn. 5, 52 N. W. 220, in which the court said:
“It is evident from its language that its provisions are not confined to articles ‘made in the semblance of lard, or as imitation of lard,’ or which so resemble lard that they are liable to be sold and passed off on the public as lard, and which, for the sake of brevity, we may call ‘simulated articles.’ The act applies as well to any substance made as a ‘substitute for lard, and which is designed to take the place of lard,’ and which consists of any mixture or compound of animal or vegetable oils or fats, other than hog fat, in the form of lard, whether such substance resembles lard in appearance or not.”
On the trial of the case cited, the defendant offered to show not only that cottolene was wholesome, but that it did not resemble lard in appearance.
At the next session of the legislature after the filing of the decision in that case the proviso in question was enacted, whereby cottolene, labeled as such, was excepted from the provisions of the statute, if not manufactured in imitation of lard. The statute before its amendment required the label “Lard Substitute” on all articles offered for sale which were made in the semblance of lard, or as an imitation thereof, and also upon any substance designed to take the place of lard, whether it resemble lard or not. Now, it is manifest that the intention of the amendment was to permit any substance designed to take the place of lard, which does not resemble lard, to be sold under its own label, because such a substance cannot be passed off upon the public [46]*46as lard. It is equally clear that it was not the purpose of the amendment to permit the sale, without the prescribed label, of any article made in the semblance of lard, or as an imitation thereof, so that it would be liable to be put off as lard. To give the amendment any other construction would defeat the very purpose of the statute. It follows that the words of the amendment, “manufactured in imitation of lard,” are to be given the same effect as the words, “semblance of lard or as an imitation of lard,” in the original section. We therefore hold that sections 7028 and 7037 forbid the' sale of cottolene which is manufactured so as to resemble lard, unless the package containing it is labeled “Lard Substitute,” although such resemblance is a necessary result of its manufacture, — an improbable hypothesis.
This construction of the statute does not render it unconstitutional, for it does not prohibit the sale of cottolene, but simply requires that when it is designed to take the place of lard, and so resembles lard that it is liable to be passed off upon the public for lard, the package containing it must be marked, “Lard Substitute.” Or, in other words, the statute, as we have construed it, does not attempt to prohibit the sale of cottolene. It may be manufactured and sold, but if it is designed to take the place of lard, and is manufactured in imitation of lard, it is not within the provisions of the act of 1893, excepting it from the operation of the act of 1891. In such a case the provisions of the latter act only apply, and it must be labeled “Lard Substitute,” On the other hand, if it is not so manufactured, it is within the exception, and the provisions of the act of 1891 do not apply, and it may be sold without such label.
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START, C. J.
The defendant was convicted in the municipal court of the city of Minneapolis of the offense of selling a can of cottolene, manufactured in imitation of lard, and designed to take its place, without labeling the package “Lard Substitute.” He was sentenced to pay a fine of $25 and costs. He appealed from the judgment, and the important question for our decision is whether his conviction was justified by the evidence.
The statute upon which the conviction rests is G. S. 1894, §§ 7028, 7037. So far as here material, section 7028 is to the effect that every person who manufactures or sells any substance made in the semblance of lard, or as an imitation thereof, or a substitute therefor, designed to take the place of lard, shall cause the package containing it to be labeled “Lard Substitute.” The original of this section is Laws 1891, c. 12, § 3, and it has never been directly amended; but section 12 of the same chapter, which originally declared any violation of the provisions of the act to [44]*44be a misdemeanor and fixed the penalty, was by Laws 1893, c. 126, amended by adding thereto substantially this:
“Provided, however, that the provisions of this aot shall not apply to cottolene, a compound consisting of a mixture of beef stearine and refined cotton-seed oil, where the * * * package * * * shall be * * * labeled * * * with the word ‘cottolene/ * * * and provided further, that said cottolene shall not be manufactured in imitation of lard, and shall not contain any substance deleterious to health.”
Section 12, as so amended, is now section 7037.
It is to be observed that the offense is defined by section 7028, and the gist of it is the selling of any substance made in the semblance of lard, or in imitation thereof, or a substitute therefor, designed to take the place of lard, unless the package containing it is labeled as required, while the proviso of section 7037 excepts from the operation of section 7028 cottolene, consisting of the mixture therein designated, if labeled as such, and if it is not manufactured in' imitation of lard, and does not contain any substance deleterious to health. This proviso, then, must be construed as an exception to the statute creating the offense, and as imposing the burden upon a defendant charged with the offense, and shown to have sold any substance made in the semblance of lard, or as an imitation thereof, or a substitute therefor, designed to take the place of lard, without the label, of proving that the article sold was within the exception. State v. Corcoran, 70 Minn. 12, 72 N. W. 732. No testimony was offered on behalf of the defendant, but it is here claimed that the state affirmatively proved that the artiple sold was within the exception, and that the proviso to section 7037 was fully complied with by the defendant in making the sale. If this be so, it follows that the evidence is not.sufficient to sustain the conviction. The evidence, however, was practically conclusive that the article sold was intended as a substitute for lard, and that it resembled in its appearance commercial lard; that is, lard made exclusively from the fat of the hog, and prepared and sold by the large packing houses of the country. But'the defendant insists that such resemblance was a natural one, and has no tendency to establish [45]*45the fact that it was manufactured in imitation of lard, within the meaning of the statute. That is, it is claimed that the selling of cottolene, which is designed to take the place of lard, without labeling it “Lard Substitute,” is not within the statute, although it resembles lard made exclusively from the fat of the hog, unless such resemblance is artificially and intentionally created in manufacturing it. This limitation of the meaning of the words of the statute, “manufactured in imitation of lard,” is too narrow. The meaning of these words i.s to be ascertained by reading them in connection with the provisions of section 7028, which were construed and held constitutional in the case of State v. Aslesen, 50 Minn. 5, 52 N. W. 220, in which the court said:
“It is evident from its language that its provisions are not confined to articles ‘made in the semblance of lard, or as imitation of lard,’ or which so resemble lard that they are liable to be sold and passed off on the public as lard, and which, for the sake of brevity, we may call ‘simulated articles.’ The act applies as well to any substance made as a ‘substitute for lard, and which is designed to take the place of lard,’ and which consists of any mixture or compound of animal or vegetable oils or fats, other than hog fat, in the form of lard, whether such substance resembles lard in appearance or not.”
On the trial of the case cited, the defendant offered to show not only that cottolene was wholesome, but that it did not resemble lard in appearance.
At the next session of the legislature after the filing of the decision in that case the proviso in question was enacted, whereby cottolene, labeled as such, was excepted from the provisions of the statute, if not manufactured in imitation of lard. The statute before its amendment required the label “Lard Substitute” on all articles offered for sale which were made in the semblance of lard, or as an imitation thereof, and also upon any substance designed to take the place of lard, whether it resemble lard or not. Now, it is manifest that the intention of the amendment was to permit any substance designed to take the place of lard, which does not resemble lard, to be sold under its own label, because such a substance cannot be passed off upon the public [46]*46as lard. It is equally clear that it was not the purpose of the amendment to permit the sale, without the prescribed label, of any article made in the semblance of lard, or as an imitation thereof, so that it would be liable to be put off as lard. To give the amendment any other construction would defeat the very purpose of the statute. It follows that the words of the amendment, “manufactured in imitation of lard,” are to be given the same effect as the words, “semblance of lard or as an imitation of lard,” in the original section. We therefore hold that sections 7028 and 7037 forbid the' sale of cottolene which is manufactured so as to resemble lard, unless the package containing it is labeled “Lard Substitute,” although such resemblance is a necessary result of its manufacture, — an improbable hypothesis.
This construction of the statute does not render it unconstitutional, for it does not prohibit the sale of cottolene, but simply requires that when it is designed to take the place of lard, and so resembles lard that it is liable to be passed off upon the public for lard, the package containing it must be marked, “Lard Substitute.” Or, in other words, the statute, as we have construed it, does not attempt to prohibit the sale of cottolene. It may be manufactured and sold, but if it is designed to take the place of lard, and is manufactured in imitation of lard, it is not within the provisions of the act of 1893, excepting it from the operation of the act of 1891. In such a case the provisions of the latter act only apply, and it must be labeled “Lard Substitute,” On the other hand, if it is not so manufactured, it is within the exception, and the provisions of the act of 1891 do not apply, and it may be sold without such label.
There is no hardship in this requirement that cottolene manufactured so as to resemble lard shall be labeled “Lard Substitute.” If cottolene is just as wholesome, just as good, and cheaper than lard, let it compete with the hog product on fair terms, under a label declaring the truth, — that it is-a substitute for lard, not lard, as it appears to be. It probably is true in this particular case that the package containing the cottolene was so marked that no intelligent purchaser could be deceived into believing that he was buying lard. But it is the province of the legislature to [47]*47determine what precautions must be observed to prevent deception in the sale of food products, and courts have no power to substitute something else which they may deem to be equally as efficacious. It is only when the specific means prescribed by the legislature to prevent such deception' are arbitrary or prohibitive that the courts can interfere. We hold, upon the whole record, that the evidence is sufficient to justify the conviction of the defendant of the offense of selling a substance manufactured in imitation of lard, and designed to take the place of it, without the prescribed label, within the meaning of the statute as we here construe it, and, further, that the evidence received for that purpose was competent and material.
Judgment affirmed.