The contention now made by appellant in his motion for rehearing is that the true construction of article 735, Penal Code, is that the word "substantially" applies as well to "a smaller quantity of crude fiber" as it does to "a larger percentage of protein," etc., and that the intention of the Legislature was that said word "substantially" should apply to both.
In the original opinion it was held that said word applied to the latter. If appellant's contention now is correct, it must result in a reversal and dismissal of this cause. This question now presented was not made on the submission on this point as it now is and hence escaped that careful attention and consideration which should have been given to it.
In order to try to make clear the question said article 735 as it applies in this case will be here succinctly stated:
Any agent selling any concentrated commercial feeding stuff with a *Page 69 label stating that said feeding stuff contains substantially a larger percentage of protein, or a smaller quantity of crude fiber, than is contained herein, shall be fined, etc.
Upon a careful and thorough consideration of the statute and the question, we have concluded that appellant's contention is correct and that the true construction is, and the probable intention of the Legislature was, that the word "substantially" should apply to "a smaller quantity of crude fiber" as it does to "a larger percentage of protein," etc.; in other words, that the said article in this respect properly construed and as intended by the Legislature was as if it read this way: Any agent selling any concentrated commercial feeding stuff with a label stating that said feeding stuff contains substantially a larger percentage of protein, or (substantially) a smaller quantity of crude fiber, than is contained therein, shall be fined, etc. By this it will be seen that the statute should be interpreted as if the word "substantially" was contained therein before the words "a smaller quantity of crude fiber." It is deemed unnecessary to enter into a discussion and citation of the rules of construction whereby this conclusion is reached.
The result is that a rehearing must be granted, the original order reversing and remanding the cause set aside, and the cause reversed and dismissed, which is accordingly ordered.
Reversed and dismissed.