The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
Because of the importance of the question involved we have given the State’s motion for rehearing most serious consideration, as we did its contention on original submission.
There is little, if anything, which may be added to what was said in our original opinion.
Appellant was charged with violating Sections 1, 2 and 3 of Art. 707 of the Penal Code, which plainly states by legislative act when an article of food (here soda water) is adulterated. We tried to make it clear in our opinion that the Legislature could properly delegate to the State Health Officer the power to ascertain as a fact what the soda water contained; and if saccharin was found therein, then it became a matter of judicial ascertainment whether the saccharin found therein lowered and injuriously affected the quality and strength of said soda water, and whether a valuable constituent, to-wit: sugar, had been abstracted from said drink, and whether it was below the standard of quality and purity represented to the consumer thereof. (See our original opinion for the specific offense charged against appellant.)
The State Board of Health through the State Health Officer promulgated an order (see original opinion), not that the soda water manufactured by appellant contained saccharin, but that any soda water containing saccharin would be considered as adulterated, thereby assuming to act instead of the court, in determining such matter. The trial court construed said order as binding upon him, and thereon found appellant guilty, but *140 certifies that without such order he would have found him not guilty.
As the record comes before us our original opinion appears to properly dispose of the case.
The State’s motion for rehearing is overruled.