Untitled Texas Attorney General Opinion ( 1939 )

Hon. Joe Junsahik, Commissioner
Bureau of Labor Statistics
Austin, Texas'
Dear Sir:
O&nion No. F-1723
: Gonstruption of Article.1571 of
the Penal Code of Texas,~1925.
This will acknowledge receipt of your letter of November 20,
1939, in which you submit'for an opinion of this Department
the following,questiens:'
"1. Does Article 1571, P. C ., exempt from the'previsions
of said chapter all persons, institutions, establishments,
and enterprises in cities that had.less than three thousand
inhabitants, as shown by the last pre~ceding,Federalcensus?
Q. Does this'artiele exempt from``~theprovisions of said
chapter stenographers and pharmacists inany and all cities,'
'regardless of the population of said ~,.cities?v
Article 1569 of the Penal Code of Texas. 1925, asamended bv
Acts cf the-43rd Legislature,,reads: - -.
"No female shall :be employed:
"1. In anyfaatory, mine, mill,~workshop, mechanical or
mercantile ,establishment,hotel, restaurant, rooming house,
theater, moving picture show, barber-shop; beauty shop,
road side ,drinkand/or,food vending establishment, tele-
graph;,telephone or other offioe~,,expres~s'or,transportation
company,,or any State~instit,utien,.erenterprise where fe ales
are empleye~d,for more than nine, (9) hours in any ane (1'p
ualendar day nor more'than fifty-four .(54)hours in~any
ene (l),calendar week.
"2. In any laundry or ~cleaningand pressing establishment
for mere than fifty-feur (54) hours in ene '(1)~aalendar
week'!the heurs efwaerk te be Se,arranged as to permit the
empleyment ef such female at any time so that she shall
not work morethan a maximum of eleven (11) heurs during
the twenty-four (24) hour period of one (1) day.
Hon. Joe Kunschik, Commissioner, Page 2 O-1723
"3. In any factory engaged in the manufacture of cotton,
wollen or worsted geods or articles of merchandise manu-
factured out of cotton goods, for more than ten 10 hours
in any one (1) calendar day nor more than sixty I60 1 hours
in any one calendar week.
Article 1570 of the Penal Code provides that employers in certain
types of business undertakings wherefemales are employed shall
furnish adequate seats for their use when not actually engaged
in their duties.
Article 157'1 of the Penal Code, as amended by the First Called
Session of the L&t Legislature, reads:
"The two preceding Articles shall not apply to stenographers
and pharmacists, not to mercantile establishments or tele-
graph or telephone companies in rural districts and in cities
or towns or v~illagesof less than-three thousand inhabitants
as shown by the preceding Federal~census, nor 'to superinten-
dents, matrons, nurses and attendants employed by, in and
about such Orphans' Homes as are charitable institutions,
not run for profit, and not operated by the State. .In
cases ofextraordinary emergencies, such asseat public
calamities or where it becomes necessary for the protection
of human life or property, longer hours may be worked."
Thus it appears from Article 1571, supra, that it wasthe inten-
tion of the~hegislature that stenographers and pharmacists be
exempted from the protection of,Article 1569, supra,~regardless
of the population of the town or city in which they might be
employed.
Article 1571, supra, likewise provides that Articles 1569 and
1570 shall not apply "to mercantile establishments or telephone
companies in ruraldistricts and in cities or towns or villages
of less thanthree thousand inhabitants, according to the pre-
ceding FederalcEnsus."
Your first question involves a determination ofwhether or not
the terms of Article 1571, supra, are broad enough to exempt all
persons, firms and corporations from the provisions of Articles
1569 and 1570, supra.
It will be noted that there areanumber of different types and
character of business institutions mentioned in Article 1560
which are not specifically mentioned in Article 1571 andwhich
Cannot possible be exempted,except upon the theory that "mercan-
tile establishments" is sufficiently bread to embrace the whole
business field.
Hon. Joe Kunschik, Commissioner, Page 3 O-1723
A mercantile establishment is a place where the buying and sell-
ing of articles of merchandise is conducted. Basey Drug Com-
pany vs. Bruza, 37 P. 2nd 294,
The court, in the above case, said:
"The word tmercantilel in its ordinary acceptance means
'pertaining to the business of merchants and is concerned
with trade or buying andselling of merchandise?. &iting
People vs.Federal Security Go., 255 Ill. 561, 99 N.E. 6681
PI&H. Kohlsoot & Co, vs. O'Connell, 255 111. 271, 99 NE
.... Thus, while theword testablishm$ntt may mean al-
most any kind or character of institution, location,
building, or place, yet its meaning isgeatly restricted
when used following the word 'mercantile' and the expression
'mercantile establishment1 must mean and refer to an insti-
tution or mercantile business or a place, building or loca-
tion where the mercantile business or the buying or selling
of merchandise is conducted or engaged in.
A merOantile establishment is a place where the buying and sell-
ing of articles or merchandise is ~conducted.
Oiting Hotchkiss vs. District of Columbia, 44 App.D.C., 73.
Penal statutes such as we have involved in this opinion are to be
strictly construed against the State and in faver of the accused.
State vs. Elliot, 34 Tex. 148. This rule is necessarily medi-
fied, however, to a limited extent by Article 7 of the Penal Code
which directs that every law be construed "according to the plain
import of the language in which it is written". The Supreme
Court, in the case.of Thompson vs. Missouri, K.&T. Ty . Cal,
126 S.W. 257, said8
"The proper course is tosearoh out and follow the true
intent of the Legislature and tealopt that sense which har-
monizes best with the context and premotes in the following
manner the apparent policy and objects of the 1egislature.w
It is a fundamental rule of construction that an exception to a
statute is, as a rule, strictly censtrued against one claiming
its benefits and one claiming such benefits will be required to
shew that he cemes within its terms. Evans vs. American Publish-
ing Gel, 13 S.W. 2nd 358, 39 Tex. Jur. 277, para. 148.
Applying the above mentioned definitions of mercantile establish-
ments and rules of construction to the questians submitted, we
believe that "mercantile establishments" as used in Article 1569,
is g$ven its restricted meaning by the~Legislature and that the
exceptions or exemptions contained in Article 1571 are to be
strictly construed infavor of the State so as to carry out the
intention of the Legislature.
Hon. Joe Junschik, Commissioner, Page 4 O-1723
It is therefore, the opinion of this Department and you are so
advised that Articles 1569 and 1570, supra, apply toall sections
of the State whether rural districts, cities, towns or villages
regardless of the pnpulation of such subdivisions unless they
come within theaceptions contained in Artiele 1571, supra. We
do not undertake te advise what particular business institutions
come within the term "mercantile establishmentsn except that they
be tested by the definitions hereinabove contained.
Article 1571, supra, exempts stenographers and pharmacists from
the provisions of Articles 1569 and 1570, supra, regardless of
the population of the cities inwhich they might be employed.
Very truly yours
ATTORNEY GENERAL OF TEXAS
BY
Lloyd Armstrong
Assistant
APPROVED DEC 1, 1939
ATTORNEY GENERAL OF TEXAS