Untitled Texas Attorney General Opinion ( 1946 )

Hon. Maureen Moore Opinion No. O-7368
Commissioner Rer Authority to grant temporary ex-
Bureau of Labor emption for female employees from.
Statistics Sections 1, 2, 3 4, and 13 of .
Austin, Texas Senate Bill No. 129, 58 th Legislature,
when the last temporary exemption ex-
Dear Miss Moore: pired February 15, 1946.
Your request for our opinion on the above oaptioned
matter has been received by this department. We quote from
your letter as followsr
/
“We would thank you to give us an opinion on
the following fact situation submitted to us by
the Southern Pine Lumber Company of Diboll, Texas,
wherein they write us as follows:
“‘On February 15, 1945, we made application to
your department for exemption for female employees
from Sections 1, 2, 3, 4, 5, and 13 of Senate Bill
No. 129 as enacted by the Forty-Eighth Legislature.
After an investigation was made we were granted the
exemption, File No. 301, and were subsequently granted
several 30-day temporary exemptions, the last expiring
February 15, 1946.
I’(We did not ask for renewal of the last temporary
exemption granted us for the reason that at that time
our manufacturing plant was only working nine hours
per day and did not exceed fifty-four hours per week.
When we first made application for exemption we were
employing seventy females in our manufacturing plant,
and we reduced this number as rapidly and as consist-
ently as male labor was available. We are now operat-
ing our manufacturing plant ten hours per day and fifty
hours per week. We have only one female employee now in
the manufacturing plant, and it is not possible to em-
ploy her only nine hours per day when the regular run is
ten hours. This employee is giving excellent satisfac-
tion; has been with us for a long time; and we do not
feel justified in discontinuing her services as we have
never considered her a temporary employee.“1
It appears from the above facts that only one female em-
ployee is now employed and she in the manufacturing plant of the
lumber company.
_. ,
Hon. Maureen Moore, page 2 (O-7368)
Senate Bill No. 129, passed by the 48th Legislature,
concerns the hours of labor of female employees, The sections
pertinent to this inquiry are as followsc
“Section 1. No female shall be employed in any
factory, mine, mill workshop, mechanical or mercantile
establishment, hotel, restaurant, rooming house, theater,
moving picture show, barber shop, beauty shop, road side
drink and/or food vending establishment, telegraph, t ele-
phone or other office, express or transportation company,
or any State institution, or any other establishment, in-
stitution or enterprise where females are employed, for
more than nine (9) hours in any one calendar day, nor
more than, fifty-four (54) hours in any one calendar week.
Qec, 2. b . .
We@.
Wet. 2: : ‘. :
“Sec. 5. The four preceding Sections shall not apply
to stenographers and pharmacists, nor to mercantile estab-
lishments, nor telephone and telegraph companies in rural
districts, and in cities or towns or villages of less than
three thousand (.3,000) inhabitants as shown by the last
preceding Federal Census, nor to superintendents, matrons
and 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 of extra-
ordinary emergencies, such as great public calamities, or
where it becomes necessary for the protection of human life
or property, longer hours may be worked; but for such time
:;;,;;,ss than double time shall be paid such femalewith her
0
“Sec. 6. In addition to the foregoing exemptions,
in time of war and/or when the President of the United
States proclaims a state of national emergency to exist,
female workers employed in industries coming within the
jurisdiction of the Fair Labor Standards Act of 1938
and amendments thereto, the Act of June 30th, 1936, C. 881,
49 Statute 2036, U.S. Code, Supplement II, Title 41, Para-
graph 35-45, as amended by Act of May 13, 1942, Public No.
552, 77th Congress, 2nd Session, commonly known as the
Walsh-Heale Act, or the Act of March 3, 1931 Cow. 411, 46
Statute 149 t ,.as amended August 30, 1935 Cow. 42.5, 49 Stat-
ute 1011, U.S. Code Title 40 Paragraph 3 768 and Supple-
ment V, Title 40, Paragraph $76A-276A-6, commonly known as
the Bacon-Davis Act, are exempted from the provisions of
Sections 1, 2, 3, 4, 5, and 13 of this Act, and female
workers in such industries may be employed not exceeding
ten (10) hours per day provided such hours of employment
. -
Hon. Maureen Moore, page 3 (O-7368)
in such industries are not injurious to the health or
morals of female employees, or working such hours does
not add to the hazards of their occupations and such
hours of employment are in the public interest. Pro-
vided, however, that in time of war and/or when the
President of the United States proclaims a state of
national emergency to exist, all female office employees
of such employers coming within the purview of Section 6
hereof are exempt from the provisions of this Act.
Yiec. 7.
“Sec. 8.
“Sec. 9. Jn time of wa loner of Labor
nt of female v es in anv de ignat d industrv for
En (10) hours D%at will not iniur; tie h ea?th or
Urals and/or add to the hazards o t eir o cuDation
and th t such hours of labor are in the Dubiic in terist,
file h:s findings as reaui d herein. and make an o d
g antine an xa* and?he employer affected sh&i
bz’exempt fez thirty 130) days from the provisions of
this Act, during which time if further exemption is de-
sired by employers affected, notice and hearing as pro-
vided herein shall be had as though no temporary exem -
tion had previously been in effect.” (emphasis added P
Sec. 9 of Senate Bill No. 129 (Art 0 5172a, Vernon’s
Annotated Civil Statutes, 1925) gives to the Commissioner of
Labor Statistics the power to grant exemptions in time of war
to any designated industry provided certain findings, set
forth in the same section, are made. In the case before us the
female employee is working in the manufacturing plant of a lum-
ber mill, and since Sec. 1 of the above Article includes mills,
the industry is clearly a designated industry under the provi-
sions of Sec. 9. It therefore appears that under the particular
set of facts submitted in your letter you have authority to
grant the requested exemption under Sec. 9, provided we conclude
that we are now in a time of war as required by the prefatory
phrase of this section.
This department has held in several opinions that a war
is not concluded in the legal sense until some formal action by a
competent authority terminating the war and re-establishing peace
is had. The 77th Congress of the United States, by joint resolu-
tion, formally declared a state of war between the United States
and certain foreign governments. To date, neither Congress nor
the President has formally declared a termination of these wars.
Hon. Maureen Moore, page 4 (O-7368)
It is the privince of the political department, and
not the judicial department to determine when war is at an end.
The Proteotor 12 Wall, (U.4.) 700 20 L. Ed. 463. Perkins v.
Rogers, 35 Ini. 124, 9 Amm.Rep. 639: Kneeland-Gibilow Co. v. Mich-
igan Central R.R. Co., 207 Mich. 546, 174 N.W. 605. A number of
cases hold that World War I terminated by the joint resolution
of Congress of July 2, 1921. See Clemens v. Perry, 51 S.W. (2d)
267 and Simmerman v. Hicks, 7 F (2d) 443.
It is our opinion, therefore, that the present war has
not yet been legally concluded and cannot be considered as con-
cluded in the legal sense even though hostilities are at an end.
It is our further opinion that if upon private investigation you
find that the employment of the female employee in question for
ten (10) hours per day will not impair her health or morals and/or
add to the hazards of her occupation; and further that such hours
of labor are in the public interest, then you may grant such an
exemption in accordance with the other provisions of Senate Bill
No. 129.
We trust that what we have said is a sufficient and
satisfactory answer to your inquiry.
Yours very truly,
ATTORNEYGENERALOF TEXAS
By /s/ Clarence Y. Mills
CYMrLJ:wb Clarence Y. Mills, Assistant
APPHOVED, OCT 25, 1946
/s/ Harris Toler
FIRST ASSISTANT ATTORNEYGENERAL
@PROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN