Untitled Texas Attorney General Opinion ( 1944 )

Honorable John D. Reed Commissioner
Bureau of Labor Statistics
Austin, Texas
Dear Sir: OpXnion Ho. O-6312
Re: Interpretation of Section 4,
Senate Bill 129, Forty-eight
Legislature, (Art. 5172a),
with reference to seats pro-
vided for female employees.
Your letter of December 6 asks for our "inter-
pretation of Section 4, S. B. No. 129, Acts of the 48th Leg-
islature, with reference to seats for female employees."
Senate Bill No. 129 of the 40th Legislature is
Chapter 68 of the Acts of 1943, 48th Legislature, page 94;
and is brought forward in V.A.C.S:as Art. 5172a.
Sections 4, 5 and 6 of the Acts, being pertinent
to your inquiry, follows:
"Sec. 4. Every employer owning or operating
any factory, mine, mill, workshop, mechanical or
mercantile establishment, laundry, hotel,restaurant
or rooming house, theater or moving picture show,
barber shop, beauty shop, telegraph or telephone
company, or other office, express or transportation
company; the superintendent of any State institution
or any other establishment, institution or enterprise
where females are employed as provided in the three
preceding Sections, shall provide and furnish suitable
seats, to be used by such employees when not engaged
3 the active duties of their employment and shall
g?ve notice to all such employees by posting a notice
in a conspicuous place on the premises of such employ-
ment, in letters not less than one inch in height,
that all such employees will be permitted to use
such seats when not so engaged.
Honorable John D. Reed, page 2, O-6312
“Sec. 5, The four preceding Sections shall
not apply to stenographers and pharmacists, nor
to meroantile establishments, nor telephone and
telegraph companies in rural districts, snd in
cities or towns or villages of less than three
thousand (3,000) inhabitants as shown by the
last preceding Federal Census, nor to superintend-
ents, matrons and nurses and attendants employed
by, in, and about such orphans? homes as are
charitable institutions not run for profit, end
not operated by the State. In case of extraordi-
nary emergenoiesp such as great public oalamitbs,
or where it becomes necessary for the protection
of human life or property, longer hours may be
worked; but for such time not less than double
time shall be paid such female with her oonsent.
“Sec. 6, In addition to the foregoing ex-
emptions, 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 in-
dustries 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, Paragraphs
35.45, as amended by Act of May 13, 1942, Public
No. 552, 77th Congress, 2nd Session, commonly known
as the Walsh-Healey Act, or the Aot of March 3, 1931,
C.,411, 46 Statute 1494, as amended August 30, 1935
Cow. 825, 49 Statute 1011, U.S. Code, Title 40, Para-
graph 276A and Supplement V, Title 40, Paragraphs
2764-2768-6, commonly known as the Bacon-Davis Act,
are exempt from the provisions of Seotion 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 employ-
ment in such industries are not injurious to the
health or morals of females employees, or working
such hours does not add to the hazards of their
occupations and such hours of employment are in
the public interest, Provided, 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 offioe employees of such employers
coming within the purview of Section 6 hereof are
exempt from the provisions of this Act."
Honorable John D. Reed, page 3, O-6312
We do not disouss the statutory execeptions, but
limit our answer to Section 4, which compels the enumerated
employers to ttprovideand furnish suitable seats, to be
used by such employees when not engaged in the actual duties
of their employment and shall give notioe . . . that all
such employees will be permitted to use such seats when
not so engaged."
Section 4 of Senate Bill 129, though enacted as
a new law , is in fact an amendment of Section 2 of Chapter
56 of the General Laws of 1915, Regular Session, 34th Leg-
islature, page 105; which was carried into the 1925 codifi-
cation as Article 1570 of Penal Code, 1925, and Article 5171,
Revised Civil Statutes 1925. These articles (P.C. 1570 and
R.C.S. 5171) were specificially repealed by Section 14 of
S. B. 129.
In studying a statute, we seek to find out its
object, purpose and effect ---the evil it aims to remedy
'%r the mischief it aims to prevent and how.
In the epoch-making decision of Muller v. Oregon,
(1907) 200 U.S. 412. 52 I. Ed 551. 28 SUD. Ct. 324. the
courts took notice of the fact that womanIs physical structure
places her at a disadvantage in the struggle for existence.
Mr. Justice Brewer, speaking for a unanimous court said:
'vhat woman's physical structure and the per-
formance of maternal functions place her at a dis-
advantage in the struggle for subsistence is obvious.
This is especially true when the burdens of motherhood
are upon her. Even when they are not, by abundant
testimony of the medical fraternity continuance for
a long time on her feet at work. repeating this from
day to day, tends to injurious effects upon the
body, and as healthy mothers are essential to
vigorous off-springs, the physical wellbeing of
women becomes an object of public interest and
care in order to preserve the strength and vigor
of the race.
,,
...Though limitations upon personel con-
tractual rights may be removed by legislation, there
is that in her disposition and habits of life which
will operate against a full essertion of those rights.
She will still be~where some legislation to protect
her seems necessary to secure a real equality of
.
.
Honorable John D. Reed, page 4, O-6312
right. Doubtless there are individual exceptions,
and there are many respects in which she has an
advantage over him; but looking~at it from the
viewpoint of the effort to maintain an independent
position &n life, she is not upon an equality.
Differentiated by these matters from the other
sex, she is properly placed in a class by herself,
and legislation designed for her protection may
be sustained, even when like legislation is not
necessary for men and could not be sustained....
Even though all restrictions on politioal, personal
and contractual rights were taken away, and she
stood, so far as statutes ,areconcerned,upon an
absolutely equal plane with him, it would still
be true ....that her physical.structure and
a proper discharge of her maternal functions -
having in view not merely her own health, but the
well-being of the race - justify legislation to
protect her from the greed as well as the passion
of man ...The limitations (of the) statute...
are not imposed solely for her benefit, but also
largely for the benefit of all. Many words cannot
make this plainer. The two sexes differ in struoture
of body, in the functfons to be performed by each,
in the amount of physical strength, in the capacity
for long-continued labor, particularly when done stand-
ing, the influence of vLgorous health upon the future
well-being of the race, the selfreliance which enables
one to assert full rights and in the capacity to main-
tain the struggle for subsistence. This difference
justifies a difference in legislation and upholds
that which is designed to compensate for some of the
burdens which rest upon her."
The constitutionality'of the law providing for
seats for.women when not actively engaged wa~s.upheldtfi
G~anzes.v;-"State~,~1020),
87 Tex. Criminal Rep. 158, 220
S.W. 95, where the court said:
"The prosecution is for violation of.the
provisions of chapter 56 of the Acts of the
Thirty-fourth Legislature (Vernon's Ann. Pen. Code
1916, arts. 1451h-1451m), the specific charge being
that the appellant, a keeper of a restaurant, 'did
fail snd refuse to provide and furnish suitable
seats to be used by his female employees when not
Honorable John,D. Reed, page 5, O-8312
engaged fin the active duties, t and that he
did not give notice to all of the females so em-
ployed by posting in a conspiatiousplaae notice
described in the statute.
"In motion to quash the indictment, attacks
are made upon the validity and constitutionality
of the law. We are furnished with no brief or
citation of authorities supporting the criticism,
and we are ayare of no reason that the act is not
a lawful exercise of legislative authority, The
right of the Legislature, in the exercise of the
police power, to pass laws to safeguard the health
of women employees has been so often affirmed by
the courts that it cannot now be considered an
open question. (Citing~authorities). We find
nothing in the provision questioned in the present
law which would condemn it as unreasonable...".
!Che ordinary signification shall be appiied to
words" in construing our statutes; Art. 10, Sec. 1. The
term t'suitablenis defined as follows:
"Suitable: adj. That is suited to one,
one's needs, wishes, or conditions.
"Wm. - Accordant, agreable, appropriate,
competent, correspondent, compatible, consant,
congrous, oonsistent." --Websteres New Inter-
national Dictionary, 2d ed. p. 2522.
"suitable: adj. fitting, beooming, appropri-
ate or proper.
“SF. - accordant, convenient, adequate, appro-
priate, compatible." The Winston Simplified Dictionary,
Encyclopedic Edition, p. 993.
"suitable: a; appropriate, applicable.
f'syn:adequate, appropriate, becoming, convenient."
----Funk & Wagnells College Standard Dictionary, p. 1126.
The writer has carefully checked with the definitions
of the ,term "suitable" found in Words and Phrases, permanent
edition, Vol. 40, pp.-664, et seq. ,These judicial definitions
conform with the above dictionary definitions.
Honorable John D. Reed, page 6, O-6312
The term "suitable" as used in this statute is an
elastic term, a matter of application- - -depending upon
^
the character and the kind of work and is a ract _
plestion.
Such words are necessary in modern legislation, because of
the need of providing standards flexible enough to insure
effective application of legislative policy to changing
circumstances.
The things done, in oompliance with the statute,
must be fit and appropriate for the end to which it is to
be devoted. It means actually, praatically and healthfully
fit. The seats should be in good condition, oomfortable,
sufficient in number and conveniently placed. What would
be suitable seats, must in the last analysis depend muoh
upon the kind of employment, the age of the worker and
dependent-conditions as will fit each character of em-
ployment.
The term necessarily involves the idea that the
seats provided be fit and suffioient in number and in kind
and so placed as will~accomplish the end sought by the
statute. The,,termvsuitablet'as used with referenoe to
the employer's duty.to provide suitable seats lor the
female employees meana ccunpatiblewith the safety,
health, convenience and comfort of his said employees.
We trust that the above fully answers your
inquiry.
Very truly yours
Approved Dec. 15, 1944 ATTORNEY QEXRRAD OF TEXAS
s/Grover Sellers ST David Wuntch
Attorney General of Texas Dy
David Wuntch
Assistant
Approved: Opinion Committee
By GWY
Chairman
DWtzd:cg