Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
C~~“ERSELLERS
A,TTQRNEI
GIZNLRAL
Rmorable John 0. Reed, CoPrisslorrsr
&reau of I&or st8tlstlc8
Justin, 4ex80
Dear Sir:
You request our
. . . .
8 offlcs a3 to
100 of this
X’to FrOpCr’ly
oaae 6nawer
h reference to said
uorkiag only a part of
loyee is eatltbd to t&s tlme
rk to rote must this tins off be
employer?
‘If the a0sver to question tuo 1s la the ar-
fimnative uould the o~lgloges be privileged to
leave his job at any time ha desired for this
9Ur9Osa or vould the eaployer be Withitl his
rq@ts in prasarlbloe, the the allowed during
r,&e day Sor the 9W9OW 0s VOtiW?
a. . . . a
.gsnore’ole John D. Reed, 98613 2
Statutory provi8loos pertinent to your questions
se:
Peaal Code, 1525, Article ~203:
“UhbdveC refuses to an eaploye entitled Co
vote the privilege of at tending the polls, or
subjects such employs to a penalty or deduction
of vages because Or thr exercise of such privy-
legs, shall be fined not to exceed five huudred
dollars. ”
Ycrnon’a Muotated Civil Statutes, 1325, firticle
2930 :
n In all electloaa, geozral, spe-
clel, &*p~imerj, the polls shall be o9en fro%
aevea olcloelc a. 13. to ssven oqclock p. tr. in
all counclcs having a pOpUhtfOa of 1~0,000 or
core occordlog to the last Foderel census ati
ia all ocher counties the 90113 shall be apened
nt 8 a. m. and a&11 remain open until 7 p. m.
.:he olcctloa shall bu held for one day only,”
v. 4.. 0. 3., 1325, Prtlale 4591:
n every day on which en election ts
bald t&&&out the State, are declared legal
holidays, on which all the public ofPlces of
&he jtnte may be closed end shall be cmsldared
end treated as Smiay or the Chzlstlaa Sabbath
for .a11 purposes regarding the presenting for
the payment or acceptance and of protesting for
aad giving notice or ths dishonor of bills of
exchange, bank checks end pr~mls~~ry notes
placed by the lav u9on the footlag Of bills Of
exchange. ”
Our statute doss not 9rahiblt labor on legal holl-
days.
“The vord ‘holiday’ as inteqreted by the
coiirts does not IrppOrt the same statMaS ;3Un-
&y and a dealaratloa it+ e statute that a Cer-
tain day shall be a legal holiday gives that day
;-lon;rable John D. Reed, page 3
the attributes of Sunday only to the extent OS
the s~~esr UO~~S of the statute.” Sundey and
Holidays, 39 Tex. Jur. 657, par. 2, o.--
Penal Code, 1925, Article 209, ia a part OS the
xleotiolr law OS 1905 (Act8 OS 29th Lee., 1st Colled aess.,
Ch. 11). Section 175 of that Act (page 562) is es follws:
“Pny perscn or corporation uho refuses to
au enploys entitled to rots the p?elvilega of
attendirrg tha polla, or subjeots such employs
to a penalty or deduction of uages because OS
the exercise OS such prlvllage la gullt,y OS e
ubdameaaor .”
z,‘ke codlflcetion of 1911, Penal Code, Prtlcls 244, lncor~o-
in&Ed this provision h Its precise phraseoloeg. The 1325
cZdifiiW.3 brOL&ht it f0rU13.W itI its pPCSeRt iOr& VlthW,,
01 course, chaxglag Its Intent or purpose.
.rlthough other states have enacted lc$,slation
%lzxd to require ezaployera to cllov tholr employees t&e to
vote ulthout deduction of pay, our laveutlgotioo ims dis-
~103~3 oali two case8 (both OS them Xlllnols cases) iavolv-
:i;ii the questfons under dlscusslon.
P case of first impression 13 that of rconle us.
(1323) 306 Ill. 486mL L;.
-~&~*L~ g-&*Q’;olpt thera he=:
” The provlsiolw ot sald statute
that g&A I& the rl&t to absent hlmselS for
tuo hours on eleotioa day Md to cast hia vote,
and vhlch required his employer, plaintiff in
error, to @ve him this opportunity of attaad-
lng the eleoticn for such purpose, are wholesome
~ovlslons OS the statute, end ore valid and
binding1 but the provlslca of the atatuto that
requires the employer to pay him at the rate of
85 cents per hour for the tlms CmFloycd la at-
teldlng the election and costing his vote -- or#
speakia~, more ancurataly, the ~rovislon rcquir-
ing the employer to pay him S~Ortvo.hours’ time
at such rata for exeroislag such FrlVlleEe --
1s lavalid, because lt 1s an u~cooo&A~
Eoaorable John C. Heed, page 4
abrldgmsnt ot the right to make contracts. The
1eSlslature had junt as much right to require
employer* to pay their employees for the tl.ms
they naces8arlly would be corngelled to usa in
1OOkUg after any sick member or members of their
Samlly as it had to pasr ths provlslon ia ques-
tion. Other strlklag examples of void logis&-
tloa of tha character la question might ba
stated, aad la uhlch it would appear that the
employee would be engaged la a matter of pur-
suit equally as coolmendable and as essential to
his oun persoaal welfarei but further c-at
Is unnecessary, as It is entirely clear thot
the provision in queatloa 1s an unreasonable
a~ridgrasnt of the right to contract, and there-
fore void.
% is claimed by the people that the pro-
vision In queatlon is eustalaablc uader vhac 1s
kaoun as the police pouer of the state, conzmon-
ly Ceflnad OS that inherent plenary povcjr In the
state to prohibit all things hurtful to the
comfort, welfare, etid safety of society. ‘L’heJ
relatloa of employer end employee is purely
voluntary, rc3tlng upon the contract OS the
parties. ShIery man ha8 a natural right to hire
his services to anyone he pleases, ap refrain
frgn such hlrlng, and it 1s equally the right
of everyone to determine whose servloea he will
hire. The state has no right to interfere in .Z
private employment and stipulate the terms of
the services to be rendered. Tledeman, Pol.
Power, 0 1 176, 178. It la tlwa that the stats
does have the rl&ht, under Its police povers,
to pass laws that tend to promote ths health,
safety, or norala of euch employees as Purney,
because of the fact that such laws would tead to
promote tha health, comfort, safety, and vel-
fare of soeletg. The act in question, as con-
tended by plalutLfS la error, does not in any
vay, so far as va are able to see, tend to pro-
mote ths health, eaf’ety, or BOrals of such em-
ployees. The provialons In question are not
adapted to the object for vhlch the law vaa en-
acted, (md caaaot be said to secure public Con-
fort, velfare, ssfety, or public morals. There
J.S no conteation, and there can be none made
uith any reasoaablo shwl~, that the provision
ill UWStiOll teRd9 CO prOSlOt the Safety QP health
OS SJly efaployee. It ,has alv~ys been the policy
Of Our lava to condeen the Idea of sop voter be-
in@( paid for CXarOiSiIlg the privilege of M elec-
tor or voter. The rfght to vote Is aQigly one
of the piVil8g88 &Wanteed to every citlzea
of this country vho poasessas the regulsite quel-
lficatlov. It 1s not only a right, but should
b6 re~axl8d as a duty OS the citlzon, where he
is reasonably able r&yaUx~lly to perform that
duty. It 15 UOt the COnsCltUtiOOal rl@t of any
CitLZCn CO b8 pZiLd iOr th8 c%TC~lsu OS his ri&t
to vote, and the h31diug of tke p:ovl3lon 3f t!x
statute vold dots not vlolato the rF@t of my
citiesa, iacl~?in.~ those v;ho are ctqlzi'jcdt3
l&or. '221s ~rovl3ion of the stutwl-,eI.3not 3u3-
talnablc under ths police peer of the state, r.nd
it does violate tke cocstftutlonol povlslcus
nforescid, e%I thcref’ore mmt be kclored wlc!.
Eesides, ‘no cxsrclse Of t!iU pokce p3uer cix
disrc;;crd the ccartltutlozxl .guarnncies in re-
3pxt to the toking of prlvoto r,roptxt;j, due pa-
cess, cud equal yrotectloa’ of t!:e lcw3, GUI it
should mt ‘ovcrrlde the lamrids of zr?tu;-al juy-
tiC8.' . . ."
our alpreee court, 0+l10a hg C:llef JustPze Cure-
ECU, ia Trsvclers 1~3, co. 0~. xmO3ul1, (1934) pi 3. si.
(26) lOOfi, ot Cage-11, cited ~ii;h espzoval the obovc case
lu Lcldlnng tCe -ZmerEency fiioratorlum Law unconstltutiozal be-
ceude it inpalred tho obligation of contracts.
The other case is that of NC!1 In8 vs. TX-izCk,
($27) 326 111. 240, 157 :J. S. 235, &*ywttloa OP the
Ilii~ol8 primary lau Invalid vhlch g8V8 e?~pl~g~ea the right
cc absent theW8lVe8 from eISplOpWAt COr tV0 hours on pri-
nosy election day to vote, without deduction from their
Sf&'I'18s. The court, cltlag the first uoutloncd czise, said:
” The proviUloa of SeCtiOn 7, giv-
mg em~liy&98 the right to absent th8mse1oee
fra their emplopeot for tvo hours on elcctlOn
Honorable John D. Reed, page 6
day for the pLIrpOa8 Of' voting without any de-
duction froa their salaries or wages on aa-
count.of such absence 1s also unconatltutlon-
al, being a vlolatloa of section 2, article 2
of the COClStitUt.iO& People v. Chicago, Mll-
VBUkC8 & St. Paul Rallvay Co., 306 Ill. 486,
138 X. E. 155, 28 A. L. R. 610. Theee sections
are not, however, of such a character a8 to ln-
terser8 vlth the operation of the rest OS th8
act, li they arc stricken from It, and there-
fore do not &Sect the constltutionallty of the
8lltire tiCt.D
The right OS franchise la our democracy 1s of sup-
reme Importance and its exercl38 should be zealously guard-
ed. "Statutes regulating the rights of citlecns to vote
cre of great public Intereat, and, therefore, are given a
broad interpretation to secure for the citizen his right to
vote and to insure the election of those officers vho are
the people's choice." Sutherland, Statutory Construction,
Third Edition, Volume 3, page 445, pm. 7215, n. 1.
We therefore an8Yer your first qUeStiOn: AKi em-
ployee is entitled to absent himself from his job for a
reasonab18 time for the purpose of voting. See our ansver
to queatlon Ho. 3.
Second qu8stloar We believe that that part of
the statute prohibiting the deduction OS vagca when the
employee absent8 himself from his work in order to vota 1s
Invalid.
Third qusatlon: Bearing In mind that our polls
ere open until 7:00 P.i%, that a statute should be inter-
preted by its equity, end OS the interdependence of em-
ployer and employee la our Industrial cIvi1itatioa, it 18
our opinion that en employer is within the statute and his
rights la prescribing th8 tIm8 &loved during the day for
the purpo88 of voting. The time ti1oved should be euf'fl-
cleat and fair so as to fully end comp1ete1Y permit th8
E-mployae to exercise hi8 suffrage. Such regulations would
xonorable Sahu D. Reed, page 7
vary accordLog to 10~41 Co;lbitlOti8y but it should gfv4 tb4
employes @a and cmvaaieot tZma ulthla which to vote.
Trustiagt&mtthhe abwo 41~~404 you~inqu~~, ~4
8re
vary truly yours
AzL
BY
Ek~rld Wuntch
~~55istant