Untitled Texas Attorney General Opinion

January 21, 1948
Hon. M. B. !Morgau
Commlsaioner
Bureau of Labor Statistics
Austin, Texas Opinlon'lo.V-$78
Re; Rule-makingpower of.
the Labor Comissioner
under the Health, Safe-
the te& "011 and gas
fields" aa uaed by the
b&&Leg., 1935, R. 5.
Oh. 245, p. 168, refers
to a geographicalarea
or to the oil and gas
petroleum industry
Dear Mr. Morgan:
You state that it is the desire of the Bureau
of Labor Statistic& to adopt a code of safety and health
standards applicable to Health, Safety and Moral Law&of
this State.. .
The Realth, Safety and,Morals Law,of Texas was
enacted by the 5th Legislature;~1918, Fourth Called Sea-
sion, Chapter 5,,3 page,l32, and codified in the Revised
Civil Statutes of 1925 a8 Articles 1573-1580, Inclusive,
and Penal Code, 1925, Articles 1567-1568.
&.&inctly, Articles 1573-1580 provide that in
every factory, mill, workshop, mercantile establishment,
laundry 'orother establishmentin this State, proper ten-
perature and ventilationfor the protection of health of
employees shall be maintained. It requires the removal
of gas or effluvia, or'odors from places where the em-
ployees are required to work and directs that dust in-
jurious to the health of the persons employed be allay-
ed; it prohibits decomposed or putrescent matter or re-
fuse of any kind to be allowed to renain in or around
such place of employment; It provides for the cleaning,
_.
Hon. M. B. Morgan, Page 2 (V-478)
sweeping, and dusting outside of working hours as far
as possible:;requires doors used by the employees as en--
tranbes~or exits to open outward; it describes the num-
ber of water closets, earth closets, or privies to be
supplied aha requires separate closets or privies for
males~and females, and requires them to be kept clean
and effectivelydisinfectedand ventilated; and it for-
bids In such places of employment the existence of any
influence,,practices, or 00naitioq8 calculated to lnjur-
lously affec,tthe morals of female employees. The law
authorl~zesthe Commissionerof Labor Statistics or his
deputies or inspectorsto enter such places of,employ-
ment for making inspection to determine that the provi-
sions of the Act are being complied with, and empowers
the department to issue an order for the correction of
unlawful&ondition,s.,In case of a failure or refusal to
comply on the part of the owner or manager or the person
in control of such place of employment,'theCommissioner
of Labor Statistics,his deputies, or inspectora,are em-
powered to close such establishmentor any part of it,
until such time aa said orders are complied with. The
Act states how such powers may be exercised and provides
a method for testing the validity of such orders. Penal
Code, 1925, Article 1567~1568 fixes the penalty for per-
mitting immoral influences on female employees ana for
failure or refusal to comply with proper orders of the
Commissionerof Labor Statistics or his deputies or in-
spectors.
Your questions are as followa:
"Pursuantto the duties imposed by law
upon the Bureau of Labor Statistics, It is
the desire of this Bureau to develop a code
of safety and health standards to be print-
ed and issued in the form of a general order
applicable to the industrialestablishments
enumerated in Articles 1567-8, P.C. of the
Health, Safety and PioralsLaw. We therefore
respectfullyrequest the Attorney 5eneral's
opinion bearing on the extent and llmltations
of powers imposed upon the Coarmlssionerof
Labor by the above-mentionedarticles, and by
other laws cited herein.
"Question1. In addition to the provl-
eions of Art. 1568, P.C. imposing authority
uponthe Labor Commfssionerto issue orders
correctingwithin the establishmentsarduous
Hon. M. B. Morgan, Page 3 (V-478)
conditionsdescribed in Articles 5173, R.-
C.S., thru 5180, R.C.S., of the Health, Safe-
tJrand Morals Law. May it ‘notbe inferred
from the language of said Art. 1568, P. C.,
that it was also the Leglslature~sintention
or command that sfmilar correctiveand preven-
tive powers be exercised by the Commlssloner
in dealing wlth any additional conditionshe
may deem detrimentalto the safety and health
of the employees of all such establishments?
That part of Art. 1568, P.C. wherein this in-
quirer draws such inference is here quoted
with,single and double underscoringsadded
to place the appropriatedegree of emphasis
on key words of the expression: ‘Any person
. . . who shall fall or refuse to comply
with anv written order issued to such-person
br the r;ommlsslonerof Labor Statistics. or
any~of his deputies, or inspectors,for-the
correction of con- caused or Dermitted
therein which ngers the health of the em-
ployees therein or which do not comply with
the laws governing such establishmentsshall
;;tisylshed as provided in the preceding ar+.
;’
“Question2. By authority granted the
Commls.slonerof Labor by the above-named ar-
ticles would it be permissible for the Com-
missioner to develop and adopt standards of
safe and healthful working conditions to be
incorporatedIn one written or printed gen-
eral order applicable to all establishments
whose operations and processes bear common
or like hazards detrimentalto the physical
safety and health of the employees of such
establishments?
“Question3. H.B. No. 455, Chapt~er245,,
44th Legislature - Regular Session,,‘Taxing
Petroleum Products and AppropriatingProceeds
Therefrom to Enforce ConservationLaw,’ Sec-
tion 4, and Section 7 whl&readS in part as
follows:
“‘There Is hereby appropriatedout Of
the funds accruing from the Oil and Gas En-
forcement Fund hereinbeforeprovided the a-.
mount of Three Thousand One Hundred Fifty
Hon. R. B. Morgan, Page 4 (V-478)
Dollars ($3,150)for the purpose of paying
salaries of Deputy Commissionersof Labor
Statlstloa to enforce labor laws in the oil
and gas flelas.s In order that,the Commls-
sloner of Lab,ormay efficientlydischarge
the duties imposed upon his office by "the .',
above-quotedlaw an opinion of,the Attorney
Qeneral Is hereby requested lnterpretlngthe
Legislative intent ln its use'of the terms
'oil and gas fields' as used in the.flrst
sentence.ofsec. 7 of the above-quotedlaw.
Is this Bureau~llmlted,lnlts,activitlesto
the specfftc geographicalarea commonly re-
ferred,-toby name as a particular,011and/or,
'gas field or was it the Leglslature*slnten-
tlon that the term '011,and gas field' embrace
the.011 and gas Industry (or as is more COE-
monly expressed 'petroleumindustry')In its
entirety; and ~wlththe possible intended in-
clusion of the industry's egulpmentmanufac+
turers and dealers as well?
The enforcementof these regulatory statutes
ls,entrustedto the Labor Department; and sole,rellance
for their enforcementis not upon criminal sanction.
This was bebause.of,thecomplex character of the prob-
lem which~thl:e regulatory'leglslatlonseeks to deal with.
And as a wlse~'and intelligentenforcementwas sought, a
single d~epartmentofgovernment,the LaborDepartment,
iras~sDec~ally&harged to take ove,r'andperform those
prelimfna.ry phases of the enforcement``of``the
statutes,
preparatory to its ultimate enforcemsnt in the Court
when necessary. Pour work, ln other uords;.ls to maia-
taln oontacts with the special industry or activity reg-
ulated~and to make investigations,sSfting complaints,
to,make~prellmlnarydeterminatlons in instances in which
Dosslble,vlolatlonsare found or charged, and then to
prbpare and "~glvewritten notice of the facts to,the
proper County norDis'trlctA.ttorney.*Article 5149; R.-
C.Si .!Che relative oomDlexity of the lsaues with whloh
your departmenthas to deal, and the detailed lnvestl-
~,gatIon of facts; which you are of necessity required to
isakebefore determiningthat a law~has been violated,
'makes lt praetleaflg imperative. for you tomoonduct hear-
lngs "and,taketestlmon~ ln,all matters relating to the
duties requlred of you. Article 5150~,R.C.S., and ~P+C.
1562.
You are also charged with the duty Nof examln-
lng Into the methods of protecting employees from danger
Hon. PI.B. Morgan, Page 5 (v-478)
and sanitary conditions In and around . . . any factory,
mill, workshop, mine, store, business house, public or
private work, or other estab+?hment or lace where five
or more persons are employed. Art. 5145 R.C.S., and
Art. 1565, P.C. The owner, manager, and Superintendent
of such enumerated establishmentsare required to co-
operate with your department. Art. 1563 and 1566, P. C.
It will be helpful at this point to cite the
following legal quotations:
In Galveston, H. & Ii.Ry. v. Anderson (Civ.
App.), 229 S.W. 998, the Court said:
"Where an enumeration of specific things
Is followed by some general word or phrase,
such general word or phrase Is to be held
to refer to things of the same kind as those
specificallymentioned."
Speaking of~the above rule, the author of the
;t;;lc;;i;tatutes,
39 Texas Jurisprudence,page 202, par.
, :
"The doctrine of ejusdem generis (of
the same kind) imports that general words
following an enumerationof particular or
specific things, will be confined to things
of the same kind. In brief, the general words
so used are not to be construed in their wid-
eatsense, but are to be held as applying only
to persons or things of the same kind and class
as those enumerated. Such words will not be
held to include things of a class superior to
that to which the particular words belong.
'The ejusdem generis doctrine Is a gen-
eral~or 'prima'rule of statutory construc-
tion, employed as an aid in d@ermlning the
Intention of the Legislature.
Under the doctrine of "ejusdemgeneris' broad
and comprehensiveexpressions In an Act, such as %.na ali
other', or "any others", are to be restricted to persons
or things of the same kind or class with those speclflcal-
ly named In the precedin words. City of Lexington v.
l$t;;;$n (Kg;.)159 S-W. 72d) 1015, 1017. Generally,words
or any other following enumerationof particular
classes of things in the statutes must be read as meaning
Hon. U. 33.Morgan, Page 6 (V-478)
'other such,like"and Include only words of the like
kind or character. Bl er v. UnemploymentCompensa-
tion Commission (Del.)7 6A (2d) 137. Johnson v. Bear
(MO.) 40 3.w. (26) 481,; !85,.
In,AssociatedIndemnity Corporationv. Wil-
son, 21 3.W. (28) 314, It was held,that a dairy, Its
equipment including churns,~pasteurizers,cows, barna,
paint'shops,blacksmith shop, and ice.factory,, did not
come.wlthin'thepurview,of the Child Labor Law,,P.C.
1925, Art; 1573, ,whlchprohibited a child from be+ng
employed to labor in or abouta factory or workshop.
Penal Code, 1925, Article 1568, Is a,$fol-
lows:
"Any'personin 'controlor manage-
ment of,any establishmentIncluded In the .
preceding article who shall fail or refuse
to comply wlth'any written oidbr issued to
:such,
person by the Commissloner':ofLabor
Statistlos, or any of his deputies,,orin-
spectors, ior the correction of any condition
caused or permitted therein which endangers.the
health of the emnloyees therein or whl h do not
aomply~wlththe'law governing such establish-
me&s; shall be..pu$shedas Provided In the
preebdUg article. (lhsphasis added)
Articlex568,,P.CI,_makes
._ it anoffense
_.. _ for
_ =e
to fai&.or refuse to-comply,withanz wrstten oruer isBuea
to such,DerBomfor the aorrection of any comdltionn caus-
ed orp&alttcd therein~vih%ch en&aaBerkhk he,althof khe
emplog4astherein. 3%~ Artlele,PAT. 1568;me8nm Ug.
l8ed wPittek%order,md must neoemasrilfbe mMd in
%i#i&% with Art. 5179, R.C.S.
This btatuteedoesnot vest in the Labor Ca-
tirrl@mer general rule-making8uthorltj. lpBe~on1~power
he haa in thir mapeat is to Issue urltten ,?rdorato
plm~r af bwlnesn, after in~wztlOI&,direotlng the. aer-
restion of'conditionsviolative of the law. A g&oral
@N&P or +le addrissed indisbrimlnately:toall plaee8
of business w0w not be the proper basic for the em-
of the Ac.tby alosing maohplace8 or by crlm-
ti3i-ihtment
lnal prosecution. R.S. A&.5179, P.C; 1567, 1568.
But'you are, in otiropinion,.authorlzedto
prollulgate d standards to assist thOBe covered
to establlsh.condiIons at their plants and businesses
..
Hon. M. B. Morgan, Page 7 (V-478)
which will be helpful in meeting the general standards
prescribed by the Act. However, such Interpretations
and standards cannot be the basis of the enforcementof
the Act. Public AdministrativeLaw, 42 Am. Jur. 3 2,
#77; Utah Hotel Co. v. Industrial Commission (Utah7 ,
151.P (26) 467, 470, 15 A.L.R. 1176, 11803 Williams
v. State (Tex. Cr. App.7 176 S.W. (26) 177.
The phrase "any wrltten'order"used in the
Act under consideration (Art. 1568 P.C.) refers to
written ordertF%uadeafter inspection of the premises
pursuant to the general authority granted under the Act.
It does not expand the powers of the Commissionerbe-
yond the powers granted in the Act. The same is true
of orders dealing with conditions "endangeringthe
health~of the employees."Only orders dealing with
the.unsanitary conditionsmentioned In the Act would
be of force and effect. The Conmlssloner Is not au-
thorized to issue orders dealing with all conditions
which he believes 'endanger the health of the employees."
As to your third question, the 44th Legisla-
ture, Acts 1935, Regular Session, Chapter 245, page
618, recognized the importance of the work done by the
Department,by providing for additional revenues SO
that you could more efficle$tly "enforcelabor laws
in the 011 and gas fields.
Oil fields are usually developed in rural
areas where labor laws play a very small part. But
with the development of oil and the increased popula-
tion Incident thereto, the safety, health, and morals
of the community require an efficient enforcement of
the labor laws. This can only be done by an increased
staff. The purpose of this enactment is to furnish
the Increasedpersonnel to better enforce the labor
laws entrusted to your Department, such as the Child
Labor Law, the Semi-MonthlyPay Day Law, the Rmploy-
ment and Agency Law, the q-54 Hour Law for Women, the
Semi-MonthlyPayment Wage Law and Public Work, Protec-
tion of Wortien on Buildings and other laws entrusted
to your Department for enforcement. It does not mean
merely the petroleum industry. It covers the petro-
leum industry only Insofar as that industry like others
comes within the purview of the statutes entrusted to
you for enforcement. Such a view Is inescapableby
a reading of Section 7 o? the 1935 Act, which provides
as follows:
..
Hon. #. B. PIorgan,Page 8,(V-478) ~
%ec.' 7. "There ie hereby appropriated
out ~ofthe.,funds accruing froiathe Oil and
t3as:Rpforcement Fund hereinbe$‘oreprovided
of Three ‘mousand One Hundred Flf-
the ainount’.
t,yDbllargt ($3$150)‘,ibrthe ‘pimiose0% paying ~’
salaries,o,fDept+y Comlsrloners :ofLabor
St&ist$cs to enforce 18bm lam in,the 011
and.gas .Tields.,!
me Legislaturedid~not intend for the wcrds
"oil and ..gasfields” to .&ubrace,theoil and gas or,pe-
troleltmtidustrs. It sis@ly meant that the laws affect-
In&the working people of this St&b be enforced In
those areas and localitieswhere oil and gas are,:pro-
duced.
SUWUARY
The ConmIssionerof the Bureau of
Labor StdtIstica does~not have general
rulmnaking power under the Health; Safe-
ts;.and Morals~Act (Apt. 1573-80 V.C.S.
Art, ~1567,1548 P iC.) ., .’He may, however, .
issue intcrpretatlotis and.sug&Oataa. stand-
ards’to assist bnslnesses covered by the
Act to establish cbndltlonswhich aore
nearly miet’~thegenersl standards OS thy
Act. ,. ‘,’ ‘,~.:
The term “oil and as fields; a8
used In the 1935 Acts, ei 4th Leg., Reg.
Seas., Ch.,245, page 618, apprcqx?iatlng
adqUtiona1monies ~to “enforce. labor law8
in the oil,and gaa flelde” refers to the
geoeaphic locslitieswhere such im&cts,
atieproduced, and not to.the petroleumin-
dustry, as a whole.
Youre very truly
ATTORREY
BERRRiiL
OF TlsI88
ACTIBO ATTORRRY ~EMXR& David’Wtqtch
Assistant
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