c



### Q,F XAS

Honorable Frank Briscoe DistrictAttorney Harris County Houston, Texas ‘OpinionNo. WW-1077
Re: Whether an agent or employee of a corporation can be held liable for violation of Article 286, Vernon's Penal Code, commonly
Dear sir: referred to a8 the Sunday Closing Law.
We have your letter of April 13, 

### 1961,in which you request the opinion of this Department on the above subject. The questionyou have presented is stated BE follows:

"Can the agent or employee of a corporationbe liable for violation of Article 

### 286,V.A.P.C., commonly referred to.as the Sunday Cloeing Law?" Article 

### 286,Vernon's Penal Code, as now codified,has its origin in Acts 1871 and was amended in 1883 and again in 1887. We find no amendments to the article since 1887. The act reads a8 follows:

"Anymerchant, grocer, or dealer inwares or merchandise, or trader in any businesswhatsoever, or the proprietor of any place of public amusement, or the agent or employe [aicl of any such person, who shall sell, barter, or permit his place of business or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall be fined not less than twenty normore than fifty? dollars. The term place of public amusement, shall be construed to mean circuses, theaters,variety theaters and such other amusements as are exhibited and for which an admission fee is charged) and shallalso include dances at dlsorderly houses, low dives and places of like character, with or without fees for admission." The Sunday laws are constitutional. Clark v. State, 319 S.W.Pd 

### 726 (Tex.Crlm. 

### 1959). Accord, McGowan v. Maryland (U.S. Sup. Opinions deliveredMay 29, 

### 1961,not yet reported).

This Article as to Sales tiy merchants is constitutional. g parte Sundstrom, 

### 8 S.W. 207 (Tex.App. 

### 1888)and Is not class legislation.

### Hon.Frank Briscoe, Page 2 (WW-10i"i')

Searcy v. State, 

### 50 S.W. 

### 699 (Tex.Cr#. 

### 1899). Also the act is not unconstitutionalas granting specialprivileges. Sayeg v. State, 25 S.W.2d 

### 865 (Tex.Crim.

### 1930).

Prohibiting the house to be "open",as used in the statute,means that the house shouldbe closed against all traffic. Whitc,omb v. State, 

### 17 S.W. 

### 258 (Tex.App.

### 1891).

"Traffic"as used herein is defined clearly in the case of Levlns v. State, 

### 34 S.W. 

### 969 (Tex.Crim. 

### 1896). The court held, in a prosecution for keeping opena liquor saloon for traffic on Sunday, that the lower court corre,ctly

charged that, if the jury believed defendantkept his saloon open for the purpose of "traffic"on Sunday he shouldbe convicted, and that the term traffic as employedhas its usual and commonly acceptedmeaning and that no further definition of the word "traffic"was necessary.

Your questionwould be resolved if the words "agent or employee of any such person", as they appear inArticle 286, V.P.C., shouldbe construed to include "agent or employee" of a corporation. The contention made by others, as stated in your letter, is,thatthe agent or employee of a corporation is not the agent or employee of a "person".

In the constructionof a statute, the legislative Intentmust govern. Article 

### 23,C.C.P., provides as follows:

"The provisions of this Code shallbe liberally construed, so as to attain the objects intendedby the legislature:The prevention, suppressionand punishment of crime." Article 

### 7,V.P.C., suppliesthe general rules of construction as follows: "This Code and every other law upon the subject of

crimewhich may be enacted shallbe construedaccording to the plain import of the language inwhich it is dltten, without regard to the distinctionusually made between the constructionof penal laws and laws upon other subjects;and no person shall be punished for an offensewhich is not made penal by the plain import of the words of a 1aw.s
One of the rules establishes the following:
"It is presumed that the Legislature intendedthat its enactments should conform to the requirementsof the Constitution,and that, with all their provisions, they should have effect and be enforced. The legis-Eon. Frank Briscoe, Page 

### 3 (WW-1077)

lative intention is presumed to be according to what is consonantwith sound reason and 'gooddlscretion'. Thus, it is not presumed that the Lsgislatun intendedto do or require an absurd, foolish, impossible,unfair, unjust, unreasonable or useless thing." 39 Tex.Jur. 245, Statutes, Sec. 131. The case of Gould v. State, 134 S.W. 695 (Tex.Crlm. 1911),was one in which the "agent or employee" of a corporationwas charged on an information for violation of the Sunday law. The causewas reversed and remandedbecause of failure of the State to prove, by propermeans, that the amusement companywas the owner. The court, among other things, stated that an informationalleging that accused, as agent and employee of the proprietor of a theater, permitted a theatrical performance to be given on Sunday, to which a fee was charged for admission, chargesan offense. In Its conclusionthe opinion says:

"The court did not err in overruling the motion to quash the informationand complaint, as It charged an offense under the law, and the court did not err in admitting the testimony of the witnesses Laws and Cullum in testifying to what was taking place in the building on the occasion;but, on account of the error hereinbeforepointed out, the causewill be reversed and remanded." (Emphasisadded.)
It is submitted that the Court of CriminalAppeals has decided the question of the amenability of an agent and employee of a corporation to the operation of Article 286, V.P.C., by its plain use of the word corporation.

Oliver v. State, 144 S.W. 604 (Tex.Crim. 1911), is a case in point where the agent and employee of a corporationwas charged on a complaintand informationfor unlawfully opening a theater contraryto the "Sunday Closing Law." Although Oliver was the agent and employee of a:corporation,the court affirmed the conviction. The opinion discusses at length statutory constructionand intent of the Legislature. We will quote only a portion thereof. The court, after discussingthe rules of constructionof a penal statute stated at page 611:

"Of course; all these rules, wherever used in the interpretationof statutes,are used and applied solely ,forthe purpose of determiningwhat was the intention of the Legislature in the use of the words and the language as used by it In the enactments for, as was aptly said by our Supreme Court, through Chief Justice Gaines, in Edwardsv. Morton, 92 Tex. 153, 46 S.W. 792, and reiteratedby this court in Parehall v. State, 

### 138S.W. 

### 759,and other cases: 'The intention of the Legislature in enacting a law is the law itself.'"Hon. Frank Briscoe, Page 4. (WW-1077)

In quoting from Sections 

### 349,350of Sutherland on Statutory Construction the court, in the Oliver case, said:

n'. . .It is said that, notwithstandingthis rule, the intention of the lawmakermust govern in the construction of penal as well as other statutes. This is true. But this is not a new independentrule which subverts the old. It is the modification of the ancient maxim, and amounts to this: That, though penal laws are to be construed strictly, they are not to be construed so strictlyas to defeat the obvious intention of the Legislature.
. .I" (Emphasisadded.) Further quoting from Sutherland at Section 

### 415the court repeated: IV

t

. . .Themodern doctrine is that to construe a statute liberally, or according to its equity, is nothing more than to give effect to it according to the intention of the lawmaker, as indicatedby its terms and purposes. This constructionmay be carriedbeyond the natural import of the words when essential to answer the evident purpose of the act; so it may restrain the generalwords to exclude a case not within that purpose.

II

. . .Liberaloonstructionof any statute consists in .Liberaloonstruction statute consists

a-meaning renders more effectual giving the words a-meaningwhich renders it effectual to accomplish the purpose or fulfill the intentwhich it accomplish purpose fulfill plainly discloses. this purpose, be For purpose, the words may taken in their fullest and most comprehensivesense.Where

fullest comprehensive the intent of the act Is manifest, particularwords may manifest, particular have an effect quite beyond their natural signification natural signification in aid of that intent.'" (Emphasisadded.)

intent.'" (Emphasisadded.) There are many other rules for the interpretationof statutes to aid in ascertainingthe true intentionof the Legislature. In the Oliver case, supra, it is said:

"This court, through'JudgeDavidson, in Yakel v. State, 

### 30Tex.App. 

### 394,17 S.W. 

### 944,20 S~XW.205 said: 'Statutes should be so construed so as to preventmischievous consequences. Such construction finds itself supported In the good order of society,protection of the weak against the strong, and shouldbe favored, and more especially if such a constructionbe in opposition to one that would tend to bring about evil results, People v. Garrett, 

### [68Mich. 

### 4871 36N.W. 2349 Hoemes v. State, 88 Ind. 

### 145;Am. & Eng. Encyc. 

### of law,p. 

### 702,note 2. The purpose and object of the Leglslature in enacting the statutebeing known, it Is the duty of the court to so construe it as to conform to that Intent and carry out such purpose."'Hon. Frank Briscoe, Page 

### 5 (ww-1077)

In construingthe originalArticle 186 (now 

### 286)of the Penal Code of 

### 1879the court inAlbrecht v. State, 

### 8 Tex.App. 314, (1880) in an opinion by Justice Clark, 6al.d:

"The obvious intention of the Legislature,as manifested inArticle 186 (now 199) of the !Penal Code. was to prevent altogetherthe barter and sale of merchandise on Sunday, and to prohibit all merchants, grocers, dealers in wares or merchandise, or traders in any lawful businesswhatever, from desecratingthe Sabbath, and distractingwith their avocations the peace and quiet of other portions of the communitywho might desire, from religious or other considerationto devote the day to worship of God, and to entire rest from their

_daily employments. This purpose, so manifest, cannot be

_ __. . ^

_ ^ alsregaraeo in tne searcn ror a proper rule ror construction,but must be given effect to, unless qualified or restrictedby some potent provision of law rendering a contrary construction imperative." (Emphasisadded.) Further, .in:theOliver case, supra, (144 S.W. at page 

### 616)the following is present:

"Under these various enactments of the Sunday law, and how they were added to from time to time, retaining at all times after the first insertion the words 'orthe agent or employ= [sic] of any such person', it is clear to us that we reached and announced the correct interpretation of the present statute in the original opinion herein. We cannot agree to appellant's contention that the agent or employe is not amsnable under this statute, unless such agent and emulove has the Dower and authorits from the prop;ietor of the theater to open or close it. - The very use of the words 'agent'or 'employe'and especiallyof the word 'amploye',taken in connection with out statute on the subject of principals, indicates clearly and without doubt to us that the Legislature intended that whoever permitted the theater to be open, rhenn entrance fee was charged, act in aid thereof, was amsnable t *phasis added.)
It is to be pointed out that the prohibition In the article is imposedupon those individualsactually engaged in or responsible for the violations and not the corporate entity as such.

The Court of CriminalAppeals in the case of Brockman v. State, 

### 28 S.W.2d~



### 820 (Tex.Crim.1930), reversed the decision of the trial court-.

Hon. Frank Briscoe, Page 

### 6 (WW-1077)

because the complaintand pleadings did not sufficiently identify for whom the accusedwas agent or employee and stated, in part, as follows:

"The Legislaturehavingwritten in this statute that persons who are agents and employees, and attempted to be penalized as such for keeping a place of public amusement open on Sunday,must be characterized in the state'spleading as thegents and employees of some private person, or else agents and employees of some firm, corporation,or company . . . "Appellantsmay be guilty, and may be guilty as agents and employees, but the indictmentshould state the person, firm, or companyby whom they were employed, in order to measure up to the requirement of Article 286, supra." (Emphasisadded.)
One of the most interestingcases in point is that of U.S. v. Union Supply Co., 215 U.S. 50 (1909),wherein the court stated:

"The words 'wholesaledealers' are so apt to embrace corporationshere as they are in section 2, requiring such dealers to pay certain taxes. We have no doubt that they were intended to embrace them. The - words 'anyperson' in the penal clause are as broad as 'wholesaledealers' in the part prescribing the duties. U. S. Rev. Stat. Sec. 1. It is impossibleto believe that corporationswere intentionallyexcluded. They are as much,.within the mischief aimed at as private ersons,~

and as capable of a wilful breach of the law." Emphasis added.) Uniformly it is held that a statute of a general nature of the character of the one under consideration includes corporations.

"Under a statutoryprovision, a corporation is a 'person'within the meaning of that term as used In the constitutionaland statutoryprovisions. More particularly,a corporationhas been held to be included in the word 'person'as used in the statutes relating to the venue of actions, limitationsand death by wrongful act." 10BTex.Jur. 

### 64.
"Personsare divided by the law into persons natural and persons artificial. The term 'person'prima facie at common law and apart from any statutory enactment limiting itsmeaning, Includesboth natural and artificial nersons. and therefore as a general rule includes cornorations:" 13 Am. Jur. 

### 164.State v. Natelson Bras.,-32 A.2d 581 (C.C.A. 1943)a-. .

Bon. Frank Briscoe, Page 

### 7 (WU-1077)

"Corporationsare to be deemed and consideredas persons when the circumstances in whfCh theyare placed are identicalwith those of natural persons expressly included in statute . . .and the word 'person'in a statute, though penal, which is intended to inhibit an act means 'min

. . . and therefore includes corporations If they are withinthe spirit and purpose of the statute." 

### 13Am.Jur. 

### 166.; ~(Rnphasls added.) ,"Word'person'in Oklahoma statute authorizing person paying usurious interestto recover twice amount paid, includes corporations." GeneralMotors Acceptance Corp., v. Mid-West Chevrolet Co., -2d 1, 8. ,Fromthe opinion in the case of CentralAmusement Co. v. Dietrict of Columbia, I.21 A.2d 

### 865, (Ct. of App. 1956), we find that the statutoryuse of the word “person”to include corporations is so general that to hold 'corporations are not included requires clear proof of legislative intent to exclude them. 

### 18C.J.S., 

### 13Am.Jur. 

### 166,Corporations, Sec. 11;

p. 

### 386-387,

Corporations,Sec. 

### 8.
We must look to the classificationcreated,which would result should the "agentsand employees" of natural persons be subject to the ,penalties

of Article 

### 286,and the "agentsand,employeee"of corporations be exempt therefrom. The singling out of certainbusinesses as exemptions where the facts remain that there is no rationable differencewhich necessarily distinguishesthe two operations,would constitutean unreasonable and arbitrary classificationdiscriminatingagainst nome by granting immunitieeto one of the classes to the exclusion of others. If such be the constructionplaced upon the artiole, itwould ,olearly be unconstitutional.

The Legislature intended that the act would conform to the Constitutionand we believe that it &es. Therefore, it is our opinion that the word "pen!on" includes corporationsand the "agents and employees" of a corporationare subject to the penalties provided in Article 286, V.P,C.
We concurwith your conolusionas stated in your able supporting brief.

The penaltiesprovided in Article 286, V.P.C.,

apply alike to "agentand employee" of a corporation or other artificialperson as It does to the "agent or employee" of a natural person.. .

Hon. Frank Brimcoc, Pam 8 (VU-~)

Your. very truly, WILL uIIso11 Attorney 

### GeneralofTexae

APPROVED: OPINIONCOMMITTEE W. Q. Gbl)peti,

Chairman JerryRoberts IolaWilcox WilliamE. 

### Allen htrcnce Eargrove REVIEWEDFORTRE~ GwHlAL BY: Morgan 

### Nesbitt HarrisToler Aeaistant

Attorney Qencrel