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, SafeDear Mr. Morgan: the te& "011 and gas fields" aa uaed by the b&&Leg., 1935, R. 5. Oh. 245, p. 168, refers to a geographical

area or to the oil and gas petroleum industry

You state that it is the desire of the Bureau of Labor Statistic&to adopt a code of safety and health standardsapplicableto Health, Safety and Moral Law&of this State..

.

The Realth, Safety and,MoralsLaw, of Texas was enacted by the sion, Chapter 5,, page,l32, and codified in the Revised

35th Legislature; ~1918, Fourth Called SeaCivil Statutes of 1925 a8 Articles 1573-1580,Inclusive, and Penal Code, 1925, Articles 1567-1568.

&.&inctly, Articles 1573-1580provide that in every factory,mill, workshop,mercantile establishment, laundry 'orother establishmentin this State, proper tenperature 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 employees are required to work and directs that dust injurious to the health of the persons employedbe allayed; it prohibits decomposedor putrescentmatter or refuse 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 employeesas en-- tranbes~

or exits to open outward; it describes the number of water closets, earth closets, or privies to be suppliedaha requires separate closets or privies for males~and females, and requires them to be kept clean and effectivelydisinfectedand ventilated;and it forbids In such places of employmentthe existence of any influence,,

practices, or 00naitioq8 calculatedto lnjurlously affec,t

the morals of female employees. The law authorl~zes

the Commissionerof Labor Statisticsor his deputies or inspectorsto enter such places of,employment for making inspectionto determine that the provisions of the Act are being compliedwith, and empowers the departmentto issue an order for the correctionof 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,'the Commissioner of Labor Statistics, his deputies, or inspectora, are empowered to close such establishment **or** any part of it, until such time aa said orders are compliedwith. The Act states how such powers may be exercisedand provides
a method for testing the validity of such orders. Penal Code, 1925, Article 1567~1568 fixes the penalty for permitting immoral influenceson female employeesana for failure or refusal to comply with proper orders of the Commissionerof Labor Statisticsor his deputies or **in** spectors.

Your questionsare as followa:

"Pursuant**to** the duties imposedby 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 printed and issued in the form of a general order applicableto the industrialestablishments enumeratedin Articles 1567-8, P.C. of the Health, Safety and Piorals Law. We therefore respectfully

request the Attorney 5eneral's opinionbearing on the extent and llmltations of powers imposedupon the Coarmlssioner of Labor by the above-mentioned articles,and by other laws cited herein.
"Question1. In addition to the provleions of Art. 1568, P.C. imposingauthority uponthe Labor Commfssionerto issue orders correcting

within the establishments arduous _.Hon. M. B. Morgan, Page 3 (V-478)

conditionsdescribed in Articles 5173, R.- C.S., thru 5180, R.C.S., of the Health, SafetJr and 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 preventive powers be exercisedby the Commlssloner in dealing wlth any additional conditions he may deem detrimentalto the safety and health of the employeesof all such establishments? That part of Art. 1568, P.C. wherein this inquirer draws such inference is here quoted with, single and double underscorings added to place the appropriatedegree of emphasis
on key words of the expression: ‘Anyperson

. . . who shall fall or refuse to comply with anv written order issued to such-person br the r;ommlssloner of Labor Statistics.or any~of his deputies, or inspectors,for-the correctionof con- caused or Dermitted thereinwhich ngers the health of the employees therein or which do not comply with the laws governing such establishments shall ;;tisylshedas provided in the precedingar+. ; ’
“Question2. By authoritygranted the Commls.sloner

of Labor by the above-namedarticles would it be permissiblefor the Commissioner to develop and adopt standardsof safe and healthfulworking conditionsto be incorporatedIn one written or printed general order applicableto all establishments whose operationsand processesbear common or like hazards detrimentalto the physical safety and health of the employeesof such establishments?
“Question3. H.B. No. 455, Chapt~er 245,, 44th Legislature- Regular Session,, ‘Taxing PetroleumProducts and AppropriatingProceeds Therefrom to Enforce Conservation Law,’ Section 4, and Section 7 whl&readS in part as follows:

“‘There Is hereby appropriatedout Of the funds accruing from the Oil and Gas EnforcementFund hereinbefore provided the a-. mount of Three Thousand One Hundred FiftyHon. R. B. Morgan, Page 4 (V-478)

Dollars ($3,150)for the purpose of paying salaries of Deputy Commissioners of Labor Statlstloato enforce labor laws in the oil and gas flelas.s In order that,the Commlssloner of Lab,or

may efficiently

discharge the duties imposed upon his office by "the .', above-quotedlaw an opinion of,theAttorney Qeneral Is hereby requested lnterpretlngthe Legislativeintent 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,ln lts,activitlesto the specfftcgeographical area commonly referred,-to

by name as a particular ,011 and/or, 'gas field or was it the Leglslature*slntentlon that the term '011, and gas field' embrace the.011 and gas Industry (or as is more COEmonly expressed 'petroleum industry')In its entirety;and ~wlth the possible intended inclusion of the industry'segulpmentmanufac+ 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,the complex characterof the problem which~thl:e

regulatory'leglslatlon seeks to deal with. And as a wlse~'

and intelligentenforcement was sought, a single d~epartmentof government,the LaborDepartment, iras~ sDec~ally&harged to take ove,r 'and perform those prelimfna.ry

phases of the enforcement~~of~~the statutes, preparatory to its ultimate enforcemsntin the Court when necessary. Pour work, ln other uords;.ls to maiataln oontactswith the special industry or activity regulated~and to make investigations, sSfting complaints, to,make~prellmlnarydeterminatlons in instances in which Dosslble,vlolatlons are found or charged,and then to prbpare and "~glve

written notice of the facts to,the proper County nor

Dis'trlct

A.ttorney.*

Article 5149; R.- C.Si .!Che

relative oomDlexityof the lsaues with whloh your departmenthas to deal, and the detailed lnvestl- ~,gatIon of facts; which you are of necessity required to isake before determiningthat a law~hasbeen violated, 'makes lt praetleaflg imperative. for you tom

oonducthearlngs "and,taketestlmon~ ln, all matters relating to the duties requlred of you. Article 5150~, R.C.S., and ~P+C. 1562.

You are also chargedwith the duty Nof examlnlng Into the methods of protectingemployees from **danger**Hon. PI. B. Morgan, Page 5 (v-478)

and sanitary conditionsIn 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. 514 5 Art. 1565, P.C. R.C.S., and

The owner,manager, and Superintendent of such enumerated establishments are required to cooperatewith 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:

"Wherean enumerationof specific things Is followedby some general word or phrase, such generalword or phrase Is to be held to refer to things of the same kind as those specifically

mentioned."
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 generalwords followingan 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 wideatsense, 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 particularwords belong.

'The ejusdem generis doctrine Is a general~or 'prima'rule of statutory construction, employedas an aid in d@ermlning the Intentionof the Legislature.

Under the doctrine of "ejusdemgeneris' broad and comprehensive

expressionsIn an Act, such as %.na ali other', or "any others", are to be restrictedto persons or things of the same kind or class with those speclflcally named In the precedin l$t;;;$n (Kg;.)

159 S-W. 7 words. City of Lexingtonv.

2d) 1015, 1017. Generally,words
or any other followingenumerationof particular classes of things in the statutesmust be read as meaningHon. U. 33. Morgan, Page 6 (V-478)

'other such,like"and Include only words of the like kind or character. Bl tion Commission (Del.) 7 er v. UnemploymentCompensa6A (2d) 137. Johnson v. Bear **(MO.) 40**  3.w. (26) **481,; !85,.** 

In,AssociatedIndemnityCorporation v. Wilson, 21 3.W. (28) 314, It was held,that a dairy, Its equipmentincluding churns,~pasteurizers, cows, 

### barna, paint'shops,

blacksmith shop, and ice.factory,, did not come.wlthin'the



### purview

,of the Child Labor Law,, P.C. 1925, Art; 1573, ,whlch prohibiteda child from be+ng employed to labor in or abouta factory or workshop.

Penal Code, 1925, Article 1568, Is a,$follows:

"Any'person in 'control

or management of,any establishmentIncluded In the

. precedingarticle who shall fail or 

### refuse to comply wlth'any written oidbr issued to 

### :such, person by the Commissloner':of Labor Statistlos,or any of 

### his deputies,,orinspectors,ior the correctionof any condition caused or permitted thereinwhich endangers .the health of the emnloyees therein or whl h do not aomply~wlththe'law governing such establishme&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,with anz wrstten oruer isBuea to such,DerBomfor the aorrectionof any comdltionncaused orp&alttcd therein 

### ~vih%ch en&aaBer

khk he,alth

of khe emplog4as

therein. 3%~ Artlele,PAT. 

### 1568;me8nm Ug. l8edwPittek%

order,md must %i#i&% with Art. 5179,R.C.S. neoemasrilf

**be mMd**  **in**

This btatuteedoes

not vest in the Labor 

### Catirrl@mergeneral rule-making8uthorltj. lpBe~on1~ 

### power he haa in thir mapeat is to Issue urltten 

### ,?rdora to plm~r af **bwlnesn,** after in~wztlOI&, direotlng the. aerrestion of'

conditionsviolative of the law. A g&oral @N&P or +le addrissed indisbrimlnately:to all plaee8 of business w0w not be the proper basic for the em

### ti3i-ihtment

of the Ac.t

by **alosing** maoh**place8** or **by crlm**  lnal prosecution. R.S. A&.5179, P.C; 1567, 1568.

But'you are, in otir opinion,.authorlzed to prollulgate d standardsto assist thOBe covered to establlsh.condi Ions at their plants and businesses..
Hon. M. B. Morgan, Page 7 (V-478)

which will be helpful in meeting the general standards prescribedby the Act. However, such Interpretations and standardscannot be the basis of the enforcementof the Act. Public Administrative Law, 42 Am. Jur. 3 2, #77; Utah Hotel Co. v. IndustrialCommission (Utah 7 , 151.P (26) 467, 470, 15
v. State (Tex. Cr. App. 7 A.L.R. 1176, 11803 **Williams** 176 S.W. (26) 177.

The phrase "anywrltten'order" used in the Act under consideration (Art. 1568 P.C.) refers to written ordertF%uade after inspectionof the premises pursuant to the general authoritygranted under the Act. It does not expand the powers of the Commissionerbeyond the powers granted in the Act. The same is true of orders dealing with conditions "endangering the health~of the employees."Only orders dealing with the. unsanitary conditions mentioned In the Act would be of force and effect. The Conmlssloner Is not authorized to issue orders dealingwith all conditions which he believes 'endanger the health of the employees."

As to your third question, the 44th Legislature, Acts 1935, Regular Session, Chapter 245, page 618, recognizedthe importanceof the work done by the Department,by providing for additionalrevenues **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 developmentof oil and the increasedpopulation Incident thereto, the safety,health, and morals of the communityrequire an efficient enforcementof 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 entrustedto your Department, such as the Child Labor Law, the Semi-MonthlyPay Day Law, the Rmployment and Agency Law, the q-54 Hour Law for Women, the Semi-MonthlyPaymentWage Law and Public Work, Protection of Wortien on Buildings and other laws entrusted to your Department for enforcement. It does not mean merely the petroleum industry. It covers the petroleum industry only Insofar as that industry like others
comes within the purview of the statutes entrusted to you for enforcement. Such a view Is inescapable by
a reading of Section 7 o? the 1935 Act, which provides
as follows:Hon. ~ #. B. PIorgan,

Page 8,(V-478)

"oil %ec.' 7. " There ie hereby appropriated out ~ofthe.,funds

accruing froia

the Oil and t3as:Rpforcement

Fund hereinbe$‘ore

provided the ainount’.

of Three ‘mousand One Hundred Flft,y Dbllargt ($3$150)

‘,ibr the ‘pimiose

0% paying ~’ salaries,

o,f Dept+y Comlsrloners :ofLabor St&ist$cs 

### to enforce 18bm lam in, the 011 and. gas .Tields

.,!

me Legislaturedid~not intend for the wcrds and ..gas

fields” to .&ubrace ,the oil and gas or,

petroleltm

tidustrs. It sis@ly meant that the laws affectIn&the working people of this St&b be enforced In those areas and localities where oil and gas are,:produced.

SUWUARY

The ConmIssionerof the Bureau of Labor StdtIsticadoes~ not have general rulmnaking power under the Health; Safets;. and Morals~

Act (Apt. 1573-80V.C.S. Art, ~1567,

1548 P iC.

)

., . ’ He may, however, issue intcrpretatlotis and. sug&Oataa.

standards’to assist bnslnesses covered by the Act to establish cbndltlons which aore nearly miet’~the

genersl standardsOS thy Act. ,. ‘,’ ‘,~.:

used In the 1935 Acts, ei as fields; a8 4th Leg., Reg. The term “oil and

Seas., Ch.,245,page 618, apprcqx?iatlng adqUtiona1

monies ~to “enforce. labor law8 in the oil,

and gaa flelde” refers to the geoeaphic locslitieswhere such im&cts, atie produced, and not to.the 

### petroleumindustry, as a whole.

Youre very truly
ATTORREY

BERRRiiL

OF TlsI88

ACTIBO ATTORRRY ~EMXR&
DW/$nc/mw/lh/JCP David’ Wtqtch Assistant . .

.