OFFICE OF THE A=ORNEY GENERAL OF TEXAS 

AUSTIN 

Honoreble John D. Reed, Comissioner 

Bureau of Labor Statistics 

Aulltln, Terse 

Dear Sir: Opinion l?o. O-3980 

Be: Are etenographers, bookkeepmrs, 

eta., to be inaludeb in the 

term wlaborers*, In conetruing 

hrtlale 5.22la, V. A. C. S.? 

request 

We have glren aarfdul. oonel4eratlon to your opinion 

of resent date Iu whlah you seek our aonstruetioa 

en4 determination of the meaning of the word *laborer* a8 

wed in the Texas -grant Agenay Lew. 

This 1egIrlatlon wae enaate4 In Its prerrent form 

by the paeeage of Chapter 96 of the @enera Laws of the 

10&y-firat Leglelature at Its Beaond Called Sesaion In 

It became effeative in due aourae tollewing Ita reaelpi In the offloe ot the Searetary of &ate tithout the 

elgueture of the Oovernor, an4 Is printed offfalally at’ 

page SO3 oi the General Lews of Texae, 4U t Legisrlature, 

Seaon an4 Third Called Seaaione, 1989. In Vernon*8 Aunotatea Civil Statutes, It Ia clamslfIe4 as Artlole 5SSla. 

In order to under&end your question properly 

we 4ecrm it expedient to aopy herein Seation 1 OS the Aat, 

oontelnlng the derinitlon of the term “emigrant agent*t 

w8eoion 1. The t em *edgrant agent * 

ar use4 in this kt means every pereon, Sirm 

corporation or aesociatlon o? persona engage& 

In the business of hiring, enticing, or solialtInk laborers in this State to be employed beyond the limita of this State an4 is also 

meant to include every pereon, firm, partnerstip, corporation or aesoolatlon of pereons 

raa~atalniug an oiiice to hire entfoe, or 801IaIt 

laborers to be employed p-on& the limit6 of 
Honorable John D. Reed, Comisoioner, Page 2 

tblie State; ah4 is also meant tc inalude 

every person who, ae an independent aontraotor or otherwlae than aa an agent oi a 

duly licensed tunigrant agant procurea, or 

undertakea to proaure, or asolet in procuring laborers for an anigmnt &Tent; nnd 

every cnigrant agent shall be termed an4 

held to be 4oi2g busineao as such in eaah 

en4 every County wherein he, in per&on, or 

through an qent, l?irce, entices or tvollcite 

eny laborer to be explqed beyond the 

lL?Iitx of t!le 3t.ste.- 

T.&re are alerec sectiona OS the legielati.on, but 

. we will include no other portion@ of it hers exaept the 

emergenay aleuse, sloaa you are no doubt familiar with all 

f of its termi an4 provislous. The bat regulates an4 >rovldee 

tor supervision of en&grant agents aa above. Uetineti, but.111 

no part of same is the word elaborer” defined, an4 you wish 

to know whether Wetenographera, bookkeepers, ato.’ are to 

be conelder *laborersW within its terms. 

Ke here quote the emergency olauee, .empheelzing 

aertain Dortlcnrr thereof, In our effort to aecertain the 

- leglrrlatlve fntent: 

*The i’aat that the gtate of Texas haa 

Caine to be reao.~gnlee4 as a fwitrti rield ror 

the aatlvitles of Rnigrant Agents and the 

reaeoneble regulation of eai4 buainase, areatee 

an aaargency and en imperative public necessity 

that the cotititutioml rule requulrlng billa 

to,, be reed on three several days be suspend94, an4 the came ie hereby euspen4e4, an4 that 

this Act becoxe arrectlve rrom and after ita 

passajar and it is sc enacted.” (Underscoring 

oura. 7 
Honorable Johu D. &ma, hnd88loner, Page 9 

The eznergeney alause of a bill paseed by the 

Iagislatuse isay be looked to for aid in a8aertalulug the 

'legislative intent regaeldless of whether the law becomea 

lme4lately effeatlve. 286 59 Tax, Jur. 2=, 1 121, and 

oases ofted under riots 18, espeaially Interstate yorwarding CO. '9. Vineyard, (Clv. App.) 5 3; W. (2U) 947, reveras 

121 Tex. 289, B9 8. W. (2d) 405, where the cmergenay olause 

ai a bill was he14 clearly to show the purpose of the 

Leglslature~ 

Xa 39 Texas Jurlsprudense 194, 1 lq3, et seq., 

it15 said: 

"Iu hanaosy with prlnoiples haretofore 

stated, the words of a statute are acoorded 

the nminlng that aompqrte with the leglsla-' 

tire intention, othsrwlee stited, 'the rule is 

that statutory ~rds are to be interpreted 

aacordlw.to the sense in whioh thsy vere 

evidently used by the L5g151atuxer Thus when 

neaessary to fulfill the legl8litlve intent, 

the meaning of wonis may be l xtemled beyond 

or reetrl5ted within~thel~ raatural lmpert. 

But, a5 we have 5665 ( ( OJ),~the legl5latlve 

intention 15 primarily r0m in the language 

of the statuts and thersrote the vords employed are 0rdLarlly giveu their plain-meanlng 'without regard to the dlstlnction usually 

mm46 between the aonstruatlon of penal. &ws 

and laws upon other subjeatr,* unless the aat 

alearly shows that they were use4 in so1116 

other sense. . . . 

WIudeteminiugthe maaning of'a word 

en@oyed in d.statute, the inquiry is 'mt as 

to Its abetraek mean%ng but ai $0 the sense 

in whioh,lt is used. It is proper and momstimes necessary to aonsult a dictionary to 

asqertqln the meaning to be attached to 8' 

wx4. An4 it may be profitable, as thmulng 

light upon a proper construotlon to be &ren~ 

a statutory ~rovlsion, to note the aacepted 

legal 4erinftJon of a word ussd thsreln. But 

one word may often be use4 to szpress dlfferant ldeas, an4 it will not ordioarlly do to 

adopt E m3tricti434 or 5,38clfla aeiiniti0a 

espe0lally whore the meanfng OS the w0rd in 
qua&ion Is is YaMant as the onneetlonu 

In nihioh it may bs rmploysd. $ we in 

every oatm the tiiaular moaning llepatWl# 

upon, an4 must r o determiwa by, the eontext an4 rrubjeot matter, and ths avl&mnt 

latent1on. of the LeglI4lature," 

Applflng the above pcinoiplas of the la, 18 find 

the folloulng definition OS tha nor&wlaborerR in Webeer*@ 

IYew Interaational Diotionaxy; and odltiona 

"One who laboral ap~lf. t OM bho doe8 

phyrrloal labor8 on. nho workaht a toiUnna 

oooupatloag e8p*.a peraonwho dose work that 

FequfrgJ 6trMgth rather than &ill, as distln@&hedfromartlsana and f-the rofeasIonal olaarGP7Biiipharle in diet e- onary.1 

fiaedt 

In the l CIIW authority, the word *bookkoeperw 18 de- 

"One who keepa soooUatSl OW whO80 

bueiaesm or ~rofeerlon 1s bookkeepm 

-@LapmsiB our*) 

AmI, steao6raphm 

"Oae who i8 @tilled in #tonogra#ty; 

'a writer OS l horf&aM : 0rtan, OM appi~y~(~ 

to do stenografrhlo vfork.W (~i# ouir.] 

'Ips rind many deoisiona of rarioifi appellate aourtr 

throughout ‘the oountry whersln there 1~ Qiro~elon of tha 

psanlag OS the *roti *laboreP in interpreting atatuter gfving a lien to laborers; in aot# exmptlng the wage6 09 laborer8 from grrnlshmsnt; an& In legirrlatlon elvlng prefarinoe 

to employclse of an Insolvent oorporatlon, We hate 0 lorod 

a good4 number OS thsae east18 in an effort to gain JPghttQ 1 

anablr w t@ arrive at a aorreet rolution of the problem of 

tha mean- ot the term In the lnatant 6ituatlon. 

X&the case OS Wlli n Y+ San Antonio 6: Ourf 

Shore Ry. Co,, (Tex. Civ. App, Y 44 8, Pl. 928, the oouxt had 

bofow it a provision of tha Code of 1095 pxOtldlng that all 

Ineahanlae, $aborera and operatlvetP who psrforwd labor, 

or worked wlth tools, tepmo or otherwlere, In the oonetruo- 
Honorable tohn D. Reed, ~ammi66ioner, Pa@ S 

tlon, operation or re*alr of an$ railroad, or equipmint 

of a reil.roed, and to whom wag~a were.due for auoh work, 

or ior the work of tCml6~or team6 thu6 smplogad, or iOr 

work otherwleo perform& 6hOuld hare a lien upon 6uoh 

rciUroad tlllenfor. Beldr A bookkeeper and auditor, in 

the employ of the oo~ation ofnqmny whloh built a 

railroad wo not entitled to a lien themon for the ummt 

due him for hi6 6ervl0e8~ In the oour6e of the oplnlon 

it was noted that the bookkeeper and audUior did not 

clati to oomqunder the drB&&ation Vm0h66l6~ or *operatlvs', and the deokion is aqunrily upon the queltlon of 

whether euoh a pa-son ua6 a QIborer* wlthia the spirit 

and meaning of the itatuts. In this base, the court ~BaM 

a bookkeopa and allditor wa8 not to beg oo~lilsmd a 

?laborer*. 

In the Fwlwal oam of %ited 8tatl6 v. 'Jhlon 

hak of Canala, (Cir. Ot,..App. I?. Y.) 868 Y'i 91, 8.A. t. 8. 

1430, the word *labmoP aiturbd in the oontraot .labor 

povi610~ or Innigratlon Aotr wa6 M6iited t6 m6utml 

labororo, and neither a bookkoe P in a bank nor a oterk. 

la a etoem6hip ofiioa wan 66n6 lr ered wfthln the prohibition 

o? an act 0r Congrsao making it a mlsdsswanor for any parson to pro 

r 

y the traneportatlon of oontraot labor6r6 

migrating nto the United 8tato6+ 

At~oording to the 1om York ua6e of 4+Ohrui fq 

A. 8. Baker Co*, 6lBI. T. 8. 784. 80 l&so. 45, a booklwper 

-(I not a *laboroP within an aot p~seiyrlng tha wger ti 

laborero~oi lnoolvsnt oorporatloar.,. f~ 

And'ln Louirlp~, a bookkeeper for a 6ta~s milli, 

was not suoh a wlaborer* in tha ayas of that.rtata a aourt 

in the aase of Dodd f* HOrOn, 12% 80~ BS, 584 a6 would 

entitle hint to a lien on the proiluot Of the maiil for wage6. 

fillnois ha6 beolded that a boolck66p6r 16 naithsr 

a leborsr nor a servant, in view of an aOE to protebt em- 

_ 

.. 

ploy668 and Uborere la their olalm for n*ger and the aOt 

concerning voluntary a66ignmentA relating to ptal4Wed 

olalm6 for wage~6~ Signor v* Wbbb, 44 111. Appe SSSr 

An amployae o? a oontraotor, who kegt the book8 

uf his employer, euperlntscde8 a part of the aark, aad w66 

foreman of a squad of laborars.,-sanaot be 6aid a6 a matter 

of law, to be suoh a *ilaborer” ,a1 would be entitled to 6 

lien for his work 5s &or&a. 8@s the oa6e of niok vr 
. m3 

Ronorable John p. Reed, Caimi661oner, P6g.e 6 

XO~;s Er;;. co. ) lE7 C&x. 787, 58 8. ?L l@@l, at p. 10015. 

In ubnshingtor., the court lc the cam oi Cavanaa& 

v. Art %mlwere & h?c. CO., 124 Waash. Z45, El.4 P. 155 

Cei~IeeE e booli?ieepor e prior lien on the voparty o? ais 

154, 

employer, holding he 1~66 not a el.aborer*;i ,that the term 

'%bor" as wed I;; the labor lien atetute a? that stato 

waa lctended to be contlued to its uore cuuuon and restrlotod ssaniz~, es manual etdrolse o?'a,tollsome nature, exe'* 

tion o? ruscular torca produolng ~arlnoas. 

In addition to the federal ease of United &ate6 

Y. Union 6a;zk of C?utU!a, BUprU, *IO find that the Circuit 

$OIUt Of South Caroll~ in l#i.btt~&On v. WappOO IfillS,. 

86 F. 192, at p. 198, held a bookkeeper o? a mlnjn~ aompaay 

not to be a *laborer* within the title o? the statute, the 

oaptlon reading *An aot to provide for laborer's llens.~ 

t%Xile~StEtei h8h OiWiSS OOiltnt kJeW ?eXWey, 

Con6ollCatsd coal Co. v. Keyetona Chemloal co,, 54% X.,xq, 

309, 55 A. 157; arm Yoxk Brown vrFeno8 Co?; ,5LHun, 161, 

5 l?. Y. 6. 95; Georgia, fanmr Y. Chlsholm, 77 Qa. 506. 

The great weltit of authority seema to be ooncltd;iva tbt a~bookkeeper i6 Bat to be ~O~id~~d a6 BOQlng n-ithin the ole6sl?lcatlon of's *laborerwr fn additlan 

to the l'ems oaae a? hEilligan ye Ry. CO., rupra uhlle the 

follonirg do not ln~olvs a bookkseper, Beet R&q Co. v. ,I.- 

Witheras, 75 Tbsii 94, lb? 8. t. 976$ St.LOtii6~8.W. By. 00. 

&410, l!ez.- 26 8. w. ma; Dunn v* H~wkine, 'fox. cfv. App., 

:.f 

Q w.+dj 983; Bell Oil It Reflriing Co. Y* PrloO, Tax. 

OF : 

clv.wipp., 251~8. w. 55Qr 

With referenoe to %teno#@ayher6, We h6V8 6QCGrC~d 

dili.~ctly to Zind- Oaier pWSiIl5 UpOh the dt!I~Sifi8atiOn t0 

whlah they properly belong. The only deaielons ~6 hare bean 

able to find in any jurl6dlotion are the &3or& 08666 o? 

Cohen v. Aldrich, deolded in 1908 by the f!ourt a? Appala 

of %orC:ie .5 Cm. App. 286 6S 8. 3%. 1015, f0ll6wing Abnhama v. An h m-son, 80 Ga. 540, 5 8. E. 778, 12 A& St. Rep. 

E.74. Its Cdhen ixumhm be&n cited in the 0880 of La@eP 

X?g. Co. Y. Prey tk Co., 10 &I. Apph 755, 738. E. 1074, 

without comment otherwlset and in the Waehington oaae of 

stats v. ROWJWII, en Wash. 530; Ml P. 349, the ea.88 ~66 

sited ao authority that a ateno&raphar and bookkeeper was 
5994 - 

IiOnOrable John D. heed, COE&B~~IO~W~~, Page 7 

a *norkeP within the mekdng of the employment agenop 

statuta of tht.t state. 

In the Cohen oase, supra, it was held that a 

utenographer to the assistant manager of a aorporation, 

who received lettera by diotation and transcribed the II-, 

preserved office records, addressed ana milea letters, 

end performed ~;enerally the duties of aznanuensfs In ths~ 

office, whose salary was payable sami-znonthly, and whose 

term of service wtis not fixed, me a *laboreP whose nag00 

were exempt from garnishment. In the Cohen ease, howsvsr, 

the lourt nmde It clear that the hol&Ingwae adhered to 

solely out of respeot to the preosdsnt of Abrahams Y. 

Andorson, supra, as note this language: 

*lf we were authorized to l xsrolss a free 

Intellectual judgment as to the matter, lnstead of being bound by the preoedonts ‘~6 

would ‘not hesltato to hold that Al&lob was 

.not a mtinual laborer. It Is our~~psnonal view 

that Abraharas Y. Anderson was lnsorreotly 

a00ia6d. We aro bound by the preoedents, and 

the Abrahaem aase olearly a.,ontrols this one.* 

fn the oourse or the opInIon~we rind the iollewing languaget 

That a stenogmpher Is skilled and trained aannot affeot the nature of the work he 

does, although It does affeot it8 character. 

After aoquiring the trade, ths teat Is the 

nettoa or aarrying tbilo~, It ia airsiatit 

to aonesive of anything nore thoroughly raanual 

than the rork of a stenographer. EeoeIQIng 

the sounds from the lips of another, he regiietara what he hears tina reproauoes what he 

reaelves. He exeroises no Indspenaenoe of 

thought, no Initiative, no aIsorotIon. The 

test of his efiiofenoy Is his absolute aooeptence.of wbat Is given him and Its return unchanged. If hie einployer indulges In the 

pastime of nmrdefing the TLIng*s FnglIBh, he 

mst beaome a *partIaeps Orimini8,' and join 

In. the assaaelnation; 90 pronounaedly are the 

physiaal raoultiss Involved In stenography that 

them OOBMIS a time when the hand refuses to 

work, although the aental faoulties nay be 

,’ ii 

.q 

” 
Honorable John D. Reed, Comml.asIoner, Page 8 

entirely clear. It Is preeminently manual 

labor, work of the hand." 

As staled above, we have foun; no other oases In 

any jurisdlotlon _mssing upon the question of whether a 

stenographer Is a *leborern. Apparently our Texas oourts 

have naver been called upon to writs upon the point. 

Adverting to the emergenay olauss of the Texas 

gaigrant Agetmy~taw, ana espeolally that languagr no have 

undersoored above, we are impelled to eseroiae "a free intellectual judgment" with respeot to the at&us of adonographer in Texas, with due deferonoe to the WpreoedentsW 

of the great state of Georgia. We are unwIllling to say, 

aa applied to our Terns stenographers, that a "large per 

asntage of the Indlvlauale . . . are uneducated and not 

fully oognizant of their rights or of business methods In 

protaotlng and eecurlng their rlghts~" 

A capable Texas stenographer (And who nil1 8ay 

the vast majority of them are not capable?) devotes muoh 

tIl:s and speoial etudy to the attainment of the art.. 

Profloieno oomes from tedious hours of steady praotloe, 

amlid dtJ ly by experlenoe. When, perohanoe, one Is*uaable to pursue the aalling with reasonable ~regularity 

a preview and additional study is essential to regain ths 

efrloient status essential to a proper dlsposltlon of tho 

dutffea. 

In the early days of our sduoatlonal system the 

youth 'IFIS apprentloed to e master Orartesan In order to 

learn a trade. The method of apprentloeshlp maintains to 

this day, partioularly In those orartt3 aad t=aOs oarriea 

on by those whom we commonly refer to as laborers. 

Rut no stenographer learns the.roisnoe of shorthand through the apprentloeship method. The method employed 

In teaahlng and learning shorthand is precisely that of 

formal sohoolliig. The procedure Involved Is much the sanm 

as that praatIa@Pwith the yolung eduoand, who Is taught 

first to form letters Into words, and then to awpoae anb 

read sentences. Many and uarioua are the signs and symbols 

used and aommltted to memory, before ultimate attainment of 

a praatloal and ueable system of shorthand, 
Honorable John D. Reed, Gomissioner, Page 9 

Typewriting and shorthand are formally recognized 

m;ie;;s In the curriouluin of the vast majority of our high 

. The subject matter of the modern school ourriaulum Is divided oh.lefly into two fields, the skill subjeots 

and the humanities, or the practical arts and the fine arts. 

The skill subjeats or practloal arts are rmnlfeatly oomposed 

of those studies whloh have prinarlly a vooatlonal aspsot. 

Rut the faat that the word “art” has become In eduoational 

temittOlOgy a MOOgniSed part of an a8eOOiatiYe allianoe rith 

those learnings and skills whIoh we term basloally "praotloiU*, is highly indloatlve of a line of demroatlon whIoh 

must distinguish the subjeots demarlbed as WpraatIoal arts" 

from the "fine arts" on the one hand,@& from wholly mechanloal or manual pursuits on the other. 

In our eduoatlonal systam we have trade sohools In 

whIeh mechanics and manual training are taught In various 

fonw. There are oomerotal sohools, ox business oollsges, 

where bookkeeping and steography oonstitute the oentral o&s 

of the ourrloulum. And there are many Texas high sohools 

whbra aubjeots from both the moohanioal and the oommeroIa1 

fields are tau@t by the same formal laboratory method as 

the aolenoes. These faats might tahd, at first glanoe, to 

oomport with and lend oredsme to the reasoning of the 

Georgia jurist, when he says, with the particular Intent of 

oomprlng the work of well reOOgnIzed laboring trades with 

that of the stenographer: 

=. i . It is urged that stenography is 

an *art*, a skillful employment, the reeult 

of epeoial study and training, and that profiaienoy in It is the result of steady praotlae 

an4 exporlenoe. ProfloIenoy oomes to 

the bricklayer ani Eaipenter and blaoksmith 

from steady praotioe and experlenoe, and, they 

specially study and train . . . Speolal study 

and trainim and steady praotioe an-d experienoe 

do not of themselves make @art'." 

In another part of the Georgia opinion it is said.1 

n the true distinotlon iBt Does 

mental*l;b& or manual labor predomInatelW 

And In this oonneatlon we believe Is to be found 

the error in the learned jurist's reasoning. He ignores the 

literary requisites required by stenography, elements wholly 
Honorable John D. Reed, Co~eeloner, page 10 

lacki= In bricklaying, aorpentering and blaaksnithlng. 

The judge olaims this la of no acoount; since If the 

employer Rlndulges In the practice of murdering the Zing’s 

EnglIeh, he (the stenographer) muet baoome a ‘partlceps 

arimlnls 1, and join In the assassIgatIon.w But it must 

be remembered that If the employer dictates the word 

uaInltw, It Is the stenograi>her*s job to know that an 

apo#trophe must be plaoed between the letters “nw and *tw. 

And It is a well known fact that many executives do not 

take the time or bother to diotate all of their letters, 

but merely Issue lnstruotione, leaving the aatual oomposition of the letters to the Inteilsotual acumen of ths 

etezogsapher. It Is in this literary requleita that ‘art” 

enters, in addition to manual eklll. 

The line of aamaroatlon between labor and stenoFraphy oaours, we believe, precisely at the point where 

the stenographer must bring into play, in addition to the 

required skills of placing signs and symbols on paper and 

traneariblng their meaalng by the use of a typewriter; L a 

knowlsd.ge of the oorreot use of letters; grammar, rhetorlo, 

spelling and literary oanposltlon. Eaoh of th6ss aajunots 

Is Inherently a phase of literature, the baslo subjeot of 

the humanities. Any subjeot, the mastery of whIoh req4res 

to a major degree knowledge of these ei5sentIally literary 

teahnlques, cannot be classed as exolusively a manual performanc:e, as the 3eorgia jurlet contends. By his own reasoning onae the duties performed aro rsmoved from an eseent Iaily manual routine, then the one who performs thwn Is 

not $9 be crlasead a8 a laborer. 

SpeoIfIcally answering your question, we are of 

the opinion that neither a bookkeeper nor a stenografier, 

as such,, o omes wIthln the meaning of the term *laborerw as 

ueed In the Texas EnIgrant Agency Law. 

Yours very truly 

BenJamin Woodall 

Assistant