Hon. Maureen Moore 

Commissioner 

Bureau of Labor 

Statistics 

Austin, Texas 

Dear Miss Moore: 

Opinion No. O-7368 

Rer Authority to grant temporary exemption for female employees from. 

Sections 1, 2, 3 4, 

Senate Bill No. 129, 58 

and 13 of . 

th Legislature, 

when the last temporary exemption expired February 15, 1946. 

Your request for our opinion on the above oaptioned 

matter has been received by this department. We quote from 

your 

/ 

letter as followsr 

“We would thank you to give us an opinion on 

the following fact situation submitted to us by 

the Southern Pine Lumber Company of Diboll, Texas, 

wherein they write us as follows: 

“‘On February 15, 1945, we made application to 

your department for exemption for female employees 

from Sections 1, 2, 3, 4, 5, and 13 of Senate Bill 

No. 129 as enacted by the Forty-Eighth Legislature. 

After an investigation was made we were granted the 

exemption, File No. 301, and were subsequently granted 

several 30-day temporary exemptions, the last expiring 

February 15, 1946. 

I’(We did not ask for renewal of the last temporary 

exemption granted us for the reason that at that time 

our manufacturing plant was only working nine hours 

per day and did not exceed fifty-four hours per week. 

When we first made application for exemption we were 

employing seventy females in our manufacturing plant, 

and we reduced this number as rapidly and as consistently as male labor was available. We are now operating our manufacturing plant ten hours per day and fifty 

hours per week. We have only one female employee now in 

the manufacturing plant, and it is not possible to employ her only nine hours per day when the regular run is 

ten hours. This employee is giving excellent satisfaction; has been with us for a long time; and we do not 

feel justified in discontinuing her services as we have 

never considered her a temporary employee.“1 

It appears from the above facts that only one female employee is now employed and she in the manufacturing plant of the 

lumber company. 
_. , 

Hon. Maureen Moore, page 2 (O-7368) 

Senate Bill No. 129, passed by the 48th Legislature, 

concerns the hours of labor of female employees, The sections 

pertinent to this inquiry are as followsc 

“Section 1. 

factory, mine, 

No female shall be employed in any 

establishment, 

mill workshop, mechanical or mercantile 

hotel, restaurant, rooming house, theater, 

moving picture show, barber shop, beauty shop, road side 

drink and/or food vending establishment, telegraph, t elephone or other office, express or transportation company, 

or any State institution, or any other establishment, institution or enterprise where females are employed, for 

more than nine (9) hours in any one calendar day, nor 

more than, fifty-four (54) hours in any one calendar week. 

Qec, 2. b . . 

We@. 

Wet. 2: : ‘. : 

“Sec. 5. The four preceding Sections shall not apply 

to stenographers and pharmacists, nor to mercantile establishments, nor telephone and telegraph companies in rural 

districts, and in cities or towns or villages of less than 

three thousand (.3,000) inhabitants as shown by the last 

preceding Federal Census, nor to superintendents, matrons 

and nurses and attendants employed by, in, and about such 

orphans’ homes as are charitable institutions not run for 

profit, and not operated by the State. In cases of extraordinary emergencies, such as great public calamities, or 

where it becomes necessary for the protection of human life 

or property, longer hours may be worked; but for such time 

:;;,;;,ss than double time shall be paid such femalewith her 

0 

“Sec. 6. In addition to the foregoing exemptions, 

in time of war and/or when the President of the United 

States proclaims a state of national emergency to exist, 

female workers employed in industries coming within the 

jurisdiction of the Fair Labor Standards Act of 1938 

and amendments thereto, the Act of June 30th, 1936, C. 881, 

49 Statute 2036, U.S. Code, Supplement II, Title 41, Paragraph 35-45, as amended by Act of May 13, 1942, Public No. 

552, 77th Congress, 2nd Session, commonly known as the 

Walsh-Heale 

Statute 149 t 

Act, or the Act of March 3, 1931 C. 411, 46 

,.as amended August 30, 1935 

ute 1011, U.S. Code Title 40 Paragraph 3 

C. 42.5, 49 Stat768 and Supplement V, Title 40, Paragraph $76A-276A-6, commonly known as 

the Bacon-Davis Act, are exempted from the provisions of 

Sections 1, 2, 3, 4, 5, and 13 of this Act, and female 

workers in such industries may be employed not exceeding 

ten (10) hours per day provided such hours of employment 
. - 

Hon. Maureen Moore, page 3 (O-7368) 

in such industries are not injurious to the health or 

morals of female employees, or working such hours does 

not add to the hazards of their occupations and such 

hours of employment are in the public interest. Provided, however, that in time of war and/or when the 

President of the United States proclaims a state of 

national emergency to exist, all female office employees 

of such employers coming within the purview of Section 6 

hereof are exempt from the provisions of this Act. 

Yiec. 7. 

“Sec. 8. 

“Sec. 9. Jn time of wa loner of Labor 

nt of female v es in anv de ignat d industrv for 

En (10) hours D%at will not iniur; tie h ea?th or 

Urals and/or add to the hazards o t eir o cuDation 

and th t such hours of labor are in the Dubiic in terist, 

file h:s findings as reaui d herein. and make an o d 

g antine an xa* and?he employer affected sh&i 

bz’exempt fez thirty 130) days from the provisions of 

this Act, during which time if further exemption is desired by employers affected, notice and hearing as provided herein shall be had as though no temporary exem - 

tion had previously been in effect.” (emphasis added P 

Sec. 9 of Senate Bill No. 129 (Art 0 5172a, Vernon’s 

Annotated Civil Statutes, 1925) gives to the Commissioner of 

Labor Statistics the power to grant exemptions in time of war 

to any designated industry provided certain findings, set 

forth in the same section, are made. In the case before us the 

female employee is working in the manufacturing plant of a lumber mill, and since Sec. 1 of the above Article includes mills, 

the industry is clearly a designated industry under the provisions of Sec. 9. It therefore appears that under the particular 

set of facts submitted in your letter you have authority to 

grant the requested exemption under Sec. 9, provided we conclude 

that we are now in a time of war as required by the prefatory 

phrase of this section. 

This department has held in several opinions that a war 

is not concluded in the legal sense until some formal action by a 

competent authority terminating the war and re-establishing peace 

is had. The 77th Congress of the United States, by joint resolution, formally declared a state of war between the United States 

and certain foreign governments. To date, neither Congress nor 

the President has formally declared a termination of these wars. 
Hon. Maureen Moore, page 4 (O-7368) 

It is the privince of the political department, and 

not the judicial department to determine when war is at an end. 

The Proteotor 12 Wall, (U.4.) 700 20 L.Ed. 463. Perkins v. 

Rogers, 35 Ini. 124, 9 Amm.Rep. 639: Kneeland-Gibilow Co. v. Michigan Central R.R. Co., 207 Mich. 546, 174 N.W. 605. A number of 

cases hold that World War I terminated by the joint resolution 

of Congress of July 2, 1921. See Clemens v. Perry, 51 S.W. (2d) 

267 and Simmerman v. Hicks, 7 F (2d) 443. 

It is our opinion, therefore, that the present war has 

not yet been legally concluded and cannot be considered as concluded in the legal sense even though hostilities are at an end. 

It is our further opinion that if upon private investigation you 

find that the employment of the female employee in question for 

ten (10) hours per day will not impair her health or morals and/or 

add to the hazards of her occupation; and further that such hours 

of labor are in the public interest, then you may grant such an 

exemption in accordance with the other provisions of Senate Bill 

No. 129. 

We trust that what we have said is a sufficient and 

satisfactory answer to your inquiry. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

CYMrLJ:wb 

By /s/ Clarence Y. Mills 

Clarence Y. Mills, Assistant 

APPHOVED, OCT 25, 1946 

/s/ Harris Toler 

FIRST ASSISTANT ATTORNEY GENERAL 

@PROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN