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 13of

. th Legislature, when the last temporary exemption expired February 15, 1946.

Your request for our opinion onthe above oaptioned matter has been received by this department. Wequote from your / letter as followsr

“Wewould thank you to give us anopinion on the following fact situation submitted to us by the Southern Pine Lumber Company of Diboll, Texas, wherein they write us as follows:

“‘OnFebruary 15, 1945, wemade application to your department for exemption for female employees from Sections 1, 2, 3, 4, 5, and 13of Senate Bill No. 129 as enacted by the Forty-Eighth Legislature. After an investigation was madewewere granted the exemption, File No. 301, andwere subsequently granted several 30-day temporary exemptions, the last expiring February 15, 1946.

I’(Wedid 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. Whenwefirst made application for exemption wewere employing seventy females in our manufacturing plant, andwereduced this number as rapidly and as consistently as male labor was available. Weare nowoperating our manufacturing plant ten hours per day and fifty hours per week. Wehave only one female employee nowin 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 along time; and wedonot feel justified in discontinuing her services aswehave
never considered her atemporary employee.“1
It appears from the above facts that only one female employee is nowemployed 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, Nofemale 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, telephone 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 shownby 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 bythe State. In cases of extraordinary emergencies, such as great public calamities, or where it becomes necessary for the protection of humanlife
orproperty, longer hours maybeworked; 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 ofwar and/or when the President of the United States proclaims astate 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, 49Statute 2036, U.S. Code, Supplement II, Title 41, Paragraph 35-45,as amended by Act of May13, 1942, Public No. 552, 77th Congress, 2nd Session, commonly known as the Walsh-Heale Statute 149t Act, or the Act of March 3, 1931 C. 411, 46

,.as amended August 30, 1935 ute 1011, U.S. Code Title 40 Paragraph 3C. 42.5, 49Stat768 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 13of this Act, and female workers in such industries maybe 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, orworking 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 ofwar 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 ofSection 6 hereof are exempt from the provisions ofthis Act.
Yiec. 7. “Sec.8.

“Sec. 9. Jn time of wa loner of Labor

nt of female ves in anv de ignat dindustrv for h En (10) hours D%at will not iniur; tie ea?th or Urals and/or add to the hazards o t eir ocuDation and th t such hours of labor are in the Dubiic interist, file h:s findings as reaui dherein. and make anod gantine 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 andhearing as provided herein shall behad as though notemporary exem- tion had previously been in effect.” (emphasis addedP
Sec. 9of Senate Bill No. 129 (Art05172a, Vernon’s Annotated Civil Statutes, 1925) gives to the Commissioner of Labor Statistics the power to grant exemptions in time ofwar 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 alumber mill, and since Sec. 1of the above Article includes mills, the industry is clearly adesignated 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 weconclude that weare nowin atime ofwar as required bythe prefatory phrase of this section.

This department has held in several opinions that awar is not concluded in the legal sense until someformal action by a competent authority terminating the war andre-establishing peace is had. The 77th Congress of the United States, by joint resolution, formally declared astate ofwar between the United States and certain foreign governments. Todate, neither Congress nor the President has formally declared atermination 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 whenwar is at an end. The Proteotor 12 Wall, (U.4.) 700 20L.Ed. 463. Perkins v. Rogers, 35Ini. 124, 9Amm.Rep.639: Kneeland-Gibilow Co. v. Michigan Central R.R. Co., 207 Mich. 546, 174N.W. 605. Anumber of
cases hold that World WarI terminated by the joint resolution of Congress of July 2, 1921. See Clemens v. Perry, 51 S.W. (2d) 267 and Simmerman v. Hicks, 7F(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 ofher occupation; and further that such hours of labor are in the public interest, then you maygrant such an exemption in accordance with the other provisions of Senate Bill No. 129.

Wetrust that what wehave said is a sufficient and satisfactory answer to your inquiry.

Yours very truly,
ATTORNEY

GENERAL

OFTEXAS

CYMrLJ:wb By/s/ Clarence Y. Mills Clarence Y. Mills, Assistant
APPHOVED,OCT25, 1946 /s/ Harris Toler FIRST ASSISTANTATTORNEY GENERAL

@PROVED:OPINIONCOMMITTEE BY: BWB,CHAIRMAN