Hon. Joe Junsahik, Commissioner 

Bureau of Labor Statistics 

Austin, Texas' 

Dear Sir: 

O&nion No. F-1723 

: Gonstruption of Article.1571 of 

the Penal Code of Texas,~1925. 

This will acknowledge receipt of your letter of November 20, 

1939, in which you submit'for an opinion of this Department 

the following,questiens:' 

"1. Does Article 1571, P. C ., exempt from the'previsions 

of said chapter all persons, institutions, establishments, 

and enterprises in cities that had.less than three thousand 

inhabitants, as shown by the last pre~ceding,Federal census? 

Q. Does this'artiele exempt from~~~the provisions of said 

chapter stenographers and pharmacists inany and all cities,' 

'regardless of the population of said ~,.cities?v 

Article 1569 of the Penal Code of Texas. 1925, asamended bv 

Acts cf the-43rd Legislature,, reads: - -. 

"No female shall :be employed: 

"1. In anyfaatory, mine, mill,~workshop, mechanical or 

mercantile ,establishment, hotel, restaurant, rooming house, 

theater, moving picture show, barber-shop; beauty shop, 

road side ,drink and/or, food vending establishment, telegraph;,telephone or other offioe~,,expres~s'or,transportation 

company,, or any State~instit,utien,.er enterprise where fe 

'p 

ales 

are empleye~d, for more than nine, (9) hours in any ane (1 

ualendar day nor more'than fifty-four .(54) hours in~any 

ene (l), calendar week. 

"2. In any laundry or ~cleaning and pressing establishment 

for mere than fifty-feur (54) hours in ene '(1) ~aalendar 

week'! the heurs efwaerk te be Se, arranged as to permit the 

empleyment ef such female at any time so that she shall 

not work morethan a maximum of eleven (11) heurs during 

the twenty-four (24) hour period of one (1) day. 
Hon. Joe Kunschik, Commissioner, Page 2 O-1723 

"3. In any factory engaged in the manufacture of cotton, 

wollen or worsted geods or articles of merchandise manufactured out of cotton goods, for more than ten 10 hours 

in any one (1) calendar day nor more than sixty I 60 1 hours 

in any one calendar week. 

Article 1570 of the Penal Code provides that employers in certain 

types of business undertakings wherefemales are employed shall 

furnish adequate seats for their use when not actually engaged 

in their duties. 

Article 157'1 of the Penal Code, as amended by the First Called 

Session of the L&t Legislature, reads: 

"The two preceding Articles shall not apply to stenographers 

and pharmacists, not to mercantile establishments or telegraph or telephone companies in rural districts and in cities 

or towns or v~illages of less than-three thousand inhabitants 

as shown by the preceding Federal~census, nor 'to superintendents, matrons, 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 ofextraordinary emergencies, such asseat public 

calamities or where it becomes necessary for the protection 

of human life or property, longer hours may be worked." 

Thus it appears from Article 1571, supra, that it wasthe intention of the~hegislature that stenographers and pharmacists be 

exempted from the protection of,Article 1569, supra,~ regardless 

of the population of the town or city in which they might be 

employed. 

Article 1571, supra, likewise provides that Articles 1569 and 

1570 shall not apply "to mercantile establishments or telephone 

companies in ruraldistricts and in cities or towns or villages 

of less thanthree thousand inhabitants, according to the preceding FederalcEnsus." 

Your first question involves a determination ofwhether or not 

the terms of Article 1571, supra, are broad enough to exempt all 

persons, firms and corporations from the provisions of Articles 

1569 and 1570, supra. 

It will be noted that there areanumber of different types and 

character of business institutions mentioned in Article 1560 

which are not specifically mentioned in Article 1571 andwhich 

Cannot possible be exempted, except upon the theory that "mercantile establishments" is sufficiently bread to embrace the whole 

business field. 
Hon. Joe Kunschik, Commissioner, Page 3 O-1723 

A mercantile establishment is a place where the buying and selling of articles of merchandise is conducted. Basey Drug Company vs. Bruza, 37 Pac. 2nd 294, 

The court, in the above case, said: 

"The word tmercantilel in its ordinary acceptance means 

'pertaining to the business of merchants and is concerned 

with trade or buying andselling of merchandise?. &iting 

People vs.Federal Security Go., 255 Ill. 561, 99 NE 6681 

PI&H. Kohlsoot & Co, vs. O'Connell, 255 111. 271, 99 NE 

. . . . Thus, while theword testablishm$ntt may mean almost any kind or character of institution, location, 

building, or place, yet its meaning isgeatly restricted 

when used following the word 'mercantile' and the expression 

'mercantile establishment1 must mean and refer to an institution or mercantile business or a place, building or location where the mercantile business or the buying or selling 

of merchandise is conducted or engaged in. 

A merOantile establishment is a place where the buying and selling of articles or merchandise is ~conducted. 

Oiting Hotchkiss vs. District of Columbia, 44 App.D.C., 73. 

Penal statutes such as we have involved in this opinion are to be 

strictly construed against the State and in faver of the accused. 

State vs. Elliot, 34 Tex. 148. This rule is necessarily medified, however, to a limited extent by Article 7 of the Penal Code 

which directs that every law be construed "according to the plain 

import of the language in which it is written". The Supreme 

Court, in the case.of Thompson vs. Missouri, K.&T. Ty . Cal, 

126 SW 257, said8 

"The proper course is tosearoh out and follow the true 

intent of the Legislature and tealopt that sense which harmonizes best with the context and premotes in the following 

manner the apparent policy and objects of the 1egislature.w 

It is a fundamental rule of construction that an exception to a 

statute is, as a rule, strictly censtrued against one claiming 

its benefits and one claiming such benefits will be required to 

shew that he cemes within its terms. Evans vs. American Publishing Gel, 13 SW 2nd 358, 39 Tex. Jur. 277, para. 148. 

Applying the above mentioned definitions of mercantile establishments and rules of construction to the questians submitted, we 

believe that "mercantile establishments" as used in Article 1569, 

is g$ven its restricted meaning by the~Legislature and that the 

exceptions or exemptions contained in Article 1571 are to be 

strictly construed infavor of the State so as to carry out the 

intention of the Legislature. 
Hon. Joe Junschik, Commissioner, Page 4 O-1723 

It is therefore, the opinion of this Department and you are so 

advised that Articles 1569 and 1570, supra, apply toall sections 

of the State whether rural districts, cities, towns or villages 

regardless of the pnpulation of such subdivisions unless they 

come within theaceptions contained in Artiele 1571, supra. We 

do not undertake te advise what particular business institutions 

come within the term "mercantile establishmentsn except that they 

be tested by the definitions hereinabove contained. 

Article 1571, supra, exempts stenographers and pharmacists from 

the provisions of Articles 1569 and 1570, supra, regardless of 

the population of the cities inwhich they might be employed. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

BY 

Lloyd Armstrong 

Assistant 

APPROVED DEC 1, 1939 

ATTORNEY GENERAL OF TEXAS