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'foran 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 stenographersand pharmacists inany and all cities,' 'regardlessof the population of said~,.cities?v Article 1569 of the Penal Code of Texas. 1925, asamended bv Acts cf the-43rd Legislature,, reads: - -. "No femaleshall :be employed: "1. Inanyfaatory, mine, mill,~workshop,mechanical or mercantile ,establishment, hotel, restaurant, rooming house, theater,moving picture show, barber-shop; beauty shop, road side ,drinkand/or,foodvending establishment, telegraph;,telephoneor other offioe~,,expres~s'or,transportation company,,

or any State~instit,utien,.er enterprisewhere 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),

calendarweek. "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 atany 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 merchandisemanufacturedout of cotton goods, for more than ten 10 hours I 1 in any one (1) calendar day nor more than sixty 60 hours in any one calendarweek. Article 1570 of the Penal Code provides that employers incertain types of business undertakingswherefemales are employed shall furnish adequateseats for their use when notactually engaged in their duties. Article 157'1of the Penal Code, as amended by the First Called Session of the L&t Legislature, reads: "The two precedingArticles shall not apply to stenographers and pharmacists,not to mercantile establishmentsor telegraph or telephone companies in rural districts and in cities or towns or v~illagesof less than-three thousand inhabitants as shownby the preceding Federal~census,nor 'tosuperintendents,matrons, nurses and attendants employed by, inand 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 calamitiesor where it becomes necessary forthe protection of human life or property, longer hours may be worked." Thus it appearsfrom Article 1571, supra, that it wasthe intention of the~hegislaturethat stenographersand pharmacistsbe exemptedfrom the protection of,Article 1569, supra,~ regardless of the population of the town or city in which they might be employed. Article 1571, supra, likewiseprovides that Articles 1569 and 1570 shallnot apply "to mercantile establishmentsor telephone companies in ruraldistricts and in cities or towns or villages of less thanthree thousand inhabitants, according to the preceding FederalcEnsus."
Your first question involvesa determination ofwhether or not the terms of Article 1571, supra, are broad enough to exempt all persons, firms and corporationsfrom the provisions of Articles 1569 and 1570, supra. It will be noted that there areanumber of different types and character of business institutionsmentioned in Article 1560 which are not specificallymentioned in Article 1571 andwhich Cannot possible be exempted, except upon the theory that "mercantile establishments" issufficiently bread to embrace thewhole 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: "Theword tmercantilelin its ordinary acceptancemeans 'pertainingto the business of merchantsand is concerned with trade or buyingandselling 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$nttmay 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 'mercantileestablishment1must mean and refer to an institution or mercantile business or a place, building or location where the mercantilebusiness 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 Hotchkissvs. 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 theaccused. 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 Thompsonvs. 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 constructionthat an exception to a statute is, as a rule, strictly censtruedagainst one claiming its benefits and one claimingsuch benefits will be required to shew that he cemeswithin 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 tothe questians submitted,we believe that "mercantileestablishments"as used in Article 1569, is g$ven its restrictedmeaning by the~Legislatureand 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 thatArticles 1569 and 1570, supra, apply toall sections of the Statewhether ruraldistricts, cities, towns or villages regardless of the pnpulation of such subdivisionsunlessthey comewithin theaceptions contained in Artiele 1571, supra. We do not undertake te advise what particular business institutions comewithin theterm "mercantileestablishmentsnexcept thatthey be tested by the definitions hereinabove contained. Article 1571, supra, exempts stenographersand pharmacists from the provisions of Articles 1569 and 1570, supra, regardless of the populationof 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