Case Information
*1 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, to be inaludeb in the eta., term wlaborers*, In conetruing hrtlale 5.22la, V. A. C. S.?
We have glren aarfdul. oonel4eratlon to your opinion request 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 Ita re- It became effeative in due aourae tollewing aelpi 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 Auno- tatea 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 solialt- Ink laborers in this State to be employed be- yond the limita of this State an4 is also meant to include every pereon, firm, partner- stip, corporation or aesoolatlon of pereons raa~atalniug an oiiice to hire entfoe, or 801IaIt laborers to be employed p-on& the limit6 of *2 Honorable John D. Reed, Comisoioner, Page 2
tblie State; ah4 is also meant tc inalude every person who, ae an independent aon- traotor or otherwlae than aa an agent oi a duly licensed tunigrant agant procurea, or undertakea to proaure, or asolet in pro- curing 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 to be explqed beyond the eny laborer 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 suspend- 94, 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 isay be looked to for aid in a8aertalulug Iagislatuse the 'legislative regaeldless of whether the law becomea intent lme4lately effeatlve. 286 59 Tax, Jur. 2=, 1 121, and oases ofted under riots 18, espeaially Interstate yorward- ing 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 nminlng that aompqrte with the leglsla-' tire the words of a statute are acoorded 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 em- ployed are 0rdLarlly giveu their plain-mean- lng '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 It is proper and moms- in whioh,lt is used. times 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 dlffer- ant ldeas, an4 it will not ordioarlly do to adopt E m3tricti434 or 5,38clfla aeiiniti0a espe0lally whore the meanfng OS the w0rd in *4 qua&ion Is is YaMant as the onneetlonu $ we In nihioh it may bs rmploysd. in tiiaular moaning llepatWl# every oatm the upon, an4 must o determiwa by, the eon- r
text 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 dis- tln@&hedfromartlsana and f-the ro- feasIonal olaarGP7Biiipharle in diet e- onary.1 In the l CIIW authority, the word *bookkoeperw 18 de- fiaedt "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 tha psanlag OS the *roti *laboreP in interpreting atatuter gfv- ing a lien to laborers; in aot# exmptlng the wage6 09 la- borer8 from grrnlshmsnt; an& In legirrlatlon elvlng prefarinoe lorod to employclse of an Insolvent oorporatlon, We hate 0 a good4 number OS thsae east18 in an effort to gain 1 JPghttQ anablr w t@ arrive at a aorreet rolution of the problem of tha mean- ot the term In the lnatant 6ituatlon. n Y+ San Antonio 6: Ourf
X&the case OS Wlli 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, $aborera and operatlvetP who psrforwd labor, or worked wlth tools, tepmo or otherwlere, In the oonetruo- *5 Honorable tohn D. Reed, ~ammi66ioner, Pa@ S
tlon, operation or re*alr of an$ 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 to a lien themon for the ummt railroad wo not entitled 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 *opera- tlvs', and the deokion is aqunrily upon the queltlon of whether euoh a pa-son ua6 a QIborer* wlthia the spirit In this base, the court ~BaM and meaning of the itatuts.
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 or Innigratlon Aotr wa6 M6iited t6 m6utml povi610~ 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 par- y the traneportatlon oontraot labor6r6 son to pro migrating r 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. ha6 beolded that a boolck66p6r 16 naithsr fillnois _
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 for his work 5s &or&a. 8@s the oa6e of niok vr lien
. 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. 155 154, Cei~IeeE e booli?ieepor e prior lien on the voparty o? ais 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 restrlot- od ssaniz~, es manual etdrolse o?'a,tollsome nature, exe'* torca produolng ~arlnoas. tion o? ruscular
In addition to the federal ease of United &ate6 6a;zk of C?utU!a, BUprU, *IO find that the Circuit Y. Union $OIUt Of South Caroll~ in l#i.btt~&On v. WappOO IfillS,.
86 F. 192, at p. 198, held a bookkeeper o? a mlnjn~ aompaay not to be a *laborer* within the title o? the statute, the oaptlon reading *An aot to provide for laborer's llens.~
t%Xile~StEtei h8h OiWiSS OOiltnt kJeW ?eXWey, Con6ollCatsd coal Co. v. Keyetona Chemloal co,, 54% X.,xq, 309, 55 A. 157; arm Yoxk Brown vrFeno8 Co?; ,5LHun, 161, 5 l?. Y. 6. 95; Georgia, fanmr Y. Chlsholm, 77 Qa. 506.
The great weltit of authority seema to be oon- cltd;iva tbt a~bookkeeper i6 Bat to be ~O~id~~d a6 BOQ- lng n-ithin the ole6sl?lcatlon of's *laborerwr fn additlan to the l'ems oaae a? hEilligan ye Ry. CO., rupra uhlle the follonirg do not ln~olvs a bookkseper, Beet R&q Co. v. ,I.- Witheras, 75 Tbsii 94, lb? 8. t. 976$ St.LOtii6~8.W. By. 00. :.f &410, l!ez.- 26 8. w. ma; Dunn v* H~wkine, 'fox. cfv. App., OF :
Q w.+dj 983; Bell Oil It Reflriing Co. Y* PrloO, Tax. 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 Abn- hama 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 to the preosdsnt of Abrahams Y. solely out of respeot Andorson, supra, as note this language: to l xsrolss a free
*lf we were authorized Intellectual judgment as to the matter, ln- stead 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 iollew- ing languaget .q That a stenogmpher Is skilled and train- ,’ ii
ed aannot affeot the nature of the work he ” does, although It does affeot it8 character. After aoquiring the trade, ths teat Is the tbilo~, It ia airsiatit nettoa or aarrying to aonesive of anything nore thoroughly raanual than the rork of a stenographer. EeoeIQIng the sounds from the lips of another, he re- giietara what he hears tina reproauoes what he reaelves. He exeroises no Indspenaenoe of thought, no Initiative, no aIsorotIon. The test of his efiiofenoy tence.of wbat Is given him and Its return un- changed. Is his absolute aooep- If hie einployer indulges In the pastime of nmrdefing the TLIng*s FnglIBh, he mst beaome a *partIaeps Orimini8,' and join 90 pronounaedly are the In. the assaaelnation; physiaal raoultiss Involved In stenography that them OOBMIS a time when the hand refuses to work, although the aental faoulties nay be *8 Honorable John D. Reed, Comml.asIoner, Page 8
entirely labor, work of the hand." clear. It Is preeminently manual 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 that languagr no have gaigrant Agetmy~taw, ana espeolally to eseroiae "a free undersoored above, we are impelled in- tellectual judgment" with respeot to the at&us of adono- grapher 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, dtJ ly by experlenoe. When, perohanoe, one Is*ua- amlid able 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 to e master Orartesan In order to youth 'IFIS apprentloed learn a trade. The method apprentloeshlp maintains to In those orartt3 aad t=aOs oarriea this day, partioularly on by those whom we commonly refer to as laborers.
Rut no stenographer learns the.roisnoe of short- hand through the apprentloeship method. The method employed In teaahlng and learning shorthand is precisely that of The procedure Involved Is much the sanm formal sohoolliig.
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 ourriau- lum 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 part an a8eOOiatiYe allianoe rith a MOOgniSed temittOlOgy those learnings and skills whIoh we term basloally is highly "praotl- oiU*, 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 mechan- loal 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 the work of well reOOgnIzed laboring oomprlng 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 profi- aienoy in It is the result of steady praotlae an4 exporlenoe. ProfloIenoy oomes to the bricklayer ani Eaipenter and blaoksmith from steady praotioe and experlenoe, specially and, they 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 *10 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 oom- position 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 steno- Fraphy 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, to a major degree knowledge of these ei5sentIally the mastery of whIoh req4res
literary teahnlques, cannot be classed as exolusively a manual per- formanc:e, as the 3eorgia jurlet contends. By his own reason- ing onae the duties performed aro rsmoved from an eseen- t 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