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,
eta., to be inaludeb in the
term wlaborers*, In conetruing
hrtlale 5.22la, V. A. C. S.?
We have glren aarfdul. oonel4eratlon to your opinion
requestof 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
It became effeative in due aourae tollewing Ita re-
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
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
eny laborer to be explqed beyond the
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
Iagislatuse isay be looked to for aid in a8aertalulug the
'legislative intent regaeldless of whether the law becomea
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 words of a statute are acoorded
the nminlng that aompqrte with the leglsla-'
tire 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 lxtemled 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
in whioh,lt is used. It is properand moms-
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
qua&ion Is is YaMant as the onneetlonu
In nihioh it may bs rmploysd. $ we in
every oatm the tiiaular moaning llepatWl#
upon, an4 must r o determiwa by, the eon-
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*@
IYewInteraational 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 lCIIWauthority, 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 OSl 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 of 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
to employclse of an Insolvent oorporatlon, We hate 0 lorod
a good4 number OS thsae east18 in an effort to gain JPghttQ
1
anablr w t@ arrive at a aorreet rolution of the problem of
tha mean- ot the term In the lnatant 6ituatlon.
X&the case OS Wlli n Y+ San Antonio 6: Ourf
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, $aborera and operatlvetP who psrforwd labor,
or worked wlth tools, tepmo or otherwlere, In the oonetruo-
Honorable tohn D. Reed, ~ammi66ioner, Pa@ S
tlon, operation or re*alr of an$ 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
railroad wo not entitled to a lien themon for the ummt
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
and meaning of the itatuts. In this base, the court~BaM
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
povi610~ or Innigratlon Aotr wa6 M6iited t6 m6utml
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 mlsdsswanorfor any par-
son to pro y the traneportatlon of oontraot labor6r6
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~seiyrlngtha 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.
fillnois ha6 beoldedthat a boolck66p6r 16 naithsr _
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
lien for his work 5s &or&a. 8@s the oa6e of niok vr
.
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~IeeEe 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'*
tion o? ruscular torca produolng~arlnoas.
In addition to the federal ease of United &ate6
Y. Union 6a;zk
of C?utU!a,BUprU, *IO find that the Circuit
$OIUt Of South Caroll~ in l#i.btt~&On v. WappOO IfillS,.
86 F. 192, at p. 198, held a bookkeeper o? a mlnjn~ aompaay
not to be a *laborer* within the title o? the statute, the
oaptlon reading *An aot to provide for laborer's llens.~
t%Xile~StEtei h8h OiWiSS OOiltnt kJeW?eXWey,
Con6ollCatsd coal Co. v. Keyetona Chemloal co,, 54% X.,xq,
309, 55 A. 157; arm Yoxk Brown vrFeno8 Co?; ,5LHun, 161,
5 l?. Y. 6. 95; Georgia, fanmr Y. Chlsholm, 77 Qa. 506.
The great weltit of authority seema to be oon-
cltd;ivatbt a~bookkeeper i6 Bat to be ~O~id~~d a6 BOQ-
lng n-ithin the ole6sl?lcatlon of's *laborerwr fn additlan
to the l'ems oaae a? hEilligan ye Ry. CO., rupra uhlle the
follonirg do not ln~olvs a bookkseper, Beet R&q Co. v. ,I.-
Witheras,75 Tbsii94, lb?8. t. 976$ 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-,
preservedoffice 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
solely out of respeot to the preosdsnt of Abrahams Y.
Andorson, supra, as note this language:
*lf we were authorized to lxsrolss a free
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. Andersonwas 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
nettoa or aarrying tbilo~, It ia airsiatit
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 tinareproauoes what he
reaelves. He exeroises no Indspenaenoe of
thought, no Initiative, no aIsorotIon. The
test of his efiiofenoy Is his absolute aooep-
tence.of wbat Is given him and Its return un-
changed. If hie einployer indulges In the
pastime of nmrdefing the TLIng*s FnglIBh, he
mst beaome a *partIaeps Orimini8,'and join
In. the assaaelnation; 90 pronounaedly are the
physiaal raoultiss Involved In stenography that
them OOBMIS a time when the hand refuses to
work, although the aental faoulties nay be
Honorable John D. Reed, Comml.asIoner, Page 8
entirely clear. It Is preeminently manual
labor, work of the hand."
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
gaigrant Agetmy~taw, ana espeolally that languagr no have
undersoored above, we are impelled to eseroiae"a free 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,
amlid dtJ ly by experlenoe. When, perohanoe, one Is*ua-
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
youth 'IFISapprentloed to e master OrartesanIn order to
learn a trade. The method of apprentloeshlp maintains to
this day, partioularly In those orartt3 aad t=aOs oarriea
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
formal sohoolliig. The procedure Involved Is much the sanm
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
temittOlOgy a MOOgniSed part of an a8eOOiatiYe allianoe rith
those learnings and skills whIoh we term basloally "praotl-
oiU*, is highly 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
oomprlng the work of well reOOgnIzed laboring 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, and, they
specially 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
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 rememberedthat 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 of 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; La
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, the mastery of whIoh req4res
to a major degree knowledge of these ei5sentIally 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