         OFFICE     OF THE ATTORNEY       GENERAL    OF TEXAS
                              AUSTIN
C~~“ERSELLERS
A,TTQRNEI
       GIZNLRAL




  Rmorable John 0. Reed,        CoPrisslorrsr
  &reau of I&or st8tlstlc8
  Justin, 4ex80

  Dear Sir:




              You request     our
                  . . . .

                                                  8 offlcs   a3 to
                                                  100 of this
                                                 X’to FrOpCr’ly
                                                 oaae 6nawer
                                         h reference     to said


                                     uorkiag    only a part of




                            loyee is eatltbd   to t&s    tlme
                            rk to rote must this tins    off be

       employer?
             ‘If the a0sver to question tuo 1s la the ar-
       fimnative uould the o~lgloges be privileged   to
       leave his job at any time ha desired for this
       9Ur9Osa or vould the eaployer be Withitl his
       rq@ts    in prasarlbloe, the the allowed during
       r,&e day Sor the 9W9OW 0s VOtiW?
              a. . . . a
 .gsnore’ole John D. Reed,           98613 2


               Statutory      provi8loos        pertinent      to your questions
 se:

        Peaal Code,        1525,    Article     ~203:

               “UhbdveC refuses  to an eaploye entitled    Co
        vote the privilege    of at tending the polls,  or
        subjects   such employs to a penalty or deduction
        of vages because Or thr exercise of such privy-
        legs, shall be fined not to exceed five huudred
        dollars. ”

        Ycrnon’a    Muotated         Civil     Statutes,    1325,    firticle
        2930 :
               n        In all electloaa,  geozral,   spe-
         clel,  &*p~imerj,    the polls shall be o9en fro%
         aevea olcloelc a. 13. to ssven oqclock p. tr. in
         all counclcs having a pOpUhtfOa      of 1~0,000 or
         core occordlog    to the last Foderel census ati
         ia all ocher counties    the 90113 shall be apened
         nt 8 a. m. and a&11 remain open until 7 p. m.
        .:he olcctloa   shall bu held for one day only,”

        v. 4.. 0. 3.,      1325,     Prtlale     4591:
               n     every day on which en election       ts
        bald   t&&&out    the State, are declared legal
        holidays,  on which all the public ofPlces      of
        &he jtnte may be closed end shall be cmsldared
        end treated as Smiay or the Chzlstlaa Sabbath
        for .a11 purposes regarding   the presenting    for
        the payment or acceptance    and of protesting     for
        aad giving notice or ths dishonor of bills        of
        exchange, bank checks end pr~mls~~ry     notes
        placed by the lav u9on the footlag     Of bills    Of
        exchange. ”
               Our statute         doss not 9rahiblt        labor    on legal   holl-
days.

               “The vord      ‘holiday’        as inteqreted        by the
        coiirts does not IrppOrt the same statMaS                     ;3Un-
        &y and a dealaratloa    it+ e statute that                  a Cer-
        tain day shall  be a legal holiday gives                    that day
;-lon;rable   John D. Reed,       page 3



       the attributes   of Sunday only to the extent OS
       the s~~esr     UO~~S of the statute.” Sundey and
       Holidays,   39 Tex. Jur. 657, par. 2, o.--

              Penal Code, 1925, Article 209, ia a part OS the
xleotiolr     law OS 1905 (Act8 OS 29th Lee.,  1st Colled aess.,
Ch. 11).      Section 175 of that Act (page 562) is es follws:

             “Pny perscn or corporation    uho refuses to
       au enploys entitled   to rots the p?elvilega of
       attendirrg tha polla,  or subjeots    such employs
       to a penalty or deduction     of uages because OS
       the exercise   OS such prlvllage   la gullt,y OS e
       ubdameaaor      .”

z,‘ke codlflcetion of 1911, Penal Code, Prtlcls    244, lncor~o-
in&Ed this provision   h Its precise  phraseoloeg.     The 1325
cZdifiiW.3 brOL&ht it f0rU13.W itI its pPCSeRt iOr&           VlthW,,
01 course,  chaxglag Its Intent or purpose.
           .rlthough other states have enacted lc$,slation
%lzxd to require    ezaployera to cllov tholr employees t&e to
vote ulthout deduction     of pay, our laveutlgotioo      ims dis-
~103~3 oali two case8 (both OS them Xlllnols         cases) iavolv-
:i;ii the questfons     under dlscusslon.

              P case   of first     impression 13 that   of rconle   us.
                                       (1323) 306 Ill.   486mL          L;.
-~&~*L~           g-&*Q’;olpt               thera he=:
             ”         The provlsiolw    ot sald statute
      that g&A I& the rl&t           to absent hlmselS for
      tuo hours on eleotioa       day Md to cast hia vote,
      and vhlch required his employer, plaintiff           in
      error,   to @ve him this opportunity         of attaad-
      lng the eleoticn      for such purpose,     are wholesome
      ~ovlslons      OS the statute,    end ore valid and
      binding1 but the provlslca        of the atatuto    that
      requires    the employer to pay him at the rate of
      85 cents per hour for the tlms CmFloycd la at-
      teldlng   the election    and costing his vote -- or#
      speakia~, more ancurataly,       the ~rovislon   rcquir-
      ing the employer to pay him S~Ortvo.hours’           time
      at such rata for exeroislag        such FrlVlleEe --
      1s lavalid,     because lt 1s an u~cooo&A~
Eoaorable    John C. Heed, page 4



      abrldgmsnt ot the right to make contracts.          The
      1eSlslature   had junt as much right to require
      employer* to pay their employees for the tl.ms
      they naces8arlly     would be corngelled to usa in
      1OOkUg after     any sick member or members of their
      Samlly as it had to pasr ths provlslon        ia ques-
      tion.    Other strlklag    examples of void logis&-
      tloa of tha character      la question might ba
      stated,   aad la uhlch it would appear that the
     employee would be engaged la a matter of pur-
     suit equally as coolmendable and as essential         to
     his oun persoaal welfarei       but further c-at
     Is unnecessary,     as It is entirely    clear thot
     the provision     in queatloa   1s an unreasonable
     a~ridgrasnt of the right to contract,        and there-
     fore void.

             %    is claimed by the people that the pro-
    vision     In queatlon is eustalaablc            uader vhac 1s
     kaoun as the police          pouer of the state,         conzmon-
      ly Ceflnad OS that inherent           plenary povcjr In the
      state   to prohibit     all things hurtful          to the
     comfort,     welfare,    etid safety of society.           ‘L’heJ
     relatloa     of employer end employee is purely
     voluntary,     rc3tlng    upon the contract          OS the
     parties.      ShIery man ha8 a natural          right to hire
     his services      to anyone he pleases,           ap refrain
     frgn such hlrlng,        and it 1s equally the right
     of everyone to determine whose servloea he will
     hire.     The state has no right to interfere                in .Z
     private employment and stipulate             the terms of
     the services      to be rendered.        Tledeman, Pol.
     Power, 0 1 176, 178. It la tlwa that the stats
     does have the rl&ht, under Its police                 povers,
     to pass laws that tend to promote ths health,
     safety,    or norala of euch employees as Purney,
    because of the fact that such laws would tead to
    promote tha health,          comfort,    safety,     and vel-
    fare of soeletg.         The act in question,           as con-
    tended by plalutLfS          la error, does not in any
    vay, so far as va are able to see, tend to pro-
    mote ths health,        eaf’ety,    or BOrals of such em-
    ployees.       The provialons       In question      are not
    adapted to the object           for vhlch the law vaa en-
    acted,    (md caaaot be said to secure public                Con-
    fort,    velfare,    ssfety,     or public morals.          There
    J.S no conteation,       and there can be none made
           uith any reasoaablo       shwl~,    that the provision
            ill UWStiOll teRd9 CO prOSlOt the Safety QP health
            OS SJly efaployee.    It ,has alv~ys been the policy
           Of Our lava to condeen the Idea of sop voter be-
           in@( paid for CXarOiSiIlg the privilege       of M elec-
           tor or voter.       The rfght to vote Is aQigly one
           of the piVil8g88       &Wanteed     to every citlzea
           of this country vho poasessas the regulsite quel-
           lficatlov.      It 1s not only a right,     but should
           b6 re~axl8d as a duty OS the citlzon,         where he
           is reasonably able r&yaUx~lly to perform that
           duty.    It 15 UOt the COnsCltUtiOOal rl@t         of any
           CitLZCn CO b8 pZiLd iOr th8 c%TC~lsu OS his ri&t
           to vote,   and the h31diug of tke p:ovl3lon 3f t!x
           statute vold dots not vlolato        the rF@t   of my
           citiesa, iacl~?in.~ those v;ho are ctqlzi'jcdt3
           l&or.     '221s ~rovl3ion    of the stutwl-,eI.3not 3u3-
           talnablc    under ths police     peer    of the state,    r.nd
           it does violate     tke cocstftutlonol povlslcus
           nforescid,    e%I thcref’ore mmt be kclored         wlc!.
           Eesides,    ‘no cxsrclse    Of t!iU pokce     p3uer cix
           disrc;;crd   the ccartltutlozxl     .guarnncies in re-
           3pxt     to the toking of prlvoto      r,roptxt;j, due pa-
           cess, cud equal yrotectloa’        of t!:e lcw3, GUI it
           should mt ‘ovcrrlde        the lamrids of zr?tu;-al juy-
           tiC8.' . . ."

           our alpreee court,      0+l10a   hg C:llef JustPze Cure-
ECU, ia Trsvclers 1~3, co. 0~. xmO3ul1,          (1934) pi 3. si.
(26) lOOfi, ot Cage-11,       cited ~ii;h espzoval the obovc case
lu Lcldlnng tCe -ZmerEency fiioratorlum Law unconstltutiozal be-
ceude it inpalred tho obligation        of contracts.
                 The other case is that of NC!1 In8 vs. TX-izCk,
($27)        326 111. 240, 157 :J. S. 235, &*ywttloa         OP the
Ilii~ol8       primary lau Invalid vhlch g8V8 e?~pl~g~ea the right
cc absent theW8lVe8            from eISplOpWAt     COr tV0 hours on pri-
nosy election    day to vote, without deduction from their
Sf&'I'18s.   The  court, cltlag the first uoutloncd czise, said:
               ”       The proviUloa    of SeCtiOn 7, giv-
           mg em~liy&98 the right    to absent th8mse1oee
           fra their emplopeot    for tvo hours on elcctlOn
Honorable John D. Reed,     page 6



     day for the pLIrpOa8 Of' voting without any de-
     duction froa their salaries      or wages on aa-
     count.of   such absence 1s also unconatltutlon-
     al, being a vlolatloa   of section    2, article    2
     of the COClStitUt.iO&   People v. Chicago, Mll-
     VBUkC8 & St. Paul Rallvay Co., 306 Ill.        486,
     138 X. E. 155, 28 A. L. R. 610.       Theee sections
     are not, however, of such a character a8 to ln-
     terser8 vlth the operation     of the rest OS th8
     act, li they arc stricken    from It, and there-
     fore do not &Sect the constltutionallty         of the
     8lltire tiCt.D

            The right OS franchise   la our democracy 1s of sup-
reme Importance and its    exercl38  should be zealously       guard-
ed.   "Statutes regulating   the rights    of citlecns     to vote
cre of great public Intereat,     and, therefore,      are given a
broad interpretation    to secure for the citizen       his right to
 vote and to insure the election     of those officers       vho are
the people's   choice." Sutherland,     Statutory    Construction,
Third Edition,   Volume 3, page 445, pm. 7215, n. 1.

           We therefore   an8Yer your first qUeStiOn:   AKi em-
ployee is entitled    to absent himself from his job for a
reasonab18 time for the purpose of voting.      See our ansver
to queatlon Ho. 3.

           Second qu8stloar    We believe that  that part of
the statute prohibiting    the deduction OS vagca when the
employee absent8 himself from his work in order to vota 1s
Invalid.
           Third qusatlon:    Bearing In mind that our polls
ere open until 7:00 P.i%, that a statute should be inter-
preted by its equity,   end OS the interdependence      of em-
ployer and employee la our Industrial     cIvi1itatioa,    it 18
our opinion that en employer is within the statute        and his
rights la prescribing   th8 tIm8 &loved    during the day for
the purpo88 of voting.     The time ti1oved should be euf'fl-
cleat and fair so as to fully end comp1ete1Y permit th8
E-mployae to exercise hi8 suffrage.     Such regulations     would
xonorable Sahu D. Reed, page 7



vary accordLog   to 10~41 Co;lbitlOti8y but it should gfv4 tb4
employes @a      and cmvaaieot tZma ulthla which to vote.
          Trustiagt&mtthhe    abwo   41~~404 you~inqu~~,           ~4
8re
                                            vary   truly   yours




                                      AzL
                                      BY
                                                      Ek~rld Wuntch
                                                           ~~55istant
