                                                            6,;


          TlE?IE   .c%-JITORNEY     GENERAL
                       OP   TEXAS




 Honorable M. B. Morgan             Opinion No. WW-372
 Commissioner
 Bureau of Labor Statistics         Re : Maximum number of hours
 Austin, Texas                           a female employee may
                                         work,under the provi-
                                         sions of Article 5172a
                                         in any one period of
                                         twenty-fourconsecutive
 Dear Mr. Morgan:                        hours.
  :
           You have requested our opinion on the constructionof
 Sections 1 and 13 of Article 5172a, Vernon's Civil Statutes
 and ask to be advised if the term "calendar day" as used In
 Section 1 and the term '#dayof twenty-fourhoursA
 Section 13, both mean a period.of time beginning ai ",;:%e&E
 night to 12:00 P.M.
           Section 1 Article 972a, Vernonls Civil Statutes,
"reads in part as fo&Us:
          "No female shall be employed in a factory e 0 0
     for more'than nine (9) hours in any one calendar dav
     nor more than fifty-four (5%) hours in any one cal-
     endarweek." (Emphasisours).
           Section 13 Article 5172a,-,.Vernon?s
                                             Civil Statutes,
 reads in part as follows:
           n. . 0 female to work in any place mentioned in
      Sections 1, 2 and 3 of this Act more thano;heti;zber
      of hours provided therein in any one dav        Y-
                 in any one calendar week, 0 o ett (Empha-

           Are the terms synonymous,and does Section 13 prohibit
 a female employee working in designated places for more than the
 specifiedhours in any one period of twenty-fourconsecutive
 hours?
           This question seems to have been settled by the Supreme
 Court of Texas in Lorulv. City of Wichita Falls, 176 S.W.2d 936,
 142 Tex, 202, when the Court had before it a similar question
 construing the term "calendar day" and the undefined term "day",
Honorable M. B. Morgan, page 2   (w-372)


in Article 1583, Vernon's Annotated Penal Code, relating to
the permissiblehours of employment for firemen in municipali-
ties of various categories,
          There the term "calendarday" was defined as being
"the time elap&g from one midnight to the successiveone".
Such constructionwas said to be a rule ordinarilyadopted and
followed merely as a matter of convenience. The undefined term
"dayc'was defined as "the period of time during which the earth
makes one revolution on its axis, the interval of time which
elapses between two consecutivereturns of the same terrestrial
meridian to the sun; the average length of this interval, twenty-
four hours".
          It is our opinion and you are so advised, that the
two .termsare not necessariIy synonymousand do not necessarily
refer to the same period of time.
          .In.orderto determine what constructionshould be
placed on the term "day", as used by the Legislaturein the stat-
ute here under construction,we must look to the purpose intended
to be accomplishedby the Act and the effect that it will have
when so applied to the subject matter. Lona v. Citv of Wichita
Falls. suura. Its obvious purpose is the protectionof health
and the prevention of hours of employment that may add to the
hazards of employment. In our opinion, such purpose would not
be served by a constructionwhich allowed female employees to
work maximum hours in two calandar days, but within one period
of twenty-fourconsecutivehours. %y construing "day of twenty-
four hoursl'to mean a calendar day from midnight to the success-
ive midnight, a female employee could be required to begin work
at 3:00 P.M. on one afternoon and continue working until 9:OO
A.M. the following morning, without violation. Such construction
would defeat the purpose of the Act, in our opinion.
          That the legislativeuse of the two different terms
indicates a legislativeintent to distinguishbetween a midnight
to midnight calendar day and a period of twenty-fourconsecutive
hOtIm, is made clear by Lona v. Citv of Wichita Falls, Suora.
          OOur position that the Legislaturedid not in-
     tend to restrict the rest period to be allowed fire-
     men in cities of less than 75,000 population to a : :
     'calendarday' is evidenced,we think by the lan-
     guage of the statute as a whole. Seckon 1 of the
     Act, which regulates cities of more than 25,000 and
     less than 75,000 inhabitants,provides that the fire-
     men shall not be required to be on duty more than
     'six (6) days in any one week,' and nothing is said
 Honorable M. B. Morgan, page 3    W-372)


     about calendar days or calendarweeks. On the
     contrary, the Legislature,when it attempted to
     deal with cities of over 75,000 population in
     Section 6 of the Act, expressly stipulatedthat
     firemen should not be required to work more than
     twelve hours per 'calendarday or more than
     seventy-twohours in any one calendar week.'
     This, to our minds evidenceslegislative intent
     that the calendar Aay and the calendar week
     should be applied in regulating the work periods
     of firemen in cities with a population in excess
     of 75,000, but that such limitation should not
     be required in cities with a less populat.ion,11
     (Emphasisby the Court).
          Also see Citv of Amarillo,v,York; et al., Supreme
Court, 142 Tex. 210, 176 S.W,2d 935 reversing &&Y of Amarillo
v. York, 167 S.W.2d 787, where the Court of Civil Appeals held
the term "daytlto mean the usual calendar day from midnight to
midnight.
           The language of Section 13 specificallyindicates~
 which period it means by placement of the words "of twenty-four
 hours" after the word "day".. In our opinion, Section 13 clearly
 prohibits the working of female employees in excess of the maxi-
 mum number of hours in any one period of twenty-fourconsecutive
-hours, and you are so advised.
                                  SUMMARY
          As used in Article 5172a, the terms "calendar
     day" in Section 1, and "day of twenty-fourhours" in
     Section 13 are not synonymousin constructionalcon-
     text,*but the limitations on female employees working
     in excess of designatedhours within a "day of twenty-
     four hours" refers to a period of twenty-fourconsecu-
     tive hours, and not a period only from one midnight
     to the successiveone.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas
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                                     Tom I. McFarling :   a-
TIM:jl:wb                            Assistant
Honorable M. B. Morgan, page 4 (ww-372)


APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn
Cecil C. Rotsch
J. Mark McLaughlin
J. Milton Richardson
John H. Minton, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert
