    Hon. Maureen Moore                Opinion No. O-7368
    Commissioner                      Rer    Authority   to grant temporary    ex-
    Bureau of Labor                   emption for female employees       from.
    Statistics                        Sections   1, 2, 3 4,        and 13 of .
    Austin,    Texas                  Senate Bill No. 129, 58 th Legislature,
                                      when the last    temporary   exemption   ex-
    Dear Miss Moore:                  pired February     15, 1946.
                Your request  for our opinion    on the           above oaptioned
    matter  has been received    by this department.              We quote from
    your letter   as followsr
/
                “We would thank you to give us an opinion     on
         the following    fact situation   submitted to us by
         the Southern    Pine Lumber Company of Diboll,   Texas,
         wherein   they write  us as follows:
                     “‘On February     15, 1945, we made application         to
             your department       for exemption   for female employees
             from Sections      1, 2, 3, 4, 5, and 13 of Senate Bill
             No. 129 as enacted       by the Forty-Eighth    Legislature.
             After an investigation        was made we were granted        the
             exemption,     File No. 301, and were subsequently           granted
             several    30-day temporary     exemptions,  the last     expiring
             February    15, 1946.
               I’(We did not ask for renewal            of the last   temporary
         exemption    granted    us for the reason        that at that time
         our manufacturing       plant was only working nine hours
         per day and did not exceed fifty-four               hours per week.
         When we first      made application        for exemption we were
         employing    seventy    females      in our manufacturing      plant,
         and we reduced this number as rapidly               and as consist-
         ently   as male labor was available.             We are now operat-
         ing our manufacturing          plant   ten hours per day and fifty
         hours per week.        We have only one female employee now in
         the manufacturing       plant,     and it is not possible       to em-
         ploy her only nine hours per day when the regular                  run is
         ten hours.      This employee is giving          excellent   satisfac-
         tion;   has been with us for a long time;              and we do not
         feel justified       in discontinuing       her services    as we have
         never considered       her a temporary        employee.“1
                  It appears  from the above facts that   only            one female em-
    ployee     is now employed and she in the manufacturing               plant  of the
    lumber     company.
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Hon.   Maureen    Moore,    page 2      (O-7368)


               Senate Bill No. 129, passed by the 48th                  Legislature,
concerns     the hours of labor of female employees,                    The sections
pertinent     to this inquiry  are as followsc
               “Section   1. No female shall be employed in any
       factory,     mine, mill        workshop,      mechanical     or mercantile
       establishment,       hotel,     restaurant,      rooming house,       theater,
       moving picture       show, barber        shop, beauty       shop, road side
       drink and/or food vending             establishment,       telegraph,     t ele-
       phone or other office,            express     or transportation       company,
       or any State      institution,        or any other establishment,             in-
       stitution      or enterprise       where females       are employed,      for
       more than nine (9) hours in any one calendar                     day, nor
       more than, fifty-four          (54) hours in any one calendar             week.
              Qec, 2.      b . .
              We@.
              Wet. 2:      : ‘. :
                 “Sec. 5. The four preceding            Sections    shall    not apply
       to stenographers           and pharmacists,     nor to mercantile        estab-
       lishments,        nor telephone      and telegraph       companies    in rural
       districts,        and in cities      or towns or villages         of less than
       three thousand          (.3,000) inhabitants      as shown by the last
       preceding       Federal     Census,   nor to superintendents,          matrons
       and nurses        and attendants      employed by, in, and about such
       orphans’ homes as are charitable               institutions      not run for
       profit,       and not operated       by the State.        In   cases of extra-
       ordinary       emergencies,      such as great public        calamities,     or
       where it becomes necessary             for the protection         of human life
       or property,         longer hours may be worked; but for such time
       :;;,;;,ss      than double time shall         be paid such femalewith          her
                   0
               “Sec. 6. In addition          to the foregoing       exemptions,
       in time of war and/or when the President                  of the United
       States     proclaims      a state   of national   emergency to exist,
       female workers         employed in industries        coming within     the
       jurisdiction         of the Fair Labor Standards          Act of 1938
       and amendments thereto,           the Act of June 30th, 1936, C. 881,
       49 Statute       2036, U.S. Code, Supplement          II, Title    41, Para-
       graph 35-45, as amended by Act of May 13, 1942, Public No.
       552, 77th Congress,          2nd Session,     commonly known as the
       Walsh-Heale          Act, or the Act of March 3, 1931           C. 411, 46
       Statute      149 t ,.as amended August 30, 1935 C. 42.5, 49 Stat-
       ute 1011, U.S. Code Title            40 Paragraph       3 768 and Supple-
       ment V, Title         40, Paragraph     $76A-276A-6,      commonly known as
       the Bacon-Davis          Act, are exempted from the provisions            of
       Sections       1, 2, 3, 4, 5, and 13 of this          Act, and female
       workers      in such industries       may be employed not exceeding
       ten (10) hours per day provided              such hours of employment
.   -




        Hon. Maureen     Moore,    page   3    (O-7368)


              in such industries        are not injurious        to the health        or
              morals of female employees,          or working such hours does
              not add to the hazards         of their     occupations        and such
              hours of employment are in the public                interest.       Pro-
              vided,    however,   that    in time of war and/or when the
              President     of the United States         proclaims      a state    of
              national     emergency    to exist,     all female office         employees
              of such employers       coming within       the purview of Section          6
              hereof    are exempt from the provisions             of this     Act.
                      Yiec. 7.
                      “Sec. 8.
                      “Sec. 9.     Jn time    of wa                     loner   of Labor

                 nt of female           v es in anv de ignat d industrv           for
              En (10) hours D%at             will not iniur;      tie h ea?th or
              Urals    and/or   add to the hazards         o t eir o cuDation
              and th t such hours of labor are in the Dubiic in terist,
              file  h:s findings      as reaui      d herein.    and make an o d
              g antine    an xa*             and?he     employer    affected  sh&i
              bz’exempt    fez thirty     130) days from the provisions          of
              this   Act, during which time if further            exemption   is de-
              sired by employers       affected,     notice   and hearing    as pro-
              vided herein     shall   be had as though no temporary          exem -
              tion had previously       been in effect.”         (emphasis   added P
                     Sec. 9 of Senate Bill No. 129 (Art 0 5172a, Vernon’s
        Annotated    Civil    Statutes,      1925) gives to the Commissioner               of
        Labor Statistics        the power to grant exemptions             in time of war
        to any designated         industry    provided     certain   findings,       set
        forth   in the same section,          are made.       In the case before us the
        female employee is working in the manufacturing                    plant     of a lum-
        ber mill,    and since Sec. 1 of the above Article                  includes     mills,
        the industry      is clearly       a designated     industry    under the provi-
        sions of Sec. 9. It therefore               appears     that under the particular
        set of facts      submitted      in your letter       you have authority         to
        grant the requested          exemption    under Sec. 9, provided           we conclude
        that we are now in a time of war as required                   by the prefatory
        phrase    of this    section.
                     This department        has held in several         opinions    that a war
        is not concluded         in the legal     sense until     some formal action        by a
        competent    authority      terminating      the war and re-establishing           peace
        is had.     The 77th Congress         of the United States,         by joint    resolu-
        tion,   formally     declared     a state    of war between the United States
        and certain      foreign    governments.        To date,   neither     Congress nor
        the President       has formally      declared    a termination       of these wars.
Hon.   Maureen    Moore,   page   4   (O-7368)


            It is the privince    of the political     department,     and
not the judicial     department   to determine     when war is at an end.
The Proteotor     12 Wall, (U.4.)    700 20 L.Ed. 463. Perkins         v.
Rogers,  35 Ini.    124, 9 Amm.Rep. 639: Kneeland-Gibilow       Co. v. Mich-
igan Central    R.R. Co., 207 Mich. 546, 174 N.W. 605.          A number of
cases hold that World War I terminated         by the joint   resolution
of Congress   of July 2, 1921.      See Clemens v. Perry,     51 S.W. (2d)
267 and Simmerman v. Hicks,      7 F (2d) 443.
           It is our opinion,        therefore,     that the present         war has
not yet been legally     concluded      and cannot be considered            as con-
cluded in the legal     sense even though hostilities             are at an end.
It is our further    opinion    that if upon private          investigation       you
find that the employment of the female employee in question                     for
ten (10) hours per day will not impair her health                 or morals and/or
add to the hazards    of her occupation;          and further     that such hours
of labor are in the public        interest,     then you may grant such an
exemption  in accordance     with the other provisions            of Senate Bill
No. 129.
               We trust  that what we have        said    is      a sufficient   and
satisfactory      answer to your inquiry.
                                        Yours    very    truly,
                                        ATTORNEYGENERALOF TEXAS
                                        By /s/ Clarence   Y. Mills
CYMrLJ:wb                               Clarence Y. Mills,   Assistant
APPHOVED, OCT 25, 1946
/s/ Harris Toler
FIRST ASSISTANT ATTORNEYGENERAL
@PROVED: OPINION COMMITTEE
BY:      BWB, CHAIRMAN
