  OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                        AUSTIN



                                          Hay 15, 1939




Eonoreblr Joe Kunsahlk          ’
Gomni8ribn.r OS Labor
Burrat~ 0r Labor StotlrtioB
Austin, Toxar

Dear   Sfrr




                                          ring a preseure
                                         am lnoh, rhiah     ir
                                         in the handllag
                                        ml from hfs own




                      of raid    law?

                W!I a steam boiler,     baring   a prmmre    la


          lk produord on hill own farm *hero the ouaar in
       addition thereto almo haadlrr and prooeosea milk
       ior other pamom for a eonslderation, axempt
       rreln the pro~isiona 8r maid lawv
           Pertlrient reodioni of the Texas Bollu  &MI otlon
fRw, dstlolo   58810 of Vunox&*s Annotatrd Oirll &atu %08,
are as iollowrrt
    -’
.        .




             Hon. Joe Kunrohlk,May 15, 1939, iape t!


                       Seotlon 1 deilnes a "boiler" tinmeanIng *enr
             resee1 used for generating steem for power or heating
             PUrpOW6,"
                       Beation Z provldee:
                        *No ateamboller,  onlore otherwise mpeol-
                 fieall~   oxemptiedin thin Aot, ahall be o rate&
                 within the Btatr of Texas unlera ruoh boIi or
                 has been reglsterml with the Bureau or Labor
                 Statistics and there ehall here bean lasuod a
                 Certlfloatd of Operation for ruoh bollor, aa
                 henlnaftor provided for, . . .w
                      .Seotlon3 ~peolflea the +emptlon:
                      *The following bollerB are oxmnpt irom thr
                 prorlalonr or thlr Aot:
                      (8!) Bollers on whloh the pressure doa8
                 not exosed fifteen (15) pounds per square inah;
                       (4) Bollors tutedexclusl~al~ for aerioul-
                  tural purpom~s.~
                       The quentioas you asked require a oonrtruotlon of
             the dot to determine the meaning of the tern WagrIoultureJ
             purpO8GI."
                        To use e boiler for WagzIculturel purpordsW ia
             to tue.lt for purposes OS wagrioulture*. The term "a l-
             ou.ltureWI8 a very broad and oomprehenslro one, oovu fEg
             all those thin@ ordinarily done by the raraaerand hi8
             rrerrrantalnoident to oafrying on his branoh of induet-,
             Including, of oouree, the planting and harvesting ot.oropa,
             the ralslng of f?ult, the raising of aettle and hogs, and
             even lnolutllng,to a variable extent, the preparation of.
             those produota of the farm ior men's uee. 3 Corpus Juri.6.
             Sec. Page.366. It requires no oltetlon of authority to
             substantiate the proposition that mllk ie en agrioultural~
                                             v. Oyetsr, 16 D. C. 285,
                                     The problem OS oonstruotlon pre-
                                      80 simple that It mey turn entirely
             upon the nature of the produot whloh litiboiler 16 uBf+d
             to prooeee. On the oontrarr',the term *agrIoultural pur-
             pose@@ m@    be Interpreted as harlr~ that meaning vhloh
             will comport with the~.lntentlonof the Legislature. D
             other worde, from tifegeneral oontext of the entire Aot
             we muet determine whether lt *as the purpose an& Intentfon Of
Hon. Joe Kunsohlk, May 15, 1939; Page 3


the Legislature In using suoh term to use it in its
broadest slgnlrlcanoe, or whether it was intended  that
it should be used In a more narrow and llmlted sense.
Gordon v. Buster, g59 S. Y* P20.
              An examlnatloh .o?the Aot olearly reveals that
it was the urpose and intention o? the Legislature is?en-
acting the ii   oiler Inapeotion Law to proteot the publla from
danger8 arl6lng from the use and operation OS deteotlve
boilers. In providing for oertaln exemgtlona ?rom the
operation OS the Aot, lt,ir obolow that ths Legislature
had in lDindthat the uses to whloh patitloularboiler8     were
exoluslrely put were such as to render those boilers,
when put to those uses solely, less hazardous to the publlo,
and theretora     atfording a reasonable ground ?or a olassl-
?lOatlon exempting them ?rcsuthe operation o? the Aot, In
other words, lt is apparent that the Ldglelature deemed
a boiler used ~ercluslvel * ror wagrloulturel purpo8esR
loss hazardous to the pubflo, by reason o? its looatlon
ln rural areaa; and the nature and lntermlttent oharaoter
or the uae to whloh it is put. To deny that the Legislature
had this dletlnotlon In kind In making the lxemptlon
would be to,raise a serious question as to’the oomtl-
tutlonallty o? the l    iemptlon and it 18.a rundamental
oanon or statutory oonstruction that a rtatute will always
be given a oonstruotlon, when it is at all susceptible
thereo?, whloh squares with the~Con8tltutlon rather than a
oonst?uotloo which wlll'bring the Aot into dlect oonfllot
with come oonstltutlonal provlelon.
           The question of statutory aonstruation thus
presented is not ?ree from dl?Sloulty. We have been
abl* to ?lnd only two oases In this State whloh may be
of any dlreot help in determlnlng this matter. Both of
these aatsesare by the Supreme Court o? the State, and
arose under the provisions of the Workmen8 Con@enaatlon
Aot . In oath ease the issue was presented whether or not
the olaimant was a rarm laborer -- ln other word8, whether
the claimant was engaged in an agrloultural ppursuit,80
that he fell without the provlslonrr o? the Workmen8 Com-
pensation Aot.
          -b the ease of -Guerrerovu. Vnlted States Fldel-
lty k Gusaanty Co., 98 S. W, (26) 796, the employer was
engaged in the business o? a ilorlat and also ln oonneotlon
therewith, ln the business or buying end eelllng shrubbery.
The shrubbery bought was plaoed In the ground temporarily
for the purpbae'oi preserking It, and the claimant, an ein-
ployee, periormed thst duty,.among others. The oourt said.L
         I# :\
             ‘,
     /         .?,
                ?‘r




                      Eon. Joe Kunschik,       Hay 15, 1939, Page 4

                                   I     as aonoern.8his buslnees a6 a florist,'
                           ln whI~h*D&rlok was engaged in the growlnq.q?
                           plant8 and flowers for Sale, he was undoubtedly
                           engaged in an agrloultural pursuit, wlthln the
                           purview o? prior deolslon.s,and those worklnp ?or,hlm
                           ln that   oapsalty were iarm laborers.
                                    %I   the   business 0s buying and mellinE nursery
                           #tOOk,    none of whloh was ,ralsed    or grown by him,
                           but merely put into the ground temporarily for
                           presenatlon, Derriok was no$.engaeed ln agrloul-
                           ture . In th6t iiiipaoity
                                                   he was not t.illlz@the
                           8oll or enpaeed ln the growing of ths Shrubtery.
                           In buying and selli&? the nursery #took we think
                           he was emeaeed as a jo?.ter~ordealer ln articles
                           or thin@, just the same as l.?he h&d been selling
                           ?e~dstu??s or plants and bulbs in a storeroom.
                           In this respeot he was follows   6 dlfterent business
                           9rm the business of keeping a greenhouse and grow-
                           ln~ flowers and plants."
                                In the oa6e OS Maryland casualty Co. v. Dobbs
                      100 8. U. (Zd) 349, the court held that an employee of 1n
                      independent aontraotorr who wes engaged In the buslnessIo?
                      spraying trees ?or %he 0Rners 0s oltrus CUOhardS WSS
                      not a Ssnn laborer, within the m6aning of the HorbenS
                      Cmpensatlon Aot. The oourt cays:
                                "The bu&l0SS & spraying treos'and &ohords               ~'
                           is a well~established Independent business or
                           ooaupatlon. Defendant in error was not employed
                           by anyohe engaged in the planting or oultlvstlon
                           or growing 0s trees."
                                    And the oourt eontlnues by eaylug:
                                *In this os~e Dobbs had nothing to dowlth the
                           planting and growing of the oltru6 tre~?s,but was
                           engaged by an lndepsnZent oontrao+ar In t e inde-
                           pendent business ot sproylng the trezs. k. was too
                           far ramoved from the tillizg of the soil and the
                           cultivation of tree8 to be a term laborer.*
1_                             In rlew OS the dl?flcultle6 involved in SO doing,
 I
                    ayeexpressly refrain ?rom attempting by oonatructlon to
                   ptivlde a formula by rrhlohit may be detenolned ln all
    I'                           situations whloh may 8r%se whether a boiler is
  2,
:                            d exoluslvely for agrloultural purposes. We
   I'%                           oplnlon to the partlaular raot sitnations
  ~-...             presented by  your qtiestlons,leering other au3 dl??erent
 :;I:
    '$              raot sltuatlonawhldh    may arlee to be detenalned aooord-
 i
 ;'&~::..~
       L
.-~.:Miess,d*~~~
            ,;L>-&&.lng to the  peoullartaote    Involved in oeoh instance.
                   s3c~~:..hyl-*Aii"~ud*~
                                  ___
                                    ~-..
                                      ,..,.
                                        _ _ ~_.~ .~_
  Hon. Joe Kunsohik, Msy 35, 1939, psge 5.


            Reasoning Srom the aUthOrit      cited above, we
  are of the oplnlon that 50 long as he who produoes also
  proceases the milk on the rann. the pmoesslng    is but an
  lnoldent and oomponent part o? Wagrloulture.W    But I? the
  prooesslng be d1ssooiated from the produotlon of milk,
: wa ar8 Of the Opinion that suoh Pl’OOSSsi~   18 the puSSUit
  of a separate and independent business or oommarolal
  undertaking.

            Your first question 16 answers4 in the aftirma-
 tlve. The boiler is used sxaluslvaly.by the owner in
 the handling and proosasing of milk pkoduoed frcm his own
 Oo*S and on his own farm end outsid5, the olty limits.
 Its use is but an lnoldsnt of and an adjunot to the
 managament and operation of his term, to prepare pro-
 duots produced by hlmssl? on that farm for market. Se
 therefore belleve it fall8 within the exemption of a
 boiler %ssd eXOl~#iVely   for agrioultural pUrpO885.*
            We assume   tha
                          *ooopsratlie assOolatlonw to
 whloh your seooud question refers  to be organized and in-
 oorporated under the provisions of Artlole R514, Revised
 statutes, 19es. As a-oorporata body, it le, ,'; laai an
 entity separate and apart from it8 mamb6r8.
 it ha8 no part In the produotlon OS the milk, but la'
 ;ygad   only In the buslnass o?.handllng and prooeaslng
      In other word8, the,masaoolatlon* is engaged in a
 o&roial    enterprlsa, the proeesslng o? milk, dnd the
 boiler USed la therefore not used *exoluslvsly for agri-
 oultural purpof3ee.~

            Your third question 18 aleo anaered   in the nega-
  tive. One who prooessee milk produ.oedby hlmseli, and aleo
  engagae.ln the proaeeelng, for a oon8lddratlon. of mllk-
  produoea by other5, la not devoting the boiler used Wx-
  olu8ivelya tci wagrioultural pUrposea.* As to the prooe88-
  lng, for a oons1deratioa, o? the milk not produoad by him,
  the $arxmr is using the boiler for WaommrolalR purpose8.
                                   Your6 very truly
