        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
