The opinion
c
Q,F XAS
Honorable Frank Briscoe ‘Opinion No. WW-1077
District Attorney
Harris County Re: Whether an agent or employee of
Houston, Texas a corporation can be held liable
for violation of Article 286,
Vernon's Penal Code, commonly
referred to a8 the Sunday Closing
Dear sir: Law.
We have your letter of April 13, 1961, in which you request
the opinion of this Department on the above subject. The question you
have presented is stated BE follows:
"Can the agent or employee of a corporation be
liable for violation of Article 286, V.A.P.C.,
commonly referred to.as the Sunday Cloeing Law?"
Article 286, Vernon's Penal Code, as now codified, has its
origin in Acts 1871 and was amended in 1883 and again in 1887. We
find no amendments to the article since 1887. The act reads a8 follows:
"Any merchant, grocer, or dealer in wares or merchan-
dise, or trader in any business whatsoever, or the pro-
prietor of any place of public amusement, or the agent
or employe [aicl of any such person, who shall sell,
barter, or permit his place of business or place of
public amusement to be open for the purpose of traffic
or public amusement on Sunday, shall be fined not less
than twenty normore than fifty?dollars. The term
place of public amusement, shall be construed to mean
circuses, theaters, variety theaters and such other
amusements as are exhibited and for which an admission
fee is charged) and shall also include dances at dls-
orderly houses, low dives and places of like character,
with or without fees for admission."
The Sunday laws are constitutional. Clark v. State, 319 S.W.Pd
726 (Tex.Crlm. 1959). Accord, McGowan v. Maryland (U.S. Sup. Opinions
delivered May 29, 1961, not yet reported).
This Article as to Sales tiymerchants is constitutional. g
parte Sundstrom, 8 S.W. 207 (Tex.App. 1888) and Is not class legislation.
Hon. Frank Briscoe, Page 2 (WW-10i"i')
Searcy v. State, 50 S.W. 699 (Tex.Cr#. 1899). Also the act is not un-
constitutional as granting special privileges. Sayeg v. State, 25 S.W.2d
865 (Tex.Crim. 1930).
Prohibiting the house to be "open", as used in the statute, means
that the house should be closed against all traffic. Whitc,ombv. State,
17 S.W. 258 (Tex.App. 1891).
"Traffic" as used herein is defined clearly in the case of Levlns
v. State, 34 S.W. 969 (Tex.Crim. 1896). The court held, in a prosecution
for keeping opena liquor saloon for traffic on Sunday, that the lower
court corre,ctlycharged that, if the jury believed defendant kept his
saloon open for the purpose of "traffic" on Sunday he should be con-
victed, and that the term traffic as employed has its usual and commonly
accepted meaning and that no further definition of the word "traffic" was
necessary.
Your question would be resolved if the words "agent or employee
of any such person", as they appear in Article 286, V.P.C., should be
construed to include "agent or employee" of a corporation. The con-
tention made by others, as stated in your letter, is,that the agent or
employee of a corporation is not the agent or employee of a "person".
In the construction of a statute, the legislative Intent must
govern. Article 23, C.C.P., provides as follows:
"The provisions of this Code shall be liberally
construed, so as to attain the objects intended by
the legislature: The prevention, suppression and
punishment of crime."
Article 7, V.P.C., supplies the general rules of construction
as follows:
"This Code and every other law upon the subject of
crime which may be enacted shall be construed accord-
ing to the plain import of the language in which it is
dltten, without regard to the distinction usually made
between the construction of penal laws and laws upon
other subjects; and no person shall be punished for an
offense which is not made penal by the plain import of
the words of a 1aw.s
One of the rules establishes the following:
"It is presumed that the Legislature intended that
its enactments should conform to the requirements of
the Constitution, and that, with all their provisions,
they should have effect and be enforced. The legis-
Eon. Frank Briscoe, Page 3 (WW-1077)
lative intention is presumed to be according to
what is consonant with sound reason and 'good dls-
cretion'. Thus, it is not presumed that the Lsgis-
latun intended to do or require an absurd, foolish,
impossible, unfair, unjust, unreasonable or useless
thing." 39 Tex.Jur. 245, Statutes, Sec. 131.
The case of Gould v. State, 134 S.W. 695 (Tex.Crlm. 1911), was
one in which the "agent or employee" of a corporation was charged on
an information for violation of the Sunday law. The cause was reversed
and remanded because of failure of the State to prove, by proper means,
that the amusement company was the owner. The court, among other things,
stated that an information alleging that accused, as agent and employee
of the proprietor of a theater, permitted a theatrical performance to be
given on Sunday, to which a fee was charged for admission, charges an
offense. In Its conclusion the opinion says:
"The court did not err in overruling the motion to
quash the information and complaint, as It charged an
offense under the law, and the court did not err in
admitting the testimony of the witnesses Laws and Cul-
lum in testifying to what was taking place in the build-
ing on the occasion; but, on account of the error here-
inbefore pointed out, the cause will be reversed and re-
manded." (Emphasis added.)
It is submitted that the Court of Criminal Appeals has decided
the question of the amenability of an agent and employee of a corporation
to the operation of Article 286, V.P.C., by its plain use of the word
corporation.
Oliver v. State, 144 S.W. 604 (Tex.Crim. 1911), is a case in
point where the agent and employee of a corporation was charged on a
complaint and information for unlawfully opening a theater contrary to
the "Sunday Closing Law." Although Oliver was the agent and employee
of a:corporation, the court affirmed the conviction. The opinion dis-
cusses at length statutory construction and intent of the Legislature.
We will quote only a portion thereof. The court, after discussing the
rules of construction of a penal statute stated at page 611:
"Of course; all these rules, wherever used in the
interpretation of statutes, are used and applied solely
,for the purpose of determining what was the intention of
the Legislature in the use of the words and the language
as used by it In the enactments for, as was aptly said
by our Supreme Court, through Chief Justice Gaines, in
Edwards v. Morton, 92 Tex. 153, 46 S.W. 792, and re-
iterated by this court in Parehall v. State, 138 S.W.
759, and other cases: 'The intention of the Legislature
in enacting a law is the law itself.'"
Hon. Frank Briscoe, Page 4. (WW-1077)
In quoting from Sections 349, 350 of Sutherland on Statutory
Construction the court, in the Oliver case, said:
n'. . .It is said that, notwithstanding this rule,
the intention of the lawmaker must govern in the con-
struction of penal as well as other statutes. This is
true. But this is not a new independent rule which sub-
verts the old. It is the modification of the ancient
maxim, and amounts to this: That, though penal laws are
to be construed strictly, they are not to be construed
so strictly as to defeat the obvious intention of the
Legislature. . .I" (Emphasis added.)
Further quoting from Sutherland at Section 415 the court re-
peated:
IVt. . .The modern doctrine is that to construe a
statute liberally, or according to its equity, is nothing
more than to give effect to it according to the intention
of the lawmaker, as indicated by its terms and purposes.
This construction may be carried beyond the natural im-
port of the words when essential to answer the evident
purpose of the act; so it may restrain the general words
to exclude a case not within that purpose.
II
. . .Liberal oonstruction of any statute consists in
giving the words a-meaning which renders it more effectual
to accomplish the purpose or fulfill the intent which it
plainly discloses. For this purpose, the words may be
taken in their fullest and most comprehensive sense. Where
the intent of the act Is manifest, particular words may
have an effect quite beyond their natural signification
in aid of that intent.'" (Emphasis added.)
There are many other rules for the interpretation of statutes to
aid in ascertaining the true intention of the Legislature. In the Oliver
case, supra, it is said:
"This court, through'Judge Davidson, in Yakel v. State,
30 Tex.App. 394, 17 S.W. 944, 20 S~XW.205 said: 'Statutes
should be so construed so as to prevent mischievous con-
sequences. Such construction finds itself supported In the
good order of society, protection of the weak against the
strong, and should be favored, and more especially if such
a construction be in opposition to one that would tend to
bring about evil results, People v. Garrett, [68 Mich. 4871
36 N.W. 2349 Hoemes v. State, 88 Ind. 145; Am. & Eng. Encyc.
of law, p. 702, note 2. The purpose and object of the Legls-
lature in enacting the statute being known, it Is the duty
of the court to so construe it as to conform to that Intent
and carry out such purpose."'
Hon. Frank Briscoe, Page 5 (ww-1077)
In construing the original Article 186 (now 286) of the Penal
Code of 1879 the court in Albrecht v. State, 8 Tex.App. 314, (1880) in
an opinion by Justice Clark, 6al.d:
"The obvious intention of the Legislature, as mani-
fested in Article 186 (now 199) of the! Penal Code. was
to prevent altogether the barter and sale of merchan-
dise on Sunday, and to prohibit all merchants, grocers,
dealers in wares or merchandise, or traders in any law-
ful business whatever, from desecrating the Sabbath,
and distracting with their avocations the peace and
quiet of other portions of the community who might
desire, from religious or other consideration to devote
the day to worship of God, and to entire rest from their
_ daily employments. This purpose, so manifest, cannot be
_ __. . ^ _ ^
alsregaraeo in tne searcn ror a proper rule ror con-
struction, but must be given effect to, unless qualified
or restricted by some potent provision of law rendering
a contrary construction imperative." (Emphasis added.)
Further, .in:theOliver case, supra, (144 S.W. at page 616) the
following is present:
"Under these various enactments of the Sunday law,
and how they were added to from time to time, retaining
at all times after the first insertion the words 'or the
agent or employ= [sic] of any such person', it is clear
to us that we reached and announced the correct inter-
pretation of the present statute in the original opinion
herein. We cannot agree to appellant's contention that
the agent or employe is not amsnable under this statute,
unless such agent and emulove has the Dower and authorits
from the prop;ietor of the theater to open or close it. -
The very use of the words 'agent' or 'employe'and
especially of the word 'amploye', taken in connection
with out statute on the subject of principals, indicates
clearly and without doubt to us that the Legislature in-
tended that whoever permitted the theater to be open,
rhenn entrance fee was charged,
act in aid thereof, was amsnable t
*phasis added.)
It is to be pointed out that the prohibition In the article is
imposed upon those individuals actually engaged in or responsible for
the violations and not the corporate entity as such.
The Court of Criminal Appeals in the case of Brockman v. State,
28 S.W.2d~820 (Tex.Crim. 1930), reversed the decision of the trial court
-.
Hon. Frank Briscoe, Page 6 (WW-1077)
because the complaint and pleadings did not sufficiently identify for
whom the accused was agent or employee and stated, in part, as follows:
"The Legislature having written in this statute
that persons who are agents and employees, and at-
tempted to be penalized as such for keeping a place
of public amusement open on Sunday, must be charac-
terized in the state's pleading as thegents and
employees of some private person, or else agents and
employees of some firm, corporation, or company . . .
"Appellants may be guilty, and may be guilty as
agents and employees, but the indictment should state
the person, firm, or company by whom they were employed,
in order to measure up to the requirement of Article 286,
supra." (Emphasis added.)
One of the most interesting cases in point is that of U.S. v.
Union Supply Co., 215 U.S. 50 (1909), wherein the court stated:
"The words 'wholesale dealers' are so apt to em-
brace corporations here as they are in section 2, re-
quiring such dealers to pay certain taxes. We have no
doubt that they were intended to embrace them. The
-
words 'any person' in the penal clause are as broad as
'wholesale dealers' in the part prescribing the duties.
U. S. Rev. Stat. Sec. 1. It is impossible to believe
that corporations were intentionally excluded. They
are as much,.withinthe mischief aimed at as private
ersons,~and as capable of a wilful breach of the law."
Emphasis added.)
Uniformly it is held that a statute of a general nature of the
character of the one under consideration includes corporations.
"Under a statutory provision, a corporation is a
'person' within the meaning of that term as used In
the constitutional and statutory provisions. More
particularly, a corporation has been held to be in-
cluded in the word 'person' as used in the statutes
relating to the venue of actions, limitations and
death by wrongful act." 10B Tex.Jur. 64.
"Persons are divided by the law into persons natural
and persons artificial. The term 'person' prima facie
at common law and apart from any statutory enactment
limiting its meaning, Includes both natural and artificial
nersons. and therefore as a general rule includes corno-
rations:" 13 Am. Jur. 164. State v. Natelson Bras.,-32
A.2d 581 (C.C.A. 1943)a
-. .
Bon. Frank Briscoe, Page 7 (WU-1077)
"Corporations are to be deemed and considered as
persons when the circumstances in whfCh they are
placed are identical with those of natural persons
expressly included in statute . . . and the word
'person' in a statute, though penal, which is in-
tended to inhibit an act means 'min
. . . and therefore includes corporations If they
are withinthe spirit and purpose of the statute."
13 Am.Jur. 166.; ~(Rnphaslsadded.)
,"Word 'person' in Oklahoma statute authorizing
person paying usurious interest to recover twice
amount paid, includes corporations." General Motors
Acceptance Corp., v. Mid-West Chevrolet Co., -2d
1, 8.
,From the opinion in the case of Central Amusement Co. v. Die-
trict of Columbia, I.21A.2d 865, (Ct. of App. 1956), we find that the
statutory use of the word “person” to include corporations is so general
that to hold 'corporationsare not included requires clear proof of legis-
lative intent to exclude them. 13 Am.Jur. 166, Corporations, Sec. 11;
18 C.J.S., p. 386-387,Corporations, Sec. 8.
We must look to the classification created, which would result
should the "agents and employees" of natural persons be subject to the
,penaltiesof Article 286, and the "agents and,employeee" of corporations
be exempt therefrom. The singling out of certain businesses as exemptions
where the facts remain that there is no rationable difference which neces-
sarily distinguishes the two operations, would constitute an unreasonable
and arbitrary classification discriminating against nome by granting
immunitiee to one of the classes to the exclusion of others. If such be
the construction placed upon the artiole, it would ,olearlybe uncon-
stitutional.
The Legislature intended that the act would conform to the Con-
stitution and we believe that it &es. Therefore, it is our opinion that
the word "pen!on" includes corporations and the "agents and employees"
of a corporation are subject to the penalties provided in Article 286,
V.P,C.
We concur with your conolusion as stated in your able support-
ing brief.
The penalties provided in Article 286, V.P.C.,
apply alike to "agent and employee" of a corpo-
ration or other artificial person as It does to
the "agent or employee" of a natural person.
. .
Hon. Frank Brimcoc, Pam 8 (VU-~)
Your. very truly,
WILL uIIso11
Attorney Generalof Texae
HarrisToler
AeaistantAttorney Qencrel
APPROVED:
OPINIONCOMMITTEE
W. Q. Gbl)peti,
Chairman
Jerry Roberts
Iola Wilcox
William E. Allen
htrcnce Eargrove
REVIEWEDFORTRE~ GwHlAL
BY: Morgan Nesbitt