Montana Attorney General Opinion 15-535

Opinion No. 535 LabOl'-Foremen and Timekeepel'S -Eight Hour Day-Public Works -Highways. HI~LD : Foremen and timekeepers em- ployed by the i:ltate Highway Conlluis- "ion or bv contractors in the construc- tion of piIbHc highways are within the scope of section 2 of Chapter 116, Laws of 1H2H, which provides that "a period of eight hours shall constitute a day's work" in all public works or under- takings. May 18, 1!l34 Your request for 0pullon is as fol- lows: "It has been our undt'rstan<ling that the state law limiting II da~"s work to eight hours applies olll~' to skilled and unskilled labor and not to foremen. superintendents or timekeeper who perform no actual manual lahor. but whose duties are purely snper- vison'. Some of our foremen alll1 time- keepers are supen'ising two 5-hour shifts of laborers daily. We would appreciate your opinion as to whether or not such hours for foremen alHl timekeepers are a violation of the state la,Y." 'Ve think the case is cOI'ered by sec- tion 2 of Chapter 116, I,aws of 1929. The section is in two parts. The first IllIrt prol'ides tha t "a period of eight hours shall constitute a day's work in all works. and undertakin~s carried on or aided by any municipal, county, or state government, first class school dis- tricts, and on all contracts let by them," but it fails to c1esignate the employees affected thereby. The works and 1111- dertakings mentioned are el'idently works and undertakings in course of construction or which reqnire some- thing to be done toward their comple- tion. (State v. Peters, 147 N. E. 81.) The second part provides that a 1.lCliod of eight hours shall constitute a day's work "for all janitors, except ill Court Houses of sixth and seventh class counties, engineers, firemen, care· takers. custodians and laborers em- ployed in or about any buildings, works, or grounds used or occupied for an~' purpose by an~' municip,'ll, county, or state gOl'ernments, school district" of first class. and in mills and smelters for the tren tment of ores, and in under· ground mines. and in the washing, re- ducing and treatment of coal." '1'he buildings, works and grounds referred to are no doubt buildings, works and grounds of a permanent, completed character. The word "work" has a much more comprehensIve meaning than the terlll "labor," and has been defined as fol- lows: "To exert one's self for a pur- pose; to put forth effort for the attain- lIlent of all object; to be engaged in the performance of II task, duty or the like." As thus defined it covers all forllls of physical or mental exertions. or both combined, for the attainment of some object other than recreation or OPI:\"IO~S O~' THE ATTOR~EY GE~ERAL 371 amusement. (Continental Life Ins. Co. \'. Turnbough, 117 South. 334: State \'. Hose, 51 South. 400, 26 L. R. A. (n. s.) 821; Silver Y. Harriss. 115 South. 376.) In the case of Johnson v. Citizens' Trust Co .. 136 N. E. 49. the appellate court of 'Indiana consti'ued a statute different from the one under considern· tion, but a part of the opinion is so applicable here and so illuminating also that we take pleasure in reproduc· ing it as follows: "Section 1 of a statute enacted in 1877 declares: " 'The employees of any corporation Iloing business in this state" .... sha 11 he .... • entitled to ha\'e and hold n first and prior lien upon the corpor· ate property of any corporation, and the earnings thereof, for all work and labor done and performed by such em· lllo~'ees for such corporation, from ~he date of their employment," .... whIch lien shall lie prior to any and a 11 liens created or acquired, subsequent to the date of the employment. .. .. *, Sec· tion 8288, Burns' Ann. St. 1914. "Tbe receh'er's contention is that the words 'work and labor,' as used in the statute, mean 'handwork, not headwork'; that t,he Legislature in· tended to give a priority to those em· ployees only who engage in manual labor: and that Johnson. 'heing a chemist, was pursuing a learned pro· fession, and is therefore not within the class of employees who are en· titled to the benefit of the statute. That view was adopted b~· the trial court. "In determining the meaning of a statute, t,he first rule to be considered is that the words thereof are to be given their ordinary meaning, unless from the statute as a whole it is clear that the Legislature intended that certain words should be taken ill a different sense. (Citing cases). The following definition expresses the gen· era 1 meaning of 'work': " 'Exertion of strength or faculties; physical or intellectual effort directed to an end; industrial activity: toil; employment.' 'Vebster's Dictionar~" "The following definition expresses the general meaning of 'labor': "'Work done by a human being or an animal; exertion of body or minu, or both, for the accomplishment of an end: effort made to attain useful re- sultS, in distinction from exercise for the sake of recreation or amusement.' "When used as a Yerb: " 'To make a physical or mental ef· fort. to accomplish some end; exert the powers of body or mind for the attainment of some result.' Century Dict. "When taken in their ordinary sense, the words of the statute are sufficiently comprehensive to include employees who work with head or hand. or with both. Indeed, it is im· practicahle to attempt a separation on that basis; for the head and hand must work together. It is essential that servants in modern industrial plants shall have skill as well as muscle. Tn this age it is necessary in many industrial plants to employ ma- chinists, mechanics, chemists. drafts· men, engineers, accountants. book- keepers. stenographers, shipping clerks etc. The statute is broad enough to include all of them. 'rhe Legislature has attempted no classification of employees, and we perceive no reason why the courts should do so.'! It has been held by the courts that acting, dancing or singing on the stage of a theatre is work according to the ordinary signification of the term. (Commonwealth v. Griffith, 204 Mass. l8. 90 N. E. 394, 25 I~. R. A. (n. s.) H57, l34 Am. St. Rep. 645; State v. Hose, supra.) It may be argued that the doctrine of "nosci tur a sociis" or the rule of "ejusdem generis" applies and, there- fore, that the employees contemplated by the first part. of section 2 must be of the same class or kind as those spe- cifically enumerated in the second part thereof. But, as we have already pointed out. the first part of section 2 relates to work of one character and the second part. of section 2 relates to work of another and different char- acter. The services of janitors and cus- todians would hardly be required in the construction of a public highway, while those of sur\'eyors, foremen and timekeepers may be quite essential. 'ehe services of janitors, custodians, and firemen may be altogether unneces- sary in the construction of a public building, while those of architects, fOl'emen lind timekeepers could not well be dispensed with: 372 OPINIONS OF THE ATTOR:-iEY GENEHAL The doctrine of "noscitur a sociis" in construing statutes means that gen- eral and specific words, capable of analogous meaning, when associated together, take color from each other. so that the general words are restricted to a sense analogous to the less genera I. (Ex parte Amos, 112 South. 289; 59 C. J. 079; Words and Phrases, First, Second, Third and Fourth Series.) The rule of "ejusdem generis," as applied to statutory construction, usu- ally means that where general words follow the designation of particular classes of persons or things, the gen- eral words will ordinarily embrace only persons or things of the same general nature or class as those so designated. (Thaanum ,'. Bynum Irrigation Dis- trict, 72 Mont. 221; 59 C. J. 981; Words and Phrases, First, Second, Third and }j'ourth Series.) The doctrine of "ejusdem generis" is only 11 rule of construction to be ap- pli~d as an aid in ascertaining the legislatiYe intent, and does not control where it clearly appears from the stat- ute as a whole that no limitation upon the general words used was intended; nor does it apply where the specific words of a statute signify subjects greatl~' different from one another; nor where the specific words embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless. (Sta te Y. Eckhardt, 232 Mo. 49, 133 S. W. 321; Crabh Y. Board of Dental I~xaminers. 235 Pac. 829; 59 C. J. 982.) . In dew of the language of the stat- ute and its arrangement it is clear the doctrine has no application. From all that is said we conclude that foremen and timekeepers emplo~'ed by the State Highway Commission or by contractors in the construction of p~lblic highways arc within the scope of Section 2 of Chapter 116, Laws of 1929.