Debenham v. Short

WILLSON, C. J. (after stating tbe facts as above). [1] Tbe question presented by tbe record may be stated as follows: Under article 5644, Vernon’s Statutes, does a lien for wages due exist on articles used in tbe operation of a restaurant in favor of one who, having served tbe owner thereof as a cook or waiter, has complied with tbe requirements of article 5645 of said statutes? Said article 5644 is, in part, as follows: “That whenever any clerk, accountant, bookkeeper, artisan, craftsman, factory operator, mail operator, servant, mechanic, quarryman, or common laborer, farm hand, male or female, may labor or perform any service in any office, store, saloon, hotel, shop, mine, quarry, factory or mill of any character, * * * under or by virtue of any contract or agreement, written or verbal, with any person, employer, firm, corporation, or his, her, or their agent or agents, receiver or receivers, trustee or trustees, in order to secure the payment of tbe amount due or owing under such contract or agreement, written or verbal, the hereinbefore mentioned em-ployés shall have a first lien upon all * ⅜ ⅜ things of value of whatsoever character * * * that may be used by such person or persons, or necessarily connected with the performance of sucb labor or service, which may be owned by or in the possession or under the control of the aforesaid employer, person, firm, corporation, or his, or their agent or agents, receiver or receivers, trustee or trustees: Provided, that the lien herein given to a farm hand shall- be subordinate to the landlord’s lien now provided by law.” [2] It will be noted that persons hired to serve in a restaurant are not within tbe words of tbe statute. Appellant insists that be and his assignors nevertheless were within its terms, because, be asserts, tbe Elite Café as operated by Short was a “hotel.” If there was any testimony showing that Short operated tbe restaurant in a way different from the way restaurants ordinarily are operated, it was that disclosing that Short bad a list showing tbe prices at which the owner of tbe Lake House, a nearby hotel, let rooms, and that be, because be was friendly to the owner, instructed bis employés to recommend that hotel to patrons of tbe restaurant who inquired about lodging places. We do not think the testimony referred to is of importance in determining whether the Elite Café was a “hotel” within the meaning of the statute or not. Giving to the word *1148 “hotel” its “ordinary signification,” as we must (article 5502, Vernon’s Statutes), it does not mean a restaurant, and that it does not is recognized by the Legislature in other statutes. For instance, the statute authorizing members of the board of health to enter into and inspect certain places and houses .(article 4536, Vernon’s Statutes), and the statute limiting the time a female may be employed in certain places to 54 hours per week (article 5246a, Vernon’s Statutes), specify among other places, both “hotels” and' “restaurants.” As commonly used, the word “hotel” is understood to mean a place where, generally speaking, any person who conducts himself properly and is able and willing to pay for same has a right to demand that lodging be furnished him; and the word “restaurant” to mean a place where such a person has a right to demand that food be furnished him. In common parlance a restaurant is never denominated a “hotel,” nor a hotel a “restaurant.” As every reason why one who labors in a hotel should have a lien for wages due him applies as well to one who labors in a restaurant, we do not understand why the benefit of the statute should not have been conferred upon both alike. But that no reason is apparent why the Legislature should have discriminated between the two classes of employSs does not authorize a court to construe the statute so as to include both,. when it plainly appears, if the “ordinary signification” of the language of the statute is kept in mind, that one of the classes was excluded. Roberts v. Yarboro, 41 Tex. 449; Goldsticker v. Ford, 62 Tex. 385. For a like reason, to wit, that a “restaurant,” notwithstanding cigars are sold in it, as they were in the Elite Café, is not a “store” or a “shop” within the popular .meaning of those words, we think the contention made by appellant to the contrary must be overruled. So far as the record shows to the contrary, selling cigars was a mere incident of the business to which the café was devoted, and we think, did not make it a “store.” The judgment is affirmed. Footnotes [1] «gzsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes