         TEEAITORNEYGENERAL
                 o~TExA~
                        AUSTIN.TEXAB
                                                            BAOAN     DIGISSON
                                                                 --

                             April     29,   1948

Hon. John Atchison                     Opinion Ao. V-560
County Attorney
Cooke County                           Re: Con?peimation~ ofelec-
Gainesville,  Texas                        t$on,~judges and clerks
                                           in primary elections.
Dear Sirr
          You have requested ~thls offioe'to   advise you
whether the competisatlon of election   judges and clerks
in primary elections   is governed by the provisions   of
Artiole 2%3, V. C:S.,     which reaclsaa follows:

             "Judges and olerks of general and
      spealal e1ection.v shall be paid Five Dol-
        am ($5.00)    a day each, and Fifty, Cents
      t 506) per hour eaah for any time iti ex-
    .cesa of a clay's work as herein defLned.
      The juUge who delivers      the returns of
      election    immediately after the votes have
      been counted shall be paid 'Two Dollars
      ($2..00~) for ~that service; provided,    al-
      so, he shall make returns of all election
      supplies. not used when he makes return
      of the electloL        Ten (10) working hours
      shall be considered a clay wlthln the
      meaning of this Article.        The compen-
      sation of judges an& clerks of genepal
      and special    elections   shall be paid by
      the Couuty Treasurer of the county where
      such services are rendered upon order of
      the Commissioners."
            Title 50 entltleo   "Elections"   contains Artl-
cles 2923 through 3173 inclusive.        Chapter 13 of Title
50 entitled    "Rominatlons* pertains to,prlmary     elections
and contains Articles     3100 through 3167 Inclusive.       We
quote the Sollowlhg statutory provisions       applicable    to
primary elections    pertinent  to your inquiry:
            Article   3104, V. C. S.,        reads as follows:
            "All   the precinct      primary elections
Hon. John Atchison,     page 2   (V-560)


     of a party shall be conducted by a pre-
     siding judge, to be appointed by a chairs
     man of the county executive     cotittee    of
     the party, with the assistance      and apppov-
     al of at least a majority of the membersof
     the county 'executive committee.       Such pre-
     siding judge shall select an associate
     judge and two clerks to assist      In oonduct-
     ing the election;   two superviaors     may be
     chosen by any one-fourth     of the party con-
     didates,   who, with the judges and clerks,
     shall take the oath required of suoh of-
     ficers   in general elections.    Two addl-
     tional clerks may be appointed,      but only
     when, in the opinion of the presiding
     @age, there will be more than one hun-
     dred votes polled at $he primary eleo-
     tlon in the precinct.
          Artiole     3108, V. C. S.,   reads as follows:
            "At the meeting of the oounty execu-
    tive committee provided In Artiole           3117,
    the county commlttee shall also careSully
    estimate the cost of printing        the official
    ballots,    renting polling places where same               4
    may be Sound necessary,       provid&g     and dis-
    tributing     all necessary poll books, blank
    stationery     and voting booths required,       com-
    pensation of election      officers    and clerF
    and mesaenuers, to report the result. in *              .
    each precinct     to the county chairman, as
    provided for herein, and all other neoes-
    sary expenses of holding such primaries
    in such counties and shall apportion such-.
    cost among the various candIdatea for nom-
    ination for county an&precinct          offices
    only as herein~defined,       and offices     to be
    filled    by the voters of such county OP
    precinct    onl   (candidates    for State offi-
    ces exoepted 7 , in such manner as In their
    judgment is just and equitable,         giving due
    consider&ion      to the Importance an& emolu-
    ments of each such oSSice.Sor which a nom-
    ination is to be made and shall, by reso-
    lution,    direct the chairman to immediately
    mall to each person whose name has been
    requested to be placed on the official
    ballot    a statement of the amount of such
        Hon. John Atohison,     page 3    (V-560)


,
             expense ~90 apportioned to him, with
             the request that he pay the same to
             the county chairman on or before ~the
             Saturday before the Sourth~Mondag In
             June thereafter.”
                   In the cacie of Beene v. Wsples,         108 Tex. 140,
        187 3.W. 191, it was~.held that the election     officers
        of a second senatorial     primary election’were  to,be paid
        under the provisions     of the General Prima~g Law provld-
        izig for the method of .deSraylng the expenses of primary
        elections   (now Article   3108, V. C. 9.) and not under the
        provisions   of the General ,Electldn Law (now Article
        2943, V. C. 5.)    We quote the foIj.&wing Srom~sald case:
                    “If section .34.  should be c&tr&ed’        ~.
             as meaxxlqg that $Qe~electi.on officers        re-
             Serred to .$herein ,(by wh$c@ are meant, we
             think, the ~prlmary election     of~ficers, pro+
             vided for in said act of-1905) are to .be,
             paid, for their services,.out       of publia
             funds, ‘snob provision     for payment is,
             plainly,   unconstitutional,    as directing
             a misuse’of    public funds.    Maples v,
             Marrast, 184 8.W. 180, recently        decided
    V
             by this court.
                     ‘But if section 34,is to .be oopstru-
              ed ‘Snd held .to .mean that, such election,
              officers   are to be paid out of S;unds~.prO-,
              tided by Feason+ble asseks~nts~againat~            .~
              ca@$dates     for party norainstions;      In all
             respects    as set forth In and provided bye’
              said act of 1905 In its relation          to the
              primary- eleotlon   offitiers   referreKt0
             ,therein,   there exists no conflict        what-
              ever between said seotibn 34 and any
              other provision    of that Constitution       or
              of the Constitution      of the United States,
              and in that event section,34         will stand
              as ‘a valid expression      of legislative    Will
              and ‘authority.
                   “We,here adopt, as sound, said latter
             construction    of said section 34, and affirm
             its constitutionality.
                   “It will be noted that the above quot-
             ed section 34 of the Senatorial  Primary kw
 Hon. John Atchison,    page 4    (V-560)


       does not provide that the expense of hold-
       ing senatorial     primary elections    shall be
       paid out of public funds.        Insteadof    con-
       taining any such declaration,        it says that
       that expense shall be paid ‘as provided by
       law for holding elections      in other cases.’
       A& provided by what law? This means neoes-
       sarlly,   we think, the General Primary Law.
       ‘Phe seotion   (section   34). and the aot of
      111
       with general eleofions.       They deal with on-




      subject,   .that is the law to be looked to
           necessarily,   the law which the Legis-
      ELre,     in Sramlng section 34, intendecl
      shall govern the matter.
             ‘We have the General F’rimary &LWwith
      its Ui~stinct rrrovislonfor the method of
      defraylnn.the    exuensesof    Drimary electiona,
      and resort should aooordinn3.s. be made to
      that law as the law on. the subject, &&end-
      6d by the reference     in seation 34     Th
      provisions    of the General Primary’Lai fthe
      aot of 1905) ‘Is for the, payment of such ex-
      penses, not out of public funds, but by as-
      sessment against state; $I trlct;      county,
      and precinct    candidates.    hcmphasis oursj
             You are, therefore,   advised that the aompensa-
tion of election    judges and clerks in pr%aaq elections
is not governed by the provisions     of Artiole 2943, V. C.
3   applicable   to general and speoial eleotlons,   but.sald
e$ense    Is to be paid In acoordanoe with the provisions
of Article   3108 setting forth the method of defraying the
expenses of a primary election.
Hon. John Atchison,      page 5    (V-560)


                             SUMMARY
               Election  judges .anA clerks in prl-
        mary elections    cannot be paid for their
        services    under the provislons    of Artiole
        2943 v. c. s., a@plioable      to,gdneral   an&
        special elections,     but they must be paid
        in kmoortlance with~ths provisions       of Art-
        Sale 3108 V. C'i S., provGUng for the
        method of defraying expenses in primary
        eleotiozis.                           -
                                          Youre very truly,
                                     ATTORNEX
                                            QRNEI?AL
                                                   OF TBXAS



JB:wr                                        John'Bdeves



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