                  ”      .




            THEA~ORNEY                  GFBERAL
                             OFTEXAS




Honorable C. J. Wilde
county Auditor
Nueces county
Corpus Christl, Texas
Dear Sir:                       Opinion No. O-6192
                                Re: Xxpenditures of county funds fn
                                     connection with primary electtons
       We have carefully considered your opinion request of re-
cent date from which we quote:
       "The questfon has come before this office as
    to the expenditure of funds by Nueces County
    covering certain amounts in connection with the
    holding of the flrat~and second primaries in
    Nueces County. Article 2996 quoted herewith:
       "'All expenses Incurred'in providing voting
    booths, stationery, official ballots, vooden
    or rubber stamps, tally sheets, polling lists,'
    instruction cards, ballot boxes, envelopes, seals-
    ing wax and all other supplies required for con-
    ducting a general or special election shall be    ~-
    pala for by the county, except the cost of supply-
    ing booths for cltles. All accounts for~supplies
    furnished or services rendered shall first be ap-
    proved by the Commissioners Court, except the ac-
    counts for voting booths for cities.'
    Listing the expenditures for electIon supplies
    mentions 'for conducting a general or special
    election shall be paid for by the county.'
       "Article 2956 makes it mandatory that the
    county clerk or a deputy county clerk handle the
    voting by absentees. Art. 3108, FXPWSES OF
    PRIMARY, states that the county executive com-
    mittee shall be responsible for the official
    printing of ballots, etc. and other necessary
    expenses of holding such primaries.
       "We believe that even though the absentee
    voting is handled through the County Clerk's
Honorable C. J. Wilde, p. 2         o-6192


    offlce we feel that the deputy county Clerk is
    acting in the capacity of an election officer
    and that any expenses In connection with the
    absentee ballots are a part of the expenses to
    be pald for by the county committee.
       "We shall be pleased to have your advise as
    to whether or not Nueces County should pay from
    Its funds expenditures of this nature."
       We qUOt8 from 16 Texas Jurisprudence 81, Se&Ion   65,
as follows:
       "To the courts has been presented the
   question as to whether it is within th8 power
   of the legislature to make provision so as to
   devote the public revenues  of th8 state'to the
   payment of the primary election expenses of the
   parties. It is to be noted that the constitu-
   tion does not inhibit payment of expenses of
   general elections out of public funds. Rut the
   payment of the expenses of purely party electlons
   is a different matter because of the nongovern-
   mental nature of a primary election and the
   private character of a political party. Such
   agencies  are not lnstrumentallties of the state;
   and It is considered that th8 taxing power may
   not be US8d in aid of any polltisal party orto
   promote the purpose of all political parties.
   Accordingly, Lt has been held that payment of
   expenses of primary elections is not a public
   purpose for which public revenues may be used,
   and that a statute providing for such use is un-
   constltutlonal and unenforceable. However, it
   cannot be questioned that the legislature has
   power to direct payment out of public funds
   raised by taxation of any and all reasonable ex-
   penses which may be incurred in the mere regula-
   tion--but not in the maintenance--of primary
   elections."
       Several cases are cited In support of the text
them th8 Supreme Court cases of Waples V. mrrast, 108 K"B5,
L.R;A. 1917A. 253, 184 S.W. 180 and Beene v. Waples, 108 Tex.
140, 187 S.W. 191.
       In Waples v. Marrast the court had under consideration
the validity of an act of the Thirty-third Legislature known as
the Presidential Primary Act whLch authorized and required the
expenses of such primary to be paid out of the county treasury
                  .   .




ROnorab18 C. J. Wilde, page 3           o-6192


Of 8aCh County. The court held such provisions violative of
our Constitution.
       B8CaUSe we considerthe language and reasoning directly
applicable to your Inqulrg, we quot8'at length from the language
of Chief Justlce Phillips in that case:
      "The only serious constitutional questlon
   involved by the act Is Its requirement that
   the expense of the primary election shall b8
   borne out of the public treasury of,the coun-
   ties. This presents, nakedly, the question,
   whether it is within the power of the Leglsla-
   ture to devote the public revenues of th8 State
   to the payment of the primary election expenses
   of political parties. The general primary law
   relating t0 th8 nomination Of party Candidates
   for state, district and county offices Imposes
   such expense upon the candidates. Article 3104,
   Rev. St. 1911.' In the legislative history of
   the State, this is the first effort, so far as
   we are aware, to make the expense of a party
   election a charge upon the public revenue.
     ~"Section 3, Article 8 of the Constitution
   declares:
       'Taxes shall be levied and coll8cted by gen-
    eral laws and for public purposes only.'
       "By section 52, Article 3 it is provided:
      'The Legislature shall have no power to au-
   thorize any county, city, town or other political
   corporation l * * of the State, to lend it credit
   or to grant public money l * * In ala of, or to,
   any individual, association or corporation what-
   soever, I etc.
      "The funds possessed by the counties of the
   State and available for th8 payment of the ex-
   pense of the primary electlon provided for by
   this act, are only those which are derived by
   taxatlon. If the payment of such expense Is,
   within the meaning of the Constitution, 'a pub-
   lic purpose,' the act is valid in its provision
   that it shall be borne out of the public treasury
   of the counties; otherwise it is not.
       “(4)   Taxes are burdens imposed for the sup-
Honorable C. J. Wilde, page 4        o-6192


   port of the government. They are laid as a
   means of provldlng public revenues for public
   purposes.' The sovereign power of the State may
   be exercised in their levy and collection on-
   ly upon the condition that they shall be devoted
   to such purposes; and no lawful tax can be laid
   for a different purpose. Whenever they are im-
   posed for private purposes;'aswas said -in
   Brodhead v~;Milwaukee, ~19 Wis. 670, 88 Am.'Dec.
   711, it ceases t0 be taxation and b8com8s plunder.
       'I** * * *

      "The great powers of the State,--and the
   taxing power is the one to be always the most ~-
   carefully guarded,--cannot be used, In OUT opin-
   ion, in aid of any political party or to promote
   the purposes of all polltlcal parties. They are
   no more to be mad8 the objects of governmental
   bounty or favor than any other class of public
   organfzations into which groups of citizens may
   form themselves. Expensesincurred in the fur-
   theranceof their objects can no more be de-
   frayed out of the public treasury than the ex-
   penses of other associations of individuals.
   If it is constitutional to use the public revenues
   to~pay the cost of their primary eleCtions, it
   Would likewise b8 ConstitUtiOnal to pay the~'COst
   of their candidates' campaigns. If the consti-
   tutional barrier is removed In the on8 case, it
   cannot be restored in the other; but it will
   have to be admitted that any and all kLnds of
   expense of political parties may be lawfully im-
   posed as a part of the public burden of taxation.
      "For a stronger constitutional reason than
   would apply to other kinds of public organiza-
   tions Is It the clear duty of the State to with-
   hold the use of its public revenues as an aid to
   political parties, and particularly as an aid
   in the holding of their party elections. The
   object of such parties 1s the political~control
   of the government; and we regard it as a funda-
   mentally sound proposition that no power of the
   government can be constitutionally used in fur-
   therance or ald of the effort of any class or
   kind of organization, political or otherwise,
   to obtain the control of the government.
      "To provide nominees of political parties
   for the people to vote upon In the general elec-
Honorable C. J. Wilde, page 5        o -6192


    tions, is not the business of the State. It is
    not the business of the State because in'the
    conduct of the government the State knows no
    partLes and can know none. If it isnot then.
    business of 'theState to'see that 'such nomlna-
    tions are made, as it clearly is not, th8 pub-
    lic revenues cannot be empl~oyedin that connec-
    tion. To furnish their nominees a'sclaimants
    for the popular~favor~ln theegeneral elections
    is a matter which concerns alone those parties
    that desire to make such nomlnatlons. It IS
    alone their concern~because they alone are In-
    terested In the success of their nom~inees. The
    State;as a government, cannot afford to concern
    itself in the success of the nominees of any
    political party, or In the elective offices of
    th8 people being filled only by those who are the
    nominees of some political party. Political
    parties are political Instrumentalities. They
    are In no sense governmental instrumentalities.
    The responsible duties of the State to all the
    people are to be performed and Its high objects
    effected wIthout reference to parties, and they
    have no part or place in the exercise by the
    State of Its great province 1n governing the people.
       "Y * * + *

       "Holding an act of the Legislature to.be
    unconstitutional is never a welcome duty, and
    this court has never performed ft except with
    reluctance. It is a duty, however~,plain and un-
    mistakable when upon mature considerationsuch is
    the conviction of the court. The Constitution
    is the supreme law of the State, and no consldera-
    tion should be suffered to stand 1n the'way of Its
    enforcement. Tested by legal principles which are
    clear and established, the payment of the ex-
    penses of prlmarg elections of polltical parties
    Is not a publcc purpose for which public revenues
        be Used; and in our opinion the act in ques-
    lil6y
    tion Is therefore unconstitutional and unenforce-
    able," (Emphasis ours)
       your expresslon of belief that for the purposes of absentee
voting in a primary election that the County Clerk and his dep-
uties act as election officers 1s substantiated by the terms of
Subdivision 10 of Articl8 2956, Vernon's Annotated Clvll Statutes:
       "The county clerks, their deputies and of-
                                         .    .




Honorable C. J. Wilde, page 6           o -6192


    ficers acting under this ArtfCl8 shall be con-
    sidered as judges or officers of election wLthin
    the scope of Articles215 to 231, inclusive, of
    the Penal Code of Texas, and all amendments
    thereto, and be punishable as In sata Articles
    P8SpeCtiV8ly, provided in the case of judges or
    officers of election. .......'
       In view of the strong reasoning employed in the above-
quoted case, you are advised that such expenditures as you
mention-should not be paLd from any county funds. Inour
opinion, such payment is not only unauthorized but expressly
prohibited by the highest authority--the Constitution of~Texas
--In the sections so aptly Cited by the late Chief Justice of
our Supreme Court.
       In this connection we do not feel It amiss to cite you
to a pertinent requirement of another.of our statutes."~Artidle
2340, Revised Civil Statutes of Texas, sets forth the written
obligation to be entered into In his official bond by every
county commissioner in Texas: "that he will not vote or give
his consent to pay out county funds except for lawful purposes."
                                  Yours very truly,
                                ATTORNEY GENERAL OF TEXAS

                                  By s/Benjamin Woodall
                                       BenjamQi Woodall
                                       Assistant
BW/JCP/wc

APPROVED SEP 13, 1944
s/Gee. P, Blackburn
(Acting) ATTORNEY GENERAL OF TEXAS
Approved Opinion   Committee By s/BWB Chalrman
