” . 

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 recent 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, sealsing wax and all other supplies required for conducting a general or special election shall be ~- 

pala for by the county, except the cost of supplying booths for cltles. All accounts for~supplies 

furnished or services rendered shall first be approved by the Commissioners Court, except the accounts 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 committee 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 

Its funds expenditures of this nature." 

pay from 

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 constitution 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 nongovernmental 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 unconstltutlonal 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 expenses which may be incurred in the mere regulation--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 counties. This presents, nakedly, the question, 

whether it is within the power of the Leglslature 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 general laws and for public purposes only.' 

"By section 52, Article 3 it is provided: 

'The Legislature shall have no power to authorize 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 whatsoever, I etc. 

"The funds possessed by the counties of the 

State and available for th8 payment of the expense 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 public 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 only 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 imposed 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 opinion, 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 furtheranceof their objects can no more be defrayed out of the public treasury than the expenses 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 constitutional 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 imposed as a part of the public burden of taxation. 

"For a stronger constitutional reason than 

would apply to other kinds of public organizations Is It the clear duty of the State to withhold 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 fundamentally sound proposition that no power of the 

government can be constitutionally used in furtherance 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 'the State to' see that 'such nomlnations are made, as it clearly is not, th8 public revenues cannot be empl~oyed in that connection. To furnish their nominees a's claimants 

for the popular~favor~ln thee general elections 

is a matter which concerns alone those parties 

that desire to make such nomlnatlons. It IS 

alone their concern~because they alone are Interested 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 unmistakable when upon mature considerationsuch is 

the conviction of the court. The Constitution 

is the supreme law of the State, and no conslderation should be suffered to stand 1n the'way of Its 

enforcement. Tested by legal principles which are 

clear and established, the payment of the expenses of prlmarg elections of polltical parties 

Is not a publcc purpose for which public revenues 

lil6y be Used; and in our opinion the act in question Is therefore unconstitutional and unenforceable," (Emphasis ours) 

your expresslon of belief that for the purposes of absentee 

voting in a primary election that the County Clerk and his deputies 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 considered 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 abovequoted 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