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### THEA~ORNEY GFBERAL

OFTEXAS

Honorable C. J. Wilde countyAuditor Nueces county Corpus Christl,Texas

Dear Sir: OpinionNo. 

### O-6192 Re: Xxpenditures of county funds fn connectionwith primary electtons

We have carefully consideredyour opinionrequest of recent date fromwhich we quote:

"Thequestfon has come before this office as to the expenditure of fundsby Nueces County covering certain amounts in connectionwith the holding of the flrat~and secondprimaries in Nueces County. Article 

### 2996quoted herewith:

"'All expenses Incurred' in providingvoting booths, stationery, officialballots,vooden
or rubber stamps, tally sheets,polling lists,' instructioncards, ballot boxes, envelopes, sealsingwax and all other suppliesrequired for conducting a general or special election shallbe ~- pala for by the county, except the cost of supplyingbooths for cltles. All accounts for~supplies furnished or servicesrendered shall firstbe approved by the Commissioners Court, except the accounts for voting booths for cities.' Listing the expenditures for electIon supplies mentions 'forconductinga general or special election shallbe paid for by the county.'
"Article

### 2956makes 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 shallbe responsible for the official printing of ballots, etc. and other necessary expenses of holding suchprimaries.

"Webelieve that even though the absentee voting is handled through the County Clerk'sHonorable C. J. Wilde, p. 2 o-6192

offlcewe feel that the deputy county Clerk is acting in the capacity of an election officer and that any expenses In connectionwith 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 towhether 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 iswithin th8 power of the legislatureto 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 inhibitpayment 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 politicalparty. Such agencies are not lnstrumentalltiesof the state; and It is considered that th8 taxing power may not be US8d in aid of any polltisalparty orto promote the purpose of all politicalparties. Accordingly, Lt has been held that payment of expenses of primary elections is not a public purpose forwhich public revenues may be used, and that a statuteproviding for such use is unconstltutlonaland unenforceable. However, it cannot be questioned that the legislaturehas 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--ofprimary 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.

InWaples v. Marrast the court had under consideration the validity of an act of the Thirty-thirdLegislatureknown as the Presidential PrimaryAct whLch authorizedand required the expenses of suchprimary to be paid out of the county treasury. .

ROnorab18 C. J. Wilde, page 

### 3 o-6192

Of 8aCh County. The court held such provisionsviolative 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 constitutionalquestlon involvedby the act Is Its requirement that the expense of the primary election shallb8 borne out of the public treasury of,the counties. This presents, nakedly, the question, whether it iswithin the power of the Leglslature to devote the public revenues of th8 State to the payment of the primary election expenses of politicalparties. 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 legislativehistory 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:

'Taxesshallbe levied and coll8ctedby general laws and for public purposes only.'
"By section 52, Article 

### 3 it is provided:

'TheLegislature 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 publicmoney l * * In 

### ala of, or to, any individual,association or corporationwhatsoever,I etc.

"The funds possessedby the counties of the State and available for th8 payment of 

### the expense of the primary electlonprovided for by this act, are only thosewhich are derivedby taxatlon. If the payment of such expense Is, within the meaning of the Constitution, 'apublic purpose,' the act isvalid in its provision that it shallbe borne out of the public treasury of the counties; otherwise it isnot.



### “(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 sovereignpower of the State may be exercised in their levy and collectiononly upon the condition that they shallbe 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,~19Wis. 

### 670, 88 Am.'Dec. 711, it ceases t0 be taxation and b8com8s plunder.
'I* * * * *

"Thegreat powers of the State,--andthe taxing power is the one to be always themost ~- carefullyguarded,--cannotbe used, In OUT opinion, in aid of any politicalparty or to promote the purposes of all polltlcalparties. They are no more to be mad8 the objects of governmental bounty or favor than any other class of public organfzations intowhich 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 constitutionalto use the publicrevenues to~pay the cost of their primary eleCtions, it Would likewiseb8 ConstitUtiOnalto pay the~'COst of their candidates' campaigns. If the constitutionalbarrier is removed In the on8 case, it cannot be restored in the other;but itwill have to be admitted that any and all kLnds of expense of politicalpartiesmay be lawfully imposed as a part of the public burden of taxation.

"Fora stronger constitutionalreason than would apply to otherkinds 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 particularlyas 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 soundproposition that no power of the government can be constitutionallyused in furtherance or ald of the effort of any class or kind of organization,political or otherwise, to obtain the control of the government.

"Toprovide nominees of politicalparties for the people to vote upon In the general elec-Honorable C. J. Wilde, page 

### 5 o

### -6192

tions, isnot 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 'suchnomlnations are made, as it clearly is not, th8 public revenues cannot be empl~oyed in that connection. To furnish their nominees a'sclaimants for the popular~favor~lnthee general elections is a matter which concerns alone those parties that desire to make such nomlnatlons. It IS alone their concern~becausethey 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 politicalparty, or In the elective offices of th8 people being filled only by those who are the nominees of some politicalparty. Political parties are political Instrumentalities. They
are In no sensegovernmental instrumentalities. The responsibleduties of the State to all the people are to be performed and Its high objects effectedwIthout 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 * * + *
"Holdingan act of the Legislature to.be unconstitutional is never awelcome duty, and this court has never performed ft exceptwith reluctance. It is a duty, however~, plain and unmistakablewhen uponmature considerationsuch is the conviction of the court. The Constitution is the supreme law of the State, and no conslderation shouldbe suffered to stand 1n the'way of Its enforcement. Tested by legal principleswhich are clear and established,the payment of the expenses of prlmarg elections of pollticalparties Is not a publcc purpose for which public revenues lil6y be Used; and in our opinion the act in question Is thereforeunconstitutionaland unenforceable," (Emphasisours)

your expresslon of belief that for the purposes of absentee voting in a primary electionthat the County Clerk and his deputies act as election officers 1s substantiatedby the terms of Subdivision 10 ofArticl8 

### 2956, Vernon's Annotated Clvll **Statutes:**

"Thecounty clerks, their deputies and of-. .

Honorable C. J. Wilde, page 

### 6 o-6192

ficers acting under thisArtfCl8 shall be consideredas judges or officers of electionwLthin the scope of Articles215 to 

### 231, inclusive, of the Penal Code of Texas, and all amendments thereto, and be punishable as In sataArticles **P8SpeCtiV8ly,** provided in the case of judgesor officers of election.

.......'

In view of the strongreasoning employed in the abovequoted case, you are advised that such expendituresas you mention-shouldnot be paLd from any county funds. Inour opinion, such payment is not only unauthorizedbut expressly prohibitedby the highest authority--the Constitutionof~Texas --In the sections so aptly Cited by the late Chief Justice of
our Supreme Court.

In this connectionwe 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 officialbond by every county commissioner in Texas: "thathe will not vote or give his consent to pay out county funds except for lawfulpurposes."

Yours very truly,

ATTORNEY GENERAL OF TEXAS

By s/BenjaminWoodall BenjamQiWoodall Assistant
BW/JCP/wc

APPROVED SEP 

### 13, 1944 s/Gee. P, Blackburn (Acting)ATTORNEY GENERAL OF TEXAS
Approved Opinion CommitteeBy s/BWB Chalrman