AUSTINILTEXAS

October 3, 1952

HOLR*c. Marshall County Attorney Hutchlason County stinnett. Texas

, opinion 100,V-l?9

Rer Authority of the county clerk to refuse to place
onthe general election ballot, party candidates selected at acounty ,convention which was recessed from time to time

Dear Sir: for amonth after the meeting date,

Your request for an opinion of this offlae Is In substance as follows:

“OnSeptember 10 1952, the county clerk received from the aounty chairman of the Republican Party acertificate dated September 8, 1952
anominating county and precinct can idates at ameeting certified as held onAugust 2, 1952. However the meeting of August 2was rem cessed irom time to t>me until September 5, onwhich date nominations were actually made. “Maythe county clerk legally refuse to order these nominations printed onthe general eleotI,on ballot?”

The nomination of candidates by the Republican Party for places onthe 1952 general election ballot is governed by Sections 222 to 225 of the Texas Election Code (V.C.S. Election Code, Arts. 13.45--13.- 481, which ertain to nominations by parties casting between 10,800 and 200 COOvotes for Governor at the preceding general eleo ion. .c Section 224 reads:
“Mominatlons for district offices madeby such parties shall be madeby conventions held onthe second Tuesday of August of the election year composed of delegates elected thereto a$ countyHon. R. C,.Marshall, page 2 (V-1529)

conventions held on the same day herein prescribed for such county conventions of other parties all ofwhich county conventions shall nominate candidates for county offices of such party.”
Byreference to Section 212 of the Election Code ventIwhich provides for the holding of county conons “on the first Saturday after primary election day of 1952 and each twoyears thereafter PIAugust 2
was fixed by law as the date for holding the county conventions for nominating Republican candidates for county and precinct offices in the 1952 general election.

Section 2250rthe Election code provides:

~9U.lnominations so madeby a State
or district convention shall be certified by the chairman of the State or district committee of such party to the Secretary of State and anomination madeby acounty convention, by the chairman of the county committee. (

Neither Section 225 nor any other provision in the election laws specifically states the time within which these nominations must be certified. We think they must be certified in time for the county clerk to comply with the posting requlremen~ts of Section 210 Election Code, but there is noclear authority for $ixing an earlier deadline for the filing of certificates of county and precinct nominations. Section 227 of the Election Code permits the filing of applications of independe,nt candidates up to 30days after the second primary election. Since the certificate was filed before that date, weare of the opinion that there was atimely filing in the present case. Indeed, wedonot understand that you have raised any question of the validity of the certificate onthe ground that it was filed too late or on the ground that it was not filed. with the proper authority. Your question relates only to the, legality of making nominations at ameeting which had been recessed to a date later than August 2.

The certificate filed with the county clerk recites that the convention was held onAugust 2. You donot state through what source the county clerk has, -Ron. R. C. Marshall, page 3 (V-1529)

knowledge of the alleged facts with regard to the recessed sessions and the date onwhich nominations
were actually made? but obviously this information Is from some source extraneous to the certificate itself. Therefore, the question Is presented as to whether the county clerk mayresort to extraneous sources to determine whether the certified nominations have been lawfully made for the purpose of deciding whether the names of the certified candidates should beplaced
onthe general election ballot.

Section 57of the Election Codeprovides in part as r0ims:î l . l Noname shall appear onthe official ballot except that of acandidate whowas actually nominated (either as a party nominee or as anonpartisan or independent candidate) in accordance with the provisions of this Code.

. . .‘I

InPulli mv. Trawalter 120 S.W.2d 108 (Tex. Civ.~pp. 1938) thz court held thit where apolitical party coming within the provisions of Sections 222 to 225 of the Election Code did not select party nominees in compliance with those sections, the names of the nominees could not beplaced onthe ballot. In that
case an opposing candidate filed a suit to restrain the placing of the nameof the Republican nominee onthe ballot, and the court decided from the evidence adduced at the trial that the nomination had not been lawfully made and certified.

It is clear, then that if the nominations in the present case were no4made in compliance with Section 224 the nominees donot have the right to have their names placed onthe ballot. Rut does the county clerk have the authority to decide an issue of illegality or irregularity in the nominations which is not raised onthe fbce of the certificate? In other words, is the prohibition tobe enforced through the officials charged with the duty of making up the ballot, or must it be enforced solely through the courts?

It might be plausibly argued that the officials with whomcertificates of nomination are filed should have the authority to enforce this prohibition beoause the time between the date onwhich the certificate was filed and the date for making up the ballotHon. R. C. Marshall, page 4 (V-l$Z9)

-

might be so short that acourt action could not be prosecuted to final decision. However, this is an argument for saying that the power should exist rather than for saying that it actually does exist. Moreover, if the election officials are allowed to exercise the judicial function ofpassing onthe legality of the nomination, certainly there should exist aright of appeal to the courts to review their action; and an insufficient time for prosecuting the appeal would produce similar argument against the grant of such authority,,

It is generally held that, in the absence of astatute expressly conferring greater authority the acts of elections officials in receiving certiflcates of nomination and in making upthe ballot are purely ministerial. The extent of their authority is summarized in 29C.J.S., Elections, S147, as follows: “Usually the officers or boards with whomdeclarations of candidacy, nomination certificates, petitions Aor other nomination papers are require to beriled are authorized, as part of their ministerial duties, to pass on the form and sufficiency of the nomination papers as manifest from the papers themselves, but they have no authority to exercise judicial functions and decide controversies in regard to the regularity of the nomination nor determine other objections which gobeyond the prima facie validity of the nomination papers, such as questions as to the qualifications of the signers of petitions or certificates,
orthe eligibility or qualification of candidates although as part of its ministerial du$y aboard mayexamine the registration records to determine whether the signers are registered. under some statutes the filing official or other specified officials
or boards are vested with certain judicial functions and accordingly they maydetermine
onextrinsic evidence objections to nominations to acts and proceedings connected therewith, and to other matters pertaining to the conduct of an election, but only those protests or objections within the scope contemplated by the statute maybe determined. II

. . .Hon. R. C. Marshall, page 5(V-1529)

In 29:C.J.S., Elections, g156, it is stated:

u

. . . In somejurisdictions a’statutory duty is imposed upon officers with whom certificates 0rnomination are filed to certify to the officers charged with preparation and printing the ballots the arrangement and contents of the ballots. Such duty,where the certificates of nomination are valid on their face is ministerial, and the officers charged with the duty cannot justify arefusal to certify the nominations by setting up facts showing that they were not in fact properly made.

. . .I’
And,29 C.J.S., Elections, I 162, says:
l’Inasmuch as acertificate of nomination, valid onits face when filed with the proper officer is prima facie evidence of the facts which it recites,stated supra 3135, and since statutory provisiol,s as to the preparation and distribution of the ballots must be strictly followed, as pointed out supra B155, and the officer whose duty it is to prepare and have printed the official ballot acts In apurely ministerial~ capacity stated supra 0155, he must place onthe ba lot I ali names regularly certified to him as having been nominated, unless the refusal to do so is in obedience to
ajudgment of acourt in acontest proceeding by acandidate opposing the person shown to have been nominated onthe face of the returns, changing the result or declaring the certificate, if issued, void, or nullifying the nomination; but the officer must not proceed blindly but should satisfy himself as to the authority of the person certifying the nomination and the regularity or legality of the nominations.

. . .“l

In State ex rel. Plain V. Falle 8N.D. 90 76M.W.996 (1898) the secretary of statz’had refuse to certify to the bounty authorities for printing onA

the official ballot the names of candidates which had

1/ The authority cited for the last quoted statement is Couch v. Hill, 10 S.W.2d 170 (Tex. Civ.App.
error aism. 1’

. 1928,

This case is discussed at page 10, infra.Hon. R. C+Marshall, page 6 (V-1529)

been certified to him as nominees selected at aparty convention. Amongother things the secretary of state contended that the conven ion had not been legal4 ly constituted. The court held that the secretary of state could not refuse to certify the names where the ,certiflcate of nomination was regular on its face, saying:
“Relators contend that

. . . the duties of the secretary of state, in certifying nominations to county auditors, are ministerial purely; and that, If the certificates filed with him are fair ontheir face, he is without authority to look beyond or outside of the certificates. In this wethink relators are clearly right and afew observations touching the statutes and their construction will disclose our reasons for thus holding. Weremark first, that, If the secretary be clothe& with judicial functions to pass upon the legality of all nominations the certificates ofwhich are filed with him, his determinations would be final, as certainly noprovisions for appeal or review can be found in the statute, and the decisions of
aspecial tribunal charged with the duty of deciding aspecial matter are always final, nnless the right of appeal be expressly given.

Further if the secretary be clothed ;iEh’judiclal hunctions in this matter, then the political policy ofthe state mayoften turn upon his decision. Thepower is great, and its exercise by anofficer universally recognized as political in character would be dangerous however able and however honest the incumbeni might be. For these reasons we should expect to find the power, if conferred at all, conferred in nouncertain terms. And yet confessedly there is no express judicial authority conferred upon the secretary by the statute. Atmost it is an implied authority, and, if implied, ihe means and instrumentalities for its proper exercise are entirely wanting. Hecan conduct noformal judicial inquiry. Hecannot coerce the production of persons or papers. Hecannot enforce testlmonyunder the sanction of an oath. His most earnest effort would with equal facility elucidate or!suppress the truth. Toimply authority -Hon. R. C. Marshall, page 7

under such conditions, (V-1529)

the implication must bepractically Impossible of evasion. But so far is our statute from giving such implied authority that, in our view, it expressly withholds such authority.

. . .@

The court held that the secretary of state could be enjoined from certifying the nominations if they had not been legally made, but went onto say:

”

. . Rut if no such restraining order be se&ed 14is the duty of the secretary to certiiy all nominations proper certificates ofwhich have been filed in his office. The law does not allow him to
concern himself whether such nominations
were or were not properly made, andwhenhe, of his ownvolition, refuses to certify such nominations, and parties in interest bring proceedings to enforce the performance of such duty it is noanswer upon his part to say that hacts exist which would have enabled the proper party, at the proper time and in the proper manner, to procure an order restraining him from certifying such nominations. Nosuch order having been in faot obtained, the existence of the facts did not release his duty.”

In State exrel. Coo ,Rlaisdell 17N.D. 575, 118N.W.225 (1908) thz siievcourt held Chat the secretary of state could’not refuse to certify the
names of candidates whohad been nominated by acertificate of nomination signed by individual voters which
was regular onits face onthe ground that someof the signers had participated in the nomination of other candidates for the same offices. The court said: “If other candidates or any qualified portion of the public desire to question the genuineness of the signatures,
or the qualifications of the signers they have aright to do so, and the right to test the legality of nomina-

“,;3.;,s devolves upon them, and not upon the Secretary of I,

. In State exrel. Rannev v. Corey 47N.E.2a 799 (Ohio App. 1940), an action was brought to restrain the county board of elections from placing the name of
an allegedly ineligible candidate onthe ballot. The court found that the candidate was ineligible andHon. R. C. Marshall, page 8 (V-1529)

granted the relief, but said:

“Nopower is vested in the board of elections of acounty, nor in the secretary of state,, to determine whether aperson who files adeclaration of candidacy for aprimary election possesses the necessary qualifications of acandidate for such office, Se;, State exrel. Hehr v. Beery et al.,

.,, 55Ohio Appe243, 9N.E.2d 699.

“Andit is the duty of election offlcials to place the names of those whose petitions are in the prescribed form, properly attested and filed In accordance with the provisions of the statutes, upon aballots to be used for voting at the primary election, unless prohibited by order of a court of competent jurisdiction.”

State exrel. VanWinkle v. Boser, 127 Ore. 91. 271 Paa. 46 (1928). Involved the leealitv of nomlnations madeby anominating convention. The court denied the nominees aplace onthe ballot onthe ground that the convention had not been legally constituted, but held that until restrained by court order it was the duty,of the secretary of state to certify the nomlnations, saying:

” 000 The secretary of state had no authority to gobehind the certificate. It
was his duty to file the certificate and certify the ballot as he did. The secretary of state is aministerial officer, and his authority is limited by the prima facie evldence afforded by the certificate.”

The applicability of the general statements quoted from Corpus Juris Secundum and of the authorities wehave cited depends, of course, upon whether the statutes of this State door donot confer upon the county clerk an authority in excess of determiningðer the certificate Is regular onIts face.

The statute directly relating to the duties of the county clerk is Section 210 of the Election Code, which reads: -_- Hon. R.C, Marshall, page 9

“Each county clerk (v-1529)

shall post In a

. conspicuous plaoe in his offlee, for the lnspeetion of the public the names of all oandldates that have been lawfully certlf$.ed to him to be printed onthe official ballot, for at least ten (10) days before he orders the sameto be printed on said ballot; and he shall order all. the names of the aandldates so csrtlfied printed on the official ballet as otherwise provided in thla title.”

The statement that the clerk shall post the
names of candidates that have and shall, order the nameg been&&&J& certified printed onthe ballot, and the provision

, quoted earljer in this opinion whioh prohibits the printing of any names on the ballot except those of candidates nominated “In accordance with the provisions of this Code,” are the only statutes which might possibly be taken as conferring onthis officer the power or impostng onhim the duty to gobehind the certificate and ascertain facts which might render it unlawful. Wemight observe here that wedonot think the authority of the county clerk in determinlng the sufficiency of certificates for placing names onthe ballot is any greater than the authority of the Seoretary of State in determining whether nominations filed with him should becertified to the county clerks,

Ananalogous situation arises under the provisions of Section 6of the Election Code, which reads:

l’Nelther the Secretary of State nor any county judge of this State other authority authorized to Is% ~%Aficates, shall issue any certificates of election or appointment to any person elected or appointed to any office in this State, whoIs not eligible to hold such office under the Constitution of this State and under the above Section; and the name of no InelIgIble person, under the Constitution and laws of this State shall be certified by any party committee, or any authority authorized 40have the names of aandidates plaoed upon the primary ballots at any primary election in this State;-Hon. Ii. C.Marshall, page 10 (V-1529)

. .'

and the name of no-ineligible candidate under the Constitution and:,laws of this State shall be placed upon’the ‘ballot of

.’ any general or,special election by any authority whose duty it is to place names’ of candidates upon official billots.lJ,~.~’

v, Benavides,, 125 S.W.2&~1081, (Tex.Civ.App.
error dism.)’ and,Beeler v. Looc4 ,135 s.W.2a Tex.Clv.App. 1940, error dism.). I{‘was stated that-the issuance of a*certificate.of election is a ministerial act. Because of the manner in which the question was raised in these cases; we~do not think they are nedessari~ly conclusive against ,the.authority of.the officer issuing the certificate to inquire into IneligIbilIty but they do suggest that he’has
no autho~rity to maejudicial determinations onquestions of ellgibili!y

. The samerule would be applicable to the ,placlng of names of ineligible candl- &;c;,on the ballot. ‘g. Att”y Gen. Op. o-2632 b

There is language, in co ch Hill’ 10 S.W. 2d 170 (Tex.Civ.Ano. 1928. error %.sm’l;. whiih. taken alone, would support the biew that the- bounty &lerk ,has the duty of determining from extraneous sources the legality of nominations certified to him. In that case, twogroups of citizens held county conventions, each group claimings to be.the regularly and legally organized county convention of the Republican Party. Oneof the conventions nominated candidates for county offices. ,Delegates of the rival convention were recognized by the state convention, which certified Its action to the county clerk. Thereupon, he refused to place the nominees of the other convention onthe hallot, and~the nominees brought an action for awrit of mandatory Injunction against him to compel the placing of their names onthe ballot. Th.e.Court of Civil Appeals, in upholding the trial court’s refusal of the writ, said:

“Here there :webetwo separate. county conventions, held onthe sameday for the s,amepurposes, each claiming to be and represent the RepubMcan Party in the county. In the very nature of the transaction, one of those conventions was regular, ,the other Irregular; one was the duly authorized, -Hon. Ft.C. Marshall, page 11 (V-1529)

.--

constituted, organized and functioning Pepublican county convention, the other
amere mass meeting without authority to represent or bind the Republican Party
or any of Its members. The acts of one were regular and effectual for the objeots and purposes of the meeting; the acts of the other were futile. The transaction const$tutsd adispute between two factions, eaah pur regular iiortlng to be and represent the

epublican organiaation in that county. It was acontroversy apparently wholly within the party. The two factions took their dispute to the highest party authority presented their respective contentions Co’that authority, produced evidence in support of their alaims, and invoked the judgment of that authority, which determined the controversy. Wehold that that determlnatlon was final and concluslve upon the parties to the contest, and that no court has any authority to go behind the decision of the state committee for the purpose of meddling with acontroz versy sowholly political in its nature.”

It was there being held that the court itself could not overturn apolitscal party’s sett&ement of an Internal party controversy. Theparty was the tribunal for deoldlng the cantroversy and the count
was under aduty to accept iCs deoision. Kclerk Tecourt also held that the petitioners were not entitled to the extraordinary relief sought by them unless they showed every fact necessary to entitle them to a place
on the ballot and that they had not met this burden.

These holdings were sufficient to dispose of the case. However, the court went further to say:

“$0 is it contended by appellants that the duty of the countt clerk to publish appellantsT names as he nomlnees of the Republican Party for the offices they

2/ Tt 14usually held {hat where the officer receives certificates of nomination from rival conventions, It Is his duty to determine in the first instance which convention represents the party. 20C.J.,ZL%- tions, 8156, note 91; 18 Am.Jur,, Elections, g137.Hon. R. C. Marshall,, page’~l2 (v-.1529), :

seek, and t,oprint those, .names on thenofficlal ballot, was.purely ministerial, in its .character; that the ~clerk is, clothed with nodiscretion in ~the,matter; and that, upon receipt, of Ferguson’ s.certificate, the duty was absolutely mandatory upon the clerk to publish appellants’ names and place them onthe official ballot. Weoverrule, this contention. The clerk! sduty is to publish the names in thencertificate, and print them onthe ballot, when those
names are of ‘candidates whohave received the necessary votes. to nominate’ them (article 3129) ,andwhen those names ‘have been lawfully certified to him’ (article 3132). The,official :ballot ~shall contain the names of those only ‘whose nominations for an e.lectlve office have been dul made, and properly certifl,edl (article’297 ) t; and ‘no name shall appear onthe official ballot except that of a,eandidate whowas actually nominated ***in accordance with the~provislons of this title’ (article 2978). In view .of~these provisions, and as apracticable matter besides it Is clear that the county clerk must noEbllndly publish and,prlnt onthe ballot every name certified to him as aparty nominee, but must proceed cautiously, satisfying himself as to the authority .ofthe person certifying; and, when he Is madeaware of facts
or circumstances which cast reasonable ,doubt upon the authority of the one certifying, or upon the regularity or legality. of.the nomi*
,, nation of t.he persons whose names are, certifled to him, it becomes his duty to ascertain the true facts before he,performs the important duty prescribed for him In such cases.ll

Weseriously doubt that the ‘court would have recognized any authority inthe county clerk to refuse to place the names onthe ballot if the state committee had not already acted. Furthermore, wedoubt that any such authority would have been recognized if the ,alleged illegality had involved other, unresolved disputed fact puestlons. The court did not,,say~ howthe county clerk should go about ascertaining’ ~thefacts or.what authority hewould’have for compelling.the production of -

-.Hon. R. C.Warshall, page 13 (V-1529)

evidence. What means does he have for arriving at the “true facts”? Where would the line be drawn between the $ssues he could resolveand the issues he could not resolve? Inview ofthe obvious obstacles to his exerclslng full authority to determine legality in all cases could the court have meant to t,o19;Ft he Is,to act in aquasi-judlclal capacity

Weare of the opinion that the case cannot be taken as holding more than this: ;Jhere the county clerk does refuse to print the name 

### ofacandidate on the ballot, acourt will not compel him to do sounless the candidate shows that hehas been legally nominated. The denial of relief results not from the clerk’s authority to exercise quasi-judicial powers ~;~a~om the lack of aremedy onthe part of the can-

. This was the effeat 

### ofthe holding: ‘inWesternd _~

. 111Tex. 29 227 &WI 178 (1921-.. T !!i!! %a%% in Atfly Gin, Op. O-2712 (19401that the officer receiving the appllaetlon of an independent candidate whohad participated In aprimary election has the ?discretion I1to decide whether hewill acaept the application actually means that hehas an anomalous arbitrar power arising from the lack of a remedy to prevent 3: ts exeraise rather than that he has been tnvested by law with adiscretion in the matter. Uponconsideration of the provisions In our statutes and the authorit$es wehave cited, it is our opinion that the county clerk does act in amlnlsterial capacity In rscelving certificates of nomination and in placing the namesof nominees onthe official ballot. Wethink the reasoning in State exrel. Plaa

* ,BUPEJ~,pointing out the officer 1slack of
means any instrumentalities for the exercise of judicial 

### orquasi-judicial power in passing onthe legality of nominations, is especially pertinent. However, we cannot agree that, under the Texas decisions, an officer whohas refused to act oncertif¶.catii’.,:s could not interpose defenses in support of his action in amandamus suit. Under the holdings in this State thataperson seeking the extraordinary remedy of mandamus or mandatory Injunction must showhimself clearly entitled to the relief it would appear that acandidate whohas not been legaily nominated could not maintain the action and that the facts dlsquallfylng him from maintaining the suit could be raised by the respondent. Westerman
v. Ml@&&QJ&J COUCylv. uib3,, g&g$.Hon. R. C. Marshall,. page ,I4 (Vyl529)

-.

The county clerk acts In aministerial capacity in receiving certificates of nomination and in placing names of nominees on the general ,election ballot. Where acertlficate is ,regular onits face, he does not have the duty or authority to determine questions of Irregularity or Illegality in the nomination which would depend upon an~ascertainment and determination of extraneous facts.

Yours very truly,

APPROVED:

E. Jacobson -PRICE DARIE& Attorney General .Reviewlng Assistant

Charles D.Mathews First Assistant

MKW:wb By ~?-f K M Mary K.Wall Assistant.

-.