Untitled Texas Attorney General Opinion ( 1948 )

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 Va. 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
APPROVED:
ATTORRE!Z
GERERAL