Untitled Texas Attorney General Opinion ( 1952 )

AUSTINILTEXAS
October 3, 1952
HOL R* c. Marshall opinion 100, V-l?9
County Attorney
Hutchlason County Rer Authority of the county
stinnett. , Texas clerk to refuse to place
on the general election
ballot, party candidates
selected at a county
,convention which was re-
cessed from time to time
for a month after the
Dear Sir: meeting date,
Your request for an opinion of this offlae
Is In substance as follows:
“On September 10 1952, the county
clerk received from the aounty chairman
of the Republican Party a certificate
dated September 8, 1952 nominating
county and precinct can a idates at a meet-
ing certified as held on August 2, 1952.
However the meeting of August 2 was rem
cessed irom time to t>me until September
5, on which date nominations were actual-
ly made.
“May the county clerk legally refuse
to order these nominations printed on the
general eleotI,on ballot?”
The nomination of candidates by the Republi-
can Party for places on the 1952 general election bal-
lot 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, 8 00 and 200 COO votes for Governor at the
preceding general eleo .c ion. Section 224 reads:
“Mominatlons for district offices
made by such parties shall be made by
conventions held on the second Tuesday of
August of the election year composed of
delegates elected thereto a$ county
Hon. R. C,. Marshall, page 2 (V-1529) -
conventions held on the same day herein
prescribed for such county conventions
of other parties all of which county con-
ventions shall nominate candidates for
county offices of such party.”
By reference to Section 212 of the Election
Code which provides for the holding of county con-
vent I ons “on the first Saturday after primary election
day of 1952 and each two years thereafter PI August 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 elec-
tion.
Section 225 0r the Election code provides:
~9U.l nominations so made by 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 a nomination made by a county
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 Sec-
tion 210 Election Code, but there is no clear author-
ity for $ixing an earlier deadline for the filing of
certificates of county and precinct nominations. Se c-
tion 227 of the Election Code permits the filing of
applications of independe,nt candidates up to 30 days
after the second primary election. Since the certifi-
cate was filed before that date, we are of the opinion
that there was a timely filing in the present case.
Indeed, we do not understand that you have raised any
question of the validity of the certificate on the
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 nomi-
nations at a meeting which had been recessed to a date
later than August 2.
The certificate filed with the county clerk
recites that the convention was held on August 2. You
do not 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 re-
cessed sessions and the date on which 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 may resort to extraneous sources to
determine whether the certified nominations have been
lawfully made for the purpose of deciding whether
the names of t he certified candidates should be placed
on the general election ballot.
Section 57 of the Election Code provides in
part as r0ims:
” l . No name shall
l appear on the
official ballot except that of a candidate
who was actually nominated (either as a
party nominee or as a nonpartisan or inde-
pendent candidate) in accordance with the
provisions of this Code. . . .‘I
In Pulli m v. Trawalter 120 S.W.2d 108 (Tex.
Civ.~pp. 1938) thz court held thit where a political
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 be placed on the ballot. In that
case an opposing candidate filed a suit to restrain the
placing of the name of the Republican nominee on the
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 no 4 made in compliance with
Section 224 the nominees do not have the right to have
their names placed on the ballot. Rut does the county
clerk have the authority to decide an issue of illegal-
ity or irregularity in the nominations which is not
raised on the 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 offi-
cials with whom certificates of nomination are filed
should have the authority to enforce this prohibition
beoause the time between the date on which the certifi-
cate was filed and the date for making up the ballot
Hon. R. C. Marshall, page 4 (V-l$Z9) -
might be so short that a court 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 of passing on the
legality of the nomination, certainly there should
exist a right 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 a statute expressly conferring greater authority
the acts of elections officials in receiving certifl-
cates of nomination and in making up the ballot are
purely ministerial. The extent of their authority
is summarized in 29 C.J.S., Elections, S 147, as fol-
lows:
“Usually the officers or boards with
whom declarations of candidacy, nomination
certificates, petitions or other nomina-
tion papers are require A to be riled 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 au-
thority to exercise judicial functions and
decide controversies in regard to the regu-
larity of the nomination nor determine
other objections which go beyond the prima
facie validity of the nomination papers,
such as questions as to the qualifications
of the signers of petitions or certificates,
or the eligibility or qualification of can-
didates although as part of its ministe-
rial du$y a board may examine the registra-
tion records to determine whether the sign-
ers are registered. under some statutes the
filing official or other specified officials
or boards are vested with certain judicial
functions and accordingly they may determine
on extrinsic evidence objections to nomina-
tions 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 may be determined.
. . . II
Hon. R. C. Marshall, page 5 (V-1529)
In 29: C.J.S., Elections, g 156, it is stated:
u . . . In some jurisdictions a’ statu-
tory duty is imposed upon officers with whom
certificates 0r nomination are filed to cer-
tify 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 a refusal
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 a certificate of nomination,
valid on its face when filed with the proper
officer is prima facie evidence of the facts
which it recites,stated supra 3 135, and since
statutory provisiol,s as to the preparation and
distribution of the ballots must be strictly
followed, as pointed out supra B 155, and the
officer whose duty it is to prepare and have
printed the official ballot acts In a purely
ministerial~ capacity stated supra 0 155, he
must place on the ba I lot ali names regularly
certified to him as having been nominated, un-
less the refusal to do so is in obedience to
a judgment of a court in a contest proceeding
by a candidate opposing the person shown to
have been nominated on the face of the returns,
changing the result or declaring the certifi-
cate, if issued, void, or nullifying the nomi-
nation; but the officer must not proceed
blindly but should satisfy himself as to the
authority of the person certifying the nomina-
tion and the regularity or legality of the
nominations. . . .“l
In State ex rel. Plain V. Falle 8 N.D. 90
76 M.W. 996 (1898) the secretary of statz’had refuse A
to certify to the bounty authorities for printing on
the official ballot the names of candidates which had
1/ The authority cited for the last quoted state-
ment is Couch v. Hill, 10 S.W.2d 170 (Tex. Civ.App. 1928,
error aism. 1’. This case is discussed at page 10, infra.
Hon. R. C+ Marshall, page 6 (V-1529)
been certified to him as nominees selected at a party
convention. Among other things the secretary of
state contended that the conven 4 ion had not been legal-
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, say-
ing :
“Relators contend that . . . the duties
of the secretary of state, in certifying
nominations to county auditors, are ministe-
rial purely; and that, If the certificates
filed with him are fair on their face, he is
without authority to look beyond or outside
of the certificates. In this we think rela-
tors are clearly right and a few observa-
tions touching the statutes and their con-
struction will disclose our reasons for thus
holding. We remark first, that, If the
secretary be clothe& with judicial functions
to pass upon the legality of all nominations
the certificates of which are filed with him,
his determinations would be final, as cer-
tainly no provisions for appeal or review can
be found in the statute, and the decisions of
a special tribunal charged with the duty of
deciding a special 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 of the state may often
turn upon his decision. The power is great,
and its exercise by an officer 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 no uncertain terms. And
yet confessedly there is no express judicial
authority conferred upon the secretary by the
statute. At most it is an implied authority,
and, if implied, ihe means and instrumental-
ities for its proper exercise are entirely
wanting. He can conduct no formal judicial
inquiry. He cannot coerce the production of
persons or papers. He cannot enforce testl-
mony under the sanction of an oath. His most
earnest effort would with equal facility eluci- -
date or! suppress the truth. To imply authority
Hon. R. C. Marshall, page 7 (V-1529)
under such conditions, the implication
must be practically Impossible of evasion.
But so far is our statute from giving such
implied authority that, in our view, it ex-
pressly withholds such authority. . . .@
The court held that the secretary of state could be en-
joined from certifying the nominations if they had not
been legally made, but went on to say:
” . . Rut if no such restraining
order be se&ed 14 is the duty of the sec-
retary to certiiy all nominations proper
certificates of which have been filed in
his office. The law does not allow him to
concern himself whether such nominations
were or were not properly made, and when he,
of his own volition, refuses to certify such
nominations, and parties in interest bring
proceedings to enforce the performance of
such duty it is no answer upon his part to
say that hacts exist which would have en-
abled the proper party, at the proper time
and in the proper manner, to procure an or-
der restraining him from certifying such
nominations. No such order having been in
faot obtained, the existence of the facts
did not release his duty.”
In State ex rel. C oo , Rlaisdell 17 N.D.
575, 118 N.W. 225 (1908) thz siievcourt held Chat the
secretary of state could’not refuse to certify the
names of candidates who had been nominated by a certi-
ficate of nomination signed by individual voters which
was regular on its face on the ground that some of 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 a right
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 ex rel. Rannev v. Corey 47 N.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 on the ballot. The
court found that the candidate was ineligible and
Hon. R. C. Marshall, page 8 (V-1529) -
granted the relief, but said:
“No power is vested in the board of
elections of a county, nor in the secretary
of state,, to determine whether a person who
files a declaration of candidacy for a pri-
mary election possesses the necessary qual-
ifications of a candidate for such office,
Se;, State ex rel. Hehr v. Beery et al.,
.,, 55 Ohio Appe 243, 9 N.E.2d 699.
“And it is the duty of election offl-
cials to place the names of those whose
petitions are in the prescribed form, prop-
erly attested and filed In accordance with
the provisions of the statutes, upon a bal-
lots to be used for voting at the primary
election, unless prohibited by order of a
court of competent jurisdiction.”
State ex rel. Van Winkle v. Boser, 127 Ore.
91. 271 Paa. 46 (1928). Involved the leealitv of noml-
nations made by a nominating convention. The court
denied the nominees a place on the ballot on the 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 nomlna-
tions, saying:
” 0 0 0 The secretary of state had no
authority to go behind the certificate. It
was his duty to file the certificate and
certify the ballot as he did. The secretary
of state is a ministerial officer, and his
authority is limited by the prima facie evl-
dence afforded by the certificate.”
The applicability of the general statements
quoted from Corpus Juris Secundum and of the authori-
ties we have cited depends, of course, upon whether the
statutes of this State do or do not confer upon the
county clerk an authority in excess of determiningðer
the certificate Is regular on Its 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 (v-1529)
“Each county clerk shall post In a.
conspicuous plaoe in his offlee, for the
lnspeetion of the public the names of all
oandldates that have been lawfully certl-
f$.ed to him to be printed on the official
ballot, for at least ten (10) days before
he orders the same to 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 been&&&J& certified
and shall, order the nameg printed on the
ballot, and the provision , quoted ear-
ljer 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 on this officer the power or im-
postng on him the duty to go behind the certificate
_- and ascertain facts which might render it unlawful.
We might observe here that we do not think the author-
ity of the county clerk in determinlng the sufficiency
of certificates for placing names on the ballot is any
greater than the authority of the Seoretary of State
in determining whether nominations filed with him
should be certified to the county clerks,
An analogous situation arises under the provi-
sions of Section 6 of the Election Code, which reads:
l’Nelther the Secretary of State nor
any county judge of this State
other authority authorized to Is% ~%A-
ficates, shall issue any certificates of
election or appointment to any person
elected or appointed to any office in this
State, who Is 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 Consti-
tution and laws of this State shall be cer-
tified by any party committee, or any au-
thority authorized 40 have 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 ma e judicial determinations on ques-
tions of ellgibili!y . The same rule would be appli-
cable 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, two groups of citizens held county conventions,
each group claimings to be.the regularly and legally
organized county convention of the Republican Party.
One of the conventions nominated candidates for county
offices. ,Delegates of the rival convention were recog-
nized by the state convention, which certified Its ac-
tion to the county clerk. Thereupon, he refused to
place the nominees of the other convention on the hal-
lot, and ~the nominees brought an action for a writ of
mandatory Injunction against him to compel the placing
of their names on the ballot. Th.e. Court of Civil Ap-
peals, in upholding the trial court’s refusal of the
writ, said:
“Here there :webe two separate. county
conventions, held on the same day for the
s,ame purposes, each claiming to be and rep-
resent 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
a mere 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 a dispute between two factions,
eaah pur ortlng to be and represent the
regular ii epublican organiaation in that
county. It was a controversy apparently
wholly within the party. The two factions
took their dispute to the highest party
authority presented their respective con-
tentions Co’that authority, produced evi-
dence in support of their alaims, and in-
voked the judgment of that authority,
which determined the controversy. We hold
that that determlnatlon was final and con-
cluslve 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 a controz
versy so wholly political in its nature.”
It was there being held that the court itself could
not overturn a politscal party’s sett&ement of an In-
ternal party controversy. The party was the tribunal
for deoldlng the cantroversy and the count clerk
was under a duty to accept iCs deoision. TKe court
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 count clerk to pub-
lish appellantsT names as t he nomlnees of
the Republican Party for the offices they
2/ Tt 14 usually held {hat where the officer re-
ceives certificates of nomination from rival conven-
tions, It Is his duty to determine in the first instance
which convention represents the party. 20 C.J.,ZL%-
tions, 8 156, note 91; 18 Am. Jur,, Elections, g 137.
Hon. R. C. Marshall,, page’~l2 (v-.1529), :
seek, and t,o print those, .names on then of-
ficlal ballot, was. purely ministerial, in
its .character; that the ~clerk is, clothed
with no discretion 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 on the official ballot. We over-
rule, this contention. The clerk! s duty
is to publish the names in then certificate,
and print them on the ballot, when those
names are of ‘candidates who have received
the necessary votes. to nominate’ them (ar-
ticle 3129) ,and when 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 on the official
ballot except that of a,eandidate who was
actually nominated * * * in accordance
with the~provislons of this title’ (arti- -
cle 2978). In view .of ~these provisions,
and as a practicable matter besides it Is
clear that the county clerk must no E bllnd-
ly publish and,prlnt on the ballot every
name certified to him as a party nominee,
but must proceed cautiously, satisfying him-
self as to the authority .of the person cer-
tifying; and, when he Is made aware 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, certi-
fled to him, it becomes his duty to ascer-
tain the true facts before he, performs the
important duty prescribed for him In such
cases.ll
We seriously doubt that the ‘court would have
recognized any authority inthe county clerk to refuse
to place the names on the ballot if the state committee
had not already acted. Furthermore, we doubt that any
such authority would have been recognized if the ,al-
leged illegality had involved other, unresolved disputed
fact puestlons. The court did not,,say~ how the county
clerk should go about ascertaining’ ~the facts or. what au-
-.
thority he would’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 $ssues he could resolve and the issues
he could not resolve? In view of the obvious ob-
stacles to his exerclslng full authority to determine
legality in all cases could the court have meant to
t,o19;Ft he Is, to act in a quasi-judlclal capacity
We are of the opinion that the case cannot
be taken as holding more than this: ;Jhere the county
clerk does refuse to print the name of a candidate on
the ballot, a court will not compel him to do so un-
less the candidate shows that he has been legally nom-
inated. The denial of relief results not from the
clerk’s authority to exercise quasi-judicial powers
~;~a~om the lack of a remedy on the part of the can-
_~
. This was the effeat of the holding: ‘in Wester-
. 111 Tex. 29 227 &WI 178 (1921-.. T nd
!!i!! %a%% in Atfly Gin, Op. O-2712 (1940 1 that
the officer receiving the appllaetlon of an independ-
ent candidate who had participated In a primary elec-
tion has the ?discretion I1 to decide whether he will
acaept the application actually means that he has an
anomalous arbitrar power arising from the lack of a
remedy to prevent 3:ts exeraise rather than that he
has been tnvested by law with a discretion in the mat-
ter.
Upon consideration of the provisions In our
statutes and the authorit$es we have cited, it is our
opinion that the county clerk does act in a mlnlste-
rial capacity In rscelving certificates of nomination
and in placing the names of nominees on the official
ballot. We think the reasoning in State ex rel. Plaa
, BUPEJ~, pointing out the officer 1s lack of
means
* any instrumentalities for the exercise of judi-
cial or quasi-judicial power in passing on the legality
of nominations, is especially pertinent. However, we
cannot agree that, under the Texas decisions, an officer
who has refused to act on certif¶.catii’.,:s could not in-
terpose defenses in support of his action in a manda-
mus suit. Under the holdings in this State that a per-
son seeking the extraordinary remedy of mandamus or
mandatory Injunction must show himself clearly entitled
to the relief it would appear that a candidate who has
not been lega i ly 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 a ministerial
capacity in receiving certificates of nomi-
nation and in placing names of nominees on
the general ,election ballot. Where a certlf-
icate is ,regular on its face, he does not
have the duty or authority to determine ques-
tions of Irregularity or Illegality in the
nomination which would depend upon an ~ascer-
tainment and determination of extraneous
facts.
Yours very truly,
APPROVED: -PRICE DARIE&
Attorney General
E. Jacobson
.Reviewlng Assistant
Charles D. Mathews By ~?-f K M
First Assistant Mary K. Wall
Assistant.
MKW:wb
-.