Bullock v. Calvert

• Decision Date: 08 March 1972
• Docket Number: No. B--3245,B--3245
• Citation: Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972)
• Parties: Bob BULLOCK, Secretary of State et al., Relators, v. Robert S. CALVERT, Comptroller of Public Accounts, Respondent.
• Court: Texas Supreme Court

Page 367

480 S.W.2d 367

Bob BULLOCK, Secretary of State et al., Relators, v.Robert S. CALVERT, Comptroller of Public AccountsRespondent.

No. B--3245.

Supreme Court of Texas.

March 8, 1972.

Small, Herring, Craig & Werkenthin, C. C. Small, Jr., John F. Morehead, Austin, for relators.

Crawford Martin, Atty. Gen., Sam McDaniel, Asst. Atty., Gen., Austin, for respondent.

REAVLEY, Justice.

This original mandamus action seeks to compel payment out of state funds of an expense of a party primary election.It is brought by Bob Bullock, as Secretary of State, and by Bill Williams as Chairman of the Harris County Democratic Executive Committee.Williams also sues individually, as a member of the Democratic Party, as a qualified voter, and as a candidate in the Democratic Party primary for office of county chairman of the party in Harris County.

The object of the suit is to command the State Comptroller to draw warrants for the payment out of the state treasury of two vouchers totaling $157.16 for the purpose of meeting certain necessary expenses of the primary elections to be held by the Democratic Party in Harris County in May and June of this year.Under Art. 5, § 3 of the Texas Constitution, Vernon's Ann.St., and Art. 1735, Vernon's Anno.Tex.Civ.Stat., jurisdiction of the case lies in this court.The Secretary of State seeks to uphold the validity of his vouchers and of a contract with Williams; Williams seeks payment of money for primary election expenses incurred by his committee pursuant to the contract with the Secretary of State promising payment out of state funds.The mandamus may issue if there is a clear legal duty on the part of the Comptroller to issue these warrants.Texas Nat. Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627(1939).

The Texas Election Code, V.A.T.S. (Arts. 13.02, 13.45) provides that nomination of candidates must be made by primary election of any party whose nominee for governor received as many as 200,000 votes at the prior general election.The party whose nominee for governor received as much as 2% Of the total vote but less than 200,000 votes, may choose to nominate either by primary election or by convention.If its gubernatorial nominee received less than 2% Of the total vote, a party must nominate by convention.At the 1970 general election the nominees for governor of the Democratic and Republican Parties each received more than 200,000 votes.Therefore, in 1972, candidates of these two parties must be nominated by primary elections.

The Election Code provides that the expenses of a party primary election shall be collected from the candidates for nomination.(Art. 13.08 et seq.).However, this statutory provision has been successfully attacked as violative of the United States Constitution.A three judge federal court on December 21, 1970 declared the Texas filing fee scheme unconstitutional and enjoined its enforcement.Carter v. Dies, 321 F.Supp. 1358(N.D.Tex.).That judgment has been unanimously affirmed by the United States Supreme Court through its opinion delivered February 24, 1972 holding that the Texas primary election filing fee system contravenes the Equal Protection Clause of the Fourteenth Amendment.Bullock v. Carter, 404 U.S. 134, 92 S.Ct. 849, 30 L.Ed.2d 92.The Court did not reject reasonable filing fees, but held that the Texas statute(Art. 13.08 et seq.)'erected a system which utilizes the criterion of ability to pay as a condition to being on the ballot . . .'

This federal litigation and the holding of the three judge court was known to the Texas Legislature when it was in session in 1971.It enacted a 'temporary law' to allow persons unable to pay a filing fee to have their names placed on the ballot in primary elections by submitting petitions signed by a certain number of qualified voters.H.B. 5, 62d Leg., 1st called sess. (1971), ch. 11, p. 3443.The temporary law was to be in force during 1972 in the event the judgment of the three judge federal court was still in effect on the first day of 1972.The contingency was met and the question of the constitutionality of the 1971 act was then brought before the same three judge court.The new statute was held unconstitutional and its enforcement enjoined in Johnston v. Luna, 338 F.Supp. 355(N.D.Tex.)by judgment entered onJanuary 20, 1972.

Faced with the approaching primary elections, and with filing deadlines and election procedures at hand, the Secretary of State, Honorable Bob Bullock, moved to meet the emergency; he has established orders, rules and regulations for the conduct of the primary elections and for the payment of expenses by the use of state funds.Acting as the 'chief election officer' of the state(Election Code, Art. 1.03), he has determined that uniformity cannot be obtained in the holding and conducting of 1972 primary elections without the expenditure of state funds.

Relators presented voucher no. 324 to the Comptroller on February 25, 1972, seeking the issuance of a warrant in the amount of $7.81 for the payment of stationery to be used by the Harris County Democratic Committee.This voucher was returned by the Comptroller without approval for the reason that 'there is no appropriation available for the payment of this type of expense.'

Voucherno. 326 was presented to the Comptroller on February 29, 1972.It seeks the payment of $149.35 to the Harris County Democratic Executive Committee for printed material supplied under a contract between the Secretary of State and the committee.A copy of this contract is attached to the voucher.The contract is dated February 25, 1972 and by its terms the Secretary of State agrees to reimburse the committee for expenses incurred in conducting primary elections in Harris County and not paid by the committee from filing fees and donations received.The Comptroller requested the advice of the Attorney General, who replied to the effect that the voucher should be refused.Accordingly, the Comptroller advised the Secretary of State that it would not be approved for payment.

On each of these vouchers it is certified that the supplies are purchased by or for the Harris County Democratic Executive Committee for use in conducting the Democratic primary election.Relator Williams attaches an affidavit to the petition for mandamus saying that 'sufficient funds do not exist in Harris County for the conduct of the Democratic Primary Election in a uniform manner as required by the Texas Election Code.'

The refusal of the Comptroller to approve these vouchers is based upon the opinion of the Attorney General(No. M--1068) dated February 12, 1972 in which the Secretary of State and Comptroller were advised that payments could not be made through the office of Secretary of State for expenses of primary elections.Three reasons were given for that holding: (1) The expense of a primary election is not a public purpose and the Constitution therefore forbids that use of state funds under any circumstances; (2) No existing law authorizes the Secretary of State to use state funds for this purpose; (3) There is no appropriation of state funds to meet primary election expenses.Relators contend to the contrary, as they must; the disposition of this cause rests upon the resolution of these questions.

PUBLIC PURPOSE

Art. 8, § 3 of the Texas Constitution provides: 'Taxes shall be levied and collected by general laws and for public purposes only.'And under Art. 3, §§ 51and52 of the Constitution there may be no grant of public money for private individuals or associations.In 1916this Court held that the cost of party primary elections was not a public purpose and could not be financed out of public funds.Waples v. Marrast, 108 Tex. 5, 184 S.W. 180;Beene v. Waples, 108 Tex. 140, 187 S.W. 191.This holding was based upon the view that a political party was a purely private association and that its choice of political nominees was a procedure of its own which it was not the duty of the state to provide.

Whatever the circumstances of the party primaries in 1916 which may have justified their being regarded as purely private affairs, this cannot be said today.That contention is not advanced by the Attorney General or by any participant in this cause.It was argued to the United States Supreme Court in 1944 in Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110.The contention was that the Democratic Party constituted only a private and voluntary association which was entitled to limit its membership to voters of the white race.The contention was rejected on the ground that the primaries had become a part of the machinery for choosing officials, a unitary portion of the electoral process directed by state law, and that the determination of participants in the primary election must be regarded as state action.

For 66 years the Texas Legislature has regarded the primary election process as the most democratic procedure by which major party candidates can be nominated.It is not unusual for the contest for office to be resolved in the party primary and, in effect, the decision to be made there as to whom the public officer shall be.The party primary is an important part of the political process, as is attested by the many provisions in the Texas Election Code regulating it, and as is assumed by the holding and opinion of the United States Supreme Court in Bullock v. Carter, Supra.

If the court by the Waples opinions intended to limit the use of state funds to those functions of the state government itself whereby it directly performs an essential service for all members of the public, that limitation would be unreasonable and contrary to a number of the opinions of this court.

In Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699(1959), an urban renewal statute, under which property was purchased by condemnation and then resold to private individuals, was hold to be constitutional because it was for...