Waples v. Marrast

• Decision Date: 22 March 1916
• Docket Number: (No. 2826.)
• Parties: WAPLES et al. v. MARRAST.
• Court: Texas Supreme Court

184 S.W. 180

WAPLES et al. v. MARRAST.

(No. 2826.)

Supreme Court of Texas.

March 22, 1916.

Certified Questions from Court of Civil Appeals, First Supreme Judicial District.

Petition for mandamus by E. K. Marrast against Paul Waples and others, composing the Democratic State Executive Committee. The writ was awarded, and respondents appealed. On certification of questions from the Court of Civil Appeals.

James B. Stubbs, of Galveston, Cecil H. Smith, of Sherman, and Walter Collins, of Hillsboro, for appellants. John W. Campbell, Chas. H. Theobald, Co. Atty., and Walter Cranford, and Marion J. Levy, Asst. Co. Attys., all of Galveston, for appellee.

PHILLIPS, C. J.

The case involves the constitutionality of what is familiarly known as the Presidential Primary Act of the Thirty-third Legislature, Chapter 46, General Laws of 1913. The terms of the act require the holding of precinct primary elections in the counties of the State on the fourth Tuesday in May in presidential election years by the respective political parties of the State polling as many as 50,000 votes for their respective candidates for Governor at the last preceding general election, — obedience to it being optional with parties so polling a less number of votes, — for the expression by their qualified electors of their preference of candidates for the party nomination to the offices of President and Vice President of the United States and presidential electors, and likewise their choice of party candidates for the places of delegates to the National conventions of such parties.

The expense of such primary election of a party whose candidate for Governor at the last preceding general election received as many as 50,000 votes, it is provided by the act, shall be paid out of the county treasury of each county, no provision being made for the expense of the primary election of other parties, if held under the act.

It is further provided that the votes cast at the election shall be counted, canvassed and returned as required by the general primary law of the State in relation to party nominations for the offices of Governor and Meutenant Governor.

In respect to the number of presidential electors to be nominated in the primary election, the act is deficient. It provides only for the nomination of one elector from each congressional district, whereas the State is required to elect at the general election a number equal to its whole number of Senators and Representatives in Congress.

Under the agreed facts of the case, the operation of the act at the present time is to require only the Democratic party to hold the primary election provided for, since it is, at present, the only party in the State whose candidate for Governor at the last general election received as many as 50,000 votes. It is furthermore agreed that the cost of such a primary election as the act requires, will be not less than $300,000, and will probably exceed that amount.

The requirement of the general primary law in respect to the time for the canvassing by the state executive committee of the votes cast for candidates for party nominations for Governor and Lieutenant Governor, is that it shall be at a meeting held on the second Tuesday in August of the election year. The Democratic National Convention, it appears from the statement of the agreed facts, has been appointed to meet on June 14, 1916. If the primary election should be held and the act literally observed, the votes cast for delegates could not be canvassed in time for that convention.

The suit was a mandamus proceeding by E. K. Marrast to require the appellants, who compose the Democratic State Executive Committee, to hold the primary election contemplated by the act. In the trial court the writ of mandamus was awarded, the learned trial judge in an able written opinion holding the act valid against the attack made upon it by the respondents. An appeal was prosecuted to the honorable Court of Civil Appeals, which has certified to us the fol-following questions:

1. Is the Act, approved March 27, 1913, Art. 3175a Vernon's Sayles' Texas Civil Statutes, void upon the ground that it is in conflict with one or more of the provisions of the Constitution of this State or of the Union as is claimed by appellants?

2. If not void, has the State Democratic Executive Committee authority to disregard its requirements in so far as they are impracticable and to supply such regulations as they may deem proper and necessary?

We shall consider only the question of the constitutionality of the act. That it is impracticable, unworkable if literally observed, and is deficient because of the omission to provide for the nomination of the legal number of presidential electors, are not matters which, if true, affect the power of the Legislature to enact the law.

The authority of the Legislature to require the holding of a primary election by the political parties of the State for the purpose of enabling their members to vote their choice for party nominees for elective offices, whether State or National, and likewise express their preference in the selection of party delegates to party conventions, is undoubted. The legislative right in such an enactment to make, according to their numerical strength, a reasonable classification in respect to the political parties subject to the law, is equally clear. The act is not invalid under the classification adopted because it applies at the present time to only the Democratic party. It is not to be regarded as having been enacted for only the present day. It was within the province of the Legislature to determine whether the numerically weaker parties should be relieved from its compulsory observance; and, if so, to provide a classification according to the voting strength of the parties. The selection of a voting strength of 50,000 votes as the test does not create an unreasonable classification, and the act is not, upon this account, to be overturned.

The only serious constitutional question involved by the act is its requirement that the expense of the primary election shall be borne out of the public treasury of the counties. This presents, nakedly, the question, whether it is within the power of the Legislature to devote the public revenues of the State to the payment of the primary election expenses of political parties. The general primary law relating to the nomination of party candidates for state, district and county offices imposes such expense upon the candidates. Article 3104, Rev. St. 1911. In the legislative history 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:

"Taxes shall be levied and collected by general laws and for public purposes only."

By section 52, Article 3 it is provided:

"The Legislature shall have no power to authorize any county, city, town or other political corporation * * * of the State, to lend its credit or to grant public money * * * in aid of, or to, any individual, association or corporation whatsoever," etc.

The funds possessed by the counties of the State and available for the payment of the expense of the primary election provided for by this act, are only those which are derived by taxation. If the payment of such expense is, within the meaning of the Constitution, "a public purpose," the act is valid in its provision that it shall be borne out of the public treasury of the counties; otherwise it is not.

Taxes are burdens imposed for the support of the government. They are laid as a means of providing public revenues for public purposes. The sovereign power of the State may be exercised in their levy and collection only upon the condition that they shall be devoted to such purposes; and no lawful tax can be laid for a different purpose. Whenever they are imposed for private purposes, as was said in Brodhead v. Milwaukee, 19 Wis. 670, 88 Am. Dec. 711, it ceases to be taxation and becomes plunder.

It is not easy to state in exact terms what is "a public purpose" in the sense in which that term is employed as a limitation upon the State's power of taxation. The framers of the Constitution were doubtless sensible of this difficulty, for they did not attempt to define it. Many objects may be public in the general sense that their attainment will confer a public benefit or promote the public convenience, but not be public in the sense that the taxing power of the State may be used to...