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 determining&ether
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




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