HARRIS, Chief Justice.
Searcy County, Arkansas, appellant herein, has appealed from a judgment of the Circuit Court of Searcy County holding Act 68 of 1965 (Ark.Stat.Ann. § 3-841 [Supp. 1965]) unconstitutional, and granting judgment to Howard Stephenson against said county in the sum of $1,497.00. The facts giving rise to the litigation are as follows:
Stephenson, appellee herein, qualified as an independent candidate for the office of Sheriff and Collector of Searcy County, Arkansas, for the general election to be held in November, 1966. In filing as a candidate, Stephenson paid a fee of $1,500.00 in accordance with the provisions of Act 68 of 1965, which, inter alia, provides as follows:
The highest filing fee at the primary election in Searcy County for the office of Sheriff and Collector was set by the Republican Central Committee, and was in the amount of $1,500.00. Appellee was unsuccessful in his race for this office, and in December, 1966, filed a claim against the County of Searcy for reimbursement of the $1,500.00 filing fee. The then County Judge, sitting as the County Court, allowed the claim, but the claim and order were lost without ever being placed of record. The subsequent county judge held that the claim was not valid, and that the order allowing same should be set aside. In the meantime, the first order had been appealed to the Searcy County Circuit Court. There, as here, appellee contended that Act 68 was void and unconstitutional because it was discriminatory against independent candidates in the general election, the $1,500.00 fee being required of him, while party nominees for county office were allowed to get their names on the general election ballot by the payment of the sum of $3.00. The Circuit Court held the act unconstitutional for that reason, and for the further reason that it constituted an attempt by the General Assembly to delegate to political parties the authority to fix ballot fees required of candidates for public office in the general election. Thereupon, the court entered its judgment, holding that Stephenson was entitled to recover $1,497.00.
Here, the question of whether the county is liable can be determined without passing upon the validity of Act 68 of 1965, and in accordance with the above cited cases, we by-pass the constitutional question.
It is asserted by appellant, and we find correctly so, that Mr. Stephenson did not take the proper steps to insure a return of the filing fee, whatever the status of the act in question. Of course, if the statute be constitutional, he could not prevail. Assuming, therefore, for purposes of this discussion only, but without deciding, that the act is unconstitutional, it will be noted that no complaint was raised by appellee until after the election had been held, and it had been determined that he was the losing candidate. Then, and then only, did he raise any question about the legality of the amount of the fee. Before paying the $1,500.00, as far as this record reflects, he made no effort to ascertain whether the statute was valid or invalid.
The most that can be said on appellee's behalf is that the payment was made under a mistake of law. In Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375, this court said:
While this case related to a voluntary payment of taxes, the overall principles are set out in the italicized language. Applying the principles to the instant case, Mr. Stephenson was due to know the law; yet he voluntarily made a payment which, according to his present contention, the law would not have compelled him to make. Still, he made it, and he cannot now assert ignorance of the law as a reason why his money should be returned. Further applying the language in Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., supra, if Stephenson paid an illegal demand, he certainly, at that time, had full knowledge of all the facts, i. e., he knew that the $1,500.00 charge to him was based on the fee set in the Republican primary, and he certainly should have been as aware of any alleged illegality before the election—as after it!
Actually, it would seem that there is less reason to refund a fee paid to seek office, than to refund taxes paid under an invalid act, for under the last circumstance, an owner is endeavoring to protect his property from detention or seizure.
Stephenson had two remedies which he could have followed before making the payment. He could have sought a writ of mandamus, directing the proper county official to place his name upon the general election ballot after the payment of $3.00, or he could have acted under the provisions of Ark.Stat.Ann. § 34-2502 (Repl.1962), which states:
Certainly, the validity of Act 68 of 1965 could have been determined prior to paying the fee.
A rather pertinent argument is also made by appellant to the effect that the filing fee, having been co-mingled with other county monies in the general fund, cannot now be refunded without an appropriation, and it is argued that there is no constitutional authority to make such an appropriation. It is not necessary that we discuss this point, since the litigation is disposed of under the previous contention.
I concur in the result reached, but I think we should determine the constitutional issue since it involves our election laws. In Horn v. White, 225 Ark. 540, 284 S.W.2d 122 (1955), after holding that Horn could not contest the election because he had not filed his petition to be an independent candidate within the 45 days allowed by Act 241 of 1953, we said:
I agree with the trial court that Act 68 is discriminatory and unconstitutional.