*1 54
SEARCY COUNTY v. Howard STEPHENSON 5-4466 2dW.
Opinion February delivered
[Rehearing denied March 1968.] Attorney Joe Bon Purcell, General; Lcmaston and Ralph Atty. Brodie, G. Asst. Doshier, Generals and Bill Prosecuting appellant. Attorney, for appellee.
Donald Adams, for County, Searcy Justice. Chief Harris, Carleton appellant judg- appealed Arkansas, from herein, Searcy County holding ment Circuit (Ark. [Supp. 1965]) of 1965 un- Ann. Stat. granting judgment to Howard Ste- constitutional, phenson against $1,497.00. sum of said giving facts The rise to follows: Stephenson, appellee qualified an inde- herein, pendent for office of Sheriff Collector candidate Searcy County, election to for the Arkansas, as a candidate, 1966. November, be held *2 Stephenson paid in $1,500.00 accordance fee of pro- alia, which, inter the of Act 68 of as follows: vides any person an inde- file as shall who
“Hereafter, pendent by No. 352 of 1955 as candidate, authorized through (1947) [Ark. for elec- 3-840], Sec. Stats. Congressman, or for tion United Senator States county any shall in state state, office district, this ap- filing charged by pay a fee in the the same amount propriate political party in state officials of this the charging greatest filing for such fee nomination the for primary political party office the election of at such preceding general person at which the election a candidate.” highest filing primary at election in
The the fee County Searcy for and Collector the office Sheriff of by Republican and was was set the Central Committee, Appellee unsuccessful $1,500.00. in the amount December, filed his race for and in office, Searcy against County reimbursement a claim for the County Judge, sit- fee. of the The then County but the ting claim, allowed Court, as the being placed were lost without ever claim order judge subsequent county claim held that record. The allowing should and that order same valid, had been order the first In the meantime, be set aside. Searcy County appealed There, Court. Circuit to the appellee and un- void that Act 68 was here, contended against discriminatory in- it was because constitutional general $1,- dependent election, candidates party being required nominees while of him, 500.00 fee get names on their were allowed for office sum by of the general ballot election act unconstitutional held The Circuit of $3.00. reason further and for the reason, for that delegate Assembly attempt the General stituted parties political authority to quired re- to fix ballot fees public for in the candidates office Thereupon, judgment, election. its court entered holding Stephenson $1,- was entitled to recover 497.00. County Searcy
.
main
The
issue
owes
here is
have held on numerous
$1,497.00,
pass upon
ques-
occasions that we
constitutional
do not
doing
tions if the
can he
Louis,
so. In Honea v.
Bank
St.
Federal Land
Ark. 619, 61 S. W.
436, this court said:
2d
* * *
“
proper
respectful
It is both
more
to a
*3
and
department
ques
coordinate
to discuss constitutional
only
very
presented
tions
when that is the
Us mota. Thus
weight
determined,
and
the decision
a
with it to
carries
judicial
any
disquisition
which no extra
In
is entitled.
question
case therefore
a constitutional
raised,
where
though may
legitimately presented by
be
record,
the
yet,
presents
if the record
and clear
also
some other
ground upon
may
judgment,
which the court
rest
its
thereby
question
render
constitutional
the
immateri
adopted,
ques
al to the case, that course will be
and the
power
tion of constitutional
will
left for considera
be
disposed.,,of
tion until a case arises which cannot be
with
considering
consequently
out
and when
a
it,
decision
upon
question
will be unavoidable.
Such
been
practice
unvarying
this
of
court.
Martin v.
See also
79
State,
96
236,
372;
S. W.
Sturdivant
Tollett,
Ark.
v.
Imp.
84 Ark. 412,
1073; Road
Dist.
1 v.
S. W.
No.
Glover, 86 Ark. 231,
Here, of is liable passing upon validity can be determined of of and in 1965, accordance with the above cited by-pass question. cases, the constitutional by appellant, correctly It is and we find asserted proper steps Mr. so, that did take the a return of the insure whatever the fee, status question. if course, the statute of the act Of Assuming, prevail. stitutional, therefore, could not he purposes only, without decid- for ing, of this discussion hut he noted the act is it will that unconstitutional, complaint appellee hy after the elec- until was no raised that he held, tion been and it had been had only, losing he did then candidate. Then, was the legality question any the amount of about of raise paying record far this $1,500.00, fee. Before whether the stat- he no ascertain reflects, made effort to disputed that is not ute payment or invalid.1 It was valid voluntary. entirely appellee’s behalf is on that can be said The most payment under a mistake of made law. Thompson, Commissioner Revenues Continental 2d Inc., 222 108, So Ark. Lines, uthern W. court said: this voluntary payments “Appellee seeks to recover Cooley The Law done. of taxes. This cannot be gives ‘It is well rule: Taxation, Ch. voluntary pay that if the a a tax is settled except a ment, back, re it cannot be where recovered covery governing authorized voluntary *4 regardless payment is statute of whether 2561); (Vol. p. compulsory’ further: ‘Where or and at voluntary payments recoverable, it is immateri are not illegally or laid, has been al that the or assessment tax uncon laid was under which was even that the law principle com in the is an ancient one stitutional. The application. Every mam is is of law, mon voluntarily makes supposed law, know he to if compel¡him make, payment to law a which the would assign ignorance the law his he cannot afterwards legad why him with should reason the State a furnish * * it back.2 recover remedies to pay protest.” fact, “under did the amount he not even 1 In supplied. 2 Emphasis * *
“* governing The common law rule cases of following this kind is down in the cases: Lambron laid County Commissioners, v. Ed. 926; 97 U. 24 L. Dodge County Union R. v. R. Co. 97 U. S. Pacific lay 25 L. following 196. These down cases rule: Ed. with, party pays illegal a ‘Where an knowl demand, full edge illegal, all the render such demand which facts urgent an necessity immediate and therefor,3 (not avoid) person prop or unless to release his or to erty prevent detention, from or an to immediate seizure person property, payment of his must deemed voluntary and cannot he recovered back.” payment voluntary this case
While related ato principles the overall taxes, language. Applying set out in the italicized principles to the instant case, yet Mr. know law; due to he vol- untarily present a according his which, to compelled contention, law not have would him to make. ignor- he Still, made and he cannot it, now assert why money of the law a ance reason his should be applying language Thompson, returned. Further Commissioner Revenues Southern Continental supra, Stephenson paid illegal Inc., if an Lines, demand, certainly, knowledge time, he at that had full of all the charge i. facts, e., he knew that the himto Republican primary, based on the fee set and he certainly any alleged have aware il- should been as legality before the election—as it! after
Actually, it would seem that there less reason to paid office, fee to than refund taxes refund seek paid under act, an invalid for under last circum- endeavoring protect property stance, owner his from detention seizure.
Stephenson had remedies which he could have two making payment. followed before sought He could have *5 proper directing county a writ of mandamus, 3 Emphasis supplied. upon general place election bal- his name
official to acted $3.00, or he could have lot after (Repl. Ann. under of Ark. Stat. 1962), which states:
“Any person written will, interested a deed, under constituting writings or a contract, other contract legal rights, whose by status other relations are affected ¡or municipal fran contract, ordinance, a statute 4 may any question of construc have chise, arising validity statute, instrument, under the tion or obtain a declara ordinance, or franchise contract, legal rights, relations there tion of status or other ’’ under. Certainly, validity have of 1965 could Act paying fee. prior been determined to argument by ap- pertinent A rather is also pellant having been oo- fee, effect that mingled fund, other monies appropriation, and an cannot now refunded authority to argued no constitutional there is is that necessary appropriation. It make such disposed point, of un- since the discuss this previous contention. der the Reversed.
Byrd, J., concurs. concurring. I concur in the
Conley Justice, Byrd, I determine result but think we should reached, laws. issue since it involves our election stitutional (1955), Horn v. W. 2d Ark. 284 S. White, holding the election after Horn not contest could independent petition be an because he had not filed his days 241 of candidate within the allowed we said:
4 Emphasis supplied. *6 opin- Ordinarily an Question. “II. Election Law been, go need no further than ion Oonrt go further above but we now constrained stated; (that posed parties question is, because the gov- 1953 is the Act 241 of Act of 1953 or pro- interpretation erning law) certain relates to policy of this and it is the laws; in our election visions guidance questions for the future settle public.” of the 68 is.discrim- agree court that the trial
I inatory and unconstitutional.
Josephine BERGETZ REPKA et ux John 424 S. 2d 367 W.
Opinion February 12, delivered