Searcy County v. Stephenson

• Decision Date: 12 February 1968
• Docket Number: No. 5--4466,5--4466
• Citation: 424 S.W.2d 369,244 Ark. 54
• Parties: COUNTY OF SEARCY, Arkansas, Appellant, v. Howard STEPHENSON, Appellee.
• Court: Arkansas Supreme Court

Page 369

424 S.W.2d 369

244 Ark. 54

COUNTY OF SEARCY, Arkansas, Appellant, v. Howard STEPHENSON, Appellee.

No. 5--4466.

Supreme Court of Arkansas.

Feb. 12, 1968.

Rehearing Denied March 18, 1968.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellant.

Donald J. Adams, Yellville, for appellee.

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:

'Hereafter, any person who shall file as an independent candidate, as authorized by Act No. 352 of 1955 (Ark.Stats. (1947) Sec. 3--836 through 3--840), for election as United States Senator or Congressman, or for any state, district, or county office in this state shall pay a filing fee in the same amount charged by the appropriate officials of the political party in this state charging the greatest filing fee for nomination for such office at the primary election of such political party preceding the general election at which such person is a candidate.'

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 and 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.

The main issue here is whether Searcy County owes Stephenson $1,497.00, and we have held on numerous occasions that we do not pass upon constitutional questions if the litigation can be determined without doing so. In Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S.W.2d 436, this court said:

"* * * It is both proper and more respectful to a coordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra judicial disquisition is entitled. In any case therefore where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such question will be unavoidable.' Such has been the unvarying practice of this court. See, also, Martin v. State, 79 Ark. 236, 96 S.W. 372; Sturdivant v. Tollett, 84 Ark. 412, 105 S.W. 1037; Road Imp. Dist. No. 1 v. Glover, 86 Ark. 231, 110 S.W. 1031.'

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. ¹ It is not disputed that the payment of $1,500.00 was entirely voluntary.

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:

'Appellee seeks to recover voluntary payments made of taxes. This can not be done. Cooley in 'The Law of Taxation', Ch. 20 § 1282, gives this rule: 'It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions...