Reynolds

Respondent, Raymond J. Reynolds, desiring to continue in office as a judge of the municipal court, paid a filing fee in the sum of $346.05 upon presenting his candidacy papers to the registrar of voters. The fee was paid by respondent without protest.

Thereafter, on May 31, 1974, the Supreme Court of California in Donovan v. Brown (1974) 11 Cal.3d 571 [ 115 Cal.Rptr. 41 , 524 P.2d 137 ], and later in Knoll v. Davidson (1974) 12 Cal.3d 335 [ 116 Cal.Rptr. 97 , 525 P.2d 1273 ], declared unconstitutional Elections Code sections 6551, 6552, 6553, 6554 and 6555, under which the filing fee had been required. On September 5, 1974, respondent claimed a refund of the filing fee; the claim was denied, and respondent sued in the small claims court. Respondent prevailed at trial; the city appealed to the superior court, and the appeal was later certified to this court.

*101 Appellant contends that because respondent made no protest when he paid the fee he should not be permitted to recover even though the statute* authorizing the fee was later declared unconstitutional. Conceding that he paid the fee without protest, respondent argues that he nevertheless paid under coercion, and…