This is a civil rights suit brought under 42 U.S.C. § 1983 with jurisdiction asserted under 28 U.S.C. § 1343(3). The plaintiffs were candidates for various offices in the June 6, 1972, New Mexico primary election. They paid the filing fees imposed by N.M.Stats. Ann., 1953, § 3-8-26. The fees were paid under protest to the Secretary of State and have been held in a suspense account. No personal relief is sought against the defendant Secretary of State. The district court held for the defendant. We reverse.
The complaint asserts a claim under § 1983 because the plaintiffs allege that under the color of a state statute they have been deprived of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court has held that “a denial by a state court of a recovery of taxes exacted in violation of the laws or Constitution of the United States by compulsion is itself in contravention of the Fourteenth Amendment.” Carpenter v. Shaw, 280 U.S. 363, 369, 50 S.Ct. 121, 123, *90174 L.Ed. 478; see also Ward v. Love, 253 U.S. 17, 24, 40 S.Ct. 419, 64 L.Ed. 751. The principle is applicable to fees paid under the compulsion of an unconstitutional state statute.
The claim of the defendant that the action is one against the state and barred by the Eleventh Amendment is unavailing. The filing fees did not go to the state. Section 3-8-28 provides that one-half of the funds go into “a candidates’ suspense fund for the purpose of paying refunds.” The other half goes to the county treasurer of the appropriate county for placing “in the primary election fund of the county.” The state has not received, and will never receive, the money. The fact that the county gets part of the money is immaterial because a county is not within the proscription of the Eleventh Amendment. Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766.
The defense claim that recovery cannot be permitted because of the good faith of the Secretary of State is without merit. There is no assertion that the Secretary of State is liable individually. The amounts paid by the plaintiffs are admittedly held in a suspense account. The instant action seeks to compel restitution.
Section 3-8-26 required candidates for nominations in primary elections to pay filing fees amounting to 6% of the first year’s salary for some offices and a stated sum for certain offices. The constitutionality of § 3-8-26 was attacked in Dillon v. Fiorina, D.N.Mex., 340 F.Supp. 729, by a candidate for nomination to the office of United States Senator. On March 24, 1972, a three-judge federal district court held that the fee was indistinguishable from the fees struck down in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92, and declared that the statute “is unconstitutional as it applies to the office of United States Senator,” 340 F.Supp. at 730. Thereafter, candidates for nomination to other offices in the same primary brought an original mandamus proceeding in the New Mexico Supreme Court to require the Secretary of State to certify only the names of persons who paid their statutory fees. On April 18, 1972, the state court held that the New Mexico filing fee statute did not involve the “element of arbitrary or capricious discrimination against or among candidates, as was the case in Bullock.” Norvell v. Apodaca, 83 N.M. 663, 495 P.2d 1379,1384. The court also said that the fees are “by no means unreasonable.” Ibid. The court said that it was not bound by the decision of the federal district court in Dillon, but did not disturb the Dillon holding that candidates for the office of United States Senator did not have to pay the filing fee. The Norvell case then went to the United States Supreme Court for review.
On April 12,1972, the plaintiffs as candidates for nominations to offices other than United States Senator brought action in the federal district court. The three-judge panel denied injunctive relief on the ground that it would be disruptive of the state electoral process in the soon to be held primary election.
The Supreme Court vacated the judgment of the New Mexico Supreme Court and remanded the case for further consideration in light of Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702. See Norvell v. Apodaca, 416 U.S. 918, 94 S.Ct. 1915, 40 L.Ed.2d 276. On remand the New Mexico Supreme Court noted that the filing fee statute had been repealed, see N.Mex. Laws 1973, ch. 228, § 11, and dismissed the case as moot.
To sustain the statute the defendant asserts that the fees are reasonable and that the plaintiffs are not members of an adversely affected class because they were financially able to pay, and did pay, the statutory fees. She distinguishes Bullock v. Carter and Lubin v. Panish on the ground that the complainants in those cases were indigent. Reliance is also had on Cassidy v. Willis, Del., 323 A.2d 598, affirmed 419 U.S. 1042, 95 S.Ct. 613, 42 L.Ed.2d 636, a case where non-indigent candidates attacked the state imposed filing fees. The facts in Cassidy are different from those in the case at bar in that there all the candidates were required to pay the fees and in the instant *902case the candidates for the United States Senate were excluded by court order.
We have no reason to explore the reasonableness of the New Mexico statute or to decide whether the statute may be attacked by those able to pay the fees. The three-judge federal district court found the statute unconstitutional as applied to candidates for the office of United States Senator and enjoined its enforcement against them. That decision was not appealed and is unaffected by the vacated judgment of the New Mexico Supreme Court in Norvell v. Apodaca. The defendant Secretary of State would have us enforce a law as to several classes of persons when that law had been declared unconstitutional as applied to another class of persons. This discriminatory treatment would deny the plaintiffs equal protection of the laws in violation of the Fourteenth Amendment.
The construction of a constitutional provision must be uniform. See 1 Cooley on Constitutional Limitations, 1927 ed., 123-124, citing, inter alia, Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 and South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261. A valid statute may become invalid by change in conditions to which it is applied. Nashville, Chattanooga & St. Louis Railways v. Walters, 294 U.S. 405, 415, 55 S.Ct. 486, 79 L.Ed. 949, and Abie State Bank v. Bryan, 282 U.S. 765, 772, 51 S.Ct. 252, 75 L.Ed. 690. Here we have a change in conditions resulting from the federal district court decision that the candidates for the United States Senate do not have to pay the fee.
All the candidates should be treated the same. The plaintiffs are entitled to recover the fees which they paid under protest and which are held in a suspense fund awaiting the outcome of this litigation.
Reversed and remanded for further proceedings in the light of this opinion.