(concurring in the result):
I concur on the ground persuasively pinpointed by Judge Breitenstein, i. e., that the construction of a constitutional provision must be uniform and that here such cannot be so in light of the “change in conditions” resulting from the three-judge federal district court writ which enjoined the New Mexico Secretary of State from enforcing the payments of filing fees against any and all candidates for the United States Senate from the State of New Mexico. No appeal was taken therefrom by the State of New Mexico. The decision rendered in the instant case followed the aforesaid three-judge injunction, thus creating the lack of uniformity requiring refund of the filing fees paid by the plaintiffs.
The only evidentiary hearing conducted to test the constitutionality of the filing fee statutes was that of the state court in Norvell v. Apodaca, 83 N.M. 663, 495 P.2d 1379 (1972). On appeal, the New Mexico Supreme Court held the filing fees constitutional because none of the plaintiffs-appellants in the instant action were indigent and because none of them had been deprived of a position on the ballot because he or she was unable to pay the filing fee. The Federal District Court, in the case at bar, observed — and correctly so in my view — that this case is distinguishable from the Lubin and Bullock decisions because here (a) there are no indigents challenging the filing fee statutes and (b) none of the plaintiffs were denied a place on the ballot. Furthermore, I am persuaded that the court below properly looked to the evidence before the New Mexico Supreme Court in Norvell v. Apodaca, supra, in concluding that there was no constitutional unreasonableness (except as against indigents) in the 6% filing fee statutes. The District Court relied upon these findings in Norvell v. Apodaca, supra:
New Mexico political history and legislative attempts to regulate elections are fascinating subjects. Three percent filing fees have been tried but found wanting. The modest expenditure was not sufficient to preclude the filing of “stooge” candidates. In New Mexico parlance, a “stooge candidate” is one who is filed by, or whose filing is caused or *903procured by a candidate or his adherents with a view to dividing the vote which would presumably be garnered by his opponent. Such efforts often developed along ethnic lines.
495 P.2d at page 1382.
* * * * He *
Wealth is not a prerequisite to a successful seeking of elective office in New Mexico. In fact it might reasonably be said that New Mexico has something of a tradition that candidates of modest means can achieve success. .
Mr. Mike Anaya, the State Chairman of the Democratic Party, testified that in his extensive experience at both the county and state levels, no serious candidate has been precluded from seeking office by the filing fee requirement. Mr. Fabian Chavez, who has sought a number of offices, usually successfully at least through the primary stage, testified to like effect. He stated that he had often announced his candidacy and commenced his campaign without funds with which to pay the statutory filing fee, but that raising the fee had never presented a problem. Neither Mr. Anaya nor Mr. Chavez knew of any serious candidate who has ever been precluded from seeking office by lack of funds with which to pay the filing fee.
495 P.2d at 1384.
In view of the unchallenged factual findings of the New Mexico Supreme Court and further because the statutes in the instant case are not challenged by indigents, I agree with the District Court’s finding that the appellants failed to establish that the statutes operated in an unconstitutional manner against them via their reliance on Bullock and Lubln. The facts involving the appellants in this ease are indistinguishable from those in Cassidy v. Willis, 323 A.2d 598 (Del.1974), aff. 419 U.S. 1042, 95 S.Ct. 613, 42 L.Ed.2d 636.