GRAVES, J.
This is another case relating to the salaries of prosecuting attorneys. Relator was prosecuting attorney of Johnson. county for four years, from January, 1921, to December 31, 1924. His first election was at the general election of 1920. He claims that his salary was due and payable under the act of 1919 (Laws 1919, p. 672), and was for the sum of $5,000 per annum on and after January 1, 1921. The act of 1921, he contends, was unconstitutional, and will later appear that we have so ruled. With the exception of six months of the time (six months from January 1, 1921) the county court would only pay him at the rate of $2,500 per year. For the six months, supra, he was paid at the rate of $5,000 per year. His action here is by mandamus to compel the respondents, the county court of Johnson county, to pay him the sum of $8,750.02, the balance due him upon his salary. If he was entitled to $5,-000 per year, there is no dispute of the amount due. In other words, unless the things urged in opposition to the claim of $5,000 per annum have substance, our writ should go. The return is short, and we reproduce it as follows:
"Respondents for return to the petition herein, admit the election and qualification of Walter L. Chaney as prosecuting attorney of Johnson county, Mo., as in his petition alleged; admit that he received pay as in said petition stated for his services; and state that the amount so received by him is all he is and was entitled to as such prosecuting attorney under the law; admit that the respondents are the duly elected and qualified judges of the county court of said Johnson county; and deny each and every other allegation in said petition contained. For further return and answer herein, respondents state:
"That on the 4th day of December, 1922, petitioner filed with the county court of Johnson county, Mo., the following demand, to wit:
"`Johnson County, Missouri, to Walter L.
Chaney, Prosecuting Attorney.
"`To balance due on unpaid salary from January 1, 1921, to June 30, 1921, said salary for the time being at the rate of $5,000 per year under authority of the Supreme Court decision, State ex rel. Brunjes v. Bockelman, 240 S. W. 209, there still being due on each month the sum of $208.33, making a total for the 6 months of $1,250.
"`[Signed] Walter L. Chaney.'
"That said claim, of $1,250 was by said court on the same day paid, and accepted by said Chaney in full, and when he was in the possession of all the facts. That afterwards there was pending in the circuit court of Johnson county, Mo., two suits entitled J. M. Caldwell, Plaintiff, v. Johnson County, Missouri, and State ex rel. Johnson County v. J. L. Des Combes, Administrator, et al. That the county court of said county, for and on behalf of said county, decided to hire special counsel to assist the defense in the trial of said cases, and with this in view consulted petitioner, Walter L. Chaney, attorney at law, and told him that they had understood and had been informed by him that he contemplated suing said county of Johnson for the salary in his petition herein claimed, and that, if he intended to bring such suit or attempt to collect said salary, they did not desire to hire him, but that, if he would not bring such suit and forego the collection or attempted collection of said claim, they would hire him as special counsel to assist in the trial of the above-mentioned cases. That said Chaney stated to the court that he would accept said hire and not collect or attempt to collect the money in his petition herein claimed, and said court, relying upon said promises and statement, hired said Chaney in said cases, and agreed to pay him the sum of $250 for his services, which said contract of hiring was properly made of record by said court on the 3d day of February, 1925, and a contract in writing entered into by said Chaney and said court for Johnson county, Mo., to this effect. That by reason of the premises said petitioner has waived his right to collect the claim in said petition set out and is estopped from recovering judgment for same.
"Wherefore respondents pray that the petition herein be dismissed, and that the respondents recover their costs herein expended."
Relator's answer sufficed to place in issue all the matters charged and pleaded in the return, but relator goes further and sets up and pleads the order of the county court as to relators' employment in the two cases named in the return, and also the written contract of employment signed and entered into under the terms of the record order of employment. The record order of employment is in this language:
"Ordered by the county court of Johnson county, Mo., that Walter L. Chaney, attorney at law, be and is hereby employed by said county court to assist the prosecuting attorney of Johnson county, Mo., in the suit or action at law now pending in the circuit court of Johnson county, Mo., State of Missouri ex rel. Johnson County v. John L. Des Combes, Administrator of the Estate of L. R. Katherman, Deceased, et al., to collect moneys due from John L. Des Combes, administrator as aforesaid, and the bondsmen of said L. R. Katherman, deceased, former collector of Johnson county, Mo., for the recovery of amounts due under said bond; and, for the further consideration of services to be rendered by said Walter L. Chaney, attorney at law, in the suit or action at law now pending in the circuit court of Johnson county, Mo., in the case of J. M. Caldwell v. Johnson County, for claimed back pay or salary said to be due and payable to said J. M. Caldwell, in the trial of said causes in the circuit court; and for all such services mentioned the said county court shall pay out of the county revenue fund to the said Walter L
Chaney the sum of $250 after the termination of said cases, and for necessary expenses that may be incurred by said Walter L. Chaney in the preparation for trial and in the trial of said causes of action as aforesaid, subject to the approval of the county court; and it is further ordered by the court that J. R. Grinstead, presiding judge of this court, be and is hereby appointed agent for Johnson county, Mo., to enter into said contract with said Walter L. Chaney for said services as above set out, and sign contracts in duplicate."
The written contract was made and signed in strict conformity to this order, and neither the court record authorizing the employment, nor the contract of employment, said a thing about relator agreeing not to prosecute a suit for the remainder of his salary. "
Respondents filed a reply to this answer to their return in this language:
"Respondents, for reply to the answer of relator, admit that the contract of employment and record of the same on County Court Record W, p. 143, as set out in said answer, is correct, but that the inducement to same was a promise made by relator that, if so hired, he would not demand pay of the county court of Johnson county for further services as prosecuting attorney as are claimed in his petition herein, and that such promise and agreement caused and induced respondents to enter into said contract and make said record, and, had it not been for such promise and agreement, said contract would not have been entered into by relators. Further replying, respondents deny each and every other allegation in said answer contained.
"Wherefore, having fully replied, pray that the writ herein applied for be denied; that respondents recover their costs herein expended."
There being, as thought, an issuable fact, a commissioner was appointed to take evidence and report the same to this court. Such evidence was taken and reported, and is here for what it is worth, if it is worth anything under the objections made to its introduction. Pertinent matters, both of evidence and law, are left to the opinion.
I. The first broadside launched is couched in this language:
"If the act of the Legislature of Missouri for year 1919, page 672 of the Session Acts, shall continue to receive the construction indicated by the cases of State ex rel. Brunjes v. Bockelman (Mo. Sup.) 240 S. W. 209, and State ex rel. McCaffrey v. Bailey, 272 S. W. 921, 308 Mo. 444, and O'Bryan v. Randolph County (Mo. Sup.) 274 S. W. 356, then said act of the Legislature, now section 734, R. S. 1919, is illegal, unconstitutional, and void, as violative of section 12 of article 9 of Constitution of Missouri."
This provision is as follows:
"The General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose may classify the counties by population."
We have purposely set out in full the pleadings of the respondent. Nowhere therein is the constitutionality of R. S. Statutes of 1919, § 734, attacked. This is the statute which governs relator's salary; the act of 1921 having been declared unconstitutional. State ex rel. McCaffrey v. Bailey, 272 S. W. 921, 308 Mo. 444.
Before a constitutional question can be raised, it must be timely advanced and presented to the court. As relator relied upon section 734 as the law of his recovery, respondents should have by return challenged the validity of the law, pointing out the constitutional provision which the law offended. This respondents did not do, and the question is not really in this case. Lohmeyer v. Cordage Co., 113 S. W. 1108, 214 Mo. loc. cit. 690; ...
