Original action in mandamus to compel the Treasurer of Jackson County to pay sixty-nine warrants issued by the Kansas City Election Commissioners, to certain persons employed by the commission to assist in the registration of the voters of Kansas City under Laws of Mo. 1937, page 294. The commissioner, Hon. *Page 805 Wm. C. Lucas, reported findings of fact and conclusions of law and recommended that a peremptory writ be granted.
[1] The treasurer of Jackson County is a ministerial officer. Under the general rule he cannot question the constitutionality of a statute fixing his ministerial duties. However, it appears from the record that the fiscal agencies of the county directed him to refuse payment on presentation of the warrants. For this reason he is authorized to question the constitutionality of provisions of the act. [State ex rel. Wiles v. Williams,232 Mo. 56, 71, 133 S.W. 1.]
The commissioners were appointed November 9, 1937, under Section 3, page 297, Laws of Mo. 1937, they employed persons to assist in the registration. Under Section 89, page 339, Laws of Mo. 1937, they fixed the compensation of said persons. Under Section 92, page 340, Laws of Mo. 1937, they issued warrants on the city treasurer for one-half of the compensation due said persons, and issued warrants on the county treasurer for one-half of the compensation due said persons. The county contended that the commission was without authority to issue the warrants, and the county treasurer refused to pay the same. The commission then certified the pay roll to the county and it issued warrants to the employees of the commission for the month of November, 1937. The warrants were paid by the county treasurer. On certification of the pay rolls for December, 1937, and January, 1938, the county refused to consider the same, contending that the commission was without authority to fix the compensation of the commission. The county fixed $3.50 a day as a basis for compensation and accordingly issued to each of said employees a warrant for $1.75 a day. The employees accepted payment under protest.
The commission had agreed to pay to each of said employees more than $3.50 a day, but not more than $6 a day, the maximum allowed under the statute. In this situation the commission determined the balance due said employees and issued to each a warrant on the county treasurer for one-half of said amount. The county treasurer refused to pay the warrants. Thereafter the employees assigned the warrants to relators who also presented them to the county treasurer and payment was refused. Thereupon relators instituted this action.
[2] I. Respondent contends that mandamus is not a proper remedy.
It will not be necessary to consider the question. In view of the great expense incident to a commissionership it would be an injustice to rule, after submission of the case, that mandamus was not a proper remedy. [State ex rel. McWilliams v. Bates et al., 235 Mo. 262, 282, 138 S.W. 482; State ex rel. Reynolds v. Highway Comm., 328 Mo. 859, 863, 42 S.W.2d 193.] In the McWilliams and Reynolds cases there were heavy commissionership expenses. For that reason, after submission of the case, we did not consider the question. *Page 806 Absent such expense, we may, after submission, consider the question of remedy. [State ex rel. School District v. Neaf et al., 344 Mo. 905, 130 S.W.2d 509.]
[3] II. Respondent also contends that the election law in question violates Section 36, Article VI of the Constitution, which follows: "In each county there shall be a county court, which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law. . . ." In other words, he contends that the election board is conducting county business.
The maintenance of an election board is a state function. Indeed, respondent does not contend that the maintenance of such a board is not a state function. If a state function, the Legislature has the authority to compel the city and county to join in providing for said maintenance. [State ex rel. v. Owsley,122 Mo. 68, 26 S.W. 659; State ex rel. Lynn v. Board of Education, 141 Mo. 45, 41 S.W. 924; State ex rel. v. Mason,153 Mo. 23, 54 S.W. 524; State ex rel. Wm. C. Reynolds et al. v. Hy. L. Jost et al., 265 Mo. 51, 175 S.W. 91.]
Respondent cites State ex rel. Buckner v. McElroy, 309 Mo. 595,274 S.W. 749; State ex rel. Mitchell v. Rose, 313 Mo. 369,281 S.W. 396. The Buckner case involved the consideration of "purely county business." The Mitchell case involved the consideration of an account presented to the county court as directed by statute. Of course, the county court was authorized to consider and audit the account. The cases are not in point.
[4] III. Respondent also contends that certain sections of the registration act are in violation of other provisions of the Constitution.
In the return to the alternative writ, he made an effort to question the constitutionality of said sections. He therein alleged that if certain sections of the registration act be given certain constructions (set forth in the return) they are unconstitutional. The said allegations in the return are admissions that said sections could be otherwise construed. If so, they may be constitutional. In other words, the record does not present a constitutional question for the reason the respondent does not challenge said sections as unconstitutional. The rule is stated as follows:
"To raise that question (a constitutional question), the contention must be that the law is unconstitutional whatever it means and under any construction of which it is susceptible. `The only challenge of unconstitutionality of a statute which does involve such a question is the claim that the statute is inherently and totally invalid in any event'" [Moyer et ux. v. Orek Coal Co., 78 S.W.2d 107, l.c. 108; Curtin v. Zerbst Pharmacal Co., 333 Mo. 346, 62 *Page 807 807 S.W.2d 771, 772; Langan v. United States Life Ins. Co., 114 S.W.2d 984.]
It is not contended in respondent's brief and was not contended on the oral argument that county funds were not available to pay the warrants in question.
It follows that a permanent writ should be granted. It is so ordered. Tipton, C.J., and Clark, Hays and Douglas, JJ., concur; Ellison, J., concurs in separate concurring opinion in which Leedy, J., concurs.