This is аn appeal by plaintiffs from an adverse judgment in their efforts to challenge the validity and contest the results of a school bond election. Jurisdiction is in this court because the determination of one of the principal issues turns on the construction of Article VI, section 26(g), Constitution of Missouri, 1945, V.A.M.S.
On October 9, 1954 there was submitted to the qualified voters of Reorganized School District No. 6 of St. Franсois County, Missouri, the proposition to authorize the said school district to borrow the sum of $40,000, and to issue negotiable bonds therefor, for the purpose of constructing new and repairing existing school facilities. According to the official returns the proposition received a favorable vote of more than the required two-thirds majority. See Article VI, § 26(b), Constitution of Missouri 1945, V.A.M.S. On October 29, 1954 plaintiffs filed their peti *410 tion in which they contended that the election was illegal in that the notices required by Section 165.040 RSMo 1949, V.A.M.S., were not properly posted, and in which they sought to contest the results of the election for the alleged reasons that persons not qualified were permitted to vote and the ballots were incorrectly counted. The trial court, on motion of the defendant, struck out of the petition all allegations pertaining to a contest of the results of the election, and permitted the cause to go to trial only on the issue of whether notices had been posted for the required period of time in the required places. After hearing, the trial court found this issue for the defendant.
Prior to the effective date of the presеnt constitution this court ruled that a circuit court had no jurisdiction to hear and determine an election contest of the type here sought. Long v. Consolidated School Dist. No. 7, Kingsville, Johnson County,
Appellants concede that no statutory authority exists to contest the election in this case and that the courts have previously announced the rules above summarized, but they assert that those rules are no longer applicable because the election in this case was held pursuant to Article VI, Constitution of Missouri 1945, V.A.M.S., and § 26(g) thereof provides that, “All elections under this article may be contested as provided by law.” Appellants contend that this provision is self-executing and that it provides the necessary authority to contest the election in this case even though the legislature has not provided any statutory authority to do so.
In State ex rel. City of Fulton v. Smith,
“ 'One of the recognized rules is that a constitutional provision is not self-executing when it merely lays down general principles, but that it is self-executing if it supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duty which it imposes may be enforced, without the aid of a legislative enactment. * * * Another way of stating this general, governing principle is that a constitutional provision is self-executing if there is nothing to be done by the legislature to put it in operation. In other words, it must be regarded as self-executing if the nature and extent of the right *411 conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action.’ ”
See also In re Moore’s Estate,
The first part of § 26(g), providing that “All elections under this article may be contested”, is modified by the words “as provided by law.” This latter phrase, when used in constitutions, has been held to mean as prescribed or provided by statute, Lawson v. County Court of Kanawha,
It has been held that when a constitutional provision creates a right, but is silent as to the remedy, one possessing the right may resort to any common law action which will afford him adequate and approрriate relief. Householder v. City of Kansas City,
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Appellants rely on State ex rel. City of St. Louis v. O’Malley, supra. There the provision of the Constitution, art. 2, § 21 of 1875, V.A.M.S., was, thаt “ 'private property shall not he taken or damaged for public use without just compensation. Such compensation shall he ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; * * [
Appellants next contend that the fact that the legislature has not designated the court before which the election contest is to be held and the manner in which it is to be сonducted is of no consequence because Article V, § 14, Constitution of Missouri 1945, V.A.M.S., provides that “The circuit courts shall have * * *, exclusive original jurisdiction in all civil cases not otherwise provided for, * * * ” and Article V, § 5 provides that “The supreme court may establish rules of practice and procedure for all courts.” However, Article V, § 14 does not create a right of action whеre one does not otherwise exist, but provides where existing causes of action shall or may be tried. Article V, § 5 is not applicable because in addition to the part quoted above it provides that “The rules shall not change substantive rights, * * In any event, the supreme court has not purported to establish those rules which appellants contend it has the right to establish.
We must necessarily conclude that where the provision of the constitution announces a general principle and there is a specific direction to the legislature, as in this case, and no common law remedy exists and the legislature has not acted, then the courts are without jurisdiction to entertain a petition for relief. The action of the trial court in striking out those provisions оf the petition pertaining to a contest of the election was proper.
The remaining question is whether the election was void because the required notices of the election were not properly posted. This is different from the contest of the result of an election, and this court has said that “interference by a court of equity is proper where the election would be a nullity and, consequently, useless.” Arkansas-Missouri Power Corporation v. City of Potosi, supra [
The school district was approximately “ten to twelve miles square,” and a total of six notices were posted for the required periоd of time in the school district at the following locations:
“1. Notice posted on power line pole facing road at corner of school grounds. 2. On a power line pole at the inter *413 section of state highway W and highway B. 3. On a tree on highway W directly in front of the LeGrande Monument Works. 4. On a tree on the county road running from Doe Run to highway H at a point where you turn from the said county road to the old Hildebright School. 5. On a tree on highway W on top of Stono about 300 yards East of the George Elser home. 6. On the county road leading from Doe Run past the Gruner Farm towards the Watson Farm on a tree where the road forks, one going on to the general direction of Elvins and the other turning back to highway W, approximately 3 miles from Doe Run Missouri.”
The pole on which noticе number 1 was posted was at the intersection of highway B and a road that “led up to the school itself” and “goes on out through on the county road.” The notice was eight to ten feet from the edge of the road leading to the schoolhouse and about fifteen feet from the edge of highway B; the pole on which notice number 2 was posted was about three feet from highway B, eight tо ten feet from highway W and across a ditch over which there was a bridge; notices numbers 3, 4 and 5 were posted on separate trees “12 to IS feet,” “approximately 10 feet” and “18 to 20 feet” respectively off of highway W; notice number 6 was posted on a tree about eight feet from a county road. The highways and the county road are all public roads, and highway W is the principal highway through the school district in a north-south direction. Both highway W and highway B are well traveled.
Appellants’ principal contentions are that all of the signs were posted in places alongside the highways and roads in such position that they could not be read by the residents of the school district “while they were driving along in their automobiles, or even while standing on the road;” that the notices could have been placed at other locations where they were likely to be seen by more people; that one of the notices (number 5) was posted near the western limits of the school district and only two or three families lived further west; and that “large sections of the district” did not have any notices posted therein. The substance of appellants’ contentions is that the posting of the notices did not comply with “the law or the spirit” of § 165.040 in that they were not placed where they were reasonably anticipated to provide notice of the election to the voters of the school district.
“A public place” within the meaning of the statute is a relative and not an absolute term, and the determination of what is a “public plаce” is a question partly of fact and partly of law. Lake v. Riutcel, Mo.Sup.,
Thе person charged with posting notices in public places, here the clerk of
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the school district, must necessarily exercise and is entitled to exercise a “fair discretion” in the selection of the locations, and if the postings are in public places no one may complain that in his judgment the notices should have been put up in other public places. 2 Merrill, Notice, § 697. We do not consider it at all important that the notices could not be read by travelers while riding down the highway in their automobiles. See Lake v. Riutcel, supra. No such requirement is contemplated by the statute. Neither is it necessarily determinative of the question that all of the notices could not be read by one standing on the highway or road. A public place is not necessаrily limited to the traveled portion of a highway, and, in general, is any place where the public is permitted or invited to go or congregate, a place of common resort, a place where the public has a right to go and be. People v. Simcox, supra. Annotation,
The notices in this case were typewritten, as they were authorized to be. There is no evidenсe that any one connected with the school district did anything to prevent the publicity of the election contemplated by § 165.040, that the notices were concealed or hidden in any way, or that they were not reasonably apparent and accessible to any one who passed where the notices were posted. While publication of the notice of the election in a newspaper is not required or authorized by § 165.040, and therefore doing so could not lessen or affect the statutory requirement that notices be posted in at least five different public places in the school district, it is noted, as evidence of the absence of any intent to prevent publicity of the election, that a copy of the notice of thе election was printed in at least one newspaper distributed in the school district.
The statute in this case does not require that the notices be posted in the “ ‘most public places’” as was required in Walker v. Sundermeyer,
The trial court found that the required number of notices were posted in “public places in the school district” as required by § 165.040, and from a careful and thorough reading of the testimony we cannot say that the conclusion reached was erroneous.
The judgment of the trial court is affirmed.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All concur.
Notes
. The debates in the constitutional convention are of doubtful value in determining the issue here and the apparent meaning on the face of the provision of the constitution is controlling. However, it is interesting tо note that § 26(g) was not a part of what subsequently became Article VI when it was reported to the convention by the committee on State Finance (Except Taxation) — Expenditures, Public Indebtedness and Restrictions Thereon. On the floor of the convention an amendment was offered adding a new subsection to § 26 of Article VI as follows: “(g) All elections held pursuant to this article may be contested in the manner provided for the contest of elections of county officers.” After an observation that this provision was not workable, the proposed amendment was withdrawn and a substitute therefor was offered worded as follows: “(g) All elections held pursuant to this article may be contested.” A member of the convention then expressed dissatisfaction because the proposed substitute amendment “doesn’t refer the matter to the legislature,” and after expressing the view that as worded the proposed substitute amendment would permit “any disgruntled man without giving a bond or anything else” to file a contest, and that there “ought to be some rule, some requirement that the plaintiff must show some interest and some right” to bring the contest, the proposal was adopted that the substitute amendment be amended by adding the words, “as provided by law.” The substitute amendment as amended, was then adopted.