Wann v. Reorganized School Dist. No. 6 of St. Francois County

• Decision Date: 02 August 1956
• Docket Number: No. 44934,No. 2,44934,2
• Citation: 293 S.W.2d 408
• Parties: Harry WANN, Franklin W. Hoehn, Ray Flesher, Charles F. Hennrich and C. P. Gray, Appellants, v. REORGANIZED SCHOOL DISTRICT NO. 6 OF ST. FRANCOIS COUNTY, Missouri, Respondent
• Court: Missouri Supreme Court

Page 408

293 S.W.2d 408

Harry WANN, Franklin W. Hoehn, Ray Flesher, Charles F Hennrich and C. P. Gray, Appellants, v. REORGANIZED SCHOOL DISTRICT NO. 6 OF ST. FRANCOIS COUNTY Missouri, Respondent.

No. 44934.

Supreme Court of Missouri, Division No. 2.

Aug. 2, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 10, 1956.

Marvin L. Dinger, Charles E. Gray, Byron A. Roche, St. Louis, for appellants.

Roberts & Roberts, J. Richard Roberts, Cayce & Manley, R. B. Manley, Farmington, for respondent.

STOCKARD, Commissioner.

This is an 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. Francois 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, Sec. 26(b), Constitution of Missouri 1945, V.A.M.S. On October 29, 1954 plaintiffs filed their petition 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 present 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, 331 Mo. 302, 53 S.W.2d 867; Boney v. Sims, 304 Mo. 369, 263 S.W. 412; Remington v. Flemington School Dist., Mo.Sup., 22 S.W.2d 800. See also State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655; and Arkansas-Missouri Power Corporation v. City of Potosi, 355 Mo. 356, 196 S.W.2d 152. In the Speer case this court stated [284 Mo. 45, 223 S.W. 659]: 'The right of citizens and taxpayers to honest elections is meant to be protected by the judges who supervise the voting at the polls; and so far this protection has been deemed by the Legislature [to be] sufficient in case of elections like the one in controversy. The statutes impose on the judges the duty of passing on the qualification of voters, and of deciding whether a person who offers to vote is entitled to do so. In the performance of this duty, the judges act in a judicial or a quasi judicial capacity.' The court also pointed out that elections to authorize the incurring of public debts have been conducted in this state from an early day, and the rule has always been that there can be no contest of any election except as specifically authorized by law. Arkansas-Missouri Power Corporation v. City of Potosi, supra, involved an attempt to challenge the validity of an election to authorize the issuance of bonds, and it was there stated [355 Mo. 356, 196 S.W.2d 154]: 'Equity generally affords redress in cases of fraud but an exception exists where an exercise of political power is involved, it being considered to lie outside the sphere of equity; and for this reason a charge of fraud has been held insufficient to vest a chancery court with jurisdiction over an election contest.'

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 Sec. 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, 355 Mo. 27, 194 S.W.2d 302, 304, this court quoted with approval from 11 Am.Jur., Constitutional Law, Sec. 74, the following general rule for determining whether a provision of the constitution is self-executing:

"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 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, 354 Mo. 240, 189 S.W.2d 229; State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 119 A.L.R. 710; State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363; and State ex inf. Barker v. Duncan, 265 Mo. 26, 175 S.W. 940, Ann.Cas.1916D, 1; 16 C.J.S., Constitutional Law, Sec. 48.

The first part of Sec. 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, 80 W.Va. 612, 92 S.E. 786, but it could also refer to other provisions of the constitution. However, there are no other applicable provisions of the constitution to which this provision could refer and the legislature, rightfully or wrongfully, has not enacted any statute pertaining to the matter. When the entire phrase is considered it is evident that the provision lays down only a general principle and directs the legislature to provide the rules by which the general right which it grants may be enjoyed and protected. In other words, it is clear that subsequent action by the legislature is contemplated to put the provision into operation.

In has been held that when a constitutional

It has been held that when a constitutional to the remedy, one possessing the right may resort to any common law action which will afford him adequate and appropriate relief. Householder v. City of Kansas City, 83 Mo. 488; State ex rel. City of St. Louis v. O'Malley, 343 Mo. 658, 122 S.W.2d 940. But an election contest is purely statutory, State ex rel. Wahl v. Speer, supra; State ex rel. Frank v. Becker, 320 Mo. 1087, 9 S.W.2d 153, and the common law of this state never afforded such a remedy. State ex rel. Keshlear v. Slover, 134 Mo. 10, 31 S.W. 1054, 34 S.W. 1102; State ex rel. Hollman v. McElhinney, 315 Mo. 731, 286 S.W. 951. We can see no distinction in principle between the language used in the provision of the constitution now under consideration and that used in the provisions considered in Sharp v. National Biscuit Co., 179 Mo. 553, 78 S.W. 787 and Ivie v. Bailey, 319 Mo. 474, 5 S.W.2d 50, 53, 57 A.L.R. 881. There the general principles announced by the provisions of the constitution were modified by the term "as may be prescribed by law." In each case the provision was held not to be self-executing. ¹

Appellants rely on State ex rel. City of St. Louis v. O'Malley, supra. There the provision of the Constitution, art. 2, Sec. 21 of 1875, V.A.M.S., was, that "private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; * * *." [343 Mo. 658, 122 S.W.2d 943.] The court held that 'this article gives an absolute right and is self-enforcing, and although there be no statutory law for the ascertainment and payment of the compensation so provided for, the party entitled to this right may resort to any common-law action that will afford him adequate and appropriate means of redress.' To the same effect is Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935. In State ex rel. State Highway Commission v. Rascher, 350 Mo. 1138, 169 S.W.2d 941, construing the same provision, the legislature had specifically provided for the method used in ascertaining the compensation. These cases do not control the situation we have here. We do not consider that Cantrell v. City of Caruthersville, 363 Mo. 988, 255 S.W.2d 785, 786, supports appellants' position. There the provision of the Constitution, art. 5, Sec. 15 was, "Any circuit judge may sit in any other circuit at the request of the judge thereof." This provision was not directed to the legislature and was completely operative in and of itself. The remaining case cited on this proposition, Scott v. Wheelock Bros., Inc., 357 Mo. 480, 209 S.W.2d 149, likewise pertained to a provision of the constitution complete in itself in which there was no direction...