The but this was no part of the record on which the organization of the district had months before been declared complete. That record cannot be supported, where it is defective, by facts shown by oral or other evidence. opinion of the court, recognizing this rule, is not based on this affidavit, but states that, to the contention that there was no showing that the petition was not signed by the required number of voters, it is a sufficient answer that the affidavit was not required by the statute, but that the county superintendent would have been authorized to act on the petition, accepting the signatures as genuine, in the absence of a contrary showing. It is true that the affidavit was not required, but it is not true that the county su number of votes cast or of the number of votes against the proposition to establish the community high school. Both the pollbook and the tally list show the number of votes cast at the election. The tally list and the returns show the number of votes cast for and against the proposition submitted. The pollbook, tally list, and returns are set out at length in, and made parts of, the county superintendent's record. That record further shows that the returns of the election were canvassed, and that it was found and declared that 115 votes were .cast for and 100 votes against the proposition to establish a community high school, and that the proposition was carried by a majority of 15 votes. While the certificate of the judges of election is incomplete, its omissions are am-perintendent could act upon the petition withply supplied by other portions of the record. Fraud or wrongful intent in the conduct of the proceedings to create the district is neither charged nor suggested, and no qualified voter was deprived of his vote. None of the irregularities disclosed by the return to the writ were of such a nature as to invalidate the election or to defeat the organization of the district. People v. Miller, 304 Ill. 279, 136 N. E. 674; People v. Kinsey, 294 Ill. 530, 128 N. E. 561; Ackerman v. Haenck, 147 Ill. 514, 35 N. E. 381; Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704. out any investigation as to whether it complied with the statute or not. In certiorari it is essential that the record show the existence of the facts required to authorize the officer or tribunal to act. Not only is this proposition established by the cases which have been referred to and the authorities therein cited, but the necessity of such a showing in the record is further illustrated by the very recent cases of Trustees of Schools v. Hoyt, 311 Ill. 532, 143 N. E. 59; People v. Hartquist, 311 Ill. 127, 142 N. E. 475; and Bierbaum v. Smith (No. 16600) 147 The judgment of the circuit court will be N. E. 796. affirmed. Judgment affirmed. DUNN J. (dissenting). I do not agree that the return to the writ of certiorari shows that the respondent had any authority to call the election. Upon the return to a writ of certiorari the record returned in obedience to the writ must be inspected by the court and the question determined by that record, alone, whether or not the tribunal whose action is questioned had jurisdiction or exceeded its jurisdiction or otherwise proceeded contrary to law. Neither the allegations of the petition nor any fact not contained in the record returned can be considered. It is essential that the record returned show the existence of every fact necessary to authorize the respondent to act. Commissioners of Highways v. Smith, 217 Ill. 250, 75 N. E. 396; Southworth v. Board of Education, 238 Ill. 190, 87 N. E. 403. The statute requires, as the basis of the county superintendent's authority to call an election, a petition signed by at least 50 legal voters. It was therefore necessary that the record returned should show such a petition, but it did not. It showed only a petition with signatures attached. Upon this petition the election was called, as a result of which the superintendent later declared the district organized. Months later, and on the same day the petition for a writ of certiorari was filed, and affidavit was filed with the superintendent, showing that the signers of the petition were legal voters resident in the territory, In the case first cited it was held that a petition signed by the number of voters required by the statute is a condition precedent to the exercise of the power of a board of education to call an election for the purpose of authorizing the purchase or location of a schoolhouse site; in the second, that the organization of the school district may be attacked by certiorari, and in that case the record of the organization is the only lawful evidence of the action taken and cannot be contradicted or supplemented by parol; and the third case is similar to the first, in which it was held that a finding by the board that the petition was signed by 500 legal voters, or one-fifth of all the legal voters of the district, was essential before the board was authorized to act, and a recital that a petition duly signed had been presented to the board was not such finding. So the recitai in the petition itself that its signers are legal voters is no evidence of the fact. McKeown v. Moore, 303 Ill. 448, 135 N. E. 747. The record contains no finding of this jurisdictional fact and therefore shows no authority to call the election. The cases cited in the opinion of the court to the effect that the county superintendent was authorized to act on the petition without any finding as to whether it was signed by the requisite number of voters do not sustain the proposition. People v. Logan County, 45 Ill. 162, was a mandamus suit to require the county board to act, and People v. Buskirk, 279 Ill. 203, 116 N. E. 683, was an informa. (147 N.E.) tion in the nature of a quo warranto to oust school directors. In each there was a plea raising the direct issue of the number of signers and no question as to the sufficiency of the record on certiorari arose. The other two cases were petitions for writs of mandamus against town clerks to require them to place on the ballots to be voted at the town election the question, "Shall this town become antisaloon territory?" The statute provided for the form of the petition and required that the signatures should be made by the voters in person, with the residence address of the voter written opposite the signature and the date of signing. It was further required that at the bottom of each sheet of the petition there should be added a statement signed by a resident of the county, with his residence address, stating that the signatures on that sheet of the petition were genuine; that to the best of his knowledge and belief the persons signing were legal voters; that their residences were correctly stated; and that each signer signed at the date set opposite his name. The statute further provided that such petition so verified, or a copy thereof duly certified, should be prima facie evidence that the signatures, statement of residence, and dates upon such petition were genuine and true and that the signers were legal voters, and required the clerk, upon the filing of any such petition, to give notice of the submission of the proposition at the next election. The statute, it will be observed, provided that the petition itself should be evidence of its sufficiency and required the clerk to act upon it, and the cases hold that it was his duty to do so, and he could be compelled by mandamus to perform this ministerial duty. They are not authority for saying that a petition having no evidentiary value may be accepted and acted upon as the basis for calling an election, with no evidence of its conform ity to the requirements of the statute and the conditions precedent to the right to call the election. gether. In counties where a resident engineer has been appointed by the state highway commissioner to superintend construction of state highways, the plans and specifications should be kept on file in the office of such resident engineer. 2. Highways 95(1)-Director of highways and public works invested with powers and duties independent of Governor and not subject to executive orders. By virtue of the provisions of the "Administrative. Code," 109 O. L. 105-135, the director of highways and public works is ining judgment and discretion, independent of vested with certain powers and duties involvthe Governor and not subject to be controlled by executive orders. 3. Mandamus 100-Proper remedy to compel state director of finance to certify that funds are on hand for payment of precedent obligations. By virtue of section 2288-2, General Code, no public improvement constructed by the expenditure of state funds can lawfully proceed unless the director of finance shall first certify that there is a balance in the appropriation not otherwise appropriated to pay precedent obligations. In the event the money is in fact in the fund, it is the ministerial duty of the director of finance to make the required certificate, and the discharge of this duty may be compelled by mandamus. These two actions are original suits in mandamus in this court, and in each case the relator seeks to compel the state director of finance to deliver to the state director of highways and public works a certificate that the money necessary to defray the state's portion of certain public improvements is in the fund and not otherwise appropriated. In No. 19035 a contract amounting to $142,143.03 was awarded to relator on March 2, 1925, for the construction of a highway STATE ex rel. S. MONROE & SON CO. v. in Scioto county. The advertisement for the BAKER, Director of Finance. STATE ex rel. ANDREWS ASPHALT PAVING CO. v. DONAHEY, Governor, et al. (Nos. 19035, 19059.) (Supreme Court of Ohio. April 17, 1925.) (Syllabus by the Court.) 1. Highways 112-Statutes 225-Acts in pari materia construed together; plans and specifications for state highways to be kept in office of resident engineer. Sections 1206 and 7182, General Code, are in pari materia and should be construed to letting of the proposed contract was carried in the newspapers of February 5th and 12th, and bids were received on February 20, 1925. The advertisement stated: "Plans and specifications are on file in the office of the resident engineer and the department of highways and public works, division of highways." One Charles Noel was at that time county surveyor of Scioto county, and, by appointment of the director of highways and public works, was also the resident engineer for Scioto county, using one and the same rooms For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes rector of finance alleges that bids were received for two types of improvement, to wit, sheet asphalt and concrete, and that on February 24, 1925, the Governor of Ohio issued an executive order, directed to the director of highways directing him to award the contract upon the concrete type of pavement. For a third defense it is alleged that the Governor of Ohio issued an executive order on March 2, 1925, directing the defendant not to issue the certificate. In No. 19059 the Governor has filed an answer raising the same issues as the answer of the director of finance. These two cases raise the same legal questions and may be discussed together. Inasmuch as they involve large contracts for public improvements, which it is necessary to complete within time limits, and the work of which must be prosecuted in favorable weather, it is important to have an early decision. in discharging the duties of both offices. The plans and specifications were in fact in his office long before the advertisement began to run, and continued in his possession until after the bids were opened. Certain unimportant changes and addenda were entered on the plans prior to the time the advertisement began to run, and one of the changes may have been made as late as February 6th. It does not appear that any such changes and addenda affected the bidding, or that there was any discrimination against any bidder or in favor of any other bidder. Neither does it appear that any bidder has ever complained in relation thereto. After the contract was awarded to relator, the director of highways requested the defendant, the director of finance, to furnish the required certificate that the state's share of the cost was in the fund, but the defendant, although admitting that there was a sufficient balance in the appropriation of intercounty highway funds and federal funds of the state not otherwise obligated to pay the share of the state and the United States in the cost of this improvement, refused to execute the required certificate for three reasons: First, that the advertisement stated that the plans and specifications were on file with the resident engineer, whereas the statute in terms requires them to be on file with the county surveyor; second, that on February 24, 1925, after the bids had been received, and before the director of highways had determined that relator's bid was the lowest and best bid, and before the contract was awarded to relator, the Governor of Ohio issued an executive order directing the director of highways to reject all bids received in connection with said improvement; third, that the Governor of Ohio on March 2, 1925, ordered the "Such notices shall state that plans and defendant by executive order not to issue the certificate in manner and form as re-in the offices of the state highway commissionspecifications for the improvement are on file quested by the director of highways and pub-er and the county surveyor, and the time withlic works. in which bids therefor will be received." In No. 19059 a contract for improving a certain highway in Butler county was awarded to relator the Andrews Asphalt Paving Company, in the sum of $280,873.50. This award was also made on March 2, 1925, upon consideration of bids received on February 20, 1925, after due advertisement, and again the director of finance admits the award and execution of the contract, and that all statutory requirements had been made except that he alleges that the advertisement stated that the plans were on file with the resident engineer, and did not state that they were on file with the county surveyor, and he further alleges that the county surveyor and resident engineer of Butler county are not one and the same person, and do not occupy the same office, and that, in fact, the plans and specifications were at all times on file with the resident engineer and not with the county surveyor. As a second defense, the di Joseph T. Micklethwait, of Portsmouth, and William J. Meyer, of Columbus, for relator S. Monroe & Son Co. Joseph McGhee, of Columbus, for relator Andrews Asphalt Paving Co. C. C. Crabbe, Atty. Gen., H. H. Griswold, Asst. Atty. Gen., and W. Dale Dunifon, of Van Wert, for respondents. MARSHALL, C. J. [1] Section 2288-2, General Code (109 O. L. 130), requires a certificate of the director of finance that there is a balance in the appropriations from which the obligation is required to be paid not otherwise obligated to pay precedent obligations, and this work cannot lawfully proceed until that certificate is furnished. Section 1206. General Code, provides: If this section should stand alone, unmodified and uninfluenced by other sections, and by amendments of other sections of the General Code enacted since 1206 was originally enacted, then it would have to be admitted that that section has not been complied with, and that therefore the authorities had not proceeded according to law. It will be observed that that section refers to the state highway commissioner, while, in fact, by subsequent legislative enactments, that particular office no longer exists, but the duties of that office have been transferred to the director of highways and public works. Section 154-40, General Code (109 O. L. 118). Notwithstanding such change, the Legislature did not change the title of that officer in the language of section 1206. By the provisions of section 7182, General Code, an engineer other than the county sur (147 N.E.) director of highways are both satisfied, and it does not appear that any party to the proceeding has been in any wise prejudiced. A conclusive reason why no prejudice can result to any one in this controversy is that the advertisements call for unit bids. In any event, it is quite clear that no obligation is imposed by statute upon the director of finance to inquire into such matters, and that he is only concerned with the financial part of the transaction. This portion of the answer does not therefore state any defense. The major question in this controversy is raised by the demurrers to the special defenses alleging that the Governor of Ohio issued several executive orders: First, that he directed the director of highways to reject all bids in cause No. 19035; second, that he directed the director of highways to award the contract in No. 19059 on the concrete type of pavement; and third, that in both cases the Governor directed the director of finance not to issue a certificate that the money is in the fund not appropriated to other obligations. veyor may be appointed by the state highway, any bidder. The successful bidder and the commissioner, to have charge of highway construction within any county, and in certain counties of the state, including Scioto and Butler, a resident engineer has in fact been appointed. In Scioto county the county surveyor was appointed as such resident engineer. In Butler county a different person was selected. By the provisions of section 7182, the engineering supervision within the county is under the control of the state director of highways, and in those counties where no resident engineer has been appointed the plans must be placed on file with the county surveyor, but in those.counties where a resident engineer has been appointed, and who will therefore be in charge of the work and qualified to exhibit and explain the plans and specifications, the only logical course of action is to place the plans on file with such resident engineer. All these sections are in pari materia, and no good purpose would be served by filing the plans with the county surveyor when that officer would have nothing to do with them and would have no knowledge of them, rather than to place them on file with the resident engineer [2] It is contended by the Governor, and who would be presumed to have some knowl-is also contended by the Attorney General in edge of them and would later be called upon his brief, that the Governor, as the Supreme to apply them in the construction of the im- executive of the state, has authority to conprovement. In relation to such improve trol the action of the director of highways ments the resident engineer appointed by the and the director of finance, and that those director of highways performs the same du- officials do not have such independent disties as are imposed by law upon the county cretion, or exercise of judgment, as will persurveyor in those counties where no resident mit them to act contrary to the Governor's engineer has been appointed. The plans will, as expressed by an executive order. It should therefore be filled with the officer who is admitted that in each of these projects the performs the services, and not with the of-director of highways has determined the reficer who becomes a sinecure upon the ap-lators respectively to be the lowest and best pointment of another officer to perform the bidders. It is also admitted that there is services which were theretofore imposed up sufficient money in the funds applicable to on him. It should further be noted that the the state's share of the cost of these imstatute makes requirements only as to the provements. The question is therefore published notices, and makes no requirement as to the place where the plans and specifica-squarely presented whether the Governor may control the discretion and judgment of tions should be kept on file. the other executive officers of the state gov ernment. The Constitution, in section 1, art. 3, provides: The next question relates to the changes and addenda in the plans and specifications between January 19th and February 6th. We will not discuss the nature of the changes and addenda which were in fact made, "The executive department shall consist of a because this court is not in any sense ex- Governor, lieutenant governor, secretary of pressing an approval of making changes and state, auditor of state, treasurer of state, and addenda after the advertisement is begun. an attorney general, who shall be elected on the first Tuesday after the first Monday in It does appear, however, that the one change, November, by the electors of the state, and which may have been made as late as Feb-at the places for voting for members of the ruary 6th, is of a most inconsequential char-general assembly." acter. Mistakes should of course be corrected, and explanations necessary to complete understanding of the plans and specifications should be given, and it is of course better to have such changes and addenda made before the letting of the contract than after. does not appear that any discrimination was exercised in favor of any bidder or against any other bidder. No complaint is made by It Section 5, art. 3, provides: "The supreme executive power of this state shall be vested in the Governor." Section 6, art. 3, provides: "He may require information, in writing, from the officers in the executive department, upon any subject relating to the duties of their respective offices, and shall see that the laws are faithfully executed." It or of equal eminence. It does not mean that Louis It is contended that section 5, art. 3,-is broad enough to lodge in the Governor paramount authority over all other officers of the executive department of our state government. While the question is not directly involved in this controversy, it is apparent from a survey of all of the sections of article 3, that, in any event, the secretary of state, auditor of state, treasurer of state, and Attorney General, all of whom are executive officers, have duties and functions wholly separate and distinct from the duties of the Governor, and wholly independent of his authority. The only relations which the Governor has with the other state executive officers created by the Constitution are the authority referred to in section 6 of article 3, and the power to fill vacancies. Certain powers and duties are given to the Governor by the different sections of article 3 of the Constitution. He may require information from various officers of the executive department; he may communicate with the General Assembly and recommend measures to them; he may call the General Assembly in extraordinary session; he may adjourn the General Assembly in case of disagreement between the two branches; he is made commander in chief of the military and naval forces of the state; and he may grant reprieves and pardons. It is contended by the Attorney General that if the mere imposition of a duty or the conferring of a power upon an administrative officer excludes the Governor, then it would be possible for the Legislature, by the process of specifically conferring executive powers on the various subordinate officers, to deprive the Governor of all executive power, except with relation to those specific duties mentioned in the Constitution. We think this is true and necessarily so. No one contends that the Legislature could take away from the Governor any of those powers and duties conferred by the Constitution. It would seem equally logical that, as to those powers and duties conferred by the Legisla-eral law-making power is conferred upon the ture, the same authority which conferred them can take them away. The power to create presupposes the power to destroy. In many important instances the law provides for an appeal to higher authority, but when no appeal is provided none exists. If the Legislature had intended that an appeal could be taken to the Governor, that intent could and would have been expressed by legislative action. If such was the intent of the framers of the Constitution, they failed to express that intent. By virtue of section 1 of article 2 of the Constitution of Ohio, gen legislative branch of the government. The Legislature therefore has the power to invade certain spheres of governmental activity, not forbidden by other provisions of the Constitution, and, although convinced of the wisdom of such governmental activities, might be unwilling to repose the exercise of such authority in the office of the Governor, in addition to the powers already lodged in that office. The Legislature might only be willing to invade such additional fields of There can be no question of the correctness of this conclusion, unless it is inconsistent with section 5 of article 3, which vests the supreme executive power of the state in the Governor. The construction contended for by the Governor and the Attorney General would make this section read as though it conferred all executive power upon the Governor, or at least made all executive pow-governmental activity if the authority for er reposed in other executive officers sub- same should be lodged in some commission ject to his executive orders. We are of the entirely independent of the Governor's auopinion that supreme executive authority thority. If the contentions of the Attorney means the highest authority; that is to say, General are sound, the Legislature would be that there is no other authority pre-eminent | powerless to execute any such design, and |