The opinion
Mr. Justice Dunn,
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 recor-d, 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 ; Southworth v. Board of Education, 238 id. 1 go.) The statute requires as the basis of the county superintendent’s authority to call an election a petition signed by at least fifty legal voters. It was therefore necessary that the record returned should show such á 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, an affidavit was filed with the superintendent showing that the signers of the petition were legal voters resident in the territory, 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. The 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 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 superintendent could act upon the petition without 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 , People v. Hartquist, id. 127, and Bierbaum v. Smith, (post, p. 147.) 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 school house site; in the second, that the organization of a 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 five hundred 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 recital in the petition itself that its signers are legal voters is no evidence of the fact. (McKeown v. Moore, 303 Ill. 448 .) 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 , was an information 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 anti-saloon 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 conformity to the requirements of the statute and the conditions precedent to the right to call the election.