APPEAL from the Circuit Court of Sangamon County; the Hon.
WILLIAM H. CHAMBERLAIN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 7, 1972.
In 1854 the Illinois Legislature enacted a law which created a special charter school district for the city of Springfield. The charter for this special district, now known as Springfield School District No, 186, was amended in 1869 and has served the City of Springfield until the present time. On September 7, 1971, one of the members of the Board of Education, Mr. L. William Murrell, tendered his resignation to the Board for reasons not disclosed by the record. His resignation was accepted by the Board and a motion was made to appoint the Defendant, Richard Van Winkle, to fill, until the next election, the vacancy created by Mr. Murrell's resignation. This motion carried and the Defendant took his place as a member of the Board of Education.
The State's Attorney for Sangamon County filed a complaint in quo warrantor against the Defendant on October 8, 1971, alleging that the Board of Education had no power to fill vacancies by appointment and, therefore, the Defendant was holding office without legal authority. The Defendant filed an Answer and Plea of Justification stating that under section three of the Special Charter the Board of Education had the power to fill vacancies by appointment. Subsequently, the Board of Education of Springfield School District No. 186 (hereinafter referred to as Board or Board of Education) was granted leave to intervene as amicus curiae. Briefs were filed by the parties and trial was held on November 3, 1971. On November 12, 1971, the trial judge entered an Order granting the relief sought in the Complaint. For the reasons expressed herein, the order appealed from is reversed.
Section three of the special charter of the City of Springfield, as amended in 1869, provides as follows:
"Section 3. The city council of the City of Springfield shall, on the first Monday of May, 1870, and on the first Monday of May, annually, thereafter, elect successors to those members whose terms of office are then expiring, and the persons so elected shall hold their offices for three years and until their successors are elected and qualified. The said board of education, or the remaining members thereof, shall have power to fill, until the ensuing annual election, all vacancies in said board occasioned by death, resignation, disqualification, failure to elect, or removal from said district: Provided, no member of the city council, or any person holding office under the city, whether elected or appointed, shall be a member of the board of education."
Several observations can be made of this particular statute. First, this section gave the Board the power to fill all vacancies in the Board occasioned by the resignation of a Board member the exact factual situation presented by this appeal. Second, the section treats the terms "resignation" and "disqualification" separately thereby indicating that the Legislature felt that these two terms embodied different concepts. Third, section three only empowers the Board to fill a vacancy by appointment until the next "ensuing annual election." The Board was not given the power to fill the unexpired term of the resigning member by appointment. Consequently, if section three of the special charter was the only legislative enactment that we were called upon to consider, the Board's action in appointing the Defendant would pose no problem.
However, in its usual inimitable style the Legislature enacted the School Code of 1961 Article 32 of which covers special charter districts. Section 32-2.5 and 32-2.6 (Ill. Rev. Stat., ch. 122, sec. 32-2.5, 32-2.6) of the Code declare as follows:
"32-2.5. Election of Board of Education in lieu of appointive board.
In all special charter districts having a population of over 35,000 by the last federal census, where the board of directors or board of education is elected or appointed by the city council of the city, of which school district such city may form the whole or a part, and where there are no provisions in the special charter creating such school district for the election of a board of directors or board of education, there shall be elected in lieu of the present governing body a board of education to consist of 7 members. Nomination of a candidate for member of the board of education shall be made by petitions signed in the aggregate by not less than 200 qualified voters residing in the school district, and also by filing with the petitions a statement of candidacy as provided in Section 10-5 of The Election Code, which petitions and statements of candidacy shall be filed in the office of the board of education not more than 60 days nor less than 35 days prior to the day of holding the election.
32-2.6. Election Vacancies Names on ballots
All elections in school districts described in Section 32-2.5 shall be conducted in accordance with the provisions of Article 10 of The Election Code so far as they may apply and may not be inconsistent with other provisions of this Article. If any member of the board of education is disqualified to hold office, the board of education may, by resolution, declare the office vacant, and provide for the holding of an election to fill the vacancy for the unexpired term. The nomination and election of a candidate to fill the vacancy shall be made in the same manner as the nomination of a candidate for a regular term, as hereinbefore provided, except that there shall be printed on the ballot that the election is for a certain number of persons for a certain number of years to fill a vacancy, and a separate ballot shall be used for such election. The names of all candidates for member of such board of education shall be printed on the ballot in alphabetical order according to their surnames, and shall likewise be certified by the board of education to the board of election commissioners, if any."
Both of these sections are binding upon the district in question since it has exceeded 35,000 population for over fifty years.
• 1 The intent of section 32-2.5 is clear it was enacted to give the voters of a special charter district a direct voice in the election of their board of education. A similar legislative intent can be observed in those sections of the School Code dealing with school trustees (Ill. Rev. Stat., ch. 122, sec. 5-2), boards of school directors (Ill. Rev. Stat., ch. 122, sec. 10-1) and boards of education governed by the general school code (Ill. Rev. Stat., ch. 122, sec. 10-10). Under section two of the special charter in question the board of education of the City of Springfield was to consist of nine members from different wards of the city elected by the city council. Section 32-2.5, therefore, repealed section two of the charter with respect to the total number of board members and their manner of election. However, since it was stipulated by the parties to this appeal that since ...