APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
SCHNEIDER, Judge, presiding.
PER CURIAM (ROMITI, P.J., JIGANTI AND LINN, JJ.):
This was an action in mandamus to require that an election be held to fill a vacancy in the office of alderman for the 44th Ward of the city of Chicago. Respondents Jane M. Byrne, mayor of the city of Chicago, and Walter S. Kozubowski, clerk of the city of Chicago, appeal *fn1 from an order of the trial court requiring them to perform those acts necessary to conduct the election on February 24, 1981, the statutory date for the next consolidated election. Ill. Rev. Stat. 1979, ch. 46, par. 2A-1.1(b).
Petitioner Lois Weisberg alleged in her petition, filed December 5, 1980, that Bruce P. Young, having been elected to a four-year term as alderman of the 44th Ward on April 3, 1979, resigned from that post in a letter dated September 2, 1980, which was filed and published by respondent Kozubowski on September 10, 1980, in the Official Journal of Proceedings of the Chicago City Council. In full force and effect at that time were sections 3-2-7 and 3-4-14 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, pars. 3-2-7 and 3-4-14), which provided:
"§ 3-2-7. Except as otherwise provided in this Code, whenever there is a vacancy in any elective municipal office, the corporate authorities may order a special election for the purpose of filling the vacancy. Whenever a special election is ordered for this or any other purpose under this Code, the corporate authorities shall appoint the judges, canvass the returns, and otherwise provide by ordinance for conducting the election in the manner, as nearly as may be, as that set out in the Election Code, approved May 11, 1943, as heretofore and hereafter amended. The corporate authorities shall give notice of the offices and questions to be voted upon in the special election by publishing notices for the same length of time and in the same manner as is required in the case of a general municipal election.
§ 3-4-14. An alderman may resign from his office. A vacancy occurs in the office of alderman by reason of resignation, failure to elect or qualify, death, permanent physical or mental disability, conviction of a disqualifying crime, abandonment of office, or removal from office or of residence from the ward. If a vacancy occurs in the office of alderman in any such manner or otherwise in any city having a population under 500,000, the vacancy shall be filled at the next succeeding general election for aldermen at which time the vacancy shall be filled for the unexpired balance of the term.
The provisions of Sections 3-2-7 and 3-2-8 relating to special elections to fill vacancies shall not apply to the filling of the vacancy in the office of aldermen in any city having a population under 500,000. The mayor with the advice and consent of the city council may appoint a person to serve as alderman in the vacancy until the next general election, as provided in this section and until the person elected qualifies.
In any city where there is a vacancy in the office of alderman, not filled by election, when at the occurrence of said vacancy, the unexpired term was more than 27 months in length, the corporate authorities shall call a special election to fill said vacancy, notwithstanding the other provisions of this section." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 24, pars. 3-2-7, 3-4-14.)
Effective December 1, 1980, these statutes were amended to read:
"§ 3-2-7. Except as otherwise provided in this Code, whenever a vacancy occurs in any elective municipal office, with at least 28 months remaining in a 4-year term, and the vacancy occurs at least 130 days before the consolidated election next scheduled under the general election law, the office shall be filled for the remainder of the term at that consolidated election. Whenever an election is held for this purpose, the municipal clerk shall certify the office to be filled and the candidates therefor to the proper election authorities as provided in the general election law. Until the office is filled by election, the mayor or president shall appoint a qualified person to the office, subject to the advice and consent of the corporate authorities. Municipal officers appointed or elected under this Section shall hold office until their successors are elected and have qualified.
§ 3-4-14. An alderman may resign from his office. A vacancy occurs in the office of alderman by reason of resignation, failure to elect or qualify, death, permanent physical or mental disability, conviction of a disqualifying crime, abandonment of office, or removal from office or of residence from the ward. If a vacancy occurs in the office of alderman in any such manner or otherwise in any city having a population under 500,000, the vacancy shall be filled for the unexpired balance of the term at the next succeeding consolidated election as provided in Section 3-2-7. The mayor with the advice and consent of the city counsel may appoint a person to serve as alderman in the vacancy until the next consolidated election, as provided in this section and until the person elected qualifies." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 24, pars. 3-2-7, 3-4-14, effective Dec. 1, 1980.)
Petitioner argued below that because at the time of Alderman Young's resignation more than 28 months remained in his term and more than 130 days remained before the next consolidated election, under either statutory scheme respondents had a duty to hold an election to fill the vacancy and she, as a resident and registered voter in the 44th Ward, had a right to seek performance of that duty.
The cause was first heard on December 8, 1980. Petitioner had moved for an emergency hearing because, if the court were to determine that February 24, 1981, was the appropriate election date then under the applicable election provision December 15, 1980, would be the last day on which candidates could file their petitions. (Ill. Rev. Stat. 1979, ch. 46, par. 10-6, eff. Dec. 1, 1980.) The court gave respondents until December 10 to file an answer or otherwise plead and set arguments for that date.
On December 10 respondents filed a motion to strike and dismiss along with a supporting memorandum in which they contended that there was no right to an election under the new law and that petitioner was not entitled to mandamus relief. Arguments on the motion were heard the same day and the court announced that it would issue its ruling the following day. Respondents informed the court that if their motion was denied they would seek to present testimony at a hearing in opposition to the petition. The court inquired what facts they would contest at such a hearing. In response the respondents cited only one factual allegation they would seek to challenge, although they also indicated that others might arise through discovery. The one fact cited was the alleged refusal by city officials of all demands to call an election.
The following day, December 11, the court denied respondents' motion. In a memorandum opinion the court found that the new law was applicable and that by its terms respondents were required to hold an election to fill the vacancy. The court ordered respondent Kozubowski to certify to the Board of Election Commissioners that a vacancy occurred in the office of alderman of the 44th Ward as of September 10, 1980, said certification to be filed no later than 5 p.m. December 11, 1980. The Board was ordered to perform all acts necessary to conduct an election on February 24, 1981, ...