dissenting:
The authority of a county central committee to nominate candidates under section 7 — 11.1 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 7 — 11.1) is, by the express terms of that statute, limited to situations where a vacancy has occurred in an elective office and that vacancy is to be filled by election pursuant to section 25 — 11 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 25— 11). Under section 25 — 2 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 25 — 2), an elective office is deemed to be vacant upon the happening of any one of eight enumerated events before the term of such office has expired, including the death of the incumbent, his or her resignation, or his or her removal from office. None of the events listed in section 25 — 2 has been shown to have taken place in this case. To the contrary, petitioners conceded at oral argument that the offices for which they were nominated continue to be occupied. There being no “vacancies” for those offices, section 7 — 11.1(3) cannot apply, and petitioners’ nominations pursuant to that statute were improper.
The applicability of section 7 — 11.1(3) (Ill. Rev. Stat. 1985, ch. 46, par. 7 — 11.1(3)) was not questioned below and has been raised by respondent for the first time on appeal. Petitioners therefore assert that the issue must be deemed to have been waived. As petitioners themselves have acknowledged in their reply brief, however, the rule of waiver is not absolute. It is a limitation on the parties, not the courts. Supreme Court Rule 366 (87 Ill. 2d R. 366) permits a reviewing court, in the exercise of its responsibility for a just result and for the maintenance of a sound and uniform body of precedent, to ignore considerations of waiver and decide a case on grounds not properly raised or not raised at all by the parties. (City of Wyoming v. Liquor Control Com. (1977), 48 Ill. App. 3d 404, 407-08, 362 N.E.2d 1080, 1083; Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 609, 456 N.E.2d 958, 964.) Similarly, our supreme court has held that assumptions by the parties as to the interpretation and applicability of a statute cannot preclude a reviewing court from conducting an independent assessment of the statute and in appropriate cases holding contrary to those assumptions. (People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App. 3d 675, 677, 281 N.E.2d 757, 759, citing City of Aurora ex rel. Egan v. YMCA (1956), 9 Ill. 2d 286, 137 N.E.2d 347.) Although a court of review should not and will not consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at trial (Hux v. Raben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831, 832), the concession by petitioners that the offices for which they were nominated are currently occupied precludes such a possibility here. Given that the incumbents remain in office, no possible additional evidence could be adduced to alter the conclusion that section 7 — 11.1(3) (Ill. Rev. Stat. 1985, ch. 46, par. 7 — 11.1(3)) is inapplicable. To this extent the majority is correct.
Petitioners themselves have never claimed that their nominations can be legitimized under any provision of the Election Code other than section 7 — 11.1(3) (Ill. Rev. Stat. 1985, ch. 46, par. 7 — 11.1(3)). The majority attempts to invoke section 7 — 61 (Ill. Rev. Stat. 1985, ch. 46, par. 7 — 61), which states that a vacancy in nomination will be deemed to have occurred:
“when a candidate who has been nominated under the provisions of this Article 7 dies before the election (whether death occurs prior to, on or after the day of the primary), or declines the nomination; provided that nominations may become vacant for other reasons.” (Ill. Rev. Stat. 1985, ch. 46, par. 7-61.)
It further states:
“If the name of no established political party candidate was printed on the consolidated primary or general primary ballot for a particular office and if no person was nominated as a write-in candidate for such office, a vacancy in nomination shall be created which may be filled in accordance with the requirements of this section.” Ill. Rev. Stat. 1985, ch. 46, par. 7-61.
In this case, however, there is no way to tell from the record whether any of these specified events took place. The evidence does not disclose whether any candidate of any party appeared on the primary ballot or was nominated by write-in for either of the offices at issue here. One cannot tell whether any Republican candidates who may have been so nominated died or proved unwilling to stand for election on November 4, and there is no factual basis to find any other legally cognizable reason why the nominations might be considered vacant under the statute. “[I]t is not the function of a reviewing court to tread beyond the record and to engage in speculation.” (In re Marriage of Glessner (1983), 119 Ill. App. 3d 306, 313, 456 N.E.2d 311, 316.) Yet, that is precisely what the majority has done. Its apparent confidence that a vacancy in nomination occurred is completely unfounded. Under these circumstances, the statute can be of no aid to petitioners here.
For the foregoing reasons, I believe that petitioners’ nominations were not authorized under the Election Code and their names were properly stricken from the ballot for the November 4, 1986, general election. The judgment of the circuit court of St. Clair County should therefore be affirmed.