(concurring and dissenting).
I concur in that part of the majority opinion which holds that “the judgment of the district court was founded on an erroneous premise of lack of jurisdiction * * I further agree that the judgment must be reversed and the cause remanded. And, I would agree with the majority that the length of time remaining for possible service of a successor representative when the district court spoke on March 16, 1970 was not de'minimus.
As best I can understand the meager information made available to us on this “quickie” appeal, this was the only question the district court considered and passed upon. This is the principal question that was argued and presented to us on this expedited appeal. If so, then the normal and reasonable course to pursue would be to reverse and remand for a hearing on the merits. There has been no such hearing to date. We do not have the views of the district court on the several important legal issues raised and the grave constitutional questions to be decided for the first time.
The majority opinion undertakes to resolve with finality the meaning and applicability of Article I, § 2, Clause 4 and Article I, § 4 of the Federal Constitution, as well as Title 2, U.S.C. § 8, together with 46 Ill.Rev.Stats. § 25-7. With deference, I suggest that we are not in a position to do this now.
The majority aptly observes that the delay and short time remaining for the disposition of this appeal is not to be charged against the district court nor to this court. And I agree with their further observation “that delay may eventually render the calling of a special election of so little use that the duty will no longer be enforceable.”
I am compelled to conclude, however, that the constitutional questions, as well as the related legal issues, should first be thoroughly aired and considered by the learned district court. If an appeal therefrom is to be taken, we can then consider and treat the issues raised in an atmosphere of deliberative understanding and not on a cafeteria line of judicial service.
Such a restrained procedure may well result in rendering the enforcement of a special election moot in this case. But, that need not end the matter. As in Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969), the mere passing of the time during which the requested mandatory injunctive remedy could be afforded here would not require the dismissal of this action. Rather, as in Moore, as long as Illinois maintains her present system of certifying elections to fill Congressional vacancies this problem is “capable of repetition, yet evading review. * * * The need for its resolution thus reflects a continuing controversy in the federal-state area” which should be resolved.
I believe this fresh constitutional matter presents the crucial question at issue. Declaratory judgments to determine such controversies should not issue without the opportunity for an informed and full consideration. This has not been afforded to either the district court or to us.