APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 10, 1973.
Plaintiff, a full time fireman for the Village of Schiller Park brought a two count complaint in mandamus and declaratory judgment seeking promotion to the rank of lieutenant from an eligible register therefor posted by defendant and for payment of a back salary differential. He appeals from a judgment denying the promotion and back pay which, inter alia, found (1) the examination to be meaningless and the promotional eligibility list to be a nullity and (2) that the office of fire lieutenant was never established in that it could not be created by an appriation ordinance and/or a salary ordinance.
Since 1967 the Village Fire Department has consisted of both part time volunteer members and full time civil service firemen. The plaintiff had been a full time fireman since May 1, 1967.
On June 1, 1970, section 5.101 of article I, chapter 5 of the Village Code was amended to read as follows:
"Section 5.101 ESTABLISHMENT. There is hereby created and established for the Village of Schiller Park a Fire Department which shall consist of a Fire Chief and the following part time volunteer members of said Fire Department: a Fire Marshal, two (2) Captains, three (3) Lieutenants, a Secretary, a Treasurer and such further part time volunteer members of said Fire Department as may from time to time be provided by ordinance by the President and Board of Trustees of the Village of Schiller Park. Further, there shall be ten (10) regular full time Firemen in said Fire Department. Further, all members of said Fire Department shall be subject to the orders of the Chief of the Fire Department who shall be appointed by the Village President with the consent of the Board of Trustees."
Subsequently, on July 6, 1970, the Village adopted an ordinance which provided pay schedules and compensation for Village employees for the fiscal year commencing May 1, 1970, and including the salary of fire lieutenant at $11,000. On the same date the Village passed the annual appropriation ordinance for the fiscal year beginning May 1, 1970, and ending April 30, 1971. In this ordinance provision was made for salaries of employees of the fire department, including an appropriation of $1,800 for the salary of each lieutenant of volunteers and $33,000 for salaries of full time lieutenants.
On August 17, 1970, defendant issued a notice of an examination for the rank of full time lieutenant in the fire department of the Village and the examination was held on August 22, 1970, following which on September 3, 1970, the defendant posted the resultant eligible register and plaintiff's name appeared on it as the sole successful candidate.
On February 11, 1971, plaintiff wrote the Village President and defendant requesting promotion to fire lieutenant to which the President replied that section 5.101 did not provide for the position of regular full time fire lieutenant and, therefore, neither the Village nor the defendant was empowered to make such an appointment. On March 1, 1971, plaintiff made a formal written demand for his promotion and payment of back salary differential, which was not complied with and the instant proceeding was commenced. Subsequently, plaintiff was informed by defendant it had received a legal opinion that the eligible list was a nullity and that, accordingly, it had been cancelled. The appropriation ordinance for the fiscal year commencing May 1, 1971, made no provision for salary of full time lieutenants.
Plaintiff was never appointed nor did he at any time perform duties as a full time lieutenant.
Basic to plaintiff's position is his contention that the salary schedule and the annual appropriation ordinances created the position of lieutenant in the fire department and that under section 10-2.1-15 *fn1 of Chapter 24, Ill. Rev. Stat. 1971 (the Fire and Police Commissioners Act adopted by the Village in 1957), the position having been established, the defendant properly held the examination and should have promoted him.
Against this position, the defendant argues that the office of fire lieutenant was unknown to the common law and not having been created by statute it could only be brought into existence by a Village ordinance. It points out that section 5.101 of the Village Code provided for ten full time firemen but no full time lieutenants and it contends that the pay schedule and appropriation ordinances did not, either singly or in combination, create the office which, it maintains, could come into existence only by an ordinance amending section 5.101 to provide for one or more full time fire lieutenants and since no such action was taken, there were no such offices.
Plaintiff, without withdrawing from his position that the office was established by the pay schedule and appropriation ordinances, also contends that, assuming they did not, the fact that no ordinance created the office of full time fire lieutenant is irrelevant. He argues that he need only show there was in existence the position of full time fire lieutenant and he claims that the pay schedule and appropriation ordinances, together with the fact that an examination was held and his name posted to the eligible register established that the position of fire lieutenant did exist. He then argues that defendant should have appointed him from the register and by virtue of section 10-2.1-4 *fn2 of chapter 24, Illinois Revised Statutes 1971, the position then would have been elevated to the status of ...