APPEAL from the Circuit Court of Lake County; the Hon. ROBERT
K. McQUEEN, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The Village of Round Lake Beach, by four of its trustees, sought a declaratory judgment that Rodney Brenner, the mayor of the village, lacked the authority to appoint Peter L. Dakuras as temporary successor to the office of chief of police without the advice and consent of the board of trustees of the village. The village also sought a temporary restraining order and a preliminary injunction. The mayor counterclaimed requesting a declaratory judgment that he had the power of temporary appointment and that the board had no authority to amend an ordinance so as to deprive him of that power. The temporary restraining order against the mayor was subsequently dissolved. Preliminary injunctive relief was denied. The court further restrained the board of trustees from amending the ordinance governing appointment of any village officer. The village appeals.
We first consider the motion of the defendants to dismiss the appeal, which we have taken with the case. The mayor and Dakuras contend principally that the appeal is premature because the motion to dismiss the complaint for declaratory judgment for failure to state a cause of action remains pending in the trial court so that the merits have not been determined. We deny the motion. The trial court's order of December 24, 1981, which dissolved the temporary restraining order and also denied the plaintiffs' motion for a preliminary injunction was based on the recited finding "that the Defendant Brenner lawfully appointed Defendant Dakuras to the office of Temporary Chief of Police on December 2, 1981." The order dated December 31, 1981, which enjoined the village board from enacting any ordinance which would remove the power of the mayor to appoint recited that it came on for hearing on the countercomplaint for declaratory judgment which both parties had agreed to have proceed to hearing on December 24; confirmed its previous finding that the village was not a commission form of government and not a home rule unit, that the chief of police is a village officer; found that the only form of municipal government which authorized the city council or the board of trustees of the village to exercise the powers of appointment and removal is the commission form; noted that the board had sought to remove the power to appoint from the mayor and was planning to override the mayor's veto of that ordinance and enjoined the board from enacting any such ordinance.
• 1 The test applied to whether litigation has been terminated in the trial court is one of substance, not mere form. (People ex rel. Pollution Control Board v. Fry Roofing Co. (1972), 4 Ill. App.3d 675, 678.) We conclude that the trial court did reach the merits of the declaratory judgment action filed by the village by ruling on the legal questions which were raised in the defendants' counterclaim for declaratory judgment. This ruling disposes of all of the grounds raised in the motion to dismiss. There are no remaining factual issues pending in the trial court and the December 31 order ruled on the issue as a question of law involving the construction of the applicable statutes. The trial court's orders had the effect of disposing of the entire controversy on its merits and we will therefore proceed to review the cause.
It is conceded that the village is a non-home-rule unit and has not adopted the commission form of government. It further appears undisputed that the village, by local ordinance 62-22, has adopted and is governed by section 10-2.1-1 et seq. of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10-2.1-1 et seq.). Mayor Brenner claims the power of temporary appointment pursuant to sections 3-7-1 and 3-7-2 of the Illinois Municipal Code, which provide, as pertinent:
"Instead of providing for the election of the following officers * * *, the city council, in its discretion, may provide by ordinance * * * for the appointment by the mayor, with the approval of the city council, of a city collector, a city marshal, a city superintendent of streets, a corporation counsel, a city comptroller, or any of them, and any other officers which the city council considers necessary or expedient. * * * [T]he city council, by a like vote, may discontinue any office so created, * * *." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 24, par. 3-7-1.)
"Unless otherwise specifically provided by statute, all officers of any city shall be appointed by the mayor by and with the advice and consent of the city council. Vacancies in all such city offices may be filled in the same manner. * * *
* * * If such officer ceases to perform the duties of or to hold his office * * * the mayor may appoint a temporary successor to the officer." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 24, par. 3-7-2.)
The trial court's ruling was based on these provisions and its consideration of Pechous v. Slawko (1976), 64 Ill.2d 576, which it found controlling.
We begin our analysis with reference to section 3-8-1 of the Illinois Municipal Code whereby the president appoints village officers "with the advice and consent" of the board of trustees (Ill. Rev. Stat. 1979, ch. 24, par. 3-8-1). This statute does not mention any temporary appointive power; however, by section 3-12-2 the president "except as otherwise provided in this Code, shall have the same powers * * * as the mayor of a city." (Ill. Rev. Stat. 1979, ch. 24, par. 3-12-2.) Thus a village president, having appointed a temporary successor to village office, may claim that he is acting with the same power by section 3-12-2 as vests by section 3-7-2 in the mayor.
Plaintiffs point out that such appointments are limited to "offices," and contend that by local ordinance 4-1-1 the chief of police is not a village officer whose appointment is subject to the Illinois Municipal Code, but rather that the ordinance authorizes only a place of employment:
"4-1-1. Department Created
There is hereby continued, created and established an executive department of the Village, to be known as the Police Department. The Police Department may consist of one Chief of Police, five (5) Sergeants, twelve (12) Patrolmen and such other special patrolmen, patrolwomen, watchmen and employees as may be lawfully provided from time to time." (Emphasis added.)
We agree that the office of policeman is unknown at common law and exists only when fixed by statute or ordinance (Kelly v. Chicago Park District (1951), 409 Ill. 91, 96-97; Krawiec v. Industrial Com. (1939), 372 Ill. 560, 563), but further determine that the chief of police by statute and ordinance holds a village office. Generally, an office is a place in a governmental system created or recognized by the law of the State, which either directly or by delegated authority assigns to the ...