author: PER CURIAM.

text:
    William L. Foreman, Appellee, v. Civil Service Commission of City of Chicago, Stephen E. Hurley et al., as Civil Service Commissioners, Appellants.
    Gen. No. 46,464.
    First District, Second Division.
    September 20, 1955.
    Released for publication October 25, 1955.
    John J. Mortimer, Corporation Counsel of City of Chicago, for appellants; L. Louis Karton, Head of Appeals and Review Division, and Arthur Magid, Assistant Corporation Counsel, both of Chicago, of counsel.
    Thaddeus B. Rowe, and W. Elbert Washington, both of Chicago, for appellee; Thaddeus B. Rowe, and W. Elbert Washington, of counsel.
   PER CURIAM.

Plaintiff, a patrolman in the Department of Police in the City of Chicago, filed this action under the Administrative Review Act to review an order of the Civil Service Commission of the City of Chicago which had found him guilty of misconduct and ordered him discharged from his position. The trial court after a hearing entered an order reinstating the plaintiff to his position conditioned on plaintiff’s filing a waiver of all back salary. As a part of this order the court found (1) that the findings of the Commission were not contrary to the manifest weight of the evidence, but that the Civil Service Act gave the Commission power to punish or remove from the service for a period shorter than complete discharge from the service; (2) that the decision of the Commission was harsh and not warranted by the evidence; and (3) that a waiver by plaintiff of all back salary was sufficient punishment, under the evidence, for his failure to obey the rules and regulations of the Department of Police. The issues raised on this appeal by the Commission are based on these findings and the action of the trial court. They are similar to those involved in the case of Walter G. Nolting v. Civil Service Commission of City of Chicago et al., 7 Ill.App.2d 147.

The relevant facts as revealed by the record are that on November 28 and 29, 1951, the plaintiff was assigned to a tour of duty that commenced at 12:00 o’clock midnight and ended at 8:00 o’clock a. m. Prior to reporting for duty on the evening in question he went to a prize fight at the Chicago Stadium and remained there until about 9:30 p. m. When on duty he was required to call in hourly by telephone from post pull boxes. On the morning of November 29, he made his first, second and third calls, the last one being at 2:29 a. m., and made no further calls thereafter. He left his post shortly after his 2:29 a. m. call and went to his home. He remained there until about 5:15 a. m. when he was taken into custody by Sergeant Kelleher of the Seventh District Station.

Sergeant Kelleher testified that their station had received a call from a Mr. Trice who reported he was having difficulty with patrolman Foreman. He and a uniformed squad met Mr. Trice and went to plaintiff’s home. They were admitted by plaintiff who was in uniform. Trice testified that he called the police because his wife, from whom he was separated, was at Foreman’s home. Foreman’s wife was visiting at her mother’s home. Trice and his wife had been friends of the Foremans. He called his wife on the telephone at Foreman’s home and asked to see her. He arrived at Foreman’s home a few minutes after midnight. His wife told him that she was there to wash some of her clothes. He told her she should not be there and asked her to go either to her father’s home or to one of Mr. Trice’s relatives in the city. Trice said Foreman came in at about 2:00 o’clock in the morning and entered into the discussion as to where Mrs. Trice should go. Mrs. Trice refused to go with her husband and insisted that plaintiff take her to the streetcar and that she would go to her home. There was an altercation between Trice and plaintiff when plaintiff sought to drive Mrs. Trice away in his car. Trice tried to prevent plaintiff from doing this by jumping on the hood of the car. Plaintiff pushed him off and drove away with Mrs. Trice. Trice then called the police station.

Sergeant Kelleher took plaintiff before Lieutenant Collins at the station to which plaintiff was assigned. The Lieutenant asked him why he was absent from his post. Plaintiff made no explanation at that time. In a written report made later he stated that the reason for leaving his post was to go home to eat. At the hearing before the Commission he stated for the first time that he had eaten some food that did not agree with him and his “stomach was griping him.” He therefore took a laxative to relieve the condition before reporting for duty. While on duty he developed diarrhea and soiled his clothes, and for that reason he returned to his home to make a change and to have something to eat to relieve his stomach. He stated that before leaving his post at about 3:00 a. m., he did make a call to the station. He could not reach the sergeant who was in charge of the desk but left word for them to call him at home at 3:30.

The officer in charge of the desk who received the hourly reports on the pulls said that he was on duty at all times and received no call from plaintiff after his pull at 2:29 a. m. Lieutenant Collins testified that when Mr. Trice and plaintiff appeared before him plaintiff made no statement that he was sick, had diarrhea or soiled his clothes. Plaintiff admitted that at no time did he inform Lieutenant Collins of these facts. When Mr. Trice told Lieutenant Collins the details of the altercation plaintiff did not deny it. Plaintiff admitted that no one gave him permission to leave his post and that the only person who could have given such permission and who did not was Lieutenant Collins.

Mrs. Trice testified for plaintiff. She said she came to plaintiff’s home about 8:30 in the evening to wash some clothes. She did not know that plaintiff’s wife was away. She substantiated his story about going to the stadium, his return home and the taking of some medicine. She said he called her a little before 3:00 o’clock and told her that he was ill and was coming home to change his clothes and that he was going to call the station. She stated that plaintiff changed his clothes which had been dirtied as a result of the diarrhea. When plaintiff came home she admitted that her husband was there and that she was having an argument with him. She denied there were any difficulties between her husband and plaintiff. She said that plaintiff told them he did not want a fight in his home and that they had to leave. She admitted that Foreman took her in his car and that her husband attempted to stop them.

Five witnesses testified against plaintiff at the hearing before the Civil Service Commission. Plaintiff and Mrs. Trice were the only ones who testified on his behalf.

It is clear from an examination of the record that the charges against plaintiff of abandoning his post during the tour of duty were amply substantiated by the evidence. The charges and ultimate findings were not arbitrary or motivated by caprice, politics or bias. The charge against the plaintiff of leaving his post of duty without being regularly relieved and without permission from his superior officer is a very serious offense. If we were to permit the trial court to substitute its judgment for that of the Commission under such circumstances, enforcement of discipline in a police force of over 7,000 men would soon be meaningless. Our opinion in the Molting case discusses each of the issues raised by the Commission on the appeal in the instant case and we adopt the reasoning and conclusions in that case as our opinion on those issues in this appeal.

Plaintiff makes the contention for the first time on appeal that since Section 12 of the Civil Service Act, Ill. Rev. Stat. 1953, ch. 24½, par. 51 [Jones Ill. Stats. Ann. 23.052], limits the suspension period of 30 days, the hearing on the charges must be held within such 30-day period; that the 30-day period having expired without a hearing, plaintiff’s suspension terminated and he was automatically reinstated to his position; that, therefore, the Commission had no jurisdiction thereafter to try him.

The record shows that plaintiff was suspended by his superior officer on December 4, 1951. The charges were filed against Mm with the Commission on December 12, 1951. The hearing pursuant to notice was set for January 9, 1952, but at the request of plaintiff the case was continued to February 6, 1952. The question raised by this issue is whether it is mandatory under the statute that an officer against whom charges of misconduct are filed with the Commission must be suspended in order that the Commission have jurisdiction to try him. The statute does not impose such a requirement. It is discretionary with the department employing the particular officer involved as to whether he should be suspended during the pendency of charges against him before the Commission. The statute, it is true, limits the length of tMs suspension. There is, however, no express language that charges must be filed, witnesses heard and the report of the Commission disposing of the charges filed within the 30-day period. We conclude that it would be unreasonable to find that it is the statutory intent to impose a fixed period of such short duration within which the Commission must hear and determine a cause or else lose jurisdiction thereof.

The judgment of the Superior court is reversed and the decision and findings of the Civil Service Commission are sustained.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Wellington Martin, and Anton Topinka, Appellees, v. Civil Service Commission of City of Chicago, Stephen E. Hurley, President, and Albert W. Williams, Member of Civil Service Commission, Appellants.
    Gen. No. 46,501.
    First District, Second Division.
    September 20, 1955.
    Rehearing denied October 25, 1955.
    Released for publication October 25, 1955.

      John J. Mortimer, Corporation Counsel of City of Chicago, and John C. Melaniphy, Acting Corporation Counsel of City of Chicago, for appellants; L. Louis Karton, Head of Appeals and Review Division, and Arthur Magid, Assistant Corporation Counsel, both of Chicago, of counsel.
    Euclid Louis Taylor, of Chicago, for appellees; William C. Wines, of Chicago, of counsel.
   PER CURIAM.

Plaintiffs, Wellington Martin and Anton Topinka, patrolmen in the Department of Police in the City of Chicago, filed this action under the Administrative Review Act to review two orders of the Civil Service Commission finding them guilty of misconduct and ordering them discharged from their positions. Separate charges and specifications had been filed with the Commission against each plaintiff. By stipulation of the parties the cases were tried together. The Commission, however, entered a separate finding and decision in each case. The trial court after a hearing-entered an order reinstating each of the plaintiffs on the ground that the findings and decision were not supported by the record and were against the manifest weight of the evidence. The Commission appeals from these findings.

It is the contention of the Commission (1) that the findings were fully sustained by the evidence; (2) that the misconduct charged against plaintiffs and established by the evidence was of sufficient seriousness to constitute adequate cause for the orders of discharge; and (3) that the Commission has no power to fine or suspend but only the power to discharge.

The trial court prior to the entry of the order complained of made an oral statement. It is as follows:

“. . . I have carefully read the entire record in both cases. I find that the findings of the Civil Service Commission of the City of Chicago are manifestly against the weight of the evidence.

“In both cases there was some evidence of foolish-. ness, but neither is there evidence of culpability.

“The penalty imposed by the order of the Civil Service Commission in discharging and removing the respondents from their positions with the Police Department is so severe that I would regard it as cruel punishment.

“In my opinion, an order taking away a man’s means of livelihood, together with the various benefits going with it, is much more severe than a fine or imprisonment.

“Por that reason, I consider it error for any tribunal or any other judicial body to deprive a man of his livelihood. . . .”

It is apparent from this statement that the court concluded that there was evidence to sustain the charges against the plaintiffs but was of the opinion that the penalty was too severe. The issues raised on this appeal are therefore substantially the same as those involved in the case of Walter G. Nolting v. Civil Service Commission et al., 7 Ill.App.2d 147.

The relevant facts revealed by the record as to plaintiff Anton Topinka are that he had been a police officer for twenty years. On January 8, 1953, at about 7:00 p. m. he arrested one Robert Moore on complaints that Moore had committed sex crimes against children. Another officer, Dan Grotty, was with him driving the squad car. Moore, after his arrest, was placed in the back seat of the car and Topinka sat with Grotty in the front seat. Moore said that while he was being driven to the station he asked Topinka to get him a lawyer. Topinka asked him if he had any money. He told him he had $130 and Topinka asked to see it. Moore took $130 out of his pocket and handed it to Topinka who counted it. Topinka told Moore he would take the money, get him a lawyer and see what he could do. Topinka, when he testified, denied that there was any conversation in the squad car regarding the $130; that he offered to get Moore a lawyer, or that he took any money from him. On direct examination Officer Grotty said he did not hear any conversation about $130; did not see Moore hand any money to Topinka, and nothing was said about getting a lawyer for Moore. However, on cross-examination Grotty admitted that there was some talk about a lawyer and that Topinka talked to Moore about money while riding in the squad car. He further stated that Moore knew he was wanted by Officer Martin and that he had money for a lawyer. He said that he and Topinka searched Moore at the time of the arrest, found no gun on him, but that he had something in his pocket which may have been a pocketbook. Moore in testifying said that he was searched again when he entered the police station. Topinka was present. Moore had only forty-two cents in his pocket at that time. After giving the desk sergeant the usual information as to his identity and address he was taken to a cell. The next day he sent a message by the turnkey to Topinka telling him he wanted his $130. Topinka came and Moore asked him about the money. Topinka told him to take it easy and everything would be all right. Moore did not get his money. Subsequently Moore said after he had been taken before the other plaintiff, Wellington Martin, a juvenile officer, where he had been identified by certain children who accused him of sex charges, he again talked with Topinka. Topinka asked him if he was scared. He told him that he was not going to take anything from him, only try to help him. Topinka then left and went to the front part of the station, got an envelope and showed it to Moore and told him that his money was in it and he was going to put it in the safe until the next day for safekeeping. Moore assented. The next morning, January 9, Topinka came to Moore’s cell and handed him a brown envelope which contained only $90. Moore asked Topinka about the other $40. Topinka said that he had to divide it between four different people, one of them a lawyer, and three others, each getting $10. Moore never saw Topinka again after that.

Topinka testified that when he brought Moore to the station he told the desk sergeant that he had the man for whom the “wanted” message had been sent out by Officer Martin. On the way to the lockup Moore told him he had $90 on his person and was afraid it would be stolen if he fell asleep. Moore gave him the $90 to keep. He took the $90, put it in a police envelope and placed it in the safe in the front part of the station. Before anything else could be done he was sent out on a call with his partner, Officer Grotty, because at that moment a man came into the station complaining that he had been threatened. He and Grotty went out in the squad car on a call in response to this complaint. He later returned and did nothing about inventorying the $90 he had left in the safe. He did nothing the next day as he had forgotten about it. On the following day, however, he did recall it and told Sergeant Sheahan about it. He made out a prisoner’s receipt which was signed by the sergeant and delivered the receipt to Moore. He denied that he gave Moore the $90 or that he told Moore he had divided the remaining $40 among four different people.

On cross-examination Topinka admitted he never made any report to his superior officer with regard to the complaint which he claimed was made just after he placed the $90 in the safe. He admitted he was familiar with the rule which required that he make a report of all complaints. He also admitted that he was familiar with the rule requiring a police officer to turn over all property discovered or taken from a person arrested to an appropriate officer without delay; that forty-five hours elapsed between the time he received the $90 from Moore and the time he turned it over to Sergeant Sheahan to have it inventoried. He admitted that it was not the normal thing to put $90 in an unlocked safe; that it was wrong but that because of the complaint made by the man he failed to turn it over to the desk sergeant. He admitted that it was not customary for an arresting officer to take money from a prisoner when he was putting him in the lockup and that the lockup keeper should do it. Sergeant Sheahan said that Topinka came to him with an envelope and told him that he had some money he had taken from a prisoner two days before and had forgotten to turn it in.

Robert E. Ryan, a captain, testified that when a person is arrested and brought to the station to be locked up, according to the rules the proper procedure is that such person is searched by the lockup keeper with the arresting officer standing by until the search is completed. The lockup keeper takes all valuables from the prisoner. Any money is turned over to the desk sergeant who issues a receipt to the prisoner with the amount on it. At the scene of the arrest the arresting officer makes an immediate search for concealed weapons'. Ryan also said that at times in a busy station the arresting officer, if the lockup keeper is otherwise engaged, might take any money and deliver it to the desk sergeant.

The relevant facts pertaining* to plaintiff Wellington Martin are that Moore, shortly after he was placed in a cell by Topinka, was taken out and brought up to the juvenile office on the second floor of the police station, Here he saw Martin. Martin accused him of exposing himself to little children. Some of the children and their parents who had made complaints were there and identified him. Martin told him, “You are going to the penitentiary now, I will see you go to the penitentiary.” After the people left Martin took a statement from Moore. Martin asked him why he gave his money to Topinka. He told Martin he wanted to. Martin said that Topinka couldn’t do him any good, that he (Martin) was the arresting officer and he could do more for him than Topinka. Martin told him he could get his charges reduced. Moore said, “Okay.” He was then taken down to the cell. A little later Martin came and asked Moore if he had his money. Moore told him that he did not and Martin said, “Well, get it.” Martin also asked if he needed anything and Moore said, “A couple of dollars.” Martin gave it to him and he gave it to the turnkey to call Topinka for him. After he received the $90 from Topinka, Martin came and asked if he had the money. Moore handed him the $90 in the brown envelope. He told Moore that he would see what he could do. On January 10 Martin saw Moore and asked him about the $90. Martin said he was supposed to divide it among several people and that it would be taken care of. He said he never received any part of the $90 back from Martin.

Moore was later taken to the County Jail. On January 12 Martin came to see him and asked him if he had any money coming from where he had worked. Moore told him that he had $57.13 coming and asked Martin to obtain the check. Martin obtained the check, had Moore endorse it, and then cashed it. He retained $7.13 and inventoried the balance of $50 in Moore’s name at the County Jail.

Moore was tried and convicted of committing sex crimes against children and was sentenced to the penitentiary. After his conviction he wrote Martin on January 14 telling him that since he did not get his charges reduced to misdemeanors he would like for him to return the $90 and if he did not do so he would complain to the judge. Moore never heard from Martin and on January 22 he complained in writing to the Commissioner of Police.

Martin testified that he had been a police officer since January 22, 1946, and in November of 1946 became a juvenile officer; that prior to entering the police service, during World War II he had been in the United States Army; that while on the force he received a merit citation for outstanding service in a drive to curb juvenile delinquency. He said he first met Moore in 1950 in connection with a complaint from a parent that Moore had been molesting her two boys. He was tried and convicted on this charge. Subsequently Moore was tried and convicted on a similar charge. Prior to January 8 he had received complaints that Moore was again molesting children. He sent out a “wanted” message for Moore. He was informed on the evening of January 8 that Moore had been arrested and was being held for him. He had the parents and the children who had made the complaint come into his office. He then brought Moore in. The children identified Moore as the one who had committed certain sex acts. He made further investigation and found that there were other complaints against Moore. Moore finally admitted the charges against him and signed six separate confessions. Martin testified before the grand jury and at the trial on the charges against Moore.

Martin denied ever having had any conversation with Moore about giving money to another officer on the night he was arrested or any other time. He denied that Moore ever told him he had $130 or had given any other officer any money, such as $40. He denied ever having received $90 from Moore. He said that when Moore was in the County Jail he told him he had no money and that he had a check coming from his employer and that he requested Martin to get it for him. Martin agreed to do so and obtained the check, had Moore endorse it and cashed it. The check was in the sum of $57.13. At the time this was done a lawyer was there. Martin asked the lawyer to change a ten-dollar bill, which he did. From this change he gave Moore $7.25 before taking the check and having it cashed. He cashed the check on January 12, the day of Moore’s trial. He kept the $7.13 to repay him for the $7.25 he advanced to Moore. At the police station he inventoried $50 of the proceeds of the check, put it in an envelope, put Moore’s name and his own name as arresting officer on it, placed it in the safe and told the desk sergeant Coakley that he had done so. He signed the name of Donald Coakley to the inventory for the $50, which was made out at the station. He did this because the sergeant was busy. He did not know it was against the rules. An examination of the inventory which was placed in evidence indicates that there is a very decided difference in his handwriting in signing his own name and in signing Sergeant Coakley’s name. The next day he took the money out of the safe, took it over to the County Jail and there had it inventoried in the name of Moore. He denied that Moore told him to keep $5 for cashing the check or that he took or kept any money for his services in that respect. He stated that the first he knew that Moore claimed he had given $90 to him to reduce the charges to a misdemeanor was when Moore filed the written charges with the Commissioner against him. He was questioned about this and submitted a three-page report to his commanding officer. No statement was made in the report about the $7.25 he had given in cash to Moore. The first statement as to this was when he testified at the hearing on the charges. Captain Ryan testified it was against the rules for an arresting officer to sign the desk sergeant’s name to an inventory but that sometimes in a busy station this was done.

The Commission found that the evidence sustained the charge against Officer Topinka that he failed and neglected to turn over immediately the $90 he obtained from Moore, a prisoner under arrest, to the appropriate officer or person, in violation of the rules and regulations of the Police Department. The Commission further found that the evidence was insufficient to warrant a finding that Topinka was guilty of the remaining charges against him so as to warrant his dismissal from the service. The Commission pointed out that Topinka testified to a forty-five hour delay in the turnover and the inventory of the $90 he received from Moore and that while there was a conflict in the evidence as to whether Topinka took and withheld an additional $40 from Moore, respondent’s furtive and irregular handling of the $90 lent color to the other charges. They decided, however, that it was unnecessary to resolve the conflict in view of its finding of guilty on Topinka’s failure to make a timely inventory of the $90.

The Commission found with respect to Officer Martin that the evidence sustained the charge that he had falsified a police record by placing thereon the signature of another officer, Sergeant Donald Coakley, without his consent and that this constituted conduct unbecoming a police officer and warranted his discharge. The Commission found that the evidence was insufficient to warrant a finding that Martin was guilty of the remaining charges against him so as to warrant his dismissal from the service on those charges. The Commission pointed out in the report that the evidence concerning Martin’s misconduct with respect to inventorying the $50 was not disputed; that while there was a direct conflict in the evidence as to whether Martin accepted money from Moore for services performed in connection with cashing Moore’s check and while respondent’s irregular method of handling the proceeds of Moore’s salary check and his unusual solicitation and effort in that regard in behalf of one whose prosecution he was assisting did not inspire confidence, it was unnecessary to resolve that conflict in view of its finding of guilty on the issue of signing Sergeant Coakley’s name to the inventory without his knowledge or consent.

As we pointed out, it is apparent from the oral statement made by the court prior to the entry of the order that the real basis for the decision was that the court considered the punishment of discharge too severe. An examination of the record clearly reveals that in each case the finding of the Commission on which it based the order of discharge was amply supported by the evidence. It was, therefore, not within the province of the trial court to disturb these findings. Drezner v. Civil Service Commission, 398 Ill. 219.

The question then turns upon the issue as to whether the misconduct of the plaintiffs was trivial and amounted to meré “foolishness.” It is important to the honest and efficient administration of the Police Department that its members act with great care in regard to personal property of value found in the possession of a person taken into legal custody. Any relaxation of discipline in that sphere of police activity can easily result in the demoralization of the Police Department and its members and in the loss of public respect for law enforcement. The very fact that Moore was an unfortunate character afflicted with abnormal sexual tendencies should have tended to render the plaintiffs more, rather than less, careful and scrupulous in their dealings with him and with his property. The Commission in each of its findings and decisions aptly pointed out that Moore’s background of previous convictions and the nature of the sex offenses for which he was arrested made him peculiarly vulnerable to impositions of the character charged against these plaintiffs. In the cases of In re Philip Goodman (1941), 377 Ill. 178, and In re Arnold B. Harris (1943), 383 Ill. 336, attorneys were disbarred where they worked in collaboration with police officers and obtained fees by duress from individuals such as Moore who were charged with sex crimes. It is true these police officers were not charged with extorting money from one accused of perversion, but it was proved that they violated rules of the department designed to prevent such extortion or “shakedowns.” The prevention of such venal acts is one of the responsibilities of the Chief of Police and the Commission. This can be done only by strict enforcement of the rules of the department.

The problem of proper discipline, morale and law enforcement by the Police Department is one directly affecting the administration of justice. The police have the responsibility of apprehending those who violate the law and assisting in the preparation of the cases that are to be brought before the courts for trial. A corrupt and dishonest police officer can persecute the honest and assist the guilty to avoid prosecution. As a result of such dishonesty and corruption, all who are connected with the administration of justice can be brought into disrepute. In this the people of the community and all those connected with the administration of justice are vitally interested.

While the Commission found Topinka guilty only of the charge of neglecting to turn over an arrested person’s property to the appropriate officer without delay, and found Martin guilty only of the charge of signing Sergeant Coakley’s name to the inventory receipt without the latter’s knowledge or consent, it was perfectly proper for the Commission to consider their conduct in the light of the entire evidence in coming to the conclusion that they should be dismissed from the service.

Viewed in this light, we believe the charges that the Commission found were sustained by the evidence, were not trivial and did not amount to mere “foolishness.” The pertinent issues involved in this case are decided by our conclusions in Walter G. Nolting v. Civil Service Commission of the City of Chicago et al., 7 Ill.App.2d 147. We, therefore, adopt those conclusions as conclusive of the issues in this case. The judgment of the Circuit court is reversed and the decision and findings of the Civil Service Commission are affirmed.

Judgment reversed.


text:
    Rupert C. Watkins, Appellee, v. Civil Service Commission of City of Chicago, Stephen E. Hurley, President, and Albert W. Williams, Member of Civil Service Commission of City of Chicago, Appellants.
    Gen. No. 46,504.
    First District, Second Division.
    September 20, 1955.
    Rehearing denied October 25, 1955.
    Released for publication October 25, 1955.

      John J. Mortimer, Corporation Counsel of City of Chicago, for appellants; L. Louis Karton, Head of Appeals and Review Division, and Arthur Magid, Assistant Corporation Counsel, both of Chicago, of counsel.
    Michael F. Ryan, of Chicago, for appellee; Richard F. McPartlin, Jr., of Chicago, of counsel.
   PER CURIAM.

Suit was filed in the Circuit Court of Cook County under the Administrative Review Act to review an order of the Civil Service Commission finding the plaintiff, a patrolman. of the Chicago police department, guilty of conduct unbecoming a police officer and ordering him discharged. The trial court entered a final judgment setting aside the finding and decision of the Civil Service Commission. From such judgment this appeal is taken.

The defendants’ theory is that the evidence before the Commission clearly established that the plaintiff was guilty of the charges filed against him before the Civil Service Commission that he failed and neglected to perform his duty as a police officer in that he permitted a prisoner to escape. The plaintiff’s theory is that the finding of the Civil Service Commission is against the manifest weight of the evidence and that the discharge of the plaintiff was without cause.

There is very little controversy as to the facts. It appears from the record that the plaintiff, a patrolman in the police department of the City of Chicago, at about 11:50 p. m. on October 9,1953 was ordered by his superior officer to guard a prisoner, one Jones, at the County Hospital from midnight until 8:00 a. m. October 10th. Jones had been shot during a holdup attempt and was in a bed in a ward at the County Hospital. The plaintiff knew at the time that Jones had previously escaped under similar circumstances and had been recaptured. Another prisoner, one Carroll, also wounded, was in the same ward as Jones. Jones and Carroll were in beds in a ward about 160 feet long, 60 feet wide, containing 39 to 45 beds arranged across from each other along opposite walls. At the end of the ward farthest from the corridor entrance there was a door leading to a fire escape. The entrance door from the corridor is six feet wide, and the corridor itself is 10 or 12 feet wide. Jones was in the fourth bed along the east wall, near the door to the fire escape. The bed occupied by Carroll, the other prisoner, was about 60 feet away from the bed occupied by Jones, and a person located at one of the beds could not see the other. A screen had been placed about the bed of one of the other patients and was so placed that it covered the fire escape door, and, according to the testimony it also obscured the view of the prisoner Jones’ bed from the corridor. The ward in which the prisoners were confined was a cancer ward and some of the patients were in the terminal stages of the disease. All the shades in the ward were pulled down either completely or partially, the lights were all out except the fire light, and the visibility was bad. In order to inspect the prisoners a flashlight was used. Carroll was handcuffed to his bed, while Jones’ arms and legs were encased in leather shackles.

Plaintiff had been appointed to the police department on March 22,1953. At the time of the occurrence he was specifically assigned to guard Jones. Police officers Johnson and Anderson, who were under Captain Kells of the Chicago police department, had been assigned to guard Carroll. Captain Kells testified that on October 8th he had assigned Officer Johnson to guard Jones as well. Sergeant Lescher testified that Johnson had previously been assigned to guard Carroll and that on October 8th Captain Kells, by special order, ordered Johnson to guard Jones as well and that he (Lescher) read this order to both Johnson and Anderson; that he assigned Anderson also to guard Jones and at the time told Johnson: “Now you have a different prisoner to watch. You have to watch Jones, but there are two of you there now and you are both responsible in case one of you have to go for water or something like that, there are two of you there . . . if one of you have to go to the washroom, still one would be present.” The sergeant also testified that he did not know about the third man being there, referring to the plaintiff, Officer Watkins.

There is no evidence in the record that any instructions were given Officer Watkins with reference to the method of guarding Jones. This was the first time that he had the duty of guarding a prisoner. The odor from the patients in the ward was bad, and on that account the three officers, on their own initiative and without any consultation with or orders from their superior officers, agreed that they would take turns staying in the ward. While one officer was in the ward the other two officers would be in the corridor. The man in the ward would stand guard for five to ten minutes before being relieved, and he would watch both prisoners. Captain Patrick J. Groark testified that it was “absolutely proper procedure” for both officers to station themselves at the bed where they could observe the prisoner.

From the testimony it is apparent that from the position occupied by the two officers who were in the corridor they were unable to see the prisoner Jones. The plaintiff checked both prisoners at 2:45 a. m. and stayed in the ward about seven minutes, and then Officer Johnson took over at about 2:55 or 3:00. Anderson then went into the ward about 3:03 or 3:04, and Johnson joined Watkins in the corridor. At about 3:25 a. m. Johnson went into the ward and found that Jones had escaped. Anderson at the time had gone back to the other end of the ward.

Following the escape the three officers were suspended. The plaintiff in his report to his commanding officer, Captain Groark, did not inform him about the plan the officers had worked out by which they alternated in guarding Jones. None of the officers were told by a superior officer that they could leave the prisoner out of sight. Prior to this time the plaintiff had no complaint against him, had been a good police officer, and had done satisfactory work. Captain Patrick J. Groark, the superior officer of the plaintiff, initiated the charges, which were brought before the Civil Service Commission by Commissioner of Police O’Connor, to the effect that the plaintiff was guilty of conduct unbecoming a police officer or any member of the police department, in that he was guilty of neglect of duty since he failed and neglected to guard the prisoner Jones in such a manner as to prevent his escape from the plaintiff’s custody. A full hearing was had before the Civil Service Commission.

The finding of facts in part was that the plaintiff and Officer Johnson were assigned to guard Jones, a prisoner who had previously escaped from arrest; that they were “ordered by their superior officers to guard such prisoner at all times while so assigned”; that a third officer, Anderson, was assigned to guard Jones and another prisoner in the same ward of the hospital; that “Jones was checked in such bed from time to time by the respondent and Johnson after midnight . . . and between such checks the respondent and Johnson usually remained in a corridor or ante-room outside the said ward from which neither the respondent nor Johnson had a clear view of the prisoner, Jones”; that visibility in the ward was low; that the last check made by the plaintiff of the prisoner was about 2:45 a. m.; that shortly after 3:00 Johnson found the prisoner had escaped; that at the time of such escape by Jones both the respondent and Johnson were in such a position ■that Jones was out of their sight. In its finding of facts the Commission further found that by reason of the acts and conduct set forth therein “the respondent was on October 10,1953, guilty of conduct unbecoming a police officer and a member or employee of the said Department of Police and of neglect of duty in that upon said last mentioned date the respondent allowed a prisoner who was under arrest to escape from his custody, in that upon such date the respondent was especially assigned to guard one Fred Jones who was in the custody of the police, and in that on such date the respondent failed and neglected to guard the said prisoner, Fred Jones, in a manner so as to prevent the escape of the said Fred Jones from the respondent’s custody”; and that by reason of the findings of fact and of guilt herein that cause exists for the discharge and removal of the respondent from his position as a patrolman. In accordance with its findings, the Commission ordered plaintiff’s discharge and removal from the police department.

In the opinion in Nolting v. Civil Service Commission et al. (7 Ill.App.2d 147), filed this day, we have fully discussed the permissible scope of the court’s review of the findings and order of the Civil Service Commission, and the principles set forth in that opinion are controlling here. As stated in that opinion, we are here dealing with a matter of discipline in an armed force of more than seven thousand men, and this is a matter which vitally concerns the protection of the citizens of this metropolitan area. The findings of the Civil Service Commission herein were not capricious or arbitrary, nor were they against the manifest weight of the evidence. The findings were definitely related to the requirements of the service, and were not unreasonable. We have no power to determine the extent of the punishment, which is a matter within the discretionary power of the Civil Service Commission. Based upon the findings the decision of the Civil Service Commission is proper. The judgment of the Circuit Court of Cook County is reversed, and the decision and findings of the Civil Service Commission are affirmed.

Judgment reversed.


text:
    Walter G. Nolting, Appellee, v. Civil Service Commission of City of Chicago, Stephen E. Hurley, President, and Albert W. Williams, Member of Civil Service Commission of City of Chicago, Appellants.
    Gen. No. 46,545.
    First District, Second Division.
    September 20, 1955.
    Released for publication October 25, 1955.
   PER CURIAM.

Plaintiff, a patrolman in the Department of Police, brought this suit under the Administrative Review Act to review an order of the Civil Service Commission of the City of Chicago which had found him guilty of misconduct and ordered him discharged from his position. The trial court found that the Commission’s decision was harsh and unwarranted and therefore (sic) contrary to the manifest weight of the evidence. Upon plaintiff’s agreeing in open court to waive all back salary as a condition precedent, the court ordered his immediate reinstatement. We later consider and find this “agreement to waive salary” improper and irrelevant, but it should be noted that in his brief plaintiff says that not having been reinstated immediately and having been put to. the expense of an appeal, he will make claim for all his back pay.

,, Defendants contend that the Commission’s findings of fact were fully supported by the evidence; that the misconduct charged against plaintiff and supported by the evidence was of sufficient gravity to constitute cause for discharge; that the Commission has no power to suspend, but only the power to discharge; that where misconduct warrants a penalty other than discharge, the statute vests such disciplinary power in the appointing officer, not in the Commission. Plaintiff contends that under the Administrative Review Act the court has power to affirm or reverse a decision in whole or in part and that the order in question was in effect a reversal in part; that the ruling of the Commission was harsh and not warranted by the evidence; that the loss of back pay was sufficient punishment for a minor infraction of rules of the Police Department; that the Commission had the power to suspend and that the punishment of discharge was cruel, unusual and contrary to the Federal Constitution.

The Commission’s findings of fact are fully supported by the evidence. Eleven witnesses testified in support of the charges. Plaintiff was the only witness in his own behalf. No complaint is made with respect to the fairness of the hearing. The charges were based on plaintiff’s abandoning his beat without permission, getting his automobile and driving it while he was supposed to be on duty, striking a parked automobile and doing damage which cost $485 to repair, failing to ascertain the extent of the damages, to leave his name and address, to report the accident, or to respond to final roll call or to calls from his superior officers. When found, plaintiff gave two highly conflicting accounts of his escapade. He finally relied, as he does here, on what he says was a blackout induced by high blood pressure. From our examination of the abstract and testimony, the Commission was warranted in not giving credence to his testimony.

It is not necessary to examine the evidence further because the order of the court below was not based on a consideration of the evidence to determine whether the findings were against the manifest weight. The court simply felt that the punishment of discharge was too severe. In other words, what the court measured was not the evidence but the gravity of the charge against the severity of the punishment. Having decided that the punishment did not fit the offense, the court did not remand the case to the Commission but required plaintiff to waive his back salary and ordered his immediate reinstatement. This was the equivalent of suspension. In People ex rel. Kennedy v. Hurley, 348 Ill. App. 265 (petition for leave to appeal denied 414 Ill. 629) we held there was no legal basis for such an agreement and that the authority of an attorney to enter into it was questionable. Bergman v. Rhodes, 334 Ill. 137; Chicago & Vicinity Hungarian Benevolent Society v. Chicago & Suburb Hungarian Aid Society, 283 Ill. 99; Fessler v. Weiss, 348 Ill. App. 21. What the court did in the instant case was to substitute suspension for discharge in consideration of a waiver of claim for salary. That claim may be no claim at all because the right of plaintiff to recover was limited to the difference between what he earned during the period of his layoff and his back salary (Kelly v. Chicago Park District, 409 Ill. 91). On this the record is silent. There is no precedent and no statute which supports such a judgment.

The question then arises whether the cause should be remanded for further action. This depends on whether there was adequate cause for discharge, whether the Commission has the power to enter any order other than discharge, and whether, assuming the Commission has the power to suspend, the court has the power to review the judgment of the Commission with respect to the degree of punishment.

There are now pending in this Division similar cases involving five other policemen. Upon appeal, the court below in each instance, although entering different types of findings, ordered immediate reinstatement. In Foreman v. Civil Service Commission of Chicago, 7 Ill.App.2d 122, the court found that the findings of fact of the Commission were not contrary to the manifest weight of the evidence and put his order of reinstatement squarely on the proposition that discharge was too harsh. In Martin and Topinka v. Civil Service Commission of Chicago, 7 Ill.App.2d 128, a case involving two police officers charged with an offense having to do with money taken from a man charged with sexual offenses, the court held that the findings and decision of the Commission were not supported by the record and were against the manifest weight of the evidence, but before entering judgment stated that the penalty of discharge “is so severe that I would regard it as cruel punishment.” The evidence supported the Commission’s findings and the real basis for the court’s decision was that the court considered the punishment too severe. In Watkins v. Civil Service Commission of Chicago, 7 Ill.App.2d 140, there was little controversy over the facts. The court simply disagreed with the Commission as to the duties and responsibilities of a policeman charged with permitting an accused person to escape. There is also pending the case of McCaffery v. Civil Service Board of Chicago Park District, 7 Ill.App.2d 164, in which a policeman was charged with accepting a bribe. The court first held that the case should be remanded because of the admission of hearsay evidence. Upon remandment a further hearing was had by the Board for the purpose of eliminating hearsay evidence and it again found the plaintiff guilty as charged. Upon review, the court below again reversed the order of the Civil Service Board and found that the charges against the plaintiff had not been proved by clear and convincing evidence.

It appears to us that these judgments were based on the erroneous assumption that courts have general jurisdiction over orders of the Civil Service Commission and that they may consider the severity of the punishment or matters in mitigation and may enter such orders as appear kind and merciful. These proceedings do not involve contests between litigants over civil rights but are, in effect, appeals from orders of public officials in the executive department to public officials in the judicial department. It is easy in such cases for courts to fall into the error of assuming their function to be charismatic and to take on the character of a supercommission or superchief of police. That there is a marked difference of understanding between the appellate courts and the original reviewing courts with respect to the limitations of review in this class of cases appears to be supported by information collected in an article published in the Northwestern University Law Review, Vol. 47, pp. 660, 673 (1952-1953), entitled “Civil Service Discharge Procedure in Illinois.” It is therefore necessary that we review the limitations imposed upon courts in this type of litigation.

We will first consider whether the Civil Service Commission has the power to enter an order of suspension if the cause should be remanded to it. If the Commission has no power to suspend, the court cannot find that it was erroneous for it to fail to exercise that power, because the court’s function is that of review. The Commission has such powers as are conferred by the Cities Civil Service Act, and no others. Section 4 of the Act provides that the Commission shall make rules to carry out the purposes of the Act, and for examinations, appointments and removals in accordance with its provisions. (Ch. 24½, par. 42, sec. 4, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 23.043].) Section 12 of the Act recites that no employee in the classified civil service shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard. It then provides:

“Nothing in this Act shall limit the power of any officer to suspend a subordinate for a reasonable period, not exceeding thirty days.”

The legislative policy thus established is clear. Two types of punishment are provided for — suspension not exceeding thirty days to be administered by the appointing officer, and discharge to be inflicted only after charges have been filed and a hearing had before the Commission. Appointing officials and others are not permitted to impose longer periods of suspension. This is protection for employees as well as for the good of the service. If the offense deserves a penalty greater than suspension for thirty days, the penalty of discharge must be imposed.

A case not strictly analagous but strongly in point is People ex rel. Hurley v. Graber, 405 Ill. 331 (1950). There it was held that the power to remove did not include the power to demote. The court said (p. 343):

“The City Civil Service Act contains no provision granting power to the civil service commission to reconsider an appointment or to demote for cause after the employment or appointment is completed. . . . The city civil service commission exercises a limited or statutory jurisdiction, no presumption of jurisdiction obtains in its favor, and it must find in the statute its warrant for any authority claimed.”

As in that case there was no power to demote, so here there is no power given by statute to suspend.

There appear to be only three cases of other jurisdictions that require consideration. In Simmler v. City of Philadelphia, 329 Pa. 197, 198 Atl. 1, it was held that a demotion constituted a removal. But as this is directly contrary to the decision of our Supreme Court in People ex rel. Hurley v. Graber, supra, we need consider it no further. In Goldberg v. City of Philadelphia, 279 Pa. 356, 123 Atl. 851, the Commission suspended a patrolman for six months without pay. The Director of Public Safety, the official in charge of the Police Department, appealed on the ground that the only power the Commission had was to acquit the defendant or to discharge him from the service. The court held that an examination of the legislation connected with the establishment of civil service showed that it was intended to confer upon the Civil Service Commission the powers previously held by another body, which included the power of suspension. No such legislative background exists in Illinois. Greenfield v. Moses, 169 Misc. 389, 7 N.Y.S.2d 356, which was a decision by a trial court, has little relevance to the instant case. The court merely held that a fine of ten days’ pay was not tantamount to a removal so as to require a hearing. We find that under the law of Illinois the Civil Service Commission of Chicago has no power to suspend.

The question still arises as to the extent to which the court may review the Commission’s ruling on the adequacy of the cause for discharge. Section 12 of the Act (ch. 24½, par. 51, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 23.052]) provides for discharge for cause but does not define the word “cause.” In decisions rendered prior to the Administrative Review Act (Kammann v. City of Chicago, 222 Ill. 63, and Drury v. Hurley, 339 Ill. App. 33 (petition for leave to appeal denied 404 Ill. 627)), it was held that since the statute does not define cause, the legislature intended to leave its definition and application to the discretion of the Commission and that courts cannot reverse the findings of the Commission as to cause unless such findings are so unrelated to requirements of the service or so trivial as to be unreasonable and arbitrary. In the instant case the findings of cause by the Commission are without question directly related to the requirements of the service and are not trivial or arbitrary. The question is whether the Administrative Review Act, which now provides for review by the courts of the Commission’s findings, permits the broadening of previous rulings so as to extend further the power of the courts.

The Cities Civil Service Act was passed prior to 1900. For a long time after the passage of the Act our courts refused to interfere with its administration. They saw confusion and disorganization in the executive branch and a danger to the courts in such interference. To give to one department the right to hire and operate, and to another and separate department, having no responsibility for operation, ultimate control of discipline, was .to them unwise. So great was their abhorrence of interference by the courts with executive discipline, two acts of the legislature which sought to enlist judges in the administration of the Act were held unconstitutional. City of Aurora v. Schoeberlein, 230 Ill. 496; People v. City of Chicago, 234 Ill. 416; McQuade v. City of Joliet, 293 Ill. 515; Hopkins v. Ames, 344 Ill. 527; Schlau v. City of Chicago, 170 Ill. App. 19; Johaaski v. City of Chicago, 274 Ill. App. 423, and Drury v. Hurley, 339 Ill. App. 33. In City of Aurora v. Schoeberlein, supra, Mr. Justice Cartwright, speaking for a unanimous court, said that the Board of Fire and Police Commissioners of the City of Aurora was a branch of the executive department of the city government and its acts were purely ministerial or executive, and that the legislature could not confer upon the board any judicial power whatsoever. The court then distinguished between such acts and the exercise of judicial power which adjudicates upon and protects rights and interests of individuals, such as cases involving workmen’s compensation or utility regulations, saying (p. 503):

“The cases in which appeals from non-judicial bodies to courts have been recognized have involved individual or property rights of which the court had jurisdiction under some other form of procedure, and belonged to classes of cases in which the court, acting judicially, could afford a remedy. This proceeding is not of that character.”

Prior to passage of the Administrative Review Act the only proceeding for review of the Commission’s ruling was by certiorari. In People v. Lindblom, 182 Ill. 241 (1899) the court held that in such a proceeding the only question was whether the Civil Service Commission had jurisdiction. Jurisdiction was determined by having the record certified and therefrom the court ascertained whether the Commission had followed the form of proceedings legally applicable and whether its decision was based on evidence or was arbitrary and capricious. Nothing more was allowed. In 1922 in Funkhouser v. Coffin, 301 Ill. 257, the limitation on review was extended by enlarging the meaning of “jurisdiction.” There it was held that a finding reciting nothing more than that plaintiff was “guilty as charged” was not sufficient to show jurisdiction. A specific finding of facts was required. In Cord v. Coffin, 226 Ill. App. 326 (1922) the court held that to show jurisdiction the proper method was to have the record recite the facts which the Commission found and that there was no need for a transcript of the evidence. Carroll v. Houston, 341 Ill. 531 (1931); Buttimer v. Geary, 229 Ill. App. 524 (1923); People ex rel. Holland v. Finn, 247 Ill. App. 53 (1927). In 1946 it was held that the production of a transcript of the evidence was essential to establish the jurisdiction of the Commission. People ex rel. Fosse v. Allman, 329 Ill. App. 296; Cartan v. Gregory, 329 Ill. App. 307.

In 1951 there came before a court below the case of People ex rel. Kennedy v. Hurley, 348 Ill. App. 265. In that case a patrolman had been discharged eleven years before upon a ruling by the Civil Service Commission giving in detail the testimony of witnesses who had appeared in support of the charges and finding with particularity that the patrolman, while purporting to be the head of a “Private Property Union” and while in police uniform, had sought to exact dues from private watchmen, to compel one watchman to take over the business of another, and to do other things obnoxious to those citizens. However, the Civil Service Commission was unable to produce the transcript of the evidence which had been lost during the intervening eleven years. On that technical ground the court felt impelled by reason of the decisions before mentioned to hold that no jurisdiction was shown and to restore the discharged patrolman. It is notable that thirty years after the Funkhouser case certiorari proceedings had become so enmeshed in technical requirements that it was possible to find some legal support for an order opposed to every sound principle of law, discipline and administration.

An examination of the records in the cases now pending in this Division reveals how technical the procedure still is. The Administrative Beview Act has been sustained and an appeal under it may be had to review all questions of law and of fact presented by the entire record. The findings and conclusions of the administrative agency on questions of fact are to be considered prima facie true and correct. The reviewing court is required to determine from the entire record whether the findings are against the manifest weight of the evidence. Section 11, Administrative Beview Act (ch. 110, par. 274, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 104.094(11)]); Logan v. Civil Service Commission, 3 Ill.2d 81, 86-7; Harrison v. Civil Service Commission of Chicago, 1 Ill.2d 137, 145-147; Oswald v. Civil Service Commission, 406 Ill. 506, 511; Drezner v. Civil Service Commission, 398 Ill. 219, 227.

The offense charged in the instant case is amply supported by the evidence, is related to the requirements of the service, and is not trivial. What then is the power of the court with respect to determining whether the discharge was warranted? In Murphy v. Houston, 250 Ill. App. 385, the appellant, a police officer, asserted that the charges filed against him with the Civil Service Commission did not state a cause for removal, and to this the Commission replied that it was empowered to determine cause for removal and that the charges were based on rules of the department, of which the appellant had knowledge. The court said (p. 394) :

“While it is true that it is for the commission to decide what is cause for removal, it may not make an arbitrary and unreasonable rule in this respect. In Andrews v. King, 77 Me. 224, a statute provided that an employee might not be removed except for cause. The court held cause to mean some substantial shortcoming which renders continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place. This statement of the rule seems to be in harmony with the authorities. Throop on Public Officers; City of Chicago v. Condell, 124 Ill. App. 64, reversed on a different point in City of Chicago v. Condell, 224 Ill. 595; Heaney v. City of Chicago, 117 Ill. App. 405; Joyce v. City of Chicago, 120 Ill. App. 398, 403, affirmed in 216 Ill. 466; City of Chicago v. Grillen, 124 Ill. App. 210; Ramsay v. Shelton, 329 Ill. 432; State ex rel. Gill v. Common Council of Watertown, 9 Wis. 229.”

In Secaur v. Civil Service Commission, 408 Ill. 197 (1951) the court reaffirmed the principle that courts of review do not have the right to reweigh evidence in cases of this character, but have only the power to determine if the findings are against the manifest weight of the evidence. In that case the Supreme Court held that absence from work was not the real issue, but whether the unexplained and apparently unexcused failure to assign work to an employee was sufficient basis for discharge. They held that it was not.

Nothing in the Administrative Review Act gives the court the power to determine the extent of the punishment, nor in the light of the past history of this litigation and in the light of existing conditions, is it in the public interest for this court to assume such a power.

Chicago has a population close to four million. Its Police Department consists of a force of 7,700 armed men. The commanding officer is the Commissioner of Police. He must carry out and execute his authority through a chain of command consisting of deputy commissioners, captains, lieutenants and sergeants. In a large metropolitan area the problems are many. We have only to examine the Criminal Code, the Cities and Villages Act, the City Ordinances and numerous other statutory provisions to become aware of the enforcement difficulties confronting the Police Department. The carrying out of these numerous responsibilities requires a department staffed with proper personnel, well trained and organized. Discipline, fairly and certainly applied, is vital to this force of armed men who protect this city. This is essential not only for members of the department but to maintain the respect of the public. Without it, a department becomes incompetent and demoralized. This requirement of discipline was emphasized long ago by a famous and revered judge of the circuit court, Murray P. Tuley, whose comments were quoted in Coane v. Geary, 298 Ill. App. 199 (1939) at p. 206. We quote therefrom:

“ ‘A police force is peculiar, sui generis, you may say, in its formation and in its relation to the city government. It is practically an organized force resembling-in many respects a military force, organized under the laws of the United States and equally as important as to the functions it is required to perform.

“ ‘And there is the same necessity of discipline — of regulation existing in the police department that exists in regard to the military department. Strict discipline must be enforced, and it must be enforced in a manner that is effective, and without the supervision or regulation of any other department of the state, and particularly, without any attempt on the part of the judicial department (which is a branch of the government entirely distinct and separate from the executive department) to regulate it in any way, and particularly, to regulate its discipline.’ ”

Punitive discipline in the Police Department of the City of Chicago is initiated by the Commissioner of Police. He files charges with the Civil Service Commission only after he has reached the conclusion that the offender should be discharged from the force. Thus at the outset these proceedings involve the exercise of judgment by an expert. In fact, we must assume that the head of the Police Department of the second largest city in the country is a leading expert in police matters. Not only is he in position to exercise a superi- or judgment with respect to the particular individual involved but he can judge the effect of the disciplinary action taken on the morale of his entire force. What happens to discipline when a judge substitutes his judgment for the judgment of this expert and restores to office and to a position under the Chief of Police one whom the Chief has deemed unfit for that purpose? The result is described in a book entitled “Police Administration” by O. W. Wilson, a leading authority on the subject, as follows, (p. 371):

“From that time on [the chief of police] will have a subordinate who hates him, who is disloyal to him, and who will do everything in his power to put the chief in a disadvantageous position, regardless of the damage that may be done to the department and to the quality of the service.”

Protection of the employee is provided by the requirement that before he can be discharged, charges must be filed before the Civil Service Commission and a hearing granted to him. The Civil Service Commission while composed of laymen can employ experts and technicians to advise them and their day-to-day contact with the problems of the department gives them an opportunity for a far greater understanding of the requirements of discipline than any other agency. To charge such executives with the responsibility of policing the city while judges have the final say as to disciplinary measures creates a dilemma that would frustrate and confuse an honest administration of the civil service law, while a corrupt and indifferent administration might well take advantage of it to shift the responsibility to the judiciary.

Not a single case has come before us in recent years in which it has been charged, much less proved, that politics or bias motivated the administration of the civil service. To the honest and dutiful policeman the civil service law has become a shield. The protection afforded him is real. The community has given these officers a security of employment which few, if any, in labor, industry, the professions, academic or business life have. It should be so because this is an employment which requires loyalty, courage and character of a high order. The other side of the coin is that these employees are subjected to pressures and temptations such as exist in no other occupation. A review of the cases of the past few years will reveal the sordid and evil character of these temptations. Discipline, as we have said, is vital or this force of armed men who protect the city can become a haven for bullies officially armed with guns or the instrument of corrupt forces looking for an opportunity to prey on the city’s inhabitants. The Civil Service Act therefore must not be permitted to become a mantle for the corrupt and inefficient. If the court is to' substitute its judgment for the judgment of the Civil Service Commission and of the Commissioner of Police as to disciplinary action that should be taken, it would in effect be substituting judicial discipline without responsibility for executive discipline with responsibility. The ultimate effect of such action would be a breaking down of the discipline and morale of the Police Department. Courts must accept the honest judgment of the Chief of Police and the Civil Service Commission, those arms of the executive department charged with administration of the police, with respect to the proper discipline to be enforced when charges have been proved.

Our conclusions are as follows:

The Civil Service Commission does not have the power to suspend. It has only the power to determine whether the evidence supports the charges and then to impose the punishment of discharge.

As the Civil Service Commission has no power to suspend, courts in reviewing the rulings of that Commission cannot find that the Civil Service Commission erred for failure to impose a penalty less than discharge. Nor can the courts by indirection, such as requiring an agreement on the part of a plaintiff to waive his claim for back salary, accomplish the same result as suspension.

The court can only weigh the evidence for the purpose of determining whether the findings of the Commission with respect to the proof offered in support of charges are against the manifest weight.

The court can only review the nature of the offense and the penalty for the purpose of determining whether the offense was related to the requirements of the service and whether the ruling was arbitrary or capricious.

The Civil Service Commission is not a judicial tribunal even though it has been called “quasi-judicial” in the sense that its findings could be examined on certiorari. The hiring and discharging of employees in the civil service is still an executive function.

In appeals from a Civil Service Commission there should be recognition by the courts that the relationship of the executive department to its employees is involved and that the discipline of an entire department may be affected. The distinction set forth in City of Aurora v. Schoeberlein, supra, between such cases and those involving agencies which regulate utilities or deal with workmen’s compensation should be maintained.

The judgment of the circuit court is reversed and the decision and findings of the Civil Service Commission are affirmed.

Judgment reversed.


author: PEB CURIAM.

text:
    Harvey McCaffery, Appellee, v. Civil Service Board of Chicago Park District, William L. McFetridge et al., Members of Civil Service Board of Chicago Park District; George A. Otlewis, Chief of Police of Chicago Park District; and George T. Donoghue, General Superintendent of Chicago Park District, Appellants.
    Gen. No. 46,630.
    First District, Second Division.
    September 20, 1955.
    Rehearing denied October 25, 1955.
    Released for publication October 25, 1955.

      Philip A. Lozowick, General Attorney, Chicago Park District, for appellants; Harry R. Posner, Assistant General Attorney, Chicago Park District, of counsel.
    Michael F. Byan, of Chicago, for appellee; Bichard F. McPartlin, Jr., of Chicago, of counsel.
   PEB CURIAM.

This action was brought under the Administrative Review Act to review an order of the Civil Service Board of the Chicago Park District. The Board had ordered the plaintiff discharged from the position of patrolman in the classified service of the Chicago Park District. On the first hearing the trial court remanded the cause to the Civil Service Board with instructions to strike from the record all hearsay evidence which it received on the original hearing, and for the taking of such additional evidence as the parties desired to present with respect to the charges, and at the closing of the proof to make its findings and decision in conformity with law. A further hearing was held by the Civil Service Board. The hearsay evidence was stricken from the record, after which the Board by its findings and decision again ordered the plaintiff discharged. The trial court reversed the findings and decision of the Civil Service Board and this appeal is taken from such judgment.

The theory upon which the defendants rely on this appeal is that the trial court erred when it entered its judgment reversing the Civil Service Board and found that the charges filed against the plaintiff were not proved by clear and convincing evidence and that the Board’s findings and decision were against the manifest weight of the evidence. .

Prom the testimony in the record taken before the Civil Service Board of the Chicago Park District in support of the charges filed against the plaintiff, it appears that on October 18, 1953 two police officers, Ytsen and Mikol, of the Chicago Park District, operating in a squad car at about 1:00 a. m., noticed an automobile which had Louisiana license plates and was weaving. The police officers stopped the car and took into custody the driver and another man with him. On a search of the car a loaded revolver was found under the seat. The revolver belonged to one of the men in the car. It had been in his pocket, and on the approach of the police he placed it on the seat. The other man thrust it under the seat where it was found by the police officers. Additional ammunition for the gun was found on one of the men and a knife on the other.

Ytsen and Mikol called the station and two other officers came with a squad car and assisted them in taking the prisoners, and the car in which they were riding, to the Garfield Park police station. When they arrived at the station the plaintiff was present. The plaintiff at that time was a patrolman working in citizen’s dress. The two prisoners were placed in separate rooms. One of the arresting patrolmen made ont the reports on the gun, the gun card and the gun slip, and the other made out the arrest slips. When the prisoners were taken to the station, Sergeant Hoffman, who was in charge of the station, was informed of the presence of the prisoners and that they had had a gun with them. The arrest slips, the gun card and the gun slip were left on a desk in the station by the arresting officers. One of the arresting officers placed the gun in his locker and the next day gave it to Sergeant Hoffman. As the arresting officers were about to leave the station the plaintiff told them that he would talk to the prisoners. The officers left the station at about 2:05 or 2:10 a. m.

The plaintiff questioned Taylor, one of the prisoners, about the possibility of having someone make a bond for them, and ascertained that Taylor was living with a man named Turner, to whom the plaintiff then telephoned. Turner then came to the station, and the plaintiff said that a $500 bond would be necessary. Subsequently he reduced the amount to $300. Taylor had a grandfather who lived in Monroe, Louisiana. Turner told the plaintiff that he would call the grandfather if it would be agreeable to the plaintiff. The latter assented and told Turner that there was a telephone in the hall which he could use. Turner called the grandfather, which call was verified by a record of the telephone company received in evidence. Turner got $27 from Taylor and $33 from Lewis, the other prisoner. This money was given by Turner to the plaintiff, and the plaintiff told Turner that if he would bring $300 which was to be sent by Taylor’s grandfather from Louisiana that he, the plaintiff, would tear up the papers and release the prisoners and there would be no court hearing. He told them not to bring the $300 until after 12:30 the next night. The prisoners then left the police station at about 3:30 or 4:00 that morning without being booked or any bond having been made.

After arresting another prisoner, officers Ytsen and Mikol again returned to the station about 3:30 or 3:40, and they saw the plaintiff at the station at about 4:00 or 4:05, at which time the plaintiff gave Officer Ytsen $24 from the $60 which the plaintiff had received from Turner, $12 of which Ytsen gave to Mikol, and the plaintiff told Mikol that there was to be $300 more coming the following night.

Later that day, about noon, Taylor talked to a captain of the Maywood police about what had happened. Captain Fleming of the park police was then contacted. In the meantime Taylor had received $300 via Western Union from his grandfather in Monroe, Louisiana. Captain Fleming marked the bills. The chief of the park police, Captain Fleming and Captain Begner went with the two prisoners to the police station about midnight. On the books at the station the plaintiff was shown to have reported as sick at about 10:30 p. m. He was ordered to come to the station. Both prisoners identified him. Ytsen and Mikol were called and they identified the prisoners as the ones whom they had arrested the previous night. The plaintiff denied that he had ever seen the two prisoners before and said he did not remember whether or not he had interrogated any colored boys the night before. He said he was in and out of the station the previous evening but he could not remember the time, nor could he remember whether he had seen the two patrolmen at the station. The plaintiff had an almost complete lapse of memory as to any of the things which he had done that night. He made a written report that he had performed routine duties and that nothing unusual had happened.

The plaintiff in his own behalf testified that on the night in question his hours of duty were 1:00 to 9:00 a. m. He arrived at the station at 12:45 and reported to Sergeant Hoffman, who told the plaintiff that his partner was sick and that he (the plaintiff) should pick up his assigned squad car at the garage where it was-being greased, start his tour of duty and come back in a couple of hours and pick up Officer Collins who would work with him. The plaintiff, after five or ten minutes, left the station, drove to the garage, picked up his squad car, had it refueled, and went to a restaurant at Jackson and Canal streets for a cup of coffee. When he came out he heard a call that city police had prisoners trapped in a building at Walnut and Homan streets, to which place he then went. He gave help to the police and talked to park police Officer DeFily. Patrol Sergeant Flynn, the supervisory officer of the plaintiff, was also at the scene. Plaintiff then went back to the station, where he arrived about 3:00. He then left the station at 3:00 or 3:05 with Officer Collins, and in the first hearing testified he did not return to the station until 9:00 that morning. His memory refreshed upon being shown a radiogram message for him to go to the station at 6:55 and a record showing that he had complied with the request, he testified that he did return to the station at about that time. He denied that he had seen either the arresting patrolmen or the prisoners, and stated that he was not in the station at 2:15, 2:20 or 2:25, at the time officers Ytsen and Mikol testified that he was. He denied that he talked to the prisoners, that he negotiated with them for their release, and that he took any money from them.

The garage which serviced the park police cars and which was located approximately two or three and one-half blocks from the police station issued a gasoline ticket, signed by plaintiff, which was stamped 1:33 a. m. on the morning of October 18th, and the attendant at the gas station testified that that was the time he punched the ticket before filling the tank of the plaintiff’s car.

Desk Sergeant Hoffman, who was one of the respondents at the original hearing, testified that he did not see the plaintiff the night in question from the time plaintiff went to get his car until the time the latter came in and picked up Officer Collins, nor did he see him subsequently that morning before the time he checked out at 7:00 or 8:00. Sergeant Hoffman did not remember seeing the arresting patrolmen in the station with the prisoners, nor did he remember seeing Turner. He testified that the plaintiff was not at the station at 1:30 or 1:40 a. m., and that after he saw the plaintiff at the station between 2:30 and 3:00 he did not remember seeing him leave the station, but stated he did not see him in the station from that time till about 8:00 a. m.

Officer Collins testified that the plaintiff had reported at the station between 12:45 and 1:00 a. m. and had left the station shortly after. He again saw him about 3:15 and again shortly after 3:45 a. m. when the plaintiff came in and they went out together in a squad car, and neither returned to the station until 9:00 in the morning. He did not remember returning to the station as the radiogram directed and records showed they did. Neither did he remember seeing the prisoners around the station.

Park police Officer DeFily testified that he saw the plaintiff about 2:25 or 2:30 on the morning of October 18th in the vicinity of Walnut and Homan streets, where they were making an investigation of a burglary. Sergeant Flynn, the supervisory sergeant at Garfield Park station, testified that he was present at the Walnut and Homan street investigation, and that he did not see the plaintiff there.

The plaintiff also testified at the original hearing that on October 18th he reported about 10:30 that he was sick; that he had been home all day until about 10:00 or 10:30 when he went to Kedzie and North avenues to get a jar of Vick’s, and that at no time during that night was he in the vicinity of 1300 north Western avenue. Captain Begner testified that on October 18th, at about 11:05 p. m. he saw the plaintiff drive from 1400 to 1200 on Western avenue. At the second hearing the plaintiff testified that he was not positive as to whether he had been at 1300 Western avenue or not, but that he had gone to 2300 or 2400 north Western avenue to pick up his glasses which he had left in a car. He did not remember the route which he took.

The gun taken from the prisoners had been given by one of the arresting officers to Sergeant Hoffman. On the night of October 18th, when the chief of the park police was in the station, Officer Mikol got the gun from Sergeant Hoffman, who took it from his locker, and gave it to the chief. The gun was introduced in evidence at the hearing.

Evidence was introduced as to the good character of the plaintiff, and his civil service record, which is in evidence, showed the plaintiff had been appointed a patrolman December 6,1947; that he had received two letters of commendation; that he was suspended October 17, 1951 pending an investigation of charges, which suspension was subsequently set aside by the Civil Service Board and he was restored to duty; that his efficiency marks for 1951, 1952 and the first three-quarters of 1953 were either “satisfactory” or “very satisfactory.”

The plaintiff’s theory here is that the Civil Service Board erroneously at the second hearing struck from the record the hearsay evidence introduced at the first hearing, heard additional evidence and made its findings on the evidence permitted to remain in the record of the first hearing, plus the additional evidence introduced; that the Civil Service Board erred in denying the plaintiff a continuance, and thus a severance, at the first hearing before the Board; that the Board erred by discharging the plaintiff while it merely suspended the two patrolmen and the desk sergeant who were respondents, together with the plaintiff, in the first hearing; that the findings were not supported by clear and convincing evidence. At the first hearing the plaintiff was tried together with Sergeant Hoffman and patrolmen Ytsen and Mikol.

The plaintiff here contends that the hearing before the Civil Service Board was not fair in that it should have granted the plaintiff a severance. However, the record does not indicate that a motion for severance was made on behalf of the plaintiff. He did ask for a continuance which was overruled. A motion for a continuance is not equivalent to a motion for severance, and so that question is not before us. Even if a motion for severance had been made, the granting of it was within the discretion of the Civil Service Board, and there is no showing here that the plaintiff would have been prejudiced by such refusal even if it had been made. People ex rel. Egan v. Dunham, 314 Ill. App. 110.

The plaintiff also strenuously contends that the Civil Service Board acted improperly when the cause was remanded to it by the trial court by its order of May 25, 1954. The plaintiff urges that the Civil Service Board should have held an entirely new hearing and should not have proceeded by striking out the hearsay evidence in the record, permitting the introduction of new and additional evidence and making its findings thereon.

The order of the trial court was that the finding and decision of the Civil Service Board “ordering the discharge of the plaintiff, Harvey McCaffery, ... be and the same is hereby reversed and set aside,” and it was farther ordered that the “cause be remanded to the Civil Service Board of the Chicago Park District for the taking of such additional evidence ... as the parties in interest may desire to present with respect to the charges, and that at the closing of the proof make its finding and decision in conformity with law. The Board is instructed to strike from the record all hearsay evidence which it received in the original hearing.” The Board with scrupulous accuracy followed this order. In Ford Motor Co. v. National Labor Relations Board, 305 U. S. 364, it was held that a remandment by a court to an administrative board does not dismiss or terminate the proceedings. If findings are lacking which may properly be made upon the evidence already received, the court does not require the evidence to be reheard, and if further evidence is necessary and available, that evidence may be taken. Here the action of the Civil Service Board was in accordance with the order of the Circuit Court and was valid under the law.

The plaintiff also, in discussing this question, argues that the Civil Service Board, in holding a hearing upon charges, is acting in a quasi-judicial capacity, and that consequently the rule that where an appellate court reverses a trial court for errors in the introduction of evidence and remands the cause a trial de novo is required. We have indicated that such rule is not applicable in the remandment of a cause to an administrative body. It will serve no good purpose to discuss here the meaning of the term “quasi-judicial capacity” of an administrative body. In Bartunek v. Lastovken, 350 Ill. 380, 383, the court points out that certain acts of the Civil Service Commission in a hearing are administrative or executive. The Supreme Court, mindful of the division of rights and powers among the administrative, legislative and judicial branches of government which are imposed by our Constitution, has delineated the scope of permissible judicial review of the findings of the Civil Service Commission, which principles have been reiterated by us in the opinion in Nolting v. Civil Service Commission of Chicago, 7 Ill.App.2d 147, filed this day. The principles therein set out are binding on ug here.

In its finding No. 1 the Civil Service Board of the Park District had found that the plaintiff was guilty of acts of moral turpitude and gross impropriety damaging to the reputation of the service in violation of Bule VII, Division 2, Section 12 of the Buies of the Civil Service Board. These rules were not introduced in evidence, nor do they appear in the findings of the Civil Service Board, and plaintiff contends that because of this omission there was no evidence in the record to support the findings of the Board. In People v. City of Chicago, 127 Ill. App. 118, where a similar objection was made, the court says:

“Petitioner made no objection to such charges. If they ‘did not state facts sufficient in law to constitute an offense,’ it was his duty then and there to object to them. Not having done so, it was afterwards too late for him to raise that question.

“What rule 67 is, or contains, we are not informed by this record; but, as the board had jurisdiction of the subject-matter and of the person of the defendant, in the absence of evidence to the contrary, the presumption is that rule 67 contains matter which if violated would warrant the discharge of the offender, and that the charges did state facts sufficient in law to place the petitioner on trial, and, if proved, to justify the finding of guilty. State v. Kirkwood, 15 Wash. 298.

“In Joyce v. City of Chicago, 216 Ill. 471, the Supreme Court say: ‘It is also urged that the charge filed with the commission by the general superintendent of the police is not sufficiently specific. This proceeding is not a common law or criminal proceeding, but an investigation. While the plaintiff in error had the right to have the charges preferred against him reduced to writing and in such form that he could clearly understand the ground assigned for his removal, it was not necessary that the charge should be formulated in technical language similar to that of a declaration or indictment.’ And they cite with approval State v. Common Council of the City of Superior, 90 Wis. 612, where it is said: ‘These principles govern the charges made as well as the procedure. The charge does not need to he drawn with the accuracy of an indictment. It is sufficient if the accused be furnished with the substance of the charge against him.’ See also Heaney v. City of Chicago, 117 Ill. App. [405], 414, and cases cited.”

There was sufficient evidence in the record to support the findings of the Civil Service Board of the Chicago Park District. Under these findings it cannot seriously be denied that the conduct of the plaintiff involved acts of moral turpitude and gross impropriety damaging to the reputation of the service.

In its finding No. 2 the Civil Service Board also found that the plaintiff was guilty of conduct failing to conform to the standards of the service and failing to contribute to the efficiency and dignity of the service, and plaintiff in his brief raises no objection to this finding.

The plaintiff also objects to finding No. 4 of the Civil Service Board that he induced an officer to commit an illegal act, and argues that Ttsen and Mikol committed the illegal act in accepting the bribe freely and voluntarily and without inducement or coercion and that even if all the evidence against the plaintiff were believed, he had not induced them to go astray. There is evidence in the record that if the plaintiff had not intervened the police officers would have taken the prisoners to the 25th district police station to be locked up. The intervention of the plaintiff at the time when the arresting officers were leaving the station was the prime cause from which all the other events followed. In any case, the argument on this point made by plaintiff advances an extraordinary ethical viewpoint. ■

As to finding No. 3 of the Civil Service Board that the plaintiff had accepted a bribe as an inducement to failing to make an arrest, the only objection urged here on the part of the plaintiff is that there was conflict in the testimony. That there was conflict in the testimony is evident from the record. The purpose of the hearing before a Board such as this is to enable the Board to resolve such conflicts and from the evidence determine what the facts are. This the Board did, and its finding is supported by the evidence. That finding alone would be sufficient to warrant the discharge of the plaintiff.

It is also urged by the plaintiff that the action of the Civil Service Board was arbitrary in that it discharged the plaintiff and at the same time suspended the two arresting officers and the sergeant in charge. The Board in determining the extent of the penalty inflicted upon the respondents had the right to take into consideration the evidence that the plaintiff took the initiative and was primarily instrumental in working out the scheme by which the prisoners would be liberated providing certain monetary payments were made. The trial court has only the power to consider the evidence to determine whether the findings and decision of the Civil Service Board are against the manifest weight of the evidence. Nor can either this court or the trial court substitute its judgment for the judgment of the Board. As we have stated, there was ample evidence in the record to support the findings of the Civil Service Board.

The plaintiff contends that in Drezner v. Civil Service Commission, 398 Ill. 219, the court held that where conduct constituting a crime is charged in a hearing-before the Civil Service Commission, while the charge need only be proved by a preponderance of the evidence, evidence of guilt should be clear and convincing. Plaintiff contends that by that statement in its opinion the court intended to create a new burden of proof midway between proof beyond a reasonable doubt and proof by a preponderance of the evidence. A careful reading of the case, however, does not sustain that contention. The decision of the court is based solely on the ground that the order of the Commission was against the manifest weight of the evidence, and the court in Harrison v. Civil Service Commission, 1 Ill.2d 137, referring to the Drezner case, takes the same view. In any case, the contention here would not help the plaintiff, because, giving the words “clear and convincing” their common and ordinary legal meaning, the evidence in the instant case also fulfills that requirement, if there is such a requirement.

The judgment of the Circuit Court is reversed and the decision and findings of the Civil Service Board are affirmed.

Judgment reversed.