Appeal by defendants from the Superior Court of Cook county;
the Hon. JOHN A. SBARBARO, Judge, presiding. Heard in the second
division of this court for the first district at the October
term, 1951. Judgment reversed. Opinion filed June 24, 1952.
Released for publication July 9, 1952.
MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.
Thomas Harrison, plaintiff, a captain of police in the City of Chicago, was tried before the Civil Service Commission of the City of Chicago on charges of violating certain rules and regulations of the department of police of the City of Chicago. From an order discharging him from the police department, plaintiff initiated proceedings under the Administrative Review Act (Ill. Rev. Stat. 1951, chap. 110, pars. 264-279) [Jones Ill. Stats. Ann. 104.094(1)-104.094 (16)] to review the decision of the Civil Service Commission. The matter was heard in the superior court of Cook county upon the complaint of the plaintiff and the return of the defendants, the Civil Service Commission of the City of Chicago, and Stephen E. Hurley, President, and Albert W. Williams and Charles A. Lahey, members thereof. The court found the issues in favor of the plaintiff and ordered that the record of proceedings be quashed and that the finding and decision of the Civil Service Commission ordering the discharge and removal of the plaintiff be reversed and set aside. From this decision defendants appeal to this court.
Plaintiff was charged with a violation of rules and regulations of the department of police as follows:
"Rule 389, section 29. Receiving or accepting a reward or gift from a person for a service rendered, or pretended to be rendered, as a member of the department without the consent of the Commissioner of Police."
"Rule 378. Other business prohibited: A member of the department shall devote his whole time and attention to his duties. He is expressly prohibited from following any other calling or occupation, or being engaged in any other business."
"Rule 389, section 3. Conduct unbecoming a police officer or employee of the police department."
The particular acts alleged in the complaint to constitute a violation of the aforesaid rules are: (1) that in the year of 1935 plaintiff, who in that year was promoted from sergeant to lieutenant of police, obtained a loan of $10,000 from one William Skidmore, described as "notoriously known to be engaged in gambling as a business or profession"; (2) that in the same year plaintiff obtained a loan of $2,500 from one John J. Lynch, described as "notoriously known to be engaged in the City of Chicago, in the business of printing and circulating racing and other information to bookmakers and gamblers" and "notoriously known as" or "generally reputed to be" a professional gambler; (3) that plaintiff acted as a shotgun guard for Nash Bros., a Chicago construction firm, during a period from 1923 to October 1935, and received $20 for each trip made with its payroll car; and (4) that plaintiff received or accepted a reward or a gift of $30,000 from Lynch in 1937 for service rendered or pretended to be rendered as a member of the department without the consent of the commissioner of police.
The majority of the Commission found: As to the Skidmore and Lynch loans, "although not unusual in form," the loans "have lent themselves to unfavorable inferences, but this Commission may not, in the absence of definite proof, predicate disciplinary action upon imaginary grounds. Accordingly, these loans must be given the benefit of the presumption that they were the business transactions which they purported to be." As to the service performed for Nash Bros. the Commission found that "even though the Commission might deprecate the respondent's occasional employment as a shotgun guard, it seems hardly justifiable to make that employment first entered upon about 28 years ago, with the prior knowledge and consent of the then head of the Chicago Police Department, a basis for his present discharge therefrom."
These charges, upon which the Commission refused to predicate disciplinary action, are not before us on this appeal.
As to the $30,000 payment to plaintiff from Lynch the Commission found in part: "The conclusion from the respondent's own statements and testimony is irresistible that the $30,000 payment by Lynch to him was made in recognition of the respondent's long, faithful and extensive service as Lynch's bodyguard, which service had the obvious and important purpose of protecting Lynch from another kidnapping or other harmful acts by his enemies or by any persons of evil intent. Service of this type coincides precisely with the function and duty of the respondent and all other Chicago policemen at all times to see to the safety of the people of this community. It was essentially a police duty which the respondent could and did, in all respects, most effectively perform as, while and because he was a member of the Chicago Police Department. Lynch was simply able to get from the respondent preferred and continuous attention and service of the sort ordinarily performed on occasion by police officers for any member of the community when the need therefor arises. The $30,000 payment was received and accepted by the respondent without disclosure thereof to the then Commissioner of Police and without his consent." It was thereupon ordered by the Commission that plaintiff be discharged and removed from his position as captain in the department of police and as a member of the department of police. Commissioner Lahey dissented from the finding and was of the opinion that the respondent should be restored to duty.
The basis for the charges brought against plaintiff was a report made by the plaintiff himself to the then commissioner of police, John C. Prendergast, dated October 18, 1950, in which plaintiff reported testimony given by him before a United States Senate Investigating Committee on organized crime. This report was read into the record on stipulation of the parties. Plaintiff was called to the stand on the hearing before the Civil Service Commission, and his undisputed testimony tends to establish the following facts:
John J. Lynch for a number of years prior to 1935 was a partner with one M.L. Annenberg of the General News Bureau. This company published a paper and circulated information concerning sporting events and was used by bettors and bookmakers throughout the United States. Plaintiff first met Lynch in 1931. Shortly before, Lynch had been kidnapped by parties unknown and held for $250,000 ransom. He paid $50,000 of the ransom money, and in order to secure his release, agreed to pay the additional money requested. Plaintiff was introduced to Lynch by Dr. Michael F. Howe, a dentist who had offices in a downtown loop building, who was described by the plaintiff as "sort of a police fan and a very good friend of mine." Plaintiff testified that at the time he met Lynch the latter was very "jittery" about the kidnapping, "and I was with him as often as I could be, so that it did not interfere with my police duties. I went around with him. I took him everywhere he wanted to go. Naturally, I was a police officer and I acted, probably, in the capacity of a body guard for him. However, I did not do anything wrong. I did not consider that I was doing work as a member of the Police Department at any time when I acted as a body guard. I got to know him very well. I got to know him well enough that I visited his home in Lake Geneva. He met my wife and I met his wife, and his wife came to my home and my wife went out to his home."
In 1934 Lynch sold all his interest in the General News Bureau and received a final payment in 1935 which was almost a million dollars. In 1937, according to plaintiff's testimony, there was some conversation between Lynch and himself about the latter going into business which Lynch offered to finance. Plaintiff stated that he would not want to go into business. Then appears the following testimony from plaintiff:
"So, two or three nights later I met him at the Drake Hotel, he and I together, and we had dinner at the Drake Hotel and he gave me an envelope with $30,000 in it in hundred dollar bills. He told me, `Here, buy some securities for your wife, yourself and your daughter; in case you should get shot in the line of duty, they will have something, and if you don't, you will have it for your older days.' I said, `Jack, you know that anything I have done for you, I never expected to be repaid.' He said, `I know that.' I says, `From the way this ...