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Harrison v. Civil Service Com.

OPINION FILED SEPTEMBER 24, 1953

THOMAS HARRISON, APPELLANT,

v.

THE CIVIL SERVICE COMMISSION OF THE CITY OF CHICAGO ET AL., APPELLEES.



APPEAL from the Second Division of the Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook County; the Hon. JOHN A. SBARBARO, Judge, presiding. MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 16, 1953.

This appeal of plaintiff, Thomas Harrison, is being considered on a certificate of importance issued by the Appellate Court for the First District, which reversed a judgment of the superior court of Cook County, entered in a proceeding under the Administrative Review Act, wherein the superior court set aside an order of the defendant, Civil Service Commission of Chicago, discharging plaintiff from his position as a police captain in the classified service of the city.

This cause arose out of four charges of violation of regulations filed on November 25, 1950, by the commissioner of police of the city of Chicago with the Civil Service Commission of that city, against the plaintiff. He was accused of having accepted two loans in 1935 from persons of questionable character, accepting payments for acting as a guard for a construction company and of receiving $30,000 in 1937 for services rendered or pretended to be rendered to one John J. Lynch while a member of the police department without the consent of the commissioner of police. He was suspended the day the charges were filed.

Upon a hearing duly called and held the Civil Service Commission dismissed three of the charges and, by a vote of two to one, found plaintiff guilty of accepting and receiving $30,000, as charged in the last specification, and on March 6, 1951, ordered him dismissed.

Plaintiff thereupon instituted proceedings under the Administrative Review Act in the superior court of Cook County, which set aside the findings and decision of the commission, and ordered plaintiff to be reinstated in his position in the department. The commission appealed from that judgment, and the Appellate Court reversed the superior court. Three separate concurring opinions were filed by that court, which ultimately issued a certificate of importance to this court to review the cause.

The evidence with reference to this infraction revealed that in 1931 Harrison met John J. Lynch at the office of a dentist, Dr. Michael F. Hoyne, who was a friend of both men. Prior to this meeting Lynch had been kidnapped by three unknown persons, and had secured his release by the payment of $50,000 and the promise of more funds. After the meeting the men became close friends, and were seen together frequently during plaintiff's off-duty periods until Lynch's death in 1945. After some six years of association and friendship between plaintiff and Lynch, including visits exchanged between their respective families, Lynch endeavored to persuade Harrison to enter some business which would yield a greater income than police work, and offered to finance plaintiff in such a venture. Plaintiff, however, preferred to remain in police work, which he would have to give up if he engaged in any other business. During the course of a dinner at the Drake Hotel in 1937 Lynch repeated his offer to finance plaintiff in a business, and put an envelope containing $30,000 in currency into plaintiff's hands, with the statement, "* * * buy some securities for your wife, your daughter, and yourself. In case you get shot in the line of duty they will have something, and if you don't you will have it for your older days." Plaintiff remonstrated at the gift and said that he never expected to be paid for anything he had done for Lynch, but Lynch replied that he had plenty more and not to worry about it, or about repaying the money.

Although the charges alleged that Lynch was notoriously known to be engaged in the business of printing racing and other information used by bookmakers and generally reputed to be a professional gambler, the only complaining witness, police commissioner O'Connor, testified that he did not know Lynch, that the record of the department showed that Lynch had never been arrested for any offense, and that the commissioner merely heard in talking to unidentified persons that Lynch had at some time the reputation of being a gambler. Harrison testified that all during the years of their association Lynch was in a legitimate business or retired, and corroborating evidence was adduced that Lynch had been a part owner of the General News Bureau, a legitimate business enterprise which distributed a news publication of sporting events used by race-track habitues until 1934 when he sold out all his interest and retired.

As stated in appellees' brief, this case is unique in that, save as to character and reputation and matters of record, the evidence consisted almost exclusively of statements and testimony of the plaintiff. He, together with other police officers and city officials, had been called to testify in closed sessions before the Kefauver committee. Immediately thereafter at the request of his superior, he submitted a full report of his testimony. It was largely upon such report that he was suspended and later dismissed.

The charge here under consideration was that he had violated section 29 of rule 389 of the department, which subjects to disciplinary action any police officers for: "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."

Plaintiff's record in the police department is impressive. He was appointed as a patrolman in 1922, promoted to sergeant in 1928, advanced to lieutenant in 1935 and made a captain in 1938, which rank he held until the present proceedings were instituted. The advancements were made by the Civil Service Commission on the basis of "ascertained merit by competitive examination" and after investigation of merit and efficiency. The record shows that during his service he was awarded "Creditible Mention" and "Extra Compensations" for outstanding police work, courage and efficiency. From January, 1949, until his suspension, plaintiff was assigned to the command of the East Chicago Avenue police department. During that period the district was officially rated first with reference to clean-ups of crime among Chicago's forty police districts in the monthly police reports on eight occasions. The record in his district during the last ten months of 1950 revealed a high efficiency record, even though that district was the most difficult in the city.

The record shows aggressive police work in arresting, disarming and obtaining confessions of notorious criminals. On plaintiff's behalf numerous commercial enterprises, educational and philanthropic institutions, hospitals, organizations and individuals within his district submitted statements of confidence directed to the mayor and police commissioner. In his record several suspensions are noted, including one in 1943 pending the disposition of charges against him. The Appellate Court, in the case of Cartan v. Gregory, 329 Ill. App. 307, at page 318, stated, "Each plaintiff had an outstanding record in the police department * * *."

On this appeal it is appellees' theory that plaintiff had the duty to maintain the peace 24 hours a day; that his association with Lynch was carried on as a member of the department, even though it was conducted during his off-duty hours, and that the gift he received from Lynch was for such services. On the other hand, plaintiff maintains that his accompaniment of Lynch during off-duty hours was not a service rendered or pretended to be rendered as a member of the department, nor did it become such merely because plaintiff was capable of protecting Lynch from reprisals by his previous abductors. He further maintains that the generous gift of $30,000 given some five years after the men became friends and associates, was not given or received for "a service rendered as a member of the department."

Appellees contend that it is not the province or within the power of the court to review the evidence with reference to the findings of fact of the Civil Service Commission pertaining to the cause for plaintiff's dismissal, while plaintiff argues that there is no evidence to support the charge and that, inasmuch as the courts are required under the law to reverse a decision by the Civil Service Commission where it is shown to be contrary to the manifest weight of the evidence, the decision of the Appellate Court was in error and should be reversed.

This cause involves essentially a determination of the scope of judicial review of an order of the Civil Service Commission. It is apparent from the three concurring opinions of the Appellate Court Justices, which recognize the inconsistencies in the decisions, that this legal question warrants clarification.

Prior to the enactment of the Administrative Review Act, decisions of the Civil Service Commission of the city were reviewed principally by common-law writ of certiorari. Under that writ a very limited type of review was permissible. Its limitations were aptly defined in Hopkins v. Ames, 344 Ill. 527, cited by defendant, where the court stated, at page 531: "The court has no power to pass upon the findings and conclusions of the inferior tribunal, but it may examine the proceeding to determine whether the inferior tribunal had jurisdiction, and the facts upon which the jurisdiction is founded must appear in the record, which also must show that the inferior tribunal acted upon evidence."

As noted in the opinion of Justice Tuohy of the Appellate Court, as the number and activity of administrative agencies increased, the necessity for judicial review also expanded, and courts differed as to the scope of review permissible and proper under the constitutional doctrines. The inconsistencies arose in part from the nature of the proceedings before the agency, but largely because methods of review differed. Some were taken under the common-law writ of certiorari, some under the equally confining statutory writ of certiorari prescribed in the law setting up the agency. Others arose under proceedings derived from the common law, such as mandamus, injunction and quo warrantor, and still others were statutory appeals. One group of cases suggests that it was improper to provide for appeals to the courts from certain agencies because they were non-judicial bodies, hence authorizing a trial de novo in the court was unconstitutional as an imposition of administrative duties on the judiciary; (Borreson v. Dept. of Public Welfare, 368 Ill. 425; City of Aurora v. Schoeberlein, 230 Ill. 496; North Chicago Hebrew Congregation v. Board of Appeals, 358 Ill. 549;) whereas another group upheld the statutory right of appeal even though the agency was performing legislative rather than judicial functions; (Illinois Central Railroad Co. v. Ill. Commerce Com. 387 Ill. 256; Peoples Gas Light and Coke Co. v. Slattery, 373 Ill. 31;) or where administrative functions were involved. Investors Syndicate of America, Inc. v. Hughes, 378 Ill. 413.

It was the inconsistency of these cases, and the narrow scope of judicial review provided by available remedies which led to the enactment of the Administrative Review Act. Ill. Rev. Stat. 1951, chap. 110, pars. 264-279.

The Administrative Review Act, under which the proceedings in the instant case were commenced, applies to proceedings to review judicially a final decision of an administrative agency where the act creating or conferring power on such agency, by express reference, adopts the provisions of the Administrative Review Act. (Par. 265.) Under section 41, added to the Civil Service Act in 1949, (Ill. Rev. Stat. 1951, chap. 24 1/2, par. 77a,) the provisions of the Administrative Review Act are made applicable to review decisions of the Civil Service Commission. The section of the Administrative Review Act defining the scope of such review (par. 274,) provides: "Every action to review any final administrative decision shall be heard and determined by the court with all convenient speed. The hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court. No new or additional evidence in support of, or in ...


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