Appeal from the Circuit Court of Cook county; the Hon. B. FAIN
TUCKER, Judge, presiding. Judgment reversed.
Rehearing denied October 25, 1955.
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 foolishness, 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.
"For 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 Crotty, was with him driving the squad car. Moore, after his arrest, was placed in the back seat of the car and Topinka sat with Crotty 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 Crotty 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 Crotty 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 Crotty, because at that moment a man came into the station complaining that he had been threatened. He and Crotty 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 ...