dissenting:
We agree with the holding of the court that the constitutional doctrine of separation of powers is hot violated when the findings of an administrative agency are reviewed under the Administrative Review Act to determine whether they are contrary to the manifest weight of evidence.^ VV"e agree also with the holding of the court, that the statute makes conclusive upon us the findings of fact of the Appellate Court, and that unless we can say either that the evidence on which that court relied, taken with all its favorable intendments, was not sufficient to sustain its findings, (Roon v. Van Schouwen, 406 Ill. 617; Goodrich v. Sprague, 376 Ill. 80,) or that the findings of fact are insufficient in law to establish a violation of the regulation, (Alton Railroad Co. v. Gillarde, 379 Ill. 308; Fichter v. Milk Wagon Drivers’ Union, 382 Ill. 91,) we must affirm the judgment of the Appellate Court.
|" Our difference is with the determination of this court that the pertinent police department regulation is not applicable to the facts as found by the civil service commission and the Appellate Court, and that there is no evidence upon which the facts so found can be based. Since these issues turn so largely upon the evidence, a somewhat more complete discussion of the undisputed facts than appears in the opinion of the court is necessary.
A violation of the applicable rule presupposes two elements : the rendition of services “as a member of the Department,” and the acceptance of a gift for them. We consider the latter issue first. Concerning the reason for the gift of $30,000 from Lynch to Harrison the record shows that Harrison was ordered to report to the commissioner of police concerning his testimony before the United States Senate investigating committee on organized crime. His report states: “The Committee asked me what I had done fór Lynch that he would give me $30,000 in cash. I told them that Lynch was kidnapped in 1931. Men by the names of Yates and Moore were arrested as suspects. Later, men named Swolley, Souders and Jones were also arrested as suspects. Although the police said they were the men that kidnapped Lynch, Lynch never identified them or testified against anybody right up to the time he died. Lynch never thought that the. real kidnappers were apprehended. The kidnappers took $50,000 from Lynch and had demanded further payments of $200,000. I — told-the- Committee that Lynch would call me, and, on my times off from work, I acted as a bodyguard and a friend. I was with him from time to time. There was no fixed schedule. I told them that I did not report this gift that was given off duty.”
Other evidence in the record as to the reason for the gift also comes from Harrison: “So, two or three nights later I met him [Lynch] 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,'T know that.’ I says, ‘From the way this envelope feels, there is plenty of money in there.’ He said, ‘Yes, I have plenty more, so don’t worry about it and don’t worry about repaying it.’ ” Concerning this testimony the Appellate Court said: * * it was not unreasonable for the Civil Service Commission to conclude that the payment made to plaintiff was a gift for this service admittedly performed. Indeed, plaintiff’s own reaction at the time the $30,000 was handed to him would seem to create an inference that he considered it in recognition of services rendered, as indicated by his statement: ‘Jack you know that anything 1 have done for you, I never expected to be repaid.’ ”
On the basis of these two statements, by Harrison himself, we do not understand how it can be said that the finding that the gift of $30,000 was for services rendered by Harrison -as Lynch's bodyguard is without support in the evidence.
On the issue as to whether or not the services rendered by Harrison were rendered as a member of the police department, the Appellate Court found that from the circumstances in which appellant’s relationship with Lynch arose an inference could be reasonably drawn that the latter had formed the association for the purpose of securing protection by a police officer against physical attack. Alternatively that court held that whatever the motives for appellant’s acting as a bodyguard, the services were essentially a police function, and that this in itself made out a case of services rendered as a member of the department.
. In disposing of this issue, this court states that the Civil Service Commission “inferred not only an employment agreement, but an agreement to render services ‘as a member of the Department.’ ” Reproducing the text of the commission’s findings hardly seems warranted. It is perhaps sufficient to state that the commission made no reference as to' any agreement, of employment or otherwise, for the rendition of service.
The commission did find, however, that the services were rendered “as a member of the Department.” Furnishing bodyguards is a routine police function, as the commission pointed out. The opinion of the court, however, takes the position that this routine police function assumes a different character in this case.
Harrison testified^- “Q. And what did you do when you were with him? A. Well I went around with him.j I took him wherever he wanted to go. Naturally, I was a police officer and I acted, probably, in the capacity of a bodyguard for him.” This court in its opinion draws every possible inference except the natural one drawn by the commission and the Appellate Court — that Lynch wanted a policeman to serve as a bodyguard, and got Harrison to do it. As the Appellate Court pointed out, the relationship did not originate in friendship. That came later. Harrison began serving as Lynch’s bodyguard shortly after Lynch was kidnapped. They were introduced by a “police fan.” In our opinion there is no justification for attributing the relationship to Lynch’s desire “to be seen with a man of Harrison’s recognized courage and reputation,” and ignoring the dominant fact that it was also to Lynch’s advantage to be seen with a sergeant of police.
The distinction which the opinion of the court draws between “off-duty” and “on-duty” powers and duties of a police officer is wholly without warrant. No authority is cited to support it. The powers and the duties of a police officer are not turned on and off by the hands of the clock. The commission found: “As testified by the respondent, it was his understanding that, except when on furlough, a police officer is on duty twenty-four hours a day and that for all purposes he is throughout such twenty-four hours still a member of the Police Department of the City of Chicago with the right and duty to preserve peace and tranquility.”
The remaining question is whether or not appellant’s discharge was justified upon the ground that' he was guilty, as charged, of conduct unbecoming a police officer. The commission found that he was. The Appellate Court, having sustained his discharge on' another ground, found it unnecessary to pass upon that charge. We think that the majority opinion properly considers this issue, but reaches a resqlt which the evidence does not warrant.
The basis of this charge is that the appellant, a police officer, served as bodyguard for a man generally reputed to be a gambler. The opinion of the court seems to dispose of this charge upon the ground that there was no proof that Lynch actually was a gambler. Under the charge such proof was not required. What was involved was Lynch’s reputation, not his actual guilt or innocence.
Nor can the evidence of reputation, in our opinion,'be minimized. On the issue of Lynch’s reputation, the commissioner of police testified: “Referring to John J. Lynch who is mentioned in these charges, I have a knowledge of his general reputation. His general reputation was that he operated handbooks, that he was one of the owners and operated the General - News Service which was a racing news service used by handbook operators throughout the city for the furtherance of their business.” No evidence of reputation was offered to rebut this testimony. It seems obvious that serving as bodyguard for one who is reputed to be a gambler, with or without the acceptance of a substantial gift in connection with that service, would inevitably reflect discredit upon the police force, and that the commission was warranted in finding that the appellant was guilty of conduct unbecoming a police officer.
On this issue the majority opinion also resorts to a theory which seems to resemble that of condonation in divorce cases, stating: “Moreover, appellant at no time made a secret of the association, yet with full knowledge of that situation the department promoted Harrison to the rank of captain and conferred awards of merit upon him during the period when the men were frequently seen together.” Concededly the department had no knowledge of the gift which Harrison received. There is no evidence in the record on which to base an assumption that the police department knew of Harrison’s services as a bodyguard for Lynch. Knowledge of these facts first came to light when Harrison testified before the United States Senate committee investigating organized crime. The only evidence which suggests that anyone knew of the appellant’s activities in connection with Lynch is in his testimony, “At the time when I accompanied Lynch as sort of a bodyguard or just as a friend, or both, I was always subject and available for emergency police duty. I always told my wife where I was and she knew where to get hold of me.”
To us it seems clear that a municipality is entitled to hold its police officers to a higher standard of conduct than that which has been manifested by the appellant in this case. In our opinion the judgment of the Appellate Court should be affirmed.