State Ex Rel. Poli v. Falsey

Connecticut Superior Court

State Ex Rel. Poli v. Falsey

13 Conn. Super. Ct. 205, 13 Conn. Supp. 205, 1945 Conn. Super. LEXIS 13

CourtConnecticut Superior Court

DecidedFebruary 1, 1945

DocketFile 65953

StatusPublished

This text of 13 Conn. Super. Ct. 205 (State Ex Rel. Poli v. Falsey) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Poli v. Falsey, 13 Conn. Super. Ct. 205, 13 Conn. Supp. 205, 1945 Conn. Super. LEXIS 13 (Colo. Ct. App. 1945).

Pincite

Opinion

WYNNE, J.

The cases cited and relied upon by the re' spondent leave untouched the precise question presented here. If the duty of the building inspector under scrutiny involves *206 no discretion, but calls for a purely ministerial act, it is admittedly subject to mandamus. In its return, the city seeks to inject as an issue that the building inspector had a discretion because he is convinced that the action of the board of zoning appeals was illegal. The sufficient answer to this is that he could have appealed. As well might he attempt to urge as a reason for not issuing the permit that the members of the board of Zoning appeals had acted corruptly. Not having resorted to the appeal that was open to him, he has no more right to raise the issue of illegality now than he would to charge corruption as his reason for not abiding their action. In either case he is in the anomalous position of saying his discretion is a matter of his own conscience or his own convictions. Such a claim is utterly untenable in a government of laws.

For the foregoing reasons and those set forth in the demurrer, the demurrer as to each count is sustained. The motion to expunge is accordingly stricken from the file as serving no present purpose.

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WYNNE, J.

The cases cited and relied upon by the re' spondent leave untouched the precise question presented here. If the duty of the building inspector under scrutiny involves *206 no discretion, but calls for a purely ministerial act, it is admittedly subject to mandamus. In its return, the city seeks to inject as an issue that the building inspector had a discretion because he is convinced that the action of the board of zoning appeals was illegal. The sufficient answer to this is that he could have appealed. As well might he attempt to urge as a reason for not issuing the permit that the members of the board of Zoning appeals had acted corruptly. Not having resorted to the appeal that was open to him, he has no more right to raise the issue of illegality now than he would to charge corruption as his reason for not abiding their action. In either case he is in the anomalous position of saying his discretion is a matter of his own conscience or his own convictions. Such a claim is utterly untenable in a government of laws.

For the foregoing reasons and those set forth in the demurrer, the demurrer as to each count is sustained. The motion to expunge is accordingly stricken from the file as serving no present purpose.

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Bluebook (online)

13 Conn. Super. Ct. 205, 13 Conn. Supp. 205, 1945 Conn. Super. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-poli-v-falsey-connsuperct-1945.