State Ex Rel. Poli v. Falsey , 13 Conn. Supp. 205 ( 1945 )

The cases cited and relied upon by the respondent leave untouched the precise question presented here. If the duty of the building inspector under scrutiny involves 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.