232 A.2d 508 | Conn. Super. Ct. | 1967
The parties entered into an agreed statement of facts by stipulation as follows: On April 1, 1965, and for a period of time prior thereto, Alfred Burke was employed as a police officer by the city of Waterbury. On December 25, 1963, Alfred Burke was injured while carrying out his duties as a police officer in the city of Waterbury. In December of 1964, Alfred Burke filed an application with the Waterbury retirement board for a disability pension under the provisions of the charter of the city of Waterbury. Alfred Burke's application was denied by said retirement board. On April 1, 1965, Alfred Burke complained to the commission on civil rights that the said retirement board had denied his request for a disability pension because of his color, in violation of subsection (a) of §
The parties stipulated that the only question involved is the interpretation of §
The issue before the court is whether that portion of §
Mandamus is available against a public officer to compel the performance of a purely ministerial act. See Hannifan v. Sachs,
There is a presumption that the word "shall" in the statute is imperative and mandatory. Strong
v. Strong,
In order to determine how the word "shall" is used in §
Reading §
The agreed statement of facts indicates that the attorney general advised the chairman of the commission that the certification was defective in that *147 an offer of conciliation by the employer, although fair and reasonable, was rejected. The statement of facts also indicates that the chairman of the commission, relying on the opinion of the attorney general, refused to summon the tribunal. The attorney general was thus going behind the certification, although the certification had been in effect directed by the commission, to overrule the investigator's certification and substitute the attorney general's evaluation for that of the investigator so far as efforts regarding conciliation and persuasion were concerned.
In enacting §
In Levitt v. Attorney General,
It should also be noted that the peremptory character of the word "shall," as used in the statute with respect to the duty of the chairman of the commission to summon the hearing tribunal, is further emphasized by the adverb "thereupon." The word "thereupon" means "[i]mmediately after that; at once; without delay". Webster, New International Dictionary (2d Ed. 1958). The language of the statute and its intent require immediate action by the defendant, upon certification of the complaint and the filing of the results of the investigation, to appoint a hearing tribunal to hear the plaintiff's complaint. The act to be performed by the defendant is a ministerial one involving no discretion.
Accordingly, the plaintiff is entitled to relief, and judgment is entered for the plaintiff for the issuance of a writ of mandamus as prayed for.