Burke v. Rosenthal

• Decision Date: 05 April 1967
• Docket Number: No. 146913,146913
• Citation: 232 A.2d 508,27 Conn.Supp. 141
• Parties: , 9 Fair Empl.Prac.Cas. (BNA) 1222, 1 Empl. Prac. Dec. P 9809 Alfred BURKE v. Sarah G. ROSENTHAL, Chairman of the Commission on Civil Rights.
• Court: Connecticut Superior Court

Page 508

232 A.2d 508

27 Conn.Supp. 141, 9 Fair Empl.Prac.Cas. (BNA) 1222,

1 Empl. Prac. Dec. P 9809

Alfred BURKE v. Sarah G. ROSENTHAL, Chairman of the Commission on Civil Rights.

No. 146913.

Superior Court of Connecticut, Hartford County.

April 5, 1967.

F. Timothy McNamara, Hartford, for plaintiff.

Harold M. Mulvey, Atty. Gen., F. Michael Ahern and Robert L. Hirtle, Jr., Asst. Attys. Gen., for defendant.

KLAU, Judge.

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 § 31-126 of the General Statutes. The chairman of the commission on civil rights referred the complaint to an investigator for preliminary investigation. After such preliminary investigation, the investigator determined that there was reasonable cause for believing that an unfair employment practice had been or is being committed as alleged in such complaint. On November 24, 1965, after a discussion of the investigation with commission members at a regular meeting the commission had a full discussion of this case and the investigator's report and a letter from the Waterbury retirement board rejecting the commission's request that Mr. Burke be pensioned. It was voted that the case be sent to a public hearing, whereupon the investigator certified the complaint and the results of his investigation to the chairman of the commission and to the attorney general. A copy of said certification is marked 'exhibit A' and made a part of this stipulation. The attorney general reviewed the certified complaint and the file and issued an opinion to the commission on civil rights that the certification of the complaint was defective. A copy of said opinion, dated January 7, 1966, is marked 'exhibit B' and made a part of this stipulation. The commission, on February 15, 1966, notified the complainant Burke that on the basis of the attorney general's opinion it had voted to dismiss his complaint. The chairman of the commission did not appoint a hearing tribunal.

The parties stipulated that the only question involved is the interpretation of § 31-127. The plaintiff claims that the language of the statute is mandatory and requires the chairman to appoint a tribunal upon certification. The defendant claims that the language of the statute is discretionary, even upon certification. The parties further stipulated that if the court finds the language of the said statute mandatory, a writ of mandamus shall issue as prayed for in the complaint. The parties further stipulated that if the court finds the language of the said statute discretionary under the facts, then judgment may issue dismissing the petition. No issue was raised under the agreed statement of facts as to the effect of the failure of the plaintiff to take an appeal from the action of the commission in dismissing the complaint to the Superior Court. This issue was argued on a demurrer to the complaint, which demurrer was overruled (Shea, J.). There is no adequate remedy anywhere else to compel the defendant to perform her statutory duty which is as complete as the remedy by mandamus. See State ex rel. Foote v. Bartholomew, 103 Conn. 607, 618, 132 A. 30; Levitt v. Attorney General, 111 Conn. 634, 645, 151 A. 171. The agreed statement of facts confines the court solely to the question whether the defendant has discretion after certification of the complaint to her in summoning a hearing tribunal.

The issue before the court is whether that portion of § 31-127 which provides that the 'chairman of the commission shall thereupon appoint a hearing tribunal of three members of the commission or a panel of hearing examiners to hear such complaint' (italics supplied) is mandatory and requires the chairman to appoint a tribunal, or whether the language allows the chairman to exercise reasonable discretion with relation to such appointment.

Mandamus is available against a public officer to compel the performance of a purely ministerial act. See Hannifan v. Sachs, 150 Conn. 162, 167, 187 A.2d 253. Mandamus is not available against a public official to control the exercise of a discretion vested in him. Sharkiewicz v. Smith, 142 Conn. 410, 413, 114 A.2d 691; Hannifan v. Sachs, supra.

There is a presumption that the word 'shall' in the statute is imperative and mandatory. Strong v. Strong, 106 Conn. 76, 81, 137 A. 17; Colchester Savings Bank v. Brown, 75 Conn. 69, 71, 52 A. 316; State ex rel. Kirby v. Board of Fire Commissioners, 129 Conn. 419, 29 A.2d 452; State ex rel. Markley v. Bartlett, 130 Conn. 88, 32 A.2d 58; State v. Richards, 74 Conn. 57, 49 A. 858. On the other hand, the word 'shall' to a court has been construed to be merely directory, rather than mandatory, and not to exclude the exercise of reasonable discretion on the part of a court of probate. State v. Doe, 149 Conn. 216, 228, 178 A.2d 271. As against the government, the word 'shall' is often construed as 'may,' unless a contrary intention is clearly manifest. United States v. One 1960 Ford, D.C., 213 F.Supp. 562, 563.

In order to determine how the word 'shall' is used in § 31-127, the intent of the legislature must be ascertained. It is established law in Connecticut that the intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. Bridgeman v. City of Derby, 104 Conn. 1, 8, 132 A. 25, 45 A.L.R. 728. A statute should be construed having in view the nature and reason of the remedy and the object of the statute, in order to give effect to the legislative intent. The court is not concerned with the wisdom, or lack of it, of the enactment. It simply must find the intent of the legislature. The intent is to be found, primarily, in the words of the statute. The words in the statute must be given their ordinary and usual meaning without narrowing or changing the meaning beyond the visible intent of the legislature. When a statute is intended to further the general welfare, it should be liberally construed to further that welfare. And a liberal construction does not mean an unreasonable construction.

Reading § 31-127, as a...