Putnam patriot., 1908-06-12
 Superior Court.
MANDAMUs PROCEEDINGS AGAINST PRosEcuTING ATTORNEY CARD.

MANDAMUs PROCEEDINGS AGAINST PResEcUTING ATTORNEY CARD. There was hearing upon the alter.
 native writ of mandamus issued against
 Prosecuting Attorney Card of this city, Tor refusing to prosecute one George
 Peterson, upon information furnished
 to him by F.. NJ. Warner and F. W. Ferry, members of the Civic League of Putnam, setting forth that Peterson
 had kept open his shop on Sunday and exposed for sale merchandise contrary
 10 the general statutes of Connecticut,
 in the Superior Court. at Willimantie.
 last Friday. Attorney B. Harvey, of
 Niiiimantic, appeared for the Proseeu- ting Attorney, and fled the following
 motion 10 quash
 l Charles F.. Searis, States Attorney, vs.
 Huber D. Card, Prosecuting Attorney,
 of the city of Putnam.
 1 The respondent in the above entitled cause moves that this writ of manda-
 mus may be quashed and that he may I be dismissed from answering to the same, and for reasons of said motion he 1 pleads and says:
 l. The application and writ and the matters and allegations therein con tained are insufficient in law.
 ,. It fully appears in said writ that the respondent Is the Prosecuting At torney of the city of Putnam, duly ap- pointed and qualified, and that in re l fusing to institute the proceedings by said application sought to he enforced l he was and i> i'll the exercise of the of 1 fieial duties ol his said office, involving the exercise of his official judgment i and discretion.
 ;. Il does not appear that the act which this court is asked To enforce k the performance of purely ministerial act in respect to which the respondent has no discretion.
 l. It fully appears by said writ that the institution and prosecution of the legal proceedings asked To be enforced, are matters discretionary with the re- spondent by reason and by virtue of his said office.
 Huber D. Card, by his attorney. States Attorney Searls stated 10 the Court that it had been agreed by coun- sel to have the hearing in Putnam.
 Court came in Tuesday morning in this city, Judge Rorabaek on the bench. The above case was assigned for hear ing al 9 |. III. Wednesday.
 Attorney Harvey opened by reading the allegations in the complaint and the motion to auash. He said he ad- mitted the respondent is d public oiii- eer. His duties are of two kinds-min- isterial and acts of discretion. \ min. isterial duty Is one where nothing k jeff 10 discretion. His whole eonten- ton was that the duty of a prosecuting attorney is necessarily discretionary and therefore the writ of mandamus will not lie. His duty is To inquire and prosecute. If these are inseparable then il proves that he has discretion for he investigates and if he finds cause he preseeuies. There is only one per son appointed by the Common Coun- eil; he is to judge whether or not there is reason to prosecute. As To there be ing no other remedy, there is in the power of appointment the power of re- moval, and l suppose if he refuses 10 do his duty he can be removed.
 Attorney Donald G. Perkins, of Nor wieh, appeared on behalf of the League. He said a litle light would be obtained by considering the general situation in the case. The proceeding started ami cably. The Prosecuting Attorney was willing to act if the court decided it was his duty to do so; that with the attorney the matter was one of princi- pie He admitted that where disere- tionary power k involved mandamns will not lie, but MT. Harvey had as- sumed false premises. There is and must always be matter of discretion as 10 the facts. but after the facts are found, and, as in this case, admitted by the motion to quash, which admits the allegations to be true, then there is no further discretion. The allegations are, that he had full knowledge and information, that he unlawfully and wilfuIly refused to act, and by his mo- tion he admits these allegations. He can't say although crime has been committed, in my discretion l won't prosecute. When it gets to this point he has no discretion. IL is his duty to investigate and consider, discretionary that far, but in this case allegations are that a crime had been committed, he knew it. and refused to prosecute.
 The Judge took the papers.