New Britain herald., 1930-01-14


 unknown to the corporation counsel and filed. June l2, and on June IS, the court ruled the writ of manda- mus may be issued" This. 1t is claimed, was a final finding without the formality Of preliminary hear ing, but the request of the defenl- ant for hearing was denied.
 Kirkham Lists Nine Points
 After the foregoing review of tho facts, Judge Kirkham appealed f)r reversal on the ground that tue court erred on nine points, which he lists.
 Reference 10 acts by the council committee to discriminate again st the company were allowed to stan ] iu the record over the objection of the defendant, when, according 10 the argument there was no evidence excepting the remarks Of two meEl- bers of a committee Of five. Rals- ing no questi ion on the claim that two members of the ordinance conl- mittee did discriminate against tho oil company. it was clalmcd that this was immatcrial since the law was adopted by d common council of 3l members, and it was also IT. gucd that claim of discrimination might be set up by churches. schools and other public institutions in other zones, that they were not given the ho nraI-i0nsIV h9 Il while that degree Of protection was continued in the industrial zone. This refers to the provision Of 200 feet,
 Objection was madc 10 a record that the board of adjustment notl- fled the companys attorney that Il was unable to give any relief. Judge Kirkham argued that this was the expressed opinion Of few members, but not an action of tho board, ana that the application for a specl1I exception was voluntarily with drawn.
 Further objection was found 10 the exclusion of an attack on the method employed in applying Tor q building permit. the request haNl3e been made orally and not in Wrltln5' as required by the charter.
 Another ground for appeal was the failure to include in the 1lndihe a record of the common counch proceedings which. it is argued WAS evidence as to the pollcI' intent. fairness. lack of arbitrariness of the legislative body of the clSy Of New Britain in the adoption ol this ordinance @.' Exclusion ol six paragraphs of the motion to cor rect the finding, these deallng Wl'h law. was protested. as is also the absence of a second hearing.
 Several other objections to the ln- clusion or exclusion of evidence or records were raised.
 Discusses Mandamus
 Numerous authorities were quoted in support Of Judge Eirkham ar guments that mandamus does not lie to compel the performance ol A duty calling for judgment and dis crciion: that the common council had full discretion and it is the council that rclator is really at tempting 10 Coerce; mandamuS lies Cnly where legal right is clear and there is no other legal remedy thcre the Masonic temple controversy ana decision are quoted at length; II relator loses by laches or otherwise it's rights to other legal remedies It is not thereby given the right Of mandamus; where rclator has other adequate legal remedies by the very act under which it seeks a permit it must first pursue the remedies of the act. before seeking a permit by mandamus (here the mandamus application of Azukas vs. Inspector Rutherford is quoted); that a board to constitute an action of itself must act as a board according to the rules and procedures laid down by law is automatic; mandamus will not lie to cause an officer to con- init a crime or subject himself to damages.
 Further paragraphs claimed that the proceedings in the case were highly irregular and prejudicial to the respondent; that no writ Of mandamus had ever been issued ac- cording to the forms prescribed by law; that the respondent in CO., i,,r tp l,rintr alh GrepI ' trial has not waived any rights; that return was never legally filed that the court should have allowed full trial of the case; that per emptory mandamus should not have issued without a writ and without q previous alternative writ; that re- latOr was not properly in court since it had not taken the proper preliminaries 10 raise the question Of non issuance of a permit: tha' regardless Of individual opinion or the case. the judge should have granted an alternative writ and al. lowed respondents q full trial foI purpose of review.
 'l
 In defense of the claim that the ordinance was unconstitutional il was set up: The section of the ordl nance in question Uhe greater re striction in industrial zones thaI prevailed in zones of higher grade did not Coutravcnc the spirit of tho entire ordinance; the ordinance wa not solely against the rclator; tn rclator has not properly laid th ! basis for passing by the court ol
 the unconstitutionality Of the ordi nance in question; the ordinanc
 was constitutional as proper cA ercise of the councils power l. classify the city and make differen regulations for each class, and a such did not deny protection of th' laws; the classification of the ordi nance is Of property owners in tho industrial districts; classitications o