N.J. Constitutional Convention: Vol. 4, Page 142


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Tuesday, July 1, 1947 (Afternoon session)

more recently in our Supreme Court. Perhaps the better expression is, that are not otherwise disposed of. The fact is that our Supreme Court today is the embodiment, the residual legatee, of all the powers of the common law courts, the King's Bench, the Exchequer, and all the rest - except as they have constitutionally been taken away. If you have the provision that this intermediate court is vested with all of the powers of the present Supreme Court, except as they are placed elsewhere, you will have done wisely.

MR. BROGAN: You would retain the prerogative writ power?

CHIEF JUSTICE CASE: Yes. You have touched on the subject of prerogative writs. There is a good deal of misconception there. Those writs are powerful things, and the question which Judge McGrath has asked is not directly related, but it's indirectly related, to the issue of these prerogative writs, because some of those proceedings are by way of prerogative writs. I hesitate very much to have those powerful writs placed in the hands of other than this central body. They need plenty of finesse in handling. I mean by that that there is lots of room for confusion, and before you know it, if they were placed in fresh hands over a wide body of judges throughout the State, you will find that things are very much messed up. Why do I say that? Not because the men who are in the Circuit Court are any less wise than those on the Supreme Court, but men on the Supreme Court come in at intervals and they get acclimated to this thing. When a new member comes on the Supreme Court he has to be watched pretty carefully to see what he does with those writs.

MR. BROGAN: Justice Case, I want to ask you a question. There has been advocated before us the abolition of these writs in toto. I wanted to ask you what you thought of it?

CHIEF JUSTICE CASE: I don't think much of that suggestion. The reason is this. Those writs call for particular functions which have to be performed, whatever name you give them. They have different attributes. A good many years ago we undertook to do away with the distinction between contract actions and tort actions. Have we completely done away with the difference? Time and again you have to determine whether a claim grounds in tort, or in contract, in order to get to your pertinent principles of law. We might, if such a thing were within the realm of legislation, say, "We shall no longer have particular medical divisions. We'll not have appendicitis. We'll not have the croup. We'll have just bodily ailments. If anybody gets anything wrong with him he simply has a bodily ailment." All right, he gets a bodily ailment. Very simple. But he still has an appendix, which calls for an appendectomy. He still has the croup, which requires a separate kind of treatment. Why not have technical names, which suggest essentially diverse


Previous Page in Book ********* Table of Contents *********** Next Page in Book