N.J. Constitutional Convention: Vol. 4, Page 143

Tuesday, July 1, 1947 (Afternoon session)


You see, there are different questions involved. There are difficulties that arise in some instances to which legal acumen has not as yet found a wholly satisfactory answer. Let us put the case of the building inspector who will not give the owner of property his permit to build. The building inspector will not issue the permit because he doesn't construe the zoning ordinance in the way that will allow the proposed structure or use. Therefore, the land owner gets a writ of certiorari to review the zoning ordinance. It is true that if he wins under his writ of certiorari and succeeds in having the ordinance construed as he would like, there still isn't actually a direction against the building inspector to issue the permit. What I have done in such instances as that is to say, "Put in, also, your application for a writ of mandamus and we shall carry it along, and if you win, we shall issue to you a writ of mandamus against the inspector."

MR. McGRATH: Would you say the rules should provide a new practice?

CHIEF JUSTICE CASE: I feel that to put those powerful writs in the hands of all the trial judges would result in a breakdown of the theory of the writs.

MR. McGRATH: Anyway, you think they should be left in the Supreme Court?

CHIEF JUSTICE CASE: I think so. Does that answer your question?

MR. McGRATH: I think so.

CHIEF JUSTICE CASE: We recommend for your study - I say we, I am talking for the Justices of the Supreme Court - paragraph 1 of section 3 of the amendment as proposed in the 1932 Concurrent Resolution, No. 7, introduced by Senator Wolber, who was later Circuit Court Judge and has recently died. That reads this way: "The Supreme Court shall possess the appellate jurisdiction heretofore vested in the Supreme Court, except where judgment of death is involved, and the original jurisdiction, civil, criminal or otherwise" - this is what I was talking about a while ago, having something in your Constitution that will carry into it all of your old powers - "heretofore vested in the Supreme Court, etc."

I have some citations here which I shall not read to you, but I shall be glad to give them to anybody who is interested, showing how the old powers of English common law survive in the Supreme Court today.

Now, we come to the county courts; and again the series of questions: What is wrong? What should the remedy be? Well, the abolition of county courts would, we think, be unpopular and unnecessary. People like them. Why should they be changed? I have

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