N.J. Constitutional Convention: Vol. 4, Page 153


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

present Constitution, we would have to submit to the jurisdiction of two courts, because only in the Supreme Court can one ask for a prerogative writ, a writ of certiorari, which Chief Justice Case would issue. They review the proceedings of an inferior tribunal. The Court of Chancery can do nothing but enforce this order; if it be by injunction - an injunction to enforce the order.

We had a recent decision illustrative of that, the Lewis case - the coal strike case. The tribunal, or the third party, would have to go to equity to enforce the injunction, because only a court of equity can issue injunctions. The Supreme Court can't do that. The Court of Chancery only can issue injunctions, but it cannot review the proceedings of the inferior tribunal. So here you would go two ways, to two courts, to review the order of this inferior tribunal. Then, if either party were dissatisfied, you would again go to the Court of Errors and Appeals for review of either or both decisions.

Now, members of the Committee, that seems to be ridiculous. The cases can be multiplied. It is late, and I am not going to take your time to do this, but I have here a practical illustration of this. I will cite for the record the case of Jessop v Passaic Valley Water Commission, decided by Vice-Chancellor Bigelow, 117 N. J. Eq. 31, and that is the judge who, sometime ago, in 1934 - let me review that case very briefly - just one example.

In that case Mr. Jessop owned land on the Passaic River. He was a riparian owner. The Passaic County Water Commission was diverting water above. Mr. Jessop, the lower riparian owner, complained against that diversion. He said the lower riparian owners were entitled to the undiminished flow of the stream, unimpaired in quality. So he applied to the Court of Chancery for an injunction restraining this diversion. Well, said the Court of Chancery, you can apply, but we can't allow you an injunction unless your legal right as a riparian owner is clear. Now, if there is any doubt about your legal right, said the Court of Chancery, you must first go to a court of law to establish that. Then come to us for an injunction. If you file your bill and it finally appears that there is no doubt about your right - if your legal right is clear - we will allow you an injunction; but if it turns out your legal right isn't clear, we won't, and we will send you to a court of law. If you stay here you will have to gamble as to the outcome.

Now, you will say that is absurd, but there it is - a decision by one of our best judges. I won't take any more of your time, but I have here from the Advance Sheets - these are current court decisions, but not yet in the bound copies - I have here four or five cases of disputed questions of jurisdiction, where the parties either had to go to one, to two, or more courts - in one of these cases to three courts - where the parties had to go to two courts to get


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