N.J. Constitutional Convention: Vol. 4, Page 156

Tuesday, July 1, 1947 (Afternoon session)

of certiorari.

Members of the Committee, not only do judges differ, not only do lawyers make such mistakes and make them often, but the justices themselves are in disagreement about it, and you can find many cases in the books where the courts disagreed - lengthy opinions, historical opinions - divided courts, as to whether the litigant is entitled to a writ of mandamus, which is designed to compel somebody to do something; a writ of certiorari, designed to review the proceedings of an inferior tribunal to determine whether they are legal or not; or a writ of quo warranto, by which the title to an office, public or private, is tested.

So you can see how such a situation as the Chief Justice cited, is a close question, whether you merely want the proceedings of the inferior tribunal reviewed and sustained or set aside; or whether, in addition, you want some affirmative relief - somebody compelled to do something about it. The Chief Justice said that he suggested to that litigant's lawyer that he apply for two writs, certiorari and mandamus; and after the certiorari proceedings were completed, if a mandamus proceeding was still necessary he could start that. Why do that, we say? Why bother about whether it is certiorari, mandamus? Let's call it hocus-pocus, or XYZ - that isn't important - let's decide the case. So there again - now this 1944 draft -

(Inaudible question by Mr. Brogan)

MR. WATSON: I think so, but I don't care whether it is done by rule or provision in the Constitution. Let's do it. This provision undertook to accomplish it by Article V, Section III, paragraph 4, which it seems to me would do it, and quite simply. We have an application for any prerogative writ. The Appellate Division, or the Justices of the Supreme Court, shall allow such writ as the case shall warrant. What's the matter with that?

MR. FRANK H. SOMMER: May I ask the Chief Justice a question on that? Isn't it true, under the statutes as they stand now, the court has that power?

MR. BROGAN: Precisely.

MR. SOMMER: They haven't exercised it, that's all.

MR. BROGAN: That's right.

MR. SOMMER: We're not concerned with the reasons why the court has not exercised it.

MR. WATSON: Well, Dean Sommer, the Essex County Bar Association recently published a long dissertation on the refinements of the prerogative writs, the distinctions between them.

VICE-CHAIRMAN: What did you think about them?

MR. WATSON: I was dizzy when I finished reading it.

MR. BROGAN: Did you think it had any real merit?

MR. WATSON: Well, I'd rather not say, Chief Justice Brogan.

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