N.J. Constitutional Convention: Vol. 4, Page 159

Tuesday, July 1, 1947 (Afternoon session)

should be permanently assigned. I favor the more flexible system, but I wouldn't quarrel with a permanent assignment. Mind you, just a few minutes ago, Chief Justice Case told of the judges, the number of judges, that had been appointed during his incumbency. It didn't take those judges very long to become really expert in both branches of law.

MR. BROGAN: As a member of the bar, I want to say something for the bar. I think that a splendid body of jurisprudence and equity has been built up by the labors of the members of the bar.

MR. SOMMER: That is the point I want to make.

VICE-CHAIRMAN: Before we get into further executive session, let Mr. Watson finish his remarks.

MR. DIXON: In connection with this matter of rule-making by the highest court, will that power be restricted or will it be so broad that if we had some Justices of the Supreme Court, the highest court, who wished to, could they pass rules which in effect would be, as it were, all the way down without making any of these changes?

MR. WATSON: If these provisions, to which we have been referring, are inserted in the Constitution, the rule-making power would have to do merely with the application of these fundamental principles, namely, if a litigant applied to the equity side, filed a bill in the equity side, and obviously he was seeking a legal remedy, the rules would provide that he be sent over to the other court where he belonged. It is the administration of the principles which your Committee will lay down, I hope, that will be covered by the rules.

Now, also, it could be provided this way. The Court of Appeals, the court of last resort, shall have the power to make rules, procedures, which shall have the force of law, unless otherwise provided by law. Now, some claim that that would give the Legislature some control over the rules. Personally, I don't favor that. We have three coordinated branches of the government - legislative, judicial, and executive. The making of rules governing the courts is a judicial function that should be reposed in the Judicial Department. But the court couldn't circumscribe the constitutional principles.

MR. SMITH: You and Justice Brogan seem to think certain things cannot be in the Constitution, and we come back to your question - could the rule-making body forget to establish some of the desirable rules?

MR. WATSON: Oh, no.

VICE-CHAIRMAN: Remember what Dean Pound said this morning, that with the rule-making power, the Court of Appeals would have to adopt appropriate rules; otherwise the courts couldn't

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