N.J. Constitutional Convention: Vol. 4, Page 186

Wednesday, July 2, 1947 (Morning session)

court, to alter the court in its character, to impair its jurisdiction, diminish its authority, are beyond legislative power because that character, jurisdiction and authority are part of a body of law which is on wise ground and immutable by any legislative act."

Now, if in this Constitution, or any other that may be adopted, the word prerogative writs appears as a function of any court, Supreme Court or Superior Court, and there is not an express limitation of power put in the organic body of the law, I fear we shall run into a court interpretation which will leave us with the same handicaps under which we have suffered as the result of a practice that was started about 150 years ago. Some of the technicalities of mandamus or quo warranto that existed then are still in existence today, and I think, too, that the writ of certiorari has been abused, has been overextended in the State of New Jersey by the Supreme Court. Text writers throughout the country recognize it, and I certainly am convinced of it.


MR. HARRIS: Well, by their depositions and making of new cases, substituting their opinions for administrative bodies who have the first evidence before them, in matters of that kind.

MR. BROGAN: Isn't it the duty of any appellate court to correct errors of law or fact in certiorari.

MR. HARRIS: Yes. The rule is good.

MR. BROGAN: Well, you mean it is done improperly and wrongly?


MR. BROGAN: In other words, the original body, like the Supreme Court, is wrong -

MR. HARRIS: No, not that. But while they say that where there is evidence to support the finding of the lower tribunal they will support it, there are cases - if you are familiar with them, and you certainly are -

MR. BROGAN: Reasonably so.

MR. HARRIS: - which many times do not follow the rule. Let's take, for example, the matter of zoning. It has come to a point where a new municipal attorney will not dare give a fixed opinion on whether an act of the board of adjustment or the planning board in a municipality is going to be upheld or not, because you cannot square the Supreme Court cases.

MR. BROGAN: You mean that the recommendation of the top court would be considered not to be a reasonable exercise of discretion, or something like that?

MR. HARRIS: Yes, the rule is right, but when you compare the evidence you don't know whether they are going to follow the rule or not.

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