N.J. Constitutional Convention: Vol. 4, Page 197

Wednesday, July 2, 1947 (Morning session)

Court of Errors and Appeals in some case, Wood against somebody, back in 1823 held that the Supreme Court could exercise its jurisdiction in parts, and that's what has been done.

MR. DIXON: Do I understand that this Constitution should be presented to the people and approved by them, and if it is then attacked as being not in accordance with the present Constitution because it provides for amendment instead of convention, that the Supreme Court, as duly constituted, would have the right -

JUDGE SMITH: As presently constituted it has the right now, if called before it -

MR. DIXON: Well, there will be a Schedule, no doubt, which will mean that it will take some little time before these court changes could be made. Now, will the present Supreme Court have the right to say - throw this whole thing out because it is unconstitutional?

JUDGE SMITH: I would assume so, because they have the right to pass upon the constitutionality of any statute.

MR. DIXON: Based on the statute as it is at present. And after it is ultimately constituted, if you move the Supreme Court judges up to the Court of Appeals, they would still have the right -

JUDGE SMITH: The judges who were going to administer the new court would be the same as the judges who are going to pass upon the creation of it. In other words, it is the same personnel.

MR. DIXON: Then you feel that they would have the right to throw this thing out.

JUDGE SMITH: It is based upon a statute and I haven't made any research on it, but I assume the constitutionality of any statute may be passed upon under the present Constitution.

MR. DIXON: But the Bill of Rights - I can't quote this exactly, but it says all power is inherent in the people and the Constitution can be altered or changed as they wish.

JUDGE SMITH: But you go before some court and they say whether this is under the Bill of Rights, don't you see?

MR. DIXON: That is why I ask whether the court has that power.

JUDGE SMITH: Well, you might call the military in and put the new constitutional officers in office. What I am getting at is, it should be made as simple as possible, and that is so that the thing would go right along - the same set-up, but simplified.

VICE-CHAIRMAN: Any further questions?

MR. SMITH: I am a layman on this Committee, so you will forgive some of these questions. You speak of the desirability of full-time judges in the Court of Appeals and in the Supreme Court, and then you imply part-time judges below that -

JUDGE SMITH: That is true. Now you have judges who, I

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