N.J. Constitutional Convention: Vol. 4, Page 220

Thursday, July 3, 1947 (Morning session)

thing that I want to see is any such thing as a code of civil procedure, or whatnot, as they have it in New York. There is no New York lawyer who knows what the score is. So you see, I'm not helpful on that.

VICE-CHAIRMAN: Well, we can't hedge on these things. We will have to reach some conclusion on it.

JUSTICE COLIE: I don't think that the Legislature should be foreclosed. I don't think the judiciary ought to be set up so that nobody can even make a suggestion to them.

VICE-CHAIRMAN: You might approve the federal system which, in effect, is that the Congress delegates to the court the rule-making power, but Congress still retains the power to superintend and revise it. You approve of that?

JUSTICE COLIE: Oh, definitely.

VICE-CHAIRMAN: Any further questions?

MR. McMURRAY: May I ask the Justice one further question? Getting back to the question of prerogative writs - as I understood your position, you thought it was unnecessary to lump, shall we say, all these prerogative writs under one general writ, on the theory that the Supreme Court Justice, as I understand it, now has the power, if he wants to, if you applied for mandamus, to say, "No, you should have another writ." He has that power if he wants to exercise it.

JUSTICE COLIE: He has that power today, sir.

MR. McMURRAY: What I was getting at is that, even though he has that power, isn't his ruling in the matter subject to appeal? In other words, if I went in and asked for a writ - I'm not a lawyer so I make a lot of mistakes in my terminology, probably - if I applied for a given writ and the Supreme Court Justice exercised his right and told me, "No, you are applying for the wrong writ, you should have such and such a writ" - wouldn't that matter be appealable, and wouldn't that cause delay and complications, whereas, if the matter were covered by there only being one writ issued there couldn't be any appeal? Am I right in that, or is that -

JUSTICE COLIE: Well, in a way you're right, and in a way you're wrong, sir. If, under the existing system, an application is made to me for, let us say, a writ of certiorari, and I don't think one should go, but a writ of quo warranto should go, it goes. Then the case comes up before the Supreme Court, to which it is made returnable, and there the matter may be dismissed, because the man didn't make out a case which would support either a certiorari or quo warranto. Do you see what I mean, sir? But the fact that I issued quo warranto when I should have issued certiorari, I don't think, if the existing rules are honored, that that would be a reason for dismissal.

MR. BROGAN: I think that the basis of this confusion, if it is

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