N.J. Constitutional Convention: Vol. 4, Page 235

Thursday, July 3, 1947 (Morning session)

properly at law and having the equity issue decided there, just as I would like to see it in the Court of Chancery, where a question of a legal title arose, to have the Vice-Chancellor determine that question in connection with his decision.

MR. McGRATH: What distinction do you draw between giving an Orphans' Court judge the right to give instructions to an executor but not to a trustee?

MR. KAUFMAN: I would abolish the distinction and have the Orphans' Court established as a court of probate. In other words, if a case was started there, it would be finished there.

MR. McGRATH: That, of course, would be impairing jurisdiction.

MR. KAUFMAN: You can do it by constitutional amendment.

MR. McGRATH: What do you mean by constitutional amendment?

MR. KAUFMAN: I mean by constitutional provision at the start, where you establish the jurisdiction of each court. For instance, I differ with Justice Colie with respect to prerogative writs. I believe it's more than a tempest in a teapot, and I believe that a prerogative writ, by that name, should be abolished, and the whole remedy should be clarified. I believe that the discretionary element should be abolished in connection with rules and administrative procedure. I think there are some phases of prerogative writs, with the exception of habeas corpus, that could easily be eliminated because of this situation.

I remember a case dealing with peremptory writs of mandamus. Now, everybody knows that if a justice grants a peremptory writ of mandamus right from the bench, that is not reviewable. In the case involving the establishment of the Asbury Park Beach Commission, you remember that the Legislature, during the debacle of Asbury Park, ripped out the beach from the jurisdiction of the city and established a beach commission to administer it. During the course of that litigation, Mr. Justice Perskie granted a peremptory writ of mandamus.

MR. BROGAN: He was tired of it.

MR. KAUFMAN: He was tired of the thing. He hated the statute. It may be that he was afraid that it was going to be applied to Atlantic City, but nonetheless, he granted the peremptory writ of mandamus. Counsel asked leave to mold pleadings. Justice Perskie said "No, I am giving you my verdict. I won't let you mold pleadings." Now, meanwhile, Chief Justice Brogan said "No, that's not a final judgment," whereupon counsel sued at law for a declaratory judgment as to his rights. Whereupon the Court of Errors and Appeals wrote an opinion, in which they said: "Normally, it isn't res judi-

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