N.J. Constitutional Convention: Vol. 4, Page 296

Tuesday, July 8, 1947 (Morning session)

MR. HENRY W. PETERSON: Do you care to comment on the advisability of writing a section concerning prerogative writs into the Constitution?

MR. BROGAN: Should they be preserved?

MR. VAN RIPER: I am inclined to think they should be.

VICE-CHAIRMAN: You mean the Constitution should preserve the writs of certiorari, quo warranto and mandamus?

MR. VAN RIPER: I think that we discussed that at considerable length in our previous drafts in 1942 and in 1944, and it was our conclusion at that time that they should be maintained, that is, the authorization of granting a writ of certiorari. Do you have something different in mind on that, Mr. Chairman?

VICE-CHAIRMAN: Yes, I don't believe the previous proposal preserved the writs as such. But forgetting the previous proposal, your present view is that the Constitution should preserve some form of distinction between quo warranto, certiorari, mandamus and other prerogative writs?

MR. VAN RIPER: Oh, I don't know that it should necessarily contain the preservative statement, but I think that it it should make possible the relief or remedy which those writs grant.

VICE-CHAIRMAN: Yes, but that's a different answer to Mr. Peterson's question. Assuming that we allow the relief in some form or other, do you still think there ought to be the procedural distinctions?

MR. VAN RIPER: I think, as a matter of fact, if you can clear up that situation you will do something that's very helpful. I don't know who has been able to clear it up yet. The Chief Justice, I know, has been tusseling with it for years and hasn't been able to clear it up yet, in the Court of Errors and Appeals and in the Supreme Court. We can eliminate a lot of distinctions, but keep the relief.

VICE-CHAIRMAN: I don't think we quarrel at all with the availability of the relief.

MR. VAN RIPER: If you have the benefit of the relief, of the court's help in that direction.

MR. DIXON: Do you agree that in every one of those cases there ought to be at least a single right of review, rather than an arbitrary writ?


MR. SMITH: Mr. Van Riper, you are proposing an ultimate seven-man top court, and you say temporarily a nine-man top court, to take care of the Chief Justice and the eight Justices. What about the Chancellor in that situation?

MR. VAN RIPER: I would assume that if you had an Equity Division, he would be the head of the Equity Division.

MR. SMITH: But not on the top court?

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