N.J. Constitutional Convention: Vol. 4, Page 49
that the practice with respect to the prerogative writs should be changed. Attempts have been made to change it for years. The Legislature passed an act in 1938 authorizing the Supreme Court to change the practice. Nothing was done with respect to it for the reason I shall give you in a moment. An act was introduced in the Legislature a few years ago, but because of constitutional limitations an effective change in procedure could not be carried into effect. Last year an attempt was made to modernize the practice by submitting a set of rules to the Supreme Court for adoption. Again, because of constitutional objections effective procedural changes could not be carried into effect. Every time a change was sought we suffered from the fact that under the Constitution certain things may not be done.
I am going to address myself to the lay members of the Committee, since the prerogative writs are known to the Bar - at least they are known to 10 per cent of the Bar, the other 90 per cent probably never had a case involving them. These prerogative writs involve proceedings which compel public officers to act, that is, mandamus proceedings; to stop a public officer from improperly acting, that is, a writ of quo warranto; and proceedings under which the actions of governmental bodies are reviewed, that is, the ordinances of municipalities, actions of the Tax Board, review of workmen's compensation cases, review of all administrative bodies - all are reviewed under what is generally known as a writ of certiorari.
These writs are very, very old. They come to us from England, and they are the writs which were granted by the King under special circumstances, for special purposes - the cases in which the ordinary rules of law did not apply. And, strange as it may seem, while we here in New Jersey have substantially the same practice as was in existence back in the colonial days, as far as our research shows almost every other state in the Union, and England, have changed their practice and procedure so as to bring about a more modern, simple method and procedure.
These writs are very technical. The best way that I can explain what these writs do and what difficulties counsel get into, is to take two classes of cases and compare them.
Let me take, for example, an automobile accident case. You may have your car parked in front of your house with a light on it, and you may be nowhere around, and somebody runs into your car and damages it. But instead of you suing, the other fellow starts a suit. He has a perfect right to bring that suit; there is nothing that anybody can do to stop him. He may subject you to all sorts of expense. He may carry on his litigation and you may eventually win, but he has to ask no one's permission to bring the suit. He has the right to sue as of right.
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