N.J. Constitutional Convention: Vol. 4, Page 499

Wednesday, July 30, 1947 (Morning session)

Mr. McCarter, there is not even in Section VI, paragraph 2, any provision for permanent assignment of judges to the equity jurisdiction. We all want simplification, and I have listened attentively to what previous speakers have said. But we do not wish to see essential and important substance forfeited and lost merely to achieve simplification in form, because substance is more important than form. I venture the observation that those persons who think that they achieve economy and efficiency merely by simplifying in nomenclature the court set-up, will probably, in our firm opinion, be misled. This Article takes away even more completely than we had expected an opportunity to have Chancery jurisdiction administered by experts in that field.

Beyond that, I should merely like to allude to two paragraphs. In Section IV, paragraph 4, reference is made to the prerogative writs and it is said that they are to be superseded and in lieu thereof review shall be afforded by the General Court as of right. Now, I take it that only one prerogative writ in its essence is a writ of review, and that is the writ of certiorari. A writ of mandamus doesn't review anything and I know - perhaps lay members of the Committee may not be aware of it, but the members who are members of the bar will be - a writ of mandamus commands someone to do something, and a writ of quo warranto commands someone to show cause by what right he exercises the functions of an office. Now I'm wondering whether this clause won't leave us in midair, as it were, because you say a right of review shall be afforded by the General Court as of right. When we come to a question of mandamus or quo warranto, what is to be said about the effect of this clause on the existing state of law? Will we still have a right to a writ of mandamus? Will we still have a right to a writ of quo warranto? Will it be merely the writ of certiorari which is superseded? I think those questions all show that in the future there may be considerable confusion and debate about what the state of the law really is as a result of that clause.

I point that out merely as a suggestion that it calls for clarification. I quite agree with Mr. McCarter that the phrase that the writ of review, or whatever you are going to call it, shall be a matter of right, will certainly do away with what has been fundamental in our legal system, and that has been that the allowance of all prerogative writs is discretionary. That dates back to times even before the adoption of any constitution in New Jersey and finds its origin in the common law of England. Now, if you are going to say that everybody is entitled to what will be substituted for a writ of certiorari, whether the justice wants to give it to him or not, and that he is compelled to give it to him because of this constitutional provision, it seems to me that you are going to invite more litigation

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