N.J. Constitutional Convention: Vol. 4, Page 50

On the other hand, if a civil service employee is discharged, if you do not like the tax assessment that has been levied against your property, or you ask for a building permit to alter your home or to build a new home, and the permit is refused, you must apply for one of these writs. That subjects the matter to the discretion of the court which may or may not grant the writ, as it sees fit. Generally, writs are granted where a debatable question arises, but frequently they are not granted.

At the present time, the Justice may or may not see fit to grant your writ. His idea may be that under the law you have no right to start your suit. If he refuses, you are now given permission to apply to the Supreme Court itself, and the Supreme Court will decide whether or not you may bring your suit. Sometimes the greater portion of a year is consumed, not in litigating the meritorious question, but merely in getting permission to bring suit. If your application for the writ is denied by the Supreme Court, under the present practice you have no appeal. That is the end of the case. As the granting of your application was discretionary, there is no method of review by the court of last resort. You are through with that proceeding.

If by chance, however, you are allowed a writ, you may not know until your case is decided by the Court of Errors and Appeals - after you have taken your testimony, printed your records and argued the case - whether you have sued under the proper writ. You may get to the Court of Errors and Appeals and the court may say, you should not be here on a writ of mandamus, you should be here on a writ of certiorari; or you should not be here on a writ of certiorari, you should be here on a writ of quo warranto. Then you start all over again. And the difficulty is, that it may not be the fault of counsel or the court that you have selected the wrong writ. The facts as they are developed in the case by the testimony taken may be such that then, for the first time, you learn what your writ should have been.

I can give you one very brief example of this. The other members of the Bar who are here know these cases by rote. We have had a lot of prerogative writ litigation in Newark - and Newark, next to Bayonne, has more prerogative writs than any two towns. Some time ago they had a dispute about the organization of the City Commission. The question was whether or not certain officers in charge of revenue and finance should be appointed by the Commissioner of Revenue and Finance or by the Commission as a whole. There were eight to nine officers involved. Counsel wanted to play safe, so he drew up papers in quo warranto, in certiorari, and in mandamus. He presented all three to one of our Justices and the Justice quickly decided that one of them was not the proper one, but one of the


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