N.J. Constitutional Convention: Vol. 4, Page 51
other two might be. He allowed a rule on both applications, so that counsel could argue which one of the two writs should be allowed. Thereafter one of the two was allowed, and when the case was argued in the Court of Errors and Appeals, it was finally decided by that court that the case should have been presented under the writ which the Justice originally refused to allow as not being the proper proceeding.
In order to eliminate this question, one of our legal lights, one of the outstanding members of the Bar, Merritt Lane, in a simple case asking for a building permit in Glen Ridge, prosecuted simultaneously four writs of certiorari and five applications for mandamus in order to be certain that he was correct.
May I point out that this is not the fault of the court, it is not any fault of the Legislature, nor of counsel. You may not know until the facts develop just which writ should be used, and you can't very well change.
Attempts have been made to change all this. The Justices, recognizing this difficulty, very frequently take a proceeding in which a man has started with a writ of certiorari, and where he should have had a writ of mandamus, and try to switch it in order to give the people their rights. But then you run into the difficulty that in some of these writs you are entitled to a jury trial. If you have started one way, with a proceeding in which you are not entitled to a jury, you cannot very well switch to another method at the end of the proceedings because the party said he preferred having a jury trial. And, similarly, under some of these writs you have an absolute right of appeal after a final decision, but in others you do not.
Now, let me go back. I have spoken to you for a moment about the institution of these proceedings. Let me say something about the prosecution of the suit. In the automobile case that I gave you, the case is tried before a judge or jury. He rules on the testimony under fixed rules of evidence. When the evidence is in, the case is completed. There is a jury trial, or not, as the party may decide in those cases.
Under the prerogative writs the same testimony may be offered several times before the final disposition of the case. Very frequently, before you are granted a writ you obtain permission to take testimony, because you may not have all the facts before you. This testimony is taken under what is known as a rule to show cause why the writ should not issue. Once the writ is issued, all the testimony that was taken prior to that time loses its value and you take the same testimony over again in support of the writ. I have in mind a case at the present time where I have taken the same testimony three times, and there has really been no dispute. All this arises because of the practice which has been followed in the past.
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