N.J. Constitutional Convention: Vol. 4, Page 545

Wednesday, July 30, 1947 (Afternoon session)

what matters may be appealed. As I said this morning, other states have treated that by particularly specifying just what matters can go up to the highest court, and under what circumstances. It would not require a very lengthy article. I think the New York judicial article takes about two average size pages in the average size law book, and provides fully and completely all the times and the circumstances under which an appeal may go to the highest court. I think we ought to do that in the interest of certainty.

Section IV, paragraph 3 contains the expression that the appellate tribunals may exercise such original jurisdiction as may be incident to the complete determination of any cause on review. I think the choice of the word "incident" is an unhappy one. Its dictionary definition doesn't fit in this expression and doesn't to my mind take us to the goal which the language in my opinion intends to take us. It seems that there is a bit too much flexibility here with reference to this provision, because it would be almost impossible for counsel to anticipate in advance when the court might take jurisdiction and when it might not. In other words, it, in effect, creates some right, the exercise of which may be at the whim of the appellate court. I think that such a situation should not be permitted to develop. So, too, I think that this language, or whatever language may be substituted for it, should be accompanied by a phrase which, according to my research, was annexed to a comparable proposed amendment to the Judicial Article in 1909. That is the clause or the paragraph which closed with these words, "saving, however, the right of trial by jury." I think some consideration should be given to that. The reasons which prompted its inclusion in 1909 are, I think, still good today.

In Section IV, paragraph 4, we come to the prerogative writs. I think we have heard this afternoon from a man, Mr. Hannoch, who, in my humble opinion, is probably the best versed on the subject of these troublesome writs among the entire bar of the State of New Jersey. I think that what he has said is entitled to be given great weight by this Committee.

There is just one suggestion which I would offer with reference to this paragraph. I think the choice of the words "prerogative writs" is a bad one. I assume that the evil sought to be cured is the great uncertainty and the unsatisfactory situation with reference to the writs of certiorari, quo warranto and mandamus. However, the term "prerogative writs" also include those two practically nonexistent and apparently never granted writs, in the State of New Jersey at least, of procedendo and prohibition. We may, perhaps, forget about those because they are practically extinct. However, there is not a law dictionary or an encyclopedia which does not define the term "prerogative writs" to include the five writs I have just mentioned, as well as the writ of habeas corpus. Now, by keep-

Previous Page in Book ********* Table of Contents *********** Next Page in Book