N.J. Constitutional Convention: Vol. 4, Page 728
made. Our writ of prohibition, although rarely used in present practice, is not used for the purpose of a review of a determination already reached.
The above are but illustrations of uses of some of the prerogative writs for purposes other than review of a decision.
Furthermore, the discretion now vested in the court with respect to granting a prerogative writ serves a very useful purpose. I have never known of a case where such discretion has been abused.
It seems to me to be obvious that the prerogative writs should not be abolished. The chief difficulty with the practice under the prerogative writs is that occasionally the wrong writ is applied for and granted and, because of this mistake, the action fails although the litigant would have been entitled to relief if the proper writ had been applied for and allowed.
It is not necessary to abolish the prerogative writs to remedy this difficulty. Provision might be made for adequate relief in litigation under the prerogative writs if it appears that the litigant would be entitled to such relief if the correct writ had been allowed.
2. Paragraph 1 of the Schedule provides that appointments shall be made by the Governor "immediately after the adoption of this constitution." The Judicial Article, however, does not take effect until January 1, 1949. Paragraph 13 of the Schedule provides that the Governor shall have the power to fill vacancies arising prior to January 1, 1949 in the Supreme Court and the General Court. It is my understanding that the Supreme Court and the General Court which the Article proposes to establish will not exist until January 1, 1949 and it seems to me that vacancies can not occur therein prior to that time.
3. The Article seems not to definitely provide for appeals from the county courts to the General Court except as such appeals may be provided by legislation or by Section IV of Article IV. This would probably not be a serious omission if adequate legislation were adopted prior to the taking effect of the Article.
4. The provision for a court of last resort consisting of seven judges, none of whom have any other official duties, seems to me to be a good provision.
I am sending this letter after reading the text of the Article which was not received until this afternoon, in the hope that it may be of some help to the Committee in the performance of its important and difficult duties.
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