N.J. Constitutional Convention: Vol. 4, Page 732
Charles E. McCraith, Jr. Counsellor at Law Kinney Building 790 Broad Street Newark 2, N. J. Telephone MArket 2-5198
June 30, 1947.
My dear Delegate:
As a member of the Essex County Bar Association Committee On Revision of the Judiciary Article, I disagree with the proposal that prerogative writs be abolished and that "a civil action" be substituted in place of quo warranto, mandamus and certiorari.
Every lawyer who is conversant with prerogative writ practice appreciates that each of the writs serves its own peculiar, essential and beneficial function.
Reported criticism by the Bar of certain features of the practice under the writs is not attributable to any deficiencies inherent in the writs; more properly, it is the ultimate result of statutory phraseology, judicial construction thereof and constitutional restriction against legislative improvement which might encroach upon the prerogatives of the Supreme Court.
The remedies of quo warranto, mandamus and certiorari serve entirely distinct functions and, in my opinion, a statutory substitute intended to provide a single form of procedure in their place, would be functionally unworkable. I seriously question, for example, whether any "civil action" would provide the salutary and immediate relief now obtainable through a peremptory writ of mandamus.
The complaints directed against dismissal of certiorari proceedings in instances where the courts have held the post in question to possess the attributes of an "office" in contrast to those of a "position," are more properly ascribable to the language of the quo warranto statute.
I subscribe to the opinion that certiorari, in most instances, should issue as a matter of right; however, that result might readily be obtained if the constitution were to obliterate the existing impediment against legislative interference with the prerogatives of the Supreme Court.
I further subscribe to the majority opinion that issues of fact in quo warranto and mandamus proceedings should be determined by the court without a jury. Modernization in that particular has been recognized as desirable by the State Bar Association, the Judicial
Previous Page in Book ********* Table of Contents *********** Next Page in Book