N.J. Constitutional Convention: Vol. 4, Page 733


Council and the drafters of the proposed 1944 Constitution. The archaic requirement for jury trial is possible of correction by amendment of the respective statutes to conform with the method of procedure now applicable to certiorari proceedings; supplemented by appropriate rules of court.

It is my suggestion that quo warranto, mandamus and certiorari be designated specifically instead of by usage of the general term "prerogative writs," and that the pertinent section simply provide legislative freedom to enact laws regulating the practice and procedure governing those writs, including authority to proscribe trial by jury in quo warranto and mandamus proceedings.

A quarter of a century's experience in prerogative writ practice impels the conclusion that many of the "difficulties" asserted to have been experienced by members of the Bar may be attributed to unwillingness to study the precedents and rules which control and regulate prerogative writ procedure.

The irrevocable extinguishment of the writs through constitutional mandate would constitute a retrogressive blunder. I respectfully suggest that the preferable solution is to commit the subject of quo warranto, mandamus and certiorari to the Legislature through general but concise language, authorizing it to enact laws regulating the subject matter, unrestrained by inherent prerogatives now residing in the Supreme Court.

Very sincerely yours,Charles E. McCraith, Jr., Member, Committee on Revision of the Judiciary Article, Essex County Bar Association.

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