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In re Application of John Borg

New Jersey Supreme Court


Decided: January 3, 1944.

IN THE MATTER OF THE APPLICATION OF JOHN BORG ET AL., FOR A WRIT OF CERTIORARI TO REVIEW THE STATEMENT, DETERMINATION AND CERTIFICATE OF THE BOARD OF STATE CANVASSERS WITH RESPECT TO THE PUBLIC QUESTION SUBMITTED FOR ADOPTION OR REJECTION AT THE GENERAL ELECTION HELD IN THE STATE OF NEW JERSEY ON NOVEMBER 2, 1943, AND ALL PROCEEDINGS THEREON

For the prosecutor, William W. Evans.

For the defendants, Arthur T. Vanderbilt, Russell E. Watson and Ralph W. Wescott, Special Assistant Attorney-Generals.

Walter J. Bilder, as amicus curice.

Before Justice Porter.

Porter

[131 NJL Page 104]

The opinion of the court was delivered by

PORTER, J. I have reached a conclusion from a study of the briefs which has not been altered by oral argument. I deem it important that prompt action be taken on this application, so I shall not attempt to pass upon all of the questions argued, nor indeed is it necessary to do so.

Suffice it to say that this application is for a writ of certiorari to review the "statement, determination and certificate" made by the Board of State Canvassers concerning the question submitted to the people under the act of 1943 at the 1943 election whether the wishes of the people were that the next legislature should submit for approval of the people at the 1944 election a revised constitution. The application is based upon the proposition that the questions sought

[131 NJL Page 105]

to be reviewed are judicial and not political. They rely mainly on Bott v. State, 63 N.J.L. 289. In that case a writ was allowed to review the question whether an amendment to the constitution had been adopted, and it was held to be a judicial question. It does not seem to me that case is in point and that a judicial question is presented on this application. This application is not to test an amended or revised constitution nor the constitutionality of the enabling act, although that question was argued. The question sought to be reviewed in reality is the action of the people in directing that a revised constitution be written and submitted for their approval. That, I think, is a political question. The only question for me to pass upon at this time is whether a debatable judicial question or a question of fact has been raised on this application to review which a writ of certiorari should issue.

I conclude that no such question has been raised. The application is denied, but without costs.

19440103


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