On appeal from the Superior Court, Law Division, Mercer County.
For affirmance -- Justices Heher, Wachenfeld, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justices Oliphant and Burling. The opinion of the court was delivered by Wachenfeld, J. Burling, J. (dissenting). Mr. Chief Justice Vanderbilt and Mr. Justice Oliphant join in this dissent.
The primary inquiry here is whether or not the power conferred upon the Governor by Art. V, Sec. IV, par. 5, of the Constitution of the State of New Jersey, to remove state officers and employees from their positions, includes the power to suspend them pending a hearing. We think it does.
Judgment was entered in the Superior Court, Law Division, 31 N.J. Super. 558 (1954), dismissing a civil action in lieu of prerogative writ brought by the plaintiff, Louis J. Russo, against Harry A. Walsh, Chief Examiner and Secretary of the State Civil Service Commission of New Jersey, and William F. Kelly, Jr., President of the Civil Service Commission.
Russo, a disabled war veteran, had for some time been employed as Assistant Chief Examiner in the New Jersey State Department of Civil Service with permanent civil service status in the classified service. From March 7, 1951 until April 18, 1954 he was the Chief Examiner and Secretary of the Civil Service Commission. Thereafter he returned to his permanent position of Assistant Chief Examiner.
By Executive Order No. 5, dated June 18, 1954, the Governor of the State of New Jersey, purporting to act under the powers granted him in Art. V, Sec. IV, par. 5, of the Constitution, suspended plaintiff from his position of Assistant
Chief Examiner pending a hearing on charges filed against him of malfeasance and misfeasance in office during the period of his employment as Chief Examiner and Secretary.
The offense charged against him was that from July 1, 1948 to June 30, 1953, while employed as Assistant Chief Examiner and later, as Chief Examiner and Secretary of the Civil Service Commission, he submitted invoices to the Division of Employment Security in the Department of Labor and Industry for payment for alleged overtime services in the amount of $1,000 per year, in violation of N.J.S.A. 11:2-2, which prohibits the Chief Examiner and the Secretary of the Commission from holding any "other public office or employment."
Russo was duly served with a copy of the executive order on June 19, 1954, and on Monday, June 21, 1954, he presented himself to his superiors, asserting he was ready, willing and able to continue in the performance of his regular duties, but he was not permitted to resume his employment.
Thereafter, on June 29, 1954, he filed a complaint in lieu of prerogative writ in the Law Division, attacking the authority and jurisdiction of the Governor to suspend him from his position pending notice and hearing of charges preferred against him. He sought judgment against the defendants directing them to reinstate him in his position and to include him on the payroll submitted by them so he could receive his regular salary.
The answer filed by the defendants denied the invalidity of Executive Order No. 5, contending it was issued pursuant to and as an integral part of the removal proceedings instituted against the plaintiff by the Governor under Art. V, Sec. IV, par. 5, of the New Jersey Constitution. The answer further alleged the court had no jurisdiction, the complaint did not state a cause of action, and the plaintiff had failed to exhaust the remedies available to him.
The matter came on for hearing on an agreed statement of facts, the trial court dismissing the complaint and holding the power to remove granted by the Constitution of 1947
under Art. V, Sec. IV, par. 5, includes the power to suspend and that the power to remove was not confined to a charge arising out of conduct committed while holding the position from which suspension was made.
From the judgment so entered, Russo appealed to the Appellate Division, and we granted certification on our own motion prior to argument.
At the outset, we are confronted with challenges to the jurisdiction of the Law Division and of this court, both procedural and substantive, to review the cause at its present stage. Procedurally, it is urged the appellant has invoked the wrong remedy; it is said he should have sought relief initially in the Appellate Division under R.R. 4:88-8 by appeal from a "final decision or action of any state administrative agency," being the remedy specified by N.J.S.A. 52:14-17.2, dealing with review of removal orders promulgated by the Governor.
Substantively, defendants contend that under the constitutionally decreed separation of powers of the coordinate branches of government, see Art. III, par. 1, the judicial branch cannot, in this indirect manner, review an executive order of the Governor, even though Art. V, Sec. IV, par. 5, specifically provides for judicial review, on the law and the facts, of the manner in which the Governor has exercised his removal power in a specific case.
However, in view of the importance of the constitutional question presented and the manner of its disposition, we find it unnecessary to pass upon the subsidiary questions presented but pass directly to the merits of the cause.
Art. V, sec. IV, par. 5, provides as follows:
"The Governor may cause an investigation to be made of the conduct in office of any officer or employee who receives his compensation from the State of New Jersey, except a member, officer or employee of the Legislature or an officer elected by the Senate and General Assembly in joint meeting, or a judicial officer. He may require such officers or employees to submit to him a written statement or statements, under oath, of such information as he may call for relating to the conduct of their respective offices or employments. After notice, the service of charges and an opportunity to be heard at public hearing the Governor may remove any such officer or
employee for cause. Such officer or employee shall have the right of judicial review, on both the law and the facts, in such manner as shall be provided by law."
The delegates to the 1947 Convention, adhering closely to our traditional concept of the separation of powers among the three departments of government, legislative, executive and judicial, stressed the thought that the primary responsibility for the conduct of the executive and administrative branches of the government resided in the Governor, and accordingly, for the first time, conferred upon the chief executive the power to meet and discharge the recognized responsibility by investigating the conduct of state employees and granting him the right to remove for cause shown.
The dual power of investigation and removal was but one facet of the sweeping revision of the powers and functions of the executive branch of the State Government which was thought to be ...