dissenting
My colleagues conclude that the Governor was not compelled by law to direct the payment of any compensation at all to the counties. It is true that under N.J.S.A. App. A:9-33, the Governor is given emergency power to utilize all resources of political subdivisions of the State, and that no provision is thereunder made for compensation. Inasmuch as the Governor’s continuously renewed executive orders direct that the Commissioner of Corrections develop “an appropriate compensation program for the counties,” the question of whether any compensation at all is required need not here be finally resolved. How*242ever, in the event that in his periodic resort to the use of an executive order, the Governor should be inclined to dispense with the necessity for the State to reimburse the counties at all, some comment on the need for compensation seems warranted. I am of the opinion that in view of what may now be given the anomalous label of a “permanent emergency,” it would be manifestly unfair and arbitrary to foist upon the counties the entire cost of the maintenance of prisoners who normally should be the responsibility of the State.1
Turning now to the interpretation of “.. . an appropriate compensation program” in the executive orders, it should be noted that on January 27, 1988, appellant wrote a letter to respondent stating that a study conducted by the county indicated that the cost to the county per prisoner was $60 per day. Appellant, therefore, advised respondent by the letter that it would submit invoices based on that rate. Respondent’s answer was that “... based on the funds that are available to the Department, we are unable to pay more than $42.95 per day.” He added that “[t]his is a figure we have committed to pay all counties.” Respondent did not in any way contest the accuracy of appellant’s per diem computations. It should also be noted that when at the time of oral argument, respondent’s attorney was asked what the situation would be if the department had funds which permitted only a payment of $10 per day, counsel replied that $10 would then be appropriate. To interpret “appropriate compensation” in such a way is to be high-handed and arbitrary. Fairness demands that compensation which reimburses the county for its actual costs should be considered appropriate. It is adding insult to injury for the State to saddle its duties upon the counties and then to demand that the *243counties pay for the privilege of discharging such duties. Furthermore, any standard other than reimbursement of costs would serve to remove from the Legislature the stimulus “... to act expeditiously to address a problem within its proper sphere even though that might involve thorny political considerations.” Worthington v. Fauver, 88 N.J. at 203.
I would reverse and remand to the Commissioner of the Department of Corrections with instructions to reimburse the County of Essex for those reasonable costs actually incurred in order to maintain prisoners kept in the county jail by reason of the executive orders.
The dissent in Worthington v. Fauver, 180 N.J.Super. 368 (App.Div.1981), which was rejected by the Supreme Court, 88 N.J. 183 (1982), referred to the “... distinct possibility that, after testing the judicial waters and obtaining our imprimatur on the constitutionality of his action, the Governor may decide to extend or later renew his executive order for another 90-day term and then for another and another, indefinitely.”