(dissenting). It is a paramount duty of a judicial tribunal to sustain the validity of a statute unless it is clearly irai contravention of the organic law of the state.
No state policy, expediency or emergency can. properly give vitality to an act, whether executive, legislative or judicial which is in violation, either expressly or impliedly, of the state constitution—the protoplasm of our state government.
When in construing a statute it is found necessary, in order to sustain its validity, to go to the extent of injecting into the constitution a sense or meaning not to be gathered from the express language of that charter of the- rights and liberties of the people, then such construction is not permissible for the reason that, in effect, it would be tantamount to an -amendlnlent of the constitution and, therefore, a plain usurpation of a power confided by the constitution, solely to the people of thle state.
Die conclusion reached by the Supreme Court and the views expressed in the prevailing opinion of this court on affirmance of the judgment of ouster given by the Supremo Court appear to me to rest upon am untenable construction of the various constitutional provisions relating to- the subject in hand. For in my judgment, as will hereinafter be- specifically pointed out, this court has undertaken to amend the constitution bjr sanctioning the validity of the erection of a-judicial tribunal composed of the govlernor not only despite the injunction of the constitution that the departments of the executive, legislative and judicial shall be kept distinct, and that no person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others, except as therein expressly provided; but also in spite of the fact *171that the constitution1 in express terms Iras created a. court of impeachments composed of the senate and house of assembly clothed with, judicial power to remove civil officers of the state found guilty of misdemeanor in office.
But before proceeding to discuss the constitutional questions which tine state of the pleadings gives rise to, it is important to turn here to a consideration of a question which underlies the Whole proceeding, and that is1 whether the case Was properly before the Supreme Court and is so hiere.
The information is filed by the attorney-general, representing the state, on behalf of the state. Tinder our form of government one cannot conceive of the sovereign power of the state minus a governor. The governor is the executive of the sovereign power. We have this situation here. The state brings am information, practically by its executive, in order to have determined! judicially the validity of his act as executive in removing the appellant. It is in reality a proceeding instituted by the governor against himself, since there is no one claiming the office of the appellant. The case of State v. Governor, 25 N. J. L. 331, was at the relation of a person claiming office seeking a mandamus. In the present case the executive removed the, appellant from office which was substantially a judgment of ouster. The governor does not need the aid of the court to carry into effect his judgment of removal. If the ousted official refused to yield to the order of removal and surrender the documents or books belonging to tire office, the governor had the power under the constitution to send sufficient force if it became necessary to oust the appellant and seize the books and documents. This is not a ease where a writ of assistance is required. The executive needs none to enforce his orders. The proceedings in this ease are in the nature of a writ of assistance in a Court of Chancery where the writ is used to obtain possession of premises which a refractory mortgagor whose property has been sold1 under a foreclosure refuses to yield possession.
The judgment of the Supreme Court was that the appellant he ousted from office. He had already been ousted by *172the governor, and, therefore, the judicial sanction of the court was unnecessary. It seems to me that the attempt to test* the validity of the legislative act empowering the governor to remove the utility commissioners for cause cannot be tested in this manner. Until the governor appoints the new commissioners and until they are confirmed by the senate and commissioned by the governor and have qualified for office, and demanded possession thereof, and prevented from exercising the same, there is no proper basis for an information in the nature of a quo warranto.
But assuming that the case is properly before us, it is clear to me at least, that the legislative act under which the governor removed the appellant is unconstitutional.
Section 2 of thle Public Utilities act of 1911 (Pamph. L., p. 374) which, after providing that the members of the board shall have a tram of six years, contains this clause: “The governor may remove any commissioner for neglect of duty or misconduct in office, giving to him a copy of the charges against Mm and an opportunity of beiug publicly heard in person or by counsel in his own defence upon not less than ten days’ notice.”
The appellant was charged with neglect of duty and misconduct in office. T'he charges preferred against him were in writing and were served upon him in accordance with the provision of the statute. He lilad a hearing on the charges before the governor, sitting in a judicial capacity as governor, was found guiltjr, .amid thereupon was removed by that executive from office.
The contention of appellant’s counsel is that the statute under which the appellant was removed confers judicial power on the executive department of the government, thereby encroaching upon article 3 of the constitution, which declares as follows: “'The powers of the government shall be divided into thiree distinct departments, the legislative, executive and judicial; and no person or persons belonging to or constituting one of these departments shall exercise cmy of the powers properly belonging to either of the others, except as herein expressly provided.”
*173The exception has an important signification in that it strongly emphasized the express limitation on tire three departments of government. It precludes the entertaining of any notion of the existence of any reserved power that maybe lawfully exercised by the legislature in dealing with these departments, unless some warrant can- be found therefor expressed in the constitution. The phrase “except as herein expressly provided” is unambiguous in its meaning and in the general sense in which it is used and, therefore, is not subject to any other construction or inference than the language itself imparts.
We search ini vain through! the constitution to find where any of the powers properly belonging to the judicial department have been conferred on the executive.
What we do find is that a judicial power which did not properly belong to the courts at common law but to a court of impeachments, is conferred on a court of impeachments, composed of the senate and house of' assembly in accordance with our form of government. It is classed by our constitution under the caption, “Judiciary,” article 6, section 7, placitum, 1, where its structure and judicial powers are defined. Ry article 5, placitum 11, of the constitution, the court of impeachments’ sole judicial function appears to be to impeach and try a governor, and all other civil officers under the state f'or misdemeanor during their continuance in office and for two years thereafter. Thus we have the significant declaration of the constitution itself that the court of impeachments is to be classed with the judicial department.
The inquiry which first presents itself is this: Is the power attempted to be conferred on the governor by the second section of the Public Utilities act, a judicial power, and if so, does the constitution make by terms, either express or implied, the conferring of such pow'er on the state’s executive an exception to the constitutional mandate of article 3?
That the power attempted to be conferred by section 2 of the Public Utilities act on the governor to try the accused official for neglect of duty or misconduct in office on preferred written charges served on the defendant in accordance with *174the provision of that section, and giving the accused a right to be heard in his defence in person on by conns,el, and” if found guilty subject to be removed' by the governor, is the exercise of a judicial power was not seriously questioned by the attorney-general and was practically admitted by him to be the exercise of judicial power amd therefore he placed himself squarely on the proposition, that the act of removal by the executive was an administrative one, which was properly within his province as executive, and hence the propriety of Ms order of removal could not properly be questioned. But this position appears to me to be clearly untenable. The power to remove is derived1 solety from section 2 of the statute referred to. and that power by the plain terms of that statute can only be exercised after charges preferred, a public hearing and a. conviction, all of which are the characteristic elements of a judicial proceeding. The removal is an incident to the conviction. It was the sentence of the statutory tribunal of which the governor was the judge. Without a conviction of guilt the defendant could not have been remloved.
There is nowhere to be found in the' constitution any term which expressly or impliedly confers any such power on the. governor as was exercised by him in the present case. A liberal reading of the constitutional enumeration of the powers conferred on the executive, does not hint at such a power as was exercised by him. Placitum 6 of article 5, which defines the powers which may be lawfully exercised by the governor, among other things, declares: “He shall be the commander in chief1 of all the military and naval forces of the state; he shall have power to convene the legislature or th!e senate alone, &c., &c., * * * he shall take care that the laiws be faithfully executed, and grant,” &c., * * *
It was 'suggested that the constitutional mlamdiate that the executive shall take care that the laws be faithfully executed, impliedly clothed Mm with certain judicial powers. The force of this suggestion has not -been made plain. The effect of this mandate was clearly to empower the governor to give effect to the laws, such as to protect the life, liberty *175and property of the citizens- of this state, with the force of the state if necessary, to suppress riots and lawlessness in case the courts or municipal authorities are unable to deal with the situation.
By no refinement of reasoning can even a plausible ground be found to support a theory that the constitutional clause referred to was intended to confer on the governor the exercise of judicial powers or the power to remove officers who are unfaithful to the trust reposed in th-cm. For if such a construction, as suggested, was permissible, it would follow that the governor could properly remove our judges, prosecutors of the pleas and other constitutional officers in the exercise of the constitutional duty to “take care that the laws be faithfully executed.”
In the opinion of the Supreme Court it is said: “Now in view of the fact that the constitution, vests the legislative power in the senate and general assembly, the 'executive power in the governor, and 'the judicial power in the courts, the question comes down to this-: Ts the power of removal in-question a judicial power in the sense that it properly belongs to the courts and is forbidden to- be conferred by the- legislature upon the governor? We think it is not.”
If the court of impeachments is a court, as the constitution declares it to be, and if that court belongs to the judicial department of t-hle government as the constitution says it does, how1 can it he fairly and accurately said that the ■judicial power exercised hv the governor in removing the appellant does not belong to the c-onrts; and if that power belongs to the courts, then how can it he justly said that the legislature is not forbidden to confer such judicial power on the executive ?
As to the nature an-d quality of the power conferred by the legislature on the executive, by the statute under discussion amid of the uncons-titutionálity of such a statute, I am content to rest upon the lucid and convincing reasoning of Chief Justice Beaslev in the Pritchard Case, 36 N. J. L. 113, 114.
*176It is clear to my mind that the framers of our constitution were careful to- guard against clothing the executive with power of removing civil officers of the state, realizing fully that efficiency in service to the state couldi not be properly maintained, if the term of office could he abridged at the whim or caprice of the executive who made the appointment or of his successor.
It has also been suggested that the appellant was not such an official of the state contemplated by the constitution who could only be properly removed by a court of impeachments. For light on the subject we must again tumi to the constitution. Article 7, section 2 of that instrument, under the caption “Civil Officers,” after enumerating the various state and county officials, including justices of the peace, prescribing their terms of office, &c., by placitum 9, declares as follows: “All other officers, whose appointments are not otherwise provided for by law, shall be -nominated by the governor, and appointed by Mint, with the advice and consent of the senate; and shall hold their offices for the term prescribed by law.”
It is conceded that the appellant is a state officer. He was nominated and appointed by a preceding governor, confirmed h}7 the senate and commissioned by the- governor. Although not an official whose title or style of office is mentioned in the constitution, nevertheless -hie comes within the constitutional designation of a civil officer of this state, by virtue of constitutional authority.
The only distinguishing features between the appellant’s office and one holding a state office mentioned in the constitution is that the latter’s term of office: is fixed by the constitution, and that the emoluments of the office cannot be diminished during the term and that the office cannot be abrogated by the legislature, whereas the former’s term of office is fixed by the legislature creating the office and the office may be abrogated. Otherwise the two state officials .stand on an equal plane as civil officers of this state holding under constitutional authority.
*177Article 5 of the constitution, plací turn 11, declares: “The governor find all other civil officers of this state shall be liable to impeachment for misdemeanor ini office during their continuance in office and for two years thereafter.” Can any one reasonably doubt for a moment that this constitutional declaration applies to the appellant holding the office of utility commissioner? He is a civil officer of the state, nominated and appointed hy the governor, confirmed by the senate and commissioned by the governor.
To maintain that the constitutional declaration applies only to officers expressly mentioned in the constitution and not to other civil officers, lias mo foundation in reason or good sense. A complete answer is that the constitution does not recognize any such distinction.
To attempt to draw any such distinction borders upon the absurd. Eor under our constitution a justice of the peace is a constitutional officer and cannot be removed from office except by a court, of impeachments. Does it conform with good sense because that official is mentioned in the constitution, and thus a constitutional officer with a, jurisdiction' only county wide, is entitled to a solemn' trial hy the court of impeachments while a public utility commissioner whose public duties extend throughout the state and concern the life and pioperty of the citizens of this state, is denied this light because the title of the office is not expressed in the constitution hut in a legislative act under the. authority of the constitution ?
It has been held that where a constitution provides a method of impeachment of officers, that method is exclusive and the power which the legislature might otherwise be regarded as possessing is taken away. 29 Cyc. 1414, and eases cited in the note; 22 Rul. Gas. L. 561, § 265.
It lias been further insisted upon that because file constitution provides for impeachment of ami official only in case he has committed a misdemeanor, criminal in character, and that, therefore, there is no method provided by the constitution for the trial and removal of an official who is guilty *178of neglect of duty or misconduct in office, and in consequence the legislature could properly provide a method.
The words "misdemeanor in office/'" as used in the constitution, nlust be given its general moaning and not a technical legal meaning. Tn the sense in which it is -used in ■the constitution, it includes neglect of duty or misconduct or misbehavior in office regardless of the fact whether or not such neglect of duty or misconduct or misbehavior amounts to an indictable offence.
The fact that the constitution declares that impeachment proceedings shall not be a bar to an indictment does not in my judgment tend to narrow the phrase "misdemeanor in office.” For if we were to give the technical legal meaning of tlae word “misdemeanor” it would exclude high misdemeanors which are distinct offences from misdemeanor. Such a construction would lead to absurd1 results too numerous to mention.
The framers of the constitution clearly intended through the court of impeachments to protect the public against incompetent, neglectful and dishonest officials. This could only be effectually accomplished by removal of the official found guilty and to disqualify him from holding office hereafter.
For the reasons given, I vote to reverse the judgment of the court below.
Judges White, Heppenheimer and Williams concur in the views expressed herein.