(dissenting). The judgment formulated by my brethren proceeds on the hypothesis that, while the appellant Russo’s “taking of payments for work performed for the Division of Employment Security either as overtime or as duties performed separate and apart from his official position brought him within the prohibition of either one or the other” of the cited statutes, R. S. 11:2-1; R. S. 11:2-2, and was “Very clearly * * * illegal,” and “Good faith cannot right this wrong and save him from the legal consequences of a violation of the law any more than it would save any one of us from an adverse verdict were we to commit a trespass in going upon another’s land believing in good faith that we had a right to do so,” and the “extra payments received while Russo was Chief Examiner and Secretary must therefore be returned by him,” yet the order of removal is remanded “for further proceedings in accordance with” the opinion. This, on the assumption that the Governor “could not have believed that there was an absolute lack of good faith here as to demand” removal from office, indicated, it is said, by his expressed desire to preserve Russo’s pension rights, if possible, “apparently” restrained by the seeming belief, founded in a “literal interpretation” of the constitutional grant of power and the implementing statute, N. J. S. A. 52:14-17.2, that “cause for discipline” having been established, the “removal of Russo was the only course open to him.”
But the opinion also declares the Court is “convinced that although Russo was wrong as a matter of law in taking extra payments, while Chief Examiner and Secretary, there are many facts that tended to disprove the charge of bad faith and fraudulent or corrupt behavior,” and then holds that in the Governor’s refusal of inspection of the “records of other departments to ascertain the exact facts as to similar overtime payments in these other departments to prepare himself for the Governor’s cross-examination,” Russo was denied the “discovery” to which he was “clearly entitled,” such “as would be available in an ordinary civil trial to prepare himself for cross-examination,” and “To the extent *178that the Governor based his conclusions with respect to the charges of bad faith on Russo’s refusal to take the stand in the circumstances of a trial, which was inevitably highly publicized, we cannot but conclude that he was indeed prejudiced by the refusal of the Governor to grant him appropriate inspections in subpoenas duces tecum,” and “As the proofs now stand,” “they are patently incomplete on the issue of good faith and in these circumstances we are not in a position to adjudicate the issue until such proof is supplied,” yet nothing thus said “in anywise derogates from the soundness of the Governor’s conclusion as to the illegality of the acceptance by Russo of the payments made to him while Chief Examiner and Secretary being a basis for discipline as well as his obligation to repay the funds in dispute to the State.”
But the issue is in essence one of constitutional power. Did the Governor exceed his constitutional prerogative to “remove” the officer “for cause”? If there was “cause” for the removal, there is no ground for judicial interference. The Governor concluded, in clear and explicit terms, that Russo, “well aware of the statutory ban and the fact that the payments he sought were without precedent, deliberately ‘jockeyed’ others into approval of those payments,” and “His failure to testify buttresses the only inference which the given testimony will permit.” There can be no question, none whatever, of the soundness of this determination of the ultimate issuable fact. Indeed, the majority finds that the taking of the payments was “Very clearly illegal,” and “Good faith canuot right this wrong and save” Russo “from the legal consequences of a violation of the law * * yet it is said, as I read the opinion and the judgment, that “good faith” is the determinant of the right to remove, but the “illegal payments” constitute “ground for discipline without proof of a guilty mind.”
I cannot accept this constitutional interpretation.
“Cause” for removal within the intendment of the constitutional grant to the Governor, Article V, Section IV, paragraph 5, does not mean fraud or bad faith to the *179exclusion of all else; it signifies “just” cause, encompassing also incapacity, unfitness, neglect of duty, and official incompetence and irresponsibility justifying removal in the essential public interest, or some lesser measure of discipline which, in the view of the Governor, would be suitable in the particular circumstances. And, unless the action taken be so disproportionate to the nature of the transgression or misbehavior as to be plainly arbitrary and capricious, and thus an abuse of power, the judgment of the Governor as to discipline is not subject to judicial superintendence. There must be just cause for discipline as an element of the constitutional power to remove; but where there is such cause the measure of discipline, including removal from office in the public interest, is the province of the Governor alone.
The “judicial review” on the “law and the facts” secured by the Constitution does not comprehend the substitution of the judicial judgment as to the nature of the discipline to be visited upon the offending officer for the discretion and judgment of the Governor, there being just cause for the course taken. The one is the judicial province; the other is the exclusive function of the executive, barring arbitrary action constituting a perversion of the constitutional power. These considerations would seem to be basic 'to the constitutional scheme, just as the judicial review of convictions in criminal or gwasi-criminal proceedings would not include the substitution of different punitive and penal measures than those ordained by the Legislature. There is a delicate balance to be maintained between these coordinate branches of the State Government, an imperative judicial duty if the Constitution is to remain the fundamental law of the State. The Constitution vests the power of removal in the Governor, not in the judiciary.
Here, there was a knowing and intentional violation, for personal gain, of the law establishing appellant’s salary as a “line” officer, by a maneuver designed to accomplish indirectly what he knew could not'be had directly, and thus an abdication of official responsibility. Of this there can be no doubt. And is not this palpable evasion conclusive *180of a “guilty mind”? My brethren say, and I concur, that “Russo above all other state officers or employees should have complied with the law”; he was the “chief administrator of the work of the Civil Service Commission and was obliged to enforce these regulations according to their letter and spirit as to all state employees”; and he was “expressly required by N. J. S. A. 11:6-2(e) to ‘regulate * * * hours of work, attendance and payments of overtime in accordance with the provisions of the rules and regulations established under this subtitle.’ ” And it is to be added that he arranged for the payment of the additional compensation by a division of government under his supervision in the administration of civil service, and thus revealed a significant insensitivity to the responsibilities of his own high civil service office, an obligation of singleness of purpose always and the avoidance of incompatible relationships and interests plainly at variance with basic public policy obvious to all, a standard of official conduct and action that he was obliged to exemplify and in substantial measure to enforce in other civil servants. As noted in the opinion, the additional compensation was certified for payment by the Director of the Unemployment Compensation Commission, and later by the Division of Employment Security, a department under civil service supervision.
In a note citing cases in 24 Ann. Cas. 147, it is said: “It is generally held that exacting illegal fees or compensation is misconduct for which a public officer may be removed from office.” And in People ex rel. Johnson v. Coffey, 237 Mich. 591, 213 N. W. 460, 52 A. L. R. 1 (Sup. Ct. 1927), this is affirmed: “The courts, too, frown on the taking of moneys from the public treasury unlawfully, in the guise of salary, fees or compensation, and deal more severely with such official misconduct than with many other acts of official misbehavior, different in kind.” There, the Michigan Supreme Court sustained the Governor’s removal of the state superintendent of public instruction for a similar dereliction. See also Evans v. Inhabitants of City of Trenton, 24 N. J. L. 764 (E. & A. 1853).
*181And nonfeasance may be a good ground for removal or suspension. The grant of an office at common law was upon the implied condition that the incumbent would “faithfully execute it,” and for neglect of this duty the grantor could discharge him. People ex rel. Bishop v. Kingston & M. Turnpike Road Co., 23 Wend. (N. Y.) 193 (Sup. Ct. Jud. 1840). “Por cause” means for reasons which are plainly sufficient under the law and sound public policy, such as give fair ground for removal and are not frivolous. See Haight v. Love, 39 N. J. L. 14, 22 (Sup. Ct. 1876); Mayor and Council of City of Hoboken v. Gear, 27 N. J. L. 265 (Sup. Ct. 1859); Throop, Public Officers (1892), section 366.
The Governor found that Russo acted in conscious disregard of his statutory right, “in bad faith and without the circumspection which the public interest demands of persons in public office”; and the proofs sustain the finding. In this context, further inquiry as to “good faith” has no place. As said, there was a knowing, intentional violation of the law; and this was cause enough for removal, if the Governor deemed that course to be for the public good. Russo did not take the witness stand to reveal the subjective motivations for his .action; and he must abide the adverse inferences reasonably deducible from his omission so to do. And in this course, he is not excused by the failure of “discovery.” Other violations of the law could not excuse his own; at all events, he could only rely upon violations within his own knowledge at the time of his own action, and he did not need discovery to make these known. Moreover, it was shown that no such payments had ever been made to a predecessor in his office. There was no precedent for such action. Dr. William S. Carpenter made it known during the course of his administration as president of the Civil Service Commission that the Chief Examiner and Secretary, as a “line” officer, could not have payment for “overtime service.” Governor Meyner’s action in this regard is unassailable.
I concur in the holding that discipline short of removal is within the Governor’s constitutional province. But I *182would suggest that this affords no ground for remanding the proceeding to the Governor for further action in the light of this interpretation. If the Governor is minded to modify the judgment of removal, he may do so even though there be an affirmance. I do not read the Governor’s remarks as indicating that he would have been less severe in the course taken had he been aware of the power so to do, or that he was in doubt as to the range of his discretion. He said merely that he was “concerned with the loss of pension rights which he (Russo) accumulated over many years,” and he understood that “an additional brief period of service would entitle Russo to certain benefits payable at age 60,” and he would “consider a memorandum from Russo” as to whether he could “lawfully take any appropriate step to preserve his pension benefits, upon condition, however, that there be repaid to the State all overtime compensation received as Chief Examiner and Secretary.” The proposal was not accepted, nor was the compensation returned.
I would affirm the judgment as rendered.