Concurring and Dissenting Opinion by
Judge Wilkinson :I must respectfully dissent from that part of the majority’s decision which holds that it takes 6 affirmative votes for the SEPTA Board to pass any resolution. I cannot agree that by the adoption of Section 18(a) of the MTAA, 66 P.S. §2018(a) the Legislature manifested a clear intention to change the well established common law rule that a majority of those voting, when a quorum is present, passes á resolution and constitutes the action of the body. As set forth in the majority opinion, the precise language of Section 18(a) used in other legislation in Pennsylvania consistently has been held not to change the common law rule. Indeed, this will be the first case to deviate from it. As examples, in 1961, a unanimous Pennsylvania Supreme Court held that the legislative language “majority of the electorate of the county shall have voted in favor” meant a majority of the electorate who voted on the proposition. Those members of the electorate who were “present” in that they were at the polls and voted on other matters, but not on this issue, i.e., abstained, were not counted to determine the majority of the electorate who voted in favor. Heuchert v. State Harness Racing Commission, 403 Pa. 440, 170 A.2d 332 (1961). Again, in 1940, a unanimous Pennsylvania Supreme Court held that the legislative language “by a majority vote of its qualified electors cast at any general election” means a majority of its qualified electors “present” in that they are at the polls and voting on this issue. Munce v. O’Hara, 340 Pa. 209, 16 A.2d 532 (1940). As early as 1878, the legislative language “majority of the members of such society or church” means a majority of those present *97at a properly called meeting. Craig v. First Presbyterian Church, 88 Pa. 42 (1878).
The majority attempts to justify reversing the able court below and diverting from this long line of Pennsylvania cases by deciding that the lower court failed to consider the nature of SEPTA as a relatively small legislatively created body as distinguished from a church congregation, public elections and municipal council cases and, therefore, the rule should not apply. I prefer the decision of a unanimous Supreme Court of the United States in Federal Trade Commission v. Flotill Products, Inc., 389 U.S. 179, 19 L.Ed. 2d 398, 88 S. Ct. 401 (1967). In that case the five members of the TEC heard argument. Thereafter, two members retired. A new member was appointed, but disqualified himself. A cease and desist order was entered by a vote of two to one. Mr. Justice Bkennan, speaking for a unanimous court, upheld the action on the basis of the common law rule:
“ [T]hat is, in the absence of a contrary statutory provision, a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body.” 389 U.S. 179, 183, 19 L.Ed. 2d 398, 402, 88 S. Ct. 401 (1967). (Citing many cases and law review articles).
It seems to me that all of the arguments of the majority apply with greater force to the FTC, having heard an argument, than to SEPTA, but were here rejected by the United States Supreme Court.
I do not believe that SEPTA, by adopting a bylaw that says “affirmative vote of a majority of all the members of the Board,” has added anything with regard to the problem of the meaning of the legislative language “affirmative vote of a majority of all the members. ’ ’ The issue and the matter to be made clear is whether the “members” or the “members of the Board” means those members or members of the *98Board that are present and voting. Manifestly, both the legislation and the by-laws are silent on this critical point, thus bringing the common law rule into play.
It is interesting to observe that the Legislature, in the same section when referring to the vote of the SEPTA Board necessary to overrule a “veto” says “votes of at least three-quarters of the membership of the Board.” Also, in setting forth the number of Board members necessary for the issuance of a certificate of incorporation, Section 4(b), 66 P.S. §2004 (b) provides for “a majority of the total number of board members appropriate to any metropolitan area.” We might also ask what was the legislative necessity for providing a quorum of six in order for the Board to act if at the same time it was provided that six votes were necessary to pass a resolution. Under such circumstances a provision for a quorum is surplusage whereas under the interpretation I would put on it the requirement of six for a quorum has meaning.
I agree with the majority of the court below that the abstentions are not counted in determining a majority as distinguished from counting them as negative votes. I think the Pennsylvania Supreme Court put that matter to rest in Meixell v. Hellertown Borough Council, 370 Pa. 420, 425, 88 A.2d 594, 596 (1952) quoted in the majority but requoted here for emphasis:
“ [I]f such a contention were to prevail [requiring a majority of all members], one or a relatively few persons could, by their intentional absence from, or by their presence at a meeting and their failure to vote, or their casting a blank or illegal ballot, block indefinitely an important election or important legislation and thus paralyze government with obviously great harm to the public interest. ’ ’
*99I am not impressed by tbe argument that tbe adoption of the view that abstentions are just that and are not counted could result in a situation that with a quorum of six, five could abstain and one vote pass a resolution. It can only do so if the five members will it so. If abstentions are votes for anything, it would seem to me that they are votes in favor of the majority of those voting whether affirmative or negative. As stated by Justice Patterson in Munce v. O’Hara, 340 Pa. 209, 210, 16 A.2d 532 (1940):
“No method having as yet been devised whereby to compel a complete vote by all the voters, the practical working of the elective system necessarily requires that those who abstain from voting be considered as acquiescing in the result declared by a majority of those who exercise the suffrage.”
I concur in that part of the decision of the majority set forth in the first paragraph of its Order.
President Judge Bowman joins in this concurring and dissenting opinion. ■