Roddey v. County Council of County of Allegheny

DISSENTING OPINION BY

Judge COHN.

Respectfully, I dissent.1

I agree completely with the dissenting opinion of my colleague, Judge Simpson. I write separately to advance yet another argument supporting reversal. I believe that Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976 (1901), is applicable, rather than distinguishable, in the present case. Both Barnett and the ease sub judice involve examination of the executive function (in Barnett the Governor, here the County Executive), both executives are given the right to approve the budget and both are afforded a line item veto. In neither the constitutional provision applicable to the *1097Governor nor the home rule charter at issue here does the language explicitly state that this line item veto includes a reduction veto power. Yet, the Supreme Court of Pennsylvania held that one existed in Barnett. I perceive no convincing basis for declining to apply that holding in this case.2,3

The majority, in declining to apply Barnett, notes that the charter, itself, says only that the County Executive “may veto any item” and reasons that the Allegheny County Administrative Code cannot enhance this power. I agree with the principle stated, but not with how it is applied here, for the simple reason that I do not think that this case concerns an enhancement of power. Instead, I believe that the greater power, i.e., a full veto, includes the lesser power, a reduction veto. The concept of the greater encompassing the lesser is well known in the law and examples abound. See, e.g., Civil Service Commission v. Eckles, 376 Pa. 421, 103 A.2d 761 (1954) (power to dismiss includes power to demote); Kaufman v. Pittsburg & C.S.R. Company, 217 Pa. 599, 66 A. 1108 (1907) (power to purchase includes power to lease); Huber v. Crosland, 140 Pa. 575, 21 A. 404 (1891) (power to sell property includes power to mortgage it).

Moreover, I strongly disagree with the majority’s reasoning that the opposite is also true, i.e., that a lesser power encompasses a greater one, a notion it appears to embrace when it states that to rule as the County Executive requests would mean that he could increase line item amounts beyond those presented to him by County Council. Stated another way, the majority appears fearful that by authorizing the reduction veto, it would, a fortiorari, be placing its imprimatur on an “enlargement” veto. However, the lesser does not include the greater, and this has never been the law.

As the majority recognizes, a reduction veto is an “efficient tool” for the two branches of government to reach some mutual accommodation. I agree and, furthermore, find nothing in the charter or in the principles of legal construction that would lead me to conclude that such power is not within the authority of the County Executive. Accordingly, I would reverse the trial court’s order.

Judge SIMPSON joins.

. Although the majority states that Roddey has appealed two orders, a denial of reconsideration is not appealable. Estate of Merrick, 432 Pa. 450, 247 A.2d 786 (1968). Therefore, that order is not before us for review.

. Additionally, the majority concedes that the Pennsylvania Constitution does appear to vest with municipal authorities the power to adopt home rule charters that grant chief executives a reduction veto.

. The majority also distinguishes Barnett by quoting language in the opinion which observed that the General Assembly had “acquiesced” in interpreting the constitutional provision to allow the reduction veto, because it had not challenged the exercise of that veto. It then goes on, however, to acknowledge that "such reasoning may not hold ground today,” recognizing that the charter at issue in this case has been in existence for only a few years.