Concurring Opinion by
Mr. Justice Jones:In resolving the controversy raised upon this appeal, it is my position that, in the present state of the law, the jurisdiction and competency of a court of law to pass upon the qualification of a person to seek nomination and election and, if elected, to be seated as a member of the City Council of Philadelphia depends upon when (i.e., whether in the pre or post-election period) and how (i.e., attacks on the regularity of the nomination petitions, validity of the election, etc.) the issue of qualification is raised.
If the qualification of a person to be a candidate for the office of City Council of Philadelphia is challenged upon the ground that such person is not qualified, by reason of lack of citizenship, residence in the City, or age, then a court of common pleas has jurisdiction to entertain such controversy, provided, of course, that the court’s jurisdiction is invoked within the statutorily mandated period of time. The court of common pleas has such jurisdiction solely because the General Assembly of the Commonwealth, by statute, has seen fit to invest the court with this jurisdiction. (See: Pennsylvania Election Code of 1937, §977 (Act of June 3, 1937, P. L. 1333, §977, as amended, 25 P.S. §2937)) and the statutory remedy so provided is exclusive: Lurie v. Republican Alliance, 412 Pa. 61, 63, 192 A. 2d 367 (1963).
*521As a matter of fact, an attack was made upon the qualification of Mr. Kelly, allegedly a nonresident of the City of Philadelphia,1 to seek the office of a city councilman of Philadelphia. The Court of Common Pleas of Philadelphia County dismissed that action because the attack had not been timely made under the provisions of the statute and we quashed an appeal from the order of that court. (See: Jaspan v. Osser, S. Ct. Eastern District, No. 393 January Term, 1967; also concurring opinion of Mr. Justice Roberts, Chalfin v. Specter, 426 Pa. 464, 233 A. 2d 562 (1967)). Had this attack upon Mr. Kelly’s qualification as a candidate for city council been timely made, the court of common pleas would have had the statutorily granted jurisdiction to pass upon the issue and Mr. Kelly’s qualification, or lack thereof, could have been established prior to the time of his nomination and election.
The present challenge to Mr. Kelly’s qualification arose after the election had been held and after Mr. Kelly had been elected as a city councilman. In my view, the only tribunal which has the authority under such circumstances to determine the qualification of Mr. Kelly to take his seat as a member of the City Council and to pass upon his residence qualification is the City Council of the City of Philadelphia.
The Home Rule Charter of the City of Philadelphia vests the exclusive competency to determine Mr. Kelly’s qualification in the legislative body of the City. Section 2-103 of the Charter requires, inter alia, that a' “Councilman . . . shall have been a resident of the City for at least one year prior to his election” and further states: “The Council shall be the sole judge of the qualifications of its members.” (Emphasis added)
*522The language of the Charter is clear and unequivocal and exclusively makes the City Council the tribunal to determine a prospective member’s qualifications.
This Charter declaration is not novel.2 The vesting of authority to pass upon the qualifications of prospective legislators in the legislative body is deemed an essential concomitant of our tripartite form of ¡government affording to the legislative branch an independence requisite to its successful functioning.
Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339 (1966), upon which a minority of this Court rely, while it does create an exception to the generally accepted rule, furnishes no justification for our assumption of jurisdiction to pass upon Mr. Kelly’s qualification. Bond dealt with the action of a state legislature which disqualified a prospective member of that legislative body because of certain statements made by such respective member which the legislative body considered treasonable in nature. The United States Supreme Court, deciding that, under the Constitution of the United States, the statements allegedly made by the prospective legislator fell within the ambit of the constitutionally protected right of free speech, held that the judiciary may assume jurisdiction of a controversy involving the qualifications of a person to be a member of the legislative body if the effect of a disqualification on the grounds stated would constitute an infringement of a constitutionally protected right. In our case, there is neither an allegation nor a showing of any infringement or threatened infringement of a constitutionally protected right; the ruling in Bond is clearly inapposite.
In taking the position that this Court lacks jurisdiction to pass upon the qualifications of the elected *523Mr. Kelly, I believe such position is supported not only by the clear language of the Charter, but also by our case law. Auchenbach v. Seibert, 120 Pa. 159, 13 A. 558 (1888) controls the disposition of this controversy. The teaching of Auchenbach is that, other than in contested election cases,3 courts do not have jurisdiction to pass upon the qualifications of an elected person to serve as a member of a legislative body.
Some members of this Court who believe that this Court does have jurisdiction to pass upon Mr. Kelly’s qualification rely upon Commonwealth v. Allen, 70 Pa. 465 (1872), Commonwealth ex rel. v. Bennett, 233 Pa. 286, 82 A. 249 (1912) and Lesker Case, 377 Pa. 411, 105 A. 2d 376 (1954). My study of these decisions convinces me that these decisions are inapplicable to the instant situation. The position of the majority, in which I join, does not diminish the effect of these decisions. Allen and Bennett involved questions of forfeiture of, not qualification for, public office and to suggest that Allen and Bennett are apposite to the case at bar, I respectfully submit, is to confuse forfeiture of with qualification for public office. Lesher involved a determination of the right of a person, allegedly lacking residential qualifications, to be a candidate for the legislature, the proceeding was under the Election Code, supra, and the court clearly had jurisdiction to pass upon the validity of Lesker’s nomination petition. Absent any allegation or showing of a violation of a constitutionally protected right (Bond) and of any contest as to the regularity or validity of Mr. Kelly’s election, the instant controversy is nonjusticiable (Powell v. McCormack, 266 F. Supp. 354, 35 L.W. *5242594, 4/7/67) and is a controversy for tlie determination of which this Court lacks jurisdiction.
The Charter of the City of Philadelphia declares that only the City Council has the right to pass upon the qualifications of a person duly elected to be admitted to the membership of City Council. Neither at common law, under our case law nor under any statutory authority has our Court any jurisdiction or competency to pass upon and determine the qualifications of one who has been elected to membership in the legislative body of the City of Philadelphia. I, therefore, join in the result reached by the majority of this Court and I would affirm the order of the court below.
In the posture of the instant appeal, we must assume from the pleadings that Mr. Kelly is not a resident of the City.
Of.: Constitution of Pennsylvania, Art. 2, §9.
Art. 8, §17, which vests the judiciary with power to hear and decide contested election cases, does not take away the authority of the legislature to judge the qualifications of its members under Article 2, §9. See: In re Contested Election of McNeill, 111 Pa. 235, 2 A. 341 (1885).