Concurring and Dissenting Opinion by
Mr. Justice Roberts :I continue to adhere to the position taken in my concurring opinion in Chalfin v. Specter, 426 Pa. 464, 477, 233 A. 2d 562, 568 (1967), joined in by Mr. Justice Jones and Mr. Justice O’Brien, that §977 of the 1937 Pennsylvania Election Code, Act of June 3, 1937, P. L. 1333, §977, as amended, 25 P.S. §2937, provides the sole and exclusive remedy for challenging a person’s right to run for political office in Pennsylvania. Under that statute, the last day for objecting to John B. Kelly’s candidacy on grounds of residence was March 14, 1967.1 Thus, plaintiff Harrington, just as plaintiff Jaspan before him,2 comes to court too late.
*526Nor does it matter that the present action is brought to block Kelly’s actual seating in City Council, rather than to block the appearance of his name on the ballot. The fact remains that the alleged defect underlying Kelly’s election to council is the same exact defect which, if timely demonstrated, would have vitiated his right to appear on the primary ballot, or the November general election ballot. Surely the dictates of §977 —that all nomination papers shall be deemed valid if not objected to within the specified time period—would be reduced to naught if the same defect not objected to within the specified time period before the primary could be subsequently used against a man after his election.
Realizing, however, that this Court apparently retreated from the unanimous position taken in Jaspan v. Osser, S. Ct. Pa., East. Dist. Jan. Term, 1967 No. 393, when in Chalfin v. Specter, 426 Pa. 464, 233 A. 2d 562 (1967) a majority of my Brethren chose to face Arlen Specter’s candidacy qualifications on their merits despite the fact that the §977 date had long since passed, I am not surprised that in the present case the majority has again chosen, erroneously in my view, to reach the merits of Kelly’s qualifications for office. Thus do I feel compelled to note my disagreement with the manner in which these merits have been “resolved.” By holding, as the majority has done, that only City Council can rule on the right of John B. Kelly to hold office, in spite of the fact that he has utterly disregarded the crystal clear residence requirements set forth in the Philadelphia Home Rule Charter, far from preserving this charter as Philadelphia’s “Magna Char-ta,” today’s decision reduces it to meaningless words alone.
The majority relies primarily upon Auchenbach v. Seibert, 120 Pa. 159, 13 Atl. 558 (1888), for its conclusion that this Court has no jurisdiction to pass up*527on Kelly’s qualifications for office. Admittedly, on facts materially identical to the present case, this Court in Auchenbach did refuse to pass upon the qualifications of a recently elected councilman of the City of Reading. However, Auchenbach must be read as an expression of the rule approved sixteen years before in Commonwealth v. Allen, 70 Pa. 465 (1872), a rule with whose logic I have considerable difficulty, and would thus urge this Court to re-examine.
In Allen, the Court was faced with an attack upon a man’s right to sit as a member of Philadelphia’s City Council when this man, at the same time, and in violation of statute, was acting as surety for the city treasurer’s performance bond. As in the present case, the Court was urged to refrain from deciding the merits of this controversy on the sole ground that city council was charged with the duty of passing upon its own members’ qualifications. Nevertheless, the merits were reached on the theory that having commenced his duties as councilman, defendant’s violation of law became grounds for declaring his office forfeited. Thus, while admitting that, prior to being seated, council alone had the power to determine the councilman’s qualifications, once the defendant officially took office his lack of proper qualifications magically became a ground for forfeiture, over which the court did have jurisdiction. The Court frankly admitted that the very same defect could form the basis for either a disqualification or a forfeiture, the label seemingly dependent solely upon when the action to oust the councilman actually commenced. “The fact that a man is surety for a corporation officer is a cause of disqualification to take the seat, but when the seat is taken it becomes a cause of forfeiture.” 70 Pa. at 473.
Thus, under the Allen rule, both the Auchenbach case and the present case can be explained on the basis that they each involved an action commenced prior to *528the actual seating of the councilman being attacked. Indeed, the majority, by its citation of, and quotations from Allen indicates that this temporal distinction between disqualification and forfeiture continues to receive judicial approval. If this be true, I wish to disassociate myself completely from such approval. For I believe the Allen rule to be totally devoid of common sense.
The very case presented today illustrates clearly the folly of this illogical distinction. Although the lawsuit was commenced prior to Kelly’s being seated by council, there is no doubt that he is currently functioning as a member of Philadelphia’s highest legislative body. Therefore, the majority of this Court is simply inviting appellant to commence a second suit, alleging that Kelly has forfeited his office by virtue of his continuing failure to comply with the residence requirements of the Home Rule Charter. Furthermore, unless Allen be overruled I see no alternative for this Court except to hear such a complaint on the merits.3
*529The obvious import of the Allen decision was that this Court was unwilling to give up its rights to review the actions of a municipal body such as City Council. As the Court said at page 473: “The demand of the law cannot be set aside by the non-action or wrong action of a body wholly subordinate to it.” I therefore believe that the better rule, a rule consistent with both logic and the rationale of Allen, would permit judicial review of council’s actions regardless of when the lawsuit itself is commenced. I would thus read the Home Rule Charter as giving City Council the power to pass on the qualifications of its own members so long as this power is not abused. When, however, council abuses its discretion and chooses to seat a man in direct contravention of the mandatory charter requirements, the judiciary, in my view, has the power to prevent this municipal body of seventeen members (which, of course, can act even upon the vote of nine) from ignoring the absolute dictates of a document approved by the entire City of Philadelphia.
Thus, although I concur in the result reached by the majority, I do so only because §977 of the Election Code, in my view, so requires. Indeed, if the majority of the Court agreed with this position, I would have no hesitancy whatsoever in quashing this appeal as we did in Jaspan by a unanimous Court. However, since the majority has chosen to reach the merits of this controversy, in spite of the fact that I strongly believe these merits improperly before us, I must dissent from their resolution of the issue of Kelly’s residence. For I believe that John B. Kelly may not continue to occupy a seat in the council of a city in which he simply does not live.
Section 977 provides that petitions challenging a candidate’s right to be nominated for office must be filed “within seven days after the last day for filing said nomination petition or paper.” In the present ease the last day for filing was March 7, 1967, thus making March 14, 1967 the deadline date for challenges. See Jaspan v. Osser, 43 Pa. D. & C. 2d 346, 350 (C.P. 1967).
In Jaspan v. Osser, 43 Pa. D. & C. 2d 346 (C.P.) appeal quashed, S. Ot. Pa., East. Dist., Jan. Term, 1967 No. 393, John 1?. Kelly’s right to run in the Democratic primary was challenged on the basis of residence. The lower court held itself to be without jurisdiction since Jaspan did not commence the action timely under §977 of the Election Code. Also believing ourselves to he without jurisdiction for the same reason, we quashed Jaspan’s appeal.
The language in Allen urged as granting council alone the power to pass upon the qualifications of its members differs slightly from the language in the H'ome Rule Charter. However, this difference does not appear to be legally relevant. In Allen, the statutory language, taken from a supplement to the act incorporating the City of Philadelphia, recited that “the Select and Common Council, respectively, shall in like manner, as each branch of the legislature of this Commonwealth, judge and determine upon the qualifications of their members; . . .” Admittedly, the language “sole judge of the qualifications of its members,” language which appears in the Home Rule Charter, is absent in Allen. However, the Allen language dictates that the Philadelphia statute shall operate “in like manner, as each branch of the legislature of this Commonwealth, . . .” Thus, the effect of the statute in Allen must be gauged by the effect given Art. 2, §9 of the Pennsylvania Constitution which says that “Each House shall choose its other officers, and shall judge of the election and qualifications of its members.” This language has been construed to mean that the state legislature shall be the sole judge of its members’ quali*529fications, thereby making the Allen statute indistinguishable from the Home Rule Charter. See Altshuler Election, 66 Pa. D. & C. 476 (C.P. 1948) ; cf. In Re Contested Election of McNeill, 111 Pa. 235, 2 Atl. 341 (1885).