dissenting.
The seven member city council of Erie, Pennsylvania passed a resolution.
The resolution was forwarded to the Mayor. He vetoed the resolution. It was returned to the council, where a two-thirds vote was required to override. When the resolution was re-submitted, six of the seven council members were present. Four voted to override, two to sustain the veto, one absent.
The city solicitor ruled that the override failed because the Optional Third Class City Charter Law * required a vote by all the members of the council. Six present is not seven, hence the veto was sustained.
Mandamus was brought to compel the clerk of council to enter the rote in the official journal as overriding the veto.
The court of common pleas denied the petition. The Commonwealth Court reversed, herce this appeal. The common law of Pennsylvania is clear:
“[A] majority of those voting in the presence of a quorum, can act for a Board or a body.”
It is true that Pennsylvania courts have repeatedly applied the common law rule to representative municipal bodies of limited membership in the absence of any language to the contrary in the relevant enabling statute.
Stoltz v. McConnon, 473 Pa. 157, 163-64, 373 A.2d 1096, 10 (1977) (emphasis original).
*577The Legislature may alter that rule as they see fit. If they do not, then the principle of democratic government embedded in the common law prevails. We must presume the Legislature knows so elementary a rule and would clearly act to alter it where they see a need. That they have done so in specific instances is witness to their knowledge and intention. The majority obviously desires to believe the Legislature intended to alter the rule and to prove the point has sailed around the Horn to reach Lake Erie. We are treated to analogies from the body politic, the parsing of adjectival clauses and the admittedly inconclusive view of text writers and popular manuals of parliamentary procedure. The majority became so entrenched in their own labors that they overlooked the proofs they present. Indeed they do prove that the Legislature knows the uses of specific language to alter the common law rule. Mr. Justice Hutchinson has marshalled the instances where they could not be clearer. When one contrasts the section in question with his examples, the difference is conclusive. In all examples offered the Legislature said “all the members,” in Section 413(a), 53 P.S. § 41413(a) they simply said “the members”. Only by deliberate persistence does the Court overcome its own logic.
In writing section 413(a) it is clear that the Legislature had its own precedent before it. In section 607(a), when they specified the manner in which a resolution originates in the Council, they wrote:
Section 607. (a) Council shall determine its own rules of procedure, not inconsistent with ordinance or statute. A majority of the whole number of members of the council shall constitute a quorum, but no ordinance shall be adopted by the council without the affirmative vote of a majority of all the members of the council.
53 P.S. § 41607(a) (emphasis supplied).
The Commonwealth Court recognized this distinction of intention and properly reversed the court of common pleas. *578The Legislature, fully aware of the common law rule chose different methods for different occasions. They chose that all the members originate a resolution and that the members under the common law rule, vote by two-thirds to override a veto. These are obviously two different functions. The majority points out with misgivings, that a resolution vetoed can be passed upon re-consideration by a lesser number than required to pass it originally. While that is true, it is also true that the will of six ought not be stymied by one who deliberately or otherwise absents himself. That the Legislature saw the problem is clear because they raised the proportion of votes necessary to override a veto from a majority to a two-thirds vote. Had they wanted all members present for that vote they would have said so, as they did in requiring all members present to pass the original resolution. A resolution originally passed by all the members is entitled to be protected from deliberate, strategic abstention, as this Court so pertinently said:
[0]ne 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 a important election or important legislation and thus paralyze government with obviously great harm to the public interest.
DiGiancinto v. City of Allentown, 486 Pa. 436, 440, 406 A.2d 520, 522 (1979), quoting, Meixell v. Borough Council of Borough of Hellertown, 370 Pa. 420, 425, 88 A.2d 594, 596 (1952).
Obviously, there are anomalies at either end. We have firmly opted to avoid the anomaly of one member delaying and obstructing the democratic process by his absence. The Legislature has chosen to accept the anomaly of a lesser vote in a reconsideration after a veto. Their decisions should be controlling.
LARSEN, J., joins in this dissenting opinion.Act of July 15, 1957, P.L. 901, as amended, 53 P.S. § 41413(a).