Com. ex rel. Bagnoni v. Klemm
Decision Date | 31 December 1982 |
Citation | 499 Pa. 566,454 A.2d 531 |
Parties | COMMONWEALTH of Pennsylvania, ex rel. Mario BAGNONI, Councilman of the City of Erie, on His Own Behalf and on Behalf of All Property Owners of the City of Erie, v. James E. KLEMM, City Clerk, the City of Erie and Mayor Louis J. Tullio, Appellants. |
Court | Pennsylvania Supreme Court |
George M. Schroeck, Erie, for appellee.
Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.
Resolution of this case turns solely upon a question of statutory construction: viz. whether an Act of Assembly which requires "a vote of two-thirds of the members" to override the Mayor's veto means two-thirds of the entire body or two-thirds of the members present. We hold that in the context of section 413(a) the Optional Third Class City Charter Law (Article IV, Mayor-Council Plan A), Act of July 15, 1957, P.L. 901, as amended, 53 P.S. § 41413(a), the quoted expression means two-thirds of the entire body. We therefore reverse the Commonwealth Court, 61 Pa.Cmwlth. 227, 433 A.2d 583, which had held that affirmative votes by four of the six councilmen present out of a seven member council were enough to override the mayor's veto.
On June 14, 1978, the City Council of Erie passed an ordinance providing for the City's sewer rental rates to remain unchanged until December 31, 1978. Mayor Louis J. Tullio vetoed this ordinance. Pursuant to Section 413(a) of the Optional Third Class City Charter Law, a council member introduced a resolution before the Council proposing to override the Mayor's veto. Four members of the Council voted in favor of overriding the veto, two members voted against the resolution, and one member was absent. 1 The City Solicitor ruled at the meeting that this vote was insufficient to constitute an override of the veto by "two-thirds of the members of Council" within the meaning of Section 413(a).
On August 14, 1978, appellee, Councilman Mario Bagnoni, filed a petition for a writ of mandamus and declaratory judgment in the Court of Common Pleas of Erie County, requesting that the court order the City Clerk to enter in the official city journal that the veto of the Mayor was overriden. The Court of Common Pleas denied the petition holding that there is no modifying language in section 413(a) to indicate that "members" means only those who are present at the meeting. The Commonwealth Court reversed and this appeal followed. 2
This Court has applied the common law rule that a majority of those voting in the presence of a quorum can act for a board or other body "in the absence of any language to the contrary in the relevant enabling statute." Stoltz v. McConnon, 473 Pa. 157, 373 A.2d 1096 (1977) (citing Raynovich v. Romanus, 450 Pa. 391, 299 A.2d 301 (1973)) (emphasis in original); Meixell v. Hellertown Borough Council, 370 Pa. 420, 88 A.2d 594 (1952); Commonwealth ex rel. Fortney v. Wozney, 326 Pa. 494, 192 A. 648 (1937); Frackville Borough Council Case, 308 Pa. 579, 162 A. 835 (1932). However, in the same context of voting requirements in representative municipal bodies this Court has rejected the necessity of a clear and explicit statutory provision to demonstrate a legislative intent to change the common law rule and require a majority of the full body. The Pennsylvania Statutory Construction Act, 1 Pa. C.S. § 1928(a), provides that the "rule that statutes in derogation of the common law are to be strictly construed, shall have no application to the statutes of this Commonwealth enacted finally after September 1, 1937." Applying the above this Court has held that it will construe statutes dealing with the number of votes required for action by a municipal body without any presumption in favor of the common law rule. Stoltz v. McConnon, 473 Pa. at 165, n. 4, 373 A.2d at 1099-1100, n. 4.
In cases not involving votes by representative bodies of strictly limited membership, e.g. general public elections or elections open to the entire membership of a church or religious institution, this Court has applied the common law rule more rigorously:
[t]he great weight of authority holds that where a statute provides for a vote of "a majority of the voters", "a majority of the legal voters," "a majority of the qualified voters", etc., all that is required is a majority of those actually voting, unless a contrary legislative intention and purpose is very clearly expressed.
Heuchert v. State Harness Racing Comm., 403 Pa. 440, 450, 170 A.2d 332, 338 (1961) (quoting Munce v. O'Hara, 340 Pa. 209, 211, 16 A.2d 532, 533 (1940)) (emphasis added). See also Stryjewski v. Panfil, 269 Pa. 568, 112 A. 764 (1921). Schlichter v. Keiter, 156 Pa. 119, 27 A. 45 (1893).
The reasons are manifest for a more stringent application of the common law rule to general elections. First, as the older cases stressed, there is an inability to determine the number of electors as distinguished from voters. A second and more compelling reason is that there is no way to compel people to vote. Particularly in primaries where less than fifty percent of the registered voters participate, a requirement of a majority of all voters would, for all practical purposes, cause institutional paralysis. See Heuchert v. State Harness Racing Comm., supra.
With this background we consider section 413(a) of the Optional Third Class City Charter Law to ascertain whether the legislature intended that the required number of votes be computed as a portion of the entire membership or only of those members present. Section 413(a) provides:
No ordinance or any item or part thereof shall take effect without the mayor's approval ... unless council upon reconsideration, thereof, ... shall by a vote of two-thirds of the members resolve to override the mayor's veto.
53 P.S. 41413(a). 3 The meaning of the phrase in question, "by a vote of two-thirds of the members", is unclear. This Court has never considered the meaning of this phrase. 4
The appellees' and Commonwealth Court's reliance on the fact that the legislature is familiar with more specific language to indicate that the percentage of votes required to override the mayor's veto is the specified fraction of the entire elected body rather than the number of members present at a particular meeting is misplaced. The legislature has also shown that it knows how to use specific language for the common law rule. Thus, one example cancels the other in the absence of a presumption favoring either. Examples of specific language requiring a majority of the full body are:
No bill shall become an ordinance unless a majority of all the councilmen elected be recorded as voting in its favor ... If [the mayor] disapproves it, he shall return it to council, and council pass (sic) the same, ... by vote of three-fifths of all the members elected thereto, it shall become law without his approval.
53 P.S. § 12526 (First Class City Code) (emphasis added). The Second Class City Code provides:
"If, upon reconsideration, council shall pass the ordinance or resolution over the veto of the mayor, by a two-thirds vote of all the members thereof, it shall be a binding ordinance or resolution of the city."
53 P.S. § 22230 (emphasis added). The Borough Code provides:
If, after such reconsideration, two-thirds of all the members elected to said council, or a majority of council plus one, when the number composing such council is less than nine, shall vote to pass such ordinance or resolution, it shall become of as (sic) full force and effect....
53 P.S. § 46007 (emphasis added).
Finally, article IV, section 15 of the Pennsylvania Constitution expressly provides for an override of the Governor's veto by using the word "all" to modify "the members elected..."
Every bill which shall have passed both Houses shall be presented to the Governor; if he approves he shall sign it, but if he shall not approve he shall return it with his objections to the House in which it shall have originated, which House shall enter the objections at large upon their journal, and proceed to reconsider it. If after such reconsideration, two-thirds of all the members elected to that House shall agree to pass the bill, it shall be sent with the objections to the other House by which likewise it shall be reconsidered, and if approved by two-thirds of all the members elected to that House it shall be a law.
The common thread in all of these provisions is the use of an adjective to modify the word "members" which expressly states the intention that a proportion of the whole number of members is required.
An example showing the legislature also has the ability to use clear language codifying the Common Law Rule, thus requiring only a majority of a quorum is:
Six directors attending shall constitute a quorum for the transaction of any business and, unless a greater number is required by the by-laws of the agency, the act of a majority of the directors present at any meeting shall be deemed the act of the Board.
Pennsylvania Higher Education Assistance Agency Act of 1963, Act of August 7, 1963, P.L. 549 § 3(b), as amended. 24 P.S. § 5103(b) (Supp.1982-83). See Stoltz v. McConnon, 473 Pa. at 167, n. 7, 373 A.2d at 1100, n. 7. The intention of the legislature regarding the number of votes required to carry a proposition is once again ascertained from the adjectival phrase modifying the noun describing the collective body. In the above example, the adjectival phrase provides for action by a subset of the whole of the membership, e.g. the members present at the meeting.
In establishing the number of votes required to override the mayor's veto in the Third Class City Code the legislature chose simply to state the requirement in terms of a fraction of "the members". It wholly omitted any adjective expressing either alternative. Thus, the statute is ambiguous on its...
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