broader than the right to vote -- a right to have one of their representatives chosen from the entire constituency and not just a limited class.
We can judicially notice that all electors who vote for county commissioners do not necessarily vote for a particular commissioner because he is the member of the particular political party. That is, some electors are no doubt independents and vote for the man, not the party. The lack of party loyalty is apparent from those elections in which a candidate receives more votes than his party has registered voters. See Commonwealth ex rel. Teller v. Jennings, supra, 186 A. 2d at 918 n. 5 (Pa. 1963).
Plaintiffs contend that § 501(b) improperly distinguishes between those who voted for Canby as an embodiment of his party's views and those who voted for Canby as a man without considering his party affiliation, and that the statute is unconstitutionally underinclusive since it benefits the former group (because Canby was a Republican and they are to be represented by a Republican in his place) and arbitrarily ignores the latter group. This, they contend, bears no reasonable relationship to any legitimate state objective and establishes an impermissible classification, one which fosters perpetuation of the type of representation that some originally voted for and denies the same treatment to others. Thus, the right that plaintiffs assert can be viewed as a right to equal representation. See generally Note, Reapportionment on the Sub-state Level of Government: Equal Representation or Equal Vote? 50 B.U.L. Rev. 231 (1970).
We are aware of the panoply of rights which derive from the right of representation and that classifications which invade or dilute this right must be closely scrutinized and carefully confined. However, in considering this method of interim appointment we do not require the "exacting standard of precision" ordinarily required where the vote itself is directly involved. Compare Burns v. Richardson, 384 U.S. 73, 90-97, 86 S. Ct. 1286 (1966), with Kramer v. Union School District, 395 U.S. 621, 632 (1969); McDonald v. Board of Election Com'rs of Chicago, 394 U.S. 802, 807, 89 S. Ct. 1404 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S. Ct. 1897, 23 L. Ed. 2d 647 (1968). Since the classification involved in § 501(b) is based on political party affiliation, to save it from constitutional attack it must be shown that this classification furthers a legitimate and substantial state interest. Can such state interest be found here?
The state proffers a substantial interest to justify the classification in question. It asserts that the appointive procedure provides for the orderly administration of counties without, in some instances, a hiatus in the operation of government. Furthermore, the requirement that the appointee be a registered elector of the same political party as the commissioner whose place is to be filled is necessary to maintain the scheme of majority-minority representation. Finally, while one may well question the assumption, it is assumed that the political qualification on the appointment enhances the chance of continuity of representation in that the appointee is more likely to share the views of his predecessor in office.
These justifications may not be properly classified as an attempt to benefit the state in some remote administrative manner, see Carrington v. Rash, 380 U.S. 89, 96, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965), or an attempt to deal with a remote danger which is theoretically imaginable, see Williams v. Rhodes, 393 U.S. 23, 33, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968). The statute furthers the preservation of a legitimate state objective in an area in which the state has a compelling interest. Abate v. Mundt, 403 U.S. 182, 91 S. Ct. 1904, 29 L. Ed. 2d 399 (1971); cf. Turner v. Fouche, 396 U.S. 346, 361, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970). The alternatives open to the state which would represent a more exacting way to achieve this end are not apparent to us. We cannot very well require a special election in the case of every casual vacancy since such a procedure is costly in terms of time, which is of considerable importance in a three member body. In addition, a general election of all electors in the county will discriminate against those who originally used one of their two votes to vote for the commissioner who vacated his seat. Those who did not vote for him (i.e. the Commissioner who vacated his seat) will then have had the opportunity to vote for a person to fill each of the three seats on the new board while those who did (i.e. vote for the Commissioner who vacated his seat) would only have been able to vote for a person to fill two of the seats. Also, such an election will frustrate the desired purpose of minority representation if the vacancy is the minority seat. To require that the appointee be chosen from the entire electorate again may lead to the undesirable result of no minority representation.
Plaintiffs claim, however, that there is an alternative open to the legislature which would provide a more exacting method of fulfilling the legislative purpose. They assert that the Pennsylvania legislature has provided for such an alternative in the legislation which governs counties of the second and second A classes
reflected in 16 P.S. § 3501(b)
"Any vacancy in the office of county commissioners shall be filled for the balance of the unexpired term by the court of common pleas of the county, by the appointment of an elector of the county who voted for the commissioner whose place is to be filled."
As in the case of § 501(b), this statute also establishes a classification. We have not been convinced, however, that § 3501(b) provides for a more exacting and reliable method of fulfilling the legislative purpose. It provides one device which could aid in achieving the desired goal that those eligible to fill the vacancy share views similar to those of the commissioner whose departure created the vacancy. However, it is quite possible that an elector, eligible under § 3501(b) for appointment, voted for the original commissioner as a result of considerations entirely foreign to those which compelled a similar vote by other electors, and that he maintains views which are considerably different than those of his fellows.
To say that § 3501(b) reflects a more desirable method of obtaining the intended result is, we believe, to make a legislative judgment. The Constitution does not forbid the state from experimenting by utilizing disparate methods for different counties.
Plaintiffs also assert that they are denied equal protection of the laws since they as citizens of Bucks County, a third class county governed by § 501(b), are not afforded the same treatment as citizens of counties of the second and second A classes who are governed by § 3501(b). This contention misconceives the nature of the Equal Protection Clause which requires that persons be similarly situated in order to obtain its protection. "It contemplates persons and classes of persons. It has not respect to local and municipal regulations that do not injuriously affect or discriminate between persons or classes of persons within the places or municipalities for which such regulations are made." Missouri v. Lewis, 101 U.S. 22, 30, 25 L. Ed. 989 (1879). Hence, it has long been held that the equal protection guaranty does not require uniformity of treatment of persons in different territories within a state. Ocampo v. United States, 234 U.S. 91, 98, 34 S. Ct. 712, 58 L. Ed. 1231 (1914). In this regard, the presumption of validity is with the state, Salsburg v. Maryland, 346 U.S. 545, 550-554, 74 S. Ct. 280, 98 L. Ed. 281 (1954), and the record is barren of any indication that the situation in the different counties might not rationally call for different treatment. Compare McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961), with Griffin v. County School Bd., 377 U.S. 218, 230-231, 84 S. Ct. 1226, 12 L. Ed. 2d 256 (1964).
We therefore conclude that the challenged Pennsylvania statute is constitutional on its face and to the extent the amended complaint is based on a contrary claim it will be dismissed.
Plaintiffs' final claim is that the manner in which the Court of Common Pleas of Bucks County exercised its statutory prerogative under § 501(b) was unconstitutional. They assert that the electors of Bucks County were given inadequate notice of the then pending appointment, that the manner in which the Republican Party selected three people to recommend to the Court did not comply with federal constitutional standards, and that the Court only considered the recommendations of the Republican Party in selecting the new county commissioner. Standing alone, this claim does not question the constitutionality of the statute; rather it questions whether the Court of Common Pleas exercised its power in a constitutionally permissible manner. Such a claim cannot be said to be an attack upon the statute "as administered and applied." Wright, Handbook of the Law of Federal Courts 190 (2d ed. 1970). Therefore plaintiffs' final claim cannot properly be heard by a three-judge district court, Pittsburgh & W. Va. Ry. v. United States, 281 U.S. 479, 488, 50 S. Ct. 378, 74 L. Ed. 980 (1930), but must be heard by a single district judge. Phillips v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 L. Ed. 800 (1941); Ex parte Bransford, 310 U.S. 354, 60 S. Ct. 947, 84 L. Ed. 1249 (1940). To that end this court will dissolve itself and remit the reserved issue to a single district judge.