LUONGO, District Judge.
Plaintiffs, Andrew J. Kaelin, Elsa Suplee and Lucille Trench, are all qualified voters and registered members of the Democratic Party in Bucks County, Pennsylvania. They have brought this action for declaratory and injunctive relief, seeking a declaration that appointment of one of three Commissioners of Bucks County was pursuant to an unconstitutional state statute, and seeking removal of the Commissioner so appointed. Pursuant to plaintiffs' request a three-judge court was convened under 28 U.S.C. § 2281.
Under Pennsylvania law, counties of the second through the eighth class are governed by three Commissioners. Each qualified elector of the county is, however, only permitted to vote for two Commissioners, 16 P.S. §§ 501(a) and 3501(a), thus insuring minority representation. See Commonwealth ex rel. Teller v. Jennings, 409 Pa. 513, 186 A. 2d 916 (1963). In the event of a vacancy in the office of Commissioner, the unexpired term is filled (1) in counties of the second class by appointment by the judges of the Court of Common Pleas of the county from among those electors who voted for the Commissioner whose vacancy is being filled (16 P.S. § 3501(b)), and (2) in counties of the third class (of which Bucks is one) by appointment by the judges of the Court of Common Pleas of the county from among those electors of the county who are members of the same political party as the Commissioner whose unexpired term is being filled. 16 P.S. § 501(b).
On November 7, 1967, Joseph O. Canby, a member of the Republican Party, was elected one of three Commissioners of Bucks County for a four year term commencing January 1968. On June 8, 1970, he resigned. William B. Warden was one of three members of the Republican Party whose names were submitted by the Bucks County Republican Committee to the judges of the Court of Common Pleas of Bucks County. Acting pursuant to 16 P.S. § 501(b), the Bucks County Common Pleas judges appointed Warden to fill Canby's unexpired term. Thereafter this action was instituted seeking, as above noted, a declaration of the unconstitutionality of § 501(b), removal of Warden from office, and an election to fill the vacancy.
The threshold question is whether this case is an appropriate one for a three-judge court. The majority is of the view that it is.
A three-judge court under § 2281 should be convened only if (1) an injunction is sought to restrain the enforcement, operation, or execution of a state statute of statewide application; (2) by restraining the action of a state officer in the enforcement or execution of such statute. The purpose of § 2281 is to prevent a single federal judge from paralyzing an entire state regulatory scheme by the issuance of a broad injunctive order. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963); Phillips v. United States, 312 U.S. 246, 61 S. Ct. 480, 85 L. Ed. 800 (1941).
It is unquestioned that § 501(b) is a statute of statewide applicability. See generally Moody v. Flowers, 387 U.S. 97, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967); Sailors v. Board of Education, 387 U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967). The question here is whether it is now too late to enjoin the enforcement or execution of the statute by state officers since the state officers (the judges of the Court of Common Pleas), have already executed the statute by appointing Warden to fill the vacancy. In the view of the dissent that question must be answered in the affirmative, leaving only an action in the nature of quo warranto to remove Warden from office. Since such a proceeding would concern only a purely local matter, directed at a local officer, the case is one for a single judge, according to the dissent. See Ex parte Collins, 277 U.S. 565, 48 S. Ct. 585, 72 L. Ed. 990 (1928).
In the opinion of the majority such a view of the case before us overlooks the essence of the relief sought by plaintiffs. At the outset we recognize that it is not enough to satisfy the requirements of § 2281 to seek to enjoin "state officers whose action is not the effective means of the enforcement or execution of the challenged statute." Wilentz v. Sovereign Camp, Woodmen of the World, 306 U.S. 573, 579-580, 59 S. Ct. 709, 713, 83 L. Ed. 994 (1939). Thus, if the injunction sought against the state officers is "but incidental to the sole purpose of the suit," i.e., to prevent the performance by a local officer of a local function, then a three-judge court should not be convened. If, however, injunction against the state officers is necessary to prevent continuing execution or operation of the challenged statute, the requirements of § 2281 are, in our view, satisfied. Cf. Wilentz v. Sovereign Camp, supra.
In this case plaintiffs seek:
(1) removal of Warden as a Commissioner;
(2) a declaration that § 501(b) is unconstitutional;