(dissenting).
The prime subject of inquiry in this action is whether a state election statute may constitutionally condition the filling of a casual vacancy in the office of county commissioner, for the balance of an unexpired term, upon the qualification that the appointee be “a member of the same political party as the commissioner whose place is to be filled at the time the commissioner was elected.”1
A three-judge Court was convened to consider the plaintiffs’ constitutional questions 2 and a hearing was held on the merits of plaintiffs’ complaint and application for injunctive relief.
In their complaint, as amended, plaintiffs contend that the
“ * * * Act denies due process of law and equal protection of the law to Plaintiffs on account of Plaintiffs’ political party affiliation and does not afford plaintiffs an opportunity to be notified of, or to be heard on, or to *610participate in who will be plaintiffs’ representative or choice of government of the County.” 3
The genesis of this action arose on June 8, 1970, when Joseph 0. Canby, an elected county commissioner of Bucks County, Pennsylvania, resigned his office.4 Thereafter, on August 14, 1970, pursuant to section (b) of the statute in question, defendant William B. Warden, a member of the same political party as Canby was appointed by the Judges of the Court of Common Pleas of Bucks County to serve the balance of Canby’s unexpired term. This appointment precipitated the instant action by plaintiffs, who are all residents of Bucks County, qualified voters and members of the Democratic Party.
Pennsylvania’s 67 counties are divided by population into nine classes.5 Philadelphia is the only first class county. The remaining 66 counties are subject either to the Second Class County Code 6 or the County Code regulating the municipal affairs of third to eighth class counties.7
The Second Class County Code8 also provides for the filling of a commissioner vacancy, but, unlike the County Code, does not require the appointee to be of the same political party as his predecessor. Both provisions are derived from Section 7 of Article XIV 9 of the Pennsylvania Constitution of 1874, as amended November 2, 1909, which reads as follows:
“Section 7. Three commissioners and three county auditors shall be elected in each county, where such officers are chosen, in the year one thousand nine hundred and eleven and every fourth year thereafter; and in the election of said officers, each qualified elector shall vote for no more than two persons, and the three persons having *611the highest number of votes shall be elected; any casual vacancy in the office of county commissioners or county auditor shall be filled by the court of common pleas of the county in which such vacancy shall occur, by the appointment of an elector of the proper county who shall have voted for the commissioner or auditor whose place is to be filled.” (emphasis ours).
At the outset, it is important to note certain well-defined constitutional principles which are pertinent here. No longer is it open to question that “[T]he actions of local government are the actions of the State. A * * * county may no more deny the equal protection of the laws than it may abridge freedom of speech, establish an official religion, arrest without probable cause, or deny due process of law.” Avery v. Midland County, 390 U.S. 474, 480, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45 (1968). While a state may legitimately distinguish among citizens, provided such distinctions are not arbitrary or invidious, “[A]ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.” Kramer v. Union Free School District, 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969).
It is apparent from even a cursory reading of 16 P.S. § 501 that the Legislature of Pennsylvania, contrary to its own Constitution and the Equal Protection Clause of the Federal Constitution, has discriminated in making political affiliation, the controlling qualification for filling commissioner vacancies in Third to Eighth Class Counties. The rationale for this distinction is claimed to be the preservation of the state-wide system of majority-minority representation in local government, as mandated by the State Constitution, in order to provide the electorate with a “watchdog” over the operations of County government. However, this governmental philosophy applies as well to Second Class Counties, but is there implemented by a complete disregard for the political affiliation of the
appointee. I am unable to discern any legitimate state purpose served by the invidious restrictive distinction contained in Section 501(b), which, inter alia, limits eligibility for consideration for appointment to a vacancy in this office to registered electors of one political party. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1962).
Contrary to the arguments of counsel, I see no need to determine here that Pennsylvania’s Constitution, which provides for majority-minority representation in local government, conflicts with the Equal Protection Clause. No direct attack on this principle was made by plaintiffs in their complaint, as amended, and the relief requested could be granted without proceeding further. “This Court is aware of the immense pressures facing units of local government, and of the greatly varying problems with which they must deal. The Constitution does not require that a uniform strait jacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems.” Avery v. Midland County, 390 U.S. supra 485, 88 S.Ct. 1120. Accordingly, I would go no further than to hold that the political affiliation requirement of Section 501 (b) establishes an arbitrary distinction among citizens otherwise eligible for appointment to fill such vacancy and, as well, to participate in the selection of public officials and, so, is violative of the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution.
While the effect of such a determination would necessarily vitiate the appointment of Commissioner Warden, I would not abrogate the power of appointment for casual vacancies conferred by Section 501(b) upon the Court of Common Pleas. The State has an overriding legitimate interest in the orderly continuation of the operations of local government, which, when interrupted by the resignation or death of an elected official, must be remedied as soon as possible. Therefore, the appointment of a successor by the Court of Common Pleas *612is an expeditious and effective method of restoring the full complement of Commissioners. This appointive power in no way abridges the franchise held by the electorate, which remains unimpaired, to be exercised quadrennially. Consequently, I perceive no violation of the Equal Protection Clause in the utilization by the State of an appointive method to meet the exigencies of an unusual situation, absent the discriminatory limitation.
. 16 P.S. § 501
“Election; Vacancies
(a) Three county commissioners shall be elected in each county in the year one thousand nine hundred and fifty-five, and every fourth year thereafter. In the election of commissioners, each qualified elector shall vote for no more than two persons. The three persons having the highest number of votes shall be elected.
(b) Any casual 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 in which such vacancy shall occur by the appointment of a registered elector of the county who was a member of the same political party as the commissioner whose place is to be filled at the time the commissioner was elected.”
. 28 U.S.C.A. §§ 2281 and 2284.
. Paragraph (d-1), in part, of plaintiffs’ second amended complaint.
. Canby had been elected on November 7, 1967.
. 16 P.S. § 210
“Counties Divided Into Nine Classes For the purposes of legislation and the regulation of their affairs, counties of this Commonwealth, now in existence and those hereafter created, shall be divided into nine classes as follows:
(1) First Class Counties, those having a population of 1,800,000 inhabitants and over.
(2) Second Class Counties, those having a population of 800,000 and more but less than 1,800,000 inhabitants.
(2.1) Second Class A Counties, those having a population of 500,000 and more but less than 800,000 inhabitants.
(3) Third Class Counties, those having a population of 250,000 and more but less than 500,000 inhabitants.
(4) Fourth Class Counties, those having a population of 150,000 and more but less than 250,000 inhabitants.
(5) Fifth Class Counties, those having a population of 95,000 and more but less than 150,000 inhabitants.
(6) Sixth Class Counties, those having a population of 45,000 and more but less than 95,000 inhabitants.
(7) Seventh Class Counties, those having a population of 20,000 or more but less than 45,000 inhabitants.
(8) Eighth Class Counties, those having a population of less than 20,000 inhabitants.”
. 16 P.S. §§ 3101 to 9100.
. 16 P.S. §§ 101 to 3100.
. 16 P.S. § 3501
“Election; vacancies
(a) Three county commissioners shall be elected in the county in the year one thousand nine hundred and fifty-five and every fourth year thereafter. In the election of commissioners, each qualified elector shall vote for no more than two persons. The three persons having the highest number of votes shall be elected.
(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 he filled." (emphasis ours).
. This Article was replaced by Article IX § 4 of the present Pennsylvania Constitution adopted in 1968 which contains the same limitation upon the electorate as the former Article XIV and further provides “* * * all vacancies shall be filled in such manner as may be provided by law.”