The opinion
SEITZ, Chief Circuit Judge
(dissenting).
I do not believe this is a proper case for a three-judge court.
In their prayers for relief, plaintiffs seek a declaration that 16 P.S. § 501(b) is unconstitutional, an order enjoining Warden from participating in office, an order compelling the Bucks County Common Pleas judges to vacate and set aside their order appointing Warden to office, a declaration that the office is vacant, and an order requiring a special election to fill the vacancy created by the removal of Warden from office.
In order to justify the convening of a three-judge District Court under 28 U.S.C. § 2281 it is essential that plaintiffs assert a proper claim seeking to restrain the action of a state officer in the enforcement or execution of a state statute. Moody v. Flowers, 387 U.S. 97, 101 , 87 S.Ct. 1544 (1967). This requirement is not lightly fulfilled since the Supreme Court has repeatedly stressed that the three-judge court legislation is not “a measure of broad social policy to be construed with great liberality,” but is rather “an enactment technical in the strict sense of the term and to be applied as such.” Mitchell v. Donovan, 398 U.S. 427, 431 , 90 S.Ct. 1763, 1765 , 26 L.Ed.2d 378 (1970); Phillips v. United States, 312 U.S. 246, 251 , 61 S.Ct. 480 (1941). For purposes of determining the propriety of convening a three-judge court one must consider plaintiffs’ claim against the judges of the Common Pleas Court, the sole authorities vested with the power to enforce or execute the statute subject to plaintiffs’ constitutional challenge. Plaintiffs’ complaint is devoid of any prayer seeking to enjoin the Common Pleas judges from executing § 501(b). I presume this is because the judges had executed the statute before the complaint was filed and they have no further duties to perform in terms of enforcing it. This alone is fatal to plaintiffs’ request for a three-judge court. Harlan v. Pennsylvania R.R., 180 F.Supp. 725, 726 (W.D.Pa.1960). In fact, the only relief requested concerning the Common Pleas judges is that they vacate their order appointing Warden to office, *602 a course of action which they do not have the power to take. 1
Even if one assumes that we can infer from plaintiffs’ complaint a request to enjoin the Common Pleas judges from again executing § 501(b) at some time in the future, the complaint would still fail to state a claim cognizable by a three-judge District Court. It is well understood that a three-judge court should not be convened unless there is a showing that there is a present need for injunctive relief because enforcement of a challenged statute is threatened and therefore imminent. Frankel v. Gardner, 263 F.Supp. 218, 220 (E.D.Pa.1966). There is no such allegation in plaintiffs’ complaint nor do I think such an allegation would be supportable.
Further, the lack of immediacy of any threatened execution raises serious questions of non-justiciability of a claim seeking an injunction restraining the judges. United Public Workers v. Mitchell, 330 U.S. 75, 78 , 67 S.Ct. 556 , 91 L.Ed. 754 (1947). The execution will come about only if plaintiffs are successful in having the statute declared unconstitutional and in removing Warden from office. This would create a vacancy and the possibility that the Common Pleas judges will again execute § 501(b) although there has been a determination by a federal court that the statute is unconstitutional. In this setting, the claim for an injunction is too contingent and is not ripe for adjudication. Therefore it cannot stand as the jurisdictional basis for the convening of a three-judge court. The ripeness of the claim necessary for jurisdiction is pendent to the determination of other claims which are not independently cognizable by a three-judge court. A doctrine of “pendent” ripeness, even if accepted, would require at least that the claim necessary to jurisdiction be ripe. See D. Currie, Federal Courts 49 (1968).
At this time plaintiffs can properly seek only a determination as to the constitutionality of the statute and the removal of Warden from office. Since this does not require that the execution of the statute be restrained, the case is one properly for a single judge.
Since I believe a three-judge District Court lacks jurisdiction to entertain this action, I would vacate the order convening this three-judge court, dissolve the court, and remit the case to the District Judge to whom it was first presented, for disposition by him.
. “The county commissioners * * * whether elected or duly appointed to fill a vacancy, shall be removable from office only by impeachment, or by the Governor for reasonable cause after due notice and full hearing on the advice of two-thirds of the Senate, or upon conviction of misbehavior in office, or any infamous crime in accordance with the Constitution of this Commonwealth, but their title to office may be tried by proceedings of quo warranto as provided by law.” 16 P.S. § 450(a) (1971 Supp.)