McLaughlin, Kalodner and Van Dusen, Circuit Judges.
The appellant plaintiffs, residents and registered voters of Chester, Pennsylvania, filed a class action below seeking a declaratory judgment and injunctive relief against partisan political activity by members of the Chester Police Department. Count I of the Complaint alleged violation of (1) sections of the Civil Rights Act*fn1 prohibiting intimidation of voters; (2) First Amendment rights of free political expression; and (3) Fourteenth Amendment "equal protection" rights. Count II alleged violations of the federal Hatch Act*fn2 by defendant members of the Chester Police Department.
The Complaint, in broad outline alleged that twenty-two members of the Chester Police Force, named as defendants, are Republican Party committeemen; many of them electioneer in the vicinity of polling places on Election Day and as a result voters are intimidated; and the political activities of the policemen are sanctioned by the defendant Mayor of Chester and its chief of police and the defendant Chairman of the Chester Republican Executive Committee.
The plaintiffs filed a motion for a preliminary injunction October 22, 1968, the day the Complaint was filed. Hearing was had on that motion on October 28, 1968. Plaintiffs presented the testimony of eleven witnesses, including the defendants Nacrelli, Bail and Eyre. Testimony for five additional witnesses was stipulated.
When the plaintiffs rested their case, counsel for the defendant Chester Republican Executive Committee and its chairman Joseph Eyre, orally moved "that the application for preliminary injunction as far as Mr. Eyre is concerned and so far as the Republican Executive Committee is concerned be dismissed. * * *" (Emphasis supplied.)
At that point, counsel for all the other defendants stated:
"If the Court please, I would like to make a similar motion on behalf of Mayor Nacrelli, Chief Bail and also the rest of the policemen who are named defendants." (Emphasis supplied.)
The defense called a single witness who testified with respect to Count II of the Complaint alleging violations of the Hatch Act.*fn3
The parties then presented oral argument on the two defense motions "that the application for preliminary injunction * * * be dismissed." When they concluded, the District Court said in relevant part:
"I am going to make my decision right now. * * *
"This case is rather imminent because of the election coming up a week from tomorrow, and if I deny the request for the preliminary injunction, why, obviously it can't be resolved during that time. For future purposes, the plaintiffs may do as they see fit and obtain a permanent injunction.
"I will start out by saying this, that the request for a preliminary injunction is denied. The motions to dismiss are granted.
"Now, I base that on the following facts: In the first instance, I have heard no evidence whatsoever which convinces me that in any way any of these police officers, the Mayor, the Chairman of the Chester City Republican Executive Committee or any member of that committee or anyone else coerced or ...