This is an original proceeding brought in this .court to determine the constitutionality of the apportionment act of the legislature, apportioning state representatives and senators to the various counties of the state, approved March 7, 1905. (See Sess. Laws 1905, p. 76.)
It appears that the legislature attempted to establish and create the counties of Lewis and Clark out of the territory included within Kootenai county and passed an act to that effect, approved February 29, 1905. By that act, the legislature undertook to create Lewis county out of the northerly half and Clark county out of the southerly half of said county, and under said apportionment act, the said counties of Lewis and Clark were given one senator and two representatives each. Thereafter this court in the case of McDonald v. Doust, 11 Idaho, 14, 81 Pac. 60, 69 L. R. A. 220, held said act of the legislature attempting to create said Lewis and Clark counties unconstitutional and void, thereby sustaining the integrity of Kootenai county as originally created.
The act creating the counties of Lewis and Clark having thus been held unconstitutional, the questions arise as to whether Kootenai county is entitled to two senators and four representatives, that being the number apportioned to said Lewis and Clark counties, and whether if said Kootenai county is not entitled to two senators and four representatives, what number of representatives and senators it is entitled to, and whether, by reason of said act (attempting to create said Lewis and Clark counties) having been held void. *586said apportionment act is for that reason unconstitutional and void.
Counsel for plaintiff first contended that said act is constitutional and that said Kootenai county is entitled to two senators and four representatives. That as said Lewis and Clark counties were created from the identical territory included within the boundaries of Kootenai county, the legislative intent was to give that territory and population within it two senators and four representatives. We cannot wholly agree with that contention. It is clear to us from the said legislative apportionment act that it was the intention of the legislature to give to each county one senator, as was done by said act, and that representatives were apportioned to the several counties according to the vote cast at the last preceding state election for one of the state officers. That being true, if the unconstitutional act creating Lewis and Clark counties had not been passed, Kootenai county would have been given but one senator. We, therefore, hold that Kootenai county is entitled to but one senator.
It is very apparent that it was the intention of the legislature to give to each county in the state but one senator, and it may have been that the legislature in apportioning representatives to the several counties gave to each county one representative for a certain number of votes cast at the last preceding election, and one also for every major fraction of such number. In case said unconstitutional act had not been passed, Kootenai county as a whole may have been entitled to five representatives instead of four, by reason of its having a major fraction of the number which was used as the basis of such apportionment, but we have nothing before us showing that it has such major fraction. We, therefore, hold that Kootenai county is entitled to four representatives and no more.
It is contended that under the decision of this court in Ballantine v. Willey, 3 Idaho, 496, 95 Am. St. Rep. 17, 31 Pac. 994, that the apportionment act under consideration is unconstitutional and void. We cannot agree with that con*587tention as the facts in that case were very different from the facts in the case at bar. In that case Logan and Alturas counties were abolished and the counties of Alta and Lincoln created; and while it is true that said Alta and Lincoln counties contained all of the territory included within Alturas and Logan counties, Alta county contained a larger area and population than Alturas county contained, and Lincoln county a smaller area and population than Logan county. That being true, the act creating Alta and Lincoln counties having been held by this court unconstitutional, the number of representatives apportioned to Alta county would not apply to Alturas county, because Alta county included a larger territory and population than was included in Alturas county, and the said Lincoln county contained less territory and population than was included in Logan county.
It will therefore be observed that the legislature would not have given Alturas county the same representation that it did Alta county, and would have given Logan county a larger representation than it gave Lincoln county. In that case it was apparent that the legislature would not have passed said apportionment act giving the same representation to Alturas county that it gave to Alta county or the same to Logan county that it gave to Lincoln. While in the case at bar the representation to Lewis and Clark counties, aside from one senator, would, in all probability, have been just the same as was given to Lewis and Clark counties, as identically the same territory and population were included in Lewis and Clark counties as are included in Kootenai county. We, therefore, hold said apportionment act valid, with the exception that Kootenai county is entitled to only one senator and four representatives. This construction of the act under consideration will carry out the intent of the legislature in giving to the territory of Kootenai county and the electors thereof substantially equal representation with the other counties of the state, and will not disfranchise any considerable number of the electors of the state or deprive any county of its just representation in the legislature. (State v. Van Camp, *58836 Neb. 9, 91, 54 N. W. 113; Sutherland on Statutory Construction, sec. 366.)
To adopt the contention of counsel for plaintiff in case the legislature had constitutionally created other new counties, and by said apportionment act had given them senatorial and legislative representation, then for this court to hold said apportionment act unconstitutional, would have deprived such new county of all representation whatever, except such as is given it by the constitution, to wit, one representative. When the intent of the legislature is as obvious as it is in the case at bar, to wit, that the people and territory included within the boundaries of Kootenai county should have four representatives, and it is also clear from said act that it was the intention to award to each county one senator, the court is fully justified in construing the act to that effect and holding that Kootenai county is entitled to one senator and four representatives. The court, therefore, concludes that said apportionment act is valid and that Kootenai county is entitled to one senator and four representatives, and no more, and that the election proclamation of the governor should carry out said apportionment act as herein construed, and it is so held. No costs are awarded in this case.
Stockslager, C. J., and Ailshie, J., concur.