The relators have filed a petition in this court in which they pray that a writ of mandamus issue out of this court directed to the defendant commanding him as Secretary of State in notifying the boards of county commissioners of the various counties of the state what public officers are to be elected at the next general election to be held in the present year, to insert in such notice the number of senators and representatives for each county as specified in the legislative apportionment found in the constitution- of the state, and to disregard the number of senators and representatives specified in the apportionment acts respectively of *5001907, 1901 and 1893, unless in the meantime a session of the legislature shall be called for the purpose of enacting a valid and constitutional apportionment act. An alternative writ of mandamus has been issued and the matter has been heard upon a demurrer to the petition and alternative writ which was filed by the attorney general representing the respondent. The petition for the writ is presented in the name of the state on the relation of Patrick Sullivan and John T. Williams, who are citizens of the United States, the former being a resident, elector and citizen of the County of Natrona and the latter a resident, elector and citizen of the County of Converse; and they allege that they present the petition on behalf of themselves and all the citizens of their respective counties and of the state.
The petition assails the apportionment act approved February 19, 1907, apportioning among the different counties of the state, senators and representatives, as unconstitutional and void for the alleged reasons that the apportionment was not made upon the enumeration of the number of inhabitants of the state made in 1905, and according to ratios fixed by law as required by the constitution, and that the two preceding apportionment acts made in 1901 and 1893 are each unconstitutional for the latter reason, leaving the only valid apportionment of senators and representatives in force in the state that made by the constitution at the time of its adoption, and which was to remain in force and effect until otherwise provided' by law. It is charged by the petition that the apportionment made by each act does not conform to a ratio fixed by law, and that the senators and and representatives were not by said acts divided among the counties according to the number of inhabitants, and that the apportionment made by each act is unequal, and gives undue representation to certain counties, leaving others .'insufficiently represented.
Before proceeding with the other allegations of the petition and the statement of the claims of the respective parties, the constitutional provisions with reference to election *501and apportionment of senators and representatives in so far as applicable to the question here involved will be stated. They appear in Art. Ill, and are respectively as follows :
Sec. 2. “Senators shall be elected for the term of four (4) years and representatives for the term of two (2) years. The senators elected at the first election shall be divided by lot into two classes as nearly equal as may be. The seats of senators of the first class shall be vacated at the expiration of- the first two years, and of the second class at the expiration of four years. No person shall be a senator who has not attained the age of twenty-five years, or a representative who has not attained the age of twenty-one years, and who is hot a citizen of the United States and of this state and who has not, for at least twelve months next preceding his election resided within the county or district in which he was elected.”
Sec. 3. “Each county shall constitute a senatorial and representative district; the senate and house of representatives shall be composed of members elected by the legal voters of the counties respectively, every two (2) years. They shall be apportioned among the said counties as nearly as may be according to the number of their inhabitants. Each county shall have at least one senator and one representative; but at no time shall the number of members of the house of representatives be less than twice nor greater than three times the number of members of the senate. The senate and house of representatives first elected in pursuance of this constitution shall consist of sixteen and thirty-three members respectively.”
Under the sub-title of Apportionment are the following sections, viz.:
Sec. 2. “The legislature shall provide by law for an enumeration of the inhabitants of the state in- the year 1895, and every tenth year thereafter, and at the session next following such enumeration, and' also at the session next following an enumeration made by the authority of *502the United States, shall revise and adjust the apportionment for senators and representatives, on a basis of such enumeration according to ratios to be fixed by law.”
Sec. 4. “Until an apportionment of senators and representatives as otherwise provided by law, they shall be divided among the several counties of the state in the following manner:
Albany county, two senators and five representatives.
Carbon county, two senators and five representatives.
Converse county, one senator and three representatives.
Crook county, one senator and two representatives.
Fremont county, one senator and two representatives.
Laramie county, three senators and six representatives.
Johnson county, one senator and two representatives.
Sheridan county, one senator and two representatives.
Sweetwater county, two senators and three representatives.
Uinta county, two senators and three representatives.
The relators’ complaint is directed mainly to the apportionment of the representatives. No ratio having been expressly fixed in the act of 1907 it is alleged that so much of the act of 1901 as fixed a ratio was continued in force and that the legislature was bound to follow it in the matter of the apportionment in the act of 1907. The act of 1901 provided that each organized county should be represented in the legislature by one senator and one representative regardless of the population of such county and in addition .thereto should have one senator for every six thousand inhabitants and one senator for every fraction over 3,500 inhabitants, and also one representative for every 2,250 inhabitants and one representative for every fraction over 2,000 inhabitants, in addition to the minimum allowance of one senator and one representative. Upon the assumption that the ratios so fixed in the act of 1901 should be applied to the apportionment under the act of 1907 it is alleged that Weston county with a population of 3,605 was given three representatives or one to which it was *503entitled and two on a major fraction; Crook county was given three representatives or two to which it was entitled and one on a minor fraction; that Uinta county was given four senators when it was only entitled to three, and that Laramie county was given ten representatives when it was only entitled to nine.
But little light is thrown upon the question here presented by the decisions of the courts of other states in- cases where the constitutionality of apportionment acts have been questioned. In each case the decision rests upon the construction of constitutional provisions which obtain in the jurisdiction where the question arose and which as a whole differ materially from those in our constitution. It therefore becomes necessary in reaching a conclusion to follow the specific provisions of our constitution giving to them that construction which was plainly intended, and preserving to the relators such rights if any to which they are entitled under the allegations of their petition.
It will be observed that the counties of Big Horn, Natrona and Weston are not named in the apportionment fixed in the constitution, as separate senatorial and representative districts, although for legislative purposes they were by the various acts under which they were created attached to and remained a part of the counties from which they were respectively taken and were so included -and formed a part of the districts established in that apportionment. They are however mentioned as separate districts in- the different apportionment acts assailed. It therefore becomes a necessary and a material inquiry to determine their status and the effect which an election held under the apportionment fixed in the constitution would have upon these counties and the people residing within their limits.
It is admitted by the respondent in argument that the apportionment acts of 1893 and 1901 are each unconstitutional, but it is urged that the same infirmity does not exist as to the act of 1907. Such admission is one of law and this court is not bound by it. It requires a judicial deter*504mination of a court of competent jurisdiction to effect the^ validity of a statute on such ground. The question of the ^ constitutionality of a statute is a judicial question and it is l not within the power of parties litigant to admit or stipu- j late as to their invalidity.
In the two former acts a ratio was fixed and expressed in each/but in either act it appears upon the face of the petition that the legislature disregarded such ratio in making the apportionment. It further appears that in both acts the number of senators and representatives to which each organized county was entitled under the constitution was not taken into consideration upon the ratio, but that the latter applied only to those which were allowed in addition thereto. In other words a part only of the apportionment was based upon a ratio. In each act; however, and including the act of 1907, it is provided that each organized county in the state of Wyoming shall constitute a separate senatorial and representative district for the election of senators and representatives. Natrona and Weston counties were so recognized in the act of 1893, and it was further provided in that act that Big Horn when organized should be entitled. to one senator and one representative. Without, therefore, discussing further the question as to the unconstitutionality of the apportionment acts of 1893 and 1901 as a whole, we take it that if conceded as being unconstitutional in the matter of apportionment of senators and representatives, they and the act of 1907 as well, constitute a legislative recognition of the organization and a declaration of the right to representation in the legislature of the counties of Natrona and Weston, and of Big Horn when organized, as separate senatorial and representative districts, although they were not established as such in the apportionment made in the constitution. (Sec. 4, Sub-title Apportionment, supra.)
Section 1 of the act of 1893 is as follows: “Each organized county shall constitute a separate senatorial and representative district for the election of senators and representa*505tives.” Section 1 of the act of 1901 is identical in language, as is also the first part of Section 1 of the act of 1907; and in each act the counties of Natrona and Weston are named, and in the last two the county of Big Horn is also named, as constituting such districts.
The constitution 5was adopted and ratified by the people at an election held for 'that purpose on the first Tuesday in November, A. D. 1889. (Section 7, Art. XXI of the constitution, and the act of congress admitting Wyoming as a state of the union.) On July 10, .1890, the act of admission was approved and the constitution went into effect. (Commissioners of the county of Fremont v. Perkins, 5 Wyo., 166, 170.) Between the time of the adoption of the constitution and the admission of the state the county of Weston was created and organized pursuant to Chap. 47, S. L,. 1890, approved March 12, 1890, its officers having qualified on May 16, 1890. By Sec. 61, Chap. 90, S. L. 1888, Natrona county was created as an unorganized county with authority to organize upon the petition o'f 300 electors resident therein, in pursuance of the sections of that act, and did so become fully organized on April 12, 1890, when its officers qualified. The county of Big Horn was created and the manner of its organization prescribed by Chap. 48, S. L. 1890, which was approved March 12, 1890, but its right to so organize was ppstponed by Sec. 2 of the act until after February 1, 1892,. Neither of these counties was represented in the first legislature which convened on November 12, 1890, as separate senatorial and representative districts, nor as such in the second state legislature which convened on January 10, 1893. At the time the constitution went into effect, viz.; July 10, 1890, Natrona and Weston were organized and Big- Horn was unorganized; but for legislative pur-posés each continued to be part of the county or counties from which they were taken, as provided by the act or acts under which they were created, and as such they were merged in, and though not separately named constituted a part of, the senatorial and representative districts as estab*506lished by the constitution until the third state legislature which convened on January 8, 1895, when each of them was represented as separate senatorial and representative districts, the county of Big Horn having been organized in the meantime, and all having been declared to be and constituted under the apportionment act of 1893 such districts and entitled to representation. Sec. 18, Art. XXI of the constitution, being the schedule, is as follows: “Senators and members of the house of representatives shall be chosen by the qualified electors of the several senatorial and repre-senative districts as established in this constitution, until such districts shall be changed by law, and thereafter by the qualified electors of the several districts as the same shall be established by law.” It is apparent that the mem-of the legislature were so chosen until after the act of 1893 which had reference to the election of members for the legislature which convened on January 8, 1895.
Aside from the fact that judicial notice will be taken of the organization of these political subdivisions of the state the legislature has recognized them as such and has by the various acts of apportionment which are here assailed constituted them senatorial and representative districts. The title of each act is as follaws: “An act fixing the state senatorial and representative districts and determining the legislative representation thereof.” These are cognate subjects and germane to the subject of apportionment, and being followed in the act by a declaration as to what shall constitute such senatorial and representative districts clearly show the legislative intent to establish the districts thus defined. It cannot be said to be a mere re-declaration of the constitutional provision and limited to the districts existing at the time that instrument went into effect, for it was within the contemplation of the constitution that the legislature should create and establish new districts as occasion required, and further it was contemplated that each organized county should constitute such district. Such counties could be declared as such by a separate act unac*507companied by any general apportionment, and when so constituted they would each be a territorial unit and entitled under, any general apportionment act thereafter enacted to at least the minimum representation fixed under Sec. 3, Art. Ill of the constitution as above quoted. We think therefore under the well established rule of construction that so much of the various apportionment acts as fixes and establishes the senatorial and representative districts is sev-erable from the balance of the acts and might stand, whatever constitutional infirmity ma)'- exist as to the remaining portions of the acts. (Cooley, Constitutional Limitations, page 209; Sec. 297, Sutherland Stat. Constr.) The last author says at Sec. 130, id.: “It is germane to the subject of an acf to repeal previous acts relating to it or inconsistent with it. Such repeal is ancillary to the purpose of the new legislation.” See cases cited in the foot notes. The legislature was expressly authorized by Sec. 7, Art. XXI to establish new legislative districts, and in pursuance of that power the legislature did so. It necessarily follows that even though the counties of Big Horn, Natrona and Weston were not separate senatorial and representative districts at the time the constitution went into effect, and were not recognized as such in the constitution, yet they are such at the present time and are and were entitled to have their representation fixed and taken into consideration in any apportionment of senators and representatives. This is conceded by relators in their petition in so far as Natrona and Weston are concerned. It is not alleged that they were entitled to no representation but on the contrary it is alleged that each was entitled to two representatives, notwithstanding which it is sought to have this court issue its writ which would in effect deprive them of any and all right of representation to which they are now entitled as separate senatorial and representative districts. If entitled to representation as alleged they constitute legislative territorial units under the provisions of the constitution. The conceding of the right to two representatives from each of those counties *508by the allegations of the petition is inconsistent with and negatives the right of relators to have them deprived of separate representation as such districts.
The issue as to the existence of Big Horn county as a separate senatorial and representative district is not tendered nor is its right to represenation in the legislature questioned except in the manner in which it would be affected by compelling an election to be held under the apportionment fixed in the constitution. We think upon the theory of relators’ case as disclosed by their petition and the argument and brief thereon that they must be held to concede that these counties are now separate senatorial and representative districts and as such are entitled to representation in the legislature and that such right must be recognized under any apportionment act. The petition attacks the apportionment act as a whole upon grounds which do not involve the question of their existence or right as such districts to separate legislative representation. In all the computations made by relators in their petition and brief' in attempting to show the injustice and inequality of the apportionment acts complained of, these counties are recognized and taken into consideration with all the' other counties of the state as constituting separate districts for legislative purposes. Aside, however, from the rule that relators should be held bound by their theory and its logical sequence we are nevertheless compelled to the conclusion that these counties were constituted and have continued to be such districts by reason and in pursuance of legislative enactments ever since the apportionment act of 1893 and the organization of Big Horn and the admission of their senators and representatives elected under such act to seats in the third state legislature which convened on January 8, 1895.
By the act of 1907 the number of senators was fixed at twenty-seven and the number of representatives was fixed at fifty-six. It is thus seen that the relative number in membership of the senate and the house of representatives is within the constitutional provision and that the act is not objectionable on that ground.
*509It is urged that as no ratio was expressed in the act of 1907 that the ratio fixed in the -act of 1901 was continued in force and should have been applied and followed in the former act. The act of 1907 after fixing the apportionment provides that all acts or parts of acts inconsistent therewith are repealed. It is contended that the apportionment must have been based upon such ratio in order to be valid but that as the legislature failed to follow it in the last act that it is. for that reason invalid. It is contended by the respondent that that ratio was not the basis of the apportionment. The population of the state as determined by authority of law is a matter of legislative as well as judicial knowledge. The petition sets out the enumeration of the inhabitants of each county, and the total population of the state as shown by the state census of 1905. The number of members of the lower house and the number of members of the upper house of the legislature is fixed by the act. While the ratio is not in express words, and it would probably be better to have so expressed it, we should hesitate to hold such a bill unconstitutional upon that ground alone if it is apparent on its face that the legislature was guided by a ratio, and what such ratio was. In the absence of any expressed ratios the ratios are of course the number of inhabitants of the state divided by the number of senators, and such number divided by the number of representatives. It is a matter of easy calculation and when departed from is easily detected. Applying this rule we find that under the apportionment act of 1907, as each organized county constituted a separate senatorial and representative district, each of such districts was, inclusive of such minimum representation so fixed by the constitution, entitled to one senator for each unit of 3,771 inhabitants, and one representative for each unit of 1,818 inhabitants, and these ratios should have been so applied that each of such districts, even though its population were dess than these units, should have such minimum representation. The apportionment made by the act of iqoi is, as alleged, inconsistent with *510these ratios and as the act of 1907 is of a later date and based upon a later census enumeration, it necessarily follows from such inconsistency that such ratios were repealed by the last act.
It is contended b}r the respondent that the inequalities and defects alleged with reference to the apportionment in the act of 1907 were made within the legislative discretion, while it is argued by the relators that they constitute a clear and palpable violation of the constitution. These questions have been ably discussed by the attorneys who appear in this case.
We are not required' to go into the question of how far the constitution has lodged discretion in the legislature when it provides that the apportionment must be made as near as may be upon a basis of the number of inhabitants of the county, nor in fixing a ratio, nor as to how far their discretion extends in fixing the number of the members of the house and senate so long as the proportionate membership fixed by the constitution is carried out, for we are met by an obstacle which confronts us upon the threshold of this case which renders it unnecessary to do so.
Sec. 2, Art. Ill, supra, fixes the term of the senators at 4 years, and that of representatives at 2 years, and provides that the senators elected at the first election shall be divided by lot into two classes as nearly equal as may be, those of the first class to serve two years and those of the second class to serve four years. This court takes judicial notice of the membership of the legislature and the terms of the senators as the senate is now constituted and the journal of either branch of the legislature, in so far as it is germane to and bears upon the question here involved.
At the first state election the senators as provided in section 4, sub-title Apportionment, supra, numbered 16 in all and the membership of the house of representatives was fixed at 33, and were to be elected from the districts as therein provided. The term of the senators was fixed by lot as provided in Sec. 2, Art.'Ill, supra. Neither Big *511Horn, Natrona nor Weston counties were mentioned m that apportionment, but constituted parts of the counties therein named for legislative purposes; they have, since the framing and adoption of the constitution, been organized and as already stated now constitute separate senatorial and representative districts, and as such are now entitled to representation and have respectively been represented in both branches of the legislature since 1895. The classification of the senators and fixing of the long and short term by the first state legislature in accordance with the constitutional provision and following the rule therein prescribed together with the increase of membership of both houses as provided from time to time, whether such senators were elected under a constitutional or unconstitutional apportionment has brought about the condition that there are now 13 senators whose term of office does not expire until the first Monday in January, A. D. 1911. One of these senators is from Weston county, which is not entitled to-any representation as a separate senatorial and representative district under the apportionment fixed in the constitution and under which the' relators seek to have this court direct the election to be held. Under the constitutional apportionment the number of senators, as already stated, was fixed at 16, and were divided among the several counties of the state as provided in Sec. 4, Sub-title Apportionment, supra, and to be elected from the several senatorial and representative districts as there established. (Sec. 18, Art. XXI, Schedule.) If, by any possibility, this court had the power to interfere with and exclude the senator from Weston county from his seat in the senate, then under the contention of relators there would be 4 senators to elect at the ensuing election and 33 representatives.
It was clearly the intention as gathered from the constitution that one-half of the senators should hold over, and that the holdover senators should be taken into consideration in whatever apportionment act that should thereafter be passed by the legislature. (Sec. 2, supra.) It is *512equally apparent that this provision. of the constitution would be distorted'and practically disregarded if the relief here sought were granted, for it would • result in a senate consisting of 12 holdover senators and 4 to be elected for a full term. As to when or under what conditions this matter would right itself may perhaps be a question of minor importance, and it may be that it is a condition that was not foreseen b}r the framers of the constitution, yet it is purely a matter of speculation as to when, if ever, the constitutional proportion would or could be re-established. If the senator from Weston county be included, then the election of four senators under the apportionment found in the constitution would make the number of senators 17, whereas the election of representatives from certain districts named is limited to 33. We would thus have an unconstitutional legislature, for it is expressly provided that in no case shall the number of representatives be less than twice nor more than three times the number of senators. (Sec. 3, Art. III, supra.)
It will be observed that each senatorial and representative district is a territorial unit. It can not be a senatorial and at the same time not a representative district.
If the constitution were susceptible to the construction that the county of Big Horn upon its organization, and the counties of Natrona and Weston upon the admission of the state, became legislative' districts, and as such, without further legislative enactment entitled to the representation of one senator and one representative and that such senators and representatives should be considered as supplementary to the apportionment as made in that instrument, then, as it necessarily follows that no greater representation could be allowed in the absence of legislative enactment, it would be necessary to add the total of the minimum representation from these counties, or 3 senators- and 3 representatives to the numbers respectively allowed in such apportionment, which would make 19 senators and 36 representatives. Upon the facts alleged, Natrona, and *513Weston counties were each entitled to one senator and one representative, and adding two senators and two representatives to the numbers respectively as fixed in that apportionment, there would be 18 senators and . 35 representatives. It is only necessary to state the propositions and the resulting proportions as to membership of the senate and house to show the incorrectness of such reasoning, for a legislature so constituted would also violate the constitutional requirement that the number of representatives shall not be less than twice nor more than three times the number of senators.
The apportionment found in the constitution was based upon the number of votes cast at the election preceding the framing of that instrument. It was intended by the convention to apply only to the first state election. It was so stated in the debates and proceedings of the convention and it was further expected that the first state legislature would pass an apportionment act based on the provisions and requirements of the constitution. It was intended to be temporary in its application and was applicable to the conditions existing at that time. It does not partake of that fixed and enduring character of other constitutional provisions which never yield to legislative enactment; nor can it at any time, be applied so as to disturb conditions which are the legitimate outgrowth of such other provisions and which are permanent in their nature. Such inapplicability does not arise from the infirmity of the apportionment acts complained of, but from fixed conditions with reference to legislative representation which exist at the present time, and which are the outgrowth of other constitutional provisions. It does not follow that a valid legislative enactment is necessary to render this apportionment inapplicable. It may be so rendered by the operation of other constitutional provisions under which the legislative department of the government has been organized and established and out of which conditions have arisen which render it inapplicable without violating the spirit and express provisions of the *514constitution. This question was not involved in any of the numerous cases cited in relators’ brief. To review those cases and quote the constitutional provisions under which they arose and attempt to differentiate between those cases and the one before us would only result in a prolixity of words and obscure the meaning and ground upon which we have reached our conclusions. It may, however, be said that in all of those cases the courts have uniformly declined to interfere and declare an apportionment act unconstitutional when there was no prior or antecedent valid apportionment act to fall back to. ■ This rule is well understood by the attorney for relators,, for he has based his case and argument upon the theory as contended by him that there has been no valid apportionment act passed by the legislature since the state was admitted, and that being so, he claims that the apportionment fixed in the constitution is in force and that the ensuing election must be held thereunder.
It may be conceded, for the purposes of this discussion, that the present legislature was elected under an inequitable apportionment act, and it may be further conceded that there has not been a fair apportionment act passed since the constitution went into effect, but that does not render the legislature so elected under such apportionment act illegal nor authorize or empower this court to inquire into the qualification or right of any one to his seat therein. Such right cannot be questioned in the courts. (People ex rel. Sherwood v. State board of Canvassers, 129 N. Y., 360; 29 N. E. 345; 14 L. R. A. 646; 10 Cent. Dig., 127, Tit. Const. Law.) The last and final arbiter of such question is the legislature itself and each house is the sole and exclusive judge of the election and qualification of its own members. Such determination is so far judicial in its nature as to make one so admitted a member not only de facto, but de jure also. In speaking upon a similar question where an apportionment act was assailed' as being unconstituional, the Court of Appeals of New York say: “As already said, the senate *515and assembly elected under the apportionment act and actually assembled, constitute in any respect a de facto legislature. As a de facto body each house has, under the constitution, not only the exclusive power, but the exclusive right, to judge the title of any of its members to a seat therein. Whoever either house receives as its legally elected member and entitled to a seat becomes thereby a de jure member of that house, even though the courts, were such a question triable before them, might be of a different opinion. It follows, therefore, that not only is the present legislature a valid legislature, but that each member thereof, so long as the particular house to which he belongs does not oust him, is to all the world not only a de facto, but a de jure, member, and he is entitled to all the privileges of a member * * (In re Sherrill, 81 N. E., 124, 133, 134.) The same principle was recognized by this court in State ex rel. Bennett v. Barber et al, 4 Wyo., 56. That was a proceeding in mandamus to require the state board of canvassers to canvass certain-returns of the votes cast for the relators for members of the house of representatives from Carbon county at the election held on Tuesday, November 8, 1892. It was there urged upon demurrer to the petition and alternative writ that the court was without jurisdiction to grant the writ because of the constitutional and statutory provision to the effect that each house shall judge of the election, returns and qualification of its own members. The late Justice Cona-way, speaking for the court, at page 71, said: “In such cases, the courts are not the last or the principal bulwark of the rights of the people in choosing' their representatives. The final and plenary jurisdiction, upon which the people must rely in the last resort in such cases is that of the house of representatives itself. Arid courts will not entertain the idea that other -tribunals, in which the constitution and the laws have vested some small portion of judicial power', will not exercise such power with ás' rnuch. wisdom and justice as could the courts.”
*516We think from the foregoing statement of the law that there is an entire absence of power in this court to question the right of any member of the legislature as now constituted to his seat therein or of any holdover senator to his seat in the legislature to be convened on the second Tuesday in January, 1909, nor have we the power by any ruling in this case to oust such senator from his right thereto. The senator from Weston county must, -therefore, be treated as such de jure for the full term for which he was elected and qualified, and any apportionment made or election held must be with the view that he and the other holdover senators. will be members of and entitled to a seat in the senate to be organized on the second Tuesday in January, 1909, and that their right to seats therein is, and will be independent of any intervening election.
What is here said with reference to the senator from Weston county is equally applicable to the senator from Crook county.
It will be observed that the senatorial and representative district of Crook county as established in the constitution included the territory embraced within the boundaries of' Weston county as provided in the act creating the latter, .and as such district it was entitled to a representation of one senator and two representatives. The senator from Crook county is also a holdov.Sr senator, he having qualified as such on January 8, 1907, and his term does not expire until the first Tuesday in January, 1911. To fall back to the constitutional apportionment means also to fall back to the legislative districts as therein established and those counties would be entitled to but one senator, whereas, they now have two holdover senators whose right to hold their seat is a question which has been passed upon by the legislature itself,' and- as already stated, its judgment and action thereon is conclusive upon this court. It is difficult to understand how in view of the present unyielding conditions the apportionment made in the constitution can be applied and its integrity and that of the *517constitutional provision, with reference to the relative membership of the senate and house of representatives, be preserved. With two senators from a district which was only entitled to one under that apportionment, then to keep down the number of senators to sixteen as therein prescribed, some other district as established'therein must be deprived of a senator to which it was entitled, a proceeding that would not be any more within the power of this court than to deprive either Crook or Weston of its senator. Giving the other districts under that apportionment the right of representation as there fixed, and to which they would be entitled, then it necessarily follows that one of those districts having a double senatorial representation the number of senators who would be entitled to seats in the next legislature would be 17, or one more than the apportionment provided for and the number of representatives .would at the same time be less than twice that number.
The senatorial and representative district of the county of Carbon as established by the constitution in connection with the act creating and prescribing the method of the organization of Natrona county included for the purposes of representation in the legislature the territory embraced within the boundaries of the latter. Under the apportionment, Sec. 4, Sub-title Apportionment, supra, this district was given two senators. Carbon county alone, and ever since the creation of Natrona into a separate legislative district, has itself elected its senators and representatives. At the general election held' in 1906, it elected two senators for a term of four years each, commencing on the 8th day of January, 1907, and ending on the second Tuesday in January, 1911, and each duly qualified for such term and they will be entitled to their seats in the next legisla- * ture which convenes on the second Tuesday in January, 1909. They were not elected by the people of Natrona county,-for that county and its people had no voice in their election. To apply the apportionment as fixed in the con*518stitution would not only deny Natrona the right to elect a senator, but compel it to submit to representation in the senate by non-residents of that county ánd who were elected solely by the inhabitants of another county and in whose election the inhabitants of Natrona county had no voice whatever. Such senators were not elected from the districts as established in the constitution but by the inhabitants of a part only of such district, and yet this court would be without power to dispossess said senators of their office.
. The legislative districts of Fremont, Johnson and Sheridan as established in the constitution were each entitled to one senator and two representatives. As such they each included a part' of the territory now embraced within the limits of Big Horn. Since the organization of Big Horn county the territory included therein has been detached from the counties from which it was taken. The senatorial districts of Sheridan and Johnson' each have a senator who was elected at the general election in 1906, and who has duly qualified and whose term as such does not expire until the second Tuesday in Janüary, 1911, and each is entitled to his seat in the senate which is to assemble and organize on the second Tuesday in January, 1909. It is apparent that the same condition exists as to the people of this county that, exists as to the people of Natrona. They, by an election held under the apportionment and from the districts as made and established in the constitution, would be denied the right to elect a senator as a separate senatorial and representative district and would be compelled to submit to representation by non-residents of the county and in whose election they had no voice and who also were not elected from the districts as established in the constitution, but by the inhabitants of a part only of such districts.
The writ of mandamus is referred to in the text books and the decisions as a writ of right. The nature of the writ should not be confounded with the right to have it *519issue. It will only issue in the sound discretion of the court. (People v. Olson, 215 Ill., 620, 622; 33 Cent. Dig., 5 Col. 2053.) Such discretion means only that the question as to whether the writ ought to issue depends upon the result of a judicial examination of the facts either as alleged or in proof. Such facts or proof must show at least a clear legal right in the relators and that mandamus is the proper remedy. The relators must show a clear legal right to which they are entitled and which is withheld or threatened to be withheld from them, and that it is the legal obligation pr duty of the respondent to perform the act sought to be coerced and that the performance of such act can only be secured through and by means of the writ-.
It is said by some of the authorities that if a legal right is withheld from the relators the consequences of securing such right through the issuance of the writ ought not to be considered. The courts are not in harmony on this question, but seem to have been governed by the facts in each particular case, so that each case stands practically upon its own footing. The determination of the question in each case necessarily involves the question of the right sought to be secured and the effectiveness of the remedy for that purpose. There is an underlying principle in all the cases that if mandamus be not the proper remedy or would be ineffectual to secure the right sought then it should not issue for in such case it would be of no benefit. It is also fundamental that the legal right to the issuance of the writ never exists to coerce the performance of an illegal act, and that question must be determined upon the facts and conditions existing at the time the application for the writ is made and in determining that question the courts may and should take judicial notice of those conditions which are germane and exist as to a co-ordinate branch of the government and which are the legitimate outgrowth of constitutional provisions. In Spelling, Injunctions and Extraordinary Remedies, (2nd Ed.) at *520Sec. 1,378, it is said: “It would be idle to discuss the question whether any court has power by any manner of process to compel the performance of an act violative of existing statutes.” In People v. State Board of Canvassers, 129 N. Y. 360, 29 N. E. 345, 14 L. R. A. 645, it is held that the writ will never issue to accomplish the violation of a constiutional provision. In 26 Cyc., at page 150, it is said: “When it appears that the act sought to be coerced would be unauthorized by law, * * * the writ will be denied.” -The text is supported by an abundance of authorities cited in the foot notes. Nor will mandamus issue to command an officer to do that which he could not lawfully do without such mandate. (26 Cyc., 166; Rosenthal v. State Board of Canvassers, 50 Kan., 129, 32 Pac., 129, 19 L. R. A., 157; Clark v. Buchanan et al, 2 Minn., 346 (Gil. 298.) In State ex rel. v. County Commissioners, 75 N. W., 579, the Supreme Court of ■ Nebraska say that “the remedy by mandamus must rest upon the legal rights of the relator, upon one hand, and upon the legal obligations and duties of the respondent, upon the other hand. It cannot be predicated solely upon the equities existing between the parties.” To the same effect is Davis v. Miller Signal Co., 105 Ill. App. 657, 661.
The counties of Big Horn, Natrona and Weston, not being organized at the time the constitution was framed and adopted, constituted a part of and were embraced in the districts established by the apportionment fixed in the constitution. They have since been organized, the ’ former after the state was admitted and the two latter prior thereto, and as already stated, have been by legislative enactment constituted and are now separate senatorial and representative districts, and as such each is entitled to representation in both branches of the legislature. They have become such districts in pursuance of law, and having been so created they cannot as such be here questioned. The section of the constitution fixing the apportionment says that until otherwise provided by law the senators and represen*521tatives shall be divided among the several counties of the state as therein provided. These counties were not established as separate senatorial and representative districts in that section, but their rights have matured under other constitutional provisions. To issue a call for an election under that section of the contsitution would necessarily exclude them from the call as separate districts and deprive them of their present constitutional right to elect their senators and representatives. The provisions of the constitution with reference to the apportionment then made are mandatory; they are exclusive as well as inclusive. .They include counties therein named, and established as separate senatorial and representative districts, and by all rules of construction exclude districts not so established. Although the counties of Big Horn, Natrona and Weston formed a part of such districts they now constitute separate districts in themselves. The writ here sought could only apply to the districts there named and as then constituted, and must as measured by the relief sought be limited to those districts. It is not pointed out how or by what authority the respondent under that apportionment could notify the commissioners of Big Horn, Natrona or. Weston counties of the number of senators and representatives either was entitled to elect as a separate legislative district.
Under and by all rules of construction they must be held to be excluded from and disregarded in the apportionment fixed in the constitution, as separate senatorial and representative districts, and if the writ issue as here prayed the respondent must- notify the commissioners of every organized county in the state embraced in the districts then established, and no other, of .the number of senators and representatives to be elected or voted for in the respective counties so notified. He would be required and limited by the writ to notify those counties alone and thus ignore and withhold any notice to the counties of Big Horn, Nat-rona and Weston as separate senatorial and representative districts. Further, as already stated, an election in pur*522suance of that apportionment could not affect the title of either the senator from Weston county or the senator from Crook county to his seat in the legislature, and we would then have seventeen senators and thirty-three representatives, which would be an unconstitutional legislature.
This court has no power to apportion the number of senators and representatives. It could not force upon the people of the state an- illegal apportionment act. It can only pass upon the questions presented. It has no power to compel the respondent to do an act which is unlawful and it is clear that he has no autohrity to issue notices of an election which ‘if- held as prayed by the relators would confer no right upon the persons elected in pursuance thereof to organize as a valid and constitutional legislature. Nor is this court authorized to compel him by its writ to do so. It would be lending the power of the court to the violation of constitutional and vested rights, to partially disfranchise three of the counties of the state, to in effect declare by its allowance a vacancy in the office of either the senator from Weston county or the senator from Crook county, or to require the respondent to issue notices of an election for senators and representatives so that the latter are less in number than twice the number of those who are entitled to a seat in the senate, and which would be a legislature which is unauthorized by the constitution.
In order to entitle the relators to the writ it is incumbent upon them to show a prior valid apportionment to fall back to. This proposition is substantiated by the following cases cit'ed in their brief: Giddings, Relator v. Blacker, Secy. of State, 93 Mich., 1, 16 L. R. A., 402; Board of Supervisors v. Blacker, 92 Mich., 638, 16 L. R. A., 432; People ex rel. Carter v. Rice, People ex rel. Pond v. Supervisors, Horn v. Board of Supervisors, 135 N. Y., 473; 16 L. R. A., 836; Parker v. State ex rel. Powell, 132 Ind., 419, 32 N. E. 836; 18 L. R. A., 567; State v. Wrightson, County Clerk, 56 N. J. 126, 22 L. R. A., 548; Denny, Clerk, v. State ex rel. Basler, 144 Ind., 503, 31 L. R. A., 726; People ex rel. *523Woodyat v. Thompson, County Clerk, 155 Ill., 451; State ex rel. Attorney General v. Cunningham, Secy. of State, 15 L. R. A., 568; State ex rel. Lamb v. Cunningham, Secy. of State, 83 Wisconsin, 90; 17 L. R. A., 145. This rule we think is equally applicable to an apportionment made by the constitution which was intended to be temporary in its nature and which has not been directly superseded or displaced by legislative enactments alone but which has been rendered inapplicable to conditions which now exist and which are the outgrowth of the establishment and organization of the legislative department of the government along lines and rules prescribed by other constitutional provisions. Upon the facts alleged the apportionment acts of 1901 and 1893 possess the same infirmity as the act of 1907 and as we have seen the apportionment fixed in the constitution has been rendered inapplicable to the legislative department as now constituted under other provisions of that instrument.
Upon principle and authority as to that branch of the case it is clear that the relators are not, upon the allegations of their petition, entitled to the writ, and that being so this court is not called upon nor is it necessary to decide the constitutionality of the apportionment act of 1907. The relators have no standing to ask this court to decide that question as a mere abstract question of law. (North v. Trustees &c., 137 Ill., 296; People v. Olson, 215 Ill., 620; Kennealy v. City of Chicago, 220 Ill., 485, 505.) They must show that a legal right to which they are entitled is withheld from them, that is to say, they must show a prior apportionment under which the election of a valid and constitutional legislature can be held, that they are entitled to but are denied the right to elect their proportionate membership of a legislature under such prior apportionment; that it is within the power and that it is the legal duty of the party against whom the remedy is sought to perform the act which will secure them that right and that they are entitled to the writ to compel the performance of such act. *524As already stated they are not in a position to invoke the extraordinary powers of this court when the effect of the issuance of the writ would be violathe of either the statutory or fundamental law of the state, no matter how much they may deem themselves injured or how inequitable or unjust the apportionment act of which' they complain may be. The wrongs alleged cannot be corrected by mandamus upon their case as made in the petition, without disregarding express contsitutional provisions and rights which have matured thereunder, the disregarding of which bjr this court would in any event be as violative of constitutional provisions as the legislative enactments of which they complain.
The demurrer will be sustained, and should there be no further pleadings filed, the writ will be denied.
Beard, J., concurs. Potter, C. J., concurs in a separate opinion.