concurring. Whether the first paragraph of Section 1 and Sections 6 and 11 of Article XI of the Ohio Constitution are still valid depends upon a determination of whether the people would have adopted the first paragraph of Section 1 and Sections 6 and 11 if they had known that the other provisions of Article XI would be invalid.
The problem is analogous to that existing where a severable part of a statute has been declared unconstitutional. See 16 American Jurisprudence 2d 409 et seq, Section 181 et seq, 10 Ohio Jurisprudence 2d 263 et seq, Section 184 et seq.
The first paragraph of Section 1 and Section 6 merely establish the size of each House of the General Assembly and require its apportionment every ten years. In my opinion, the people would almost certainly have adopted that part of Article XI even if they had known that the remainder of that article would be invalid.
Whether the people would also have adopted Section 11 is not quite so clear. Under that section, the Governor, Auditor, and Secretary of State (herein for convenience referred to as the Apportionment Board) are “at each decennial period” to “ascertain and determine the ratio of representation, accord*105ing to the decennial census, the number of Eepresentatives and Senators each county or district shall be entitled to elect * * * within the next ensuing ten years, and the G-overnor shall causé the same to be published * *
Section 1 requires “the apportionment of this state for members of the General Assembly * * * every ten years.”
Standing alone, the first paragraph of Section 1 and Sections 6 and 11 of Article XI are, in my opinion, sufficient to support what the Apportionment Board did in September 1965 in formulating and adopting an apportionment for the General Assembly for the decennium ending in 1972.
However, when adopted by the people in 1851*, these provisions were adopted with other provisions that have now been held to be invalid by the federal courts and which so specified how the apportionment was to be made that the Apportionment Board’s action could be fairly described as self-operating and automatic.
It is reasonably arguable that the people would never have intended the Apportionment Board to have the power to apportion the General Assembly if they had known that their specifications for apportionment would be invalid.
On the other hand, quotations from the constitutional debates clearly indicate that a dominant purpose for Article XI was to take from the General Assembly the legislative power to apportion itself.
The convention recognized that the problem of legislative apportionment presented an almost impossible project for a many-member legislative body, especially where its own apportionment was involved. Subsequent history has confirmed this, even where self-apportionment was not involved. For example, the General Assembly of Ohio was unable to agree on an apportionment of Ohio for Congressional elections for 38 years after 1913, notwithstanding the great variations that developed in the population of districts and the right of Ohio to more Congressmen than there were districts for their election.
The convention undoubtedly concluded that it would be *106much easier for two of three elected state officials to agree upon a fair apportionment for the General Assembly than it would be for over a hundred legislators in two houses of that General Assembly to reach such an agreement.
This dominant purpose to take from the General Assembly any power to apportion itself can be satisfied if the validity of the first paragraph of Section 1 and of Sections 6 and 11 is sustained. If it is not, the General Assembly will again have the power to apportion itself that it had before 1851.
If the only purpose of the people in adopting Article XI had been to provide the self-operating and automatic apportionment system that they specified in the provisions of Article XI which have now been held unconstitutional, the people could have accomplished that purpose by imposing the same restrictions and specific duties on the General Assembly that were imposed on the Apportionment Board.
Furthermore, a very important purpose for those specifications for apportionment which were adopted in 1851 was to insure equality in representation. It is ironical that those specifications have been declared invalid by the federal courts because they do not accomplish that purpose. Hence, the Apportionment Board is now restricted by even more stringent requirements of providing equality of representation than those imposed upon it by the Constitution of 1851.
For the foregoing reasons, I am of the opinion that the people would have adopted the first paragraph of Section 1 and Sections 6 and 11 of Article XI of the Ohio Constitution even if they had known that the remaining portions of Article XI could not be valid.
In my opinion, the invalidity of the so-called Hanna Amendment and of the last paragraph of Section 1 of Article XI would provide no basis whatever for declaring any remaining portions of Article XI invalid.