The other Justices concurred with Long, J.
Morse, C. J.The main question involved in this controversy is the right of the Legislature to dismember a county in the formation of representative districts. It is argued that there is no express prohibition in the Constitution against the division of a county, as was done in the apportionment of 1891, and attaching a portion of it to other counties to form a representative district. But such prohibition is plainly implied when the provisions in relation to Representatives in the Legislature are taken as a whole, and considered together, as 'they must be, in construing their meaning. It is very evident that it was not intended by the Constitution that counties should be divided unless entitled to two or more members, and then it is expressly provided that the division shall be made by the board of supervisors, at such time and place as the Legislature shall direct. The Constitution provides not only that each county thereafter organized shall be entitled to a separate Representative when it has attained a population equal to a moiety of the ratio of representation, but the schedule, which, from its reading, must be held to be in operation for all time, unless it shall be stricken out or amended, also provides that “ each county having a ratio of representation and a fraction over equal to a moiety of said ratio shall be entitled to two Representatives, and so on above that number, giving one additional member for each additional ratio.” These provisions negative the idea of dividing counties and joining parts of two or *649more counties, or a part of one county to another entire county, in order to get an equality of population in the districts. Here, as in the senatorial apportionment, the county is the chief factor. The provision that “each district shall contain, as nearly as may be, an equal number of inhabitants, exclusive of persons of Indian descent who are not civilized, or are members of any tribe, and shall consist of convenient and contiguous territory,” does not conflict with this main idea of representation by counties. The words “as nearly as may be” are capable of sufficient expansion to meet all difficulties that lie in the way. The number of inhabitants in each district is to be as equal as may be under a compliance with the other provisions of the Constitution, which compel a representation by counties. The Constitution does not look to a division of counties to obtain equality of population in the districts. For instance, if two counties adjoining contain, one of them a ratio, and a fraction over equal to a moiety of such ratio, and the other a population equal to a moiety of the ratio, the Constitution does not contemplate that the county having the excess over the ratio shall be divided, and enough of its territory added to the lesser county to make it equal a ratio, so that two districts shall be composed of the two counties in this way; but expressly provides that the larger county in population shall have two members, and the smaller county one, making three districts out of two ratios. If it had been intended that a county should be divided, and a part of its territory added to some other county, or a portion of some other county, in order to equalize more perfectly the population of the districts, these two provisions — one giving an additional Representative for a moiety, and the other one for a moiety when the population of the county did not reach the ratio — would not have been inserted in the *650Constitution. In fact, a county cannot be dismembered and carry out these two clauses of the Constitution.
In this case, Houghton county, under one of these-provisions, was entitled to two Representatives, and when a portion of it was detached and added to Keweenaw and Isle Royal counties, and the balance of the county given but one Representative, the clear provisions-of the Constitution were violated and ignored. It is plain to me that the framers of the Constitution intended that-the county, as well as the township, should be treated as a unit in the formation of representative districts, except when a county was entitled to more than one-Representative. In such case the Legislature cannot, divide. It must be done by the local legislature, the-board of supervisors.
It is contended by the Attorney General that the provision of the Constitution that no city shall be divided in the formation of such districts suggests that it was-contemplated that a county might be divided, because a city might be, as some villages now are in this State, situated in two counties; and that, if it be held that a-county cannot be dismembered under the Constitution, then the clause of that instrument which prohibits a. division of a city might be nullified. But a city — especially one not in existence at the time of the adoption of the Constitution — is the creature of the law, and has no-constitutional right of being. There was no city, at the time the present Constitution was adopted, situated in this way, and there has been none since. Nor can a city be created, embracing territory in more than one county, unless such city shall be made a county by itself, in view of the provisions relative to the apportionment of Representatives, without violating the plain intent of the Constitution. If, at the adoption of the Constitution, there had been a city thus situated, the contention of the *651Attorney General would have much force; but, as it is, it has none.
It is also claimed that the Constitution, in relation to the apportionment of Representatives, cannot always be carri.ed out in detail without violating some of its provisions. This is no doubt true, but it affords no argument in favor of the division of counties except in the cases provided by the Constitution. If one county can be dismembered, all of them can: and we might have, under the exercise of the legislative discretion, a representation ignoring counties altogether, and based solely upon the idea of equality of population. The schedule to the Constitution expressly provides that “every county, except Mackinaw and Chippewa, entitled to a Representative in the Legislature ” at the time of its adoption, shall continue to be so entitled. When it is attempted to carry out this provision, and to give each county organized since the Constitution was adopted one Representative for a moiety of the ratio, and also every county a member for each ratio and an additional member for a moiety of a ratio, and then limit the number of Representatives to 100, or any number which shall be the quotient of the division of the whole of the population of the State by the ratio, it will be found that it cannot always be done without denying to some county its constitutional right of representation. For instance, the ratio of representation at 100 members, under the census of 1890, is 20,938. Under this census and ratio, if the Constitution be followed in all of its provisions, the counties entitled to one or more Representatives under the moiety system use up 97 out of the 100 members, and there are still left 29 counties in the northern part of the State, with a population in round numbers of 137,000, out of which to carve three districts, each with a population of over 45,000, — more than double the ratio;. *652bo that two men would not have the representation in these districts that one would have in the others.
So far as I have examined, there has never been an apportionment but this difficulty has been encountered; and it has been a subject of much perplexity and vexation in the Legislature. It has resulted always in the necessary denial to some county or counties of their full representation under the moiety system. This Court could not be called upon to enforce a constitutional provision incapable of enforcement. In case of making as equitable a division as possible under the Constitution,— and that is all that can be required, — it must be in the discretion of the Legislature to deprive some of the counties of their representation or additional representation upon the moiety plan; for two ratios cannot always be given three Eepresentatives, and at the same time limit the number of the whole to one for each ratio. But in such discretion the counties having the least number of inhabitants above the ratio 'or the moiety of the ratio should be the ones to suffer this deprivation. For instance, in the present apportionment Houghton county, with a population of 35,389, was entitled, under the moiety plan, to two Eepresentatives, as were also Sanilac, Tuscola, Menominee, Macomb, and Montcalm. These counties, in population, under the census of 1890, were as follows: Menominee, 33,639; Montcalm, 32,637; Sanilac, 32,589; Tuscola, 32,508; Macomb, 31,813. Of these six counties, if three were to be left out, Houghton, Menominee, and Montcalm were entitled to two members each, and Sanilac, Tuscola, and Macomb to one each. But the Legislature gives two each to the last three, and only one to each of the first three above named, thus reversing the constitutional order of preference. Under the Constitution all of them are entitled to two, if the various provisions of the Constitution can be so worked *653out as to give each of them two. If they cannot, then the one or more left out should be those having the least population. There can be no legislative discretion, under the Constitution, to give a county of less population than another a greater representation. Such action would be arbitrary and capricious, and against the vital principle of equality in our government, and it is not intended or permitted by the Constitution; nor could such action lead to any good result. There can be found no excuse for it.
The relator prays that the Secretary of State deliver a notice to the sheriff of Houghton county that two Representatives are to be chosen in said county at the next election, and for such other and further relief as to the Court may seem proper in the premises. The special prayer cannot be granted. The board of supervisors have no power to divide Houghton county into two districts, unless so authorized by the Legislature. Their action in this respect is null and void. But the people of the county are entitled to vote together for a Representative. No portion of them can be detached and joined to another county. The apportionment act of 1891 is void, because it undertook to dismember Houghton county, and because the Constitution was also violated in giving counties two Representatives having a less population than counties which were accorded but one.
The law of 1885 is also unconstitutional, for the reason that the counties, or some of them, were given representation in defiance of the Constitution, and without the discretion of which I have spoken. Bay county, with a population of 51,221, was given but two Representatives, while Lenawee county, with a less population, to wit, 49,584, was given three. This was not the exercise of constitutional discretion, but an arbitrary determination for some reason other than a desire to conform to the *654Constitution. Under the moiety clause, Bay, Lenawee, and St. Clair were entitled, in 1885, in the order named, to three [Representatives. If only one could be given this number, the Constitution required it should be Bay; if two, Bay and Lenawee.
An examination of the apportionment act of 1881 shows it to have been within the constitutional discretion of the Legislature, and therefore the Secretary of State must give his notices under that law, unless a new and valid apportionment shall be made by the Legislatui’e.
The other Justices concurred with Morse, C. J.