I respectfully dissent from the disposition of the case made by the majority of the court. As application of my view would overturn an act of the legislature, I deem it proper to express briefly the reason for my dissent.
The opinion of the court states the facts fairly and accurately and I agree with the propositions of law stated therein. The main rule of the rules of law enumerated in the opinion other than that prohibiting the breaking of county, town, and ward lines, which is absolute, is that districts shall be formed “according to population.” The New York court of appeals in People ex rel. Carter v. Rice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836, 851, which upheld a legislative apportionment, states that:
“The legislative purpose should be to make a district of an equal number of inhabitants [with those of other districts] as nearly as may he; and how far that may be carried out in actual practice must depend generally upon the integrity of the legislature. We do not intimate that in no case could the action of the legislature be reviewed by the courts. Cases may easily be imagined where the action of that body would be so gross a violation of the constitution that it could be seen that it had been entirely lost sight of and an intentional disregard of its commands both in the letter and in the spirit had been indulged in,”
*33I consider this statement correct. In my opinion, however, we need not resort to imagination for an example of such a gross violation of the constitutional provision as to equality of population in districts as to warrant interference by the courts. We have it here. And as indicating the grossness of the inequality we need only consider the situation in which the redistricting act leaves Milwaukee county.
By the statement of facts in the majority opinion, it clearly appears that the unit of population for assembly districts entitles Milwaukee county to twenty-five assemblymen (as nearly as may be) instead of the twenty left to it by the act involved. That it might not be practical to allot that county twenty-five assemblymen or even twenty-four may readily be conceded. But I cannot concede that it is not entirely practical to allot it twenty-three. This might be done by allotting to Grant county one assemblyman instead of two; to Washburn and Ashland counties one instead of two; and to Kewaunee and Door counties one instead of two. So doing would leave these counties as fairly represented according to population as Milwaukee county would be, and as fairly as many other localities are under the present act. And Milwaukee county could be given the additional senator to which it is plainly entitled with only one change of senate districts in the present act. It so happened that at the time the act was passed there was a vacancy in the district composed of Green, Iowa, and Lafayette counties. Green county might have been attached to Rock county to comprise a district; Iowa to the district composed of Richland, Columbia, and Sauk counties; and Lafayette to the district including Grant, Crawford, and Vernon counties. This would have left a senator to allot to Milwaukee county and the population of these senate districts would have been less than that of the Dane county district and only slightly larger than several others. And this would not have placed any *34hold-óvef éeiiátof out of his present district and would not have created añy complication in renumbering the senate districts so as to avoid depriving any such senator of two years of his term by putting him into an even-numbered district whose members are to be elected at the coming 1932 election.
I do not suggest this as the best the legislature could have done, or as what it should have done, but to my mind it clearly shows that the legislature did not approach the goal of equality anywhere nearly as closely as it might easily and practically have done. Should Milwaukee county gain in population as much in the next ten years as it has in the past ten in comparison to the rest of the state, it will then no doubt, by application of the rule of equality, be entitled, as nearly as may be, to thirty assemblymen and ten senators. All would concede no doubt that a redistricting at that time that would leave it with its present quota of twenty assemblymen and seven senators would clearly be a violation of the equality provision of the constitution. Just where the courts should draw the line of constitutional departure from that provision cannot of course be precisely stated, but in my opinion the present act requires us to hold that it goes beyond that line.
I am authorized to state that Mr. Justice Fritz and Mr. Justice Fairchild concur in this opinion.
A motion for a rehearing was denied, with $25 costs, on October 11, 1932.