dissenting.
This is an original proceeding commenced by the petition of Harold Stein, a citizen, taxpayer, and resident of the City and County of Denver, presenting to the court questions concerning the validity of the statutes of Colorado relating to legislative districting, and claiming the existing legislative districts to be invalid as a violation of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States, and as being in violation of the Colorado Constitution, Article V, Section 45.
Article V, Section 45, of the Colorado Constitution provides:
“The General Assembly shall provide by law for an enumeration of the inhabitants of the state, in the year of our Lord 1885, and every tenth year thereafter; and at the session next following such enumeration, and also at the session next following an enumeration made by authority of the United States, shall revise and adjust the apportionment for senators and representatives, on the basis of such enumeration according to ratios to be fixed by law.”
Chapter 63, Article I, Section 2, C.R.S. 1953, fixes and establishes ratios for apportionment of senators and representatives in the general assembly as follows:
“(1) The ratio for the apportionment of senators shall be:
“(a) One senator for each senatorial district for the first nineteen thousand of population therein;
“(b) One additional senator for each senatorial dis*395trict for each additional fifty thousand of population therein or fraction over forty-eight thousand.
“(2) The ratio for the apportionment of representatives shall be:
“(a) One representative for each representative district for the first eight thousand of population therein;
“ (b) One additional representative for each additional twenty-five thousand five hundred of population therein, or fraction over twenty-two thousand four hundred.”
Senatorial districts are established by Section 63-1-3, C.R.S. ’53. Districts for the election of members of the House of Representatives are established by Section 63-1-6, C.R.S. ’53.
Memoranda have been furnished the court by the petitioner, as well as by various of the respondents, and by the Attorney General representing the respondents generally, and the court has heard extensive oral argument. It appears from these presentations, without dispute, that the General Assembly has held sessions as prescribed by the constitution in 1961 and 1962, following the enumeration of population or census made by authority of the United States in 1960. The last of those sessions has been recessed and adjourned. The general assembly did not, as required by Article V, Section 45, revise and adjust the apportionment for senators and representatives on the basis of the 1960 census according to ratios to be fixed by law.
Applying the ratios prescribed by C.R.S. ’53, 63-1-2, and utilizing the census figures, of which this court may take judicial notice and which are before the court in memoranda, it is clear that at least one county with a population of 7,867 has fewer than the minimum 8,000 required for the election of a representative. At least one senatorial district, the sixth, with 18,414 people, has fewer than the 19,000 population required for such a district. It is clear, also, that other counties, including the City and County of Denver, the counties of Adams, *396Jefferson, and Arapahoe, and other more populous counties, have substantially less representation in each of the houses of the general assembly than they are entitled to under the provisions of Chapter 63, C.R.S. ’53.
Colorado’s population in 1960 was 1,753,948, an increase of 32.4% over that in 1950. Urban population has increased 55.5%, and rural population declined by 6.6% in that period.
Article V, Section 46, of the Colorado Constitution provides: “The senate shall consist of not more than thirty-five and the house of not more than sixty-five members.”
Proportioning such membership to the total population, we find that each member of the Senate should represent 50,112 citizens, and each member of the House 26,983. In the least populous representative district, 7,867 persons are represented per member. In the City and County of Denver, 29,000 are needed to accomplish the same result. In Jefferson county, approximately 63,000 votes are needed, and in Adams, Jefferson and Arapahoe counties on an average 60,250 are needed for this purpose. Like results apply to many others of the populous counties and similar situations exist in both the house and senate. A voter in the least populous county is, therefore, eight times as significant as one in the most populous counties.
Petitioner contends that such result is unconstitutional as a violation of the Fourteenth Amendment in that it is a “debasement of his vote,” a denial of equal protection of the law, and that the statute of Colorado under which this gross discrimination exists is violative of the Colorado Constitution, Article V, Section 45.
There is no controversy as to the factual existence of the representative situation described. The census, of which we take judicial notice, sustains these facts, and the responses filed raise no issue in connection therewith.
In Armstrong v. Mitten, et al., 95 Colo. 425, 37 P. (2d) *397757, Chapter 156, Session Laws of 1933, was held void because it violated Article V, Section 45, of the Colorado constitution in many of the ways C.R.S. ’53, 63-1-1, et seq. is said to offend. It was said in that case that the Act there held to be void “attempts to confer upon some districts a representation that is greater, and upon others a representation that is less, than they are entitled to under the Constitution,” and that the requirements of Article V, Section 45, were mandatory, saying: “The people, by section 45, supra, command the general assembly to revise and adjust the apportionment at the session next following the census. The command is clear and explicit, and the people, in inserting it in the Constitution, intended that it should be obeyed.”
Petitioner relies upon Baker v. Carr, decided by the Supreme Court of the United States, No. 6, October term, 1961, on March 26, 1962. In that case it is expressly held, with reference to a citizen’s suit for reapportionment, “ (a) that the court possessed jurisdiction of the subject matter; (b) that a justifiable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes. Beyond noting that we have no cause at this stage to doubt that the District Court will he able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial.” (Emphasis supplied.)
Respondents contend that our government is one of divided powers, namely, the Legislative, Executive, and Judicial. They argue that even though the legislative branch has failed in the performance of a duty mandatory under the constitution, the judiciary is powerless to remedy the situation, since it can neither compel executive action to call the legislature into session, nor compel the enactment of legislation once that session is convened.
*398Article VI, Section 3, of the Colorado Constitution provides that this court, “shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same; and each judge of the supreme court shall have like power and authority as to writs of habeas corpus. * * *” It is fundamental that the duty of this court is to uphold the constitutions, of both Colorado and the United States. It is equally fundamental that a statute shown to be in violation of either constitution, such statute is void, and this court has the duty to so declare.
For the reasons stated above, it is clear that C.R.S. ’53, 63-1-2, 3 and 6, are void and of no effect as in direct violation of Article V, Section 45, of the Constitution of the State of Colorado, and of the equal protection provisions of the Fourteenth Amendment to the Constitution of the United States, and we should declare them void. Armstrong v. Mitten, supra.
Article V, Section 47, of the Colorado Constitution in pertinent part provides: “Senatorial and representative districts may be altered from time to time, as public convenience may require. * * * ” (Emphasis supplied.)
Nothing in the Constitution of Colorado requires any specified number of representative districts for either house of the general assembly.
Rule 54 (c) of our Rules of Civil Procedure states that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” We have held that under this rule it is the duty of the court to grant all equitable relief to which a party is entitled, even though not specifically demanded in the prayer. Spears Free Clinic & Hospital v. Board, 122 Colo. 147, 220 P. (2d) 872. Such clearly is the authority under the original jurisdiction vested in this court by the Constitution of Colorado, and such is the anticipation of the *399Supreme Court of the United States as stated in Baker v. Carr, supra.
This court recognizes the fundamental concept of our governmental structure embodied in the separation of powers of government into three departments. This court has in the past, and in this controversy should give full effect to the limitations placed upon the power of the judiciary by Article III of the Constitution of Colorado. We can not, constitutionally, do for the legislature those things which the constitution specifically provides shall be done by that branch of the government. It is, however, the exclusive function of the judiciary to determine whether enactments of the legislature conform to the limitations placed upon the power of that branch of government by the constitution. It is also the exclusive function of the judiciary to declare the legal result which comes into existence when the legislative branch of the government fails to do that which the constitution very plainly commands that it shall do!
It is admitted by all participants to this controversy that the 43rd general assembly has failed to obey the mandate of the constitution which forcefully commands that, “the general assembly * * * at the session next following an enumeration made by the authority of the United States, shall revise and adjust the apportionment for senators and representatives on the basis of such enumeration according to ratios to be fixed by law.” (Emphasis supplied.)
The people trusted the legislative arm of government to obey this mandate; but admittedly it has failed to perform its duty pursuant to that command. The remedy of the people who seek redress for such breach of trust is to replace those who neglect or refuse to perform their constitutional duty and to supplant them with persons who will be governed thereby.
A plausible argument is advanced in support of the power of this court to do for the people that which the legislature has failed to do, in defiance of the express *400command, of the constitution. Were we to explore this suggestion we would necessarily proceed with due restraint, careful not to subject the judiciary to the charge of usurping powers entrusted by the constitution to other departments of government.
It is argued contra, that for this court to undertake to re-district the state and reapportion seats in the general assembly, in the absence of legislative action, would be the performance of a legislative function. It is contended by petitioner that the application of a mathematical ratio, or the solution of an equation, is not a discretionary but a ministerial function of the kind often performed by the courts and which might lawfully be performed in this case.
It is not necessary, however, for the court to embark upon such adventure, for the reason that the net result of the failure of the legislature to function gives rise as a matter of law to a situation concerning which there can be no doubt. Recognition of that situation and a clear statement thereof affords full protection to petitioner, removes all doubt as to whether he will be denied equal protection of the law in the forthcoming election, and upholds the pertinent provisions of the Colorado Constitution. It involves no question of usurpation by the court of power properly belonging to other departments of government.
We cannot properly command the governor to call a special session of the general assembly; we cannot properly require any member of the legislature to vote for or against a particular piece of legislation. The legislator is not responsible to this court for his conduct. He is responsible to his constituents alone. However the legal consequences which follow from its acts, or its failure to act, are matters which the judiciary alone can pass upon.
It is quite certain that no act of the legislature, and no failure on its part to do that which the constitution commands that it “shall” do, can produce a result pro*401hibited by the Constitution of the United States. By action or inaction no citizen can be deprived of the equal protection of the law. The judiciary has inherent power to “fashion relief” necessary to prevent violations of constitutional rights.
The question, therefore, to which we should limit this inquiry, is:
What is the legal consequence of the failure of the legislature to obey the mandate of the constitution with reference to reapportionment?
In the case before us the petitioner is entitled to equal protection of the law — NOW! The protection afforded the individual by the United States Constitution cannot be temporarily suspended by state action or inaction! That which deprives a citizen of this “equal protection” must be swept aside and held for naught, even though it be an act of the general assembly or a provision of the state constitution!
Inasmuch as C.R.S. ’53, 63-1-2, 3 and 6, are void as above stated, they cannot be given force or effect. Accordingly, by reason of the failure of the general assembly to obey the mandatory requirements of Article V, Section 45, of the constitution, there exist no senatorial or representative districts legally in force in this state.
It is necessary, however, that there exist a legislative body for this state. The constitution in Article V, Section 46, supra, provides that the general assembly consist of a senate of not more than thirty-five and a house of not more than sixty-five members. Under valid provisions of existing law the number of legislators has been fixed at this maximum. No minimum number of districts is provided, and districts may be altered under Article V, Section 47, “as public convenience may require.”
It is our duty in such circumstances to give effect to the constitution as it exists in so far as it may be enforced. Since the statutes relating to districting and ratios are void, they cannot be utilized. Therefore, the *402general assembly consisting of a Senate of thirty-five members and a House of Representatives of sixty-five members should be elected from the state at large and by the voters of the state at large.
The Secretary of State of the State of Colorado should be prohibited from permitting the conduct of elections in accordance with the ratios or districting provided in the void chapter 63, Article I, Sections 2, 3 and 6, and should be required to conduct the forthcoming general election in so far as concerns election of members of the general assembly, both Senate and House of Representatives, in such manner that said election is of those persons at large, thirty-five members of the Senate and sixty-five members of the House of Representatives, by the eligible electors of this state, without regard to the representative or senatorial districts or apportionment heretofore recognized.
An opinion of this court should be and constitute an affirmative order to the Secretary of State to the effect set forth herein. No force or effect should be given in any election to the said senatorial or representative districts or existing apportionment, nor should any election be held for the general assembly, including Senate and House of Representatives, of the State of Colorado, save an election at large, until such time as there shall have been established districts and an apportionment in accordance with the provisions and requirements of Article V, Section 45, of the Constitution of the State of Colorado, and the Fourteenth Amendment to the Constitution of the United States.
The failure of this court to act affirmatively at this time in a way to grant voting equality is, in effect, an unnecessary delay in the performance of a judicial act which would immediately protect basic rights. The determination of judicial questions and the ultimate protection of constitutional rights rest exclusively with the judicial department of government. Every member of the general assembly admits that the duty imposed upon *403them by the mandate of the people in the constitution has not been performed. It is not disputed that the only act of the legislature under which its members are selected is unconstitutional and void. It is admitted that unless this court pronounces the legal result which follows legislative failure, the constitutional rights of tens of thousands of citizens will be denied. The rights involved are the most cherished rights of equality at the ballot box in free elections!
If it be true that an election of legislators at large would cause difficulties or present problems too difficult for some areas to solve, those difficulties and problems would be apparent to those who themselves are directly responsible for their creation. There is ample time before the November election for the general assembly to perform its constitutional duty, and thus remove any and all of the envisioned difficulties, most of which are imaginary and speculative and at best are inadequate excuses for failure to protect constitutional rights. The mandate of the constitution cannot be temporarily suspended by resort to lame excuses for failure to discharge mandatory duties.
There is nothing in the record to indicate that the governor has in any manner failed to do all within his power to uphold the provisions of the state and federal constitutions. Many able members of the legislature strove mightily to discharge their constitutional duty. There is no reason to believe that the chief executive would fail to afford an opportunity to the legislature to remove any complications which might result from an election-at-large and to make provision for the political parties to make selection of candidates if existing laws are, in fact, inadequate for that purpose.
There remains for consideration one further “excuse” for failure of this court to resolve the question by affirmative action. Article V, Section 45, provides that “at the session next following an enumeration made by the authority of the United States” the general assembly *404shall revise and adjust the apportionment for senators and representatives, on the basis of such enumeration, according to ratios to be fixed by law.
It is contended that the “session next following” the enumeration does not take place until 1963. This does not follow from the wording itself. The census was taken in 1960. There was a session of the legislature in 1961. There was another in 1962. Nothing was done by the legislature in either session. The Governor recognized that it was mandatory that something be done in those sessions, and so did the legislature.
There has been a Response to Rule to Show Cause filed by the Attorney General for all of the Respondents. The Response of the Governor states as follows, on page 2:
“ (3) The Governor performed his duty as chief executive officer of the State of Colorado when he reported to the first regular session of the Forty-third General Assembly on March 21, 1961, and requested that the legislature reapportion itself in compliance with Article V, Section 45, of the State Constitution.
“ (4) The Governor performed his duty again in 1962 when he reported on January 3, 1962, that the official census had been obtained and that the legislature should adopt a new apportionment law.”
Thus, the Assembly was informed both in 1961 and in 1962 that it must reapportion on the basis of the 1960 census, and it was provided with that census.
The Assembly itself recognizes the requirement that it reapportion and its duty to do so in the 1961-62 sessions. Thus, in the Response of General Assembly, on page 6 of the Attorney General’s filing it is said:
“(10) The Colorado Constitution in Article Y, Section 45, requires the General Assembly to revise the apportionment for senators and representatives following the enumeration of inhabitants by the Bureau of the Census of the United States, and this duty is and has been recognized by the General Assembly because bills *405were introduced in both sessions of the Forty-third General Assembly to accomplish this objective.
“(11) Although an apportionment act was not adopted by the Forty-third general assembly because of a disagreement among its constituent members, they have not wilfully ignored this constitutional mandate.”
Again, in the Response of all Respondents, on page 7 of the Attorney General’s filing, it is said:
“(5) Two bills and two amendments to the Constitution of Colorado were introduced in the First Regular Session of the Forty-third General Assembly, and eight bills and six amendments to the constitution were introduced in the Second Regular Session of the Forty-third General Assembly dealing with apportionment, but none of them passed, showing that the General Assembly has attempted to obey its constitutional mandate to apportion the legislature based on the federal census in I960.”
The applicable census volume is that volume which is captioned by SUGGESTED CITATION on page ii thereof; “U. S. BUREAU OF THE CENSUS, U. S. CENSUS OF POPULATION; 1960. NUMBER OF INHABITANTS, COLORADO. FINAL REPORT PC(1)-7A.” It is claimed that this was not available in 1961. On page iii is the Preface and the Acknowledgments. THESE ARE DATED: “February, 1961.”
Not only was the document available in 1961, but it was sent by the Governor to the General Assembly then in session in that year. The session next following the 1960 census. The Attorney General has filed a Memorandum in Support of Response here. On page 4, he states, for the Governor, as follows:
“c. The Governor has diligently upheld his oath of office by doing everything within his executive powers to cause apportionment and aid the General Assembly of the State of Colorado to enact laws apportioning the state legislature, including, but not limited to, the following, to-wit:
“ (1) On March 21, 1961, the Governor sent to the 43rd *406General Assembly of the State of Colorado, 1st Regular Session (1961) the following official message, which appears in the Senate Journal of said session for Thursday, March 23, 1961, at page 611, and in the House Journal of said session, for March 22, 1961, beginning at page 764, to-wit:
“MESSAGE FROM THE GOVERNOR.
March 21, 1961.
“Forty-third Colorado General Assembly.
“I have just received from the Bureau of the Census, U. S. Department of Commerce, and I have the privilege of transmitting to you, the official 1960 Census of the State of Colorado.
“This report is forwarded to you for your appropriate action regarding apportionment of legislative representation in accordance with the directives of the Constitution of Colorado, Article V, Sections 44 through 47.
Steve McNichols.”
“(2) On January 3, 1962, the Governor sent to the 43rd General Assembly of the State of Colorado, 2nd Regular Session (1962) the following official message, being the Governor’s first message to said session, wherein there were designated subjects to be considered by said general assembly, which message appears in the Senate Journal of said session for Wednesday, January 3, 1962, beginning at page 5, and in the House Journal of said session for Wednesday, January 3, 1962, beginning at page 7, to-wit:
“MESSAGE FROM THE GOVERNOR
January 3, 1962.
“To the Forty-third General Assembly.
“State of Colorado
“Ladies and Gentlemen:
“Pursuant to the authorization contained in Section 7, Article V of the Constitution of the State of Colorado, wherein it is provided that the General Assembly in even numbered years may enact bills raising revenue, *407bills making appropriations and may also enact bills pertaining to subjects designated in writing by the Governor during the first ten days of the session, I hereby designate the following subjects at this time for appropriate actions:
“1. Reapportionment of members of the General Assembly.
“Respectfully submitted,
“Steve McNichols, Governor.”
Thus it is clear, from the very Response of the Governor and the General Assembly, that both knew that the matter of reapportionment had to be done in 1961 and 1962, that the census existed and was furnished to the general assembly in 1961, and it was then before them, that the Governor twice called upon the Assembly to apportion, that the Assembly recognized and recognizes in its response that it has a “mandate” to reapportion in 1961 and 1962, and that it introduced numerous bills and amendments to that end, but failed to enact any of them. It is utterly impossible in this situation to credit the contention that the duty is to be performed instead in 1963, or that the Assembly did not have the census data, because from its own showing it not only had the census data before it and recognized its duty, but did not agree on any method of performance and did not perform.
The “interpretation” which some members of this court would give to the plain language of the constitution “at the session next following an enumeration” amounts to an amendment; a change in important substance, and is definitely not an “interpretation” if words still have their accepted meaning. The “interpretation” so applied amounts to a far greater usurpation by the judiciary of an exclusive legislative function than would be involved if this court were to apply a mathematical equation and order reapportionment on the basis thereof. By this “interpretation” we would amend the con*408stitution as adopted by the people! To me this is unthinkable!
Even though the “interpretation” were to be adopted it would solve only fifty per cent of the problem and leave entirely untouched the very important provision of the United States Constitution, that no person shall be denied “equal protection of the law.” In other words, the United States Constitution emphatically declares that under no interpretation of state law can one man’s vote in this nation be worth eight times as much as another’s, even though by a fantastic “interpretation” of a state constitution one might give that inequality a mask of legality when tested at the state level.
This court should give affirmative relief and breathe strength and vitality into the constitutions of the state and the nation! If a temporary inconvenience be visited upon the citizen in a single election let him place the responsibility squarely upon those whose failure to obey the fundamental law brought about the inconvenience. It would be a cheap price to pay to avoid the emasculation and destruction of constitutional rights. Suffice it to say that no consequence resulting from judicial action which upholds and supports an unquestioned constitutional right, can ever be as burdensome or dangerous as the ultimate consequence which follows judicial emasculation and destruction of the constitutional rights here involved.
I have reached the foregoing conclusions after painstaking study and am fortified in setting them forth by the firm conviction that thoughtful citizens everywhere are more interested in the preservation of constitutional government than in avoiding spending a few more moments in the ballot booth in one election, when by doing so they gain for themselves and grant to all others equality of voting strength. I am confident that intelligent persons everywhere would approve affirmative action, the effect of which would be to prevent the disintegration and piecemeal collapse of constitutional govern*409ment. I am convinced that the preservation of our constitutional rights means more to mass humanity than the desires of those who may seek to perpetuate the existence of an office for which there is no foundation in the constitution or any valid law.
I view with deep concern and sincere regret the results which flow from the failure of the court to act. By deftly side-stepping the issue which is presented, several hundred thousand voters in Arapahoe, Jefferson, Adams, Pueblo, El Paso, Boulder, Mesa and other populous counties, as well as those in the City and County of Denver, are told by their highest court that their effectiveness at the polls at the coming election is anywhere from one-third to one-eighth as great as that of citizens residing elsewhere, and that no action will be taken by the judiciary in time to prevent that result.
Under the record before us the violation of constitutional rights is clearly shown; the remedy to stop it is clearly available, and it involves the use of a power which only the judiciary can exercise. When the legislature fails to perform its constitutional duty to correct an inequality in voting effectiveness (as great as 8 to 1); when the judiciary compounds that omission by refusing to act in its official capacity to protect basic rights when it is clear that a remedy is available — just where shall we tell the l/8th of a citizen to go in search of the 7/8ths of his constitutionally protected right to voting equality?
As for me, I refuse to tell him that the constitution affords him no present protection. I know it does — if it is recognized! I refuse to tell him that the judiciary can do nothing about it. I know that this court could do something about it! The majority of this court, by inaction, tells this citizen in effect: “Go on home, my good man and forget about it for the time being. The constitution really doesn’t mean anything in actual practice.”
With what force I am able to command I protest! I *410am content to let those who understand the law pass judgment on my views!
Mr. Justice Frantz concurs in this dissent.