(dissenting). The case at bar is different from the other cases arising in this state on the matter of legislative apportionment. No demand is made on the Legislature to do anything. The only thing sought here is to require the Secretary of the State Election Board to refuse to receive filings for the Legislature from those counties that do not have sufficient population, under the Constitution of Oklahoma, to entitle them to a mem*373ber in the Legislature, and +o deny any filings from any county in excess of what the Constitution entitles it to. All hands agree that the apportionment made by the 1951 Legislature is unconstitutional insofar as it gives one representative to each of the 18 counties that do not have a population of 11,166, the minimum population that a county must have to be entitled to a representative under art. V, §10(d), Oklahoma Constitution, and is also unconstitutional insofar as it gives 24 counties representatives in excess of the number to which their population entitles them under art. V, §10 (d) and (e). I set out the paragraphs of art. V, §10, which are pertinent to this case:
“(c) The whole population of the State as ascertained by the Federal census, or in such manner as the Legislature may direct, shall be divided by the number one hundred and the quotient shall be the ratio of representation in the House of Representatives for the next ten years succeeding such apportionment.
“(d) Every county having a population equal to one-half of said ratio shall be entitled to one representative; every county containing said ratio and three fourths over shall be entitled to two representatives, and so on, requiring after the first two an entire ratio for each additional representative: Provided, that no county shall ever take part in the election of more than seven representatives.
“(e) When any county shall have a fraction above the ratio so large that being multiplied by five the result will be equal to one or more ratios, additional representatives shall be apportioned for such ratio among the several sessions of the decennial period. If there are two ratios, representatives shall be allotted to the fourth and third sessions, respectively; if three, the third, second and first sessions, respectively; if four, to the fourth, third, second, and first sessions, respectively.”
That being the case, we have ihe right to direct the Secretary of the Election Board to refuse to receive filings for the Legislature from such counties.
This court said in Jones v. Freeman, 193 Okla. 554, 146 P. 2d 564, that where apportionment Acts are found to be in conflict with the Constitution, we may, where justice requires, declare them to be invalid and enforce our decree by proper writs running to the election officials, and cited State v. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R. A. 561; 16 C. J. S. 147, p. 438; 18 Am. Jur. 197. I think that this is true where the apportionment is partially invalid.
The makers of the Constitution saw the possibility that some counties might lose population and provided for such a contingency in par. (g) of §10, art. V, by providing that such counties should be attached to adjoining counties. Never since statehood have Cimar-ron and Harper counties had enough population to entitle them to representatives, but the 16 others which do not now have sufficient population have had. All of the 18 counties should have been attached to other counties to become a part of a legislative district, but the 1951 Act disregarded the Constitution and gave each county a representative.
There might be some justification for permitting the Act to stand as to counties which would be deprived of representation in the lower house of our Legislature ,for at least two years. However, I do not think it is justifiable, in order to accomplish this, to override the Constitution and cause the state the expense of 18 legislators. Those counties will still be represented in the Senate. But be that as it may, there can be no justification before either God or man for giving a county additional representation when its population, according to the Constitution, does not permit it. How can anyone explain why Pittsburg county, with a population of 41,031, should be entitled to as many members in the Legislature as Muskogee county, with 65,573, when Pitts-burg county, under the Constitution, is entitled to only two members? Mus*374kogee county has a greater population above the ratio requirement needed to give it three representatives than Pitts-burg county has over what it takes to give it two representatives. How can an Act be said to be constitutional when it gives one county greater representation than another with a greater population? Lincoln county has 22,102 people, and gets an additional legislator in three sessions of the decennial period, while Logan county with 22,170, has only one representative for the five sessions. Why should Pittsburg county have more representatives than Payne or Cleveland counties, both more heavily populated? Why should Hughes county, with a smaller population, have more representatives than Canadian county? Why should Pottawatomie county have one more representative than Kay county, which is larger? Why should Garfield county, the fifth county in size in the state with 52,820 people, have fewer representatives than Seminole county, which is thirteenth in size with 40,672 people? Why should Okfus-kee county, with 16,948 people, be entitled to more representatives than Choctaw county, with 20,405? Or why should Washita county, with 17,657 people, be entitled to greater representation than either of the following counties with larger population: Sequoyah with 19,773; Mayes with 19,743; Rogers with 19,532; or Cherokee with 18,989? And there are many other discrimina-tions in the act which could be pointed out.
The question, then, naturally arises: Why should any county receive more representation than it is allowed under our Constitution?
We have never said that we had the right to tell the Legislature that it had to pass certain legislation; but when the Legislature does something that is unconstitutional, it is our duty to so declare it, and to use the powers at our command to prevent unconstitutional legislation from being foisted upon the people of this state.
If we are required to adhere to the Constitution as to Tulsa and Oklahoma counties and not allow them more than seven representatives each because the Constitution, wisely or unwisely, says so, why should not that same Constitution control as to the requirements for other counties?
I cannot say what prompted the makers of the Constitution to set up the requirements they did, but certainly government expenditures were considered. House Bill 348 of the 1951 Legislature will cost the state more than $750,000 for salaries and mileage to provide for 129 extra and unconstitutional representatives over the ten-year period. The wisdom of the expenditure is not a question here.
Reapportioning the state for the House of Representatives is a very simple task under the Constitution. The Legislatures of 1911 and 1921 did it properly, and there is no reason why it cannot be done now.
I am aware that the Legislature is a human institution, and the personal element has great force. We should not criticize that body for the passage, of unconstitutional legislation, but we should be criticized if we do not declare its unconstitutional acts unconstitutional, as that is our duty. This is no time to equivocate.
From the failure of the majority opinion to issue a writ against the Secretary of the State Election Board requiring him to refuse to receive filings for the Legislature from the 18 counties that do not have the required population of one representative under the Constitution, and to refuse to receive filings from other counties for additional representatives to which they are not entitled under the Constitution, I dissent.