(dissenting)-
The question which to the writer is decisive of the problem here confronted is: Does a reasonable construction of Article IX, Section 2 of the Constitution of Utah authorize the use of multiple ratios as the basis for apportioning representation in the House of Representatives and the Senate of this state? If this question be answered in the affirmative, the question of whether, nonetheless, the legislature acted so arbitrarily in enacting Chapter 61, Section 36-1-1, Laws of Utah 1955, as to violate the basic concept of representative government embodied in our fundamental law may challenge consideration. The question posed is thus stated because, while in the reapportionment act of 1955 a double ratio was employed in reapportioning only the Senate, if the word “ratios"' in the provision authorizes the use of multiple ratios in relation to apportionment of senate seats, it necessarily has the same application in apportionment of seats in the House.
It should also be observed, at this point, that if a double ratio may be employed under the constitutional provision in question, a triple or quadruple ratio may likewise be used.
Because I believe that the use of a multiple ratio in apportioning seats in either or both of the legislative branches contravenes the clear meaning of Article IX, I shall confine this opinion to the reasons which impel me to this conclusion and shall refer to the question of arbitrariness only to the extent that doing so may shed some light on the question.
The writer is in complete accord with the opinion of the court insofar as relates to the criteria which should govern the judicial branch of our government in passing upon legislative enactments.
But strict adherence to such criteria should not cause us to forget that it is not our mere prerogative but our duty to construe the language of our state charter. It is our task to determine the intent of the framers of that document. True, as quoted in the court’s opinion, in gleaning that intent from the language used, we should not “adopt such a technical or strained construction as will unduly impair the efficiency of the legislature to meet responsibilities occasioned by changing conditions of society.” However, no strained construction is here indulged. Furthermore, we are not dealing with a broad or vague provision of the document, nor with some changed condition of society or some emergency which *208could not be visualized by the delegates to the Constitutional Convention. Indeed, no one can read its proceedings without being advised of the fact that its able members were acutely aware of the prospective growth of the state and of the increasingly greater concentration of its population in urban centers, an anticipated development which was frequently spoken of on the floor of the Convention in words of inspiring optimism.
The conscientious but fruitless efforts made by the several sessions of the legislature which have sat since the promulgation of the 1940 census enumeration, and delineated in the opinion of the court, would constrain the writer to join in such opinion were it not that studied consideration of the constitutional provision under scrutiny, leads to conviction that the apportionment basis adopted by the 1955 legislature does violence to the mandate thereof.
This conviction is impelled by: (1) The wording of Article IX, Section 2, considered in its context and in light of the underlying concept impregnating the document as a whole: the establishment of a truly representative government. (2) The discussion and debate attendant upon the adoption of the Article. (3) Constitutional and statutory construction thereof.
Section 2 of Article IX reads:
“The Legislature shall provide by law for an enumeration of the inhabitants of the State, A.D.1905, and every tenth year thereafter, and 'at the session next following such enumeration, and also 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.”
Construing the word “ratios” employed in the last phrase of the section as meaning a ratio for apportioning senators and a ratio for apportioning representatives, its employment is grammatically and logically correct. Indeed, when the provision which requires that the number of senators shall never exceed more than half the number of representatives is borne in mind, necessitating that there be a different ratio employed as a means of apportioning senators than that for apportioning representatives, its use in expressing the intent suggested is natural, reasonable and logical. If, however, it be conceded that the phrase removed from its context is reasonably susceptible of a different construction, the ambiguity thus revealed is resolved by reading it in the sentence in which it is employed. The single sentence which encompasses the whole of Section 2, first provides that in 1905, and every tenth year thereafter, the legislature shall provide by law for an enumeration of the inhabitants of the state. It then requires that at the session of the legislature next following such enumeration and also at the session next following the enumeration made by the United States, the apportionment for senators and repre*209sentatives should be revised and adjusted “on the basis of such enumeration”'. Thus it was contemplated that house and senate, seats be reapportioned by the legislature every five years. To what end? Obviously, so that any change in the population of a county or group of counties revealed by such enumeration would be reflected in the reapportionment devised. If this is the intent expressed, it is submitted that no change in the number of geographical distribution of inhabitants of the state could occur which would not be directly reflected in reapportionment made by employing a single ratio for the house and a single ratio for the senate.
On the other hand, the use of a multiple ratio for either or both houses defeats the attainment of that end. And the wider the discrepancy between the number of inhabitants required for the first legislative member and that required for those in excess of one, the more gross is the deviation from the objective visualized by the drafters of the instrument.
If in fact the Constitutional Convention, by the use of the word “ratios,” intended that multiple ratios be sanctioned, it must have been motivated by a desire to vest in the legislature the authority to apportion seats without regard to the number of inhabitants represented by each seat. Such, it is submitted, was palpably not the intent of the delegates to that body. Indeed, the opinion of the court espouses no such doctrine, but concedes that the Constitution requires that reapportionment be made as near as may be reasonably practicable on the basis of population. The writer is convinced, however, that to approve the use of multiple ratios is to permit not merely deviation from that concept but its emasculation. The very results attained by the employment of this device by the last session of the legislature are eloquent of that fact. The opinion of the court states that a single ratio for each house could be used in such manner, if the legislature set about to do so, as to result in grossly disproportionate representation. Of course it could, if the legislature paid no attention to the concededly basic principle leavening the whole of Article IX, and this court stood mute. But it requires no mathematical acumen to demonstrate that the potential of distortion is infinitely greater if a multiple ratio be used.
It may well be asked when may a reapportionment be held to be arbitrary if the Constitution permits the use of multiple ratios ? What criterion may be used in the future to determine whether the legislature abused its discretion if there is conferred upon that body the power to give control of at least one house to perhaps increasingly smaller segments of the population?
The discussion and debate in the Constitutional Convention fortifies, in the opinion of the writer, the construction here espoused. There was no debate on Section 2 on the Convention floor, except as to that portion requiring an enumeration of inhabitants by the state, which provision, after dis*210cussion, was retained. The debate was on the provision of Section 4, which provided that every county have at least one representative. The amendment to Article IX proposed by Mr. Varían and quoted in the opinion of the court was an amendment to Section 4, not to Section 2. Its purpose was to eliminate the provision in such section giving to each county at least one member of the House. The"' debate was relative to its substance, not to its form. The amendment was rejected and the original proposal was adopted; but the very debate was predicated upon the assumption that, but for this recognition of county atonomy, and the consequent concession to area representation thereby given, apportionment was to be made strictly upon the basis of population, except for the necessary deviation occasioned by the requirement that senatorial districts made up of more than one county should be composed of contiguous counties. This latter requirement would result, though a single ratio be used, in some weighting of senatorial representation in favor of the less populous counties, and may have been motivated by a desire so to do to that extent; it was more probably adopted to prevent use of the device of “gerrymandering” by future legislatures.
The constitutional and legislative construction of Section 2 likewise supports the view that use of a multiple ratio is not permitted by the Constitution. The most authoritative of these practical constructions is that of the Constitutional Convention in the first apportionment provided for by Section 4 of Article IX.
I shall not burden this opinion by a comparison of senatorial representation county by county. Suffice it to say that apportionment of senators was made strictly on the basis of the population of the several districts except that the necessity of combining contiguous counties in establishing senatorial districts made for some permitted distortion. Obviously a single ratio was used in making such apportionment. Senatorial representation was equally divided between the then urban and rural counties. The population was divided 49% and 51%. The distribution of seats in the House by Section 4 is not enlightening, since the provision giving at least one seat in the house to every county would necessarily weight representation in that body in favor of the sparsely settled counties. Except for that required deviation, representation was as nearly as could be devised, strictly on a population basis. A single ratio of about 5,000 was used. So too, in each reapportionment made by the legislature since statehood, except that of 1955, a single ratio was used for each body. So far as the record discloses, despite the difficulty of reaching any agreement on apportionment in every legislative session since 1940, the construction of Section 2 of Article IX espoused by the 1955 legislature, was hot divined by its predecessors. This practical construction by the Constitutional Convention and by legislatures, appraised in the light of the objective of Article IX, carries *211much weight in resolving any ambiguity which may conceivably be found in Section 2 of that Article. So weighty is it, in fact, that the practical construction placed on the same wording by the legislature of another state, loses significance.
For the reasons stated, I am of the opinion that the Reapportionment Act of 1955 violates the mandate of the Constitution, and would affirm the decision of the lower court in so holding.