(dissenting).
In 1961, the General Assembly provided for the formation of junior college districts in Missouri (V.A.M.S. §§ 178.770-178.890).
In 1965, the Missouri Western Junior College District, St. Joseph, Missouri, was formed. It consists of an urban component district and a rural component district. Lour trustees were elected from the urban district and two trustees were elected from the rural district, under the provisions of V.A.M.S. § 178.820. It was determined by lot that Loren W. Schneider and John W. Newhart, the “rural” trustees, should serve for six years.
On February 25, 1970, in Hadley v. Junior College District, 397 U.S. 50, 56, 57, 90 S.Ct. 791, 25 L.Ed.2d 45, the Supreme Court of the United States said of V.A.M.S. § 178.820, supra:
“In this particular case the ‘one man, one vote’ principle is to some extent already reflected in the Missouri statute. That act provides that if no one or more of the component school districts has 331/3% or more of the total enumeration of the junior college district, then all six trustees are elected at large. If, however, one or more districts has between 331%% and 50% of the total enumeration, each such district elects two trustees and the rest are elected at large from the remaining districts. Similarly, if one district has between 50% and 66%% of the enumeration it elects three trustees, and if one district has more than 66%% it elects four trustees. This scheme thus allocates increasingly more trustees to large districts as they represent an increasing proportion of the total enumeration.
“Although the statutory scheme reflects to some extent a principle of equal voting power, it does so in a way that does not comport with constitutional requirements. This is so because the Act necessarily results in a systematic discrimination against voters in the more populous school districts. This discrimination occurs because whenever a large district’s percentage of the total enumeration falls within a certain percentage range it is always allocated the number of trustees corresponding to the bottom of that range. Unless a particular large district has exactly 33%%, 50%, or 66⅜% of the total enumeration it will always have proportionally fewer trustees than the small districts. As has been pointed out, in the case of the Kansas City School District approximately 60% of the total enumeration entitles that district to only 50% of the trustees. Thus while voters in large school districts may frequently have less effective voting power than residents of small districts, they can never have more. Such built-in discrimination against voters in large districts cannot be sustained as a sufficient compliance with the constitutional mandate that each person’s vote count as much as another’s, as far as practicable. Consequently Missouri cannot allocate the junior college trustees according to the statutory formula employed in this case.”
*84On March 5, 1971, Schneider and New-hart filed declarations of intent to be candidates to succeed themselves as trustees. A dispute arose as to whether an election should be held in April, 1971, and an election was not ordered by the board of trustees. On March 12, 1971, Schneider and Newhart filed a petition for writ of mandamus in the Circuit Court of Buchanan County, Missouri, requesting that an election be ordered on April 6, 1971, in the rural district.
On March 24, 1971, respondent judge issued his peremptory writ of mandamus ordering an election in the entire district (urban and rural) but providing that the two “trustees to be elected must be residents of the rural component district.”
I have no doubt that the action of respondent judge represents a pragmatic and commendable effort to resolve an extremely troublesome problem within the dictates of Hadley, supra, and under the authority of Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656, wherein the Court “upheld against constitutional challenge an election scheme that required that candidates be residents of certain districts that did not contain equal numbers of people.” (Hadley, supra, 397 U.S. 50, 58, 90 S.Ct. 791, 796.) However, I cannot agree with the respondent judge insofar as his order was based on the idea that those portions of §§ 178.820 and 178.840 declared unconstitutional in Hadley are severable, and that an “at large” election could be ordered on the basis of those portions of the statutes which, in his opinion, “survived” Hadley. It follows, of course, that I disagree with the holding of the principal opinion that “the portion of the statute held unconstitutional is separable * *
In Allen v. Louisiana, 103 U.S. 80, 83-84, 26 L.Ed. 318, the Court said:
"It is an elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected. ‘But,’ as was said by Chief Justice Shaw, in Warren v. Mayor and Aldermen of Charlestown (2 Gray (Mass.), 84), ‘if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.’ The point to be determined in all such cases is whether the unconstitutional provisions are so connected with the general scope of the law as to make it impossible, if they are stricken out, to give effect to what appears to have been the intent of the legislature.”
The law in Missouri has been stated to similar effect in State ex rel. Audrain County v. Hackmann, 275 Mo. 534, 543, 205 S.W. 12, 14, as follows:
“The test of the right to uphold a law, some portions of which may be invalid, is whether or not in so doing, after separating that which is invalid, a law in all respects complete and susceptible of constitutional enforcement is left, which the Legislature would have enacted if it had known that the exscinded portions were invalid.”
I cannot believe the General Assembly (in 1961, when courts generally were reluctant to decide “political questions,” and before any of us knew the “one man, one vote” principle was a part of the Constitution of the United States) would have enacted §§ 178.820 and 178.840 had it known that the “statutory formula” would be declared unconstitutional. I do believe the General Assembly, by its inclusion in the statutes of those portions declared unconstitutional, sought to guarantee to “small school districts that they * * * [would] not be entirely swallowed up by a large partner.” (Dissenting opinion of Mister Justice Harlan in Hadley, supra, 397 U.S. 50, 64, 90 S.Ct. 791, 799). I would hold *85all of §§ 178.820 and 178.840 unconstitutional. Preisler v. Calcaterra, 362 Mo. 662, 243 S.W.2d 62; Lee v. Clark, 224 S.C. 138, 77 S.E.2d 485; White v. Anderson, 155 Colo. 291, 394 P.2d 333; Grennan v. Sheldon, 401 Ill. 351, 82 N.E.2d 162; Pedlosky v. Massachusetts Institute of Technology, 352 Mass. 127, 224 N.E.2d 414.
I would hold that respondent judge was without statutory authority to issue the peremptory writ. The question then becomes : what should be done ?
In Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964), the Court recognized that what we have here “is primarily a matter for legislative consideration and determination,” and that judicial relief should take the form of “prescribing a plan admittedly provisional in purpose so as not to usurp the primary responsibility * * * which rests with the legislature.”
In Hadley v. Junior College District of Metropolitan Kansas City, Mo.Sup., 460 S.W.2d 1, 3 (1970), this Court called to the attention of the General Assembly “the need to amend the Junior College Law in order that it will conform with the decision of the Supreme Court of the United States.” The General Assembly has not responded.
Accordingly, I would make the provisional rule in prohibition absolute, with directions to respondent judge: (1) to retain jurisdiction in the mandamus action; (2) to permit Schneider and Newhart to hold over as trustees until they, or their successors, are duly elected (Art. 7, § 12, Const, of Missouri); and (3) that respondent judge issue his writ in due course ordering an election in the entire district (urban and rural) in April, 1972, but providing that the two trustees to be elected must be residents of the rural component district.
I recognize, of course, that this Court cannot eradicate the “one man, one vote” principle. However, as I understand the teachings of the United States Supreme Court, we are licensed “under certain circumstances * * * [to] act and rely upon general equitable principles.” (Reynolds v. Sims, supra, 377 U.S. 533, 585, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506.)
In 1965, the residents of the rural component district, mistakenly believing they were entitled by statute to representation on its board of trustees, became a part of the junior college district (V.A.M.S. § 178.800). They cannot now leave the junior college district (Junior College District of Metropolitan Kansas City v. Mayse, Mo.App., 446 S.W.2d 412). I have no reason to believe the United States Supreme Court would look with disfavor upon an attempt by this Court to “do equity” under these circumstances.
I respectfully dissent.