(dissenting).
I concur in part and dissent in part with the Memorandum Opinion and Judgment Entry of my brothers.
This case is one of the younger children of profound and prolific1 “Mother Baker,”2 sired by that twentieth Century scalawag Mr. Malapportionment. Here we are asked to pass on (1) federal constitutionality of existing legislative apportionment provisions of a state constitution 3 and implementing statutes and (2) the federal constitutionality of a pro*507posed state constitutional amendment.4 Like all children this has a unique personality, differing from most5 of its older brothers and sisters. I concur with my brothers that under Baker v. Carr this court has jurisdiction of the subject matter, a justiciable cause of action is stated and plaintiffs have standing to sue.6 The merits are now before us.
There appears to be no impediment preventing this court, if it so finds, from declaring existing provisions of state constitutions and implementing statutes invalid if they conflict with the United States Constitution.7 By its Article VI § 2, the United States Constitution is declared to be the Supreme Law of the land and all state constitutions and statutes are subordinated thereto.
As to proposed amendments to state constitutions, though there is a conflict of authority,8 it is my view the better rule is that if a proposed amendment clearly violates the federal constitution and would cause a great and unnecessary expense, its submission by referendum should be enjoined.9 The fact that Iowa, by statute, provides for an action to test the legality of a proposed constitutional amendment and provides for enjoining its submission, if found to be unconstitutiona], lends further credence to this view. § 6.10 Code of Iowa 1962.
The question then before this court is: Do the existing apportionment provisions of the Iowa Constitution and the apportionment provisions of the Shaff Plan violate the 14th Amendment to the Federal Constitution?
A number of those who have wrestled with Baker v. Carr over the past year have indicated a disenchantment and disappointment that the decision contained no judicially workable standards and suggested no remedies traditionally used by the judiciary.10
Perhaps the Supreme Court will, at a later date, declare a neat yardstick for measuring the constitutionality of state apportionment laws and perhaps it won’t. In the meantime, the guiding principle is apparent. It has been stated in Baker v. Carr and in many other cases over the years in one form or another, namely, that at the foundation of representative government lies the principle of equality of representation, which means that no voter shall exercise a greater voting power than other voters in the selection of the legislature11 This elementary guiding principle does not *508require mathematical exactness but only a reasonable approximation.12
Every apportionment must stand upon its own particular facts, and deviation from the principle of equality of representation in order to be held unconstitutional must be grave and irrational, Baker v. Carr, supra; Sherrill v. O’Brien, 188 N.Y. 185, 81 N.E. 124; Baird v. Kings County, 138 N.Y. 95, 33 N.E. 827, 20 L.R.A. 81. Peckham, J., in delivering the opinion of the court in the Baird case, stated:
“While it is impossible, in the nature of the case, to accurately describe and closely limit the amount of deviation from an equal representation that the practical working of the constitution may in this respect permit, it is, on the other hand, sometimes quite possible to say of a particular example that it does or does not violate the constitutional mandate. We have no trouble whatever in detecting the difference between noon and midnight, but the exact line of separation between the dusk of the evening and the darkness of advancing night is not so easily drawn.”
It is in the light of this standard that we should test the constitutionality of the existing apportionment provisions of the Iowa Constitution and the proposed apportionment provisions of the Shaff Plan.
Existing Apportionment Provisions
I concur with the statistical analysis of my brothers found at pages 495, 496 of the Majority Opinion. A vote for a representative in Adams County is worth nearly eighteen times the vote for a representative in Polk County. A vote for a senator in the 10th District (Louisa and Washington Counties) is worth nearly nine times the vote of a senator in the 27th (Polk County). Though one case has stated that a two to one ratio is constitutionally perilous, Scholle v. Hare, 367 Mich. 176, 116 N.W.2d 350 (three dissents), it would seem that no reasonable man should find a nine to one and eighteen to one ratio in the twilight zone.
I concur with the findings of fact and conclusions of law of my brothers13 that the disparities in the existing system of apportionment of both houses of the Iowa General Assembly transgress the constitutional limits of equal protection; that no rational basis appears for the very substantial inequality that exists in both houses; that the existing constitutional pattern for apportionment of the house, established by the 1904 amendment and limitation of one senator to a county, established by the 1928 amendment, as they now stand, in combination, are invidiously discriminatory and in violation of the equal protection clause of the 14th Amendment to the United States Constitution.
In addition I would find that the existing constitutional provisions standing separately violate the 14th Amendment to the Constitution and this because under Art. Ill §§ 15, 16 and 17 of the Iowa Constitution, in order for a bill to become a law, there must be at least concurrence of both houses of the General Assembly. Thus, if either house is malapportioned and fails to meet the test of equality of representation, it could frustrate the change of existing laws as well as the passage of new laws. I know of no valid reason why both houses should not meet the test of equality of representation. Historically, the founding fathers of the Iowa Constitution designed that the membership of both houses be apportioned according to population,14 until hamstrung by the amendments now under attack.
*509 The Shaff Plan
I concur with the following statement at p. 502 in the Majority Opinion describing the Shaff Plan:
“The House would be composed of 99 members, one elected from each county without regard to population differences. Inequalities would arise which are far greater than presently exist in either house, and presumably the disparities would become still more extreme in future years.”
Applying the test of equality of representation to the House under this proposal, we find that a vote in Adams County is worth nearly thirty-six times a vote in Polk County. The difference here is clearly noon and midnight and, therefore, I would find and conclude that the Shaff Plan is an obvious violation of the 14th Amendment.
There is undisputed evidence in this record that the approximate cost of the special election provided for in the Shaff Plan to be held on December 3, 1963, will be $250,000.00.15 In justice and in equity, the plaintiffs, the class they represent and the people of Iowa should be relieved from the expensive gesture of conducting a useless election on the Shaff Plan.
I would further find and conclude that plaintiffs have met their burden of proof on both issues in this case.
Relief to be Granted
One further question that must be met is the effect of finding and declaring the existing amendments and the Shaff Plan invalid. Though there is a dearth of authority on the subject, I would conclude, in accordance with the common law rule of statutory construction, that when a repealing constitutional amendment is itself held invalid, the previous constitutional provision is revived.16
In this connection I would find the several parts of the 12th Amendment (amendment No. 2 of 1904) and the several parts of the Shaff Plan to be inseparable, for in both cases, it is obvious that the intent of the adopters and proposers was to adopt and propose one general scheme in an entirety.17
Though §§ 34, 35 and 36 .of Art. Ill of the Iowa Constitution as they existed prior to the 1904 Amendment have at least one serious limitation,18 the system of legislative apportionment contemplated by the founding fathers of the Iowa Constitution as set out in said sections has a rational historical basis in fact, and in my view would substantially meet the test of equality of representation.
In Baker v. Carr, Mr. Justice Brennan at p. 198 of 369 U.S., at p. 699 of 82 S.Ct. and Mr. Justice Clark at p. 260 of 369 U.S., at p. 733 of 82 S.Ct. expressed optimism and faith that the district court possessed judicial competence to fashion relief if violations of constitutional rights are found. The court specified no remedy.
I dissent from paragraphs 2, 3, 4 and 6 of the Judgment Entry.
Rule 1, Federal Rules of Civil Procedure, provides as follows:
“These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall be construed to secure the fust, speedy, and inexpensive determination of every action.” (Italics supplied)
There is probably no more elementary mandate under the Federal Rules than that set forth in the second sentence of Rule 1. 1 Barron and Holtzoff Federal Practice and Procedure § 137, p. 585. The rules have for their primary pur*510pose the securing of speedy and inexpensive justice in a uniform and well-ordered manner. Des Isles v. Evans, 5 Cir., 225 F.2d 235. In keeping with this spirit and purpose, since plaintiffs have met their burden of proof on the issues, I would grant them immediate appropriate relief.
The Shaff Plan, inter alia, would repeal the 1904 and 1928 Amendments. My brothers reason that judgment on all constitutional questions now before the court should be deferred because:
1. If the Shaff Plan is adopted, the existing constitutional provisions may be repealed and the question of their constitutionality would be moot.
2. Other means of solving the problem are available.
3. There is no need for haste in passing on the constitutional questions at this time because no elections of senators and representatives are scheduled until November of 1964 with the primary in June of that year.
A simple answer to (1) is that the validity of the amendments is not moot at the present time. Furthermore, is the gamble that the Shaff Plan might receive an affirmative vote of the people on December 3, 1963, worthy reason for denying plaintiffs the judgment to which they are presently entitled? I think not. What if the Shaff Plan fails in December? Such eventuality would require further action by this court to enter judgment at least seven months hence which it can enter today.
Regardless of whether the Shaff Plan wins or loses, if it is to be submitted to the vote of the people in December, in justice and equity, aren’t the plaintiffs and other Iowa voters similarly situated as much entitled to know before they vote what system of legislative apportionment their state will have if they vote “no,” as well as if they vote “yes” ?
In answer to (2), the Majority Opinion has conspicuously failed to specify the other available means for solving the problem. It is my view that an affirmative vote on the Shaff Plan will not solve the constitutional problem now before this court. The Shaff Plan win or lose, either or both of the questions will again be before the court.
Though the general election for senators and representatives will not be held until November of 1964, the primary election for those offices will be held on June 1,1964.19 Nomination papers for legislative candidates in the primary must be filed between March 7 and March 27, 1964.20 I would conclude that the spirit of the Federal Rules of Civil Procedure would be better followed and a more orderly administration of justice effected by settling the profound and thorny question of legislative apportionment for Iowa in the year 1963.
Upon the authorities and for the reasons stated herein, I would at this time enter judgment for the plaintiffs declaring the 12th Amendment (amendment No. 2 of 1904) and the 16th Amendment (amendment of 1928) to the Iowa Constitution, together with the implementing legislation enacted pursuant thereto (Chapters 41 and 42 Code of Iowa 1962, I.C.A.) invalid prospectively from and after the date hereof.21
I would further enter judgment enjoining defendants from submitting the Shaff Plan to a vote of the people on December 3, 1963, and would declare that the Iowa General Assembly, as presently constituted, should from this date and until December 31, 1963, but not thereafter, function as a de facto body22 for all valid purposes and for the further purpose of providing means for the enactment of implementing apportionment legislation under the Iowa Constitution as it existed prior to 1904.
. Cases have arisen, in at least thirty-four states during 1962. Political Thickets and Crazy Quilts: Reapportionment and Equal Protection, Robert B. McKay, Vol. 61 No. 4 Michigan Law Review, p. 645, Appendix p. 706-710.
. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
. 12th Amendment (amendment No. 2 of 1904) and the 10th Amendment (amendment of 1928) to the Iowa Constitution.
. 59 G.A. eh. 344; S.J.R. 1, 60 G.A. ch. 501, the “Shall Plan,” having passed two successive sessions of the General Assembly, is to be submitted to a vote of the people on December 3, 1963, pursuant to Iowa Const, art. 10 § 1, footnote 5, p. 499, Majority Opinion.
. Cf. Sincock v. Terry, D.C., 210 F.Supp. 396; Sobel v. Adams, D.C., 208 F.Supp. 316 and Sims v. Frink, D.C., 208 F.Supp. 431.
. Majority Opinion, p. 494.
. Second Employers Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327; 11 Am.Jur., Constitutional Law § 41, p. 648.
. 19 A.L.R.2d p. 521, 532.
. Livermore v. Waite, 102 Cal. 113, 36 P. 424, 25 L.R.A. 312; Sobel v. Adams; Sims v. Frink, supra, footnote 5; 11 Am. Jur., Constitutional Law § 34, p. 640; Matthews v. Turner, 212 Iowa 424, 236 N.W. 412. I would conclude that this court has jurisdiction to enjoin on either the theory of inherent power as a court of equity or under the declaratory judgment statute. It is my view that the Shaff Plan in its present posture is an actual and justiciable controversy within the purview of Rule 57 F.R.Civ.P. and Title 28 U.S.O.A. § 2201, entitling plaintiffs to declaratory judgment as being discretionary with the court under the circumstances of the case exercised in the public interest. Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784; Baker v. Carr, supra.
. Vol. 61 No. 4 Michigan Law Review, p. 659, 700; Majority Opinion, p. 504.
. Baker v. Carr, supra, 369 U.S. p. 261, 82 S.Ct. p. 733; 2 A.L.R. 1337; Denney v. State ex rel. Basler, 144 Ind. 503, 42 N.E. 929, 31 L.R.A. 726 ; 81 C.J.S. States § 31e, p. 934; 18 Am.Jur., Elections § 17, p. 192.
. Baker v. Carr, supra; Giddings v. Blacker, Secretary of State, 93 Mich. 1, 52 N.W. 944, 16 L.R.A. 402; State ex rel. Harte v. Moorhead, 99 Neb. 527, 156 N.W. 1067; Scholle v. Hare, 367 Mich. 176, 116 N.W.2d 350.
. Majority Opinion, p. 501.
. Art. Ill §§34 and 35 Iowa Constitution prior to 1904.
. Paragraph 4(d), Pre-Trial Order.
. 82 C.J.S. Statutes § 307a, p. 523; 16 C.J.S. Constitutional Law § 42b, p. 134.
. See 11 Am.Jur. Constitutional Law § 52, p. 661.
. Art. Ill § 35 Iowa Constitution, “ * * * but no representative district shall contain more than four organized counties * *
. § 43.7 Code of Iowa 1962, I.C.A.
. § 43.11 Code of Iowa 1962, I.C.A.
. Scholle v. Hare, supra
. Baker v. Carr, supra, 369 U.S. p. 250, 82 S.Ct. p. 727; Cedar Rapids v. Cox, 252 Iowa 948, 108 N.W.2d 253; Scholle v. Hare, supra.