Bush v. Martin

NOEL, District Judge

(dissenting).

I. Preface

This being a trial court, it is well to state the chronology of significant events and the precise posture of the case from the standpoint of parties and pleadings. On April 23, 1963 plaintiffs filed their original complaint. Judge Ingraham, upon whose docket it fell, requested the Chief Judge of the Fifth Circuit Court of Appeals to designate the judges to sit with him on this requisite three-judge court, which was promptly done.

After summons issued, defendant executives of the State of Texas answered on May 13, the County Judge and County Clerk of Harris County on May 15, the Chairman of the State Republican Executive Committee on May 16, and the Chairman of the State Democratic Executive Committee on June 26.

On June 28, 1963, a preliminary pretrial conference was held which the writer attended. On July 17, 1963 the Chief Judge duly designated the writer a member of this Court.1 The consensus of *518those present was that pre-trial and trial should be had as soon as practicable after Labor Day. The case was set and accordingly pre-tried on September 9, tried on September 23, 1963. All parties and the Court have given the case prompt attention.

In their complaint, plaintiffs assert their right to equal protection of the laws under the Fourteenth Amendment, Section I of the Constitution of the United States. Related rights are asserted under the Texas Constitution, Article 6, Sections 2 and 4, and Article 16, Section 2; and under the Texas Election Code, V.A.T.S. Election Code, Article 1.01 et seq. In some detail plaintiffs set forth the disparity in voting power and representation between various congressional districts in the State, and allege this to constitute invidious discrimination under the Equal Protection Clause of the Fourteenth Amendment as to them and the class they represent, all without any rational or historical basis or justification. Plaintiffs pray for the following relief: (a) a judgment declaring Article 197a, V.A.T.S. unconstitutional, void and invalid; (b) an injunction against all defendants, individually and in their representative capacities, from conducting primary elections for members of Congress under Article 197a; and (c) if a valid, lawful and constitutional reapportionment act is not adopted by the Texas Legislature before July 1, 1963, that the Court enter its own order reapportioning the congressional districts.

In answer, the Chairman of the State Republican Executive Committee agrees with the complaint and admits each and every allegation in the complaint, consenting to the relief prayed for by plaintiffs. The Republican Chairman thus aligns himself here with plaintiffs. In his answer, the Chairman of the State Democratic Executive Committee opposes the complaint. First, he says the complaint fails to state a claim upon which relief can be granted; and secondly, that the action should be dismissed for want of equity inasmuch as the complaint presents a political question involving the authority of a coordinate branch of the federal government. The Democratic Chairman thus aligns himself with the defendant State executives.

The executives of the State, in their first amended original answer, assert four defenses. The first two are substantially identical with the first two defenses asserted by the Chairman of the State Democratic Executive Committee. Their second defense in the alternative is that the plaintiffs do not allege they have made any effort to secure relief through the enactment of legislation by the Congress of the United States of America. These defendants’ third defense is that the suit should be abated because the establishment of congressional districts of the State of Texas is a lawful prerogative of the Legislature of the State. And fourthly, these defendants in substance deny that the plaintiffs are fairly representative of all voters of the State of Texas or that plaintiffs constitutional rights have been violated.

Defendants pray that the cause be dismissed; in the alternative, that it be abated until the plaintiffs have sought unsuccessfully redress from the Congress of the United States or until the Legislature of the State of Texas shall have had an opportunity to give consideration to the matter of congressional redistricting in light of the rules established by the Supreme Court of the United States; and further in the alternative, in the event the cause is neither dismissed nor abated, for judgment denying plaintiffs the relief sought, and for other appropriate relief.

Defendants County Judge and County Clerk of Harris County, Texas, answer for themselves only and not for any class. They deny the representative capacity in which they are sued and suggest the possible conflict of interest between themselves and the interests of others of their alleged class. They request the Court to accept jurisdiction of the case and declare the rights of the parties in accordance with the applicable law and facts proven.

*519Plaintiffs did not pursue the alleged violations of their rights under the Texas Constitution or laws at trial. The Majority made no reference to such allegations. I deem such allegations as clearly having been abandoned.

Glenn R. Lewis, an attorney and citizen of San Angelo, Texas, which is situated in the 21st Congressional District, has appeared as Amicus Curiae. His argument is in opposition to the position of plaintiffs. Although opposed by Motion to Strike filed by plaintiffs, leave was duly granted the Amicus Curiae to file his argument.

As contrasted with the findings of fact,1-a the evidentiary facts contained in the Opinion are stated with substantial accuracy but I will add some.

This cause being in equity, the consequences of granting or denying relief are vital to decision. The Opinion sets forth fully the consequences to plaintiffs, which I will not repeat. But, I will undertake to state the consequences to named defendants and the State of Texas, and turn first to that task.

II. Consequences of the Majority Opinion and Command Decree

Because of my deep concern over the consequences of the action taken and in the sincere belief grave errors of law and judicial policy have been committed, but with great respect for and deference to the views of my distinguished colleagues, I have dissented to the Decree entered and Opinion filed by the Majority of this Court today.2

For the first time in the judicial history of the United States, a federal court holds in a case involving an attack on a state’s apportionment of its congressional representatives that “the simple constitutional fact is that so far as (a) the standard of composition of the Congress is concerned, as distinguished perhaps from (b) the standard governing the time and circumstance permitting or requiring judicial intervention, Members of Congress are to be elected on the basis of population and nothing else.”3 (Emphasis added.) Thus, the Court tells the State of Texas, its Governor, Attorney General, Secretary of State, and Legislature that in apportioning the congressmen allotted the State under Federal Law, the sole guideline for the State is “population and nothing else.” No prior judicial authority is cited to support this test. In fact, none exists.4

The congressional districts heretofore created by the Texas Legislature are found not to meet this population-only test and therefore to violate the Equal Protection Clause of the Federal Constitution, which in turn justifies, even necessitates, present judicial intervention and a present coercive judicial remedy.

Paragraph FIRST of the Decree grants declaratory relief, relief traditionally reserved by the judiciary for extraordinary occasions, and declares the present apportionment of congressional districts in Texas “unconstitutional and therefore * * * void and invalid.”5 Had the Decree been limited to granting declaratory relief, the adoption of the new population-only test would not be of such serious consequence. But when failure to meet this test is the primary reason for finding invidious discrimination and justifying judicial intervention together with the coercive relief ordered in Paragraphs SECOND and THIRD, the consequences of this error become calamitous.

Paragraph SECOND of the Decree grants another extraordinary remedy by enjoining the defendant State executives “from enforcing, applying or following said Art. 197(a),” which, again with respect, I believe to be error.6

*520Paragraph THIRD grants relief which, with deference, I find unique in the annals of federal jurisprudence, the more so because it is mounted in this delicate frame of state-federal relationships. It is not declaratory in nature. It orders official action. In my opinion, it constitutes mandatory type relief, the most extraordinary and jealously guarded remedy within the power of any court. And it is done without any pleadings on file which would justify, request, or even suggest, this character of relief; 7 without proper notice of such contemplated action having been given to the State of Texas or its said executives; without any indication whatsoever in the record that a valid apportionment act will not be in effect at the appropriate time by virtue of Paragraphs FIRST and SECOND of its Decree; and without any pending question or controversy before the Court which would make even the consideration of such a mandatory order appropriate or timely. It commands all within earshot as follows:

“THIRD: Pending enactment by the State of Texas of substitute legislation in the place of said Art. 197a, all Members of Congress for the State of Texas shall be nominated and elected from the State at large # * *»

I consider this command, made without precedent or authority, to be beyond the judicial power of the Court and violative of the Eleventh Amendment to the Constitution of the United States.

Undoubtedly, the underlying purpose of the Decree, so coercive in nature, is to give a “powerful cathartic” to immediate congressional reapportionment by the State of Texas, first suggested and presaged by a member of the Court in a colloquy with the Attorney General of Texas during oral argument.8

But I have grave misgivings that the sought result will be accomplished by this threat. As explained later, there is equally good reason to believe a consequence of this command may be to defer indefinitely reapportionment by the Legislature, a consequence contrary to the announced desires and purposes of the Opinion and Decree and of the defendant State executives, as well as of the plaintiffs.

In their pleadings and orally at trial the Governor of Texas, its Attorney General, and Secretary of State made an urgent plea to the Court9 for a reasonable time within which to obtain more definitive guidelines from the United States Supreme Court as to the basis for constitutionally reapportioning the State into congressional districts. The Senator10 and Legislator11 who testified, Chairmen of the cognizant Committees of the Texas Senate and House, respectively, ratified this plea. Admittedly, these guidelines *521should be received very soon in pending cases, particularly the Georgia case of Wesberry v. Vandiver, 206 F.Supp. 276 (N.D.Ga.1962) which is set down for oral argument in November 1963 and which, as the Opinion says, could be dis-positive here. The Chairmen expressed a cooperative attitude on behalf of themselves, their Committees, and the Legislature toward congressional reapportionment, and expressed the opinion that, given guidelines, reapportionment would be accomplished without delay at the next Regular Session of the Legislature. Furthermore, it is commonly known that the Governor has publicly stated such reapportionment would take place not later than the next regular Legislative Session.12 There is no dispute between the parties here as to whether or not the State should be reapportioned.

This urgent official plea is peremptorily rejected and the most coercive means within the power of the Court are used to compel immediate reapportionment, based upon the untested, and I respectfully say erroneous, guideline of “population and nothing else.”

It is undisputed that an at-large election of all congressmen would violate the congressional policy manifested in 2 U.S.C.A. § 2a, as well as the Texas statutory requirement of almost one hundred years standing, that representatives be elected by districts. This national policy was emphasized by Mr. Justice Frankfurter in Colegrove v. Green, 328 U.S. 549, 553, 66 S.Ct. 1198, 1200, 90 L.Ed. 1432 (1946) :

“The upshot of judicial action may defeat the vital political principle which led Congress, more than a hundred years ago, to require dis-tricting. This requirement, in the language of Chancellor Kent, ‘was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state, a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils.’ 1 Kent, Commentaries (12th ed., 1873) *230-31, n. (c).”

This policy should be upheld, not avoided, by this federal district court.

The possible congressional underrep-resentation of the 3,420,331 people of Dallas, San Antonio, Fort Worth and Houston13 and the possible dilution of their votes in congressional elections is explained at length in the Opinion. I do not believe the posed dilution or under-representation to be, in fact, as serious or as certain as the numbers are presented to illustrate. As is conceded, it is difficult if not impossible to demonstrate that the votes in the underrepresented congressional districts are outnumbered by a majority of congressional representatives elected by a minority of the population.14

But this explanation overlooks the plight of 6,159,346 15 people who do not live within the metropolitan areas of the four great cities but who could go virtually unrepresented for two years, and possibly longer, if at-large elections should occur.16 I have grave concern for the consequences to all of the people of Texas if at-large elections should be held.

The Opinion correctly recognizes 17 the Court’s obligation to balance the rights of the parties and the classes they repre*522sent, as well as of all the people of Texas. But in its attempted balancing the Opinion does not mention the well-known historical fact, which must have been overlooked, that of the nine congressmen selected in elections at large since 1910, four have come from Dallas, two from Houston, none from Fort Worth or San Antonio, and only three from smaller cities and towns. Of the latter three, all had statewide or national reputations at the time of election.18

Therefore, if at-large elections are held pursuant to the Decree and if history, as usual, correctly predicts the future, not less than 16 (two-thirds of the delegation of 23) would be elected from Dallas and Houston and 7 from the remainder of the State. On the other hand, if the 7 remaining should not have attained statewide or national prominence at the time of the election, history also shows it probable that more than 16 would be elected from Dallas and Houston.19

In addition to the disastrous effect at-large elections would have on areas and people located outside the great cities, it is extremely doubtful the Court’s population-only test will be accepted as the last word. Realistically viewed, there is bound to be opposition from these people to reapportionment based on this test, at least until it is finally passed on by the Supreme Court of the United States.

The Opinion recognizes and then lightly dismisses the problem of obtaining reapportionment through legislative action before February 3, 196420 in order to *523avoid 'elections at large.21 But careful study reveals that time alone prohibits such a summary solution of this serious problem.

Under the Texas Constitution a reapportionment law, like any other, cannot take effect until 90 full days after adjournment of the Legislature.22 Commencing with the deadline date of February 3, 1964 and computing backward, such an act would have to be passed on or before November 4, 1963 in order for it to be effective by the deadline date. But in order to permit defendants to attempt to obtain a stay of its execution, the Decree does not become effective until November 1, 1963. Therefore, if a stay should not be obtained by the latter date and the Governor should be disposed to attempt to obtain reapportionment through a Special Session, he and the Legislature would have only three days— Saturday November 2, Sunday November :3, and Monday November 4 — for the Session to be called, convened, reapportionment adopted, and the Session adjourned. I do not believe that even the “coercive relief” conceived from the Bench and so readily administered in the Decree is powerful enough to force such action within this three-day period.

It might be said in answer by plaintiffs that reapportionment, if passed, could be dome as an emergency measure, effective immediately rather than after the expiration of the 90-day period. But such suggestion would be completely unrealistic because it is well known that emergency legislation providing for immediate effectiveness is very hard to pass, even in the absence of controversial issues. A measure carrying such an emotionally-charged issue as reapportionment by population only would in my opinion be impossible to pass by the two-thirds majority of the House and the Senate required to make it effective immediately.23 The possibility of obtaining the immediate legislative apportionment suggested in the last paragraph of the Opinion is too remote to accept as an earnest suggestion.

At least one additional legislative problem is suggested by the Court’s action — ■ it may be necessary to amend the Texas Election Code in order to provide properly for the election of all congressmen in the State at large rather than by districts as provided in Article 197a.24

All districts are presently served by congressmen. Even if at-large elections were held, it is reasonable to assume many people in those districts would want at least the opportunity to reelect their incumbent congressmen in the at-larg-e elections. But, it is highly unlikely the congressmen from the thinly-populated regions far removed from the metropolitan areas, and known only in their districts, could get renominated or reelected in at-large elections. If these experienced congressmen should be swept out of office in an avalanche of statewide votes, it would probably be due more to their lack of statewide reputations than to their qualifications or lack of them. The consequences, the inherent unfairness, to the people living in the present districts from not having a reasonable opportunity to have their own congressmen reelected is disturbing. And, the consequences to the entire State of Texas when the removal of these congressmen is threatened, not by the expressed will of the people of Texas through normal political action but by the practical operation of an unfortunate intervention and untimely order of a federal court, is likewise disturbing.

Election of eongressmen-at-large would cause far more serious discrimination and consequences for people living outside the great metropolitan areas than is even alleged to exist presently, for today every region has substantial representation by districts. Plaintiffs only claim present serious underrepresentation in a few areas. At-large elections would leave many regions of the State of Texas and *524•their people, practically speaking, without representation at all.

The at-large elections ordered today are just as certain to set country against city, small city against large city, economic interest against economic interest, area against area, county against county, district against district, and generally foment antagonism, as night follows day. It seems to me that common sense, appropriate perspective and a carefully weighed regard for the political rights of all of the people of Texas require that such mandatory type relief not be granted.

In evaluating what is ahead, let us assume first that the Legislature for some reason does, not reapportion and Texas congressmen are elected at large; and secondly, that it does reapportion on the basis of today’s population-only test and Texas congressmen are elected from districts so reapportioned. Let us assume further that today’s population-only test is stricken down by the United States Supreme Court, as in my opinion it will be. In either event, this Court would have required the State of Texas to undergo the great and unnecessary expense of a Special Session of the Legislature.

If at-large elections should be held, there would be (a) a complete disruption of congressional representation ensuing from the certain defeat of many present congressmen living outside the great cities, and (b) virtually no representation of the areas outside those cities during the period of service of congressmen-at-large, all in violation of the basic policy of the United States and Texas that congressmen be elected by districts.

On the other hand, if the Legislature should be called into Special Session and hammer out a patchwork reapportionment based on today’s test of population only, congressmen would be elected from districts which again would have to be reexamined by a subsequent Legislature in the light of guidelines almost certain to be laid down soon by the Supreme Court. That reexamination would undoubtedly result in another reapportionment and still a different designation of districts. Meanwhile, many citizens and districts of the State would be having their votes diluted and be suffering un-derrepresentation, or enjoying overrepre-sentation, due to redistricting based on a standard announced and commanded by this federal court when the most compelling reasons required that the Court stay its own hand.

Moreover, there is presently pending before this Court a suit contesting the constitutionality of the apportionment of the Texas Legislature. If, and I am here expressing no opinion as to the merits of that case, the Legislature is determined to be unconstitutionally apportioned, this Court, by requiring the present Legislature to reapportion congressional districts without first determining the validity of the Legislature’s apportionment, would have created the nonsensical situation of requiring an unrepresentative body to make a determination affecting other representation of Texas citizens.

If the injunction granted is stayed, the State of Texas could be placed in the anomalous position of electing its congressmen under a congressional districting statute declared unconstitutional by a federal court. This would certainly be an undesirable situation and would cast serious doubts upon the right of those elected to be seated in the Congress.25

The only possible circumstance under which the Decree would not be fraught with the gravest of consequences would be the occurrence of the following events: (1) for injunction not to be stayed, (2) for the Texas Legislature to reapportion on the basis of population only, (3) for the United States Supreme Court to declare that population only is the correct standard for reapportionment, and (4) for the Texas Legislature to be determined constitutionally apportioned. Unless all these events should occur, which is extremely doubtful, there is no end of mischief ahead.

*525III. Absence of Necessary Parties to Grant Effective Mandatory Relief

Paragraph THIRD of the Decree, while unclear, is in the nature of a mandamus or mandatory injunction which compels parties to perform certain acts.26 It requires rather than prevents action, for it says “Members of Congress * * * shall be nominated and elected * * (Emphasis added.) Paragraph THIRD is not a simple declaration by the Court that the law requires an at-large election in the event the Texas Legislature should fail to reapportion. The Court was asked to make no such declaration by the complaint, the parties neither briefed nor argued the question, the Decree is not worded as a declaration of legal principles, and the plain truth is that Paragraph THIRD is not meant to declare a legal rule.27

Although the Paragraph is not directed against any named person or parties, it must be presumed that a court does not intentionally issue “hollow,” “empty” and ineffective orders and, therefore, it must be presumed that Paragraph THIRD is intended to apply to someone. The Court has jurisdiction to order only those defendants properly before it; since Paragraph THIRD does not designate the particular defendants to whom it is to apply, it must be presumed that it is intended to apply to all of the defendants in this case. I so construe it.

Nevertheless, it would still appear that the necessary parties to make Paragraph THIRD effective are not presently or properly before the Court. The performance of tasks by numerous and varied officials is necessary to carry out an election in Texas. The issuance of in-junctive orders against any of these officials could prevent the holding of an election.28 But to command these officials and those others specified by law to hold an election in a certain way, conceding arguendo that this Court has the power to do so, is quite another matter and would appear to require that this Court have jurisdiction over the persons of all the officials who must function in order to hold such an election.

Evidently, Paragraph THIRD orders that all members of Congress be nominated and elected at large because it was felt that at-large elections would not be the natural consequence of the injunctive and declaratory relief contained in the Decree if the Legislature fails to reapportion29

The instant suit was brought against the County Judge and County Clerk of Harris County as representatives of a class consisting of all county judges and county clerks throughout the State. However, the defendant Judge and Clerk do not answer for a class, if such in fact exists, but for themselves only. These two defendants carefully point out that other county judges and county clerks may have interests adverse to theirs.

Avoiding and failing to resolve the ticklish problem whether the defendant Judge and defendant Clerk properly represent such alleged class, Footnote 4 of the Opinion states “Although the nature of their duties is such that they are proper parties with respect to elections to be held in Harris County, we need not determine whether they may be sued as representative Defendants since effective relief is available by injunctive or declaratory orders against the Governor, the Secretary of State, and the Attorney General.” The Opinion therefore expressly fails to determine whether a proper class action has been brought such as would give the Court jurisdiction over all of the county judges and county clerks in the State of Texas.

The complaint in sub-paragraphs (4), (5) and (6), Paragraph II describes in detail with appropriate citations the extensive duties imposed upon the State Executive Committee Chairmen, County *526Judges and County Clerics of Texas by the Election Code. In doing so, the complaint refers to decisions to be made and action to be taken by the Republican and Democratic State Executive Committees, and duties- to be performed by county sheriffs, election precinct judges, and precinct and county conventions. Thus, plaintiffs point out many duties in holding elections to be performed by many people other than defendants.

Activity in preparation for biennial elections in Texas commences on the second Monday in February, the next such activity to commence February 2, 1964, at which time duties must be performed by the state committees of certain political parties. This activity continues for a period of several months and embraces numerous duties to be performed by the officials and persons mentioned in the complaint as well as commissioners’ courts, district chairmen and district executive committees, county chairmen, county executive committees, and precinct chairmen, all culminating in the General Election in November. These duties are extensive and varied. The delineation of them occupies most of Volume 9 of the Annotated Civil Statutes of the State of Texas. Art. 1.01 to Art. 3158a, inclusive.

The ■' multitudinous duties prescribed in the Texas Election Code are to be performed by the many people there designated. This Code does not authorize any defendant named in this suit or anyone else to usurp any of the duties committed to these many officials and people. But, all of these duties and people are purportedly caught up in the broad sweep of the Court’s order that “All Members of Congress for the State of Texas shall be nominated and elected from the State at large.” They would have to be subject to and bound by the Decree in order to accomplish the Court’s command.

This Court can effectively order at-large congressional elections, if it has the power at all, only in Harris County, for it has no jurisdiction to grant mandatory type relief against the county judges and clerks of other counties.

This matter has not been briefed by the parties, argued, or otherwise presented in the adversary manner normal to a judicial proceeding. It was not, simply because plaintiffs did not pray for any such relief.

Before the defendants now subject to the Court’s Decree can reasonably be held accountable for any failure to obey the command of Paragraph THIRD, all of these questions concerning parties must be determined by this Court. I assume further hearings will ensue in order to permit essential answers to these thorny problems to be found.

IV. Population-only Test— Incorrect Guideline

Again with deference, I disagree that members of Congress are to be elected on the basis of “population and nothing-else.”30 The United States Supreme Court has cautioned in MacDougall v-Green, 335 U.S. 281, 283-284, 69 S.Ct. 1, 2-3, 93 L.Ed. 3 (1948), that

“To assume that political power is a function exclusively of numbers is to disregard the practicalities of government. Thus, the Constitution protects the interests of the smaller against the greater by giving in the Senate entirely unequal representation to populations. It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process- and equal protection of the laws, to< deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact *527that the latter have practical opportunities for exerting their political weight at the polls not available to the former. The Constitution — a practical instrument of government —makes no such demands on the States. Colegrove v. Green, 328 U.S. 549 [66 S.Ct. 1198, 90 L.Ed. 1432] and Colegrove v. Barrett, 330 U.S. 804 [67 S.Ct. 973, 91 L.Ed. 1262].” 31

The Majority bases its position solely on Article I, Section 2 and Amendment XIV, Section 2 of the United States Constitution, which merely say that the number of congressmen allotted to each state shall be based on population.32 Article I, Section 4 of the Constitution provides that “The * * * Manner of holding Elections for * * * Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations * * *.” Nothing in the Constitution or statutes of the State of Texas requires congressmen to be elected from districts based upon population alone.33 From 1872 until 1929, Congress required elections by districts based in part upon population.34 The omission of that requirement from the statutes after 1929 is considered by the Majority to be inconsequential. But, although not decisive, that omission must indicate an intention on the part of Congress that population should no longer be such an important factor, for the requirement of districting based.partly on population had been dominant in prior enactments.

The mere fact that the Constitution requires that the number of congressmen allotted to each state be based on population does not command that each state use population as the sole basis for the delineation of its congressional districts.35 It does not require a one person — one vote test. The framers of the Constitution, disregarding mass majority rule and recognizing the necessity of representation of particular interests, allotted two senators to each state, regardless of size or population. If the different interests in a state are entitled to representation in Congress, since United States senators are elected at large, it will have to be through congressmen from districts based on other factors as well as population. I feel that particular interests in a state are entitled to representation in Congress and especially so in Texas with its large geographic area, its diversity of vocations, industries and other interests, as well as its unusually uneven distribution of population.36

*528Throughout American history, the principle of numerically equal representation of qualified voters has been only one among numerous relevant considerations. The principle has often been modified so that not only people, but interests, groups and regions have been represented. In a diverse, federated country, extended over a continent, organized as a representative, not a town-meeting democracy, we strive for a responsive government which reflects the electorate and is at the same time stable and effective.37

The Majority cites no Supreme Court authority for its postulated population-only guideline. Certainly, Baker v. Carr provides no comfort. Mr. Justice Frankfurter, dissenting, states that apportionment involves “considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others.” 369 U.S. at 323, 82 S.Ct. at 767, 7 L.Ed.2d 663.

The majority opinion in Baker v. Carr does not lay down an equal-population principle.38 To the contrary, it states that principles of the Equal Protection Clause are to be applied, viz., whether there is a rational basis for representation, whether it is applied consistently, whether the basis although rational and consistently applied is one the state could legitimately adopt, etc.

No support is provided the Majority’s position by cases prior to Baker v. Carr. The Supreme Court in Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131 (1932), held that the 1929 congressional apportionment act39 did away with the requirement of the 1911 act40 that equality of population be a dominant factor in the composition of congressional districts. The majority opinion in Colegrove v. Green, supra, said the Court could have decided that case on the basis of Wood v. Broom.

The only pronouncement by the Supreme Court on this matter since Baker v. Carr does not bolster the Majority’s position. In Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed. 821 (1963), the Court invalidated Georgia’s county unit system as a basis for counting votes in a Democratic primary for nomination of statewide offices on the ground that there can be no weighting in counting an individual’s vote. But the Court took great pains to explain that

“This case, unlike Baker v. Carr, supra, does not involve a question of the degree to which the Equal Protection Clause of the Fourteenth Amendment limits the authority of a State Legislature in designing the geographical districts from which representatives are chosen either for the State Legislature or for the Federal House of Representatives. * * * Nor does the question here have anything to do with the composition of the state or federal legislature. And we intimate no opinion on the constitutional phases of that problem beyond what we said in Baker v. Carr, supra. The present case is only a voting case. * * * Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote * * (Emphasis added.)

In my opinion, this careful delimitation by the Supreme Court of the effect of its *529ruling here may well be a harbinger of the Court’s ultimate decision that population alone is not the proper standard,

Several post-Baker v. Carr cases have held that population disparity can be of sufficient magnitude to make out a prima facie case of invidious discrimination 41 However, they further hold that this prima facie case can be rebutted by the demonstration of some rational basis for the disparity.42 This is a long way from holding that population is the sole basis for congressional districting, and none 0f the congressional redistricting cases has so held 43

*530V. Jurisdiction of the Court

In any matter, a court is bound to weigh carefully the propriety of its Order ; in this matter, that duty rests upon the Court a thousandfold. This Court, an arm of the national government created by the Constitution, is a court of limited jurisdiction; its judicial power is limited to that which Congress has granted it in accordance with the Constitution.44 The subject matter here dealt with is expressly reserved to the states in that same Constitution and traditionally regarded by the courts to be the sole prerogative of the states, except tó a very limited degree.

Jurisdiction here concerns (a) the subject matter, as well as (b) the relief or remedy (1) sought in plaintiffs’ pleadings, and (2) granted plaintiffs but not sought in their pleadings. Clearly allied are those questions addressed to the sound discretion of the Court involving the appropriateness of taking or denying jurisdiction.

What, then, is the judicial authority with which the Court is clothed in this matter?

A. Jurisdiction of subject matter and justiciability.

As the Opinion says, subject matter jurisdiction is closely related to justicia-bility. With respect to each, the Opinion; Wesberry v. Vandiver, 206 F.Supp. 276 (N.D.Ga.1962) ; Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946); Baker v. Carr, supra, cover the full spectrum of the divergent views on the subject. It is inconceivable that any remaining doubt in this regard will not be resolved by the Supreme Court when it decides Wesberry. For the purposes of this Dissent, I assume subject matter jurisdiction to exist and that the federal constitutional question at issue here is justiciable.

B. Jurisdiction to give requested and granted relief.

In their pleadings plaintiffs pray for an order reapportioning the State in the event the Legislature does not adopt a constitutional reapportionment act by July 1, 1963. Plaintiffs’ request for this relief was not urged at trial or in briefs. Therefore, I express no opinion here as to its present status or as to the Court’s jurisdiction to enter such an order, and pass to consideration of the relief granted in Paragraph THIRD of the Decree.

The Eleventh Amendment, as interpreted by the Supreme Court,45 prohibits suit in federal court against a state by one of its citizens in the absence of waiver by the state of its immunity. But the Supreme Court in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) held the federal courts had jurisdiction of a suit against an officer of a state, normally considered suit against the state and prohibited,46 to enjoin his enforcing a state statute in violation of the Fourteenth Amendment. To so hold, the Court reasoned that a state could not authorize its officer to act unconstitutionally and that the officer was therefore before the Court as an individual who could be prevented by injunction from enforcing the unconstitutional statute.

The very statute which confers jurisdiction upon this special three-judge court, 28 U.S.C.A. § 2281 (1950), was the result of an attempt by Congress to lessen public resentment to the effect of the decision in Ex parte Young.47

On what basis, then, may the Court order that at-large elections shall be held “[p] ending enactment of substitute legislation in place of said Art. 197a?”

*531Assuming only for the moment that all parties having the authority to carry out such a decree are before the Court, to order them to hold at-large elections is a far cry from preventing them from enforcing an unconstitutional statute. To force officials of the State of Texas to hold at-large elections is to exercise jurisdiction over the State government, which is prohibited by the Eleventh Amendment, even under Ex parte Young, unless the Majority finds that under the circumstances in this case and in the absence of a new apportionment, to do anything other than hold at-large elections would be unconstitutional,48 or that there is a controlling statute placing such a duty on defendants. So long as the State has any other constitutional alternative, the Court is overstepping its jurisdiction.49

But the Opinion indicates no consideration has been given the problem. There has been no holding by the Supreme Court on the question 50 and there is no clearly discernible constitutional or statutory mandate.51

The State of Texas has not in any way waived its immunity, either inherent in state sovereignty or existing by virtue of the Eleventh Amendment, to suit in this Court by these plaintiffs. This Court has never obtained jurisdiction over the State of Texas; its jurisdiction is strictly limited to that imparted by virtue of Ex parte Young — -to prevent by injunction the enforcing of an unconstitutional State statute by officials deemed to have left the pale of State immunity by virtue of preparing to act unconstitutionally.

For the foregoing reasons it is my opinion this Court does not have jurisdiction in this case to command the defendants through mandatory type relief to conduct elections for congressmen in 1964 at large.

C. Inappropriateness of judicial intervention.

In Sections IY and V of the Opinion, the Majority weigh the admittedly difficult judicial policy questions of appropriateness of judicial intervention and of granting coercive judicial relief. Being persuaded that an improper result obtained, I turn now to those policy questions.

In cases involving federal-state conflicts the federal courts have traditionally exercised commendable restraint, avoiding hasty or unnecessary action where possible. That restraint has taken many forms, and has often been inadequately labeled. In those cases involving legislative and congressional apportionment, both before and after Baker v. Carr, the phrase “want of equity” has commonly been used to sustain dismissal or refusal to grant immediate relief. Of course, in those cases declaratory judgments and injunctions were almost always sought, and the granting of either was clearly within the sound discretion *532of the courts.52 Thus, whether the traditional restraint involves something more than “equity” jurisdiction, as it probably does, is only of academic interest in this kind of case. Mr. Justice Frankfurter was content to call attention to the Court’s equity jurisdiction in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941), where, reversing the granting of a hasty injunction against enforcement of an allegedly unconstitutional order of the Texas Railroad Commission, he explained that

“[t]he history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction. There have been as many and as variegated applications of this supple principle as the situations that have brought it into play.”

In this case, also, declaratory and in-junctive relief is requested by plaintiffs, and this Court is in the posture of a court of equity.

Prior cases involving congressional dis-tricting, likewise in equity, uniformly evince the exercise of judicial restraint and refusal to act precipitously in this area, usually by dismissal or refusal to act without having first given the state legislature an opportunity to do so. Favoring dismissal for want of equity were four justices in Wood v. Broom, supra, where the remainder of the Court reached the same result by holding that congressional districts of equal size were no longer required after the 1929 statute had not reenacted the prior requirement to that effect.53

The majority in Colegrove v. Green, supra, speaking through Mr. Justice Frankfurter, expressed agreement with the four concurring justices in Wood v. Broom and would have dismissed the case for want of equity had they not been persuaded of its non justiciability. The concurring and pivotal position of Mr. Justice Rutledge in Colegrove was based completely on a dismissal for want of equity. If there is any life remaining in Colegrove, and apparently there is, for the Court in Baker v. Carr took great pains to distinguish the case, it clearly stands as authority for dismissal for a want of equity.54

Post-Baker v. Carr reapportionment cases have made use of the equitable abstention principle.55 The most prominent is Wesberry v. Vandiver, 206 F.Supp. 276 (N.D.Ga.1962), which I interpret as dismissing for want of equity 56

Chief Judge Tuttle, dissenting in Wes-berry, would not have dismissed; he would have withheld action, giving the newly apportioned Georgia Legislature an opportunity to redistrict. I have found no case in which a court has declared a state statute creating a con*533gressional district unconstitutional and enjoined its enforcement before giving the state legislature a reasonable opportunity to act.57 In the cases following Baker v. Carr, the courts have shown great patience with state legislative processes, even when presented with insupportable apportionments.

The reasons given by Mr. Justice Rutledge in his concurring opinion in Colegrove v. Green, supra, for dismissal for want of equity are pertinent to the present case. He explains that a court should avoid decision upon grave constitutional questions, especially when such decision may bring the court’s function into clash with the political departments of the government, if any tenable alternative ground for the disposition of the controversy is presented. He emphasized that the controversy in that case, the same as involved in this case, was of so delicate a character that jurisdiction should be exercised only in the most compelling circumstances.

Those factors in the Wesberry case which persuaded the majority to dismiss for a want of equity are also present in this case.58 In Wesberry the state legislature had previously been reapportioned and the possibility of relief forthcoming from such a properly apportioned body was of great import;59 whereas, in the instant case there is presently before this Court, in addition to this case, a suit challenging the validity of the apportionment of the Texas Legislature.

A factor not present in other cases dismissing for want of equity but weighing in favor of refraining from action in this case is that presently pending before the Supreme Court are several cases involving legislative and congressional ap-portionments.60 The Supreme Court in those cases could well establish what it did not establish in Baker v. Carr, guidelines for apportionment. Such guidelines would provide invaluable assistance to the Texas Legislature in its reapportionment efforts and to this Court in testing the validity of the fruits of such efforts. Therefore, this Court should refrain from acting at least until the Supreme Court has acted in the apportionment cases presently pending before it.

Of course, the undesirable consequences discussed in Section II of this Dissent, which may result from the precipitous action taken today, are other reasons why this Court should not grant the decreed relief.

Finally, and most emphatically, the Texas Legislature should be given the opportunity to solve this basically local problem without coercion from the federal courts.61

*534I agree with the position of Chief Judge Tuttle 62 that “it is a part of judicial statesmanship for this Court to refrain from stepping into this particular area until after the Legislature of the State * * * has had a fair opportunity to correct the present abuses.” (Emphasis added.) The Texas Legislature should not be forced in panic and without reflection to create the semblance of any type of congressional districting based solely on population in order to prevent an injunction from destroying the right of election of congressmen by districts. I might be of a different persuasion if the Texas Legislature had been lax or derelict in redistricting, but such is not the case.

Let us examine what occurred in the past and determine whether the Texas Legislature is capable of handling this problem. In 1957, long before Baker v. Carr, the Texas Legislature, in the most recent reapportionment, gave an additional congressman to Houston and changed eight of the remaining twenty districts so that they were much closer to the State average. At that time the population disparity between the 4th and 5th Congressional Districts was not nearly so great as it is today.63 Furthermore, the Texas Legislature was not then acting on the assumption that equal population was the sole factor to be considered.64

Baker v. Carr was not decided until March 26, 1962. Thei-e was no Regular Session of the Legislature in 1962. The House of Representatives and the Senate each passed a redistricting bill at the 1963 Session of the Legislature, but were unable to reconcile their differences before the end of the Session. It was a mere year since Baker v. Carr, and there was no pending court action compelling a redistricting when the bills were initiated.65 The Legislature was acting out of moral compulsion and its disposition to do its official duty. Senator Abraham Kazen and Representative Menton Murray testified that the Texas Legislature had recognized the inequity in the 5th Congressional District (Dallas) and that it would be rectified, but that the Legislature, desiring to do more than merely remedy the worst situation, had undertaken the much more difficult task of properly redistricting the entire State.

These witnesses explained that countless factors had to be considered, making the rearranging of congressional districts no mean task. But each House did pass a redistricting bill. Although the Majority feel that the bills effected inconsequential change66 and have seen fit to find them unconstitutional as measured by the population-only test, the Majority fail to recognize that no precedent establishing population as the sole standard existed during the deliberations by the Legislature. Population-only was never held to be the sole test until today.

The Texas Legislature has indicated by its actions for the past ninety years a reasonable attitude toward reapportioning. That attitude has not changed; as shown by statements of the Governor and the testimony of Representative Murray and Senator Kazen, it still exists.

On the other hand, favoring plaintiffs' position is the possibility that an exercise of greater restraint by this Court might, delay the benefits of reapportionment until the 1966 congressional elections. *535Plaintiffs say they are entitled to equal protection now. But, as Mr. Justice Rutledge stated in Colegrove v. Green, “The right here is not absolute. And the cure sought may be worse than the disease.” 67

The constitutional right here involved does not pertain to life or liberty and is not one calling for immediate attention to prevent permanent, irreparable harm. The Opinion points out very well the limited extent of harm that may possibly be suffered by the plaintiffs.68

In the “School Segregation Cases” ■which the courts have characterized as involving classic invidious discrimination (being based on race, creed or color), "the courts have delayed the full realization of constitutional rights to many people by the “grade a year plans,” simply because other factors outweighed the immediate realization of all these rights ■for all these people.

It is important here that plaintiffs do have representation; they only claim it to be insufficient. But the action taken by the Majority in response to plaintiffs’ plea may cause many Texas citizens to be completely without effective representation. A proper weighing of the equities in this case and a sober consideration of the grave consequences of unnecessary, precipitous action lead me inescapably to the conclusion that this Court should 'Rave refrained from action in order to provide the Texas Legislature sufficient time to approach the problem in a calm and orderly manner.

D. Inappropriateness of coercive judicial relief.

Having determined judicial intervention, the Opinion proceeds to discuss the .appropriateness of granting coercive judicial relief.69 With deference, the argument made in support of granting such relief appears to be inconsistent and contains many misconceptions of the legislative process.

Throughout, the Opinion affirms the ■good faith of the Texas Legislature and its spokesmen. But in the granting of coercive relief is contained an implication that the Legislature has been less than diligent. The Majority says that the Texas Legislature, composed of laymen as well as lav/yers, should have understood the full reach of Baker v. Carr in the light of “contemporary constitutional development,” and presumably with the benefit of the teachings of Baker v. Carr, that it should have immediately proceeded to reapportion Texas. But what guidance was Baker v. Carr? Mr. Justice Stewart carefully explains in his concurring opinion that

“The Court today decides three things and no more: ‘(a) that the court possessed jurisdiction of the subject matter; (b) that a justicia-ble cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) * * * that the appellants have standing to challenge the Tennessee apportionment statutes.’ * * *
**•»■»**
“ * * * [T]he Court most assuredly does not decide the question, ‘may a State weight the vote of one county or one district more heavily than it weights the vote in another?’ ” 369 U.S. at 265, 82 S.Ct. at 736-737, 7 L.Ed.2d 663.

I must confess that I do not understand how any reasonable criticism can be leveled at the Legislature for not having “taken off” from this highly controversial decision which did not involve congressional redistricting and which did nothing more than was pointed out by Mr. Justice Stewart.

Texas has been reapportioned many times, as noted in the Opinion. History shows Texas to have been duly attentive to its duty of reapportionment. Furthermore, the record here shows that if the present Texas apportionment is not acceptable, it is only because of gradual population shifts since the 1933 apportionment act. In other words, the appor*536tionment now in effect was constitutional at the time it was enacted, as admitted by plaintiffs. Only through subsequent shifts in population do plaintiffs claim it has become unconstitutional.

The Majority’s argument that the Texas Legislature should be able to reapportion now because it has done so in the past begs the question. Never before has the Legislature been subject to the vigilance of the courts without having been authoritatively told what standard would be used to measure its action.

The Opinion chides the Texas Legislature for the manner in which it held hearings on proposed reapportionment acts during the last Regular Session, commenting that no assistance was sought from experts on government. But the record shows hearings were held after proper notice and that the other usual procedures were followed.

The Opinion criticizes the Governor of Texas for not convening a Special Session of the Legislature to reapportion, since this suit was pending when the Legislature adjourned on May 24, 1962, without adopting a reapportionment. But this attitude fails to take into consideration one of the oldest concepts of proper deference between the legislative and the judicial departments, whether at the federal, state, or state-federal level. The judiciary does not intervene to pass upon pending legislation and, by the same token, legislative bodies do not usually legislate on matters pending before the courts before receiving the final decision of the courts. For these very reasons it would have been unwise for the Governor to call the Legislature into Special Session during the brief period between May 24, 1963, the end of the Regular Session, and the trial of this cause, then on file, which commenced pre-trial on June 26, resumed pre-trial on September 9, and proceeded to trial on September 23, 1963. That the Texas Legislature should not have reapportioned with this lawsuit pending is demonstrated by the fact that the Court today has adopted a new, unique and never-before-enunciated test for reapportionment, the population-only test.

For all of the reasons set forth in this Dissent, I consider it inappropriate for the Court to grant the coercive judicial relief contained in Paragraph THIRD of the Decree.

Conclusion

As to the respective parties and issues, based upon the pleadings and several motions before the Court, I feel the Court should enter a decree along the following lines:

(a) As to defendant Peter O’Donnell, Jr., Chairman of the State Republican Executive Committee, in view of his answer admitting each and every allegation in the complaint and consenting to the relief prayed for, I would leave the case pending on the docket at least until the United States Supreme Court hands down its opinion in Wesberry v. Vandi-ver, supra.

(b) As to the County Judge and County Clerk of Harris County who pray that the Court grant jurisdiction and declare the rights and duties of the parties, I would leave the case pending for the period mentioned in sub-paragraph (a) next above.

(c) As to the defendant Governor, Attorney General and Secretary of State of the State of Texas, I would dismiss without prejudice to the plaintiffs to refile their complaint if they should so elect after the Texas Legislature has next met in Regular Session.

. Original order of designation by Chief Judge Tuttle dated April 25, 1963.

. For example, at page 17 of the Opinion it is said that all the 1957 apportionment act did was to provide Harris County an additional congressman. This conclusion of fact is in error. See page 534, this Dissent for correct statement of the effect of the 1957 act.

. Hereinafter referred to as “the Decree” and “the Opinion,” respectively.

. The Opinion, p. 524.

. See Section IV, this Dissent.

. See Section V, Sub-section C, this Dissent.

. Ibid.

. Statements of counsel during oral argument (Transcript, p. 149, lines 8-11; Tr., p. 150, lines 19-23) concerning the suggestion of at-large elections by a member of the Court and plaintiffs’ prayer for general relief are not regarded as pleadings, requests, suggestion or notice. However, it is noteworthy that in the Motion to Strike the Amicus Curiae Argument of Mr. Lewis, counsel for plaintiffs meticulously avoided any inference to any request by them for the order of at-large elections. I would infer plaintiffs do not want the credit, or liability if such should be the case, of asking for at-large elections even in the alternative. Their Motion to Strike merely says the declaration of the unconstitutionality of 197a would act as a “powerful cathartic * * * as * * * suggested by the Court,” and that “prospects for elections at-large in 1964 are indeed remote.” The latter statement is euphoric and, I fear, misinformed.

. Tr., p. 137, lines 20-23.

. Tr., p. 130, line 25 and p. 131, lines 1-9.

. State Senator Abraham Kazen of the 21st Senatorial District (Rio Grande Valley); Chairman of the Senate Committee for Legislative and Congressional Redistricting; six years prior service as a Representative and eleven in the Senate.

. State Representative Menton J. Murray, District 39, Place 1 (Cameron County in the Rio Grande Valley); Chairman of the House Legislative and Congressional *521Redistricting Committee; fifteen years continuous service in the House.

. Statement made to Texas delegation of the Congress, Washington, D. C., October 3, 1963. Reported in the Houston Post, October 4, 1963.

. Congressional Districts 5, 8, 12, 20 and 22.

. The Opinion, p. 527.

. Population of Congressional Districts 1, 2, 3, 4, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19 and 21.

. Tr., p. 136, lines 22-25; p. 137, lines 1-8.

. The Opinion, p. 513.

. I will judicially notice that nine congressmen have been elected at large from the State of Texas since 1910, at about which time the great population growth began in the cities of our State. Six of the nine were residents of either Dallas or Houston, the two largest cities in the State. The other three men, whose names are even now well-remembered, had already received statewide or national recognition when elected.

Dallas:

Hatton W. Sumners (63rd Congress)

Sterling P. Strong (73rd Congress)

Joseph W. Baily, Jr. (73rd Congress)

Joseph R. Pool, incumbent (88th Congress)

Houston:

Daniel E. Garret (63rd, 65th Congresses)

A. Jeff McLemore (64th, 65th Congresses)

Other:

James H. Davis, Sulphur Springs (64th Congress) : Known all over the State as Cyclone Davis; nationally known Chautauqua lecturer there billed as . “Texas Cyclone”; statewide candidate as a member of the Populist Party on many occasions prior to his election as Congressman-at-Large; served only one term.

George B. Terrell, Alto (73rd Congress): Prior to his election served as State 'Legislator and Senator, and for 11 years preceding his election as a Congressman-at-Large, served as State Commissioner of Agriculture.

Martin Dies, Jr., Lufkin (83rd-85tli Congresses) ; Had served as Congressman from 2nd Congressional District, 72nd through 78th Congresses (1931-1945), during which time he had been Chairman of the Un-American Activities Committee of the House of Representatives ; candidate for the U. S. Senate in one prior statewide race, and son of a prominent Texas lawyer, Legislator and political figure bearing the same name.

Biographical Directory of the American Congress, 1774-1961, U. S. Government Printing Office (1961).

. I emphasize here that no party, no person, from Dallas, Houston, any other large city or elsewhere has sought or suggested an- order for elections at large. There has been no effort exerted by Dallas or Houston or the citizens of these great cities to obtain or gain the advantage of disproportionate representation or overrepresentation which would surely result from at-large elections. This idea of using at-large elections as a threat to coerce reapportionment is solely the idea of a member of this Court. The problems which so concern me are those which flow from the implementation of this idea, Paragraph THIRD of the Decree.

. The date by which the state committees of political parties not required by law to nominate by primary election shall meet to designate their chairmen and to decide whether to nominate by convention or primary elections. Art. 13.46 V.A.T.S. The Majority considers this the deadline date. The Opinion, p. 513.

. The Opinion, p. 510.

. Tex.Const. Art. 3, § 39.

. Ibid.

. See this Dissent, Section III.

. See the Opinion, Footnote 34, for an expression of the same view.

. See Duncan Townsite Co. v. Lane, 245 U.S. 308, 38 S.Ct. 99, 62 L.Ed. 309 (1917); The Board of Commissioners of Knox County v. Aspinwall, 24 How. 376, 65 U.S. 376, 16 L.Ed. 735 (1860).

. Tr., p. 137, lines 13-21.

. See Footnotes 1-4 of the Opinion.

. See Section Y, this Dissent.

. Although the Majority states that invidious discrimination is more than mere arithmetic, nonetheless, they establish the strict population standard quoted on page 519 of this Dissent as the only valid basis for the composition of congressional districts.

. This view was manifested earlier in Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946), and Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131 (1932), oases specifically involving equality of population as a standard for congressional districting.

. See Footnote 25 of the Opinion, and accompanying text.

. See Footnote 5 of the Opinion.

. Beginning in 1842, Congress passed a series of statutes prescribing standards for congressional districts. Act of June 25, 1842, ch. 47, § 2, 5 Stat. 491 (districts of contiguous territory) ; Act of Feb. 2, 1872, ch. 11, § 2, 17 Stat. 28 (contiguous territory containing an equal number of inhabitants as nearly as practicable); Act of Feb. 25, 1882, ch. 20, § 3, 22 Stat. <6 (same); Act of Feb. 7, 1891, ch. 116, § 3, 26 Stat. 735 (same) ; Act of Jan. 16, 1901, ch. 93, § 3, 31 Stat. 734 (contiguous and compact territory, equal number «f inhabitants); Act of Aug. 8, 1911, ch. 5, § 3, 37 Stat. 14. The 1911 act required that districts be “composed of a contiguous and compact territory * * * containing as nearly as practicable an equal number of inhabitants.” These requirements expired with the passage of the 1929 apportionment act, 46 Stat. 26, as amended, 2 U.S.O.A. § 2a (1958). See Wood v. Broom, 287 U.S. 1, 8, 53 S.Ct. 1, 77 L.Ed. 131 (1932). No subsequent legislation requiring equal congressional districts has been enacted.

. See The Federalist, Nos. 54, 56 (Madison).

. It is well known that Texas contains 254 counties, the largest in population being Harris with 1,243,158 people and the smallest, Loving with 226 people. The largest county in area is Brewster with 6,208 square miles and the smallest, Rockwall with 147 square miles. Texas measures 801 miles from north to south *528and 773 miles from east to west. 1961-1962 Texas Almanac 44.

. See Bickel, The Durability of Colegrove v. Green, 72 Yale L.J. 39 (1962).

. See the concurring opinion of Mr. Justice Stewart, at p. 265, 82 S.Ct. at pp. 736-737, 7 L.Ed.2d 663, quoted at page 535, this Dissent.

. 46 Stat. 26, as amended 2 U.S.C.A. § 2a (1958).

. 37 Stat. 14 (1911).

. Lisco v. McNichols, 208 F.Supp. 471 (D.Colo.1962); Mann v. Davis, 213 F.Supp. 577 (E.D.Va.1962) ; Moss v. Burkhard, 207 F.Supp. 885 (W.D.Okl.1962).

. With respect to the prima facie case claimed by plaintiffs, their own evidence as to the history of reapportionment, population densities, counties, distances and similar proof, together with what the Court judicially knows, rebut the prima facie case. The evidence of defendants served also to rebut such presumption.

. Clark v. Carter, 218 F.Supp. 448, 451 (E.D.Ky.1963), “That the Equal Protection Clause of the Constitution does not deny a State, in the establishment of Congressional Districts, the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses seems so thoroughly established by the decisions of the Supreme Court as to be no longer open to dispute.”;

Thigpen v. Meyers, 211 F.Supp. 826, 829 (W.D.Wash.1982), “The Constitution and existing laws of the United States do not require congressional apportionment on the basis of population, Wood v. Broom * *

Wesberry v. Vandiver, 206 F.Supp. 276, 282 (N.D.Ga.1962), “We would apply the test for invidious discrimination by con-siding all relevant factors, including a determination of rationality of state policy behind the statutory system, arbitrariness, whether the system has a historical basis in our political institutions, together with the presence or absence of political remedy.” ;

Wisconsin v. Zimmerman, 209 F.Supp. 183, 187 (W.D.Wis.1962), “The equal protection clause of the Fourteenth Amendment to the United States Constitution does not require that legislative and congressional districts be precisely equal in population.”;

Lund v. Mathas, 145 So.2d 871 (Fla.Sup.Ct.1962), “Neither the Federal nor State Constitutions, nor the Federal nor State statutes, require that the Florida Legislature apportion Congressional districts upon the basis of numerical equality. * * * Population is one of several important factors in apportionment.”

Although Wright v. Rockefeller, 211 F.Supp. 460 (S.D.N.Y.1962), and Honeywood v. Rockefeller, 214 F.Supp. 897 (E.D.N.Y.1963) touch on congressional districting, they are essentially racial and political gerrymandering eases.

An examination of those cases cited in the Opinion at Footnote 24 as articulating an invidious discrimination test indicates that other factors as well as population are to be considered. Sims v. Frink, 208 F.Supp. 431, 436-437 (M.D.Ala.1962), “Judge Bell [in Sanders v. Gray, 203 F.Supp. 158, 168-170 (N.D.Ga.1962) ] continued to formuate a test for invidiousness on a consideration of all relevant factors such as rationality or irrationality of state policy, whether or not the system is arbitrary, whether or not the system has a historical basis in our political institutions — federal or state, the presence or absence of political remedy, and the delicate relationship between the federal and state governments under the Constitution.”;

Toombs v. Fortson, 205 F.Supp. 248, 254, et seq. (N.D.Ga.1962), “Unlike per se invidiousness, springing from discrimination based on race, creed or color, we must here deal with discrimination not so infected, but arising out of a- state legislative classification diffusing * * * political strength. * * *

$ * # * “ ‘ * * * [W]e make the test [of invidious discrimination] on a consideration of all relevant factors * * *.’ ”

The invidious discrimination test was not stated by the majority in Baker v. Carr, but was set forth by Mr. Justice Douglas in his concurring opinion in that case which states “The traditional tost under the Equal Protection Clause has been whether a State has made ‘an invidious discrimination,’ as it does when it selects ‘a particular race or nationality for oppressive treatment.’ See Skinner v. Oklahoma, 316 U.S. 535, 541 [62 S.Ct. 1110, 86 L.Ed. 1655]. Universal equality is not the test; there is room for weighting. As we stated in Williamson v. Lee Optical Co., 348 U.S. 483, 489 [75 S.Ct. 461, 99 L.Ed. 563], ‘The prohibition of *530the Equal Protection Clause goes no further than the invidious discrimination.’ ” 369 U.S. at 244-245, 82 S.Ct. at 724-725, 7 L.Ed.2d 663.

. 1 Moore, Federal Practice 607-08 (1961).

. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

. Governor of Georgia v. Madrazo, 1 Pet. 110, 122-123, 26 U.S. 110, 122-123, 7 L.Ed. 73 (1828).

. Wright, Federal Courts 162 (1963) [citing 1910, 42 Cong.Rec. 4847, 4853].

. But even in such case, the Decree should be directed at defendants, enjoining them from holding elections in any way other than at large. The Decree apparently disregards the Eleventh Amendment and orders all within earshot. • \

. Ex parte Young, 209 U.S. 123, 158, 28 S.Ct. 441, 453, 52 L.Ed. 714 (1908), “There is no doubt that the court cannot control the exercise of the discre- \ tion of an officer.”

.The closest thing to that is the language of Mr. Justice Frankfurter in Colegrove v. Green, 328 U.S. 549, 553, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946), stating that the result of holding statute unconstitutional would be at-large election if legislature did not act. That was clearly not the central question before the Court, and is unexplained dicta.

. 2 U.S.C.A. § 2a (3963 Supp.) seems to require districting except in those special circumstances listed. The situation here is clearly not included. The Constitution expressly reserves to the state legislatures the power to determine methods of election, although Congress may alter the states’ regulations. Art 1, § 2, cl. 1. Nowhere is it said that at-large elections are required in the absence of other methods. Nowhere is there the slightest indication that the federal courts have the authority to decree methods of election for representatives.

. “A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S. Ct. 641, 644, 92 L.Ed. 784 (1948).

. See Section IV, this Dissent.

. Mr. Justice Brennan says in Baker v. Carr, “Indeed, the refusal to award relief in Colegrove resulted only from the controlling view of a want of equity. * * * MacDougall v. Green, 335 U.S. 281 [69 S.Ct. 1, 93 L.Ed. 3], held only that in that case equity would not act to void the State’s requirement that there be at least a minimum of sujjport for nominees for state-wide office, over at least a minimal area of the State.” 369 U.S. at 234-235, 82 S.Ct. at 719-720, 7 L.Ed.2d 663.

. Sea Davis v. Synhorst, 217 F.Supp. 492 (S.D.Iowa 1963) ; Lisco v. McNichols, 208 F.Supp. 471 (D.Colo.1962); Thigpen v. Meyers, 211 F.Supp. 826 (W.D.Wash. 1962); Wisconsin v. Zimmerman, 209 F.Supp. 183 (W.D.Wis.1962); Lund v. Mathas, 145 So.2d 871 (Fla.Sup.Ct.1962).

. The Opinion may be correct in its conclusion that a case containing those factors listed by the majority in Wesberry as requiring dismissal could never be heard on its merits. One of those factors, the presence of a political question involving a coordinate branch of the federal government, was said by Mr. Justice Brennan in the majority opinion in Baker v. Carr to be indicative of a non-justiciable political question. 369 U.S. at 210, 82 S.Ct. at 706, 7 L.Ed.2d 663.

. See Thigpen v. Meyers, 211 F.Supp. 826 (W.D.Wash.1962); Wisconsin v. Zimmerman, 209 F.Supp. 183 (W.D.Wis. 1962); Clark v. Carter, 218 F.Supp. 448 (E.D.Ky.1963); Wright v. Rockefeller, 211 F.Supp. 460 (S.D.N.Y.1962); Honeywood v. Rockefeller, 214 F.Supp. 897 (S.D.N.Y.1962) ; Lund v. Mathas, 145 So.2d 871, (Fla.Sup.Ct.1962).

. They are: a political question involving * a coordinate branch of the federal government; a political question posing a delicate problem difficult of solution without depriving others of the right to vote by districts unless the Court itself redistricts the state; the possibility of relief from the state legislature; the possibility of relief from Congress.

. Chief Judge Tuttle places great emphasis upon this factor, for he states, “In Baker v. Carr the Supreme Court stressed as one of the factors which it considered as warranting a federal court’s granting relief in a case of legislative malapportionment within a state the absence of any practical means by which the plaintiffs might hope to obtain relief at the hands of the state legislature.” 206 F.Supp. at 286.

. See the Opinion, Footnote 6.

. Congressman Emanuel Celler of New York, in a hearing before the Committee on the Judiciary, House of Representatives, recently stated that it was impracticable to draw congressional district lines in Washington. He stated that the economic and social interests of an area, its topography and geography, means of transportation, the desires of the inhabitants as well as their elected representatives, and the political factors should all be considered, and that the state legislatures are far better equipped to determine and evaluate those factors than *534either Congress or any national agency it might designate to do so. See Footnote 6, Wesberry v. Vandiver, 206 F. Supp. at 285.

. Dissenting opinion, Wesberry v. Vandiver, supra, 206 F.Supp. at 286.

. 1950 Census: District 4 — 227,735; District 5 — -614,799.

. See Dissent, Section IV, for the view that population should not be the sole factor.

. The House Bill was introduced March 7, 1963; the House passed H.B. 871 and sent it to the Senate on April 4, 1963. The instant case was filed on April 23, 1963. The Senate’s bill was passed on May 22, 1963.

. They did, however, rectify the 4th-5th Congressional District inequity. The 5th Congressional District (Dallas) was split into two districts (5th with 512,973 people and 23rd with 438,554 people) and the present 4th District was abolished.

. 328 U.S. at 566, 66 S.Ct. at 1209, 90 L.Ed. 1432.

. The Opinion, p. 513.

. The Opinion, Section V, p. 512.