(concurring in part and dissenting in part).
While concurring in the result reached by the majority, I am unable to agree with certain conclusions, both of law and fact,1 ****concerning the Delaware Senate. My views will be briefly stated.
We have just concluded that not only the House of Representatives created by Article 2 See. 2 of our Constitution but also the House created by the 1963 Amendment are both invalid because offensive to the equal protection clause of the Federal Constitution. In this I believe we are on firm ground. True, the Federal Supreme Court has not said in so many words that at least one of the branches of a state legislature must be composed of representatives elected strictly on a population basis. Yet the gleanings from certain of the concurring opinions in Baker v. Carr, as well as the expressions of most of the lower courts which have since spoken upon the subject,2 point implacably in that direction.
But, having declared both the old and the new Lower Houses to be invalidly created under federal constitutional standards, I think it unnecessary to proceed further and declare the State Senate to be invalidly constituted. This is so because the 1963 Amendment to Article 2 Sec. 2 of the Delaware Constitution contains no severability clause and the great weight of authority is to the effect that, in such event, the entire Act must fall. Carter v. Carter Coal Co., 298 *196U.S. 238, 316, 56 S.Ct. 855, 80 L.Ed. 1160; 2 Southerland Statutory Construction, Sec. 2403.3
Moreover, it is a settled principle of judicial approach that a Court should avoid passing on the constitutionality of an Act unless such adjudication is unavoidable. Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128. Here, because the whole Act falls due to the lack of a sever-ability clause, it becomes unnecessary to go further and consider the validity of the State Senate upon constitutional grounds and, in my judgment, we should avoid doing so. However, because of the unusual nature of these proceedings some broad, general guide lines might be laid down by way of dictum.
Nor can I agree with the conclusions of the majority that the State Senate is invalidly created because (1) the members are elected upon the basis of an equal number from each county rather than substantially upon a population basis, and (2) of the so-called super-senator device whereby voters in the Lower Counties are casting a vote for two senators while those in New Castle are voting for only one.
The majority finds an invidious discrimination in the fact that voters from New Castle County, containing sixty-nine per cent of the State’s population, can elect but seven senators while the voters of the two Lower Counties, containing but roughly 15 per cent each of the population, are permitted to elect the same number of senators.
With deference, I can find nothing constitutionally wrong in the make up of a State Legislature composed of a Lower House whose members are elected upon a strict population basis and an Upper House whose members are elected in equal numbers from each County.4 This is the way our Federal Congress is constituted. True, the analogy between a State Legislature and the Federal Congress is not exact. For one thing, the states are sovereign while the counties are not. More importantly, under the 1963 amendment, an invidious discrimination could well be found to exist on an intra-county basis in the composition of the Senate which would necessitate a redistricting. For instance, the 4th Senatorial District of New Castle County with a population of 64,000 has one senator, while the 7th Senatorial District of the same county has 4,000. Nevertheless, while not exact, the broad analogy is clear and to my mind it is incongruous to hold that a state legislature patterned upon lines precisely similar to those of the federal system is unconstitutional because offensive to the Equal Protection Clause of the Federal Constitution.
My recollection of the record is that there are seven states whose legislatures are patterned exactly on the federal system. So far as I am aware, until recently no one has seriously challenged their validity. The Supreme Court of the United States has never expressed any view on the subject, nor, as far as I have found, have any legal text writers. Nothing in Baker v. Carr suggests that the expression “invidious discrimination” was aimed at a State Senate composed of equal numbers from each county where there also existed a Lower House whose membership was elected on a strict population basis. Rather, I think it should be assumed that these words were directed at situations akin to our 6th *197Representative District of Brandywine Hundred, having a population of over 58.000, vis-a-vis the 15th Representative District of Blackbird Hundred, in which the population is about 1,600, with the result that a vote for a State Representative in the 6th District of Brandywine is worth about one-thirtieth of a vote in the 15th District of Blackbird Hundred. As a practical matter, no more glaring example of “invidious discrimination” can be found than in general elections where a voter in Nevada, having a population of approximately 285,000, casts a vote for a United States Senator while at the same time a voter in the State of New York, having a population of 16,-750.000, casts his vote for a United States Senator.
Since the so-called federal system has withstood 175 years of stress and strain in the national political arena, I can see no valid reason for interfering with the composition of a State Legislature modeled exactly on it.
The majority has also found unconstitutional the 1963 Amendment in so far as it concerns the creation of 2 so-called super senators from each of the two Lower Counties in order to equalize the number of senators from each County at 7. This was a most unfortunate business. Speaking as an individual I would agree with the majority that the result is sheer gerrymandering, but speaking as a judge I am unable to find such an action invalid because, in my view, a Senate composed of an equal number of senators from each county is not an unconstitutionally created body providing the membership of the Lower House is elected on a strict population basis. And simply because the Legislature chose a dubious path by which to arrive at a valid result is not grounds for judicial interference.5
In conclusion, I concur in the result reached by the majority in holding that the State Senate as created by the 1963 Amendment to Art. 2 Sec. 2 of the Constitution must fall but upon the single ground that the Amendment, containing no severability clause, the entire Act-must fall. With the other conclusions ar= rived at by the majority I must respectfully disagree.
. My disagreement -with certain facts found by tbe majority plays no important part in this concurring opinion. If tbe time should arrive when these factual considerations should become relevant, I will cover the subject in a very short memorandum opinion.
. For instance see Toombs v. Fortson, 205 F.Supp. 248 (U.S.D.C.N.D.Ga.1962).
. The rationale underlying the authorities above cited is that a Legislature would never have intended the passage of an Act had it realized that one part was unconstitutional. Certainly it is difficult to imagine that the Delaware Legislature would have passed the 1963 Amendment had it known that the important portion thereof constituting the House of Repre-entatives was invalid.
. By this I mean that the so-called federal system should be regarded as sotting minimum standards. No valid reason exists why a county having a very large population should not have more senators than a much smaller county.
. The majority laid emphasis on the fact that the voters in the two Lower Counties will now vote for two state senators while in New Castle County they can vote for only one. This reasoning is not without merit but since the end result is the election of seven senators from each County and becáuse, in my view, the value of a vote for a state senator varies throughout the state because of population differences, I am not persuaded that the result offends the Equal Protection Clause.