(concurring in part and dissenting in part).
The Supreme Court of the United States now has made crystal clear that the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States requires “as a basic constitutional standard” that “the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.”
The Court’s mandate is not expressed in precisely measured terms. The principle is laid down in broad terms of “an honest and good faith effort” to construct districts in both houses of the legislature “as nearly of equal population as is practicable.”
The Court said:
“By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.”
And the Court said:
“For the present, we deem it expedient not to attempt to spell out any precise constitutional tests. What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case. Developing a body of doctrine on a case-by-case basis appears to us to provide the most satisfactory means of arriving at detailed constitutional requirements in the area of state legislative apportionment.” Reynolds v. Sims, 377 U.S. 533, at pp. 577-578, 84 S.Ct. 1362 at pp. 1389-1390, 12 L.Ed.2d 506, decided June 15, 1964. .
It is by these broad principles that we are bound, the legislature and the courts alike.
I fully agree that it is the primary duty of the Utah Legislature to reapportion so as to establish a valid representation in the legislature. But, it has never done so, not once, since statehood.
This State has a long history of frustrated attempts to reapportion.
That history is summarized by the Utah Supreme Court in Parkinson v. Watson, 4 Utah 2d 191, 291 P.2d 400. The highest court of the State of Utah says:
“The difficulties in securing enactment of reapportioning legislation have been such that, notwithstanding the directive that it be done following each federal census, only three such acts have been passed since Statehood, and the 1955 Act is the first since 1931. It is the culmination of efforts made during each regular legislative session since 1941, a total of 20 bills having been introduced in attempting to comply with that requirement. This failure is not chargeable to partisanship of the major political parties, as each has controlled various of the legislative sessions during that period. Rather it seems to have been due to the refusal of representatives of the rural areas, which had a majority, 31 to 29 in the house and 12 to 11 in the senate, to agree to any reapportionment of the senate on a strictly population basis 4 which would have vested control
“4. This seems generally true but the alignment on this issue does not appear to have ever been exactly on such basis.
of both houses of the legislature in the ‘Wasatch Front’ urban counties.
*969“After further abortive attempts in the 1951 session, the conflicting bills were referred to the Legislative Council. The Council suggested several possible compromises. A bill patterned upon its report, and another compromise bill were introduced in the 1953 session. Again neither of these proved palatable to the rural interests of the state. Upon the legislature’s failure to agree in that session, a resolution proposing a constitutional amendment was passed, submitting the matter to the people in the 1954 election. It would have given each county one senator regardless of size, and although it carried in 23 of the 29 counties of the state, it was rejected by an overwhelming majority of the popular vote. Finally the opposing interests resolved their differences by adopting the 1955 Act, under review here.”
The state constitution commands that the legislature “shall revise and adjust the apportionment for senators and representatives” following each federal census. Article IX, Sec. 2.
Notwithstanding this mandate in the state constitution, only four such acts have been passed since Utah was admitted to the Union, January 4, 1896.
The Supreme Court of Utah says this failure is not chargeable to partisanship of the major political parties.
“Rather it seems to have been due to the refusal of representatives of the rural areas, which had a majority 31 to 29 in the house and 12 to 11 in the senate, to agree to any reapportionment of the senate on a strictly population basis, which would have vested control of both houses of the legislature in the ‘Wasatch Front’ urban counties.” (Emphasis added).
The “basic constitutional standard” of Reynolds v. Sims is that, “an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.”
An individual’s right to vote for a state senator who represents 55,000 inhabitants (Weber and Salt Lake Counties) is surely substantially diluted and impaired when its weight is compared with votes of citizens whose senator represents only 10,000 inhabitants. (District Three, Rich, Morgan and Summit, and District Eighteen, Washington County). One person is given 5% times the voting power of another person merely because he lives in a rural area.
Under the 1963 Act, and based upon the 1960 census, 25.3 percent of the state’s population can elect a majority of the state senate.1
An individual’s right to vote for a state representative who represents 21,-135 inhabitants, (District Fifteen Carbon County) is assuredly substantially diluted and impaired when its weight is compared with votes of citizens whose representative represents only 1,164 inhabitants. (District Twenty Nine, Daggett County). Again, one person is given 18 times the voting power of another person merely because he lives in a rural area or in the smallest county.
And 37.8% of the state’s population can elect a majority in the House of Representatives. This disparity has probably widened because of population changes in the four years since the census.
I am in agreement with the court that Article IX of the Utah Constitution is unconstitutional insofar as each county is given a representative regardless of population. Again, the Legislative Re*970apportionment Act of 1963 is unconstitutional because it dilutes and impairs the weight of an individual’s right to vote when compared to the votes of citizens living in other parts of the state.
Unless the Legislative Reapportionment Act of 1963 is held unconstitutional, the legislature, as population grows, could give control of one or both houses of the legislature to increasingly smaller segments of the population.
The historical futility of legislative acts to apportion lead me to disagree with that portion of the opinion which says “We do not deem it necessary or desirable to set out herein with particularity any specific plan of reapportionjnent that would meet federal constitutional requirements”, and following.
I do not agree that we should withhold from the legislature our views with respect to its reapportionment. If we leave the legislature to guess what the court thinks about the problem, the end is not difficult to foresee. The old conflict between the rural and urban factions will result, as it always has, in delay, frustration, and another unconstitutional reapportionment. Those who lave a sincere belief and desire that a valid representation should be established by the legislature and not by this court will be disappointed.3
Chief Justice Warren, speaking for the court in Reynolds v. Sims, 377 U.S. at p. 586, 84 S.Ct. at p. 1394, said the District Court acted “in a most proper and commendable manner” in, among other things, “initially stating some of its views to provide guidelines for legislative action.”
The legislature met from January 14 to March 17, 1963, and again failed to .agree to any reapportionment on a strictly population basis.
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, had been decided March 26, 1962. The line of cases stemming from Baker v. Carr were in the mill, including Reynolds v. Sims. A new course of decision was in the making, plain to be seen to anyone who would read. The writing was on the wall. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, was decided March 18, 1963, in which the court said:
“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments, can mean only one thing — one person, one vote.”
The present action was filed January 16, 1963, near the beginning of the legislative session.
As Judge Lewis indicates, this court upon its own motion abstained from hearing the case pending the decisions of the Supreme Court in Reynolds v. Sims, and related cases.
One reason for this abstention was to give the legislature an opportunity to apportion constitutionally.
Well, they didn’t. The pendency of this action in this court, and of the many actions in the United States Supreme Court and other courts did not have the desired effect upon the legislature. The legislators met in 1963 and came out with a formula that is patently wrong.
In my view, it is the duty of the court to give the legislature some guidance. In other states where such guidance was withheld, the problem has been compounded.
I do not agree that “an almost unlimited number of greatly varying plans can satisfy the federal mandate.”
Nor, do I agree to the invitation to' commit a 50% error in the language. “Nor will this court now attempt to-*971state in precise mathematical language the constitutionally permissible bounds of deviation from apportionment based strictly on population, ibid., but we call attention to the decisions of other courts indicating that any disparity greater than fifty per cent of the norm will be subject to close judicial scrutiny and may be shown to be a result of factors other than substantial equality of population and therefore impermissible.”
This is not Reynolds v. Sims. The standard there announced is not that you can make a 50% error, but that you do the best job you can on the basis of representation by population.
So, there is attached hereto a plan for the reapportionment of the Utah State Senate with 28 seats, and for the Utah House of Representatives with 69 seats.
Representation in the Senate is based upon 1 Senator for approximately each 32,000 inhabitants.
Representation in the House of Representatives is based upon 1 Representative for approximately each 13,000 inhabitants.
The State Constitution is complied with in that the Senators do not exceed 30 and the Representatives are not less than twice nor greater than three times the number of Senators.
Also, when more than one county constitutes a senatorial district, such counties are contiguous; no county is divided in the formation of the districts; and no part of any county is united with any other county in forming any district.
These suggestions for reapportionment are made with an eye to the least dislocation. County lines are maintained. And, the Utah State Constitution is complied with, with the exception of those provisions which the court is holding unconstitutional, in Article IX, particularly Section 4, which gives each county one representative.
There are bound to be some disparities. The Supreme Court anticipated this and says mathematical exactness or precision is not necessary.
1. It is noted that Weber, with 37,000 for each senator, Utah and Cache with 36,000 for each of their senators, are high i. e., a little underrepresented.
2. While District Three, including Rich, Morgan, Summit, Wasatch, Duchesne and Daggett, is low, i. e., over-represented, with one senator. However, there are six counties put together to get the figure 24,000. One senator for six counties population-wise is hardly to be regarded as offensive over-representation. Moreover, we can take judicial notice that this is one rural area where it is reasonable to conclude that population may increase. The factors in this increase are the development of the Flaming Gorge area in Duchesne County and vicinity, the Central Utah Project and the Wasatch Mountain Park and Park City developments in Wasatch and Summit Counties.
3. There is a disparity between Salt Lake County and Davis County, each with 32,000 for each senaator, and Weber, with 37,000 and Utah with 36,000.
This disparity is calculated to diminish because of the rapid growth in the southern part of Salt Lake County and in Davis County. There isn’t much of a disparity, anyway. Davis has 2 senate seats now. We leave it the same.
4. Box Elder County is overrepresented. It is given 1 senator for about 25,000 persons. Box Elder presents a problem because there is no county contiguous to it with which it can be combined and maintain county lines.
I offer these suggestions, as I think it is my duty to do, with the hope that they may be helpful and provide some general guidelines for the legislators and state officers.
This is only one plan and may not be the best. The legislature need not *972follow it if they choose not to do so. However some plan, perhaps somewhat like this, is going to be necessai’y to meet the constitutional mandate.
REAPPORTIONMENT SCHEDULE — STATE SENATE —28 SEATS
SENATE DISTRICT COUNTY POPULATION APPROXIMATE POPULATION PER SEAT NUMBER OP SENATORS
1 Box Elder 25,061 25.000 1
2 Cache 35,788 36.000 1
3 Rich 1,685
Morgan 2,837
Summit 5,673
Wasatch 5,308
Duchesne 7,179
Daggett 1,164 24.000 1
4 Weber 110,744 37.000 3
5 Davis 64,760 32.000 2
6 Salt Lake 383,035 32.000 12
7 Utah 106,991 36.000 3
8 Tooele 17,868
Juab 4,597
Millard 7,866 30.000 1
9 Beaver 4,331
Iron 10,795
Washington 10,271
Kane 2,667 28.000 1
10 Carbon 21,135
Emery 5,546 27,000 1
11 Sanpete 11,053
Piute 1,436
Sevier 10,565
Garfield 3,577
Wayne 1,728 28,000 1
12 Grand 6,345
San Juan 9,040
Uintah 11,582 27,000 1
Note: Population figures are based upon the 1960 U. S. Census.
*973REPRESENTATION IN THE STATE SENATE
Representation in the Senate of the State shall be as follows:
First Senatorial District:
Box Elder County 1 Senator
Second Senatorial District:
Cache County 1
Third Senatorial District:
Rich, Morgan, Summit, Wasatch, Duchesne and Daggett Counties 1
Fourth Senatorial District:
Weber County 3 Senators
Fifth Senatorial District:
Davis County 2
Sixth Senatorial District:
Salt Lake County 12
Seventh Senatorial District:
Utah County 3
Eighth Senatorial District:
Tooele, Juab and Millard Counties 1 Senator
Ninth Senatorial District:
Beaver, Iron, Washington and Kane Counties 1
Tenth Senatorial District:
Carbon and Emery Counties 1
Eleventh Senatorial District:
Sanpete, Piute, Sevier, Garfield and Wayne Counties 1
Twelfth Senatorial District:
Grand, San Juan and Uintah Counties 1
*974REAPPORTIONMENT SCHEDULE — HOUSE OF REPRESENTATIVES —69 SEATS
HOUSE DISTRICT COUNTY POPULATION APPROXIMATE POPULATION PER SEAT NUMBER OF REPRESENTATIVES
1 Box Elder 25,061 13.000 2
2 Cache 35,788 12.000 3
3 Rich 1,685
Morgan 2,837
Summit 5,673 10,000 1
4 Weber 110,744 13.000 9
5 Davis 64,760 13.000 5
6 Salt Lake 383,035 13.000 29
7 Tooele 17,868 18.000 1
8 Utah 106,991 13.000 8
9 Wasatch 5,308
Duchesne 7,179 12.000 1
10 Uintah 11,582
Daggett 1,164 13.000 1
11 Sanpete 11,053
Juab 4,597 15.000 1
12 Millard 7,866
Beaver 4,331 12.000 1
13 Carbon 21,135 10,000 2
14 Grand 6,345
Emery 5,546 12,000 1
15 Sevier 10,565
Piute 1,436 12,000 1
16 Iron 10,795
Garfield 3,577 14.000 1
17 Washington I 10,271
Kane j 2,667 13.000 1
18 San Juan j 9,040 j
Wayne j 1,729 j 12.000 1
Note: Population figures are based upon the 1960 U. S. Census.
*975REPRESENTATION IN THE HOUSE OF REPRESENTATIVES
Representation in the State House of Representatives shall be as follows:
First Representative District:
Box Elder County 2 Representatives
Second Representative District:
Cache County 8
Third Representative District:
Rich, Morgan and Summit Counties 1 Representative
Fourth Representative District
Weber County 9 Representatives
Fifth Representative District:
Davis County 5
Sixth Representative District:
Salt Lake County 29
Seventh Representative District:
Tooele County 1 Representative
Eighth Representative District:
Utah County 8 Representatives
Ninth Representative District:
Wasatch and Duchesne Counties 1 Representative
Tenth Representative District:
Uintah and Daggett Counties 1
Eleventh Representative District:
Sanpete and Juab Counties 1
Twelfth Representative District:
Beaver and Millard Counties 1
Thirteenth Representative District:
Carbon County 2 Representatives
Fourteenth Representative District:
Grand and Emery Counties 1 Representative
Fifteenth Representative District:
Sevier and Piute Counties 1
Sixteenth Representative District:
Iron and Garfield Counties 1
Seventeenth Representative District:
Washington and Kane Counties 1
Eighteenth Representative District:
San Juan and Wayne Counties 1
*976
*977
. These disparities have probably widened in the four years since the census because of population increases in the four “Wasatch Front” counties and decreases in the population in some of the other counties. It is a matter of generál public knowledge that Utah’s population is expected to reach 1,000,000 near the end of September 1964, and that 60% of that population is found in Weber, Davis, Salt Lake and Utah Counties. Salt Lake Tribune, September 3, 1904. Very likely now about 21% of the state’s population can elect a majority of the state senate.
. In my judgment, many constitutional officers of the State of Utah recognize the federal constitutional mandate and are making helpful, good faith efforts to obtain a valid legislative apportionment. Prominent among those is Chief Assistant Attorney General Ronald N. Boyce. Also, among those is the Utah State Legisative Council.
The "widespread publicity indicates the legislators’ interest in the court’s views.