With due deference to the views of my colleagues, so ably expressed in Judge KAESS’ majority opinion, and in Circuit Judge O’SULLIVAN’S concurring opinion, I find myself unable to agree and therefore dissent.
The issue before the Court is whether the .Michigan Constitution of 1963, so far as it. pertains to the establishment and arrangement of State Senate and House districts, denies to plaintiffs, and to others similarly situated, the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States and such other rights as are secured to plaintiffs by law.
The short answer to that is that it does.
The 1963 Constitution, so far as it relates to the apportionment of the Michigan Legislature, has fatal flaws which will npt' pass constitutional inspection. We speak now of the Federal standards, but suggest, as we shall later explore, that it fails to pass State constitutional standards ’ as well. But more of that anon."
The time setting of the adoption of the proposed Constitution by the convention should be noted. The convention convened October 3, 1961. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663, was handed down on March 26, 1962; Scholle v. Hare, 367 Michigan 176, 116 N.W.2d 350, was handed down July 18, 1962; and a stay order by a Justice of the United States Supreme Court issued July 27, 1962. Certain changes were submitted to the apportionment provisions of Article IV of the proposed Constitution at 11:00 o’clock the morning of August 1, 1962, the last day of the convention, despite the protestations of at least one delegate that haste might result in “irremediable error.” “It must be remembered,” he said, “that once the convention adjourns sine die, its powers are exhausted and, however bad an error may be, that error cannot be corrected.” (Constitutional Convention Record, page 3299.)
Whether because of haste or otherwise, the provisions of the proposed, and later adopted, 1963 Constitution are in violation of the Fourteenth Amendment of the Constitution of the United States, as we shall more fully detail. The booby traps and fishhooks in its provisions respecting the establishment and arrangement of legislative districts, if given effect, result in the amendment of the proposition that:
“All men are created equal.” to
“All men are created equal — except city people.”
It is true that the United States Supreme Court has, at least to this date, refused repeated invitations to interpret the nature of representative democracy in exact terms of the distribution of power among people, or to say to what degree the majority must control government. But one can legitimately and reasonably conclude from Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, 11 L.Ed.2d 481, and Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, that the Court is proceeding in the direc*1005tion of a holding that “republican government” requires a popular democracy, which presupposes an equality of individuals and their voting power. Even now Baker v. Carr stands for the proposition that discrimination in apportionment will be permitted only if based upon a rational classification, but not if it is invidious, i. e. arbitrary or capricious.
It is submitted that the Supreme Court handwriting is on the wall, for him who will to read. Wesberry and Baker are not the last words; they are only the latest. How far that Court will go, or rather, how fast it will go, is something we have to leave to another day. It was observed by De Tocqueville some 150 years ago that the distinctive characteristic of America was a constant striving for equality.
The built-in, “fair” advantage in the 1963 Constitution is completely at odds with our concept of the equality of man. How can one justify an apportionment system which favors a segment of the population of the state? We must remember that plans of apportionment are devised by men to control the affairs of men; and remember too that men, in self-interest, are sometimes capable of rising above principle to grasp control of government. As pointed out by Judge Doyle in his dissent in Lisco v. Love, Colo., 219 F.Supp. 922, page 943:
“Governments are devised to arrange the affairs of men. Economic interests are remarkably well represented without special representation. It is dangerous to build into a political system a favored position for a segment of the population of the state. There exists no practical method of ridding ourselves of them, and long after the institutions pass, the built-in advantage remains even though it is at last only a vestige of the dead past.”
To get to the heart of the issue before us, I repeat the question I put to counsel during the oral arguments in this case:
“Wha't is wrong with people ?”
The framers of the Declaration of Independence made it the basis of our government that all men are created equal and endowed with certain unalienable rights. In doing so, they pointedly repudiated Aristotle’s notion that:
“ * * * some should rule and others be ruled is a thing, not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule.”
The conception of political equality has been retained and reinforced throughout the history of this nation, from that Declaration, the United States Constitution, Lincoln’s Gettysburg Address, and on through the constitutional amendments.
Our fundamental beliefs and the values by which we live as a nation demand an acknowledgment that men have the capacity to govern themselves, that we have faith in the rights of the individual. They cast aside the notion that our neighbor does not count, or that he counts for more or less than his neighbor.
In our scheme of government, there is no provision for, nor room for, a caste system, even of the wise and the good. Nowhere is there to be found even an intimation that some of our citizens have greater or less political capacity or power than others.
Even if we disregard, for the moment, the foundation stones of the federal government, and particularly Article IV, Section 4 of the United States Constitution, guaranteeing to every state of the union a republican form of government, and look only to the State of Michigan and its fundamental law, we find explicit recognition of the worth and value of the individual. See “An Ordinance for the government of the territory of the United States, northwest of the river Ohio,” The Confederate Congress, July 13, 1787, Articles of Compact, Sec. 14, and Article II, Bill of Rights:
“The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a pro*1006portionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law.”
And see also the Constitutions of the State of Michigan, 1835, 1850, and 1908, which provided for substantial equality among the people in their representation in both Houses of the State Legislature.
Both our basic federal documents and the basic state documents are premised on the basic fact of our form of government: All men are created equal. As pointed out in Giddings v. Secretary of State, 93 Mich. 1, at page 7, 52 N.W. 944, at page 946, 16 L.R.A. 402:
“It was never contemplated that one elector should possess two or three times more influence, in the person of a Representative or Senator, than another elector in another district. Each, insofar as it is practicable, is, under the Constitution, possessed of equal power and influence. Equality in such matters lies at the basis of our free government. It is guaranteed, not only by the Constitution, but by the ordinance of 1787, organizing the territory out of which the state of Michigan was carved.”
The majority opinion and the argument of intervenors both lay considerable stress upon the assertion that the county should be recognized as a basic unit for purposes of apportionment. Alternately, intervenors argue that history should be recognized in the consideration of the validity of the apportionment arrangement in the 1963 State of Michigan Constitution. What history? And who holds the proxy for history ? Here again, Williams v. Secretary of State, 145 Mich. 447, at page 449, 108 N.W. 749, at page 750, makes it plain that the county was not then a basis of apportionment. The dissenting opinion of Mr. Justice Talbot Smith, in Scholle v. Hare, 360 Mich. 1, at page 58, 104 N.W.2d 63, at page 93, says:
“Michigan does not employ the political unit basis.”
As for the proposition that the 1968 Michigan Constitution was “solemnly” adopted by the people (by a majority of considerably less than one per cent)— to begin with, there may well be a serious, question as to whether the constitutional convention was called in contravention of the Fourteenth Amendment. The 144 delegates to the Constitutional Convention, elected in April 1961, were allocated to and elected from the 110 State Representative districts and the 34 State Sena-' torial districts. See the Tennessee case now in the Supreme Court, West v. Carr, 370 S.W.2d 469, which raises this question :
“Does the 1962 Tennessee Statute calling a Constitutional Convention to propose amendments to the State Constitution abridge the Fourteenth Amendment because the statute apportions convention membership on the basis of legislative apportionment formula rejected in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663?”
But let us lay aside this question. Let us turn our attention to the “Address to the People” which, according to the provisions of Act No. 8 of the Public Acts of 1961, Section 168.181 of the Compiled Laws of 1948, as amended, was. to serve the purpose of:
“ * * * explaining the proposed changes in the present constitution, and the reason for such changes * * *»
In its prolegmonena, the Address, adopts the statement of Professor Paul Kauper, as to the mission of the delegates :
“To fashion a fundamental order of government that preserves the continuity of our constitutional tradition by holding fast to that which is good, but which will be adequate to meet not only today’s but also tomorrow’s needs * *
If that was the objective, then it is this writer’s humble opinion that the-' mark was missed, for nothing is more fundamental to our form of government,. *1007be it national or state, than equality in representation * * * of people. In its explanation to the people of the state, there was an obvious misstatement of fact, see page 5, under the heading “The Legislative Branch,” paragraph 2:
“A House of Representatives on a population basis and a Senate on a combined population-area basis (giving 80% weight to population and 20% weight to area) with as mathematically exact a system as possible for assigning a prescribed number of seats to each chamber. The application of these formulas will bring Michigan to the forefront of the states in the fairness and equity of its system for allotting the legislative representation among its population.”
It is true that under Article IV, the •fine print appears. But it is unlikely that the average reader, even if he read the Address, or the proposed Constitution, could have understood, without some training in political science, mathematics, and the law, and without extensive study, the “.7%,” “county lines,” and “75% to 125%” provisions, to say nothing about “equal proportions.” It has taken the members of this Court some considerable time to digest the meaning, in applied form, of these provisions. So that to say that the people of the State of Michigan solemnly adopted these precise provisions of the Constitution is an indulgence in rhetoric only. But even if we .assume, arguendo, that they understood the implications of these provisions, it is too clear for argument that constitutional law is not a matter of majority vote. Indeed, the philosophy of the Fourteenth Amendment teaches us that it is personal rights which are to be protected against the will of the majority. And as a matter of common knowledge, the proponents •of the 1963 Constitution used as a selling point, that whatever defects it might possess could and would be corrected, but that overall it was a better basic law than its predecessor. If certain provisions of the 1963 Constitution are constitutionally defective, had it been adopted by a unanimous vote, it could not be left to stand. I take it that no one would postulate, at this late date, that because discriminatory racial legislation enjoyed overwhelming support in some of our states, it would be validated. Manifest inequality cannot be effectuated by a majority vote.
The fact of enactment of the new Constitution, even though by the slimmest of margins, generates restraint; but we cannot, true to our oath, uphold such provisions of it as are palpable infringements of the rights of individual citizens. The protection of constitutional rights is not to be approached pragmatically or expediently.
The delegates to the constitutional convention had no immunity from the United States Constitution.. They were bound to be as responsive to that basic law as were the citizens who elected them. And when, as I believe to be true in this case, the mainspring of representative government is impaired, we should not preclude judicial relief. The entire thrust of today’s legal climate is to end unconstitutional discrimination.
It is manifest by its very terms that the 1963 Constitution does not, as conceded by the majority, provide for a straight population formula even for the House of Representatives. If that had been the intention, it could have been accomplished easily by stopping after providing (Article IV, Section 3):
“The House of Representatives shall consist of 110 members elected for two-year terms from single member districts apportioned on a basis of population * *
This was not done, but the qualifications of “county lines,” “.7%,” and “not less than 75% nor more than 125%” were added.
It may be of significance that neither the Address to the People, briefs and arguments of intervenors, nor the majority opinion give any explanation of the magic figures “,7%,” “75% to 125%,” or “80-20.” It seems to me that a justification *1008of these were, and are, in order. None has been advanced.
A review of these provisions, as well as the provision for the establishment of an apportionment commission, leaves only the guileless to assume that they were not intended to promote minority control of the legislature. These provisions, as well as those relating to the arrangement of the Senate, are not accidental and inadvertent, but calculated and purposeful.
It appears that the majority of the delegates to the convention made a legal guess that if they came close to a straight population apportionment in the House, they could do whatever they pleased in the matter of the apportionment of the Senate. The imbalance is not by accident, but by design. Even the apportionment commission is allotted on an area basis, and in such wise as to make it virtually certain to fail to accomplish its mission.
The end result of the whole of the provisions with respect to apportionment is, a guarantee that minority rule shall prevail; and in the course of time, they could not but accentuate the discrimination toward the majority of the citizens of the state.
We cannot say what the highest Court in the land will finally say with respect to the propriety of appox-tioning one House of a State Legislature on a straight population basis and the other on population and/or other factors. There are those who believe that such an arrangement will meet constitutional tests. It is unprofitable to hazard a guess. But in this case, we do not have to indulge in prophecy, for neither the House nor the Senate can be apportioned on a population basis if the qualifying provisions are complied with.
There is a serious question of the validity of the provisions for apportionment from another standpoint, as so ably pointed out by Mr. Justice Eugene Black, of the Michigan Supreme Court, in his memorandum, In re Apportionment of Legislature, (1964), 372 Mich. 418 at page 449,126 N.W.2d 731;
“The supremacy clause considered, the Constitution of each of the States has written into it, firmly as if printed before the reader’s eyes, a special and controlling proviso which in so many words says that, when that State’s Constitution is capable of 2 constructions, one of which would conflict with some provision of the National Constitution, the other must prevail.* Thus it is that the equality clause of the National Constitution complements and supplements and, in case of conflict, modifies to the extent of such conflict the Constitution of each of the States. The equality clause, is, indeed, ‘as much a part of the laws of every state as its own local laws and Constitution.’ (Blythe v. Hinck-ley, 173 U.S. 501, 508, 19 S.Ct. 497, 500, 43 L.Ed. 783; 180 U.S. 333, 338, 21 S.Ct. 390, 45 L.Ed. 557.)”
The provisions of Article IV of the 1963 Michigan Constitution respecting apportionment cannot be read without considering Article I, Sections 1 and 2:
“Sec. 1. All political power is inherent in the people. Government is instituted for their equal benefit, security, and protection.”
“Sec. 2. No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color, or national oxfigin. * * * ”
The guiding rule of constitutional construction from the time of Chief Justice Marshall down has been that no one provision is to be separated from the others and considered alone, but that all provisions bearing upon a particular subject shall be brought into view and interpreted so as to effectuate the great purposes of the instrument. See Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511. It is necessary, therefore, to construe Article IV, together with Sections 1 and 2 of Article I, and *1009in the light of the requirements of the Fourteenth Amendment to the United States Constitution. So viewed, the provisions of the 1963 Constitution relating to the apportionment of the legislature cannot stand.
As a sidelight, it may be well to add that there is a serious question as to whether the proviso at the end of Article III, Section '2, squares with the guarantee clause of the Federal Constitution. The section provides that “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising the powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” (Italics supplied.)
Article IV, Section 6, Paragraph 7, then proceeds to allot to the Supreme Court of the State the power to make a legislative judgment (which plan to adopt, in the event the apportionment commission does not agree), and later provides for it to trade in its legislative beret for the judicial one (paragraph 8 of Section 6 of Article IV) and apply constitutional tests. The roles are obviously incompatible.
If there is something wrong with the one person, one-vote formula of Wesberry v. Sanders, 84 S.Ct. 526, neither pleadings, briefs, nor arguments in this case tell us why. If there are valid reasons for weighting the vote of one person and shaving the vote of another, they have not been advanced. We hear the refrain that the minority must be protected. But what of the majority? What protection have they had in the legislature of the State of Michigan (and many other states) these many years, when that body has steadfastly refused to reapportion in accordance with the constitutional mandate ?
The provisions of the 1963 Constitution give a preferred place in the scheme of government to the voter in the sparsely settled portions of the state. Is this because there is more space around him? Does this make him a better voter? By what constitutional or other legal rule or principle is assigned to him the right to vote the franchise granted to the millions of acres of federal and ■state park land and water ?
Are the urban dwellers to be treated, to use Homer’s words, like “dishonored strangers?” As Aristotle says:
“The citizen who is partly excluded from the honors of the state is no better than a part alien. And when this partial exclusion is concealed, the object is that the privileged class may deceive them.”
What manner of men are they whose votes shall be weighted?
And what manner of men are they whose votes shall be shaved?
And who shall decide which to weight and which to shave?
It is argued that the apportionment formulae for House and Senate in the 1963 Constitution give the majority a greater representation than has been the case in the past. To say that something is not as bad as it has been is not to say that it is right. The plaintiffs in this case, and others like them, are not asking for a handout but are asserting a claimed constitutional right. This argument falls of its own weight, as does the argument that absolute mathematical precision cannot be achieved. To say that because mathematical precision cannot be attained does not preclude coming as close to it as can be every ten years, nor does it justify a greater departure from equal proportions than necessary.
The teachings of United States Supreme Court cases beginning with Baker v. Carr to the present day I interpret as meaning that an apportionment cannot be permitted which would allow a blocking of major legislation desired by the majority of the electors of the State of Michigan. Effecting the will of the majority of the people of a state must be deemed the sine qua non of any constitutional plan of apportionment. This means that at least one House of the Legislature of Michigan must be apportioned on a strict equal population basis as near*1010ly as this can be accomplished, in order to meet the requirement of rationality, and to avoid any taint of invidious discrimination. It may be that it is permissible to apportion the other house on a basis which takes into account cogent and relevant factors other than population. These other factors, however, must be more meaningful than mere area; and the weight given to them should not be such as to destroy the foundation principle of majority rule, or result in invidious discrimination or irrationality in apportionment. In other words, giving effect to such other factor or factors must not be permitted to govern to such an extent that a majority of the population of Michigan is put into such an inferior position in respect to such other house that legislation needed for the good of the whole state might be blocked. No case is cited by my colleagues, by counsel, and none found by the writer, which recognizes area alone as a valid factor for apportionment purposes. The plain fact is that any meaningful, valid non-population factor invariably squares with the population distribution. Consider such matters as taxes paid, capital investments, assessed valuation of property, industry, etc. Each of these is tied irrevocably to people; area exists independent of any person.
Let us add a word about custom. The custom which emerges most clearly from a hard look at the history of Michigan is the continuous refusal of the body constitutionally charged with the duty of periodic reappoi'tionment to discharge its constitutional duty.
As pointed out in Gray v. Sanders, 372 U.S. 368, at page 380, 83 S.Ct. 801, at page 808, 9 L.Ed.2d 821, at page 830;
“The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.
******
“ * * * and, as previously noted, there is no indication in the Constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within the State.”
And see Judge Biggs’ opinion in Sincock v. Duffy, D.C., 215 F.Supp. 169, at pages 187 and 188:
“Although population density, extent of agricultural and industrial development and expanding city and suburban and semi-suburban areas are deemed to be cogent factors in considering apportionment, no very persuasive factor justifying any very special treatment in the apportionment of the Senate of the General Assembly can fairly be said to lie in any purely geographical factor.”
The issue for determination in this case is whether the disparities provided for and locked into the 1963 Constitution are so substantial and irrational as to constitute invidious discrimination so as to violate the equal protection of the laws — Fourteenth Amendment of the Constitution of the United States.
For the reasons I have given above, I would hold that the plan of apportionment of the Michigan Legislature, as provided for in the 1963 Constitution, with its inequalities, is not based upon a rational formula consistent with constitutional requirements, and more specifically that such plan does not provide for the districting of either House of the Legislature on a population basis, and that the Senate districting plan, calling for an area factor to be employed, is arbitrary, capricious, and constitutionally unjustified. There is here no “practical equality” with “rational deviations.”
This holding, if effectuated, means that the provisions of Article IY of the 1963 Michigan Constitution, except for Section 1, the first paragraph of Section 2, *1011and that portion of Section 3, which reads,
“The House of Representatives shall consist of 110 members elected for two-year terms from single member districts apportioned on a basis of population,”
are constitutionally void and of no effect; that the Legislature under its general legislative powers can and should apportion both Houses of the Legislature, in accordance with federal and state constitutional standards and limits, failing which, within a reasonable time, this Court should order elections for both Houses to be held at large.