(dissenting). This case involves the citizens’ right to vote. It involves, as well, their right to equality of representation in their legislature, “a right inestimable to them and formidable to tyrants only.”1
We have before us a petition for an original writ of mandamus directed to the defendant, the secretary of State. Through such writ the plaintiff seeks to prohibit the defendant from conducting the forthcoming State senatorial elections in accordance with *43the present system of senatorial districting. That system is prescribed in section 2 of article 5 of the Constitution of 1908, as amended at the general election of November 4, 1952. The present system, enacted in the 1952 amendment, briefly, establishes senatorial districts, territorially described, in the Constitution. (The senatorial districts, until 1952, had been established by the legislature under the constitutional mandate of representation by population.)
The basis for the plaintiff’s petition is simply that this amendment to the Michigan Constitution is violative of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. The violation of the United States Constitution asserted is the establishment of the senatorial districts by a classification of the citizens into groups lacking any reasonable explanation, arbitrary, capricious, and unreasonable classifications. It is urged that the establishment of the districts is thus unreasonable because there is no rational, or, indeed, discernible, basis for the districts prescribed in the amendment, that they are, in fact, no more than arbitrary allotments of territory.
It should be noted at the outset that this is not an “apportionment” case.2 To so describe it will only inject confusion into the fundamentally simple issue before the court. We will, it is true, advert to cases wherein malapportionment had become sufficiently serious to warrant court action, or attempted self-help by the citizenry,3 but only to the degree neces*44sary to point out their differences. We are not, then, directly concerned with the cases wherein the chosen basis for representation, e.g., population, has become distorted through shifts in the population, and its centers, and through the cooperation of an inactive legislature. The insidious character of this type of “silent gerrymander” has been fully exposed,4 but suffice for the moment to stress that it is not the case before us, though related thereto. Thus cases in which aggrieved citizens seek to compel, directly or indirectly, the legislature to perform its constitutional duty of reapportionment on the prescribed basis are not squarely in point.5 We are not asked *45so to do. These cases have their own unique problems6 which are not presented to us.
What we are asked to do, basically, is to rule upon the validity of a State constitutional amendment. The case before us is without applicable precedent upon its own peculiar facts. Closest to it, yet somewhat removed, both factually and legally, is the situation in which a citizen seeks to test the constitutional validity of a recently enacted law apportioning the State on a chosen basis. The ground of attack ■often made in such situation is that the law does not ■conform to the State Constitution and is, therefore, invalid. The infirmity in the legislation may consist in a lack of practical equality of population in the districts despite a constitutional requirement that legislative districts be as nearly equal as practicable in population. The invalidity may be irregularly and unreasonably shaped districts (gerrymandered) in the teeth of a constitutional provision that districts be convenient and contiguous. Such in*46validity may, as well, arise from the splitting of counties in the formation of legislative districts,, under circumstances expressly forbidden by the Constitution, and it may even reach the extreme of providing for representatives and senators in excess of the number specified in the Constitution.
This case is not any of these. We have mentioned them merely to keep the issue before us clearly in focus. Their similarities arise from the fact that in each a statute is weighed against the charge that it is in palpable violation of superior authority, namely, the Constitution of the State. So, here, the appeal is made to an authority higher than the State Constitution here involved, i.e., to the Federal Constitution. The “supreme Law of the Land” is not the-Constitution of the State of Michigan, or that of any other State, “any Thing in the Constitution or Laws-of any State to the Contrary notwithstanding,” but the Constitution of the United States, and we, “the-Judges in every State shall be bound thereby.”7
Despite, then, their differences, through each runs a thread in the fabric of the fundamental right to vote. They provide for us basic principles which, will contribute to our solution. We will from time-to time refer to them, and we will draw also upon, that landmark series of cases, emanating from the Federal courts, which have sought to preserve to- the-Negro that most precious of all rights in a democratic society.
In order that this situation may be seen in its proper constitutional perspective, it is necessary to-set forth in some detail not only the facts pleaded by the parties, but also certain historical matters alluded to in the briefs and appendices.
Prior to the adoption of the amendment now under-scrutiny, the Michigan senate consisted of 32 sena*47tors, each elected by a single district. Beginning in 1913, and each 10th year thereafter, the Constitution of 1908 directed that:
“the legislature shall by law rearrange the senatorial districts and apportion anew the representatives among the counties and districts according to the number of inhabitants, using as the basis for such ■apportionment the last preceding United States ■census of this State.” (Emphasis supplied.) Art 5, .§ 4, Const 1908.
The last apportionment of the legislature occurred in 1925, relying in the main upon the 1920 census.8
By 1950 this representative system in the Michigan senate, constitutionally directed to be decennially apportioned on a population basis, had become distorted due to growth in the population and shifts in the centers thereof, combined with a total failure of the legislature to obey the constitutional mandate to reapportion on the chosen basis of population. According to the 1950 census figures, the largest senatorial district contained 544,564 people, while the smallest contained only 61,008. Thus, the smallest district, the thirty-second, was given through lapse of time and lack of legislative action, an equal voice with that of the largest, the eighteenth district. To indicate the extreme disparity in population among the districts, only a few of the most glaring vari.ances in the ratio of population of this smallest distinct to the other more populated areas need be cited in the following table:
*48TABLE 19
Population of senatorial districts prior to the amendment of 1952.
District
Counties
Population in 1950
Patio of District to Smallest
18 Part of Wayne 544,564 8.9 to
12 Oakland, Washtenaw 530,607 8.7 to
21 Part of Wayne 525,955 8.6 to
1 Part of Wayne 475,753 7.8 to
11 Macomb, Lapeer, Saint Clair 312,354 5.1 to
5 Part of Wayne 282,247 4.6 to
13 Genesee 270,963 4.5 to
2 Part of Wayne 270,255 4.4 to
32 Baraga, Houghton, Keweenaw, Ontonagon 61,008 1 to 1
The “silent gerrymander” liad thus clearly reached proportions offensive even to the most timid. The voice of one citizen was nearly 9 times as influential as another’s in charting the course of government in this State.
The malapportioned districts noted in the table, we observe, were only the most flagrant examples. The remainder, as well, were malapportioned and to a degree only somewhat less gross. In these enumerated districts, particularly, the citizen ivas told that although he might have a senatorial representative, that representative would speak for many times as many voters as his co-senator from one of the favored areas, but he would speak no louder. The votes of 9 citizens in Oakland and Washtenaw counties, or parts -of Wayne county, were worth no more than, approximately, that of 1 citizen in Baraga, Houghton, Keweenaw, and Ontonagon counties. The distortion in the structure of our government ranged downward from this extreme, as table 1 indicates.
Under the 1952 amendment to article 5 of the Constitution, the number of senators was increased to 34. Each member is now elected from a district *49which is geographically described in the amendment.10 The boundaries so set are not subject to change because of fluctuation in the population. In fact, they may not be changed except by constitutional amendment. The new districts of the senate as established in this amendment are identical with the old districts, with 2 exceptions.11
If the basis of the representative scheme in this amendment were population, then the division of the State into 34 chosen districts would he grossly unfair, as a reference to table 2 clearly indicates:
TABLE 212
Population ratios under constitutional amendment of 1952.
District
Counties
Population in 1950
Patio of this district to the smallest
13 Genesee 270,963 4.5 to
11 Macomb 184.961 3.0 to
18 Part of Wayne 333,498 5.5 to
2 Part of Wayne 340,738 5.6 to
1 Part of Wayne 344,136 5.6 to
5 Part of Wayne 344,986 5.6 to
21 Part of Wayne 352,890 5.8 to
3 Part of Wayne 354.961 5.8 to
4 Part of Wayne 364,026 6.0 to
12 Oakland 396,001 6.5 to
32 Baraga, Hougliton, Keweenaw, Ontonagon 61,008 1 to 1
New Districts
33 Washtenaw 134,606 2.2 to 1
34 Lapeer, Saint Clair 127,393 2.1 to 1
*50The smallest district is still the thirty-second and the largest, the twelfth, although the latter has been reduced in population, through the splitting of the 2 counties, to 396,001. The ratio of population of the district to the smallest is, nevertheless, 6.5 to 1. The change in ratio of the eleventh district to the smallest is now 3.0 to 1, although before it was 5.1 to 1. Within Wayne county the representation remained, upon the average, manifestly disproportionate. The plaintiff attacks this scheme as merely one of “constitutionalized malapportionment,” violative of the Fourteenth Amendment. Defendants, however, argue that since this scheme of representation has been written into the Constitution, in place of our former scheme of representation based upon apportionment by population, it is valid.
There is no question but that, if this were attempted under the unamended provisions of article 5, the legislation would be unconstitutional as providing for obviously unfair and unrepresentative districts, and there is no question, moreover, that we would have entertained suit thereon. It is settled law in this jurisdiction that this Court neither hesitates to scrutinize apportionment acts for constitutionality nor to hold them invalid should their provisions offend our basic charter. Board of Supervisors of Houghton County v. Secretary of State, 92 Mich 638 (16 LRA 432); Giddings v. Secretary of State, 93 Mich 1 (16 LRA 402); Williams v. Secretary of State, 145 Mich 447. We have rejected as spurious the asserted validation of an unconstitutional apportionment arising from lapse of time or intervening elections conducted under it. Thus we held unconstitutional in Board of Supervisors of Houghton County v. Secretary of State, supra, an apportionment act of 7 years standing, including, as well, in our holding of invalidity, an intervening act, equally offensive to the requirement of our Constitution.
*51We stress our holdings in our cases last cited because they are grounded upon a principle not to be disputed, and dispositive of the case at bar. Our people have a right, inalienable and undisputed, to equality of representation. The right is not to be diluted or diverted. It will succumb neither to the chicanery of the crafty, nor to the apathy of those of our constitutional officers whose failure to act in accordance with its clear mandate accomplishes the “silent gerrymander.” Nor, indeed, is the citizens’ right vulnerable to the massive power of a majority which disenfranchises through nothing less than amendment of our Constitution itself. Davis v. Schnell (SD Ala), 81 F Supp 872, affirmed per curiam (1949), 336 US 933 (69 S Ct 749, 93 L ed 1093), infra.
They forget, those of the latter group, that our disenfranchised appeal not only to us but to a higher authority. Even with respect to rights reserved to the States, the laws of the individual States cannot supervene the Federal Constitution.
That a disenfranchisement is accomplished by a majority vote and sought to be made effective through constitutional amendment gives it no immunity from scrutiny. We would neither hold our tongue nor stay our hand if all the Negroes in our State were, by constitutional amendment, wholly disenfranchised, nor the white protestants, nor the Free Masons, nor any other group, and we see no difference between such deprivations and the case at bar, where those who have flooded into our vast industrial centers are given only a part of the vote given to citizens in other parts of the State.
In defense of what has been done it is urged that “area” has now become the basis of representation. It need not seriously be questioned that area has been, and may be, a factor in fashioning representative districts, but the real question the defendants *52are putting in issue is whether the court must accept this scheme of representation as valid simply because it is labeled an “area form of representation,” as though, ip sis verbis, such system must be valid.
The argument made necessarily involves the basic theory of apportionment, any apportionment. In the history of representative government and man’s search for a “democratic society,” various forms of representation have been utilized. In each there is a “value,” some basis for the scheme of representation. This gives substance to the classification employed, or, as is said in the law, roots them “in reason,”13 the distinctions made having “some relevance to the purpose for which the classification is made.”14 Various devices have been employed. Popular for a time was the “functional division” of the population into groups sharing the same social and economic interests. Thus in South Carolina, from 1808 to the Civil War, one means of making this division was the amount of taxes paid. To the present day,- in fact, the determining factor in apportionment of the senate of Newr Hampshire is the amount of direct taxes paid.15 In Europe, groupings of voters have been based upon such factors as nationality, profession, university affiliation, and occupation, e.g., factory employment.
In this case we are told that classification is grounded upon area. But, so far as area alone is concerned, we see16 that the twelfth district, comprising only 1 county, is 233 square miles larger than the thirteenth district, also comprising only 1 county, but it has 6,955 square miles less territory than the thirtieth district, which encompasses some 7 coun*53ties. The thirtieth district, in turn, has 7,188 square miles more than the thirteenth district and approximately 7,401 square miles more territory than the sixteenth or seventeenth districts, which comprise Kent county. Thus, we discover 2 senators from Kent county each representing approximately 431 square miles, one senator from Oakland county representing 877 square miles, one senator from the twenty-eighth district (comprising 10 counties) representing 5,471 square miles, and the senator from the thirtieth district (7 counties) representing 7,832 square miles.
The “area” representation employed is, clearly, haphazard. Is there, in fact, a formula by which this result has been achieved? If so, it has not been revealed to us, either in the materials submitted by the parties, or the representations made upon oral argument, nor does our research reveal any clue. We conclude that as to area alone no recognizable (far less rational) criterion has been employed.
The possibility exists, of course, that it is area plus something else. In our own colonial times there was some districting according to governmental boundaries, such as towns and counties. The town unit of representation still exists in limited form in some areas. See Opinions of Justices, 101 NH 523 (132 A2d 411). As counsel for the defendants has so painstakingly set forth in his appendix, the county still forms the basis for representation in many State senates. In England this scheme, involving the corporate towns and boroughs, led to the infamous “rotten boroughs,” and the resultant reforms.
The United States senate is still chosen on this basis, but, it will be observed, this is not the “area” form of representation that the defendants would argue. It is election through a system of apportionment upon governmental units. Area is involved only in the sense that any governmental unit occu*54pies some area, just, indeed, as does any human activity. The adoption of this form of representation for the United States senate was a compromise by the smaller colonies in return for giving up a part of their political sovereignty. We need not, however, develop the history of the selection of this form of representation for the United States senate, for the writers agree on the elementary point that it was adopted only when the Constitutional Convention was on the verge of collapse. The Federal Union was a union of people and sovereigns, each of whom was not willing to relinquish its sovereignty to a government chosen solely according to numbers. Thus, a senate elected by the States, through their legislatures, was the compromise. See, on this point particularly, the following: Lewis, Legislative Apportionment and the Federal Courts (1958), 71 Harv L Rev 1057,1071; Harvey, Reapportionment of State Legislatures— Legal Requirements (1952), 17 Law & Contemp Prob 364, 365; de Grazia, General Theory of Apportionment (1952), 17 Law & Contemp Prob 256; Durfee, Apportionment of Representation in the Legislature (1945), 43 Mich L Rev 1091,1095; Federalist Papers, No 62, as quoted in MacDougall v. Green (1948), 335 US 281, 289, 290 (69 S Ct 1, 93 L ed 3). This ultimate decision thus made has been well summarized in the statement that: “ ‘In one branch, the people, ought to be represented; in the other, the States’ ” 1 Far-rand, The Records of the Federal Convention (1787), p 462, quoted in Lewis, op. cit., supra, 1071, n 85.
It must be stressed that no effort was made by the Michigan amendment to apportion according to the existing political units, and thus we do not reach the question whether or not an historic political unit, once related to the life of the State on a realistic and rational basis, but now largely devoid of people, and representative only of cut-over and despoiled acreage, is a constitutional basis for representation. *55The apportionment was not done with, relation to counties, assuredly, since some counties comprise several districts, while others are combined to form one district. It has not been done with relation to townships, cities, villages, wards, precincts, or any other political unit. Area, then, is not related to any recognized political subdivision, either great or small, and thus falls defendants’ arguments that invalidation of a constitutional amendment based solely, as here, upon arbitrary areas, will mean the invalidity of all classifications within our State based upon traditional political units, as well, inferentially, as those of other State constitutions based upon their selected political units.
We have postulated other criteria in an effort to ascertain whether there is any recognizable basis for the classification employed in the determination of the geographical areas, and whether such basis, if found, has any relevance to the electoral process. All have failed. There are obviously wide variances in the various senatorial districts, as to areas, as to the numbers of counties, as to urban populations, as to rural nonfarm populations, as to rural farm populations, as to commercial farms, and as to the number of manufacturing establishments existing in the districts.17
*56We have sought in vain to find some formula or formulae, even roughly approximate, competent to explain the groupings of counties and parts of counties into senatorial districts. It is impossible. The system, if such it is, defies explanation. Even the defendants in their briefs and appendices offer no more than the iteration and reiteration that this is representation by geographical area. But representation by geographical area, without more, is not enough. If it were, any gerrymander would be valid because the gerrymander always represents some geographical area, however grotesque. Upon what conceivable basis are the citizens of Kent county entitled to 2 senators and the citizens of some 7 counties, in 2 instances, and some 10 counties in another, entitled to only 1 senator? Why was Wayne county given 7 senators? Why do the 7 senators from Wayne county represent on the average almost twice the citizens that the senator from Washtenaw represents? And better than 5 times the number that the senator from Baraga, Houghton, Keweenaw, and Ontonagon? What is the explanation for the fact that the twelfth district (Oakland county), which, while nearly equal in area to the combined sixteenth and seventeenth districts (Kent county), contains almost 108,000 more citizens, nearly 3 times the number of manufacturing establishments, yet is entitled to only 1 senator while Kent county has 2 senators?
No formula for representative government in a *57democratic society is valid if “practical equality of representation on the chosen basis is destroyed.”18 Here there is no practical equality on any basis. We concluded above, after examination of many possible criteria, that the scheme of the amendment defies explanation. So it does, on any rational basis. But although no explanation on a basis of rational classification will withstand scrutiny, a reason for the districting suggests itself. The simple and obvious fact seems to be that the scheme is the perpetuation of the malapportioned population basis in existence, only by grace of defiance of the Constitution, at the time of the adoption of the amendment. The malapportionment existing at this time was a reproach to. the democratic process and a monument to legislative indifference. It has gained nothing in respectability or validity by the new form in which cast.
No conclusion is possible save that this amendment to the Michigan Constitution violates the equal protection clause of the Fourteenth Amendment. The citizens’ right to vote is eroded in some instances and multiplied in others and upon no discernible basis. We have reached, in fact, the situation posed hypothetically by Mr. Justice Douglas in MacDougall v. Green:19
“None would deny that a State law giving some citizens twice the vote of other citizens in either the primary or the general election would lack that equality 'which the Fourteenth Amendment guarantees.”
Although not directly brought into issue in the arguments of the parties, we note that there is in this amendment an invidious discrimination not only *58against the urban interests, through the attempt to constitutionalize the malapportionment, but also against the nonurban interests, since there is no rational classification which groups the counties in the outstate area. Considering only the twenty-seventh, twenty-eighth, and thirtieth districts, we can see obvious and irrational classifications. The thirtieth district has 37,052 more people (almost 45% more) than the twenty-seventh district and 4,534 square miles more territory (considerably more than double), yet each district comprises 7 counties. The twenty-eighth district is comparable in population with the twenty-seventh (4,502 less persons) but is 2,173 square miles larger (over 60% larger), yet the twenty-eighth district encompasses some 10 counties. Considering the twenty-eighth district in relation to the thirtieth, we find that the twenty-eighth has approximately 65% of the population of the thirtieth (41,554 less people) and 2,361 square miles less territory, yet encompasses 3 more counties that the thirtieth district. We need carry the illustration no further.
The constitutional indefensibility of what has here been done is seen with the utmost clarity upon analysis of the arguments made in support thereof. First, it is pointed out that many States use a political unit (e.g. counties) as the basis of representation in the senate. So they do. Political scientists have debated for years whether the advantages of representation by political unit outweigh the disadvantages of population inequalities therefrom frequently encountered, since some counties are more populous than others. But all of this is irrelevant to our case. Michigan does not employ the political unit basis. It employed a population basis before the amendment, and the basis employed in the amendment itself we are trying to discover. Such constitutional provisions are not, then, precedent for what was done in this State.
*59But, defendants continue, even if Michigan does not employ the county as a basis for senate representation, at least it does employ parts of counties, whole counties, and multiples of counties in making up its units for senatorial representation. That, however, is precisely why the plaintiff is in court. He says these conglomerations of areas have been put together upon no rational basis. They are not political units, they are not industrial units, they are not farm units, they are not population units, nor are they recognizable combinations of any of these. As a matter of fact they are in general merely the continuation of the old malapportioned population districts. The fact that they are described in terms of parts of counties, whole counties, and multiples of counties means exactly nothing. Land may always be so described. There is no area of the State, no capriciously or deliberately gerrymandered acreage, that could not be described in these terms. The question remains, still unanswered, what basis has been used to bundle together these parts of counties, counties, and multiples thereof into districts?
In the final analysis, much of defendants’ argument comes down to this: the majority of our people have limited the voting rights of certain of their fellow citizens, and since a majority has so acted we will not interfere. The argument denies 200 years of American constitutional law and it is more properly addrosed to the English courts than our own. One of the principal reasons we of the United States have a written Constitution is to guard against excesses of the majority. It is not enough that the majority act. They must act in accordance with the “supreme Law of tire Land.”
We now reach the core of the case. The Constitution of the United States does not require, as we construe equal protection, that there be a precise mathematical correlation between the weights ac*60corded votes. It does not demand the precision of a physicist. But it does demand that the voter’s 'right to substantial equality not be subject to gross, or to wilful and deliberate, deprivation, and it is no more palatable to us that it be accomplished on a grand scale than through the petty larceny of the ward heeler. United States v. Classic, 313 US 299 (61 S Ct 1031, 85 L ed 1368); United States v. Saylor, 322 US 385 (64 S Ct 1101, 88 L ed 1341). Nor are we able to disentangle, save as a matter of verbiage, the inequality of suffrage thus sought to be imposed, from inequalities of race or national origin, particularly when, in everyday life, the one is so inextricably intertwined with the others. It is clear from the 1950 census, portions of which are set out-in the footnote,20 that many of the vast areas partial*61ly disenfranchised in the State of Michigan are precisely those areas wherein are concentrated the reservoirs of manpower necessary to onr industrial might, the emigrants from the South, and from foreign soil. The racial problems, the social problems, and the suffrage problems are here brewed together in a vast cauldron. The brew cannot be separated into ingredients, a pinch of this and a dash of that. The partial disenfranchisement of the citizens before us is only a part, but it is an inseparable part, of a much more comprehensive problem. It is no coincidence that many of these citizens are the same groups that face the problems both of inadequate schools and improper .housing. In the latter 2 areas the courts have moved towards solutions consonant with our constitutional principles. Similar remedial action should not be here denied. Democracy will find the solutions for these problems, but only if it is allowed to work. It cannot work if the people are denied both the intelligence to make it work and the opportunity for its exercise.
Of this there is ample demonstration. Distinguished scholars have exposed again and again the disastrous consequences of the view that has so long prevailed, that no one can correct an unconstitutional deprivation of suffrage save those who profit by the deprivation.21 What has actually resulted is that the base upon which our political structure was built, namely, “one man, one vote” has been distorted into “some privileged men, many votes,” amply justifying, as we shall see, the prescient argument of Charles Francis Adams that “the moment a majority in a republic assumes to draw a distinction with the intent that certain men shall be enabled to enjoy twice or thrice the political power which an equal number of other men are to possess, that is the hour *62when tyranny begins.”22 In the train of the breakdown of constitutional law enforcement has come a minority rule, wherein the representatives of a-few people control the welfare of the many. Those paying the bulk of the taxes have only a minor representation.23 Communities of exploding population are helpless to cope with the problems created by the sheer press of numbers, the problems of schools, of transportation, of the decay of great population centers, of the flight to the suburbs, and the ever-increasing problems of the vast concentrations in industrial areas of those who become, early in life, too old to work.
But why have the courts not been vigilant to answer the repeated appeals made to them?
The objection most often heard is that we have presented a “political question,” not capable of resolution by the courts. Nothing has injected more confusion into this area of the law than the notion, a clear misconception, that political rights necessarily involve political questions, and therefore non), justiciable issues. If this were true, many cases, literally hundreds, decided by the courts of all jurisdictions,24 including our own as recently as 1944,25 and the supreme court of the United States as recently as 1953,26 were adjudicated by courts which-acted improperly by deciding a “political issue.”
No attempt will be made herein to define the precise limit of the so-called “political question.” 'The decisions constitute a maze, the thread of which seems at times to escape even the most astute commentators.*6327 In certain situations its application is clear. Questions arising out of the conduct of our foreign relations, such as Foster v. Neilson (1829), 2 Pet (27 US) 253 (7 L ed 415), wherein the question involved the validity of a grant made by the Spanish government in 1804, are strictly political questions. Questions involving a decision by the executive department as to who is sovereign of a particular territory are political questions, Williams v. Suffolk Insurance Co. (1839), 13 Pet (38 US) 415 (10 L ed 226). Likewise, the determination whether a particular person is a duly accredited diplomatic agent to the United States involves the court in a political question, In re Baiz (1890), 135 US 403 (10 S Ct 854, 34 Led 222).
Of similar import are cases involving a determination of whether or not a treaty is still in effect, Terlinden v. Ames (1902), 184 US 270 (22 S Ct 484, 46 L ed 534); Charlton v. Kelly (1913), 229 US 447 (33 S Ct 945, 57 L ed 1274, 46 LRA NS 397), which of 2 competing groups purporting to act as the lawful authority represents the government of a State, Luther v. Borden (1849), 7 How (48 US) 1 (12 L ed 581), the proof required that a statute has been enacted, Field v. Clark (1892), 143 US 649 (12 S Ct 495, 36 L ed 294), or a constitutional amendment ratified, Coleman v. Miller (1939), 307 US 433 (59 S Ct 972, 83 L ed 1385, 122 ALR 695). In addition the courts have characterized as “political,” questions relating to the termination *64of wars, Commercial Trust Co. of New Jersey v. Miller (1923), 262 US 51 (43 S Ct 486, 67 L ed 858), and what constitutes a republican form of government, such as adoption of the initiative and referendum, Pacific States Telephone & Telegraph Co. v. Oregon (1912), 223 US 118 (32 S Ct 224, 56 L ed 377).
In many of these cases considerable emphasis has been placed upon the theory of separation of powers. There is no doubt that the doctrine is applicable when the issue is whether the court should directly issue a writ of mandamus to the legislature, e.g., Fergus v. Marks (1926), 321 Ill 510 (152 NE 557, 46 ALR 960), or to an official of a coordinate branch of the government to control the exercise of executive discretion, Georgia v. Stanton (1868), 6 Wall (73 US) 50 (18 L ed 721). It is more than a mild form of revolt for one branch of government to assume powers properly within the exclusive domain of another. However, it is equally offensive to good government that one branch refuse to exercise powers committed to it. In such event the doctrine of separation of powers itself brings the wheels of government in that area to a complete stop, for under the doctrine no other branch can properly assume that which has been abandoned by its rightful guardian. It is for this reason that the doctrine of separation of powers as a deterrent to corrective action must be exercised with the utmost caution. It has not, in recent years, we observe, stood in the way of our condemnation of improper gubernatorial28 or presidential29 exercise of power.
It would be presumptuous to tender any capsule definition of the separation of powers doctrine. Possibly no greater precision should be attempted than *65to say, paraphrasing Hart and 'Weehsler,30 that it involves a determination of which department of government should have the final say in the matter under examination. This, indeed, merely poses another cpiestion, but as to it, or under any separation of powers analysis, there can be only one answer when the question concerns an obvious and palpable violation of the Fourteenth Amendment. In preserving the ballot intact we usurp no function confided to another branch of government, but, rather, perform our time-honored function of guarding the constitutional guarantees of our people.
The preservation of the free and equal ballot as a matter of judicial cognizance and solicitude has had such ample implementation that it is difficult to make apt selection from the plethora of decided cases. The clearest possible enunciations are found in that series of cases relating to the exclusion of the Negro race from the political primaries.31 It is held to be “an evil” to bar Negro voters from effective participation in the government of their State. If this principle may be taken as a point of departure, by what conceivable distinction may it be said that the voters before us may be denied effective participation in the government of their State? The right is equally individual to them and equally secured by the Federal Constitution.32
Nor, as we observed, does the circumstance that the restrictive action is sought to be accomplished by State constitutional, rather than statutory, provision invest the deprivation with any cloak of respectability. The classic case of this type is Davis v. Schnell (SD Ala), 81 F Supp 872, affirmed, per curiam (1949), 336 US 933 (69 S Ct 749, 93 L ed *661093), in'which the Boswell amendment to the constitution of Alabama was struck as violative of the Fourteenth and the Fifteenth Amendments.
Particularly revealing, also, as to the asserted jurisdictional problem in the case before us, are those cases where the United States supreme court, without reference to such here-asserted obstacle, has considered the validity of State apportionment legislation within the framework of the Federal system. See Smiley v. Holm, 285 US 355 (52 S Ct 397, 76 L ed 795); Koenig v. Flynn, 285 US 375 (52 S Ct 403, 76 L ed 805); Carroll v. Becker, 285 US 380 (52 S Ct 402, 76 L ed 807).33
In actions at law for damages, as early as 1900, the United States supreme court has sustained the jurisdiction of the Federal courts in the matter of infringements upon the right to vote. The case of Wiley v. Sinkler, 179 US 58 (21 S Ct 17, 45 L ed 84), where a cause of action for refusal to accept a citizen’s vote for a member of congress was found to’ be within the court’s jurisdiction, furnished early precedent. The famous series of cases arising out of an attempt by Texas to exclude the Negro from voting, particularly in the primaries, followed. In these cases the primary vote was judicially noted by the courts to be of the essence of the electoral process. In Nixon v. Herndon (1927), 273 US 536 (47 S Ct 446, 71 L ed 759), a suit for damages against the judges of election resulted in a declaration that the Texas legislation prohibiting the Negro *67from the primary election was in direct .contravérition of the Fourteenth Amendment. To the political' question argument, Mr. Justice Holmes, speaking for the court, made very pointed answer (p 540) :
“The objection that the subject matter of the suit is political is little more than a play upon words. Of course the petition concerns political action 'but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at-law hardly has been doubted for over 200 years, since Ashby v. White, 2 Ld Raym 938 (92 Eng Rep 126); 3 Ld Raym 320 (92 Eng Rep 710), and has been recognized by this court. Wiley v. Sinkler, 179 US 58, 64, 65 (21 S Ct 17, 45 L ed 84). Giles v. Harris, 189 US 475, 485 (23 S Ct 639, 47 L ed 909).”
The subsequent step by Texas (to repeal this law and replace it with one empowering the executive committee of a political party to decide who was qualified to vote in the primary) also came before the courts, with like result. Nixon v. Condon (1932), 286 US 73 (52 S Ct 484, 76 L ed 984, 88 ALR 458). In one of the final cases of the series, Smith v. Allwright (1949), 321 US 649 (64 S Ct 757, 88 L ed 987, 151 ALR 1110), an action for damages, wherein the “State action” was condemned under the Fifteenth Amendment, it was held, in part, that (pp 661, 662, 657):
“It may now be taken as a postulate that the right to vote in such a primary for the nomination of candidates without discrimination by the State, like the right to vote in a general election, is a right secured by the Constitution.”
“Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution or. in conflict with powers *68delegated to and exercised by the national government.”
The criminal prosecutions under the provisions of the civil rights acts of both State and Federal election officials are probably the most famous and oft-cited cases. Ex parte Yarborough (1884), 110 US 651 (4 S Ct 152, 28 L ed 274); United States v. Mosley (1915), 238 US 383 (35 S Ct 904, 59 L ed 1355); United States v. Classic (1941), 313 US 299 (61 S Ct 1031, 85 L ed 1368); United States v. Saylor (1944), 322 US 385 (64 S Ct 1101, 88 L ed 1341), are leading examples. Basic to the conclusion of the Court in these cases (that the prosecution was proper under Federal law) is the determination that a Federally protected right has been violated.
It is beyond question that “State action which denies due process or equal protection of the laws in the exercise of the right of suffrage is prohibited by the Fourteenth Amendment,”34 and that :35
“Where discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights. McPherson v. Blacker, 146 US 1, 23, 24 (13 S Ct 3, 36 L ed 869); Nixon v. Herndon, 273 US 536, 538 (47 S Ct 446, 71 L ed 759): Nixon v. Condon, 286 US 73 (52 S Ct 484, 76 L ed 984, 88 ALR 458); see Pope v. Williams, 193 US 621, 634 (24 S Ct 573, 48 L ed 817). But the necessity of a showing of purposeful discrimination is no less in a case involving political rights than in any other.”
In all of the above cases the courts have acted with vigor to preserve to each citizen his political voice, his right to vote. The “political question” objection, when raised, has been dismissed. The same result is reached regardless of the remedy sought to be *69employed. In criminal prosecutions, in mandamus against the secretary of State or like officials, in advisory opinions, in declaratory judgments, and in writs of prohibition and certiorari the courts have not hesitated to preserve the integrity of the ballot from discrimination, bias, fraud, malapportionment, or other unconstitutional activity.
A court in deciding whether or not a particular issue is justiciable must take cognizance of the reasoning employed by other courts, State as well as Federal, in considering similar cases, even though they are not binding precedent on the Federal question of justiciability. Generaly speaking, the State courts have not hesitated to act in order to protect the right to vote, and often without discussing the jurisdictional question. Thus many courts,36 including those of this State,37 have considered the validity of laws enacted to apportion the State into legislative districts according to a constitutional mandate, to comply with the constitutional requirement of contiguity,38 limitations upon the numbers of senators or representatives,39 adherence to county and ward lines,40 that districts be equal in population as nearly as may be practical,41 as well as the validity of ap*70portionment legislation upon the “fundamental principle of equality of representation.”42
Thus, in Gates v. Long, 172 Tenn 471 (113 SW2d 388), the court invalidated a law which sought to re-establish a system of compulsory primary elections ' for the purpose of both permitting and requiring the electorate to participate. It was provided that the maximum county-unit vote of any county should be l/8th of 1% of the county’s population. In striking the law as an arbitrary infringement of the rights of the citizens, the court said (p 477) :
“With respect to their right to vote in the primary election of their party, the supreme court in the Texas cases has 3 times said that citizens were entitled to the protection of the Fourteenth Amendment to the Federal Constitution. (Citations omitted.) For the same reasons they would be entitled to the protection of section 8 of article 1, and section 8 of article 11, of the constitution of Tennessee (1870), the equal protection of the law. That is to say the State cannot confer this right upon one class of voters and deprive another class of voters of such right unless the discrimination can be justified on some rational basis.”
*71Continuing the tradition of drawing the fundamental right of suffrage under the protective covering of due process and equal protection is Preisler v. Calcaterra, 362 Mo 662 (243 SW2d 62) noted in 38 Va L Rev 672, wherein a law effectively restricting the right to representation on the board of election commissioners and the right to challengers and watchers at the polls to the 2 largest political parties was found to be violative of equal protection. See, also, State, ex rel. Witt, v. Bernon (1922), 11 Ohio Law Abst 318.
As was pointed out by the court in Preisler v. Calcaterra, supra, it has also become well recognized that the legislature may validly require more than-a small, minimum percentage of the vote cast at the last election, or a specified number of signatures to petitions, for a party or a candidate to be accorded certain privileges at a later election. These laws, however, are subject to constitutional limitations in that the standard fixed by the legislature as the basis for the privilege must not be arbitrary, unreasonable, or lacking in uniformity. Examples of such laws that fell to the constitutional mandate are People, ex rel. Hotchkiss, v. Smith (1912), 206 NY 231 (99 NE 568), and State, ex rel. Allen, v. Flaherty (1918), 40 ND 487 (169 NW 93).
There is no need further to accumulate cases. It is abundantly clear that the safeguard of the ballot against both denial and dilution has- been accomplished in scores of cases despite appeal to the doctrine of the political question. But a formidable reason for inaction has been cited to us, namely, a series of Federal cases commencing with Colegrove v. Green (1946), 328 US 549 (66 S Ct 1198, 90 L ed 1432), and culminating in Baker v. Carr (MD Tenn, 1959), 175 F Supp 649. These cases, argued to us at some length, present interesting and *72complex legal problems, but they are not precedent in the matter before us.
The facts in Colegrove are familiar to all students of the problem and need be only briefly reviewed. The plaintiff sought a declaratory judgment and injunctive relief in the Federal district court against the governor, the secretary of State, and the auditor of the State of Illinois, as ex oficio members of the primary certifying board. The object of the suit was to restrain the board from talcing action preparatory to the November election under an apportionment act enacted by the State legislature in 1901. The claimed invalidity was that the legislation, as it apportioned congressional districts, violated the Federal reapportionment act of 1911, through lack of compactness of territory and equality of population, as required by the Federal act.
The court, in a decision wherein a majority did not agree as to the ratio decidendi, refused the relief. Three members of the court stated that the case was controlled by Wood v. Broom.43 As an additional ground for decision the same 3 justices expressed agreement with the 4 dissenting justices who had stated in the Wood Case that the suit should be dismissed for want of equity. The decisive fourth vote upon the point that equity should not intervene in this situation was cast by Mr. Justice Rutledge, who, in concurring in the result, stated (p 565) :
“Assuming that the controversy is justiciable, I think the cause is of so delicate a character, in view of the considerations above noted, that the jurisdiction should be exercised only in the most compelling circumstances.”
The other members of the court agreed that the controversy was justiciable and that equity should intervene here as it had in other right-to-vote cases. *73In an opinion by Mr. Justice Black, it was stated (p 569):
“The 1901 State apportionment act if applied to the next election would thus result in a wholly indefensible discrimination against appellants and all other voters in heavily populated districts. The equal protection clause of the Fourteenth Amendment forbids such discrimination. It does not permit the States to pick out certain qualified citizens or groups of citizens and deny them the right to vote at all. See Nixon v. Herndon, 273 US 536, 541 (47 S Ct 446, 71 L ed 759); Nixon v. Condon, 286 US 73 (52 S Ct 484, 76 L ed 984, 88 ALR 458). No one would deny that the equal protection clause would also prohibit a law that would expressly give certain citizens a half vote and others a full vote.”
Thus, a majority of the court decided that jurisdiction does exist in this type of case, but a majority of the court, differently composed, decided that in this case it should not be exercised. A decision on the merits, as discussed by Mr. Justice Black, was never reached.
Following Colegrove v. Green, the court in MacDougall v. Green,44 unanimously accepted jurisdiction of the question, although Mr. Justice Eutledge again felt that the lateness of the hour, 12 days before the election, should compel equity to decline to exercise its jurisdiction, “but solely for this reason.” A majority of the court decided that the Illinois statute which required, as a prerequisite to the formation of, and nomination of candidates by, a new political party, petitions signed by 25,000 voters, with 200 signatures by voters in each of at least 50 counties, was not violative of the Federal Constitution. Without discussing the merits of the jurisdictional problem, the majority declared that (p 283):
*74“It is allowable State policy to require that candidates for State-wide office should have support not limited to a concentrated locality. This is not a unique policy.”
Again, there was a vigorous dissent by Mr. Justice Douglas, joined by Justices Black and Murphy (p 288):
“Discrimination against any group or class of citizens in the exercise of these constitutionally protected rights of citizenship deprives the electoral process of integrity. * * *
“None would deny that a State law giving some citizens twice the vote of other citizens in either thq primary or the general election would lack that equality which the Fourteenth Amendment guarT antees.”
Defendants derive considerable comfort from MacDougall. Its applicability is not so apparent to us. What is complained of in the case before us is a parceling of the State into arbitrary units having no relation to any rational scheme of classification, whether geographical, social, economic, or of population.
Should such whimsicality exist there is not a shred of support for the constitutional validity thereof in MacDougall’s holding that it is permissible State policy that candidates for State-wide offices have State-wide support.
The case of South v. Peters (1950), 339 US 276 (70 S Ct 641, 94 L ed 834), however, affirming (ND Ga), 89 F Supp 672, involves considerations more complex. The essence of the holding in the case, as we read it, is (p 277) that:
“Federal courts consistently refuse to exercise their equity powers in cases posing political issues arising from a State’s geographical distribution of electoral strength among its political subdivisions.”
*75It seems much too inclusive to say that the South Case stands for the proposition that Federal courts will never interfere with the State electoral machinery. "VYe know better. It may mean that the Federal courts will not, as against a recalcitrant State government, shoulder what amounts to the overall burden of devising and enforcing fair voting procedures in that State for the entire polity. That, of course, is not this case. The question before us is merely the validity of the challenged amendment. From that point forward the burden rests on the State authorities which cannot be assumed unready, unwilling, or unable to act. Or, it may mean that electoral representation based upon the political units of State government will not be invalidated by the Federal courts. "Whether thus broadly stated the principle is constitutionally defensible we need not vex. For in the case before us there is no recognizable unit employed in the classifications made. We have no more than an arbitrary division of the State into areas. At' the best it is wholly capricious. At the worst, it is deliberate, In either event it is wholly indefensible. We conclude that South v. Peters is not precedent against our holding that such classification is in violation of the Fourteenth Amendment. To us it is significant that the Federal cases commencing with Colegrove v. Green, supra, and continuing through Colegrove v. Barrett,45 Rem*76mey v. Smith,46 Kidd v. McCanless,47 Perry v. Folsom,48 Radford v. Gary,49 Baker v. Carr,50 and Magraw v. Donovan,51 all involve an unsuccessful attempt to invalidate, upon Federal constitutional *77grounds, an ancient State reapportionment statute unchallenged when enacted but long-since rendered unequal and discriminatory in its operation due to lapse of time and change of circumstances (e.g., the 1901 Illinois act, the Tennessee 1901 act, the Oklahoma 1910 act). Here both State and Federal courts, with certain recent exceptions (Magraw v. Donovan (Minn), 163 F Supp 184; Dyer v. Kazuhisa Abe (Hawaii), 138 F Supp 220), have traditionally refused to intervene, at law or in equity. The result is that an antiquated apportionment act is maintained in force. Through shifts and growths in population, the State then has a legislative body, largely not representative of the people, enacting law, levying taxes, approving appointments, and performing the other duties incident to its position. We thus have the “silent gerrymander.” The legislature has accomplished indirectly that which would be declared unconstitutional if attempted through legislation. The situation created and tolerated involves a direct contravention of the Constitution, as is frequently conceded by the defendants involved,52 and the courts, and results from a refusal by constitutional officers to perform their sworn duties.53 *78Thus the refusal to perforin an obligation imposed by the Constitution itself is permitted to take from our people the basic right upon which all others depend, the right to have a government of their choice and subject to their will.
Our reading of the Federal cases suggests to us that they have been far too broadly interpreted. They do not, in our opinion, stand for the generalities attributed to them. Particularly are we disinclined to their broad construction when such construction brings us in conflict with basic constitutional guarantees and involves an abdication of our judicial function. The cases are not authority for the uses sought to be made of them, nor for the distortion of legal principles at times attributed thereto. The right to vote, it is true, is a political right, but we do not gather from these cases that the issue before the Court in its deprivation is always “political” and nonjusticiable. The doctrine of separation of powers is not necessarily involved simply because the wrongdoer is a sheriff: or a selectman. If it were, our public vaults would be open to pillage on a scale matched only by the deprivation of rights before us. It is true that we will not mandamus a coordinate-branch of government but we are not required so to do, any more than a court is required to mandamus a town council to pass a proper peddler’s licensing; ordinance if the ordinance condemned is discriminatory. Most offensive to proper resolution of the question before us is the misapplication of the doctrine that we will not do indirectly that which we cannot do directly. It bogs the question to assume that what we are asked to “do” is forbidden. Will we refuse to enforce a criminal statute because we cannot pass it in the first place? Are we “doing in*79directly” (in punishing kidnapping) that we could not do directly (pass a law forbidding kidnapping) ?
The fear often expressed by the courts, also not properly attributable to the Federal cases, is that although they may, in common with great numbers of others, deplore the deprivation of suffrage, and although they have the power and the jurisdiction to act, they should not, because their decrees may be ignored and thus, in the inevitable conflict with the recalcitrant, the impotence of the courts may publicly he laid bare. In other words, that it is judicially more sagacious to be publicly indifferent than publicly impotent. The eminence of those cherishing this philosophy compels our deference, both to it and to them. Yet the thought thus expressed was persuasive neither to Chief Justice Marshall54 nor to Lord Coke55 (“quocl rex non debet esse sub Jtomine, sed sub Deo et lege”) and it does not commend itself to us. We do not lack for the means to enforce our decrees.
But our public proclamation that some forces are ■so mighty that we dare not risk the battle breeds in itself a kind of contempt for the law that must be weighed against the perils of nonenforceability, should such in truth actually exist. We will, as every■one knows, pursue as the hound the hare some petty ballot-box staffer. Yet if the violation of the Fourteenth Amendment be accomplished by State legislative nonaction, or affirmative constitutional action, we are to stand waxen and graved while the ravage continues. With this philosophy of the law I am in the most thorough disagreement. My thought was expressed hundreds of years ago, with *80the utmost simplicity, by Lord Coke, in his reply to James I: “The king is under the law.” So, in truth, I hold, are all majorities of our people.
When we of the courts stand silently acquiescent under these circumstances we nurture a double standard of constitutional morality, one law for the mighty, another for the weak. “There is little doubt,” as de Grazia56 commented, “that a flagrant contradiction between law and practice, such as exists between the legally stipulated criteria of apportionment and the actual apportionment in a number of American States, causes great moral uneasiness and discontent.” When we turn deaf ears to the people’s pleas for relief from pillage of their basic freedoms we abdicate our constitutional function. Let those who will, say our words would he empty, since we keep no armory. We keep the mightiest armory known to man, the sovereign conscience. It is our duty to give voice to its demands as well as to implement it with our decress. As Rostow put it: “The work of the court can have, and when wisely exercised does have, the effect not of inhibiting but of releasing and encouraging the dominantly democratic forces of American life. The historic reason for this paradox is that American life in all its aspects is an attempt to express and to fulfil a far-reaching moral code. * * * The prestige and authority of the supreme court derive from the fact that it is accepted as the ultimate interpreter of the American code in many of its most important applications.”57
50 much for the dissection of cases. We need not, we assume, join our Brothers in protesting our adherence to Federal authority on Federal questions. *81But the difficulty with this case is not the lack of precedent hut its abundance. Our problem, as always, is the choice between precedents. Here, in our opinion, the controlling precedent is the Federal precedent, to which ample reference has been made, holding that our people may, by no process, be disenfranchised. The point to be stressed is that we do not, in the case now before us, confront the situation in which the courts, rightly or wrongly, interpret the relief prayed as the construction by them of a new State electoral structure, and in a hurry at that. Our problem is far different. We rule as to the constitutional validity of the partial disenfranchisement of a great group of citizens through the operation of a theory of classification -which defendants are unable to explain and we are unable to discover. Our assumption will be, of course, that once its invalidity is exposed, the proper organs of government will hasten to rectify the wrong.
An additional question has been raised concerning the validity of the 1952 amendment in respect to its compliance with article 17, § 3, which requires in not more than 100 words “a true and impartial statement of the purpose of the amendment or question in such language as shall create no prejudice for or against such proposal.” In other words, we are asked to say at this time the people did not know for what they voted in 1952. This we cannot do. Constitutional provisions are not lightly to be upset. It is only after most serious consideration that we have concluded the presently-stated violation of the guarantee of equal protection invalidates the amendment. See City of Jackson v. Commissioner of Revenue, 316 Mich 694; Romano v. Auditor General, 323 Mich 533; see, also, Graham v. Miller, 348 Mich 684.
As to the asserted “laches” of the plaintiff in seeking the relief of the Court, the argument that he has *82delayed an unreasonable time in so doing, we cannot hold that in the few years since the adoption of this amendment that the plaintiff, or any other citizen, has waived his objections to the constitutional invalidity of this change in our government. There is never a vested right in a public wrong and wo indulge every reasonable presumption against waiver. (See Empsak v. United States, 349 US 190 [75 S Ct 687, 99 L ed 997]; Board of Supervisors of Houghton County v. Secretary of State, supra.) There was none here.
Finally it is urged to us that we remit the petitioners to thei r remedy at the ballot box. But if anything is clear in this whole sorry picture of encroachment and deprivation it is the futility of the asserted ballot-box “remedy.” Why? Because if the petitioners had access (on equal terms) to the ballot box for the election of their representatives they would not be before us. The remedy we tell them to employ is the very remedy they come to us seeking. Denial of the right of suffrage, in and of itself, gives rise to considerations of the most peculiar and impelling nature, since the deprivation of the right automatically insures deprivation of the remedy to which the luckless suitor is remitted by the courts, namely, the ballot box. Cf. Stone, C. J., in United States v. Carolene Products Co., 304 US 144, 152, n 4 (58 S Ct 778, 82 L ed 1234). The remedy is illusory and we reject it.
It is a somber and frightening thing to take from the people in a democracy their right to an equal vote. We rob them at one stroke of their sword and their shield. We render them powerless. We invite their exploitation. We insure the perpetuations in the body politic of the most malignant growths. We breed cynicism and contempt for the processes of government. The sorry catalog of abuses of minority rule, here shown in small part, *83amply demonstrates that government by only part of the people is both pernicious and destructive. The yoke must be responsive to the needs of those on whose neck it rests. Every recourse at our command should be devoted to the protection of the guaranteed right of the free and equal ballot.
Our conclusion is that the 1952 amendment to the Constitution of the State of Michigan is in violation of the equal protection clause of the Fourteenth Amendment and null and void.
There is no merit in additional questions argued.
The writ of mandamus should issue as prayed respecting the performance of acts by the secretary of State preparatory to and in implementation of the constitutional and statutory provisions respecting the election of State senators. This Court should retain jurisdiction of the cause awaiting corrective and prescribed action by the appropriate branches of government in accordance with the unamended constitutional mandate. Failing such action within 60 days hereof this Court should entertain a petition by any party hereto to rule specifically upon the matter of remedy.
No costs, a public question.
ADDENDUM:
Defendants’ reliance upon the case of Minor v. Happersett, 88 US 162 (22 L ed 627), is misplaced. The Minor Case was brought under the now “almost forgotten privileges and immunities clause of the Fourteenth Amendment,”58 not here relied upon, asserting that female suffrage was a necessary incident of Federal citizenship. It was held that it was not. But this is far from a holding that those having the suffrage may be made subject to discrimination in the exercise thereof. This was made abundantly *84clear in the later CruiJcshanlc Case59 Here Mr. Chief Justice Waite, who had himself written for the court in the Minor Case, discussed the application to that case of the principles of constitutional equality, and prohibitions of discrimination, holding that {Minor, supra), although the right of suffrage (pp 555, 556) “is not a necessary attribute of national citizenship,” nevertheless, “exemption from discrimination in the exercise of that right on account of race, et cetera, is.” He continues: “The right to vote in the States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States.”
Defendants’ efforts, moreover, to distinguish the Nixon Case, supra, on the ground that the right to vote therein protected was upheld by reliance in part upon the Fifteenth Amendment, is rejected by Mr. Justice Holmes who wrote for the Court in the first Nixon Case (pp 540, 541): “Wo find it unnecessary,” he held, “to consider the Fifteenth Amendment, because it seems to us hard to imagine a more direct and obvious infringement of the Fourteenth.” Smith v. Allwright, supra, was equally clear (p 660): “The Nixon Cases were decided under the equal protection clause of the Fourteenth Amendment.” Nor did the Colegrove opinion, supra, discuss or distinguish the Nixon Cases upon any Fifteenth Amendment ground. It is clear that the deprivation of the right to vote arising from an arbitrary classification, the situation presented to us, is not dependent upon the Fifteenth Amendment.
Souris, J., concurred with Smith, J. *85Edwards, J.The basic question posed by this petition is: Does the Fourteenth Amendment to the United States Constitution prohibit any State from enacting provisions for electoral districts for 1 house of its legislature which result in substantial inequality of popular representation in that house?
Petitioner seeks a declaration by this Court that the provisions of the 1952 amendment to article 5, §§ 2 and 4, of the Constitution of the State of Michigan violate the equal rights and due process provisions of the Fourteenth Amendment of the United States Constitution and hence should be declared void by this Court.
The 1952 amendments to article 5 froze 30 existing unreapportioned senate districts into the Michigan Constitution and divided into 4 districts 2 other existing senate districts in 2 very populous areas. The amendments removed any constitutional requirement of equal apportionment. The result is constitutionally prescribed representation by geographic districts (consisting of single counties, or groups of contiguous counties, or subdivisions of a single county) unequal in size and in population. The constitutional provision objected to does indeed grant totally disproportionate representation in the Michigan senate to certain counties of the State as opposed to others (including the one wherein petitioner resides1), and the discrimination in this regard appears generally to favor rural voters as opposed to urban voters and thinly populated areas as opposed to densely populated areas.
There can be, of course, only 1 authoritative interpretation of the Constitution of the United States — that of the supreme court of the United *86States as expressed by its majority opinions. US Const, art 3, § 2; Cohens v. Virginia, 6 Wheat (19 US) 264 (5 L ed 257); Radford v. Gary (WD Okla), 145 F Supp 541, affirmed 352 US 991 (77 S Ct 559, 1 Led 2d 540).
Once the United States supreme court has spoken on a question involving the Federal Constitution, all other courts in this land, including ours, are bound by its decisions. Book Tower Garage, Inc., v. Local No. 415, 295 Mich 580; Town & Country Motors, Inc., v. Local Union No. 328, 355 Mich 26, 46; People v. Gonzales, 356 Mich 247.
It is clear to us that the question posed here has been repeatedly presented to the United States supreme court and repeatedly answered in the negative. Colegrove v. Green, 328 US 549 (66 S Ct 1198, 90 L ed 1432); Cook v. Fortson, 329 US 675 (67 S Ct 21, 91 L ed 596); South v. Peters, 339 US 276 (70 S Ct 641, 94 L ed 834); Remmey v. Smith, 342 US 916 (72 S Ct 368, 96 L ed 685); Anderson v. Jordan, 343 US 912 (72 S Ct 648, 96 L ed 1328); Kidd v. McCanless, 352 US 920 (77 S Ct 223, 1 L ed 2d 157); Radford v. Gary, supra; Hartsfield v. Sloan, 357 US 916 (78 S Ct 1363, 2 L ed 2d 1363).
See, also, MacDougall v. Green, 335 US 281 (69 S Ct 1, 93 L ed 3); Matthews v. Handley, 179 F Supp 470, affirmed 361 US 127 (80 S Ct 256, 4 L ed 2d 180).
In each of these 8 principal cases cited (as in this one), an attack was made upon State provisions for voting rights which resulted in substantial inequality of voting strength to some voters as opposed to others; in each instance, the attack was (as in this one) based upon the Fourteenth Amendment, and in each instance the relief requested was refused by a majority of the United States supreme court justices participating.
*87It is suggested that, even though this be true, still the essential problem was left so much in doubt by the United States supreme court’s decisions that this Court has the right to reach an opposite result. We do not find these decisions so vague.
In the earliest of these cases, Colegrove, supra, which has been cited and relied on by the court majority as recently as 1957 (see Kidd, supra), the syllabus gives the following summary (p 549):
“Three persons who were qualified to vote in congressional districts of Illinois which have much larger populations than other congressional districts of that State, brought suit in a Federal district court in Illinois, under the declaratory judgment act, to restrain officers of the State from arranging for an election, in which members of congress were to be chosen, pursuant to provisions of an Illinois law of 1901 governing congressional districts. The complaint alleged that, by reason of later changes in population, the congressional districts created by the Illinois law lacked compactness of territory and approximate equality of population; and prayed a decree, with incidental relief, declaring the provisions of the State law invalid as in violation of various provisions of the Federal Constitution and in conflict with the reapportionment act of 1911, as amended. The district court dismissed the complaint. Held, dismissal of the complaint is affirmed.”
In the MacDougall Case, relief was sought on the basis of the Fourteenth Amendment from an Illinois law requiring a petition from 25,000 voters, including a minimum of 200 from each of at least 50 of the 102 counties in the State, to form a new political party when 52% of the State’s registered voters lived in Cook county alone. The majority of the court refused relief, saying (pp 283, 284):
“To assume that political power is a function exclusively of numbers is to disregard the practicalities *88of 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 that the latter have practical opportunities for exerting their political Aveight 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 US 549 (66 S Ct 1198, 90 L ed 1432), and Colegrove v. Barrett, 330 US 804 (67 S Ct 973, 91 Led 1262).”
And in Radford v. Gary, 352 US 991 (77 S Ct 559, 1 L ed 2d 540), the supreme court, by per curiam opinion citing Colegrove v. Green, supra, affirmed a decision of a 3-judge court of the United States district court for the western district of Oklahoma in which that court had been asked to make the same sort of reappraisal of Colegrove Avhich the instant case asks us to make. There, the majority opinion of the Federal district court (Radford v. Gary, 145 F Supp 541) said (p 544):
“Finally, we are asked to reappraise Colegrove and its successors in the light of the philosophy of the recent civil rights cases, Brown v. Board of Education of Topeka, 347 US 483 (74 S Ct 686, 98 L ed 873, 38 ALR2d 1180); Id., 349 US 294 (75 S Ct 753, 99 L ed 1083) ; Bolling v. Sharpe, 347 US 497 (74 S Ct 693, 98 L ed 884), wherein the supreme court is said to have adopted an entirely different concept of the transcendent effect of the equal protection clauses of the Fourteenth Amendment as applied to State political and social policies. There is nothing in the so-called civil rights cases indicating a *89disposition to reverse, modify, or repudiate the rules so firmly established in the former cases, and it is not the function of this court to psychoanalyze the justices of the supreme court in order to divine the trend of decisions. It is sufficient that the supreme court has authoritatively spoken on the question before us, and we are hound until it speaks again.
“The motion to dismiss is sustained and the action is dismissed.”
It should he noted that in the present case we are not asked, as were the Federal courts in the cases relied upon by petitioner (Dyer v. Kazuhisa Abe [Hawaii, 1956], 138 F Supp 220; Magraw v. Donovan [Minn, 1958], 163 F Supp 184), to restrain unequal and unlawful application of a State or territorial Constitution or law which guaranteed equal representation. In this case, we are asked to declare void a portion of the organic law of this State duly adopted by its people which, in its terms, provides for 1 senator for each constitutionally described senatorial district, which districts were substantially unequal in population at the time of the adoption of the amendment. In Dyer, supra, and Macjraw supra, the organic law of the territory or State concerned required equality of representation. The Fourteenth Amendment was looked to only for equal application of the law.
Indeed, in the Dyer Case, this distinction was emphasized, with the court saying (p 236):
“We are not saying each citizen must always have the same vote. Political institutions may invoke geographic representation.”
Nor is it accurate to say that the cases we have cited rest solely upon a reluctance of the Federal courts to intervene in a purely State problem. In the first place, our current problem is by no means purely a State one. The right asserted here is a *90Federal right claimed to be found in the Federal Constitution.
Even more directly to the point, however, is the fact that in 2 of the cases cited (Kidd, supra, and Anderson, supra), the United States supreme court upheld decisions of State supreme courts which denied relief (requested on the basis of the Fourteenth Amendment) from unequal apportionment of State legislative districts. In the per curiam opinion in Anderson, the United States supreme court cited Colegrove and MacDougall. In the more recent per curiam opinion in Kidd, it cited Colegrove and Anderson. Any doubt about a court majority in Cole-grove, or whether it applied to elections for State offices, is settled by these brief but definite opinions.
It seems beyond dispute that where, in the principal cases cited above, Fourteenth Amendment attacks did not serve to void reapportionment statutes which produced substantial inequality in spite of State constitutional mandates of equal apportionment, it may not be held to prohibit a State from producing similar results by .affirmative constitutional provision therefor.
It hardly seems necessary to add that Michigan Supreme Court cases, wherein relief was granted against unequal apportionment statutes upon the basis of State constitutional mandates of equal apportionment,2 became inapplicable to our present case when the equal apportionment provision in the State Constitution pertaining to the senate was removed by the 1952 constitutional amendment.
Nor may the right-to-vote cases involving Negro citizens be regarded as contrary precedent. Nixon v. Herndon, 273 US 536 (47 S Ct 446, 71 L ed 759); Nixon v. Condon, 286 US 73 (52 S Ct 484, 76 L ed *91984, 88 ALR 458); Davis v. Schnell (SD Ala), 81 F Supp 872, affirmed 336 US 933 (69 S Ct 749, 93 L ed 1093). The rights established therein were specifically mandated by the Fifteenth Amendment and are within the direct historic purpose of the Fourteenth. Further, the Nixon Cases preceded Colegrove and were discussed and distinguished therein, and the Schnell Case preceded the Kidd, Radford, and Harts-field Cases.
Actually, in no instance to this date has any court— State or Federal — held that the Fourteenth Amendment prohibits a State from establishing senate electoral districts by geographic areas drawn generally along county lines which result in substantial inequality of voter representation favoring thinly populated areas as opposed to populous ones, as Michigan has done in its Constitution. And we read the United States supreme court cases previously cited as controlling of our decision in this ease and as requiring the dismissal of this writ.
In spite of United States supreme court precedent to the contrary, however, we are told that the issue here is really simple; that the Fourteenth Amendment guarantees equal protection of the laws; that, therefore, when a State adopts a voting provision which gives one man’s vote greater weight than another’s, an inequality results which is prohibited by the Fourteenth Amendment.
To date this argument has not yet successfully appealed to the majority of the United States supreme court. It also seems to ignore much of American history.
From the very founding of this republic, this nation has contained 2 diverse political forces — one of which has espoused pure democracy, and the other of which has sought to check it. There actually were 2 great compromises in the writing and the adoption of the Constitution itself without which indeed the *92United States of America might never have come into being.
One of these was the conflict over the Bill of Rights. The Federalists thought them either unnecessary or undesirable. But those who were much concerned about pure democracy and individual liberty thought the first 8 Amendments to the United States Constitution so vital that they delayed ratification of the Constitution by the colonial legislatures until assured of the drafting and passage of the Bill of Rights. The Beards’ Basic History of the United States, p 133 //.
The other great compromise was arrived at in drafting of the Constitution. The Federalists succeeded in taking great powers from the States. In return, they had to give equal representation in the senate to all States regardless of size or population. Federalist Papers, No 62.3 Substantial inequality of voting strength as to the United States senate was thus built into the- Constitution long before the Fourteenth Amendment.
If, in our present case, this fact be distinguished as a compromise based upon historic conditions for which we find no parallel in Michigan, it is certainly difficult to distinguish similar legislative electoral provisions in the Constitutions of other States, both at the time of the adoption of the Fourteenth Amendment and subsequently.
The interpretation of the Fourteenth Amendment equal protection clause contended for herein would forbid any State from having a constitutional scheme for legislative representation in either house on any basis other than one which results in substantial voting equality.4
*93No matter what the future may bring in relation to this contention, it certainly was not the interpretation of the Fourteenth Amendment placed thereon by the States which ratified it. Nor is it that adopted by the United States congress subsequently in admitting States to the Union. Nor is it the interpretation current among the majority of the 50 States of the Union at present.
We recognize, of course, that interpretations of the United States Constitution by any body other than the United States supreme court lack final authority. But the history of the time of adoption and the general understanding of the Amendment at that time and in subsequent history is relevant to any effort at interpretation. Lockwood v. Commissioner of Revenue, 357 Mich 517; Bacon v. Kent-Ottawa Metropolitan Water Authority, 354 Mich 159.
Of the 37 States in the Union in 1868, nine had constitutional provisions for election of representatives to at least 1 of the houses of their legislatures which based representation on constitutionally described legislative districts with constitutionally allocated representation without any pretense of guarantee of equality of popular representation. These States are Vermont, Rhode Island, Connecticut, New Hampshire, New Jersey, Delaware, Maryland, South Carolina, and Nevada.
The resulting disproportion in popular representation was in some instances far greater than that complained of herein. In the instances of Vermont, Connecticut, and Rhode Island (all States which ratified the Fourteenth Amendment), representation in 1 house was based upon a political unit, with geographic boundaries, known as a town or city.
As of the 1870 census, while the towns of Burlington and Victory in Vermont were each entitled to 1 *94representative5 in the house, Burlington liad a population of 14,387 while Victory had 263.6 Thus, a vote in well-named Victory was worth more than 60 times that of a Burlington vote as to Vermont’s house of representatives.
Rhode Island’s constitution provided for the election of 1 senator from each town or city in the State.7 The 1870 census shows Providence possessing a population of 68,904, while Jamestown had 378.8 The ratio here was 182:1.
In Connecticut, the constitution in 1868 called for representation in the house, “the same as at present practiced and allowed.”9 Two representatives in the house were thus allocated to the towns of Hartford and Union.10 Hartford as of 1870 had a population of 37,743, while Union had a population of 627.11 Again, a ratio of 60:1.
Pour of these States had, in relation to the senate, constitutionally prescribed representation by counties or by electoral districts (consisting of single counties, or groups of contiguous counties, or subdivisions of a single county), which resulted in substantial disproportion.
New Jersey’s .constitution called for 1 senator per county,12 with a resulting ratio between Essex and Cape May counties as of 1870 of 17:1.13
Maryland’s constitution,14 and that of South Carolina,15 also provided for 1 senator per county, regardless of population, except for Baltimore city *95(3 senators) and Charleston county (2 senators), respectively. 1870 ratios could be found approximating 9:1 in Maryland,16 and 4:1 in South Carolina.17
In 1868 Nevada had a constitutional provision describing senate electoral districts and allocating-senators thereto which was entirely comparable to that adopted by Michigan in 1952.18 The districts consisted of single counties, or groups of counties, to which were allocated various numbers of senators, and 1 county which was allocated 4 senators. Based on these allocations, the 1870 census showed disproportionate ratios of as much as 4:1.19
In New Hampshire,20 the constitutional provision in 1868 (and now) called for senate districts apportioned by amount of direct taxes paid.21 In Delaware,22 constitutional allocation of seats by county resulted in 1870 in over half of the population located in New Castle county electing only 3 senators out of a senate of 9.23
The remaining States in 1868 had constitutions which purported to call for some sort of legislative-reapportionment by population. Many of these constitutions, however, also contained requirements or *96restrictions which actually prevented any reapportionment based on substantial equality.
The commonest of these provisions was a requirement of a minimum number of representatives or senators (usually 1) per county (or parish), coupled with a maximum number of seats in the house concerned. In addition to States discussed above, 6 States had this kind of provision. These States were Alabama,24 Georgia,25 Kansas,26 Louisiana,27 New York,28 and North Carolina.29
Another provision adversely affecting equality of popular representation in 1 house was a specific and disproportionate constitutional limitation upon the number of representatives from political subdivisions (usually counties) containing the largest populations. Such provisions existed in 1868 in 5 other States — Massachusetts,30 Maine,31 Missouri,32 Florida,33 and Pennsylvania.34
Without taking into account the major factor of disproportion occasioned by failure of legislatures to follow State constitutional commands to reapportion, or such relatively minor constitutional factors of disproportion as moiety clauses, it still appears that 20 of the 37 States constituting the Union at the time of the adoption of the Fourteenth Amendment had in their own constitutions provisions which prevented at least 1 legislative house from being based upon the principle of equality of popular representation.
*97Between 1868 and the present time, 13 additional States have entered the Union.35
As a prerequisite to such entry, the US Const, art 4, § 3, requires congressional approval. Historically, congress has required States applying for admission to submit their proposed constitution. See Coyle v. Smith, 221 US 559 (31 S Ct 688, 55 L ed 853). Typical of the form of approval is the statute by which the constitution of the proposed State of Hawaii was approved and Hawaii was admitted :
“Sec. 1. That, subject to the provisions of this act, and upon issuance of the proclamation required by section 7(c) of this act, the State of Hawaii is hereby declared to be a State of the United States of America, is declared admitted into the union on an equal footing with the other States in all respects whatever, and the constitution formed pursuant to the provision of the act of the territorial legislature of Hawaii entitled ‘An act to provide for a constitutional convention, the adoption of a State constitution, and the forwarding of the same to the congress of the United States, and appropriating money therefor,’ approved May 20, 1949 (Act No 334, Session Laws of Hawaii, 1949), and adopted by a vote of the people of Hawaii in the election held on November 7, 1950, is hereby found to be republican in form and in conformity with the Constitution of the United States and the principles of the Declaration of Independence, and is hereby accepted, ratified, and confirmed. (Emphasis supplied.) * * *
“Sec. 3. The constitution of the State of Hawaii shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.” 73 Stat 4 (48 USCA 1959 Cum Supp, ch 3, P 74).
*98Of the 13 States whose constitutions were approved for admission, 8 such constitutions (for the States of Arizona,36 Alaska,37 Hawaii,38 Idaho,39 Montana,40 New Mexico,41 Oklahoma,42 Utah43) contained provisions for election of at least 1 legislative house which fell into 1 of the 3 categories of disproportion discussed above.
Montana, for example (admitted 1889), required in its constitution the election of 1 senator per county.44 The 1890 census showed Silver Bow county with 23,744, and Yellowstone county with 2,06545 — a ratio of 11:1.
Arizona (admitted in 1912) provided in its constitution46 for 2 senators from Cochise county with 34,591 by the 1910 census, and 1 senator from Mohave county with 3,73347 — a ratio of 5:1.
The recently admitted States of Hawaii and Alaska offer further illustration of constitutionally provided substantial disproportion as will be detailed below.
Between 1868 and the present, disproportion of popular representation in State legislatures has increased markedly. This has resulted from 3 major factors: first, State constitutional provisions of the 3 categories previously cited; second, a tremendous population shift from rural to urban areas; and, third, a refusal on the part of many legislatures to reapportion even in the face of a State constitutional mandate demanding it.
*99Again omitting the third factor, pertaining to legislative failure to reapportion,48 we find that 27 States, a majority of the present 50 States, have constitutionally prescribed inequality of representation in at least 1 legislative house.
Fourteen States now have constitutional ■ provisions as to 1 house which make no pretense of basing representation on population or vote equality.49 The ratios of disproportion in many of these States have increased enormously.`
Thus Connecticut and Vermont retain representation in the house by towns,50 with extreme instances of disproportion now exceeding 600:1.51 Similarly, New Jersey retains a constitutional provision for 1 senator per county. The disproportion between the largest and smallest counties is now 26:1.52
Arizona, Idaho, New Mexico, South Carolina, Nevada, and'Montana also have a uniform number of senators for each county,53 resulting in 1950 in ratios *100of 39:1 ;54 77:1 ;55 48:1 ;56 18:1 ;57 82:1 ;58 and 54:1,59 re-spectively.
Delaware and Maryland have constitutionally specified representation in the senate by districts described along county or city lines.60 In Delaware, in 1950, the smallest county, Kent, had 37,870 population and was allocated 5 senators, while the largest county, New Castle, had 218,879 and only 7 senators.61
In Maryland, in 1950, the city of Baltimore had a constitutional allocation of 6 senators and a population of 949,708, where the smallest county in the State, Kent, had 1 senator for a population of 13,677.62
Three States have recently adopted constitutional provisions as to their State senators (quite comparable to the Michigan amendments of 1952) which eliminate any requirement of popular apportionment, provide for specific senatorial districts, and which result in substantial inequality of representation.
A 1954 constitutional amendment in Illinois allocated 24 of the 58 senate seats to Cook county,63 although Cook county contained 52% of the State population. Thirty-four seats were reserved for 48% of the population.64
*101The recent congressionally approved constitutions of the new States of Alaska and Hawaii contain State senatorial provisions which call for specific districts described largely on a geographic basis,65 with a resulting substantial inequality of popular representation. In Alaska, the newly elected State senator from the Anchorage-Palmer district represents 87,748 constituents, as compared with the senator from Barrow-Kobuk who represents only 5,70566 — a ratio of 15:1.
Any thought that the Dyer v. Kazuhisa Abe Case, supra, achieved equality of representation in both houses of the Hawaii legislature, either before or after Statehood is illusory. The Dyer Case dealt with the refusal of the Hawaiian legislature to reapportion the seats in the house and the senate as required by the terms of the Hawaiian organic act (48 USC [1958 ed], § 562) — the organic law of the territory.
The Dyer opinion was written in a Federal district court case which granted no relief other than to deny a motion to dismiss. It was decided February 10, 1956. On the heels of this decision, congress amended the Hawaiian organic act on August 1,1956 (70 Stat 907, ch 851, § 7), to require reapportionment of the house by the governor in terms of equality of popular representation (48 USC [1958 ed], § 562). But the same amendment increased the senate from 15 to 25 members, eliminated all requirement of reapportionment or equality of representation, specified senate electoral districts generally along the lines of previously existing counties (48 USC [1958 ed], §§ 568, 569), and so allocated the 25 seats among the designated districts as to maintain *102a gross inequality greatly favoring the more thinly populated districts as opposed to populous Oahu. The very same disproportion has been carried into the senate in the recently drafted and congressionally approved State constitution.67 Thus, in the senate of the new State of Hawaii, the island of Oahu with 79% of Hawaiian population will elect 10 senators, while 21% of the population on the “neighbor islands” will elect 15 senators.68
The senatorial districts, incidentally, are drawn along lines of previously existing counties, except for the county of Honolulu which is divided into 2 senate districts.
The second category (consisting of States whose constitutions pay lip service to reapportionment, but likewise contain requirements which negate equality) presently contains the 7 States of Alabama,69 Kansas,70 Louisiana,71 New York,72 North Carolina,73 Utah,74 and Mississippi.75 These constitutions require as to 1 legislative house at least 1 representative or senator without regard to population while likewise providing a maximum number of seats.76 All of these are listed in a study of State legislative representation,77 as having serious imbalance in favor of rural areas as opposed to urban areas.
*103In the third category (consisting of States with reapportionment provisions, hut with an arbitrary maximum limitation upon counties or districts with the largest populations), we find 6 States, California,78 Florida,79 Georgia,80 Oklahoma,81 Rhode Island,82 and Texas.83 The imbalance in these States between urban and rural voters favoring the latter is even more severe than in relation to the States in the second category.84
California will serve to illustrate the disproportion which can result. The California constitution provides that no county can have more than 1 senator. It also provides a maximum of 3 as the number of counties which can be grouped to form a single senatorial district.85 The result is that Los Angeles county has 1 senator for 4,151,687 people, while the 28th senatorial district (consisting of Mono, Inyo, and Alpine counties) has 1 senator for 14,014 people.86 The ratio is 296:1.
Thus a majority of the States of the Union in 1868, a majority of the States which joined the Union subsequently, and a majority of the States at the present time, had, or have, in their constitutions provisions as to 1 legislative house which have the effect of denying substantial equality of voting strength to some voters (generally in more populous areas), as compared to other voters (generally in thinly populated areas).
Many, if not most, of such provisions in other States are directly comparable in constitutional *104principle and resulting disproportion to 1lie 1952 amendments to Michigan’s Constitution.
"What the 1952 amendments did was to draw senatorial electoral districts based on geographic areas described in terms of counties, or groups of contiguous counties, or subdivisions of a single county. As we have seen, this has many parallels in the history of other States from the time of the adoption of the Fourteenth Amendment down to date. The system employed appears to be a variation of the 1-senator-per-county system which is common to many other States.
We note the suggestion that the 1-senator-per-county system may be a constitutional classification where the variation is not. We reject this reasoning, however. The 1-senator-per-county system would in Michigan produce ratios of disproportion exceeding 1,000:1. We do not think the Fourteenth Amendment may be regarded as forbidding a variation from the 1-per-county system in the direction of popular representation.
The real attack upon the classification of Michigan voters resulting from the 1952 senate amendments, however, is upon its purpose and its result. It seems clear to us that the general purpose of the disproportionate constitutional provisions which we have reviewed was, and is, to seek to give more thinly populated areas of a State a specific check upon the concentrated political power of the more populous areas. Considering that the amendment with which we deal in this case was adopted at an election wherein another amendment (Proposal No 2), designed to provide equality of popular representation in the Michigan senate was defeated, it seems clear that this likewise was the purpose of the majority of Michigan voters in 1952.
This Court does not determine the wisdom of the *105decisions made by tbe people of Michigan in adopting their Constitution. By its terms, all political power is inherent in them (Mich Const [1908], art 2, § 1), subject only, of course, to the United States Constitution.
However distasteful to some of us the rationale of the majority of voters in 1952 may be as support for the classification of senatorial districts which resulted from the 1952 amendment, it clearly has been regarded to date as acceptable under the United States Constitution by the United States supreme court.
The United States supreme court, in a case in which the classifications in a tax statute and ordinance were attacked as violative of the equal protection clause of the Fourteenth Amendment, established this test as to classification:
“Equal protection does not require identity of treatment. It only requires that classification rest on real and not feigned differences, that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate, relative to the difference in classification, as to be wholly arbitrary. Cf. Dominion Hotel, Inc., v. Arizona, 249 US 265 (39 S Ct 273, 63 L ed 597); Great Atlantic & Pacific Tea Co. v. Grosjean, 301 US 412 (57 S Ct 772, 81 L ed 1193, 112 ALR, 293); New York Rapid Transit Corp. v. City of New York, 303 US 573 (58 S Ct 721, 82 L ed 1024); Skinner v. Oklahoma, ex rel. Williamson, 316 US 535 (62 S Ct 1110, 86 L ed 1655).” Walters v. City of St. Louis, 347 US 231, 237 (74 S Ct 505, 98 L ed 660).
In MacDougall, supra, the court said (p 284):
“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 *106diffusion of political initiative as "between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.”
In the face of this history and this precedent, we find no way by which we can say that the classification we are concerned with herein is “wholly arbitrary,” and hence repugnant to the Fourteenth Amendment of the United States Constitution as the United States supreme court has construed it to this date.
These are cold words with which to greet a plea for equality of voting rights which has at least a kinship with the Declaration of Independence. Nor do we believe that the final chapter has been written in the struggle between those who would fully embrace the principle of equality of man and those who would hold it in check.
Nearly a century, a great civil war, and 3 constitutional amendments intervened between that Declaration and the end of its most manifest contradiction in American life — the institution of slavery.
Neither the words of the Declaration, nor those of the Fourteenth Amendment, served to grant women the equal right to vote. It took years of popular agitation and the Nineteenth Amendment to achieve this.
And only recently, after nearly 2 centuries, has the notion that all men are created equal been translated into a prohibition against legally enforced racial segregation. Brown v. Board of Education of Topeka, 347 US 483 (74 S Ct 686, 98 L ed 873, 38 ALR2d 1180).
While 2 of these changes were achieved by great social movements which resulted in constitutional amendment, the last was achieved by an interpre*107tation of the Fourteenth Amendment which may never have been considered by its authors, and which certainly had a great weight of precedent against it.
"We recognize, as petitioner asserts, that the Constitution is not a static document.
In Weems v. United States, 217 US 349 (30 S Ct 544, 54 L ed 793), the supreme court said (pp 373, 374):
“Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Nights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction. There is an example of this in Cummings v. State of Missouri, 4 Wall (71 US) 277 (18 L ed 356), where the prohibition against ex post facto laws was given a more extensive application than what a minority of this court thought had been given in Calder v. Bull, 3 Dall (3 US) 386 (1 L ed 648). See, also, Ex parte Garland, 4 Wall (71 US) 333 (18 L ed 366). The construction of the Fourteenth Amendment is also an example for it is one of the limitations of the Constitution. In a not unthoughtful opinion Mr. Justice Miller expressed great doubt *108whether that Amendment would ever he held as being directed against any action of a State which did not discriminate ‘against the Negroes as a class, or on account of their race.’ Slaughterhouse Cases, 16 Wall (83 US) 36, 81 (21 L ed 394). To what extent the Amendment has expanded beyond that limitation need not be instanced.”
And in Brown, supra, the court said (pp 492, 493):
“In approaching this problem, we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v. Ferguson [163 US 537 (16 S Ct 1138, 41 L ed 256)] was written. We must consider public education in the light of its full development and its present place in American life throughout the nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.”
To those to whom the essence of democracy is equality of voting rights, this case poses an unsolved issue of tremendous importance. Buried deep in the body politic of America is the conflict over minority rural control of, or veto power in, State legislatures as a result of affirmative State constitutional discrimination or of failure to reapportion legislative seats in accordance with the shift of population to the cities. Lewis, Legislative Apportionment and the Federal Courts, 71 Harv L Rev 1057 (1958); Tabor, Gerrymandering of State and Federal Legislative Districts, 16 Md L Rev 277 (Fall, 1956); Constitutional Right to Congressional Districts of Equal Population, 56 Yale LJ 127 (1946) ; Strout, Richard Lee, The Next Election is Already Rigged (Harpers, Nov., 1959).
It may well be that the relative abdication of State influence in resolving the great urban problems of our day (slum clearance, urban redevelopment, unemployment, and social security, to name a few) is *109largely due to the restrictions upon pure democracy thus built into the governmental structures of the States. Thus, ironically, those who have advocated State’s rights, along with checks on popular democracy, have by indirection aided in thrusting added responsibility upon the Federal government.
The shift of population to the metropolitan areas has not ceased. From a nation 95% rural in 1790, we have changed to one 64% urban in 1950.88 It is impossible to predict how far this migration may go toward creating even greater denial of responsive democracy in State legislatures as presently elected.
The people, of course, have the power to solve the problem either by piecemeal amendment of their State constitutions89 or by amendment to the United States Constitution. The difficulty of these solutions is obvious.
Possibly, too, this problem may represent the next great area of legal debate in the progress of America toward equality. The case for the interpretation of the Fourteenth Amendment as a prohibition against discrimination directed toward urban voters has been most eloquently stated by Justices Black and Douglas in their dissents in the Colegrove and MacDougall Cases.
These dissents stand in sharp contrast to the reasoning of the majority of the supreme court in the MacDougall Case which we have quoted and which we have held to be controlling of our current decision. It is obvious that the MacDougall reasoning has behind it a great weight of history and precedent. It is equally obvious that this reasoning cannot be reconciled with any concept of pure democracy^^_
*110We recognize that these dissents may ultimately prove prophetic. But the fact that they are quoted and relied on so frequently in the argument before-us serves chiefly to remind us that the essence of' petitioner’s case has been effectively presented, thoroughly considered and rejected in the court of final' decision in the cases we have cited.
If the answer to this problem is to be found in-terms of judicial decision, it is one of vast national impact and it requires the reversal of much prior United States supreme court precedent. Plainly, this Court is bound by existing United States supreme court precedents to the contrary until and unless the majority of that court becomes convinced that this new advance toward equality is one of “the-felt necessities of the time.”90 This decision, and its-timing, are for that court.
It would ill behoove the Supreme Court of Michigan (particularly at the juncture of history following the great decision in Brown v. Board of Education of Topeka, supra) to claim the right to an independent interpretation of the Constitution of the-United States.
4. No other meritorious question is presented.
For the reasons given, the petition for writ of mandamus is dismissed. No costs, a public question being involved.
Declaration of Independence.
“In some States a distinction may be made between reapportionment, the allotment to each county of its quota of representatives, determined by the legislature, and redistricting, the rearrangement of the boundaries of legislative districts performed by loeal agencies. In most eases, however, the existence of single member districts makes the distinction unnecessary." Walter, Reapportionment of State Legislative Districts, 37 Ill L Rev 20, 21.
“John W. Keogh, unsuccessful plaintiff in a previous apportionment suit was defending a foreclosure suit. Representing himself, he *44argued that the Illinois courts were acting illegally since the legislature had failed to redistrict. When the judge tried to stop the argument, Keogh pulled a gun. The opposing lawyer was shot and killed as he tried to get the gun away. Keogh explained that he killed the lawyer ‘to bring forcibly to public attention his contention that the supreme court of Illinois was an illegal body because of failure to reapportion legislative districts.’ ” Lewis, Legislative Apportionment and the Federal Courts, 71 Harv L Rev 1057, n 77.
“State constitutional provisions with respect to legislative reapportionment are more honored in their breach than in their observance. This is a rather curious phenomenon in a country which has placed so mueh store by written constitutions as the sine qua non of popular sovereignty and the rule of law.” Short, States That Have Not Met Their Constitutional Requirements, 17 Law & Contemp Prob 377.
See, generally, Symposium on Legislative Reapportionment, 17 Law & Contemp Prob 253; Lewis, Legislative Apportionment and the Federal Courts, 71 Harv L Rev 1057; Walter, Reapportionment of State Legislative Districts, 37 Ill L Rev 20; Durfee, Apportionment Representation in the Legislature, 43 Mich L Rev 1091; Tabor, The Gerrymandering of State and Federal Legislative Districts, 16 Md L Rev 277; Court Review of Congressional Apportionment, 3-Stan L Rev 129; 62 Harv L Rev 659; 58 Columbia L Rev 1080; 43. Ill L Rev 180; 17 La L Rev 593; Comment, 1955 Wis L Rev 125; Comment, 1949 Wis L Rev 761; 56 Yale LJ 127; 18 Temp LQ 388.
Also of interest, Farmer, Legislative Process in Alabama, pp 20 — 43; Ahl, Reapportionment in California, 22 Am Pol Sei Rev 977-980; Mott, Reapportionment in Illinois, 21 Am Pol Sei Rev 598-602; Stewart, A Study in Gerrymandering in Kentucky, 22 Ky LJ 417, 426; Apportionment of the New York State Assembly, 29 St. John’s L.' Rev 345; Korsak & Di Salle, Legislative Apportionment in Pennsylvania, 12 U Pitt L Rev 215, 222-243.
E.g., Colegrove v. Green, 328 US 549 (66 S Ct 1198, 90 L ed 1432) ; Kidd v. McCanless, 352 US 920 (77 S Ct 223, 1 L ed 2d 157).
No fully comparable instance of this situation can be found in Anglo-American law — one party, who is actually an interested litigant, being also the judge and jury. The judgment that there is ■or is not to be an apportionment is left to those who will be immediately (but not as vitally as the voters) affected.
The States have been slow to act in this area. Certain States, in■cluding the 2 recent States, Hawaii and Alaska, have adopted constitutional provisions to take the responsibility for apportionment away from the political branch. Such States are: California, Illinois, South Dakota, Texas, where a special board is directed to reapportion if the legislature fails to do so within a specified time; 'Oregon, where the same power is given to the secretary of State; Arkansas, Ohio, and Missouri, where the power is given entirely to a board; and Arizona, where the secretary of State is given complete power. In the constitutions of Alaska and Hawaii the governor is .given the exclusive power to reapportion.
On this point generally, see Lewis, op cit supra, at 1089, 1090, nn 187-194.
Regarding the point here made, a comment by Mr. Justice Stone in United States v. Carolene Products Co., 304 US 144, 152 (58 S Ct 778, 82 L ed 1234), note 4, is worthy of reference:
“It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expeeted to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the fourteenth Amendment than are most other types of legislation.”
US Const, art 6, § 2.
PA 1925, No 291 (CL 1948, § 4.1 [Stat Ann 1952 Rev § 2.1]).
See plaintiff’s exhibit D.
Michigan Const (1908), art 5, § 2, as amended, provides:
“The senate shall consist of 34 members. Senators shall be elected for 2 years and by single districts. Such districts shall be numbered from 1 to 34, inclusive, and shall consist of the territory within the boundary lines of the counties existing at the time of the adoption of this amendment, as follows: Pirst through fifth, eighteenth, twenty-first, Wayne county; nineteenth, Lenawee and Monroe counties;” et cetera.
The eleventh district which prior to the amendment comprised Lapeer, Saint Clair, and Macomb counties was divided into 2 districts, the eleventh, Macomb county; and the thirty-fourth, Lapeer and Saint Clair counties.
The twelfth district, which formerly comprised Oakland and Washtenaw counties, was divided into the twelfth, Oakland county; and the thirty-third, Washtenaw county.
See plaintiff’s exhibit G, pt 1.
Griffin v. Illinois, 351 US 12, 21 (concurring opinion) (76 S Ct 585, 100 L ed 891, 55 ALR2d 1055).
Walters v. City of St. Louis, 347 US 231, 237 (74 S Ct 505, 98 L ed 660).
New Hampshire Const (1783), part 2, art 26.
Plaintiff’s exhibit H.
The State of Michigan Economic Data Sheets, published in October, 1959, by the research division of the Michigan economic development department, disclose that the twelfth senatorial district (Oakland county) had the following population in 1950: total, 396,001; urban, 286,928; rural nonfarm, 95,795; rural farm, 13,278; and in 1954, had 1,249 commercial farms and 1051 manufacturing establishments. Similar figures for the thirteenth district (Genesee county) are as follows: total population, 270,963; urban, 201,857; rural nonfarm, 53,421; rural farm, 15,685; commercial farms, 1,617; manufacturing establishments, 286. Similar figures for the sixteenth and seventeenth districts, comprised in Kent county, are, taking an average for each district: total population, 144,146; urban population, 113,408; rural nonfarm, 20,470; rural farm, 10,267; commercial farms, 1,246; manufacturing establishments, 388. Tlie twenty-seventh district comprises the counties of Antrim, Grand Traverse, Wexford, Benzie, Missaukee, Leelanau, and Kalkaska. Similar figures for such district are: *56total population, 86,955; urban, 27,399; rural nonfarm, 32,411; rural farm, 27,145; commercial farms, 3,176; manufacturing establishments, 171. The twenty-eighth district comprises the counties of Osceola, Clare, Gladwin, Arenae, Iosco, Ogemaw, Roscommon, Alcona, Oscoda, and Crawford. Similar figures for such district are: total population, 82,453; urban, none; rural nonfarm, 49,462; rural farm, 32,991; commercial farms, 4,290; manufacturing establishments, 150. The thirtieth district comprises the counties of Menominee, Delta, Alger, Schooleraft, Luee, Chippewa, and Mackinac. Similar figures therefor are: total population, 124,007; urban, 64,237; rural nonfarm, 36,741; rural farm, 23,029; commercial farms, 3,080; manufacturing establishments, 403.
State, ex rel. Thomson. v. Zimmerman (1953), 264 Wis 644, 652 (60 NW2d 416, 61 NW2d 300).
335 US 281, 288 (69 S Ct 1, 93 L ed 3).
See 2 US Bureau of the Census, Census of Population: 1950, pt 22, Michigan, ch B.
Foreign Born Population (Table 48a)
Negro Population (Table 48)
350,028 Wayne 335,414
18,029 Macomb 4,262
32,766 Oakland 18,124
Genesee 17,682 14,060
Kent 21,746 7,067
Saginaw 10,015 9,086
Kalamazoo and St. Joseph (6th Sen. Dist.) 8,123 3,003
(Table 24) Total foreign born in State 603,735
(Table 24) Urban foreign born in State 490,537
Total Negro (Table 14) 442,296 (6.9% of the total State population)
Urban Negro (Table 14) 421,917 (9.4% of the total urban population)
Rural nonfarm Negro (Table 14) 15,470 (1.3% of rural nonfarm population)
Rural farm Negro (Table 14) 4,909 (0.7% of rural farm population)
Foreign born in Wayne county (Table 42a)
81,878 Canada
59,632 Poland
29,044 Italy
22,901 England and Wales
See Baker, Rural versus Urban Political Power; Lewis, Legislative Apportionment and tie Federal Courts, 71 Harv L Rev 1057.
Quoted in Lnee, Legislative Principles, pp 346, 347; quoted in Baker, supra, p 9.
Baker, supra, pp 3 and 4, citing the United States Conference -of Mayors.
A sampling of the eases appears at 2 ALR 1337.
Stenson v. Secretary of State (1944), 308 Mich 48; City of Lansing v. Ingham County Clerk (1944), 308 Mich 560.
Terry v. Adams (1953), 345 US 461 (73 S Ct 809, 97 L ed 1152).
Hart and Weehsler, The Federal Courts and the Federal System, pp 192-209 (1953); Dodd, Judicially Non-Enforeeable Provisions of the Constitution, 80 U of Pa L Rev 54 (1931) ; Field, The Doetrine of Political Questions in the Federal Courts, 8 Minn L Rev 485 (1924) ; Finkelstein, Judicial Self-Limitation, 37 Harv L Rev 338 (1924); Weston, Political Questions, 38 Harv L Rev 296 (1925); Finkelstein, Further Notes on Judicial Self-Limitation, 39 Harv L Rev 221 (1925); note, 41 Harv L Rev 232 (1927); 1 Sutherland, Statutory Construction (3d ed Horaek), §§ 201-230 (1943); note, 17 La L Rev 593 (1957); 1 Cooley, Constitutional Limitations (8th ed), pp 101-103 (1927).
Faubus v. United States (CCA 8), 254 F2d 797.
Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (72 S Ct 863, 96 L ed 1153, 26 ALR2d 1378).
The Federal Courts and the Federal System, supra, pp 100-102.
E.g., Terry v. Adams, 345 US 461 (73 S Ct 809, 97 L ed 1152) ; Rice v. Ellmore, 165 F2d 387, certiorari denied 333 US 875 (68 S Ct 905, 92 L ed 1151).
Perry v. Cyphers (CCA 5), 186 F2d 608, 610.
In these eases the question for decision was whether apportionment legislation was “legislation” within the meaning of the term as ordinarily used. If it were, then the governor’s usual duty in perfecting the bill into law was required. The court held that it was such.
In the Smiley and Carroll Cases the governor had vetoed the ap-portionment bill; thus, no legislation had been enacted and elections at large were ordered. In the Koenig Case, the legislature to avoid a gubernatprial veto passed a concurrent resolution. Here, too, since no bill was enacted, elections at large were ordered.
Davis v. Schnell (SD Ala), 81 F Supp 872, 876.
Snowden v. Hughes (1944), 321 US 1, 11 (64 S Ct 397, 88 L ed 497).
Examples of eases are collected in the following references: 18 Am Jur, Elections, § 29; 2 ALU 1337; 43 Ill L Rev 180, nn 36, 37, 39; 37 Ill L Rev 20, nn 25, 26, 27; 71 Harv L Rev 1057, nn 48, 49.
Board of Supervisors of Houghton County v. Secretary of State, 92 Mich 638 (16 LRA 432) ; Giddings v. Secretary of State, 93 Mich 1 (16 LRA 402); Williams v. Secretary of State, 145 Mich 447; Stevens v. Secretary of State, 181 Mich 199; Stenson v. Secretary of State, 308 Mich 48; City of Lansing v. Ingham County Clerk, 308 Mich 560.
Examples of cases on this point appear in the following: 37 Ill L Rev 20, n 33; 71 Harv L Rev 1057, n 52.
See eases collected in 37 Ill L Rev 20, nn 29, 30, 31.
Examples of cases are collected in: 37 Ill L Rev 20, n 34; 71 Harv L Rev 1057, n 53.
The best examples of eases and discussions on the point of an apportionment statute violating a constitutional requirement of district of equal population are the following:
Ragland v. Anderson, 125 Ky 141 (100 SW 865, 128 Am St Rep 242).
Stiglitz v. Schardien, 239 Ky 799 (40 SW2d 315).
*70Moran v. Bowley, 347 Ill 148 (179 NE 526).
Denny v. State, 144 Ind 503 (42 NE 929, 31 LRA 726).
Parker v. State, ex rel. Powell, 133 Ind 178 (32 NE 836, 18 LRA 567).
Brown v. Saunders, 159 Va 28 (166 SE 105).
Parkinson v. Watson, 4 Utah2d 191 (291 P2d 400).
Donovan v. Holzman, 8 Ill2d 87 (132 NE2d 501).
Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass 598 (113 NE 581).
Brophy v. Suffolk County Apportionment Commissioners, 225 Mass 124 (113 NE 1040).
Ballantine v. Willey (1893), 3 Idaho 496 (31 P 994, 997, 95 Am St Rep 17) ; Ragland v. Anderson (1907), 125 Ky 141 (100 SW 865, 869, 128 Am St Rep 242) ; In Ragland, the court subordinated the constitutional provision regarding the joining of 2 counties to the principle of equality of representation. Harte v. Moorehead (1916), 99 Neb 527 (156 NW 1067, 1069, 1070) ; People, ex rel. Van Bokkelen, v. Canaday (1875), 73 NC 198, 225 (21 Am Rep 465).
(1932), 287 US 1 (53 S Ct 1, 77 L ed 131).
(1948), 335 US 281, 284, 287 (69 S Ct 1, 93 L ed 3).
330 US 804 (67 S Ct 973, 91 L ed 1262). Colegrove, having failed in the action to enjoin the November, Í946, election, sought in this suit to enjoin all future elections under the 1901 apportionment act. The supreme court dismissed for want of a substantial Federal question. Mr. Justice Rutledge concurred in the result because the court refused to grant a rehearing in Colegrove v. Green, 329 US 825, 828 (67 S Ct 118, 199, 91 L ed 701, 703), and because it refused to hear the Cook and Turman Cases. Cook v. Fortson (ND Ga), 68 F Supp 624; Turman v. Duckworth (ND Ga), 68 F Supp 744, appeal dismissed as moot, 329 US 675 (67 S Ct 21, 91 L ed 596).
(ED Pa), 102 F Supp 708, motion to dismiss granted, and appeal dismissed for want of a substantial Federal question, 342 US 916 (72 S Ct 368, 96 L ed 685). Herein a Pennsylvania citizen sought, through the equity jurisdiction of the Federal district court, to invalidate a 1921 Pennsylvania apportionment act, to compel the legislature to reapportion and to enjoin the secretary of State from holding elections until an apportionment act was enaeted. The suit was premised upon the argument, as are most in this area, that the plaintiff’s rights under the Fourteenth Amendment were violated, particularly by the legislative failure to reapportion.
200 Tenn 273 (292 SW2d 40), motion to dismiss granted and appeal dismissed, 352 US 920 (77 S Ct 223, 1 L ed 2d 157), per curiam. In this case the plaintiff sought to have the 1901 apportionment act of Tennessee declared invalid and to secure an injunction restraining further elections under that law. The Tennessee court refused relief because of remedial problems. The United States supreme court in dismissing referred to Colegrove and Anderson v. Jordan, 343 US 912 (72 S Ct 648, 96 L ed 1328), facts noted in 20 US Law Week 3252, 3253, an attack upon the 1951 California apportionment legislation by way of mandamus which failed. The-California opinion is unreported.
(ND Ala), 144 F Supp 874. This suit was against the governor, the lieutenant governor, and the secretary of State in equity on the-ground that the failure of the legislature to reapportion itself in accord with the Alabama constitution of 1901 caused a denial of due process and equal protection of the laws to the plaintiffs. The court granted a motion to dismiss.
(WD Okla), 145 F Supp 541, affirmed per curiam, 352 US 991 (77 S Ct 559, 1 L ed 2d 540). This also was an attempt by way of the equity jurisdiction of the Federal courts to set aside an outmoded apportionment act — the 1910 Oklahoma legislation. The usual claims were denied for the usual reasons.
(MD Tenn), 175 F Supp 649. Again the 1901 Tennessee apportionment act was questioned on the usual constitutional grounds, in equity, and relief was denied. The citation referred to is the ruling of the district court on the motion to dismiss, which was denied. On December 21, 1959, the court dismissed the action. Civ. Act. No. 2724. Subsequently on December 31, 1959, the court dismissed the action. 179 F Supp 824.
(Minn), 159 F Supp 901. The district judge refused to dismiss the action in equity which sought to declare the 1913 Minnesota reapporlionment act invalid and to restrain the secretary of State from holding elections thereunder.
(Minn), 163 F Supp 184. A 3-man constitutional court was convened but refused to act until the January 1959 session of the Minnesota legislature had met, on the ground that it should have 1 more opportunity to correct the situation and obey the constitutional mandate. The court retained jurisdiction for 60 days.
(Minn), 177 F Supp 803. The legislature did reapportion at this session; therefore, the court accepted the plaintiff’s motion to dismiss.
Jones v. Freeman, 193 Okla 554 (146 P2d 564), appeal dismissed and certiorari denied, 322 US 717 (64 S Ct 1288, 88 L ed 1558). The Oklahoma court recognized that the act had become unconstitutional through the passage of time and the changes in circumstances and, thus, infringed the right of equality of representation under the Oklahoma constitution. The court, however, denied relief because of the remedial difficulties.
In Radford v. Gary (WD Okla), 145 F Supp 541, see note 49, supra, the attorney general conceded that there was a denial of the equal protection of the law.
Examples, from many eases stating the duty, are: Opinion of the Justices, 254 Ala 185 (47 S2d 714); Opinion of the Justices, 148 Me 404 (94 A2d 816); Brewer v. Gray (Fla), 86 S2d 799; Magraw v. Donovan (Minn), 163 F Supp 184.
The oath which the legislators take upon assumption of their duties is as follows:
“X do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of this State, and that I will faithfully discharge the duties of the office of................. *78aeeording to tlie best of my ability.” Mich Const (1908), art 16, § 2.
The duty of reapportionment of the senate, prior to the 1952 amendment, was imposed by Mich Const (1908), art 5, §4.
4 Beveridge, Life of John Marshall, p 551.
Prohibitions Del Roy, 12 Co Rop 63, 65 (77 Eng Rep 1342): “with which the king was greatly offended, and, said, that then he ■should be under the law, which was treason to affirm, as he said; to which I said, that Braeton saith, quod rex non debet esse sub homine, .sed sub Veo et lege.”
General Theory of Apportionment, in Symposium, supra, 17 Law & Contemp Prob 256, 262.
Eugene V. Eostow, The Democratic Character of Judicial Review, 66 Harv L Rev 193, 2.10.
Stone, C. J., dissenting in Colgate v. Harvey, 296 US 404, 443 (56 S Ct 252, 80 L ed 299, 102 ALR 54).
United States v. Cruikshank, 92 US 542 (23 L ed 588).
The senate district in which petitioner resides contains the largest population of any. Comparing it to that district haying the smallest population, the disproportion, employing 1950 census figures, was 6-1/2:1. Employing preliminary 1960 figures, the disproportion is 12-1/2:1.
Board of Supervisors of Houghton County v. Secretary of State, 92 Mich 638 (16 LRA 432) ; Giddings v. Secretary of State, 93 Mich 1 (16 LRA 402); Williams v. Secretary of State, 145 Mich 447.
Warren, The Making of the Constitution, p 267 ff.
“It is plaintiff’s basic contention, in short, that any discrimination, whether ‘geographic’ or otherwise, which in effect deprives^ him of substantial equality at the ballot box denies him of those rights guaranteed by the equal-proteetion-of-tlie-laws and due process clauses *93of the Fourteenth Amendment to the United States Constitution.” Plaintiff’s brief, pp 20, 21.
Vermont Const (1793), eh 2, § 7.
Compendium 9th Census (1870), p 351.
Rhode Island Const (1842), art 6, § 1.
Compendium 9th Census (1870), p 324.
Connecticut Const (1818), art 3, § 3.
Compendium 9th Census. (1870), pp 131, 132; 22 Conn Bar J <1948), p 136.
Compendium 9th Census (1870), pp 131, 132.
New Jersey Const (1844), art 4, § 2.
Compendium 9th Census (1870), p 74.
Maryland Const (1867), art 3, § 2.
South Carolina Const (1868), art 2, § 8.
Compendium 9th Census (1870), p 215 and p 56. Cf. Calvert county and Baltimore city.
Compendium 9th Census (1870), p 88. Cf. Chesterfield county and Charleston county.
Nevada Const (1864), art 17, § 6.
Compendium 9th Census (1870), p 72. Cf. Esmeralda county and Storey county.
New Hampshire Const (1783), pt 2, art 26.
No figures are available to indicate what results, in terms of popular representation, were achieved in 1868 by the New Hampshire constitutional provision for apportionment of senate districts. It is obvious, however, that the method employed was completely divorced from the principle of equality of popular representation. Interestingly enough, however, New Hampshire, with the same principle in its constitution, is currently close to equality of popular representation. Baker, Rural versus Urban Political Power, p 17.
Delaware Const (1831), art 2, § 3.
Compendium 9th Census (1870), p 30.
Alabama Const (1867), art 8, § 1.
Georgia Const (1868), art 3, § 3.
Kansas Const (1859), art 2, § 2; art 10, §§ 1, 2.
Louisiana Const (1868), arts 20, 21.
New York Const (1846), art 3, §§ 2, 5.
North Carolina Const (1868), art 2, §§ 5, 6.
Massachusetts Const (1780), ams 21, 22, of 1857.
Maine Const (1819), art 4 — pt 1st, §§ 2, 3.
Missouri Const (1865), art 4, § 2.
Florida Const (1868), art 4.
Pennsylvania Const (1838), art 1, § 7 (am 1857 to § 7).
We Rave treated Hawaii as admitted, although formally her Statehood does not take effect until July 4, 1960.
Arizona Const (1910), art 4, pt 2, § 1 (1).
Alaska Const (Í956), art 6, §§ 2, 7; art 14, § 2.
Hawaii Const (1950), art 3, § 2.
Idaho Const (1890), art 3, §§ 2, 4; art 19, §§ 1, 2.
Montana Const (1889), art 5, § 4; art 6, §§ 4, 5.
New Mexico Const (1911), art 4, Apportionment section, following § 41.
Oklahoma Const (1907), art 5, § 10.
TJtah Const (1896), art 9, §§ 2, 4.
gee n 40, supra, art 6, § 5.
Compendium líth Census (1890), p 29.
gee n 36, supra, art 4, § 21(1).
Compendium 13th Census (1910), p 32.
Failure to reapportion is generally regarded as occasioning more serious inequalities than affirmative State constitutional provisions. Lewis, Legislative Reapportionment and the Federal Courts, 71 Harv L Rev 1057, 1060.
Connecticut Const (1955), art 3, § 3.
Vermont Const (1793), am 1924, eh 2, § 13.
New Jersey Const (1947), art 4, § 2(1).
Arizona Const (1912), art 4, pt 2, § i(l).
Idaho Const (1890), art 3, § 2.
New Mexico Const (1911), am 1949, art 4, § 3.
Nevada Const (1864), am 1950, art 4, § 5.
Montana Const (1889), art 5, § 4; art 6, §§ 4, 5. '
Delaware Const (1897), art 2, § 2.
Maryland Const (1867), am 1956, art 3, § 2.
Illinois Const (1870), am 1954, art 4, § 6 (1959 Cum Supp).
Alaska Const (1956), art 6, §§ 2, 7; art 14, § 2.
Hawaii Const (1950), art 3, § 2.
South Carolina Const (1895), art 3, § 6.
See n 49, supra.
Cf. Union 261, Hartford 177,397. Rand McNally Commercial Atlas and Marketing Guide (90th ed, 1959), pp 101, 102. The Rand McNally figures are taken from the 1950 US Bureau of the Census tables.
Cf. Sussex county 34,423, and Essex county 905,949. 16, Rand McNally, p 293.
See n 49, supra.
Cf. Mohave county 8,510, and Maricopa county 331,770. IT), Rand McNally, p 63.
Cf. Clark county 918, and Ada county 70,649. Ib, Rand McNally, p 135.
Cf. Harding county 3,013, and Bernalillo county 145,673. Ib, Rand McNally, p 303.
Cf. McCormick county 9,577, and Greenville county 168,152. Ib, Rand McNally, p 393.
Cf. Esmeralda county 614, and Washoe county 50,205. Ib, Rand McNally, p 281.
Cf. Petroleum county 1,026, and Yellowstone county 55,875. Ib, Rand McNally, p 267.
See n 49, supra.
Ib, Rand McNally, p 214.
Ib, Rand McNally, p 209.
See n 49, supra.
Ib, Rand McNally, p 141.
See a 49, supra.
Press release US Dept, of Commerce May 16, 1960, entitled, Preliminary Election District Totals for Alaska, 1960 Census of Population.
See n 49, supra.
Cf. Honolulu eounty 449,910, and remaining counties 135,115. US Dept. of Interior, Hawaii, 1959, p 10.
Alabama Const (1901), art 4, § 50; art 9, §§ 198, 199, 201, 202.
Kansas Const (1859), art 2, § 2 (adopted 1873); art 10, §§ 1,
Louisiana Const (1921), art 3, §§ 2, 5, 6.
New York Const (1894, as am 1937, 1945), art 3, §§ 2-4.
North Carolina Const (1868, am 1872), art 2, § 5.
Utah Const (1896), art 9, §§ 2-4.
Mississippi Const (1890), art 13, §§ 254-256.
Kansas, supra, n 70, is a slight-exception in that 250 legal votes must have been east in a county to entitle it to 1 member in the house of representatives.
Baker, Rural versus Urban Political Power, pp 16,17.
California Const (1879), am 1926, 1942, art 4, § 6.
Florida Const (1885), am 1924, art 7, § 3.
Georgia Const (1945), art 3, § 3, pars 1, 2.
Oklahoma Const (1907), art 5, § 10.
Rhode Island Const (1842), art 6, §1, as amended by art 19 (1928).
Texas Const (1876), art 3, §§ 2, 25, 28.
Baker, Rural versus Urban Political Power, p 16.
See n 78, supra.
Ib, Rand McNally, p 77.
Taeuber and Taeuber, The Changing Population of the United States (1958), p 112 et seq.
In Michigan, amendment of the State Constitution requires a simple majority vote of those voting on the proposition. Art 17, §§ 1, 2,3.
Oliver Wendell Holmes, Tlie Common Law, p 1 (1881).