I concur in major substance with the carefully considered opinion of Mr. Justice Dethmers and for the reasons he has therein assigned. Specifically: I reject the Austin-Kleiner plan as *447being violative' of the plain mandate in article 4 to ■apportion and district in accordance with the terms ■of that article. I reject the Brown plan as over-weighing the maintenance of existing senatorial -districts. I reject the contention that the upper and lower peninsulas are contiguous by land within the meaning of the 1963 Constitution. I do not consider Scholle v. Secretary of State, 367 Mich 176, as being applicable herein for the reason that a completely new instrument, the 1963 Constitution, containing a rational plan with specifically weighted factors was not therein judicially construed. Excepting the previous holding upon the contiguity of the peninsulas by land, I consider the Hanna-Huhtala-LaPorte-Brucker plan and the Dongvillo plan as both being in substantial compliance with article 4.
It is, however, a fact of judicial life that since Baker v. Carr* the validity of any plan of legislative apportionment and districting is federally justiciable. Cases impend before the United States supreme court, decisions in which may reasonably be expected to furnish guide lines in the assessment of the constitutionality of the factor formulae in the 1963 Constitution. By waiting a reasonable period, not beyond April 15, 1964, such guide lines may be furnished by the Federal supreme court. By reason of this possibility I am constrained to join in the deferment of our final action until that date. It is my present conviction that the factor formulae of the 1963 Michigan Constitution do not offend against the only test thus far set down by Baker v. Carr, or any other United States supreme court decision specifically touching on State bicameral legislative apportionment and districting. The weighted factors, in my view do not constitute invidious discrimination. On April 15, 1964,1 shall address myself to an evaluation of the Hanna, et al. and Dongvillo plans *448to the end that I shall have requited my obligation under article 4, as I conceive it, determining which plan complies most accurately with constitutional requirements.
Memorandum oe Justice Black.
At the outset our function should be declared with unmistakable clarity. Called upon as it is to proceed under paragraph 7 (quoted in the margin1), this Court has before it a task of construction and application only. No question of validity — Federal or otherwise — -of all or any part or portion of the Constitution of 1963 need be considered. For the purposes of proceedings under said paragraph 7 we should accept each word and phrase of the Constitution of 1963 as having been validly adopted by the people. We should, nevertheless, take care to make plain that the National equality clause must be taken into coequal if not pre-eminent consideration when the highest court of a State assumes to construe and apply the Constitution of that State in the context of legislative apportionment. That clause, verily, is an indispensable component of the Constitution of every State.
January 31, 1964, the constitutional commission on legislative apportionment concluded finally that it could not “agree on a plan.” That conclusion, having-been duly reported to the Court, has brought said paragraph 7 into immediate play. Too, it has brought prompt submission of proposed plans as procedurally provided therein. Now that such plans and all objections thereto have been duly submitted, *449I deem it'in order that the following statement should issue at once:
Until our currently suspended decision of Scholle v. Secretary of State, 367 Mich 176, is reversed or affirmed, directly or by some of the several forthcoming decisions of the supreme court,2 or is released to us by denial of certiorari, this Court remains disabled from determining “which plan complies most accurately with the constitutional requirements.”3 And the quicker that fact is made known, so much the better for a State which may face — as of end of the current year — an interregnal breakdown along with governmental disorder of most serious proportions. Compare the conflicting views of former Chief Justice Carr, supported by Justices Dethmers and Kelly (367 Mich at 199 et seq.), with those of Justices Souris and Smith (367 Mich at 243 et seq.), the latter supported in such regard by the writer (367 Mich at 250, 251). Compare also sections 3 and 5 of the schedule and temporary provisions (Const 1963). Section 5, employing “notwithstanding” language, mandates election of the senate in 1964 for a 2-year term.
Some students of current legal events regard the Scholle decision as moot. They say this Court merely decided that the 1952 amendments of Michigan’s former Constitution were invalid under the National equality clause and, since those amend*450ments are no more, the 8cholle decision is of no present significance.
The allegation is erroneous, as all contending parties — for and against grant of certiorari — made clear by memoranda filed with the supreme court last year. The prevailing opinions of the Scholle Case, unless reversed by the supreme court, or overridden in some other case by the supreme court, will stand as Michigan precedent. Such precedent is relevant to our task under said paragraph 7 by force of the supremacy clause (US Const, art 6) and the oath we have talien (Const 1908, art 16, § 2; Const 1963, art 11, § 1). The supremacy clause considered, the Constitution of each of the States has written into it, firmly as if printed before the reader’s eyes, a special and controlling proviso which in so many words says that, when that State’s Constitution is capable of 2 constructions, one of which would conflict with some provision of the National'Constitution, the other must prevail.4 Thus it is that the equality clause of the National. Constitution complements and supplements and, in case of conflict, modifies to the extent of such conflict the Constitution of each of the States. The equality clause, is, indeed, “as much a part of the laws of every State as its own local laws and Constitution” (Blythe v. Hinckley, 173 US 501, 508 [19 S Ct 497, 43 L ed 783]; 180 US 333, 338 [21 S Ct 390, 45 L ed 557]).5
*451Even without our counterpart equality clauses the National equality clause would require controlling-consideration in the construction and application of the Constitution of 1963. Consequently, the prevailing opinions in the second Soholle Case, unless they are directly reversed or overridden otherwise by the supreme court, will determine the pertinent construction some of us — ultimately in these proceedings — will place upon “this Constitution.” But for the pending petition for writ of certiorari and the stay order of July 27, 1962, this Court would be-free, indeed obliged, to apply such precedent in determining which plan “complies .most accurately with the constitutional requirements.”6
I attach much interpretive importance to the fact that our decision in the second Soholle Case was. handed down (July 18,1962) prior to final approval,, by the constitutional convention, of “this Constitution.” That decision was before the delegates and, on account of it, they made a significant change of the-constitutional “Schedule.”7 And the delegates did *452not at anytime eliminate from any proposed draft, or qualify in any way, the successive guaranties of equal protection the reader finds in said sections 1 and 2 of article 1.
Similar interpretive importance is laid upon the fact that the equality clauses of sections 1 and 2 of article 1, and the districting and apportionment provisions of sections 2 and 3 of article 4, were simultaneously approved by the people as parts of *4531 instrument'. The situation in such regard is quite unlike that which faced the Court in the 2 Scholle Cases. There it was necessary to prefer — to the extent of conflict — the 1952 amendments over Michigan’s 1908 guaranty of equal protection'; the latter having been provided by section 1 of article 2 of the former Constitution. As noted by the writer in the first Scholle Case (360 Mich 1, at 111), following the Thoman Case (Thoman v. City of Lansing, 315 Mich 566, 579), “the earlier provision must yield to the later.” Here there is no “earlier” and no “later” provision. All are united; hence we cannot say “that any clause in the Constitution was intended to be without effect.” (See present full quotation, Marbury v. Madison.) To give sections 2 and 3 of article 4 the exclusive effect demanded for the Hanna Plan, it would be necessary to ignore contemporaneous sections 1 and 2 of article 1. And to give sections 1 and 2 of article 1 the exclusive effect demanded for the Austin-Kleiner Plan would eliminate due regard for contemporaneous sections 2 and 3 of article 4. .
Since by all authority extant the 4 sections are to be construed as coaleseent, it need only be said that some or all may, ultimately, have to give somewhat in order that none shall suffer material subordination. Marshall pursued this thought fully in Marbury v. Madison, 1 Cranch (5 US) 137 (2 L ed 135). The beginning and concluding sentences of the point made at the time are quoted as follows (5 US at 174, 175):
“It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it. * * *
“If any other construction would render the clause inoperative, that is an additional reason for rejecting-such other construction, and for adhering to' their obvious meaning.”
*454Without intending to hint that the intent of the delegates, whatever such intent may have been that last day in the circumstances related by delegate Leibrand, controls or could control over the laws and usages of the times,8 I regard it as additionally meaningful that the mandate to district and apportion “according to the provisions of this Constitution/’ and to “determine which plan complies most accurately with the constitutional requirements,” was not changed by the delegates after handing down of the Scholle decision on July 18, 1962. All this leaves, reasonably, but 1 interpretive conclusion; that the apportionment commission’s task, and our task in turn, should be done in accordance with the principles of constitutional construction to which reference has been made and will now be made in greater detail.
The guiding canon of Constitutional construction is that no one provision is to be separated from the others, to be considered alone, but that all provisions bearing upon a particular subject are to be brought into view and interpreted so as to effectuate the great purposes of the instrument. Hence, fortified by the significant omission — from section 6 of said article 4 —of words fitting the most compliant “plan” to the “provisions” or “requirements” of article 4 only, and by the actual employment of words fitting the most compliant “plan” to the “provisions” or “requirements” of “this Constitution,” I look upon simultaneously adopted sections 1 and 2 of article 1 and sections 2 and 3 of article 4 as due for construction according to the rule in pari materia. For controlling reasons, see Patton v. United States, 281 US 276, 298 (50 S Ct 253, 74 L ed 854, 70 ALR 263). Construed thus, “equal protection” qualifies sections *4552 and 3 of article 4 to the extent necessary for harmonious application of articles 1 and 4; also to the' extent necessary for assurance of Fourteenth Amendment equality. The nature and extent of such qualification thus becomes our problem.
The controlling principle of constitutional construction came to full enunciation in Ullmann v. United States, 350 US 422, 428, 429 (76 S Ct 497, 100 L ed 511, 53 ALR2d 1008):
“As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion. It is appropriate to read the conviction expressed in a memorable address by Senator Albert J. Beveridge to the American Bar Association in 1920, a time when there was also manifested impatience with some of the restrictions of the Constitution in the presumed interest of security. His appeal was to the Constitution — to the whole Constitution, not to a mutilating selection of those parts only which for the moment find favor. To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.”9
Assuming all this is acceptable, we come to an ultimately decisive question: What is equal protection in the context of apportionment of our State Legislature? If it is what 4 present members of the Court — albeit in different degree — -stood for in 1962 (second Scholle Case), then the Austin-Kleiner plan probably comes closest to compliance “with the *456constitutional requirements.” If it is what the remaining members of the Court stood for on that same occasion, then 1 of the other competing plans most accurately complies. And if it is a “blend” of such conflicting views, then we must savor that blend prior to determination of paragraph 7’s posed question. The final answer will have to come, the supremacy clause considered, from Washington. That answer, now, is reasonably expectable on or before the date fixed by our order of even date, which order suspends until April 15th the determination called for by said paragraph 7.
It would, without doubt, evidence presumptuous conduct on our part should we assume to guess now what standards the supreme court will provide for ascertainment of equal protection in the processes of State legislative apportionment. By force particularly of Fox, Naudzms, and Cook those standards, when promulgated, will determine the relevant construction and application of “this Constitution.” They will indeed fix the nature and extent of the equal protection sections 1 and 2 of said article 1, and with the National equality clause, provide together for today’s problem and its solution.
Summary of Notes Made Upon and Since Oral Argument
First: The casehardened fact, controlling of these proceedings at present, is that neither the commission nor this Court may, upon strength of dependable legal authority, proceed effectively toward any of the determinations paragraphs 5, 7, and 8 (of section 6 of article 4) do require. That our Court may be enabled to proceed, with its paragraph 7 function on some early supreme court release-date, is simply to say that we then may, with due promptness, determine which plan “complies most accurately with the constitutional requirements.”
*457One need but suggest that, should the Court determine now that the Austin-Kleiner plan “complies most accurately,” the supreme court might — after our “fait” has become enmeshed with much “accompli” — reverse our decision in the second Scholle Case. Or, on the other hand, let us assume that, having selected this week the Hanna plan as most accurately compliant, we learn after too many steps have been taken in reliance upon such selection that the supreme court has affirmed that same decision. Where, in either event, would that leave Michigan’s legislative process, the January to November schedule of the Constitution considered? It is better at this stage, I conclude, to await what are probably near in the way of guiding developments than to commit ourselves to a possible if not probable compound of confusion made already by the weird timetable article 4 and the Schedule have dictated. Upon 'what consideration may one ascertain just how the delegates came to conclusion that such a timetable could be met between January 1,1964 and November 3, 1964? Like Pollyanna, the delegates must have believed that not 1 elector would accept the invitation' to litigation paragraph 8 (of section 6 of article 4) extends to all who might be dissatisfied with'our paragraph 7 selection.
Second: The National equality clause, and our own equality clauses, are tied together by our own act as well as by the supremacy clause. Ours extend exactly as far as — and no farther than — the National equality clause. The supreme construction of the National equality clause, in the area'of legislative districting and apportionment, must be known in order that that of the others may be applied, and in order that this Court may go ahead with proceedings called for by said paragraphs 7 and 8.
Third: What this Court determines and finally decides, in pursuance of the procedures called up by *458said paragraphs 7 and 8, will amount to no provisional or fleeting act of a temporarily seated Court. Our final determination, to he made as directed by said paragraph 8, will include an abiding rule of construction the commission will apply when the census figures of 1970 are available, and then when each decennary thereafter calls for application of that rule to the then most recent census figures.
That rule of construction had better be right. It cannot now be made dependably right, even as a matter of construction exclusively of the provisions that are actually written into the Constitution of 1963, unless the Court is ready to sever the worthy nexus (made by Fox, Naudsius and Co ole) which exists between section 1 of article 1 of that Constitution and the National equality clause. And since the Court is not of such severing will, it follows that, even if section 2 of said article 1 is (as alleged by the supporters of the Hanna plan) ineffective for want of legislative implementation, section 1 of said article 1 (alone and by itself) commands due interpretive adherence to the principles of equality called for by the Fourteenth Amendment.
Fourth: Upon oral argument it was suggested that, if the Court is not “satisfied” with any 1 of the submitted plans, it may if of such will remand to the commission with direction to prepare and submit new plans in accord with unitary sections 1 and 2 of said article 1 and sections 2 and 3 of said article 4.
I am opposed to any such action for 2 reasons :
The first is that the seventh paragraph of said section 6, under which paragraph the Court solely may act at present, negatives in plain terms any such action of remand. Our duty under said paragraph 7 is exclusive and restricted. Refer to it as quoted on the first page of this memorandum. True, when these proceedings ultimately get around to “the exercise of original jurisdiction” (under paragraph 8 of *459said section 6), we may “remand” for any duly resolved purpose. But we are by no means at that stage of constitutional procedure today.
The second reason for aforesaid opposition is that any such order of remand, even if our majority did agree upon it, would be an exercise in total futility. It is perfectly manifest, as the arguments on all sides have demonstrated with clarity, that this half Democratic and half Republican commission could never agree upon what constitutes “equal protection” until the Supreme Court speaks finally in the context of districting and apportionment of a State legislature. We should, in sum, wait for a time at least for definitive directions from our superior court before proceeding further under said paragraphs 7 and 8.
Fifth: Justice Dethmers, supporting rhetorically the forensic oral dixits of Commissioner Brucker, avers upon strength of something not of record and not judicially noticeable that “the constitutional convention delegates, and the people in adopting the Constitution, never intended that districting and apportioning should be other than as in article 4 provided.” Then, in rising crescendo, my Brother alleges that “It is ludicrous to even imagine that it was the intent of the constitutional framers and adopters to create a legislative apportionment commission empowered to district and apportion, in utter disregard of the requirements of article 4 and in any manner which they might think, with this Court’s agreement, would comply with the commission’s or this Court’s concept of equal protection of the laws.”
Of course, no one has even suggested that the .requirements of article 4 should be disregarded, utterly or otherwise. Such expansive rhapsodies are typical of keynoters at political conventions but hardly proper for this, a serious proceeding of momentous *460portent. Neither Justice Dethmers nor Commissioner Brucker have been sworn as witnesses respecting their knowledge of what the people understood and believed when they voted for and against the new Constitution. If it were possible to have either one sworn respecting the extent and basis of his knowledge in such regard, the prospect of searching cross-examination would be inviting altogether. The fact is, and I refer here to Justice Cooley’s great “if” (People, ex rel. Bay City, v. State Treasurer, 23 Mich 499, at 506)10, there is no dependable way now, save by resort to the instrument itself, to ascertain whether Justice Dethmers and Commissioner Brucker are right or wrong about their asserted knowledge. Accordingly, and noting again what Delegate Leibrand said that last day, it is best as I conceive that we look to the instrument for sure and pertinent guidance, rather than to bombastic asseverations of unsupported fact.
Commissioner Brucker and my Brother Dethmers have taken the same oath the rest of us have taken, that is, the oath required by article 6 of the Constitution of the United States. Thus rises to the fore my conviction that the mandate of section 6 of article 4 (that we determine which plan complies most accurately with the constitutional requirements) calls for primary respect and attention to the National instrument, and our own Constitution, rather than to article 4 only.
Per Curiam.In November of 1963 six legislative apportionment appeals were argued before the United States supreme court.* Since the supreme court alone can *461¡decide with ultimate authority binding upon this . Court the nature and extent of the requirements of the Fourteenth Amendment’s equality clause in the> context of legislative apportionment, an issue of' controlling importance herein, and since in our judgment its decisions in those pending appeals are' imminent, we join in deferring further action herein, until April 15, 1964.
Kavanagh, C. J., and Black, Souris, Smith, and Adams, JJ., concurred.See 372 Mich 418.
Submitted March 3, 1964.
(Calendar No. 95, Docket No. 50,705.)
Opinions filed April 10, 1964.
Decision deferred.
Souris, J.Whatever the duties we perform as Justices of the Supreme Court, whether authorized by our general grant of judicial authority contained in the sixth article of our Constitution of 1963 or required by the special provisions of article 4, § 6, paragraph 7, obedience to and support of the Constitution of the United States must be our constant concern. Article 6 of the United States Constitution commands our obedience and support:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under *462the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
1 “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers both of the United States and of the several States, shall ,be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Each of us, by implementing local command, has isworn support. Article 11, § 1, Constitution of 19631 provides:
¡ “All officers, legislative, executive and judicial, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation: I 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 ..............• according to the best of my ability. No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust.”
I do not suppose that any rational being would suggest that we would be obliged to make the determination of accurate compliance called for from us by paragraph 7 of article 4, § 6 if the several apportionment plans submitted to us were based upon a racial classification of voters expressly permitted by article 4 in obvious violation of the Fifteenth Amendment to the United States Constitution or that we would be impotent to refuse to participate *463as public officers in any sncb action which in our( judgment violated the Fifteenth Amendment. Yet,, the suggestion has been made that “it is not open to ns in this matter to determine Federal constitutional questions,” by which it is meant' that article 4, § 6, paragraph 7 requires we determine, -at least, for the present, which of the 4 apportionment plans; submitted complies most accurately with the specific requirements found in article 4 without any regard for the overriding supremacy of the United States j Constitution, including the equality clause of its' Fourteenth Amendment. The suggestion is mani-, festly erroneous, the quoted portion of article 6 of the United States Constitution and our oaths considered. We not only may consider the equality clause’s effect upon the provisions of article 4 now and whatever the nature of our present services, but we must. Before this Court may stamp its imprimatur upon any apportionment and districting plan submitted to it under article 4, it must measure such plans and article 4 itself against the standards of the national equality clause .for determination of compliance therewith. Failure of such compliance will invalidate any plan so submitted regardless of its compliance with all local requirements. Article 6, United States Constitution, and Blythe v. Hinckley (1899), 173 US 501, 508 (19 S Ct 497, 43 L ed 783).
While this Court 2 years ago, in Scholle v. Secretary of State, 367 Mich 176, on remand by the United States supreme court (1962), 369 US 429 (82 S Ct 910, 8 L ed 2d 1), for reconsideration in the'light of Baker v. Carr (1962), 369 US 186 (82 S Ct 691, 7 L ed 2d 663), by majority decretal accord declared this State’s then current senatorial districts in violation of the Fourteenth Amendment’s equality clause, there was substantial difference of opinion among the Court’s decretal majority regarding the nature and extent of that equality *464clause’s requirements in the context of legislative representation. No definitive Federal supreme court construction of that clause in that context then existed. Nor have subsequent decisions from the ¡supreme authority in such regard provided us with more authoritative standards than 4 of us undertook to pronounce in July of 1962 in the Scholle Case.
,{ Tinder such circumstances, and in view of the pendency of the Federal supreme court’s decisions in the cases noted infra, p 460, a majority of our members determined last month to delay decision herein to minimize the risk of compounding the confusion which already exists in this transition period from one State Constitution to another. In the view I take of this matter, further delay is not warranted notwithstanding our continuing inability to articulate in precise detail and with positive authority all of the standards of the equality clause as it applies to matters of legislative representation. It is clear to me that none of the plans submitted to this Court meets either of the standards our majority applied in Scholle and, hence, that the executive and legislative officers of the State might better be so advised now so that they can take whatever corrective actions may be necessary.
None of the 4 plans submitted by the apportionment commissioners conforms to the mathematical limitations found by Justices Kavanagh and Black, in Scholle, to be implicit in the Federal equality clause. Their “maximal standard” of a population disparity between legislative districts of no greater than 2 to 1 is violated, grossly, by 3 of the 4 plans for both houses of the legislature. The fourth plan, the Austin-Kleiner plan, proposes an apportionment of house seats which, likewise, would violate the 2 to 1 maximal standard2 although 2 alternative senate *465apportionment plans are proposed in both.- of which the population disparities are below 2 for 1, but that which results in the least population disparity-still reflects a disparity of as much as 3 to 2.
In Scholle I attempted only to suggest some of the factors judicially cognizable in determining compliance in such matters with constitutionally guaranteed equality and expressly limited my effort to recognition of the outer boundaries of the problem confronting us (367 Mich at 247). I was quite certain then, as I am now, although it was not necessary to decision in Scholle, that the Federal equality clause requires in this context substantial equality between citizens, not absolute mathematical equality, impossible to maintain even' in theory beyond a single point in time, but rather equality which leaves no room for the deliberate weighting of 1 man’s vote, and dilution of another’s. It means that 1 man’s vote equals that of another, whatever their occupa-. tion, or their race, or their religion, or their social standing, wherever in the State they may live. It means that no consideration whatever of favor or of penalty can be permitted to shift the nice balance be-, tween 1 man’s vote and every other. Such extraordinary regard for the equality of franchise is required because exercise of the franchise “is regarded as a fundamental political right, because preservative of all rights. ” Yick Wo v. Hopkins (1886), 118 US 356, 370 (6 S Ct 1064, 30 L ed 220).
Barring deliberate weighting or diluting of votes does not, however, insure mathematically precise equality, nor is such precision a constitutional mandate. While not subscribing to any mathematical rule of thumb, I continue to believe that the equality clause of the Fourteenth Amendment requires that *466there be no more than the minor practical inequalities which unavoidably may result from a rational, not arbitrary, classification of the State’s people into electoral districts. Such minor and unavoidable inequalities can be of infinitesimal magnitude if, for instance, the number of legislators is large enough to permit no greater than proportionate representation of the electoral district with the smallest population; or if county and municipal lines were disregarded;3 or if multiple representatives for a single district were permitted. Other means by which inequality of representation may be avoided or at least minimized can be devised by anyone whose real objective is equality.
The inequalities which inevitably will occur, so long as they are both minor and practically unavoidable, will not invalidate an apportionment plan devised in good faith to achieve equality of representation. Our former colleague on this Bench, now United States District Judge Talbot Smith, recently had occasion to consider the nature and extent of representative equality required in the allocation of congressional seats within the State, in Calkins v. Hare, 228 F Supp 824, decided March 26, 1964 in the United States district court for the eastern district of Michigan. His observations are equally apt to the problem we face (p 829):
“It is true that the Wesberry court [Wesberry v. Sanders (February 17, 1964), 376 US 1 (84 S Ct 526, 11 L ed 2d 481)] speaks of 1 vote being ‘as *467nearly as practicable’ worth that of another, bnt we do not see in these words an escape hatch for the reluctant. Nor in the caveat that the weight of votes need not be mathematically precise. What is meant here is merely that the ideal district lines enclosing mathematically equal areas of population may make minor departures here and there from such ideal, in accordance with the needs of the situation, and without ‘unnecessarily’ (Wesberry, page 17) abridging the people’s rights. But these are minor concessions to practicability, the avoidance of ideal mathematical precision, merely. They are the application in this field of the well-known de minimis doctrine. Should the concessions made result in substantial (not minimal) and unnecessary inequalities between the districts, the lines of unconstitutionality will have been crossed. . This concept of equality, which some profess tó find so puzzling, is not an alien doctrine,' newly imported to our shores. Long before Wesberry, we knew of the doctrines of equal rights and opportunities, of equal treatment in our courts, and of equal schooling for our children. We need not exhaust the litany. If there is 1 dominant social and political belief held by all our people, it is that .we are both free and equal. Its implementation with respect t.o voting rights should present no insurmountable obstacles to those minded to pursue it.”
I would regard any plan constitutionally impermissible which does not at least begin with the objective of apportioning legislative representation as nearly as possible in accordance with population. At the very least this objective must be present. Any other objective, such as to insure minimal legislative representation to residents of sparsely populated areas beyond that to which they are entitled L>y their numbers, flies in the teeth of the equality clause’s requirements. Thus it is that none of the plans submitted by the apportionment commissioners, who. professed to follow in varying, degrees *468the' provisions of article 4 of the Constitution of 1963, could possibly meet the equality requirements of the Fourteenth Amendment. The 80-20 formula devised for the senate (article 4, § 2) expressly dilutes the importance of population in densely populated areas and enhances it in those areas sparsely populated. Less charitably, but no less accurately, the formula has been said to require the allocation of 2 senate seats to the Upper Peninsula of the State even though its only residents were the 2 senators to be elected therefrom. Such an absurdity results because the area’s land and water apportionment factors alone (29.01), without reference to population at all, would be sufficient to entitle it to 2 senators (article 4, § 2[2]).
The formula devised for the house (article 4, § 3) likewise debases population as a determinative factor in apportionment of legislative power, this time in favor of the county unit of government rather than directly in favor of acreage. Section 3 allocates a house seat to each county with at least .7% of the State’s population (7,824,018) whereas if the 110 seats provided for were allocated in direct proportion to population a county would have to have .91% of the State’s population to entitle it to one seat.
Other requirements of land contiguity, adherence to county and municipal lines, and prohibition against multiple house and senate districts make it impossible to achieve even a semblance of equality for either house within the minor and unavoidable limits constitutionally permissible. The blunt truth is that inequality is built into the legislative apportionment provisions of the Constitution of 1963 in flagrant disregard of the principles of equality required by the Fourteenth Amendment.
I agree with United States District Judge Stephen J. Roth’s holding (in.dissent)’ in Marshall v. Hare, *469227 F Supp 989, decided March 16,1964 in the United States district court for the eastern district of Michigan, that the first 6 sections of article 4 of the Constitution of 1963, except section l,4 the first paragraph of section 2,5 and that portion of section 3 which reads as follows:
“The house of representatives shall consist of 110 members elected for two-year terms from single member districts apportioned on a basis of population”
are void, for violation of the Fourteenth Amendment of the United States Constitution.
Were such to be the holding of this Court, the legislature could by law implement the provisions of article 4 not declared void and, with due regard for the Federal constitutional requirements of equality, discussed above, legislative apportionment could be accomplished yet this year. Eegrettably, it must await compulsion by Federal decree from our only judicial superior.
O’Hara, J.On March 5th I joined 5 of my colleagues in deferring decision herein to a date no later 'than April 15th. My stated purpose was to await until the last practicable moment for a decision of the United States supreme court in cases which then impended, and still impend, involving •the permissibility of considering nonpopulation factors in apportionment of State legislative districts, senatorial and representative. Such decision has not been handed down. For myself, at least, I can await Federal guidelines no longer. We have a duty to our coordinate branch of government in *470the discharge of their obligation to provide legislative and senatorial districts from which representatives and senators can be chosen. This duty is no less sacred than any other aspect of our oath-bound duties. We cannot abide word from Washington to the peril of elective chaos in our State. What we do now is not immutable and decision presently is infinitely preferable to perilous inaction.
I know of no United States supreme court precedent which explicitly holds that the formula factors of the Michigan Constitution of 1963 as they relate to State legislative districting would offend against the equality clause of the Fourteenth Amendment of the Federal Constitution. I find as much prospective persuasive value in the majority opinion in Bush v. Martin, (DC SD Tex), 224 F Supp 499, as Mr. Justice Souris does in the dissent of Judge Roth in Marshall v. Hare.1 Both were decisions of 3-judge Federal district courts. The judgment in Bush, however, was affirmed by the United States supreme court without opinion.2 Conceding that what the majority said there might be dicta, I may not presume that when the United States supreme court affirmed the judgment, it was not aware of the lower court’s plain language:
“The problem of the distribution of the legislative power, the machinery by which it operates, or the electors who establish it (see, e.g., notes 21, 22, supra), is essentially one of meeting the imperative demand, of a republican form of government under the guaranty clause of the Constitution. US Const art 4, § 4. The present indications are that considerable leeway must be allowed to the States in the diffusion of its political initiative. See, e.g., Gray v. Sanders (1963), 372 US 368 (83 S Ct 801, 9 L ed 2d *471821, 827, 828), especially the concurring opinion, 372 US at 381, 382 (83 S Ct at 809, 9 L ed 2d at 831); cf. Scholle v. Hare (1962), 369 US 429, 430-432 (82 S Ct 910, 911, 8 L ed 2d 1, 2-4). To put it another way, unless the State constitutional or legislative standards impose numerical equality as the predominate test and then under circumstances which elevate such local standards to a federally guaranteed right, a number of other elements may well be open besides population. .These perhaps include geography, area, economic, social, topographical, sociological or political factorsBush v. Martin, supra. (Emphasis supplied.)
I held on March 5th that the Hanna-Huhtala-La-Porte-Brucker plan and the Dongvillo plan complied equi-accurately with the 1963 Michigan State constitutional requirements, except for the contention of contiguity of the 2 peninsulas by land which was included in the Dongvillo plan. It appears neither plan can command a majority vote of our Court presently. Two votes having already been cast for the Hanna-Huhtala-LaPorte-Brucker plan, I hereby hold it complies most accurately with the constitutional requirements and I join in directing that it be adopted by the commission and published as provided by the 1963 Michigan Constitution.
Adams, J.Justice Souris has admirably stated the overriding importance of the supremacy clause of the United States Constitution. I am in hearty agreement. I differ with him in his decision that further delay is not warranted at this time. If anything, the reasons for further delay are more compelling now than when a majority of the members of this Court determined in March of this year to withhold decision until April 15th.
There are presently before the United States supreme court cases involving the apportionment of 6 State legislatures. The decision in any 1 of them *472is certain to provide applicable principles for this Court. See: W.M.C.A., Inc., v. Simon, Secretary of State (DC SD NY), 208 F Supp 368, argued November 12, 13, 1963; Sims v. Frink, Secretary of State (DC MD Ala), 208 F Supp 431, sub nom Reynolds, Judge of Probate, v. Sims, #23, Vann v. Frink, Secretary of State, #27, McConnell v. Frink, Secretary of State, #41, argued November 13, 1963; Maryland Committee for Fair Representation v. Tawes, Governor, 229 Md 406 (184 A2d 715), argued November 13, 14, 1963, #29; Mann v. Davis (DC ED Va), 213 F Supp 577, argued November 14, 18, 1963, #69; Sincock v. Duffy (DC Del), 215 F Supp 169, sub nom Roman v. Sincock on appeal, argued December 9, 1963, #307; Lisco v. Love (DC Colo), 219 F Supp 922, sub nom Lucas v. Forty-Fourth General Assembly of Colorado, #508, argued March 31 and April 1,1964.
As Justice Souris has pointed out, in the final sentence of his opinion, the United States supreme court is our judicial superior. Since October 12, 1962, that court has withheld its approval or disapproval of this Court’s decision in Scholle v. Secretary of State, 367 Mich 176. Yet Justice Souris would apply the standards set forth in that case. Those standards are under suspension. To move to a decision based upon them can only result in confusion worse confounded.
It is our bounden duty to decide the present matter upon the basis of the controlling decisions of the United States supreme court. For past months, courts throughout the United States have been engaged in the exercise of attempting to read the collective mind of the United States supreme court and ascertain the probable holding of a majority of that closely divided body. For examples of excellent endeavors to do so, see: W.M.C.A., Inc., v. Simon, Secretary of State (DC SD NY), 208 F Supp 368, 372, *473373, and Davis v. Synhorst, Secretary of State (DC SD Iowa), 217 F Supp 492, 496-498. It is of some ■significance that in all of such efforts,as well as in the vast majority of apportionment cases the courts have come to a contrary decision from the one arrived at by Justice Souris. See Mann v. Davis (DC ED Va), 213 F Supp 577, 585; Baker v. Carr (DC MD ’Tenn), 206 F Supp 341 (after remand by United States supreme court); Lisco v. McNichols (DC Colo), 208 F Supp 471; Sobel v. Adams (DC SD Fla), 208 F Supp 316, 321 (1st Case), 214 F Supp 811, 812 (2d Case); Toombs v. Fortson (DC ND Ga), 205 F Supp 248, 257; Davis v. Synhorst (DC SD Iowa), 217 F Supp 492; Levitt v. Maynard, 104 NH 243 (182 A2d 897); Jackman v. Bodine, 78 NJ Super 414 (188 A2d 642, 650-652); Nolan v. Rhodes (DC SD Ohio), 218 F Supp 953; Griffin v. Board of Supervisors, 60 Cal 2d 751 (36 Cal Rptr 616, 388 P2d 888) 32 LW 2408; Germano v. Kerner (DC ND Ill), 220 F Supp 230; Marshall v. Hare (DC ED Mich), 227 F Supp 989.
To date the only decisions found that could be construed to uphold the one advocated by Justice Souris are: Sweeny v. Notte, — RI — (183 A2d 296); Sincock v. Duffy (DC Del), 215 F Supp 169, sub nom Roman v. Sincock on appeal, and Butterworth v. Dempsey (DC Conn), 229 F Supp 754, 32 LW 2407:
Nevertheless there is great cogency and force in the interpretation of the Fourteenth Amendment which Justice Souris would make. It may well reflect the decision the United States supreme court will hand down any day now. When that day comes I will be pleased to join with him. Until it does, I do not conceive it to be the proper duty or function of this Court to attempt to outrun the supreme court of the United States. As was found by a majority of this- Court in the first Scholle Case (Scholle v. *474Secretary of State, 360 Mich 1), we have no right to extend onr interpretation of the United States Constitution beyond the boundaries that have been delineated by the United States supreme court.
I, therefore, hold that this Court should abstain from decision in this matter at this time because of my confident assurance that within a matter of days or, at the most, a very few weeks, it will be possible, under the guidance of the United States supreme court, to issue an authoritative decision which will not be subject to uncertainty or attack and which will permit Michigan to proceed with a minimum of confusion and delay to the November election.
Supplemental Memorandum op Justice Black : When, warned as it was by then attorney general and now Justice Adams (CAGr Nov. 20, 1961 [on file in attorney general’s office]),1 the constitutional convention failed to adjust the timing of article 4 of the ultimately adopted Constitution to the probability, and the actual fact as it turned out, that the convention’s product would be submitted to the people at the spring election of 1963 rather than the fall election of 1962, the result in legal parlance became that of practical “impossibility of performance*’ — in 1964— of section 6 of that article. ■ Such is a fact this Court must face, forthrightly sooner or later, unless it enjoys the manna-time of no original proceedings whatever under the last paragraph of said section 6.
For the needs and purposes of 1964 legislative elections article 4 has allowed no more than 5 *475months, at realistic best, for requisite proceedings resulting in the legally final districting and apportionment of both houses of the legislature. During •that 5-month period section 6 of said article 4 requires (a) that the commission on legislative apportionment conclude its work, either by districting •and apportionment of “the senate and house of representatives according to the provisions of this constitution” or, in the alternative, that the commission report to this Court that it “cannot agree on a. plan”; (b) in the latter event (and so it has turned ■out), that a proposed plan or plans he submitted to this Court and that the Court “determine which plan complies most accurately with the constitutional requirements”, and (c), after this Court has completed such due and provisional portion of its constitutional task, that it entertain a petition or petitions (provided such are filed “not later than 60 days after final publication of the plan”), addressed to our original jurisdiction, the primary design of such petition or petitions being that of testing finally the constitutional validity of the published “plan.”
It seems not to have occurred, to any one of the 144 learned delegates, that the litigation invited by paragraph 8 of said section 6 would necessarily involve undecided Federal questions bruited ever since Baker v. Carr (March 26, 1962), 369 US 186 (82 S Ct 691, 7 L ed 2d 663) was officially reported. Too, it does not seem to have occurred to any one of the lawyer delegates that litigation of such nature — if instituted — never could have been started and concluded in time for the legislative elections of 1964. Thus does this Court find itself in position, •outlined in the writer’s previous memorandum (372 Mich 448, 456, 457) and to the even more timely point in Justice Adams’ current opinion, where hasty and divisive action taken now, either under said paragraph 7 or. under color of our general ,jurisdic7 *476tion, would result surely in Macduff’s return for exclamation that “Confusion now hath made his masterpiece!”. And I do not care at this point, even though tentatively convinced of the final outcome (see discussion post of the Lucas Case), to join in any “prediction” or “prophecy” 3 of the controlling nature of any forthcoming decision of our superior, the United States supreme court.
Justice Dethmebs, writing March 5, 1964 (372 Mich 418), for determination that the Hanna “plan” complies most accurately with the constitutional requirements, relies heavily (p 441) on the closely divisive 3-judge decision of Lisco v. Love (DC Colo), 219 F Supp 922. Our Brother did not note that Lisco had been appealed to the United States supreme court and, on December 9, 1963, that the supreme court had noted probable jurisdiction, 375 US 938 (84 S Ct 351, 11 L ed 2d 270).
The Lisco Case, obviously intended for commanding importance, is now entitled Lucas and Lisco v. Forty-Fourth General Assembly of Colorado, No. 508. The appeal was, on January 6, 1964, 375 US *477961 (84 S Ct 481, 32 LW 3243), “set for argument on Tuesday, March 31, 1964.”4 Then on March 9, 1964, a ' motion of the solicitor general of the United States, for leave to participate in the oral argument as amicus curiae, was granted 376 US 941 (84 S Ct 796, 32 LW 3314). The appeal accordingly came to oral argument March 31st and April 1st (32 LW 3349). The writer personally attended the principal portion of such argument and returned to Michigan convinced that the decision of Lucas will determine, probably and finally, “which plan [if any] complies most accurately with the constitutional requirements”; also that the decision doubtless will come down prior to end of the supreme court’s current term. For significant portents, see 32 LW 3345.
In these developing circumstances I choose to refrain, again and now, from selection under said paragraph 7 [art 4, § 6] of a most compliant plan. For my part, as before (372 Mich 448), this Court remains “disabled" from determining which plan complies most accurately with the constitutional requirements. The reason is that the applicable standard of Fourteenth Amendment equality must be ascertained, as a vital essential of sueh “constitutional requirements,” and that standard is not as yet revealed to us. Now I would turn to the future, the better to prepare for it no matter what comes next in the way of early or delayed judicial decision.
In his most notable congressional speech, “In Favor of Internal Improvements” (Life and Works of Abraham Lincoln, volume 2, pages 138, 152, 153, Centennary Edition 1907), Mr. Lincoln provided .an appropriate text for today’s presently harried Court:
“Then, difficulty though there be, let us meet and encounter it. ■‘Attempt the end, and never stand to doubt; nothing so hard, but .search will find it out.’ Determine that the thing can and shall be done, and then we shall find the way.”
It should be clear by now that, no matter what the apportionment commission and this Court could have done and may yet do, there really never was sufficient time — paragraph 8 of said section 6 stressedly considered — for a final determination that any plan stood or stands ready for the nomination and election, this year, of members of both houses of the legislature. The only exception was and yet is a timely .and controlling decision of the supreme court. Where does that leave *478our State» — today? I turn to the Schedule and Temporary Provisions of the Constitution and, noting the first paragraph of section 3 and all of section 5 thereof, reeord them here for eonvenienee:
“See. 3. Except as otherwise provided in this Constitution, all officers filling any office by election or appointment shall continue to-exercise their powers and duties until their offices shall have been abolished or their successors selected and qualified in accordance with this Constitution or the laws enacted pursuant thereto.”
“Sec. 5. Notwithstanding any other provision in this Constitution, the governor, the lieutenant governor, the secretary of State, the attorney general and State senators shall be elected at the general election in 1964 to serve for two-year terms beginning on the first day of January next succeeding their election. The first election of' such officers for four-year terms under this Constitution shall be held at the general election in 1966.”
If it were not for quoted section 5 and its “notwithstanding” mandate, failure to reach a timely determination of finality, under said paragraphs 7 and 8,5 would bring quoted section 3 into pertinent play. The due result then would be that all present legislative officers should continue to exercise the powers and duties of their offices until their successors are elected “in accordance with this Constitution or the laws enacted pursuant thereto.” Section 5 thus appears to be a present stumbling block against legislative continuity; continuity until the' provisions of said section 6 (of article 4) can be carried into final legal effect. Yet upon due reflection it is perfectly clear that quoted section 5, although supreme of mandate, is not self-exeeuting.6 Indeed, we know now — and also why — the mandate cannot be carried into' effect, so far as concerns senatorial elections in 1964, unless of course litigatory luck should attend this Court and its coming experience under paragraph 8 of said section 6. Thus it seems to me that, if no other way to orderly senatorial elections this year is adjudicated in time, then quoted section 5 can — no, must — be disregarded pertinently on account of its unimplemented character and on account of impossibility of compliance therewith. That would leave the quoted first paragraph of section 3 in full effect for today's quandary and solution thereof if solution becomes necessary. Such effect unaided by legislation would carry over, into 1965 and possibly 1966, the offices as well as the duties of all present legislative officers, until their successors under the new Constitution have been duly elected and qualified.
More to the point will have to be said, depending upon imminent developments, yet the foregoing is sufficient to show that there is a way out should currently muttered political imprecations find support in ensuing events. It is possible that, by denial of certiorari in the second Seholle Case, or by termination of the stay order of July 27, 1962 (see 367 Mich at 179), other measures may come to fair consideration. Whatever the fact in such regard, it is the duty of a Court such as ours to see that the ship of State sails on as before. And it is plain that courts can always find a way that is right, no matter how difficult that may be, when there is a will so to do.
*479I agree with Justice Adams. We should abstain at present from •making a selection under said paragraph 7. Doing so Justice Adams and the writer follow the lead of the district court' in the Nebraska ■apportionment case of League of Nebraska Municipalities v. Marsh (DC Neb), reported initially in 209 F Supp 189. Recently, under •date of Mareh 3d, that court, having reheard the matter on reserved jurisdiction, issued a per curiam order concluding as follows:
“The ease was tried to the eourt, each of the parties introduced evidence and briefs were filed by the parties. A decision has been withheld awaiting a possible guiding decision by the United States supreme court in 1 or more of the reapportionment cases heretofore submitted to it. None have been announced and since 1 or more cases are to be submitted to the court at a coming session it seems probable that further decisions will not be forthcoming prior to the final date for the filing for nomination in the legislative districts.
“It would seem both inadvisable and undesirable for us to speculate upon the decision of the United States supreme court and enter a final and appealable order herein even though an appeal could then Re taken to the United States supreme eourt.
“We conclude to take no action until further guide lines have been announced.”
This surely is no time for constitutional determinations at uninformed half-eoek, or for decisional divisions according to -Republican or Democratic nominations to the Court. Enough of that is before us as we peruse the staunchly supported plan of the 4 Republican members of the apportionment commission, the correspondingly supported plans of the 4 Democratic members of that commission, and now the straight party-line adoption — by 3 members of this Uourt — of the Republican plan. A grave constitutional question must be answered before we may, with the propriety owing a solemn oath •of high office, decide which of these frankly partisan plans complies most accurately with the constitutional requirements. That question— coneededly and exclusively Federal in nature — can be answered, dependably, only by the highest court of the land. It is due for imminent answer, as all signs tell us, by that court. That eourt is .not one which, historically, delays its decisions very long following •oral argument. Why, then, this stampede for recording of party ■devotion along with judicial selection under said paragraph 7 ? Looking again at the constitutional schedule, the declared purpose of -which is “To insure the orderly transition from the Constitution of 1908 to this Constitution,” is today’s headlong rush really necessary?
Baker v. Carr, 369 US 186 (82 S Ct 691, 7 L ed 2d 663).
“If a majority of the commission cannot agree on a plan, each member of the commission, individually or jointly with other members,, may submit a proposed plan to the Supreme Court. The Supreme Court shall determine which plan complies most accurately with the constitutional requirements and shall direet that it be adopted by the commission and published as provided in this section.” (Const 1963, art 4, § 6, paragraph 7.)
In this memorandum all references to “the supreme court” are to the supreme eourt of the United States.
Our temporary disability stems partly from duty to consider and construe the entire Constitution of 1963 for the purpose of determining “which plan complies most accurately with the constitutional requirements,” partly from settled conviction that our Court must ascertain initially what “equal protection” means in the unitary context of the National equality clause and the corresponding clauses of sections 1 and 2 of article 1 of that Constitution, partly from the supreme court’s stay order of July 27, 1962, and partly from the pendency of decision upon a petition for writ of certiorari certain of the defendants have submitted, to the supreme court, to review our Scholle decision.
“This is exemplified by the doctrine, applied in the construction of the State Constitutions, that where a provision of a State Constitution is capable of 2 constructions, 1 of whieh would be in conflict with the Federal Constitution, the other must be adopted.” 11 Am Jur, Constitutional Law, § 55 p 666.
This is doubly and pertinently true in Michigan, our longstanding ■equal protection clause having been voluntarily — by this Court — given exact parallelism with the National equality clause.
“The equality of rights protected by our Constitution is the same as that preserved by the Fourteenth Amendment to the Federal Constitution. In re Fox’s Estate, 154 Mich 5.” Naudzius v. Lahr, 253 Mich 216, 222 (74 ALR 1189, 30 NCCA 179), followed in Cook Coffee Co. v. Village of Flushing, 267 Mich 131, 134.
*451Note that former article 2, § 1 (Const 1908) is now section 1 .of article 1 of the Constitution of 1963. In addition, the Constitution of 1963 includes a separate and complementing guaranty of equal protection. That appears in section 2 of said article 1.
If this Court is to apply — in due time — its own rules of constitutional construction, what was said in Fox, Naudzius, and Cook,. with respect to the unitary extent of Fourteenth Amendment equal protection and Michigan equal protection, was before the people when, they voted sections 1 and 2 of article 1 into the new Constitution. Said sections 1 and 2, by due intendment, were approved “in the light and understanding of prior and existing laws and with reference to them.”' (See rules of construction, Bacon and Lockwood, cited post.) And one of those “laws” was our decision in the seeond Soholle Case.
Prior to handing down of the Soholle decision, section 6 of the-“Schedule” which section theretofore (May 11, 1962; Constitutional Convention Record pp 3236, 3275) was a part of “the revised Constitution as passed,” read as follows:
“See. 6. The State shall be districted for the purpose of electing-senators in accordance with the provisions of section 2 of article 4 of this Constitution, after the official publication of the total population count of the 1970 decennial Federal census. Until the apportionment of the senate following the 1970 census, the senatorial districts under the 1908 Constitution shall remain intact except that upon the adoption of this Constitution each of the counties of Kent,. *452Genesee, Macomb and Oakland shall be divided by the apportionment commission into 2 senatorial districts and Wayne county into 8 senatorial districts in accordance with this Constitution. The legislature may give prior effeet to section 2 of article 4 of this Constitution, which action shall not be subject to veto by the governor.”
After handing down of the Scholle decision, and no more than 6 hours before the constitutional convention passed into history, section 6 was hastily stricken from the “revised constitution as passed.” Said section 6 was not replaced by any likeness or counterpart. In consequence, the task of construction and application, when ultimately that is undertaken pursuant to aforesaid paragraph 7, will not in any view require consideration of a provision which directs that the commission district and apportion according to a section or article distinguished from the instrument as a whole.
Republican delegate Leibrand, of Bay City, voted against the floor amendment by which section 6 was eliminated. He said, shortly before noon on that last life-day of the convention, with no delegate rising to dispute him:
“I voted against the amendment for several reasons:
“1. The change is a very important one. Many of the delegates never heard of the proposed amendment until about 9:00 p.m. on the evening of July 31st. Most of the delegates never heard of it until it was offered on the floor of the convention at 11:00 a.m. on August 1st. I believe such an important change deserves much more extended conside2-ation.
“2. Many things, particularly decisions of the United States supreme court and the Michigan Supreme Court, have occurred since this convention adjourned on May 11th. The body most affected by the change is the Michigan State senate itself. The senate has been studying and working on this problem for the past 2 weeks or more, and undoubtedly has more information on the problem than do the delegates of this convention. I am opposed to deleting section 6 until such time as a spieeial committee of this convention has conferred at length with the proper committee or committees of the State senate regarding the course to take.
“3. I realize that what I suggest will require further adjournment of this convention. I have no desire to return to Lansing again, but I would prefer to do this rather than make an irremediable error. It must be remembered that once the convention adjourns sine die, its powers are exhausted and, however bad an error may be, that error cannot be corrected.” (Constitutional Convention Record, ■p 3299.)
Eor quotation and citation of applicable authority see Bacon v. Kent-Ottawa Metropolitan Water Authority, 354 Mich 159, and Lockwood v. Commissioner of Revenue, 357 Mich 517, 565-570.
By footnote (p 428) Justice Frankfurter quoted Senator Beveridge :
“If liberty is worth keeping and free representative government worth saving, we must stand for all American fundamentals — not some, but all. All are woven into the great fabric of our national well-being. We cannot hold fast to some only, and abandon others that, for the moment, we find inconvenient. If 1 American fundamental is prostrated, others in the end will surely fall. The success or failure of the American theory of society and government, depends upon our fidelity to every 1 of those interdependent parts of that immortal charter of orderly freedom, the Constitution of the United States.”
“They [the courts] must construe them [constitutions] as the people did in their adoption, if the means of arriving at that construction are within their power.”
No 20, W.M.C.A., Inc., v. Simon, Secretary of State (on appeal from DC SD NY, 196 F Supp 758 [374 US 802, 83 S Ct 1691, 10 L ed 2d 1028]); No 29, Maryland Committee for Fair Representation *461v. Tames, Governor (on appeal from Maryland court of appeals, 229 Md 406 [184 A2d 715] [374 US 804, 83 S Ct 1691, 10 L ed 2d 1029] ); Nos 23, 27, 41, Reynolds, Judge of Probate, v. Sims, Vann v. Frink, Secretary of State, and McConnell v. Frink, Secretary of State (on appeal from DC MD Ala, 208 F Supp 431 [374 US 802, 83 S Ct 1692, 10 L ed 2d 1029]); and No 69, Mann v. Davis (on appeal from DC ED Va, 213 F Supp 577 [374 US 803, 83 S Ct 1692, 10 L ed 2d 1029]). See 32 Law Week 3189.
Its counterpart provisions are found in our 1908 Constitution at article 16, §2; in our 1850 Constitution at article 18, §1; and in our -1835 Constitution at article 12, § 1. ..... -=
Actually, based upon 1960 census data, the Austin-Kleiner House of Representatives proposals would result in disparities of 1.9859 to *4651. We need not quibble over -whether we should round off such disparities to 2 to 1. De minimis non cur,at lex. Taverner v. Dominum Cromwell, 1 Cro Eliz 353 (78 Eng Rep 601).
I realize tliat constitutional and statutory requirements that legislative districts follow such established governmental unit boundaries prevent or at least limit gerrymandering and other similarly insidious practices; but it seems to me that the cure for such evils has been worse than the original evil to the extent that such requirements have contributed to the inequalities of franchise rights. Gerrymandering and like evils can be attacked judicially in other ways. Gomillion v. Lightfoot (1960), 364 US 339 (81 S Ct 125, 5 L ed 2d 120); Wright v. Rockefeller (February 17, 1964), 376 US 52 (84 S Ct 603, 11 L ed 2d 512).
Article 4, § 1:
“The legislative power of the State of Michigan is vested in a senate and a house of representatives.”
Article 4, § 2:
“The senate shall consist of 38 membérs to be elected from single member districts at the same election as the governor for four-year terms concurrent with the term of office of the governor.” . . ■
Decided March 16, 1964, in the United States district court for the eastern district of Michigan.
32 LW 3304.
Attorney General Adams ruled, for the convention, that the proposed constitution could not be submitted to the people, prior to the spring election of 1963, unless the convention adjourned finally on a date much earlier than the ultimate date of its final adjournment. Such ultimate date was August 1, 1962 (constitutional convention official record, volume 2, page 3316). The proposed constitution accordingly was submitted to and adopted by the people at the spring election of 1963, thus \eompressing by a year the time for due performance of all proceedings called for by section 6 of article 4 thereof.
“We shall unite in viewing as law that body of principle and dogma which with a reasonable measure of probability may be predieted as the basis for judgment in pending or in future controversies. When the prediction reaches a high degree of certainty or assurance, we speak of the law as settled, though, no matter how great the apparent settlement, the possibility of error in the prediction is always present. When the prediction does not reach so high a standard, we speak of the law as doubtful or uncertain. Farther down is the vanishing point where law does not exist, and must be brought into being, if at all, by an act of free creation.
“I wrote these words before I had seen an interesting article by Dr. John C. H. Wu on the ‘Juristic Philosophy of Mr. Justice Holmes/ My thought, it will be seen, is in close approach to theirs. ‘The prophecies of what the courts will do in fact, and nothing more pretentious/ says Holmes, ‘are what I mean by the law/ Dr. Wu develops with aeuteness the implications of the statement. ‘Law is, thus, a matter of prediction. It does not even consist of the rules already recognized and acted on, as Salmond would define it; it consists of the rules which the courts will probably recognize or act on/ ” (Cardozo, The Growth of the Law, pp 44, 45).
The article quoted by Justice Cardozo, entitled “Juristic Philosophy of Mr. Justice Holmes/’ appears in 31 Michigan Law Review 523.
By the supreme court’s order of January 6th the printing of -the record was dispensed with, the appellants’ brief was directed for filing not later than February 11th, and the appellees’ brief was .directed for filing not later than March 17th.
The reference is to paragraphs 7 and 8 of section 6 of article 4.
Eor the standard and accepted tests that are determinative of what is and what is not a self-executing constitutional provision, see Hamilton v. Secretary of State, 227 Mich 111, and City of Detroit v. Oakland Circuit Judge, 237 Mich 446; also 11 Am Jur, Constitutional Law, § 74, pp 691, 692.