(dissenting).
What the majority of this Court appears to have overlooked is the original *541complaint of the petitioners which concludes, as does the petition before us, by praying “for such other and further relief as to the Court may seem just, equitable and proper.” Initially the petitioners complained that the 1961 Legislative Assembly failed to make the necessary apportionment provided for in Section 35 of Article II. That body failed to act and reapportionment was undertaken by a “group of officials” whose handiwork has been struck down by the Supreme Court of North Dakota.
Nowhere do I find that petitioners here have ever abandoned their contention that they would be deprived of their Constitutional rights to fair and equal representation of individual electors in accordance with population in the election to the North Dakota House of Representatives scheduled for 1962.
In the original action argued January 11,1962, the majority of this Court found it unnecessary to pass upon the question of jurisdiction, holding only that:
“This action will not at this time be dismissed, but further proceedings will be stayed subject to the further order of this Court, upon petition and for good cause shown.”
Now, apparently, it is conceded this Court does have jurisdiction, since the last paragraph of the majority opinion herein reads:
“The injunctive relief prayed for is denied. We retain jurisdiction of this ease. If the Thirty-eighth Legislative Assembly fails to act, said plaintiffs may, at any time after the expiration of 30 days following adjournment of such session and appropriate amendment of their Complaint challenging the validity of the existing apportionment law, present their petition to us, asking for such relief as is then deemed appropriate.” (Emphasis supplied.)
Implicit in this language is the concession that petitioners have a proper grievance which it is hoped the Thirty-eighth Legislative Assembly will redress. If that body does not reapportion, the petitioners may come back to this Court. Apparently, these petitioners are being afforded no relief in this case because of their failure to attack specifically the last apportionment made by the Legislative Assembly (Chapter 7, Session Laws, 1931). This view is too narrow a concept of petitioners’ grievances contained in the pleadings before us.
Forgotten, clearly, is that there must be elected a House of Representatives in the 1962 elections on the basis of an outmoded reapportionment plan which is the very basis for this lawsuit claiming abridgment of basic Constitutional rights and substantial disenfranchisement.
It may be that petitioners have overlooked some of the niceties of pleading, but as has often been said, “The English language has wide play in the joints,” and I think we have here a justiciable controversy in which we should look through the form to the substance of the pleadings.
After our decision in January of 1962 and agreeable to our implied mandate, petitioners here sought relief in the Supreme Court of North Dakota. Lein v. Sathre, N.D., 113 N.W.2d 679, March 9, 1962.
In that case and on that date the Supreme of North Dakota held, among other things:
“ * * * There is inherent in a constitutional direction to a legislature to apportion representatives among senatorial districts according to population a limited discretion to make an apportionment that will approach, as nearly as is reasonably possible, a mathematical equality.’' (Emphasis supplied.)
“ * * * For reasons stated in the opinion, it is held that the apportionment made by the group of officials designated in Section 35 of the Constitution, the proclamation of which was dated May 26, 1961, and filed with the Secretary of State on May 29, 1961, is unconstitutional and void.”'
“ * * * There having been no valid apportionment of the House of *542Representatives under Section 35 of the North Dakota Constitution, the last apportionment made by the Legislature (Chapter 7, Session Laws N.D.1931) continues as the apportionment under which legislative elections are held, until it is superseded by a valid apportionment.” (Emphasis supplied.)
It must be borne in mind that this Court was the forum of the Plaintiffs’ choice in the first instance, the Plaintiffs alleging our jurisdiction based upon 28 U.S.C.A. § 1343(3) and (4), and by virtue of the Civil Rights Act, 42 U.S.C.A. §§ 1983 and 1988.
The Plaintiffs have renewed their complaint to us by way of petition filed April 17, 1962, alleging that they were accorded no affirmative relief from the Supreme Court of North Dakota. I agree with the majority of the Court that the “group of officials” to whom reapportionment was delegated no longer has authority to act, and that the duty of the Legislature to reapportion is mandatory and continues until it is performed; but the tenor of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 663, persuades me beyond doubt that Plaintiffs here have a cause of action of which we had jurisdiction in January and of which we have jurisdiction in May.
The Plaintiffs have twice sought affirmative relief in this Court. In my view they are entitled to it here and now. I decline to speculate whether the 1963 Legislative Assembly will fulfill its mandatory obligation to reapportion in such manner as will approach as nearly as is possible a mathematical equality. I would wait no longer upon the vagaries of the future.
The Secretary of State for North Dakota should be restrained and enjoined from doing any act necessary to the holding of an election of members of the House of Representatives of the North Dakota State Legislature until and unless the Legislature shall properly reapportion seats in the House of Representatives.
I dissent.