District Judge (concurring in the result, and dissenting in part).
I concur in the numbered conclusions of the prevailing opinion and with much that is said concerning the Utah Reapportionment Act of 1965, Laws of Utah 1965, Chap. 72, P. 205, and particularly Section 2 thereof. The analysis is comprehensive and convincing that the latter section cannot stand and that the corrective action taken by the- court is fully justified and appropriate. I find myself, however, unable to agree with two basic aspects of the prevailing opinion which are deemed of such importance as to require a dissenting statement.
I.
If, as is only inferred in the prevailing opinion,1 but as I believe, the Utah Re*380apportionment Act of 1965 (with the court’s order substituted for Section 2) involves constitutionally permissible and valid apportionment, this should have been included among the specific rulings of the court, and the precatory or advisory expressions concerning additional action to be taken by the legislature should not have been volunteered.2
Having in effect sustained the constitutionality of the present act as modified by us, the retention of jurisdiction not merely for the purpose of seeing that the Act passed by the legislature, as modified by our order, is carried out, but for unlimited purposes in view of the continuing advice contained in the opinion, I apprehend will be placing us in the position of holding a sword over the heads of state legislators indefinitely and without reference to any jurisdiction which we actually possess.
Practically as well as conceptually speaking, there is no such thing as “a little” unconstitutionality. In the practicalities of judgment it is the court’s duty to come to a conclusion on the facts before it as to the constitutionality of a given act or course of action within the realities of the situation — and we have. That the case may be close to the line and contain the seeds for our future intervention should legislators not strengthen the Act in view of developing conditions does not relieve us of the responsibilities of judgment, and having reached that judgment, we are not invested perpetually with the powers of supervision.3 This case sometime must come to an end and we should not, against the background of such expressions, give even the appearance of arrogating to the court the function of perpetual watchdog of the state legislature. If and when the legislature passes, or threatens to pass, further acts in conflict with the Constitution of the United States or to frustrate our dispositions as to prior acts, or there is brought to our attention by appropriate pleadings further invidious discrimination in voting power which is repugnant to the Constitution, time enough to pass upon these other situations.
II.
Related considerations lead me to dissent from the views contained in the last three paragraphs immediately preceding the final conclusions, not because I necessarily take issue with most of them but because I consider it inappropriate to express any of them at this time. Theretofore, it was properly stated that, “We do not assume that the Legislature would act unconstitutionally and in defiance of the mandates of the Supreme Court of the United States and of this court if they should be called into session prior to January 1, 1967”. Yet in effect this assumption is abandoned and it is speculated that if a special session were called, and if there were included by the Governor in the call matters which we would not consider appropriate for interim legislative action, and if the legislature pursuant to such authorization should attempt to so act, “ * * * it will be this court’s duty to give further consideration to the necessity of giving plaintiffs injunctive and affirmative relief by judicial decree, and for such purpose we again retain jurisdiction.” What our further duty may be, if any, *381should await developments and what remedies we should consider should be indicated only when our further jurisdiction is invoked. Certainly, in view of adequate power otherwise to secure compliance we should hesitate without factual structuring of our judgment to venture into the unchartered sea of direct injunction against legislative voting which the Supreme Court itself thus far has hesitated to venture upon.4 Federal-state relations at best are too delicate, important and fraught with opportunity for too many conflicts to thus permit our being carried, even with the best of purposes, beyond matters which have been properly presented to us and which are essential to enforce the Equal Protection Clause of the Constitution of the United States.5 This would only serve unnecessarily to cast an indefinitely lengthening shadow over matters of peculiar state concern discordantly with the Tenth Amendment.6
. “The citizens of Utah have a federally protected right to a Legislature which has been apportioned in conformity to federal constitutional standards. They will not have such a Legislature [without the court’s corrective action in lieu of Section 2] until January 1969, under the 1965Act * * *” (p.372).
“In the 1963 session the Legislature enacted a reapportionment act that was patently unconstitutional. And, in the 1965 session they have enacted one which denies the state a constitutionally apportioned Legislature until January, 1969 * * *” (p.372)
“No great dislocation will take place if the seats of all senators, as well as of all representatives, are required to be filled at that time. This should be done in accordance with Sections 1, 3 and 4 of the Reapportionment Act of 1965, so that in the regular legislative session in January 1967 the Legislature will be a constitutionally reapportioned one * * * ” (p. 372).
. “In the light of the progress the legislature has already made, we believe that this matter should be commended to the Legislature for its further consideration * * *” (p. 369)
“The Legislature has evidenced its good faith, and we have confidence that it will give its consideration to the commands of the Constitution of the United States and of the Constitution of Utah and that the members in their solemn judgment will give further consideration to the complexities of reapportionment and will enact from time to time such laws as will bring us more into conformity with the constitutional requirements * * * ” (p. 369).
. As was stated in Petuskey v. Clyde, 234 F.Supp. 960, 964 (D.C.Utah 1964) “The legislature is faced with a discretionary problem limited only by the principle that apportionment must be based upon substantial equality of population with such minor deviations as ‘are free from any taint of arbitrariness or discrimination’ ”. (Citing Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620.)
. See Fortson v. Toombs, 1965, 379 U.S. 621, 85 S.Ct. 598, 13 L.Ed. 527; Hoff et al. v. Buckley, et al., 379 U.S. 359, 85 S.Ct. 503, 13 L.Ed.2d 352 (1965).
. Amendment XIV. “No State shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws,”
. Amendment X. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”