(concurring specially).
While I agree with the majority that the State Election Board should be restrained and prevented from proceeding under Senate Bill No. 179, my reason for so agreeing differs from that of the majority.
Petitioner contends that Senate Bill No. 179, hereafter referred to as “bill”, clearly violates the provisions of Art. V, Sec. 9(a), of the Okla.Const. and accordingly should be declared to be invalid by this Court.
Respondents contend that the bill was an emergency measure and as such, the Governor’s veto of the bill could (under provisions of Art. V, Sec. 58 of the Okla.Const.) only be overridden by not less than a three-fourths vote of the members of each House; that while three-fourths of the members of each House voted “aye” on the emergency clause, three-fourths of the members of the House of Representatives did not so vote on the bill proper; that for said reason the bill was not, in fact, passed over the Governor’s veto by said House of Representatives. In the alternative, respondents contend that in any event the matter of apportioning either House is a legislative or political and not a judicial matter.
For reasons hereafter stated, I am of the opinion that the bill must be considered as having passed each House but that the bill is unconstitutional and that this Court should therefore hold that the bill is inoperative.
Respondents apparently appreciate that this Court is committed to the “enrolled rule”. Under this rule an enrolled bill filed in the office of the Secretary of State imparts absolute verity, and for said reason it *366may not be shown 'that the bill was not regularly passed. See Goddard v. Kirkpatrick et al., 193 Okl. 92, 141 P.2d 292, and cited cases. The fact that the Governor vetoed the bill does not serve to distinguish the referred-to - cases. In 50 Am.Jur. -“Statutes”, Sec. 114, p. Ill, it is stated that “under the enrolled rule, prohibiting the court from going behind the enrolled bill to inquire into the regularity of the enactment of the law, it has been held improper to show that the passage of the law over the chief executive’s veto was without the prescribed formalities.”
In an effort to escape the force of the referred-to rule, respondents point to a message from the Secretary of the Senate which was sent to the Secretary of State along with the enrolled bill. This message shows the vote of each House on the bill' proper, and on 'the emergency clause following the Governor’s veto of the bill. It shows further that the bill proper did not receive a three-fourths vote of the members of the House of Representatives.
T am of the conviction that the message was not a part of the enrolled bill and for said'reason cannot be considered in reaching a decision on the issue of whether the bill was passed over the Governor’s veto. The statute ■ treating with enrolling a bill is 75 O.S.Supp.1959 § 12a. In so far as pertinent, it provides that upon passage of a bill it shall be enrolled by the House in which it originated; that following enroll-ment it shall be “signed” by the presiding officers of each House ánd shall then be “filed” in the office of the Secretary o’f State. The bill shows that the statute was complied with and for said reason the bill must be treated as a duly enrolled bill.
Respondents point to the fact that the enrolled bill shows that it was vetoed by the’ Governor and assert that the bill fails to show that it was passed over the veto. I am unable to agree. The bill shows that it was filed with the Secretary of State, which fact definitely 'tends to' prove that the bill was passed following and over the veto. It is provided in Art. -VI, Sec. .11, and Art,.V, Sec. 58 of the Okla.Cons.t. that a vetoed bill may be reconsidered by the Legislature and that the veto may be overridden if a sufficient number of votes is mustered in each House. The presumption lies that officers and officials have discharged the duties imposed upon them by law (Hicks et al. v. Sanders, 132 Okl. 242, 269 P. 297), and it must therefore be presumed that the Legislature by requisite vote passed, the bill, over the Governor’s veto before filing it with the Secretary of State. I submit that to hold otherwise would be tantamount to holding that the Senate perpetrated an illegal act by sending to the Secretary of State a vetoed bill which had not been reconsidered by the Legislature, or if reconsidered, one which had not passed. While I appreciate that a presumption may be overcome by evidence, I am convinced that the mere showing that the bill was vetoed by the Governor does not overcome the referred-to presumption where it clearly appears that the bill was filed with the Secretary of State on a date subsequent to the veto.
If I were convinced that the message could be considered as a part of the enrolled bill, I would nevertheless be of the opinion that the bill proper was passed b}' the .House of Representatives over the Governor’s veto.
In, so far as pertinent, it is provided in Art. VI, Sec. 11, supra, that a veto may be overridden by a two-thirds vote of the membership of each House. More than two-thirds of the members of each House voted “aye” on both the bill proper and' three-fourths so Voted on the emergency clause following the Governor’s veto. Respondents assert that this is without significance for the reason it is provided in Art. V, Sec. 58 that three-fourths of the members of each House must vote in favor of an emergency, bill to- override the Governor’s weto.
. To my way of thinking, the referred-to constitutional provisions must be construed together and when so construed it is apparent that the- first cited section was directed to the bill proper and the second to the emergency clause of a bill. The sole pur-’ *367pose of an emergency clause is to cause a bill to become effective immediately upon being approved by the Governor or upon being enacted over the veto of the Governor. An enacted bill which bears an emergency clause is therefore not subject to a referendum. It is apparent to me that in order to give some effect to the veto of a bill with an emergency clause, the members of the constitutional convention concluded that unless the clause was overridden by a three-fourths vote, and notwithstanding an overriding of the veto to the bill itself, the measure would be subject to being referred to a vote of the people. This, in my opinion, was the purpose of Art. V, Sec. 58.
My construction of the foregoing constitutional provisions accords with that placed thereon by the Legislature in the past. In voting on a bill carrying an emergency clause, separate votes, as in the instant case, are had on the bill and on the emergency clause. Following Constitutional Law, Vol. 4, part 1, West’s Okl. Dig., cases are cited sustaining the proposition that the construction placed upon a constitutional provision by public officers and officials will be given weight and consideration in interpreting the provision.
I am of the firm conviction that this Court has jurisdiction of the case, and feel very strongly that since it has jurisdiction, an opinion on the merits should be promulgated. I add, that it is a matter of common knowledge that the public is very much interested in reapportioning each House in accordance with the mandate of the Constitution, and that some citizens have, in fact, organized for the purpose of attempting to bring about a reapportionment of said bodies. The aim and desire of numerous citizens can well be appreciated when it is remembered that each House has for many years declined to reapportion itself in accordance with the mandate of our Constitution.
It is provided in Art. V, Sec. 10(j), that “An apportionment by the Legislature shall be subject to review by the Supreme Court at the suit-of any-citizen,’ under such- rules and regulations as the Legislature may prescribe.” Jones , v. Cordell et al., 197 Okl. 61, 168 P.2d 130, and Jones v. Freéman et al., 193 Okl. 554, 146 P.2d 564, represent authority sustaining the proposition that this Court has jurisdiction of the instant action. Since this Court has jurisdiction of the case, I am of the conviction that an 'opinion on the merits should be promulgated.
It is apparent that the matter of apportioning the Senate in accordance with the mandate of the Constitution would bring about an abrupt and drastic change in senatorial districts as they have existed for over 50 years. The change would cause many senatorial districts, in fact the majority, to lose in part the voice that they have had in the Senate since statehood. It is only natural that a majority of the citizens which would be affected adversely would look with disfavor upon the change and that their thinking and wishes would, in so far as is proper, be respected by their representatives. Thus the matter of apportioning the Senate presented an arduous task to a great many Senators. While I am convinced that members of the Senate worked long and conscientiously on the legislation before us and that they no doubt thought the apportionment made by said legislation was in keeping with the Constitution, I entertain no doubt but that the bill clearly violates the provisions of Art. V, Sec. 9(a) of the Okla.Const. It is provided in the cited section that the Senate shall be “divided into forty-four districts”; that the membership of the Senate shall not be less than 44; that “in [the] event any county shall be entitled to three or more senators at the time of any apportionment such additional * * * senators
shall be given such county”; that each senatorial district shall “contain as near as may be an equal number of inhabitants”; that inhabitants are to be determined in accordance with the current Federal census or in such manner as the Legislature may direct.
The following figures clearly show that the bill does not comply with the last cited *368section of the Constitution. The last Federal census shows the population of Oklahoma to be 2,328,284. This figure divided by 44 develops that the population of each senatorial district should be approximately 52,915. The referred-to census shows that two of the senatorial districts created by the bill have a population under 16,000; that two have a population under 17,000; and one has a population under 18,000. Under the bill each of said districts would be allowed one senator. Tulsa County, ■with a population of 346,038, would be allowed only three senators and Oklahoma County, with a population of 439,506, would also be allowed but three senators. Lincoln and Pottawatomie Counties, with a combined population of 60,269, would,, as a senatorial district, be allowed two senators; Osage and Washington Counties, with a combined population of 74,788, would, as a senatorial district, be allowed two senators ; and Comanche and Cotton Counties, with a combined population of 98,834, would, as a senatorial district, also be allowed two senators.
In the amicus curiae brief filed herein, it is contended that “Article 5, Sec. 9(a) Oklahoma Constitution does not confine the Legislature to sole consideration of population in apportionment of Senate; the Provision, ‘Or In Such Manner As The Legislature May Direct/ gives a choice or alternative enlarging the conditions or methods which may be considered by it.”
The language that is quoted in the above contention appears in the last sentence of Art. V, Sec. 9(a), which sentence reads in part thus:
“ * * * Said districts shall be numbered from One to Forty-four inclusive, and each of said districts shall contain as near as may be an equal number of inhabitants, such population to be ascertained by the next preceding Federal census, or in such manner as the Legislature may direct, and shall be in as compact form as practicable * * * ”
The phrase “or in such manner as the Legislature may direct” is used as to make clear that it relates to the matter of determining the population of the State and of the several senatorial districts in apportioning the Senate. The phrase, therefore, does not justify nor contemplate the consideration of the area of senatorial districts in apportioning the Senate. The fact that the quoted language authorizes the Senate to arrive at the population of the State and of the several senatorial districts by means other than the preceding Federal census is wholly without significance. I so say for the reason that the bill before us makes clear that the Senate elected to use the last Federal census as a basis for determining population.
I am of the conviction that the bill does not pretend to reapportion the Senate so that each senatorial district shall “contain as near as may be an equal number of inhabitants”. Such being the case, I am convinced that the bill is unquestionably unconstitutional. For authority tending to sustain my conclusion in the foregoing particulars, see cases cited at pages 1350-1353 of the annotated notes beginning at page 1337 of 2 A.L.R. The annotator summarizes the holding of the cases that he cites thus :
“ * * * The effect of the cases may, however, be broadly expressed in the statement that inequality of population or lack of compactness of territory will not necessarily invalidate an apportionment; but the question in all cases must be whether there has been such a variation from the standard of equality and compactness as clearly to indicate that the legislature or other apportioning body has exceeded or failed to exercise its discretion in the matter.”
Beginning at page 1339 of the above referred-to annotated notes, cases are cited in support of the annotated note to the effect that “It is well settled that the passage of apportionment acts is not so exclusively within the political power of the legislature as to preclude a court from inquiring into their constitutionality when the question is properly brought before it.” As I read Jones v. Cordell and Jones v. *369Freeman, supra, this Court has made clear that an issue such as is presented by the instant case will be treated as a judicial and not a purely political matter and that the jurisdiction bestowed upon the Court by Art. V, Sec. 10(j), supra, and other provisions of the Constitution and by the statutes will be exercised.
In view of the fact that the bill clearly violates the Constitution; that this Court unquestionably has jurisdiction of this case; that in exercising jurisdiction the Court will not be directing the Legislature to act, and to the contrary we will merely consider its actions in the light of the Constitution ; that unless the Court acts the bill will in fact become operative for the reason that it was, in my opinion, passed by both Houses, I am of the opinion that the bill should be stricken down as clearly violating the Constitution.