(dissenting).
It has been urged in briefs and argument that this Court lacks jurisdiction to hear the question presented. This contention is predicated upon Article 2, section 1, of the Idaho Constitution, which provides for the three departments of government. Apparently the theory is advanced upon the thought that this is a political matter resting solely with the legislative branch of government. Such proposition has been put to rest in Baker v. Carr, decided by the Supreme Court of the United States March 26, 1962.
(1) The majority apparently refers to Article 3, section 2, as it appears in the Idaho Code.
Difference of interpretation necessitates an explanation by this dissent why the 1911 Session Law version as herein applied sets forth the lawful constitutional amendment to Article 3, section 2. The Idaho Code provision is without foundation in law or fact.
(2) This Court takes judicial notice of Session Laws published by the Secretary of State, House and Senate Journals, legislative bills and amendments, and “legal” advertising notices to the electorate. House and Senate Journals, copies of the original bills, and newspaper notices all carry House Joint Resolution no. 13, as it appears in the 1911 Session Laws, p. 788, which was certified to by the then secretary of state to be the correct resolution passed by both houses of the Legislature and voted upon by the electors. An examination of the original bill signed by the Speaker and Lieutenant Governor reveals that the Session Law is correct. No presumption should be made in favor of a constitutional provision which has no lawful basis. Conjecture is not indulged as to why this variance exists, but this dissent relies upon what is believed to be the lawful provision.
Our controversy concerns the method devised to apportion representatives to the State Legislature. Presentation of the dis*270parity is made upon the showing that the elective 1962 Legislature will consist of representatives grossly disproportionately representing the people. Representation varies from one representative for 16,719 persons for Elmore County to Clark County, where one representative will represent 915 persons.
Our Constitution, Article 3, section 2, as adopted by the people in 1911, reads:
“Sec. 2. The Senate shall consist of one member from each county of the State now created or hereafter to be created and the House of Representatives shall consist of not to exceed three times the number of Senators. The Senators shall be chosen by the electors of the respective counties and the Representatives shall be chosen by the electors of the respective counties or disstricts into which the State may from time to time be divided by law.”
This provision of our Constitution replaced the former provision which had been adopted at the time of statehood, which was as follows:
“The senate shall consist of eighteen members and the house of representatives of thirty-six members. The legislature may increase the number of senators and representatives : provided, the number of senators shall never exceed twenty-four, and the house of representatives shall never exceed sixty members. The senators and representatives shall be chosen by the electors of the respective counties or districts into which the state may from time to time be divided by law.”
Apportionment of the Legislature is indicated by Article 3, section 4, of the Constitution :
“The members of the first legislature shall be apportioned to the several legislative districts of the state in proportion to the number of votes polled at the last general election for delegate to congress, and thereafter to be apportioned as may be provided by law: provided, each county shall be entitled to one representative.”
From time to time, various sessions of the Idaho Legislature have enacted legislation relating to apportionment of members of the House of .Representatives, subject of our controversy being Chapter 60, paragraph 2, of the 1951 Session Laws, which provides:
“ * * * The several counties shall elect members of the house of representatives as follows: Each county shall elect one representative for each * seventeen thousand * * population of such county and remaining fraction thereof amounting to * three thousand population or more. Population for this purpose shall be determined solely according to the last official Unit*271ed States Census; provided that there shall he at least one representative from each county.”
Prior to the 1960 census this act of apportionment resulted in 15 representatives’ being distributed among the various counties in addition to the 44 representatives allocated to the counties as provided by Article 3, section 4, total number of representatives being 59. The 1960 census reflects 22 counties having fewer than 8500 people per county comprise 15.2 per cent of the total State population. These counties will account for 35 per cent of the House members and 50 per cent of the senators.
Two prior acts of the Legislature, to wit, Chapter 75 of the 1933 Session Laws and Chapter 87 of the 1941 Session Laws, apportioned representatives in such a manner as to provide a total of 59 representatives, even though the State’s population grew from 445,031 in 1930 to 524,873 in 1940, to 588,637 in 1950. There was an exception in 1941, when the House consisted of 64 members. Our 1960 census is 667,191, and, based upon the 1951 apportionment statute, the 1963 session of the Legislature will have 63 representatives.
Constitutions of other States vary in many respects, but fundamentally provide for a dissimilar ratio between the House and the Senate where there is a bicameral legislature. They afford representation generally on the basis of two or three representatives to one senator. Methods of determination of ratio and apportionment also vary. Invariably, limitations or ratios are established by constitutions within which legislatures establish representative government. Our provisions are silent as to express authority or as to denial of authority.
It has been urged that in absence of limitations the Legislature has inherent power to establish its proportions. Such reasoning calls for an interpretation of the Constitution. We must be mindful concerning rules of constitutional interpretation when applying reasoning, deductive or inductive. Our proposition is one which requires application of that interpretation which is most favorable toward carrying out the constitutional intendment.
“As a general rule, the usual principles governing the construction of statutes apply also to the construction of constitutions; but, inasmuch as one function of a constitution is to establish the framework and general principles of government, merely technical rules of construction are not to be applied so as to defeat the principles of the government or the objects of its establishment. The courts must regard constitutional provisions as more generic and more organic than other law with which the courts deal. Constitutional provisions are presumed to have been more carefully and deliberately framed than *272is the case with statutes; hence, it is sometimes said that less latitude should be indulged by the courts in their construction.” 16 C.J.S. Constitutional Law § 15, pp. 71-72.
“The prime effort or fundamental purpose, in construing a constitutional provision, is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption, and proper regard should be given to the evils, if any, sought to be prevented or remedied. Effect should be given to the purpose indicated by a fair interpretation of the language used, and that construction which effectuates, rather than that which destroys a plain intent or purpose of a constitutional provision, is not only favored but will be adopted. In construing- a constitution it is presumed that the language has been employed with sufficient precision to convey the intention, although the intent may be shown by implications as well as by express provisions. A constitutional inhibition or prohibition usually extends no farther than the reason on which it is founded.
“While it has been said that the construction of a constitutional provision should be neither liberal nor strict, it is quite generally held that in arriving at the intent and purpose the construction should be broad or liberal, or equitable, as the better method of ascertaining that intent, rather than technical. The construction should not, however, be so liberal as to result in nullifying a plain mandatory provision of the organic law, or as to result in a statute becoming the higher law.” 16 C.J.S. Constitutional Law § 16, pp. 72-78.
Our constitutional philosophy of repre sentative government was announced in Ballentine v. Willey, 3 Idaho 496, 31 P. 994
“ * * * One of the very foundation principles of our government is that of equal representation, and the legislature is prohibited from enacting an apportionment law which does not give to the people of one county substantially equal representation to that given each other county in the state, based either upon the entire or voting population or upon some other just and fair basis. The reservation of rights by the people is broad enough to prohibit the legislature from passing an apportionment act which is manifestly unequal and unjust to the people of any portion of the state. It has authority to fairly apportion legislative representation, but it is prohibited from disfranchising. Whenever the legislature undertakes to deny the right of the people of any county a *273just and fair representation in the legistive department of the state, it is not acting within the scope of its authority. * sfc ”
It appears that Article 3, section 2, is a self-operating provision in connection with Article 3, section 4. By self-operating, it is meant that after adoption of Article 3, section 2, in 1911, several new counties were created in the State. This provision assured one senator from each county then existing and each county thereafter to be created. As provided by the ratio of three to one, the membership of the House was also proportionately increased with the addition of each new county. This was not an idle gesture, in view of Sabin v. Curtis, 3 Idaho 662, 32 P. 1130, wherein this Court, in then interpreting the prior Article 3, section 2, to mean that the Legislature not having enacted apportionment legislation, the provisions of Article 19 should have been applied in consideration of representation for new counties in that they must share the same senators and representatives with the county or counties from which they had been created.
After this interpretation by the Court, senators and representatives were apportioned to the counties and districts by legislative acts. In 1917, the Legislature enacted a formula for apportionment of the members of the House of Representatives. This apportionment act was subsequent to the amendment of Article 3, section 2, which came after Sabin v. Curtis, supra. It is important to note that Idaho had 27 counties in 1911, in view of- the limitation of 24 being placed on the number of senators to be elected. The Legislature in 1911 had 24 senators and 60 representatives, which was the maximum provided for. After this limitation on number of senators was abolished with the amendment of this Article, several new counties were created, each being entitled to its one senator. Ultimately 44 counties were represented by senators in 1921. According to the apportionment formula, those counties elected 54 representatives on the basis of one to each county, and one additional for each 2500 votes or remaining fraction 1,000 votes cast in the preceding general election.
Another pertinent rule is that the state of the law at time of an amendment is controlling, and must be considered as that which the people had in mind. Idaho Mutual Benefit Assn. v. Robison, 65 Idaho 793, 154 P.2d 156.
Oklahoma reflected similarly on the subject of construction in Jones v. Freeman, 193 Okl. 554, 146 P.2d 564:
“That the acts complained of do not comply with the requirements of the Constitution is plain. The senatorial districts created do not ‘contain as near as may be an equal number of inhabitants’, and representative districts have *274not been created in accordance with the mandatory provisions of sections 10(d) and 10(g), as above pointed out. While it is impossible to apportion representation in the two Houses with mathematical exactness, and the Legislature is, and should be, allowed some discretion in enacting such statutes, yet the provisions of the Constitution require at least as close an approximation to exactness and equality as is reasonably possible. * * * ”
Basis of representation in the Legislature was considered in 1893 by this Court in Sabin v. Curtis, supra, when it interpreted Article 3, section 4:
“ * * * The legislature has made no apportionment since that made by the provisions of said article 19 of the constitution. The constitutional apportionment was made on the basis of the votes cast for delegate to congress at the election next preceding the adoption of the constitution. The basis of representation was the voting population. Electors, alone, are represented. A given number in one county exercises the same political power as a like number in any other. Some departure, however, is made from said basis of representation by the proviso of section 4, art. 3, of the constitution, which provides that each county shall have at least one representative, in all future apportionments. But this does not change the basis of representation from the voting population to the county itself. The voting population was the basis of representation under the constitutional apportionment,- — not the county, as a county. * * * ”
Great latitude was vested in the Legislature in this prior constitutional provision, Article 3, section 2, and it must be noted with caution that authority of the Legislature to determine the number of senators or representatives was deleted from the 1911 amendment thereof. Such change forcefully impels reasoning toward the conclusion that indiscriminate authority was thereafter denied the Legislature.
This section does not grant a right to diminish or increase the size of the Legislature, but grants a right of apportionment of the members as provided in Article 3, section 2, which establishes a House to consist of a number not to exceed three times the number of representatives in relation to the number of senators in the Senate. This provision is for protection of the people. It was contemplated that senators would represent county areas of the State, whereas representatives would be apportioned according to population or some device akin thereto.
The ratio of one to three, as nearly as practicable, was thereby established. It is not the privilege of the Legislature to re*275duce this ratio to the extent which they have, but rather is a mandatory provision carrying out the Constitutional theory of representative government. Therefore, when legislation is calculated to defeat mandatory provisions of our Constitution it is unconstitutional.
In passing, it should be noted that Tennessee’s Constitution, Article 2, section 5, has great similarity in this respect to our controversial provision. However, it was not a problem in Baker v. Carr, because the Tennessee Legislature had fulfilled its constitutional mandate.
Article 1, section 2, of our Constitution protects the people of Idaho from arbitrary action illustrated by the 1951 law establishing the restricted number of representatives in the Legislature:
“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.”
This section of our Constitution provides protection for the people as does the Fourteenth Amendment of the Federal Constitution.
In this regard, excerpts from Baker v. Carr, supra, are illustrative of the protection which must be afforded to the people:
“* * * Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.
******
“ * * * This Court’s answer to the argument that States enjoyed unrestricted control over municipal boundaries was:
“ ‘Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. * * * The opposite conclusion urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. “It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.” ’ Gomillion v. Lightfoot, 364 *276U.S. [339,] at 344-345, 81 S.Ct. [125,] at 129 [5 L.Ed.2d 110].
‡ Jj? #
“ ‘When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.’ 364 U.S., at 347, 81 S.Ct., at 130.”
The 220,000 population increase between 1930 and 1960 is virtually without representation in the House because of the arbitrary and capricious action by the Legislature in restricting the House number.