concurring in part and dissenting in part.
I concur in much of the majority opinion, i.e., that portion holding that the legislature should be given an opportunity to design a plan of legislative reapportionment which satisfies both the United States Constitution’s requirement of one man, one vote, and the prohibition contained in Idaho Const, art. 3, § 5, that counties shall not be divided in creating legislative districts. See Shepard, J. dissenting in Hellar v. Cenarrusa, 104 Idaho 858, 664 P.2d 765 (1983). Necessarily, I agree with that part of the majority which affirms the denial of special elections and confirms at least a de facto status of the 1984 legislature. I agree also with the holding of the majority that this Court should retain jurisdiction of the cause until further order. The cause has been up and down in Idaho’s judicial system for too long a period of time, and no purpose would be served in extending the time by requiring a further excursion to the trial court.
I also concur with the majority’s disposition of the “lack of fair trial” issue and would only further note that, although this Court’s prior decision was filed on June 7, 1983, the cause has been pendant since April of 1982. In view of those circumstances and, as admitted by all parties, the instant cause being of extreme importance to the entire people of the State of Idaho and critical to the very foundation of continuing state government, it is unseemly, ludicrous and frivolous to assert that counsel was unprepared at trial; and when the fault therefor is attempted to be placed upon the trial judge under the circumstances well pointed out by the majority, the assertion verges on contumacy. I agree with the majority as it approves the award of attorneys’ fees.
I dissent, however, from that portion of the majority which carte blanche approves plan 14-B as satisfying both the United States and Idaho Constitutions and “appearing] to be proper and well designed in all respects ...,” and I further dissent from the holding of the majority that “the 1984 election shall be conducted under plan 14-B ... unless the legislature enacts a constitutional alternative reapportionment plan.”
I further disagree with the majority’s treatment of the “aggregate” method of statistical analysis versus the “component” method of statistical analysis. The majority merely affirms the district court, without any process of reasoning other than a reference to the United States Supreme Court’s likewise abdicating its judicial responsibilities in failing to “enter this imbroglio of mathematical manipulation.” Mahan v. Howell, 410 U.S. 315, 319, 93 S.Ct. 979, 982, 35 L.Ed.2d 320 (1973). If, as contended by defendants, the correct method of computation is “component,” then plan 14-B has a deviation of 41.3% and is undoubtedly violative of the federal constitution. I find no support for the majority’s assertion that the “aggregate” has been blessed by the United States Supreme Court and Boyer v. Gardner, 540 F.Supp. 624 (D.C.N.H.1982), is, at best, only persuasive.
I also disagree with the majority’s conclusion that even “supposing the proper statistical method yielded a population deviation of 41.3%,” nevertheless such deviation has been approved in Brown v. Thompson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). What the majority does not tell us of Brown v. Thompson, supra, is that it is a 3-2-4 decision and, because of the maximum deviation of 89%, simply cannot be reconciled with previous opinions of the Court unless Reynolds v. Sims and its progeny are overruled, but we are told that those cases still are the foundation of legislative apportionment.
As characterized by one member of the Court, “it is worth stressing how extraordinarily narrow it is, and how empty of likely *582precedential value.” Id., 103 S.Ct. at 2700 (Brennan, J., dissenting). As pointed out in the opinions of the Court, Brown v. Thompson involved a challenge to only a small part of Wyoming’s legislative apportionment scheme. The two specially concurring members of that Court indicated that their adherence to the result came only because the challenge was so narrow and that, had the challenge been to a statewide legislative plan, the majority would not have had its votes. In my judgment, logic and reason are clearly on the side of the four-man “dissent,” particularly in view of the 5-4 decision in Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983), handed down on the same day. Karcher struck down as unconstitutional the reapportionment of New Jersey because of an average deviation between districts of 0.1384% or, stated differently, a deviation of 726 people from the average district population of 526,059.
The recent history of legislative reapportionment in Idaho may furnish some perspective on the action of the courts in this nebulous field. Prior to this state’s 1962 elections, George Caesar filed an action in the district court, alleging that the then legislative apportionment was unconstitutional, in that equal representation was not provided to the people of the more populous counties of the .state. The district court agreed with Caesar, and the matter was appealed to this Court. Caesar v. Williams, 84 Idaho 254, 371 P.2d 241 (1962). This Court reversed the decision of the trial court in a 3-2 decision, holding that the constitutional requirement of one representative per county made mathematical equality impossible, and that such lack of equality, although great, did not violate the equal protection clause of either the United States or the Idaho Constitution.
In 1963, Heame v. Smylie, 225 F.Supp. 645 (1964), the plaintiffs asserted that the Idaho Constitution requiring at least one member of the House and one member of the Senate to be elected from each county, together with the statutes providing for the apportionment of the Idaho legislature were violative of the equal protection and due process guarantees of the fourteenth amendment to the United States Constitution. The three judge court, in a split decision, denied the relief sought by plaintiffs and some of the language of that court, while probably'of only historical interest, nevertheless demonstrates how far we have “progressed” or “regressed” since that time. The court said, 225 F.Supp. at 655-656:
“In the view of one observer, ‘it taxes the imagination to conjure a vision of the marshals breathing down the necks of the members of the [Idaho legislature] * * * while they parrot the requisite number of “ayes”, or the prosecution for contempt of legislators who voted “nay” on the district court’s apportionment bill’
“ * * * Thus, plaintiffs in effect argue that this Court should attempt to ‘bluff’ or ‘spur’ the Idaho Legislature into action; that we should issue a. ‘left-handed’ injunction whereby the Court would attempt to accomplish indirectly what it. could not possibly bring about directly...
“ * * * As stated earlier, were we to grant the relief plaintiffs ask and thereby deprive Idaho of a de jure Legislature, surely we would at the same time probably deprive the people of Idaho, at least temporarily, of ‘a Republican Form of Government’ guaranteed to them by Article IV, § 4, of the Federal Constitution ...
‘ * * * We should not willingly so stultify ourselves, or so prostitute the power and process of this Court. Beyond the age-old policy against advisory opinions, and a fortiori advisory judgments ... we would echo the warning of Mr. Justice Frankfurter that ‘there is nothing judicially more unseemly nor more self-defeating than for * * * [a] Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope.’ ”
*583It is perhaps not surprising that in the wake of Reynolds v. Sims, 877 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and related cases, the action of the federal district court panel in Hearne v. Smylie, supra, was summarily reversed without even the dignity of briefing of argument. 378 U.S. 563, 84 S.Ct. 1917, 12 L.Ed.2d 1036 (1964). Hence, the idea of counties as areas deserving one, and only one, senator, and at least one representative, disappeared from the Idaho scene, and legislative districting came into place.
In Summers v. Cenarrusa, 342 F.Supp. 288 (1972), another three judge panel of the federal district court reviewed the state’s then-existing legislative reapportionment scheme and stated, 342 F.Supp. at 289:
“[T]he Legislature made a conscientious and good faith effort to create districts of equal population as near as practicable, even though there are deviations from equality between districts. In creating the districts, the Legislature took into consideration anticipated increases in population, the exclusion of non-resident college students, which were included in the 1970 census, and, insofar as practical, existing county, natural and historical boundary lines so as to create districts with similar economical and community interests and to provide the most effective representation possible to the citizens of Idaho in the Legislature.”
The court noted that the legislative districts ranged from 18,207 to 22,162 persons per legislator, or from 10.62% over-represented to 8.79% under-represented. Further, the court pointed out that ten counties had been divided so as to create 14 legislative districts. The court held that the deviation in population among the legislative districts was unavoidable and “was the most reasonable and practical in carrying out the one man, one vote concept as required by the decisions of the Supreme Court of the United States.” Id., 342 F.Supp. at 290. Of most importance to the case at bar is the clear statement: “It is our opinion that in order for the Legislature to enact a practical reapportionment plan so as to comply with the requirements of the United States Constitution, it could not and was not required to comply with the Idaho Constitutional prohibition against dividing counties.” Id., 342 F.Supp. at 290 (emphasis added). I suggest that such language is clear, concise and inescapable. Whether the holding of that court is binding here, I leave to others. The question might well be posed, “Was the legislature entitled to accept and act on that decision and whose opinion is the upcoming legislature to accept, that federal court decision or the decision of the state district court which this Court affirms today?” As I read the majority, it provides no answer. While the United States Supreme Court, 413 U.S. 906, 93 S.Ct. 3037, 37 L.Ed.2d 1018 (1973), vacated that judgment and remanded to the district court for further consideration, on May 3, 1974, in an unpublished opinion, the district court reaffirmed its earlier decision in favor of the defendants.
As above stated, I must also dissent from the holding of the majority that if the 1984 legislature does not act, plan 14-B automatically goes into effect, and the 1984 election shall then be conducted in accordance with that reapportionment. In my judgment, the able trial judge labored long, mightily, and patiently, and finally appeared to have no alternative but the adoption of one of the plans submitted and designed by plaintiffs since defendants defaulted in that regard. Nevertheless, I must disagree with the majority wherein it states that plan 14-B “appears to be proper and well designed in all respects.”
I remain of the view that the original question presented was whether a reapportionment plan could be drawn which satisfied the requirements of both the federal and the Idaho constitutions. See Hellar v. Cenarrusa I (Shepard, J., dissenting). The trial court has determined, and this Court evidently affirms, that such a legislative reapportionment scheme can be drawn. There seems to be no doubt but that H.B. 830 satisfied the requirements of the federal constitution. [Initially, plaintiffs alleged *584that H.B. 830 invidiously discriminated against Idaho’s Indian population, in violation of the federal constitution, but that question evidently is not an issue and is not decided today.] It seems equally clear that H.B. 830, as a matter of law, violates the literal language of the Idaho Constitution prohibiting the division of counties. As above stated, today’s holding by the majority is that plan 14-B is not violative of the federal constitution.
Hence, in my mind, there is no federal question presented and what federal court decisions say or do not say regarding federal questions — how they invalidate or affirm legislative apportionment schemes — are of mere academic interest only insofar as their reasoning may be acceptable to this Court and to this state. Decisions such as Boyer v. Gardner, that appear to validate floterial districts as acceptable to the federal constitution, are not remotely binding here and are persuasive only to the extent that the reasoning underpinning the decision is applicable and acceptable in Idaho.
Nevertheless, the majority today does not even deign to mention, much less discuss, cases from our sister state Supreme Courts dealing with almost identical problems inherent in their legislative apportionment, vis a vis, their constitutional requirements. See Logan v. O’Neill, 187 Conn. 721, 448 A.2d 1306 (1982); Merriam v. Secretary of the Commonwealth, 375 Mass. 246, 376 N.E.2d 838 (1978); Opinion of the Justices, 307 A.2d 198 (Me.1973); Commonwealth ex rel. Specter v. Levin, 293 A.2d 15 (Pa.), appeal dismissed, 409 U.S. 810, 93 S.Ct. 44, 34 L.Ed.2d 65 (1972); Wells v. White, 274 Ark. 197, 623 S.W.2d 187 (1981), cert. denied, 456 U.S. 906, 102 S.Ct. 1753, 72 L.Ed.2d 163 (1982); In Re Reapportionment of Colorado General Assembly, 647 P.2d 191 (Colo.1982); State ex rel. Lockert v. Crowell, 631 S.W.2d 702 (Ténn.1982); People ex rel. Scott v. Grivetti, 50 Ill.2d 156, 277 N.E.2d 881, cert. denied, 407 U.S. 921, 92 S.Ct. 2460, 32 L.Ed.2d 806 (1972).
At bottom then, this Court has today determined that H.B. 830 is dead, having been shot down in constitutional flames. From its ashes arise the judicially created phoenix of plan 14-B. According to this Court, the creature “appears to be proper and well designed in all respects.” Whatever other faults existed in defendants’ case at trial, they well and truly attacked plan 14-B in certain of its facets, i.e., floterial and multi-member districts. That attack is well preserved on this appeal. However, again, the majority does not deign to mention the assertion of error, much less discuss it. I suggest that under these circumstances we deal solely with a question of state law, without the interposition of federal constitutional principles.
While floterial districts in plan 14-B were admittedly designed to achieve popu-' lation equality, it is admitted and beyond question that a reapportionment plan can be designed to satisfy both the federal and the state constitutions without the existence of floterial districts.
While the trial court and this Court made much of the desire of sitting legislators to preserve inviolate their seats in any legislative reapportionment, nevertheless the record here demonstrates the appearance at the trial court of many former government officials who presumably had no stake in the proceedings and who testified as to the impracticability and undesirability of floterial districts in Idaho apportionment schemes. Those opinions were based on perceived voter confusion and consequent voter apathy, lack of meaningful representation, over-representation of majority groups with under-representation of minority groups, and difficulty and instability in future reapportionments. Those opinions were in part reactions to the massive size of some of the floterial districts. For example, proposed district 13 would appear to encompass Adams, Valley, Washington, Payette, Gem, Boise, Canyon, Elmore and Owyhee Counties, with a geography approximately 225 miles in length and over 100 miles in width.
*585As I view the majority, it gives no credence, consideration or mention to that evidence at trial, nor to the arguments presented on appeal. I believe the majority seriously errs when it indicates that, in the absence of legislative action in 1984, plan 14-B will automatically become the law of the State of Idaho. I believe it does so without any consideration of the serious deficiencies which have been alleged and testified to at trial and brought firmly to the Court’s attention on this appeal.
In sum, I agree that this Court should retain jurisdiction of the cause. I further agree that the 1984 legislature should be given the opportunity to reapportion itself. I fervently urge the legislature to act to discharge its responsibility in accordance with its powers. As indicated in art. 2, § 1 of Idaho Constitution, “no person of collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.” In my view, the power and duty of legislative reapportionment rest with the legislature. The power does not belong to nor should it be exercised by, the judicial department of government, albeit if there be a legislative abdication of its power and duty, the courts will be required to act in the legislature’s stead. In my opinion, with this Court’s retaining jurisdiction of the cause, it could and should reexamine the question of legislative reapportionment, whether or not the 1984 legislature acts to reapportion itself.