(dissenting). There are propositions in the able opinion, where Mr. Justice Currie speaks for the majority, with which I do agree, but I cannot concur in the over-all conclusion that sec. 4 is effective and that sec. 3 is not severable. If sec. 3 is severable, then secs. 1 and 2 give *421us a valid law apportioning the legislative districts. Sec. 3, art. IV of the Wisconsin constitution requires that “At their first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants, excluding Indians not taxed, soldiers, and officers of the United States army and navy.” The history of the effort at reapportionment since 1931 is set forth in the majority opinion. It seems to me that sec. 3 of ch. 728, Laws of 1951, published August 17, 1951, is so far from being germane to the reapportionment question, which was properly before the legislature and properly treated in secs. 1 and 2, as to fall within the condemnation of the rule set forth in Bull v. Conroe, 13 Wis. *233, *237, where it is said that the constitution may be violated by a neglect of the legislature to discharge a duty enjoined upon it by that instrument-; and I am of the opinion that the provision of sec. 4 of the same chapter does not require holding of nonseverability.
Therefore it seems to me improper to give the same effect to the inseparability clause (sec. 4) in the reapportionment act as the court would give the same clause in a law, a portion of which is invalid.
In the ordinary case the intent of the legislature controls as to whether the law shall go into effect. In the matter at bar, it is not the will of the majority of the legislators, but the performance of a duty or exercise of a power by the legislature fixed and conferred by the constitution which is to be served. Again, in the ordinary case an inseparability clause would be an expression of legislative intent upon a matter with which the legislature was empowered to deal, free from the constitutional restrictions. In the case of reapportionment, the same clause does nothing more than represent an attempt by the legislature to exceed its power.
*422If the legislature, acting under its general lawmaking-power, passes a law, a portion of which violates the constitution, the question of the invalidity of that portion is subject to consideration by the courts, and there must be a determination, then, whether the entire act shall fall or only the invalid portion. In that case, it is a question of construction. Did the legislature intend that the valid portion be enforced, even though the other portion falls ? Or, did the legislature intend that no part of the law should go into effect unless all of it could? Separability or inseparability clauses are evidence of legislative intent. This is because in the field of lawmaking in general, the legislature has the right and power to choose whether or not there shall be any law on a particular subject.
The power of the legislature in the field of apportionment is different. The legislature does not have the right to choose whether there shall be a reapportionment law or not. Its sole duty is to apportion and district anew. This would necessarily result in the enactment of a law which contains the boundaries of senate and assembly districts which meet the standards set forth in the constitution.
The 1951 legislature performed that task. They added a nongermane and distinct provision, which must be ignored in considering the subject of reapportionment. The reapportionment act does contain the boundaries of districts which meet the standards. This enactment is found in secs. 1 and 2. Sec. 3, which the legislature sought to reinforce by adding-sec. 4, is not properly associated with or germane to the propriety of the districts described in secs. 1 and 2. Those districts will be neither more nor less compatible with the standards required by the constitution, regardless of what happens under sec. 3.
Secs. 3 and 4 are both essentially expressions of the determination of the members of the legislature on the question: “Shall there be a reapportionment?” But this is a choice which is beyond the power of the legislature. There are *423many points to be determined, the decision of which must be made in drawing up a reapportionment: How shall counties or towns or wards be grouped within a district? Shall one unit be added to the district on one side or the other? And so on. Those who framed and drafted the constitution determined that these decisions should be made by the legislature. It must be agreed that there is no way in which the court can compel the legislature to make these decisions and describe the legislative districts. But in the 1951 reapportionment act, in secs. 1 and 2, the legislature has made all the decisions which the constitution gave it the power to make on the subject of reapportionment. The court could not compel it to act, but when it did act, the court can determine the effect of its act and, where it has proceeded according to the constitutional requirements, can sustain that portion, and hold invalid the further exceeding of its power.
To give effect to sec. 4 is to say that the legislature, by separate and distinct acts, can by one act provide a proper reapportionment and by another veto it or subject it to a contingency which may result in its not being effective. “This court has repeatedly held void such discriminate exercise of arbitrary legislative power.” Anderton v. Milwaukee, 82 Wis. 279, 284, 52 N. W. 95. See also Bull v. Conroe, supra; Durkee v. Janesville, 28 Wis. 464; Hincks v. Milwau kee, 46 Wis. 559, 1 N. W. 230; Culbertson v. Coleman, 47 Wis. 193, 2 N. W. 124; Hughes v. Fond du Lac, 73 Wis. 380, 382, 41 N. W. 407; Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128; Wilder v. Chicago & W. M. R. Co. 70 Mich. 382, 38 N. W. 289; State ex rel. McCue v. Sheriff, 48 Minn. 236, 51 N. W. 112.
I think there is an important distinction arising out of the difference in the power exercised in an ordinary legislative act and the power here being attempted to be exercised. There is in Cooley, Const. Lim. (7th ed.), p. 184, the following statement: “But what is for the public good, and what *424are public purposes, and what does properly constitute a public burden, are questions which the legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the courts, except, perhaps, where its action is clearly evasive, and where, under pretence of a lawful authority, it has assumed to exercise one that is unlawful.” See Bull v. Conroe, supra. The above quotation is part of a discussion with relation to the powers of the legislature in matters of taxation. In this case there is an attempt to control the effect of the apparent discharge by the legislature of its constitutional duty by adding the referendum clause and providing that the reapportionment shall not be held valid unless and until something happens under the referendum. This is so far from being germane to the real purpose of reapportionment, as a matter of logic and law, as to create two separate, distinct, and conflicting legislative efforts. The proposal of having an advisory referendum on possible amendment of the constitution would in itself be an exercise of general legislative power, certainly not reapportionment power set apart by the constitution.
In the ordinary instance where a nonseparability clause is included in an act, the intent of the legislature controls as to whether the law shall go into effect. But in the case of reapportionment, the legislature’s intent that the reapportionment act shall go into effect only upon a contingency is in itself in excess of the power of the legislature.
In Janesville v. Carpenter, supra, page 303, we find the following language quoted from Mr. Justice Chase in Calder v. Bull, 3 Dall. (U. S.) *386: “ 'I cannot subscribe to the •omnipotence of a state legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the state. . . . The nature and ends of the legislative power will limit the exercise of it. . . . There are certain vital *425principles in our free republican government which will determine and overrule an apparent and flagrant abuse of legislative power, — as to authorize manifest injustice by positive law, . . . An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.’ ” It seems to have been agreed among the members of the legislature and by counsel in the argument here that the legislative districts described in secs. 1 and 2 of the act meet all of the constitutional requirements.
Therefore the question is with relation to the effect of secs. 3 and 4. From the history of the efforts with relation to the legislation, it appears that a portion of the legislators were of the opinion that a method of postponing or evading the immediate reapportionment and of holding it in abeyance would result if sec. 3 imposed a condition, whether valid or not, and by providing in sec. 4, in effect, that the reapportionment must be accepted subject to that condition in sec. 3 or given-up. This, it seems to me, under the regulations provided in the constitution, is an untenable proposition.
It seems to me that both secs. 3 and 4 exceed the authority given to the legislature, and any intent attempted to be expressed by those sections is irrelevant.
Secs. 1 and 2, I believe, comply with the constitution.