This is an original action brought by petitioner, Jenkin Lloyd Jones, to test the validity of the various legislative apportionment acts enacted since the adoption of the Constitution. Petitioner alleges all of such acts to be contrary to express constitutional provisions, and seeks (unless a valid law be enacted meanwhile) to require the next election to be held under the apapportionment as made by the Constitution, as well as to restrain the payment of compensation to legislators already elected under the allegedly invalid laws.
It has been stipulated that petitioner is an elector and taxpayer of Tulsa county, and that he has voted in elections held under the challenged statutes. We will take judicial notice of the population of the counties of the state as shown by each decennial federal census. 18 Am. Jur. 200.
By article 5, sec. 11, of the Constitution the state was divided into 33 senatorial districts, 22 of them being given one Senator each and 11 being given two Senators each. By article 5, secs. 12-16 of the Constitution, 109 representatives were apportioned among the 75 counties created by the Constitution, each county being given at least one representative. (Two counties, Harmon and Cotton, have been created since the Constitution was adopted.) However, the framers of the Constitution intended that the legislative apportionment contained therein should serve only until 1911. They made it the duty of the Legislature at that time to enact a new apportionment law, based upon the population as ascertained by the federal census of 1910, or in such other manner as the Legislature might direct (no other method of ascertaining population has been provided), and they also made it the duty of future Legislatures to enact apportionment laws after the taking of each succeeding decennial federal census. Const. art. 5, secs. 9, 10, and 11. In passing apportionment acts the principle of equality is, as a general rule, enjoined upon the Legislature, so that each voter of the state will have approximately the same power and influence in electing members of the two houses of the Legislature, and in shaping legislation, as every other *Page 557 voter. Thus article 5, sec. 9(a), of the Constitution provides that at the time of each senatorial apportionment after the year 1910, the state shall be divided into 44 senatorial districts, each of which shall elect one Senator and shall "contain as near as may be an equal number of inhabitants." It further provides that the Senate shall always be composed of 44 Senators, except that such members may be increased to the extent that single counties are entitled to more than two Senators. Article 5, sec. 9(b), provides that districts in counties entitled to two or more Senators shall be so arranged "as to make such districts most nearly equal in number of inhabitants" consistent with the duty not to divide towns or city wards constituting only one voting precinct.
Substantial equality in apportioning the members of the House of Representatives among the counties of the state was enjoined upon the Legislature by article 5, sec. 10, of the Constitution, except that it was provided that no county should "take part in the election of more than seven representatives," and that any county having a population equal to one-half a ratio should be entitled to one representative.
The ratio for the House of Representatives is obtained by dividing the whole population of the state by 100. Section 10 (c). If a county has less than one-half a ratio, itmust be attached to an adjoining county. The formula for equalizing the representation in the House of Representatives throughout the ten-year period is set out in article 5, secs. 10(d) and (e), of the Constitution. While the principle of equality is the rule, exceptions are made in favor of the less populous counties that have as much as half a ratio but not a full ratio and against the populous counties having over seven ratios. Thus under the 1940 federal census, Oklahoma has a population of 2,336,434, making a ratio for the House of Representatives 23,364, and Major county, with a population of 11,946, is alone entitled to one representative, unless an adjoining county is attached to it as authorized by article 5, sec. 10(g), while Oklahoma county with a population of 244,159 is entitled to but seven representatives, or one for every 34,879 of the population of the county. So, in this instance, the Constitution gives each voter in Major county approximately three times as much influence on legislation passed by the House of Representatives as is given each voter in Oklahoma county. But this is an exceptional case, and is possible only because the Constitution makes it so.
In 1911, 1921, 1931, and 1941, the Legislature enacted statutes apportioning representation in the House of Representatives (S. L. 1910-11, p. 266; S. L. 1921, p. 69; S. L. 1931, p. 9; S. L. 1941, p. 39), but no general apportionment statute affecting the Senate has been enacted since statehood. While several acts altering or creating individual senatorial districts have been passed, the majority of senatorial districts created by the Constitution remain unaltered, and at present 34 of the 44 members of the Senate are elected from such districts. As a result, because of the growth of cities and a shift of population since 1907, the representation of many counties in the Senate, upon a basis of population, is now grossly disproportionate to that of other counties. The following table of the six least populous and the six most populous senatorial districts as they now exist, with the population of each according to the federal census of 1910 and 1940, will serve to illustrate the changes which have taken place and the condition that now exists:
SIX SMALLLEST DISTRICTS:
Dist.
No. Counties 1910 1940
26 Marshall, Love _________ 28,353 23,817
4 Greer, Harmon _________ 27,777 24,569
12 Logan __________________ 31,740 25,245
7 Alfalfa, Major _________ 33,386 26,075
2 Beckham, Dewey, Ellis,
Rober Mills ____________ 62,067 53,352
(2 Senators)
1 Beaver, Harper, Cimarron,
Texas _________________ 40,622 28,652
------ ------
Total _______________________________ 223,945 181,710
*Page 558
SIX LARGEST DISTRICTS:
Dist.
No. Counties 1910 1940
31 Tulsa 34,995 193,363
14 Oklahoma, Canadian ______ 108,733 271,488
(2 Senators)
23 Pontotoc, Seminole ________ 44,295 100,993
11 Creek, Payne ______________ 49,958 91,110
34 Osage, Washington _________ 37,585 72,061
32 Okmulgee, Wagoner _________ 43,201 71,743
------- -------
Total ________________________________318,767 800,758
It will be seen that the six least populous districts have lost 42,235 in population during the 30-year period, and in the aggregate are entitled to but three Senators instead of seven, which they now have. On the other hand, the six most populous districts have gained 481,991 in population during the same period, and in the aggregate are entitled to 15 Senators instead of the seven which they now have. The result is that each voter in the six overrepresented and least populous districts has more than four times as much voice in the Senate as each voter in the six under-represented and most populous districts. And each voter in Marshall and Love counties, district No. 26, has over eight times as much voice in the Senate as each voter in Tulsa county, district No. 31. An examination of a table containing the population of each senatorial district in the state discloses that 23 Senators, constituting a majority of the Senate, are elected from counties having a population of 776,321, while the remaining 21 Senators are elected from counties having a population of 1,560,113. Thus less than one-third of the voters of Oklahoma elect a majority of the Senate. The wisdom of the makers of the Constitution in requiring the Legislature to reapportion the two houses of the Legislature once in every ten-year period, so as to provide for the shifts in population and equalize representation, is well illustrated by these figures.
Although he complains chiefly of the statutes relating to senatorial apportionment, petitioner also attacks the statutes apportioning representation in the House of Representatives. Under sections 10(d) and (g), art. 5, of the Constitution, it is the mandatory duty of the Legislature to attach each county having less than half a ratio of population to an adjoining county for the purpose of representation in the House. The population of the state, as shown by the federal census, for the years 1910, 1920, 1930, and 1940, was, respectively, as follows: 1910 — 1,657,155; 1920 — 2,028,285; 1930 — 2,396,040; and 1940 — 2,336,434. In the apportionment acts for the House of Representatives enacted immediately succeeding the taking of the federal census for each of said years, each county in the state was given one or more representatives. No county was attached to another, as required by section 10(g), despite the fact that two counties (Cimarron and Harper) each had less than one-half a ratio under both the census taken in 1910 and in 1920, despite the fact that five counties (Cimarron, Harper, Beaver, Ellis, and Love) each had less than one-half a ratio under the census taken in 1930, and despite the fact that eight counties (Cimarron, Harper, Texas, Beaver, Ellis, Roger Mills, Harmon, and Love) each had less than one-half a ratio under the census taken in 1940.
The condition thus shown to exist is one of grave concern. The principle of equality of representation lies at the very heart of representative government. 18 Am. Jur. 192, § 17. This principle was enjoined upon the Legislature by the cited constitutional provisions. At the ballot box, in a representative government, each citizen is supposed to be, and should be, the equal of every other citizen, and all are entitled to approximately an equal voice in the enactment of laws through elected representatives. It was not the intention of the framers of the Constitution, or of the people who adopted it, that citizens of one county should have representation in the two houses of the Legislature out of all proportion to that enjoyed by the citizens of other counties, except in the few instances above noted.
The Kentucky court has well said: *Page 559
"Equality of representation in the legislative bodies of the state is a right preservative of all other rights. The source of the laws that govern the daily lives of the people, the control of the public purse from which the money of the taxpayer is distributed, and the power to make and measure the levy of taxes, are so essential, all-inclusive, and vital that the consent of the governed ought to be obtained through representatives chosen at equal, free, and fair elections. If the principle of equality is denied, the spirit, purpose, and the very terms of the Constitution are emasculated. The failure to give a county or a district equal representation is not merely a matter of partisan strategy. It rises above any question of party, and reaches the very vitals of democracy itself." Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315, 321.
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 not 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. In re Sherill v. O'Brien, 188 N.Y. 185,81 N.E. 124, 117 Am. St. Rep. 841; Stiglitz v. Schardien, above; Giddings v. Blacker, 93 Mich. 1, 52 N.W. 944, 16 L.R.A. 402; 2 A.L.R. 1345. note. The Kentucky court, in Stiglitz v. Schardien, above, in a case where the inequality was not so great as in Oklahoma, used this language, which is pertinent here:
"The inequality is so glaring that it repels any presumption that the legislation constituted a fair approximation of what was required by the fundamental law. It represents an instance where fair-minded men can entertain no doubt that the inequality of representation is grave, unreasonable, and unnecessary."
The rule is that constitutional provisions are mandatory, unless it appears from their express terms or by necessary implication from the language used that they are intended to be directory only. 12 C. J. 740; 6 R. C. L. 55. The word "shall" is used throughout the constitutional provisions relating to legislative apportionment, and those provisions are mandatory, as are apportionment provisions generally. 11 Am. Jur. 688; Parker v. State, 133 Ind. 178, 32 N.E. 836, 18 L. R. A. 567. And the courts have not hesitated to strike down statutes in conflict with similar apportionment provisions. 18 Am. Jur. 194, 195.
Respondents do not seriously contend that the acts under consideration meet the constitutional requirements, but urge, rather, that petitioner may not maintain the action, and that we are without power to consider the questions presented or to grant the relief prayed. The importance of the questions, affecting as they do the fundamental rights of the people, requires that we pass upon the various contentions made, even though, as we shall point out, we can give no effective relief.
1. Respondents contend that the question presented is political rather than judicial in nature, and that the courts are without jurisdiction of such a case. They say that we have no jurisdiction under art. 5, sec. 10(j), of the Constitution, which provides 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," since the Legislature has not vitalized said provision by prescribing rules and regulations for such review. They also argue that the specific grant of power contained in said section, though not vitalized, must be deemed to exclude jurisdiction under any other theory or constitutional provision.
At the time our Constitution was *Page 560 framed, the New York Constitution contained a provision substantially the same as section 10(j), above. In the case of In re Sherill v. O'Brien, above, decided April 3, 1907, and before our Constitution was framed, the New York Court of Appeals had under consideration the effect of said constitutional provision, and it was held that despite the failure of the Legislature to prescribe rules and regulations for such review, the New York Supreme Court (a court of general original jurisdiction such as is our district court) had jurisdiction to pass upon the constitutionality of apportionment acts when its jurisdiction was properly invoked under the Code of Civil Procedure, and that the Court of Appeals (the court of last resort such as is this court) had jurisdiction to entertain an appeal in such a case. It was held in effect that the provision similar to article 5, sec. 10(j), of our Constitution does not withdraw from the courts jurisdiction to pass upon the constitutionality of apportionment acts until the Legislature does prescribe rules and regulations for review under the grant of power therein contained. One Justice was of the opinion that the provision is self-executing, but the majority opinion does not so hold.
By article 7, sec. 2, of our Constitution it is provided:
"The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law. The Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law, and to hear and determine the same."
Michigan and Wisconsin have similar constitutional provisions, and it is held in each state that under such provision the Supreme Court has original jurisdiction to review legislative apportionment acts and issue writs necessary to carry into effect judgments holding such acts unconstitutional. Giddings v. Blacker, above; State v. Cunningham, 81 Wis. 440, 51 N.W. 724, 15 L. R. A. 561; also, State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N.W. 35, 17 L. R. A. 145, 35 Am. St. Rep. 27.
Most of the courts, in passing upon the constitutionality of legislative apportionment acts, have based their jurisdiction upon the broad ground that it is always a proper function of the courts to pass upon the constitutionality of acts of the Legislature when their jurisdiction is properly invoked, and they have not thought it necessary to find express constitutional authority for such action. See People v. Board of Supervisors, 138 N.Y. 95, 33 N.E. 827; In re Sherill v. O'Brien, above; Parker v. State, above; Ragland v. Anderson,125 Ky. 141, 100 S.W. 865; Harmison v. Ballot Com'rs, 45 W. Va. 179, 31 S.E. 394, 42 L. R. A. 591; State ex rel. v. Wrightson,56 N.J.L. 126, 28 A. 56, 22 L. R. A. 548; Attorney General v. Suffolk County Apportionment Comm., 224 Mass. 598,113 N.E. 581; State ex rel. v. Hitchcock, 241 Mo. 433, 146 S.W. 40; 2 A. L. R. 1337, note. Most cases decided under this theory originated in the lower courts and were reviewed by the courts of last resort in the exercise of their appellate jurisdiction.
It might be well to point out that in 1938, the courts of 22 states had exercised the power, or had stated that they had the power, to review legislative apportionment acts upon constitutional grounds, and no court had denied that it possessed such power. Vol. 95, Annals of Am. Acad. Pol. Soc. Science, p. 11. See, also, 18 Am. Jur. 197; and 2 A. L. R. 1337, note. Since that time the Sup'reme Court of Ohio has likewise taken jurisdiction of such a case and compelled action. State ex rel. Herbert v. Bricker (1942) 139 Ohio, 499,41 N.E.2d 377. In most of the cases the relative difference between the most populous and least populous districts was not so great as that which exists in Oklahoma, as the following table of cases, holding apportionment acts unconstitutional, will illustrate: *Page 561
In re Sherill. v. Most Least
O'Brien, Populous Populous
188 N.Y. 185, District District
81 N.E. 124 246,187 97,717
Brooks v. State,
162 Ind. 568,
70 N.E. 980 17,775 10,787
Atty. Gen. v. Suffolk
Comm.
224 Mass. 598,
113 N.E. 581 6,182 1,957
Williams v. Sec. of
State,
145 Mich. 447,
108 N.W. 749 116,033 52,000
Rogers v. Morgan,
127 Neb. 456,
256 N.W. 1 21,181 8,094
State v. Cunningham,
83 Wis. 90,
53 N.W. 35 65,952 30,732
Stiglitz v. Schardein,
(Ky)
40 S.W.2d 315 128,595 39,210
We are of the opinion, and hold, that under article 7, sec. 2, above, we have jurisdiction of the present action. As has been well said of similar constitutional provisions, that section gives the Supreme Court original jurisdiction to issue the named writs to safeguard the "sovereignty of the state, its franchises or prerogatives or the liberties of its people." State v. Frear, 148 Wis. 456, 134 N.W. 673, L.R.A. 1915B, 569; 7 R. C. L. 1075; 14 Am. Jur. 457. And, as was impliedly held by the New York court in the Sherill v. O'Brien Case, above, article 5, sec. 10(j), above, was not intended to deprive the courts of jurisdiction to pass upon the constitutionality of apportionment acts under authority contained in other provisions of the Constitution. Having reached this conclusion, we find it unnecessary to decide the very doubtful questions as to whether the provisions of section 10(j), above, are self-executing.
2. Respondents next argue that petitioner may not maintain this action because he shows no injury to himself. The gist of the argument is that if all apportionment acts since statehood were invalidated and the original apportionment made by the Constitution held to be in effect, petitioner, as a citizen of Tulsa county, would still have no more representation than now. But a citizen has more than the mere right to have his own county or district fully represented in the Legislature. Discrimination may result from giving other counties too much representation as well as from giving a particular county insufficient representation. Each citizen has a right to have the state apportioned in accordance with the provisions of the Constitution, and to be governed by a Legislature which fairly represents the whole body of the electorate, elected as required by the provision of the Constitution. Stiglitz v. Schardein, above; State v. Wrightson, above.
3. Having decided that the question is one within our jurisdiction, and that the challenged statutes do not comply with the requirements of the Constitution, the next question for determination is whether any relief should be granted.
It may be well to first point out the things that we may not do. We may not make the reapportionment ourselves, since that duty is legislative in nature, and is, by article 5, secs. 9 and 10 of the Constitution, vested in the Legislature. Such is the holding of the courts of the other states under constitutional provisions similar to ours. Parker v. State, above; Burns v. Flynn, 281 N.Y.S. 495, aff. 281 N.Y.S. 497;245 A.D. 799, aff. 268 N.Y. 601, 198 N.E. 424; Williams v. Secretary of State, 145 Mich. 447, 108 N.W. 749. Assuming that section 10(j), above, is self-executing, it does not follow that this court would have authority to revise and change the districts as fixed by the Legislature and as urged by the petitioner. While in some instances the words "review" and "revise" are used synonymously, we do not believe the framers of the Constitution so used the *Page 562 word "review" in said provision. This court should not assume such authority, which is generally considered a legislative function, except where the language used in plain and compelling. It should not do so by a process of construction of language of doubtful meaning. Neither may we, by mandamus or otherwise, require the Legislature to enact proper apportionment statutes. The theory of separation of the powers of government prevents our doing so. The Legislature, being a co-ordinate branch of the government, may not be compelled by the courts to perform a legislative duty, even though the performance of that duty be required by the Constitution. 18 R. C. L. 186; Fergus v. Marks et al., 321 Ill. 510, 152 N.E. 557, 46 A. L. R. 960; Parker v. State, above. And finally we may not try title to legislative offices or enjoin the payment of legislative salaries. Fergus v. Kinney, 333 Ill. 437,164 N.E. 665; In re Sherill v. O'Brien, above.
This problem, created by lack of power on the part of the courts to affirmatively enforce constitutional provisions relating to apportionment, has not been confined to Oklahoma alone. Overrepresentation of the less populous areas has been the rule, rather than the exception, among the other states of the Union. And that Legislatures have been traditionally slow to enact apportionment statutes meeting the requirements of State Constitutions is evidenced by the great number of reported cases on the subject. See 2 A. L. R. 1337, note. The overrepresented counties and districts simply do not relinquish the advantage they possess. They fight to retain it. To overcome this legislative inaction and secure a just apportionment, different states have used or adopted different means. Colorado and Washington have used the initiative and referendum to enact proper statutes. Other states have solved the problem by the adoption of special constitutional provisions. Thus the Constitutions of California and South Dakota now provide that in the event the Legislature fails to act within a certain time, apportionment shall be made by a board composed of certain state officials. In Ohio, a special board, and in Maryland, the Governor, apportion representation after each census, but they have no power to alter districts. In Ohio this board may be required by mandamus to make a correct apportionment. State v. Bricker, above. A recent constitutional amendment, adopted by the people of Arkansas, provides that a board composed of the Governor, the Secretary of State, and the Attorney General shall reapportion the state after each decennial federal census, and that the Supreme Court shall have power to compel the board to act, as well as torevise any action taken by the board not in accordance with the Constitution.
But the people of Oklahoma have adopted no constitutional provisions like those found in California, South Dakota, Ohio, Maryland, and Arkansas, and our power to pass upon the constitutionality of apportionment acts does not include the power to revise or correct them. If, however, such acts are found to be in conflict with the Constitution, we may, where justice requires it, declare them to be invalid and enforce our decree by proper writs running to election officials. State v. Cunningham, above; 16 C.J.S. 438; 18 Am. Jur. 197.
But, though it may be conceded that we have the power to declare all apportionment statutes enacted since statehood void and to require the next election to be held under the apportionment made by the Constitution, it does not follow that we should do so. The result of such action would be to increase the inequality of representation already existing. For example, Logan county with a population of but 25,245 would have three members of the House of Representatives and one Senator, while Oklahoma county with a population of 244,159 would have but four members of the House of Representatives and one resident Senator. And Tulsa county with a population of 193,363 would have but one member of the *Page 563 House of Representatives, would share another member with Creek county, and would share its one Senator with Washington county. Seven of the eight counties having a population of less than half a ratio, and not now entitled to a representative, would each have a representative, while Harmon and Cotton counties, which were not created until after the adoption of the Constitution, would be without representation in either house. Other instances could be given showing that the discrimination in favor of the counties with small populations and against those with large populations would only be aggravated by adjudging all the apportionment acts void and requiring Senators and Representatives to be elected under the apportionment made by the Constitution.
In such cases the courts are divided upon the question of whether the relief prayed for should be granted. Under one view the courts will direct the election to be held under the last valid law, regardless of consequences (Williams v. Secy. of State, 145 Mich. 447, 108 N.W. 749), while under another view the courts will decline to interfere. State ex rel. v. Schnitger, 16 Wyo. 479, 95 P. 698; 18 Am. Jur. 198. In Wyoming, as in Oklahoma, the apportionment was made by the Constitution, and the subsequent apportionment acts did not comply with the constitutional requirements. The constitutional apportionment was intended to be only temporary. New counties had been created since the adoption of the Constitution, and such counties would have been without representation if elections had been held in accordance with the constitutional apportionment. Under such circumstances the Wyoming court, in the cited case, refused to compel elections to be held under the constitutional apportionment. The case is in point here, and we think the reasoning sound. The writ of mandamus is a writ of discretion, not one of right, and will not be granted where more harm than good will result from its issuance. 34 Am. Jur. 830; Strother v. Bolen, 72 Okla. 310, 181 P. 299. We must deal with the problem realistically, and should refuse to exercise the powers given us when to do so would merely increase the wrongs sought to be prevented. We decline to further diminish the representation of an already under-represented group or to increase that of an already overrepresented group, under the guise of affording relief.
Nor should we take such action in an effort to indirectly coerce the Legislature into enacting a proper apportionment statute. The legislative, the executive, and the judicial departments are equal and co-ordinate branches of our government, and none of them may arrogate to itself control over either of the others. Fergus v. Kinney, 333 Ill. 437,164 N.E. 665.
This is apparently the first time any citizen has seen fit to challenge, in this court, the apportionments as made by the laws enacted since statehood, and, in view of the foregoing discussion, we assume that, since we have pointed out the defects in the present laws, the next Legislature will enact a new and proper apportionment statute. Furthermore, the people may initiate such a bill (Const. art. 5, sec. 2; Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757), or they may follow the example of other states above mentioned, and amend the Constitution to take the power of apportionment from the Legislature and vest it in a special officer or board representative of the state as a whole.
4. In the event a new apportionment act is passed, either by the Legislature or by the people, we think it well to point out that the following principles, expressed or implied in the Constitution, must be observed:
(a) While the primary duty of apportioning the state rests upon the first Legislature elected after each decennial federal census, the duty is a continuing one, and if the first Legislature fails to enact a valid law, the duty devolves upon each succeeding Legislature until it is performed. 18 Am. Jur. 190; Fergus v. Kenney, above; People v. Rice, 135 N.Y. 473, 31 N.E. 921, 16 L. R. A. 836; *Page 564 State v. Weatherill, 125 Minn. 336, 147 N.W. 105; Botti v. McGovern, 97 N.J.L. 353, 118 A. 107; In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295.
(b) Once a valid law is enacted no further act may be passed by the Legislature until after the next federal decennial census. Const. art. 5, secs. 9(a), 10(b), 10(c); Harmison v. Ballot Com'rs, above; 18 Am. Jur. 190, and cases there cited.
(c) Counties containing less than one-half of a ratio of population may not be made whole representative districts, butmust be attached to other counties. Const. art. 5, sec. 10(g).
(d) Under the privisions of article 5, sec. 9(a), the state must be divided into at least 44 senatorial districts, each of which shall elect one Senator. The Senate may consist of more than 44 members only to the extent that single counties are entitled to more than two Senators. For example, if a reapportionment were made at the present time, Tulsa county would be entitled to three Senators and Oklahoma county would be entitled to four Senators. The Senate would thus consist of 47 members. At least two senatorial districts should be created in each of Oklahoma and Tulsa counties. The 75 remaining counties should be divided into 40 districts, each electing one Senator. Upon the question of whether the two additional Senators from Oklahoma county and the one additional Senator from Tulsa county must come from separate districts or may be elected from other districts or at large by the voters of the counties, the Constitution is not clear. Either method would be permissible, so long as substantial equality prevails.
(e) We find nothing in the Constitution requiring apportionment of both senatorial and representative districts to be effected by a single act, as argued by petitioner.
Lest anything we have said be construed to cast doubt upon the validity of acts heretofore passed by the Legislature, we point out that, under the provisions of article 5, sec. 30, of, the Constitution, each house is the sole judge of the "election, returns, and qualifications of its own members," and the members actually chosen, when received by the members of either house, become de jure as well as de facto members of that body, even though elected under invalid apportionment acts. State v. Schnitger, above; In re Sherill v. O'Brien, above. It follows that no act of the Legislature may be challenged on such account.
In view of our decision we need not pass upon the other questions presented.
The application for the writ of mandamus and other relief is denied.
CORN, C. J., GIBSON, V. C. J., and OSBORN and DAVISON, JJ., concur. WELCH and BAYLESS, JJ., concur in conclusion. RILEY and ARNOLD, JJ., concur in part and dissent in part.