State ex rel. Sullivan v. Schnitger | Cases | Westlaw

I concur in the conclusion and the grounds thereof stated in the opinion delivered by Justice Scott as the opinion of the court, and I would ordinarily be content with the simple announcement of my concurrence. But owing to the unusual importance of the case itself, the questions involved, and the grave duty cast upon the court in their determination, as well as the peculiar situation disclosed by existing conditions, if the claims of the relators be correct as to the validity of the legislative enactments called in question, I desire in a separate opinion to set forth the reasons which in my opinion irresistibly lead to the conclusion and disposition of the case announced in the principal opinion. This I do, not alone of my own inclination, but following also the desire of my associates. I do not expect or hope to add materially to the main opinion, and much that I shall say will be but a repetition of that already said, though perhaps differently expressed.

The relators have brought this case, seeking a certain remedy for the enforcement of alleged rights of themselves and others in a like situation as citizens and electors of the state, which rights are alleged to have been interfered with through the enactment of an invalid law by the legislative department of the state government. The only power and jurisdiction that this court would have to pass upon the questions involved in the inquiry whether there has been an infringement of the rights of relators or other citizens and electors by the acts aforesaid must depend upon the power of the court to afford the remedy sought, or at least some fairly adequate remedy, if the allegations of the petition as to the violation of such rights be true in fact and law. The court does not sit, nor is it empowered, to determine purely abstract questions of law in any case unconnected with the enforcement of legal or equitable rights, and, if there is any distinction depending upon the character of the case, the court should be peculiarly careful to ascertain that the question is actually presented, and that a decision thereon is necessary before considering the constitutionality of a statute, or at least before adjudging its invalidity, and especially is that true when the statute assailed affects the composition of the Legislature itself. I do not doubt as a general rule the power and duty of the court in a proper case to pass upon the constitutionality of a legislative act, and to adjudge it to be invalid if found to conflict with constitutional provisions, nor, when that question is necessarily involved in the disposition of a pending case properly instituted, to determine whether an act apportioning legislative representation is violative of constitutional requirements, and to declare the same void if found to conflict with such requirements. But the decision should be necessary to a just determination of the case. Judge Cooley, in his work on Constitutional Limitations, stated the principle as follows: “Neither will a court as a general rule pass upon a constitutional question and decide a statute to be invalid, unless a decision upon that point becomes necessary to the determination of the cause. *** In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.” Cooley's Const. Lim. (3d Ed.) 163. Another rule of controlling importance in considering the validity of a statute is that all reasonable doubts must be solved in favor of the legislative act. Such a question is to be approached by the judiciary with great caution and examined in every possible aspect, and a statute should not be declared void unless its invalidity is beyond reasonable doubt. Id. 182. With these principles in mind, I propose briefly to examine the allegations and contentions of the parties to ascertain where they lead.

First, it is alleged and contended that the apportionment act of 1901 prescribed a ratio for the apportionment of senators and representatives respectively, and that the act of 1907 is void for the reason that the apportionment therein made was not based upon the ratio so established. In other words, the position of the relators is that, as ratios were not expressly prescribed in the act of 1907, the ratios of 1901 continue in force and are controlling upon the question of apportionment until new ratios are prescribed. While it is contended generally that the act of 1907 is void on the ground that the senators and representatives are not thereby apportioned *710 among the counties as nearly as may be according to the number of inhabitants, the particular theory of the petition is that the ratios of 1901 controlled and were not followed. It is true that the act of 1907 does not expressly prescribe or fix ratios, but it does apportion the senators and representatives among the counties, and in a separate section it declares that “all laws or parts of laws inconsistent with the provisions of this act are hereby repealed.” Now, conceding that the apportionment made by the act of 1907 does not follow the ratios of 1901, the act of 1901 in prescribing ratios is then inconsistent with the provisions of the act of 1907. It was clearly within the power of the Legislature to repeal the former act, and when it made an apportionment and repealed all inconsistent provisions of other acts it necessarily repealed the inconsistent ratio provisions of the act of 1901. It is clearly more reasonable and logical to so hold than to say that the later act is invalid because inconsistent with the former one. Of course the repeal would not result if the apportionment in the act of 1907 is void upon other grounds, because, if the apportionment part of the act should be declared void, the ratios prescribed by the act of 1901 would not be inconsistent with any of its provisions.

But there is still another and sufficient answer to the claim that the ratios of the act of 1901 controls until other ratios are fixed. The constitutional provision for ratios is found in the section requiring the Legislature in 1895, and every tenth year thereafter, to provide by law for an enumeration of the inhabitants of the state, and it is directed therein that at the session next following such enumeration, and also at the session next following an enumeration made by authority of the United States, the Legislature shall “revise and adjust the apportionment for senators and representatives on a basis of such enumeration according to ratios to be fixed by law.” The words “such enumeration” in the latter part of the section clearly refers to the last preceding enumeration. It is a publicly known fact and conceded in the petition that the Legislature did provide for an enumeration in 1905, and that such enumeration was made. Upon that enumeration, therefore, it became the duty of the Legislature in 1907 to revise and adjust the apportionment, as well as according to ratios to be fixed by law. Now the act of 1901 does not prescribe ratios according to the number of inhabitants generally, but the provisions of that act in that particular are that the ratios fixed for senators and representatives, respectively, shall be based upon the enumeration of inhabitants made in 1900 by authority of the United States. Sections 3 and 4 of the act are similar in this respect, the one providing a ratio for senators, and the other for representatives. It will be sufficient, therefore, to quote from section 3. It reads: “Each organized county shall have one senator for every six thousand inhabitants and one senator for every fraction over 3,500 inhabitants, in such county as shown by the enumeration of such inhabitants made by the authority of the United States, in the year one thousand and nine hundred.” Laws 1901, p. 98, c. 91. What can be clearer than that this ratio so fixed and qualified would not control, and indeed could not control, in an apportionment made subsequent to the state enumeration of 1905, without violating the constitutional requirement that after the later enumeration it should constitute the basis for a revision and adjustment of the apportionment?

Again, the act of 1901 did not fix ratios for all the senators and representatives, but only for those in addition to the one senator and representative respectively allotted to each county. It is true that under the Constitution each county is entitled to at least one representative in each legislative body. That, however, does not mean that the ratios, shall not be fixed for all, but only that whatever the ratio each county shall have at least one senator and one representative. Nor does it mean that the ratio is necessarily the number of inhabitants in the county having the smallest population, for that would arbitrarily determine the number in each body, and would prevent keeping up the relative size of the two bodies as required by the Constitution; and, moreover, the Legislature is authorized to determine the number to compose the senate and house, respectively, restricted only by the constitutional provisions as to the right of each county to be represented as above stated, that the apportionment shall be based upon the enumeration of the inhabitants as aforesaid according to ratios fixed by law, and that the senators and representatives shall be divided among the counties as nearly as may be according to the number of their inhabitants. As I understand these provisions, they require that an apportionment shall be made by dividing the senators and representatives among the counties according to the number of their inhabitants, as nearly as may be on a basis of the last preceding enumeration made as provided by law, according to ratios to be fixed by law, provided that each county shall have at least one senator and one representative, even though the number of its inhabitants may be less than the prescribed ratios. It will be observed that contrary to the rule prescribed in many states the senatorial and representative districts are fixed by our Constitution, each county constituting such a district. It would seem, therefore, that to prescribe a ratio for the excess only over the minimum allowed to each county might be held to depart from the letter as well as the spirit of the Constitution.

There is a further answer that might be made to the claim that the ratios fixed by the act of 1901 are controlling until other ratios shall be expressly prescribed. In the *711 section of that act fixing a ratio for apportioning members of the House of Representatives it is provided that no county shall have a less representation, either in the senate or house, than is allowed to such county in the Legislature of 1901 which passed the act. The ratio as to representatives was therefore again qualified, and, if controlling at all, it carries the proviso with it, which might result, as it apparently did in that act, according to the averments of the petition, in awarding to a county a greater number of representatives than it would be otherwise entitled to upon the ratio without such qualification. And it might result, in case of a decrease in population either through a division of counties or otherwise, in a direct violation of the constitutional provisions relied on here to invalidate the act of 1907. At any rate it seems to make a special ratio as to certain counties, or to exempt them from the ratio altogether.

For either of the reasons above mentioned I think it may well be doubted whether the basis of the particular objections set out in the petition against the act of 1907 has any support upon a proper construction of the Constitution and statutes.

However it is contended that the Constitution not only requires that an apportionment shall be actually made according to ratios, but that such ratios shall be fixed by law. With that view I am inclined to agree. The Constitution seems to contemplate that the basis of the apportionment shall not be left to conjecture, nor for ascertainment upon independent computation. But it must be remembered that the purpose of the provision in connection with others upon the same subject is to secure a fair and equitable apportionment according to the number of inhabitants of the respective counties. Upon a mere technical objection that ratios were not expressed by law, without it appearing that in fact an apportionment was not based upon ratios that were fair and reasonable, and that such apportionment was unfair or inequitable, or not made according to the number of inhabitants as nearly as may be, there would, in my opinion, be strong reason for hesitation on the part of the court to declare an act void.

It is here claimed by the Attorney General, in defense of the act, that ratios were employed, and that they are to be discovered as to both bodies by dividing the number of inhabitants of the state by the number of members provided for each body respectively. Such a division produces a quotient or ratio for the senate of 3,771, and 1,818 for the house. Upon the basis of the quotient so found there would appear to be only slight inequalities, and such as might perhaps be expected in any apportionment act, except in the following instances: After allowing Crook county two representatives, it would have a fraction over of only 201, but it was given three. After allowing Weston county two representatives, there would be no fraction remaining, but it would lack 32 of having the full number for two. It was given three. Uinta was given 7 representatives. It had, in addition to enough to entitle it to that number, a major fraction of 1,766, or within 52 of the number so found as a ratio for apportioning representatives. No other county had a major fraction, that is to say, more than one–half the number required for a representative, after receiving the number of representatives allotted to it. But though Crook county was given a third representative, having a fraction of only 201 in addition to the number required for two, Natrona county, with a fraction over of 624, was given but one representative, Sheridan, with 875 more than enough to entitle it to 5 representatives, was given only 5, Albany county, with 902 in excess of the number entitling it to 5, was given only 5, and Converse was given only 2, although it had 532 more than the number required for 2. None of the counties except Uinta, however, had a large enough fraction over the number required for the representation given it which would seem to afford reasonable ground of complaint that it had not received its full quota; that is, none except Uinta was left with a major fraction unrepresented, if we may assume that the ratios aforesaid were in fact adopted or employed. But, on the other hand, the particular counties above mentioned might perhaps find cause to complain that Weston county was given a third representative in the absence of any number of inhabitants in excess of that required for two, and that Crook was given a third representative upon a smaller fraction than several other counties had, and that therefore those counties are given greater representation in proportion than other counties. The complaint, therefore, would be not that any county, except Uinta, is discriminated against by not apportioning to it all that it was entitled to, but that the discrimination consists in allowing at least one county, and perhaps two, a larger representation than it or they would be entitled to under any ratio based upon population. Adopting the ratio above suggested, the Attorney General contends that the words “as nearly as may be” vest in the Legislature a reasonable discretion not subject to control by the courts; that in considering the legislative action some regard must be given to the difficulties necessarily encountered in the passage of an act, and especially one of this nature where sectional jealousies and differences are bound to be displayed; and that nothing but gross inequalities, or a plain departure from the constitutional principle, will justify the court in adjudging an apportionment act void.

The relators not only assail the act of 1907, but they allege and contend that the two previous acts–those of 1901 and 1893–are each void, upon the ground that the ratios established thereby respectively were not followed *712 in making the apportionment. The Attorney General concedes the invalidity of said former acts, but upon different grounds. He maintains that each act establishes ratios in an unconstitutional manner, viz., by applying them to some of the members of each body only; and he also contends, as I understand, that the inequalities of the apportionment made by each of said acts are greater than those appearing in the act of 1907. By the admission of the relators, therefore, as well as that of counsel for respondent, if the act of 1907 is invalid, the acts of 1901 and 1893 are likewise invalid, and if the act of 1907 is to be held unconstitutional, both of the preceding acts must also fall. This would leave as the only apportionment the one made in the Constitution itself, under which the elections for senators and representatives were held prior to the session of 1893, and it is under that apportionment that the relators ask this court to direct the notices for the election this year of senators and representatives to be given. That is the only remedy sought by the relators in this proceeding, and the only one they would be entitled to, if their claims as to the various apportionment acts should be upheld. This case is brought in this court as an original proceeding under its jurisdiction in mandamus as to state officers. The duty sought to be controlled is the requirement of section 206, Rev. St. 1899, that in an election year, within the period therein stated, the Secretary of State shall make out and cause to be delivered to the board of county commissioners of each county a notice in writing stating what officers other than county and precinct officers are to be elected and voted for in the several counties.

I do not doubt that the question as to the constitutionality of the act of 1907 and possibly the two previous acts is presented in this case, and I suppose the court would have jurisdiction to determine that question in the first instance before going to any other question in the case. But there is another question that would demand consideration in the event that the apportionment acts should be decided to be unconstitutional, and upon its determination the right to the remedy sought would ultimately depend. Should we enter upon a full consideration of the constitutionality of the act of 1907 and adjudge it to be invalid, and then upon a consideration of the further question, viz., the right to have the notices for the election given under the apportionment in the Constitution, should decide, as we would be compelled to do, that the right does not exist on the ground that such apportionment is totally inapplicable under present conditions, at least so far as the power of the court to enforce it is concerned, the court would find itself in the position of having for no purpose whatever adjudged a legislative act void. While, therefore, the court might take upon itself the responsibility of deciding upon the validity of the act without first considering the other question, I doubt very seriously the propriety of doing so, and hold to the opinion that it is incumbent upon the court in the first place to ascertain whether the remedy herein sought is one that can or ought to be granted in any event. That seems to me as well as the other members of the court the most logical course in view of the character of the questions involved. I am aware that there are cases holding to the contrary view. Parker v. State ex rel., 133. Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567; People v. Thompson, 155 Ill. 451, 40 N. E. 307. I think that those cases are distinguishable from the one at bar owing to difference in the circumstances. In those cases it would have been necessary to examine and pass upon the constitutionality of a former act as determined by practically the same objections urged against the later, and I do not understand that the enforcement of such former act would leave various sections of the state totally unrepresented in one or other of the two legislative bodies, or that its enforcement, if validly enacted, would interfere with constitutional provisions . In the Indiana case, however, there was a vigorous dissenting opinion by Judge Elliott upon the precedence of the questions, in which he gave several excellent reasons for first considering the right to the remedy in any event. Among other reasons he mentioned the following: “Courts will not send against a public officer the extraordinary writ of injunction or of mandamus, unless the complainant makes it appear that the writ will be effective in the particular case in which it is demanded”–and: “The inexorable rule is that constitutional questions will never be decided unless their decision is indispensably necessary to a final disposition of the case actually before the court.” Upon appeal in a case of a similar nature the New York Court of Appeals decided the question of the validity of an apportionment act, and held it to be unconstitutional, although it made no order in the case, for the reason that the election had occurred under the act; but it was held by the court that the decision would not affect the official rights of the members elected, nor the acts of the Legislature, the members whereof had been elected under the void act. In re Sherrill, 188 N. Y. 185, 81 N. E. 124, 117 Am. St. Rep. 841.

We conceive that the situation here is greatly different from that apparently presented in other cited cases involving the validity of apportionment acts. But, even if our conclusion in this respect would seem not to accord with the decisions by some other courts, we maintain upon principles well settled and universally recognized that under a situation such as is here presented it is eminently more logical and reasonable to inquire in the first place whether the remedy proposed through the intervention of the court is one within its power to grant without *713 compelling a deviation from constitutional mandates. It is therefore in order, before proceeding further with the discussion of the apportionment acts, to take up the apportionment embodied in the Constitution, together with other provisions therein contained, and review the situation now presented in connection therewith. It may be said here that it is not denied by counsel that as each house is the sole and exclusive judge of the qualifications of its own members, and as the terms of office of the members of the Legislature that convened in 1907 have not expired, and will in no case expire until January next, that Legislature was a de facto Legislature, and its members are de facto members thereof, and that its acts if otherwise valid cannot be assailed on the ground of the invalidity of any apportionment act under which the members were elected. It is indeed asserted by counsel for relators, and in that we agree with him, that the same Legislature, if called in special session for that purpose, would have the power to pass a valid apportionment act if the one now assailed should be held to be invalid. That is simply a concession to a well–settled principle applicable to the acts of public officers generally, as well as the lack of power of the court by any order in this or any other proceeding to debar a member elected to either branch of the Legislature from a seat in the body to which he may have been elected and admitted. It may be here stated that, had there been no subsequent legislation of any character upon the subject, the apportionment section of the Constitution would have remained the only apportionment law for this state. That was declared to be effective until otherwise provided by law. The general statement that it would constitute the apportionment until otherwise provided by law shows that it was intended to have only a temporary existence or effect. Indeed, in another section it is stated that the senate and house first elected under the Constitution shall consist of 16 and 33 members, respectively, the members that were actually apportioned. In the absence of any action by the Legislature pursuant to constitutional provisions affecting the question of apportionment, the various sections of the state would have remained represented in the Legislature as apportioned in the Constitution, and very little difficulty or cause of complaint would have arisen, except that new communities might be unfairly represented; but there would not then have existed any legal ground of complaint, nor the condition of affairs that now confronts us. But the Legislature did act and did assume to enact apportionment laws, the first in 1893, under which the members of the Legislature of 1895, 1897, 1899, and 1901, respectively, were severally elected. In 1901 the second act was passed, under which the members of the Legislature, respectively, of 1903, 1905, and 1907 were elected. Except for the first state Legislature, and by the apportionment therein made “until otherwise provided by law,” the Constitution does not prescribe the number of members for either the Senate or House of Representatives. The Legislature is not restricted in that respect otherwise than as to the size of the two bodies in relation to each other. In each apportionment act the number of members in each body was increased, the constitutional proportion between them, however, being maintained.

It is to be remembered that the Constitution was framed by a convention held in September, 1889, while Wyoming was yet a territory, in anticipation of favorable action by Congress upon a bill or proposed bill for its admission as a state. When the bill would be considered or passed could not be known. This is not only evident from the nature of the question, but it was recognized by the convention, and provisions were inserted in the schedule to cover contingencies depending upon the date of statehood. See sections 21, 22, art. 21, entitled “Schedule.” These provisions had reference to the assembling of the Legislature and the general election. The people of the territory voted upon and adopted the Constitution at an election held in November, 1889. The act of admission was approved July 10, 1890, and thereupon the Constitution became effective. The first state election was held in September of the same year, and the first Legislature of the new state convened in November, and remained in session until the latter part of January, 1891. Between the time of framing and adopting the Constitution as aforesaid and its taking effect (here using the term “adopted” as referring to the vote of the people thereon) two new counties were organized, Natrona, which had been created from the northern part of Carbon in 1888, and Weston, created from the southern part of Crook, by the Legislature of the territory that assembled in January, 1890. The Constitution provided (article 12, § 1) that “the several counties in the territory of Wyoming as they shall exist at the time of the admission of said territory as a state, are hereby declared to be the counties of the state of Wyoming.” Under that provision it cannot be doubted that Natrona and Weston counties, having been created and organized prior to the state's admission, became upon such admission counties of the state. Big Horn county had been created in 1888, but was not organized until after statehood. But it was held by this court that when the state was admitted said county was a created but unorganized county of the state, and that its organization, though not its creation, was controlled by the restrictive provisions of section 2, art. 12. Board, etc., v. Perkins et al., 5 Wyo. 166, 38 Pac. 915. Neither of these new counties were mentioned in the apportionment of senators and representatives provided in the Constitution; and hence, had there been no subsequent enactment of an apportionment law by any Legislature of the *714 state, the territory in such counties would no doubt have remained attached to the counties from which they were respectively taken for the purpose of participation in the election of members of the Legislature, for, although each county is expressly constituted a separate senatorial and representative district by the Constitution itself, that provision would necessarily be read in connection with the section making a specific apportionment, which, for that purpose, mentioned the counties as they existed when the Constitution was framed. To prevent the nonrepresentation of the territory and people included in the newly organized counties, they would necessarily be regarded as part of the original counties respectively for the purposes of legislative elections and representation. And that course was in fact followed in the election of the first Legislature that convened in November, 1890, and the second that convened in January, 1893.

By the apportionment act of 1893 Natrona and Weston counties were each awarded one senator and one representative, and it was provided that Big Horn county, when organized, should have one senator and one representative. Omitting Big Horn county, the senate and house were by that apportionment to be composed of 18 and 37 members, respectively, and with said county the relative membership was to be 19 and 38; thus preserving the constitutional proportion with or without that county. In electing senators at the election preceding the session of 1893 it happened that a senator elected for four years from. Carbon county resided in that part of its original territory which had become come county of Natrona. By a provision of the act of 1893 applicable generally to every case of that kind he was to represent, during the remainder of his term, the county wherein he resided, viz., Natrona. In the Legislature of 1895, and each succeeding Legislature, Natrona and Weston counties were each separately represented by a senator as well as representatives, and commencing with the session of 1897 Big Horn county has been separately represented in each body. Each senator from said counties was elected for the term of four years, the term of office fixed by the Constitution. There having been no apportionment act passed between 1893 and 1901, the number of members elected after the organization of Big Horn county, and until and including the session of 1901, continued at 19 and 38, respectively. At the session of 1895 the senate was composed of 18 members, of whom 9, or one–half the number, had been elected at the last preceding election for the term of four years, so that the two classes at that session were equally divided. At the session of 1897 there were 10 senators who were to hold office for four years from that time, having been elected at the fall election in 1896, as against 9 whose terms would expire in two years, the latter having been elected at the election held in 1894; and therefore at the next succeeding session there were 9 newly elected members to serve for four years as against 10 in the other class whose terms were to expire before the next following biennial session. This proportion was of course maintained at the session of 1901, the numbers being again reversed, the four–year class containing 10 members. The apportionment act of 1901 provided for a senate of 23 and a house of 50 members, giving each of the new counties separate representation. This increase in the senate resulted in the election of 13 new senators at the election in 1902, so that the two classes of senators were represented at the sessions of 1903, 1905, and 1907 by 13 and 10, respectively, which was as nearly equal as they could be made, considering the increase in the number of senators and the term of office of those to be newly elected as provided in the Constitution. The last act, and the one here particularly complained of, that enacted in 1907, provided for 27 senators and 56 representatives. At the session of 1907, 13 new senators were admitted who had been elected in November, 1906, for four years, making it necessary under the act aforesaid, if it shall stand, for the election of 14 senators at the election this year; and thus the relative number in the two classes will be maintained as contemplated by the Constitution. The present bold–over senators, that is, those who will be entitled to seats as senators at the regular session to be held in January, 1909, by virtue of their election in 1906 for four years from January, 1907, were elected in the numbers stated from the following named counties: Two from each of the counties of Albany. Carbon, Laramie, and Uinta; and one from each of the counties of Crook, Johnson, Sheridan, Sweetwater, and Weston. In order to give to the respective counties named in the apportionment found in the Constitution the number of senators awarded them thereby, without interfering with the hold–over senators above mentioned, it would require an election of a senator in each of the following counties, viz., Converse, Fremont, Laramie, and Sweetwater, or a total of four, which, when added to the number of hold–overs, makes 17, or one more than the number of senators provided for by the apportionment in the Constitution.

We are therefore confronted with this situation: That, should the Secretary of State be commanded to call an election under said apportionment, it would be necessary for him to determine the counties wherein an election for a senator or senators should be held, unless indeed this court would be authorized to make such a determination and embody the same in the writ. But whether that duty would devolve upon the Secretary or the court, it would be necessary to either disregard the senators already elected, and call for an election of an entirely new body of senators, or arbitrarily disregard the right of one or more of them to the office to which *715 they have been elected and admitted, or, in order to keep the number at 16, to arbitrarily ignore one of the four counties entitled to a senator to make up its representation as fixed in said apportionment. Should the senators already elected and seated not be disregarded, and we know of no authority on the part of the court or the Secretary to disregard them, then there would be 13 senators in one class, and not more than 4 in the other. And at any subsequent election new senators would necessarily be elected for the constitutional term of four years. It is therefore apparent, using former acts as an illustration, that, should the senate under a new apportionment be composed of 23 as heretofore, or 27 as provided by the act of 1907, the newly elected senators would number 19 or 23, while the remaining class would consist of 4 only, and this inequality would continue to exist, whatever the number of senators, unless reduced to a very small number, thus defeating the very obvious purpose of that provision of the Constitution dividing the senators into two classes. Again, a great reduction in the number of senators would require a corresponding though less reduction in the number of representatives, since the latter are in no case permitted to exceed three times the number of senators. Moreover, if 17 members are to compose the senate, that will be more than one–half the number of representatives, a condition forbidden by the Constitution in the most positive language; and, as neither the court nor the respondent could add to the number of representatives, it would be imperative that there be not more than 16 senators, so that it would be necessary to either deprive some county of its representation prescribed in the apportionment of the Constitution, or some elected senator of his office. If it should be said that the senator elected from Weston county might be disregarded, the fact would be pertinent that he was elected from a part of the territory embraced in the Crook county district under the apportionment sought to be applied, and it is a matter of public state history that the first senator from that district resided in the territory that is now Weston county. While the present senator from that county was elected by the votes of only a portion of the inhabitants of the original district known as Crook county, the same thing is true of the present senator from Crook county; and the territory covered by that district as established by the apportionment in the Constitution has now two elected senators, whereas it was given but one by that apportionment. The incompetency of the court to enter an order that would effectively deprive any hold–over senator of his office is recognized by all the authorities, and the principle is so well settled as to require no citation of cases. But I may refer to a late case in Pennsylvania where a relator in quo warranto, claiming to have been elected a senator, questioned the constitutionality of an apportionment act. The court refused to decide the question on the ground that the relator had no such interest as gave him a standing to maintain the writ, and it was said: “Even a judgment of ouster against the respondent would not give the office to the relator, for his own qualifications and the regularity and validity of his election would still be subject to the investigation and judgment of the Senate, which is the ultimate and supreme tribunal on these matters.” Commonwealth v. Crow, 218 Pa. 234, 67 Atl. 355.

The above statement of the present condition shows, not alone the confusion and difficulties that would attend any attempt at this time to go back to the apportionment of the Constitution, but to do so would deviate from mandatory constitutional provisions. It is evident that this court cannot in this case or any other either make an apportionment or unseat any senator already elected and admitted to that office, nor can we require the respondent, as Secretary of State, to do so, notwithstanding that the hold–over senators may have been elected under an unconstitutional act. I wish also to state that the acts of 1893 and 1901 have not heretofore been questioned, at least in any judicial proceeding, until the institution of this case; but they have been acquiesced in by the people as well as the Legislature. That fact does not of course render them valid, if in fact or law not so; but it does show that the people have elected their senators from time to time as therein respectively provided, and that the persons so elected have been admitted to the senate as members thereof by the only body authorized by the Constitution to ultimately determine their qualifications as senators. But it will be said that the court has no concern with the difficulties or confusion that might flow from the remedy sought in the case in determining the right to that remedy. Conceding that to be so as a general proposition, the court is concerned in this case with those matters, for they grow out of constitutional provisions equally as important and mandatory, if not more so, than those relied upon by the relators, and by which provisions the court as well as the Legislature and the parties are as much bound. In Kentucky it was said by the Court of Appeals in a recent case, with regard to an apportionment act that bad been in effect more than 13 years: “The act of 1893 has gone into effect, and the government has been organized under it. To hold it void would be to throw the government into chaos; and this no court is required to do.” Adams v. Bosworth (Ky.) 102 S. W. 861, 10 L. R. A. (N. S.) 1184.

It would be an anomaly to say that a provision of the Constitution is itself unconstitutional or invalid as conflicting with another provision of the same instrument. We are not here saying that the apportionment made in and by the Constitution “until otherwise provided by law” is unconstitutional or invalid for any reason. Such a position is far from our decision. But it is to be read and *716 construed in connection with other cognate provisions. When that is done, if it is found impossible of enforcement, and at the same time maintain inviolate the permanent and mandatory provisions which admit of no alteration by the court or Legislature, then it is our duty to refuse to enforce it. But, in any view of the matter, our position goes a step beyond that. Keeping in mind the evident purpose of the apportionment temporarily made by the Constitution, the acts adopted by the Legislature, and up to this period acquiesced in by the people, have resulted in a condition impossible of correction by the courts which must be regarded by the court, so far as this case is concerned, as equivalent to “otherwise provided by law,” so as to render the apportionment in the Constitution superseded and inoperative. I do not mean to say that an invalid law would of itself destroy the operation or effect of the apportionment section of the Constitution; but an act appearing to have been duly enacted and promulgated is to be regarded as valid until otherwise declared by competent authority, and we are now considering the propriety of passing upon the validity of the apportionment acts, if not the power of the court to do so; and what I do maintain upon the facts above stated is that a condition beyond the control of the court has been produced, which, so far as the power of the court is concerned to award the remedy here sought, has caused in effect the apportionment of the Constitution to become inoperative. Where it was sought to have an election for the Legislature held under the apportionment act of 1879 in New York instead of the act of 1892 (Laws 1892, p. 806, c. 397), assailed as void, and the court could see that if the act of 1892 was invalid the act of 1879 (Laws 1879, p. 286, c. 208) was also void, and that to hold the later act void would relegate the people to the act of 1866 (Laws 1866, p. 1301, c. 607), a law more than a quarter of a century old, the court said that “this would be a travesty on the law and upon all ideas of equality, propriety, and justice.” People ex rel. v. Rice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836. In the same case it appeared that the Constitution provided that the establishment of senate districts should be based upon an equal number of inhabitants, excluding “persons of color not taxed.” The provision for the exclusion of persons of color not taxed in arriving at the number of inhabitants for the purpose stated had been inserted at a time when a man of color not taxed was not entitled to vote by express provision of the Constitution. After the War of the Rebellion and the adoption of the thirteenth, fourteenth, and fifteenth amendments to the federal Constitution, the state Constitution was amended by omitting the condition for the exercise of the elective franchise by a colored person, and other amendments were also adopted eliminating similar discriminations or provisions based thereon; but the one for excluding colored persons not taxed in computing the number of inhabitants when establishing senate districts was in some way allowed to remain. The question was presented to the court upon an objection to the validity of the apportionment act on the ground that persons of color not taxed had not been excluded in the establishment of senate districts. In the opinion delivered by Mr. Justice Peckham it was held that the section was not to be construed as excluding such persons, notwithstanding its language, on the ground that the change in policy towards persons of color, clearly indicated by the constitutional amendments referred to, rendered it clear that the basis for the provision had been taken away; and it was held that under the conditions it should be regarded as impliedly repealed by the other amendments. That case does not of course precisely touch the question before us upon the facts, but it does show that subsequent conditions were considered as having an important bearing upon the construction of a particular section of the Constitution.

But there is an additional element in the case that I have not referred to, but which is mentioned in the principal opinion, viz., the declaration by the Legislature in each apportionment act that each organized county shall constitute a separate senatorial and a separate representative district, following a similar declaration in the Constitution. If that portion of each act is valid regardless of the validity of the remainder of the act, and I think there is strong ground for so holding, and indeed am inclined to the opinion that it just be so held, though perhaps it may not be necessary to do so in this case, then there is the condition that certain established districts are not apportioned any representation by the apportionment in the Constitution, and there would be a direct conflict between the apportionment section, which was intended to have only a temporary operation, and other provisions, such as that requiring each county to have at least one senator and one representative. Upon such a conflict the former and temporary provision must yield. Moreover the legislative act so establishing the districts would then furnish the contingency, “otherwise provided by law,” upon which the section of the Constitution in question was to cease. Although it would amount to a partial provision only, it would render the section of the Constitution ineffectual in consideration of the other related sections. As counsel for relators has contended, and the petition herein asserts, that the ratio provisions of the act of 1901 would not fall if the section thereof making the apportionment should be adjudged void, I suppose it would be conceded on the part of relators that the section of said act declaring each organized county to constitute a separate senatorial and representative district would likewise remain unaffected by the invalidity of the provision *717 covering the apportionment of members. At least there would seem that every reason for maintaining that the ratio provisions are separable from the part alleged to be void would equally apply to the provision establishing the districts.

In the opinion handed down for the court Judge Scott has called attention to the fact that two senators from Carbon county, the entire quota awarded that county by the constitutional provision, are hold–overs, and were elected from that county as now constituted, so that by leaving them to represent that county would not only deprive Natrona county of any separate senatorial representation, but of any voice in the election of a senator. That would also be the case as to those portions of Big Horn county taken from Sheridan and Johnson counties, respectively. In the case of the Crook and Weston county senators it occurs to me that it might be a difficult matter upon any legal principle to determine which one, if either, should be deprived of the privilege of serving out the full term. Not only has the senator from Weston county been admitted as such by the senate, but at the last session he was elected vice president of that body, and is probably now holding that office. The cases cited in brief and argument involving the validity of apportionment acts severally present a far different state of facts as well as different constitutional provisions from those with which we are concerned. In many if not most of the cases the duty was imposed upon the Legislature by the Constitution of establishing districts according to the number of inhabitants and under certain other restrictions such as those of compactness and contiguity; but I do not recall a case where, if an election was held under a previous act, certain counties or sections would be deprived, not only of representation, but of any voice in the selection of a representative.

Upon any view of the case at bar, should the writ demanded by the relators be granted, not only would there be caused inextricable confusion, but there would occur an inevitable deviation from the permanent provisions of the Constitution concerning the formation of the Legislature and representation therein; and in my opinion, therefore, the only safe and reasonable course is to deny the writ on the ground that the relators have not shown themselves entitled to it, without deciding as to the validity of the apportionment acts.