McFADDEN, Justice.
This action was instituted by respondent, a resident, taxpayer and qualified elector of Ada County, against appellant as Secretary of State to enjoin him from certifying to the respective county auditors the number of representatives each county will be entitled to elect at the forthcoming general election, (in November 1962) pursuant to the requirements of I.C. § 67-203 (as amended S.L.1951, ch. 60, sec. 1). Respondent contends that the amendment of I.C. § 67-203, by S.L.1951, ch. 60, § 1, is unconstitutional, as is the previous enactment, S.L.1941, ch. 87, § 1. He contends that S.L.1933, ch. 75, § 1, is the only constitutional enactment under which appellant can act. Respondent, in the district court, also sought mandate to require the Secretary of State to make such certification to the respective county auditors of the number of representatives to be elected, solely on the basis of the 1933 act.
In his complaint, respondent alleges that neither the 1951 act, nor the 1941 act, provides substantially equal representation for the people of Ada County and of certain other populous counties, for the reason that each such enactment establishes an excessively high minimum number of persons per representative; and an excessively low minimum number of persons for the next additional representative, which is but a small percentage of the whole minimum number established for the first representative; that on the basis of the 1960 U. S. census, the 1951 and 1941 amendments are arbitrary and capricious, and result in 15.-2% of the population of the State, residing in 22 counties each of a population of 8,500 [259]*259or less, having 35% of the representation of the house of representatives.
Appellant in his answer, generally denied the allegations of unconstitutionality of the enactments in question, and prayed that the court declare the action as one for declaratory relief, and determine under which act appellant should perform his statutory duties.
In answer to interrogatories and request for admissions, appellant admitted the correctness of the figures reflected in the 1960 census, (attached as an exhibit to respondent’s complaint); and that under the 1960 census, on the basis of the 1951 enactment, appellant could certify a total of 63 representatives for the entire state (6 for Ada County). The 1933 act, on the basis of the 1960 census, would increase the total representatives to 79 (with 9 apportioned to Ada County).
The trial court, upon disposition of respondent’s motion for judgment on the pleadings, treated as a motion for summary judgment, entered finding of fact generally finding that the 1951 and 1941 enactments as applied to the 1960 census, result in arbitrary, capricious and substantially unequal representation in the house of representatives of the more populous counties, in comparison to the less populous counties of the state; and in its conclusions of law, the court concluded that the 1951 and 1941 enactments are unconstitutional, but that the 1933 enactment should control in that it affords more equal representation than the other two acts, and constituted the last valid and constitutional apportionment act. In its judgment, the court required certification by appellant on the basis of the 1933 act.
This appeal resulted, the notice of appeal having been signed and regularly filed by one of appellant’s resident attorneys. Respondent moved to dismiss the appeal challenging its validity on the ground that it is not signed either by the appellant personally, or by an authorized member of the attorney general’s staff.
This Court is cognizant of the provisions of I.C. § 67-1401 which specifies some of the duties of the attorney general. The right of the attorney general to appear has not been questioned and we are not here concerned with any reason why he did not participate in this appeal. The record discloses that a member of the attorney general’s staff represented appellant in the district court; also, that this appeal was taken with the full knowledge of the attorney general in that he, through a member of his staff, specifically requested in writing that the attorneys representing appellant, be substituted for the attorney general, as attorneys of record for appellant on this appeal.
No contention of usurpation of the rights or power of the attorney general by ap[260]*260pellant’s present counsel is even inferred, and we are not here concerned with any question as to whether the attorney general properly delegated his power or authority to appear herein. Both the appellant and the attorney general were personally present during the oral presentation of this appeal. The attorneys representing appellant are members in good standing of the Idaho State Bar who have appeared as members of the Bar and in no other capacity, at the request of appellant and without cost to the State of Idaho. The motion to dismiss is without merit and is denied.
Appellant by his specifications of error challenges the right of the trial court to assume jurisdiction of the cause, and claims error committed by the court in declaring that the 1933 enactment is the last valid apportionment act.
Concerning the first specification of error, appellant, in questioning the right of the trial court to assume jurisdiction of the case, relies primarily on Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L. Ed. 1432, a case which originated in Illinois. Courts of various other states have recognized their jurisdiction to deal with apportionment statutes. Parkinson v. Watson, 1955, 4 Utah 2d 191, 291 P.2d 400; Brooks v. State, 1904, 162 Ind. 568, 70 N.E. 980; Brown v. Saunders, 1932, 159 Va. 28, 166 S.E. 105; Stiglitz v. Schardien, 1931, 239 Ky. 799, 40 S.W.2d 315; State ex rel. Thomson v. Zimmerman, 1953, 264 Wis. 644, 60 N.W.2d 416, 61 N.W.2d 300; Asbury Park Press, Inc. v. Woolley, 1960, 33 N.J. 1, 161 A.2d 705; State v. Cunningham, 1892, 81 Wis. 440, 51 N.W. 724, 15 L.R.A. 561; In re Sherill, 1907, 188 N.Y. 185, 81 N.E. 124; Attorney General v. Secretary of the Commonwealth, 1940. 306 Mass. 25, 27 N.E.2d 265; Donovan v. Holzman, 1956, 8 Ill.2d 87, 132 N.E.2d 501; 16 C.J.S. Constitutional Law § 147, pp. 708-709.
In the most recent opinion of Baker v. Carr, released March 26, 1962, 82 S.Ct. 691, the Supreme Court of the United States recognizes that it is within the province of the courts to inquire into the validity of apportionment statutes of the respective states to determine whether there has been an infringement on the rights of the citizens by reason of improper or unlawful apportionment. The special concurring opinion of Mr. Justice Stewart most specifically points out that the decision — Baker v. Carr — decides only three things and no more:
“(a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) * * * that the appellants have [261]*261standing to challenge the Tennessee apportionment statutes.”
This action is one within the jurisdiction of the trial court and appellant’s contention in this regard is without merit.
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McFADDEN, Justice.
This action was instituted by respondent, a resident, taxpayer and qualified elector of Ada County, against appellant as Secretary of State to enjoin him from certifying to the respective county auditors the number of representatives each county will be entitled to elect at the forthcoming general election, (in November 1962) pursuant to the requirements of I.C. § 67-203 (as amended S.L.1951, ch. 60, sec. 1). Respondent contends that the amendment of I.C. § 67-203, by S.L.1951, ch. 60, § 1, is unconstitutional, as is the previous enactment, S.L.1941, ch. 87, § 1. He contends that S.L.1933, ch. 75, § 1, is the only constitutional enactment under which appellant can act. Respondent, in the district court, also sought mandate to require the Secretary of State to make such certification to the respective county auditors of the number of representatives to be elected, solely on the basis of the 1933 act.
In his complaint, respondent alleges that neither the 1951 act, nor the 1941 act, provides substantially equal representation for the people of Ada County and of certain other populous counties, for the reason that each such enactment establishes an excessively high minimum number of persons per representative; and an excessively low minimum number of persons for the next additional representative, which is but a small percentage of the whole minimum number established for the first representative; that on the basis of the 1960 U. S. census, the 1951 and 1941 amendments are arbitrary and capricious, and result in 15.-2% of the population of the State, residing in 22 counties each of a population of 8,500 [259]*259or less, having 35% of the representation of the house of representatives.
Appellant in his answer, generally denied the allegations of unconstitutionality of the enactments in question, and prayed that the court declare the action as one for declaratory relief, and determine under which act appellant should perform his statutory duties.
In answer to interrogatories and request for admissions, appellant admitted the correctness of the figures reflected in the 1960 census, (attached as an exhibit to respondent’s complaint); and that under the 1960 census, on the basis of the 1951 enactment, appellant could certify a total of 63 representatives for the entire state (6 for Ada County). The 1933 act, on the basis of the 1960 census, would increase the total representatives to 79 (with 9 apportioned to Ada County).
The trial court, upon disposition of respondent’s motion for judgment on the pleadings, treated as a motion for summary judgment, entered finding of fact generally finding that the 1951 and 1941 enactments as applied to the 1960 census, result in arbitrary, capricious and substantially unequal representation in the house of representatives of the more populous counties, in comparison to the less populous counties of the state; and in its conclusions of law, the court concluded that the 1951 and 1941 enactments are unconstitutional, but that the 1933 enactment should control in that it affords more equal representation than the other two acts, and constituted the last valid and constitutional apportionment act. In its judgment, the court required certification by appellant on the basis of the 1933 act.
This appeal resulted, the notice of appeal having been signed and regularly filed by one of appellant’s resident attorneys. Respondent moved to dismiss the appeal challenging its validity on the ground that it is not signed either by the appellant personally, or by an authorized member of the attorney general’s staff.
This Court is cognizant of the provisions of I.C. § 67-1401 which specifies some of the duties of the attorney general. The right of the attorney general to appear has not been questioned and we are not here concerned with any reason why he did not participate in this appeal. The record discloses that a member of the attorney general’s staff represented appellant in the district court; also, that this appeal was taken with the full knowledge of the attorney general in that he, through a member of his staff, specifically requested in writing that the attorneys representing appellant, be substituted for the attorney general, as attorneys of record for appellant on this appeal.
No contention of usurpation of the rights or power of the attorney general by ap[260]*260pellant’s present counsel is even inferred, and we are not here concerned with any question as to whether the attorney general properly delegated his power or authority to appear herein. Both the appellant and the attorney general were personally present during the oral presentation of this appeal. The attorneys representing appellant are members in good standing of the Idaho State Bar who have appeared as members of the Bar and in no other capacity, at the request of appellant and without cost to the State of Idaho. The motion to dismiss is without merit and is denied.
Appellant by his specifications of error challenges the right of the trial court to assume jurisdiction of the cause, and claims error committed by the court in declaring that the 1933 enactment is the last valid apportionment act.
Concerning the first specification of error, appellant, in questioning the right of the trial court to assume jurisdiction of the case, relies primarily on Colegrove v. Green, 328 U.S. 549, 66 S.Ct. 1198, 90 L. Ed. 1432, a case which originated in Illinois. Courts of various other states have recognized their jurisdiction to deal with apportionment statutes. Parkinson v. Watson, 1955, 4 Utah 2d 191, 291 P.2d 400; Brooks v. State, 1904, 162 Ind. 568, 70 N.E. 980; Brown v. Saunders, 1932, 159 Va. 28, 166 S.E. 105; Stiglitz v. Schardien, 1931, 239 Ky. 799, 40 S.W.2d 315; State ex rel. Thomson v. Zimmerman, 1953, 264 Wis. 644, 60 N.W.2d 416, 61 N.W.2d 300; Asbury Park Press, Inc. v. Woolley, 1960, 33 N.J. 1, 161 A.2d 705; State v. Cunningham, 1892, 81 Wis. 440, 51 N.W. 724, 15 L.R.A. 561; In re Sherill, 1907, 188 N.Y. 185, 81 N.E. 124; Attorney General v. Secretary of the Commonwealth, 1940. 306 Mass. 25, 27 N.E.2d 265; Donovan v. Holzman, 1956, 8 Ill.2d 87, 132 N.E.2d 501; 16 C.J.S. Constitutional Law § 147, pp. 708-709.
In the most recent opinion of Baker v. Carr, released March 26, 1962, 82 S.Ct. 691, the Supreme Court of the United States recognizes that it is within the province of the courts to inquire into the validity of apportionment statutes of the respective states to determine whether there has been an infringement on the rights of the citizens by reason of improper or unlawful apportionment. The special concurring opinion of Mr. Justice Stewart most specifically points out that the decision — Baker v. Carr — decides only three things and no more:
“(a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) * * * that the appellants have [261]*261standing to challenge the Tennessee apportionment statutes.”
This action is one within the jurisdiction of the trial court and appellant’s contention in this regard is without merit.
Appellant urges that this action should not be maintained by reason of the long delay in attacking the apportionment act, citing State ex rel. Mills v. Howell, 93 Wash. 257, 159 P. 777, Adams v. Bosworth, 126 Ky. 61, 102 S.W. 861, 10 L.R.A., N.S., 1184; In re Reynolds, 202 N.Y. 430, 96 N.E. 87; People ex rel. Woodyatt v. Thompson, 155 Ill. 451, 40 N.E. 307. However, we deem the announcement by the Supreme Court of New Jersey in the case of Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 161 A.2d 705, 706, as the preferable rule, succinctly stated in the syllabus as follows:
“Acquiescence for no length of time can legalize a clear violation of duty where the people have plainly expressed their will in the Constitution and have appointed judicial tribunals to enforce it.”
Delay alone is no basis for refusing to consider the merits of this matter, for otherwise, under future changing circumstances any claimed rights of a person situate as respondent, could never be protected, merely because he did not immediately act.
This court, under Idaho Const. Art. V, § 9, has jurisdiction to review, upon appeal, decisions of the district courts. This action is not one of original jurisdiction, but is here by appeal from the decree of district court. Thus, before this court is the sole question, whether the trial court’s decree is correct. The answer to this question hinges upon whether S.L.1951, ch. 60, § 1, and S.L.1941, ch. 87, § 1, are unconstitutional, no question being presented as to the constitutionality of S.L.1933, ch. 75, § 1, nor S.L.1917, ch. 165. Hereinafter are set forth the legislative enactments under decision or salient portions therefrom.
S.L.1917, ch. 165 provides:
“Section 25. The apportionment of the houses of the Legislature is and shall be as follows:
“Each county in the State of Idaho and any county which may hereafter be created shall constitute a senatorial district and shall elect one senator.
“The several counties shall elect members of the House of Representatives as follows: Each county shall elect one representative for each 2,500 votes and remaining fraction thereof amounting to 1,000 votes or more cast in said county at the last general election, based on the total vote cast for all candidates for Governor: Provided,, That there shall be at least one representative from each county. It shall be the duty of the Secretary of State to certify to the county auditor [262]*262of each county on or before the first day of April, 1918, and biennially thereafter the number of representatives in the Legislature said county will be entitled, to elect at the following election. When any new counties have been created, subsequent to the last general election for Governor, the total vote cast for Governor in the territory included in any such new county and in the territory remaining in any county or counties from which said new county or counties have been created shall be estimated by the Secretary of State as nearly as possible from the election returns and the legislative apportionment figured thereon.”
This chapter was incorporated in C.L. as 4:1 et seq.; in C.S. as § 51 et seq.; in I.C.A. as Title 65, ch. 2; and as later amended in I.C., as Title 67, ch. 2.
The 1933 act, amendatory of S.L.1917, ch. 165 is as follows:
“Section 1. That Section 65-203, Idaho Code Annotated, be, and the same is hereby, amended to read as follows:
“Section 65-203, REPRESENTATIVE DISTRICTS. — The several counties shall elect members of the house of representatives as follows: Each county shall elect one representative for each * * * ten thousand population of such county and remaining fraction thereof amounting to * * five thousand population or more. Popidation for this purpose shall he determined solely according to the last official United States Census; provided, that there shall be at least one representative from each county.” S.L. 1933, ch. 75.
The 1941 Act, amended the pertinent portions to read:
“ * * * Each county shall elect one representative for each * * twelve thousand five hundred population of such county and remaining fraction thereof amounting to five thousand population or more. * * * ” S.L.1941, ch. 87.
The 1951 Act, now I.C. sec. 67-203, amended it to read:
“ * * * Each county shall elect one representative for each * seventeen thousand * * population of such county and remaining fraction thereof amounting to * three thousand population or more. * * *” S.L.1951, Ch. 60.
Idaho' Const. ART. III, § 4; provides:
“Apportionment of legislature.— The members of the first legislature shall be apportioned to the several legislative districts of the state in proportion to the number of votes polled at [263]*263the last general election for delegate to congress, and thereafter to be apportioned as may be provided by law: provided, each county shall be entitled to one representative.”
In considering the question of the constitutionality of these acts, certain fundamental rules at all times must be kept in mind. The burden of showing the unconstitutionality of a statute is upon the party asserting it. Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083; Rich v. Williams, 81 Idaho 311, 341 P.2d 432. This court is without power to invalidate or nullify a constitutional act of the legislature; if the legislation does not clearly violate the Constitution, this court must and will uphold it. Padgett v. Williams, 82 Idaho 114, 350 P.2d 353. Every reasonable presumption must be indulged in favor of the constitutionality of a statute. Robinson v. Enking, 58 Idaho 24, 69 P.2d 603; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105.
The court in State ex rel. Brassey v. Hanson, 81 Idaho 403, 409, 342 P.2d 706, 709, quoting from other opinions, stated:
“ ‘It is fundamental that the judicial power to declare legislative action invalid upon constitutional grounds is to be exercised only in clear cases. * * * ’ [citation] Petition of Mountain States Telephone & Tel. Co., 76 Idaho 474, 480, 284 P.2d 681, 683.
“ ‘In the case of statutes passed by the legislative assembly and assailed as unconstitutional the question is not whether it is possible to condemn, but whether it is possible to uphold; and we stand committed to the rule that a statute will not be declared unconstitutional unless its nullity is placed, in our judgment, beyond reasonable doubt * * *. [citations]’ Keenan v. Price, 68 Idaho 423, 433, 195 P.2d 662, 667.”
Respondent’s assertion, of unconstitutionality of the 1951 and 1941 acts, is founded on the premise of such gross inequality of representation in the house of representatives occasioned by the increase of the State’s population, as shown by the 1960 Federal census, as to be arbitrary and capricious, and hence unconstitutional.
It is essential in considering this assertion, to keep in mind that the constitution of the State of Idaho is not a delegation of power to the legislature but is a limitation on the power that it may exercise, and that the legislature has plenary power in all matters for legislation except those prohibited by the constitution. St. Joe Improvement Co. v. Laumierster, 19 Idaho 66, 112 P. 683, Achenbach v. Kincaid, 25 Idaho 768, 140 P. 529; State v. Nelson, 36 Idaho 713, 213 P. 358; State ex rel. Macey v. Johnson, 50 Idaho 363, 296 P. 588; Lloyd Corp. v. Bannock County, 53 Idaho 478, 25 P.2d 217; Koelsch v. Girard, 54 Idaho 452, 33 P.2d [264]*264816; McGoldrick Lumber Co. v. Benewah County, 54 Idaho 704, 35 P.2d 659; Boughton v. Price, 70 Idaho 243, 215 P.2d 286; Utah Oil Refining Co. v. Hendrix, 72 Idaho 407, 242 P.2d 124; Rich v. Williams, 81 Idaho 311, 341 P.2d 432; State ex rel. Rich v. Idaho Power Co., 81 Idaho 487, 346 P.2d 596.
Under the Constitutional provisions establishing the legislative body (Idaho Const. Art. III, secs. 2 and 4), certain absolute limits are imposed on the scope of legislative action. Art. III, sec. 4, establishes the entitlement of each county to one representative. Art. III, sec. 2 establishes the maximum number of representatives at not to exceed three times the total number of senators which is fixed at one for each county.
Unlike constitutional provisions of some of the neighboring states (Cal.Const. Art. IV, sec. 5; Mont.Const. Art. V, sec. 4; N.M.Const. Art. IV, sec. 3; Ore.Const. Art. IV, sec. 2; Utah Const. Art. IX, sec. 3), the number of representatives which may constitute Idaho’s house of representatives is not absolutely fixed. Idaho Const. Art. III, sec. 2. Idaho’s legislature is authorized to establish up to the maximum number fixed by the Constitution, i. e. “at not more than three (3) times as many representatives as there are senators.” We are not called upon, nor are we authorized, to rule as to the minimum number which may be so fixed; that is a function reserved to the legislature.
The legislation with which we are here dealing, establishes a formula for determination of two variable figures, i. e., (1) the total number of representatives to constitute the house; and after fulfilling the constitutional requirements of one representative per county, (2) the actual apportionment of the balance of such total number among the counties that qualify for more than one representative. These figures are arrived at by the ministerial actions of the Secretary of State applying the one formula to fix these two variable items. I.C. secs. 67-203 and 67-204.
The legislature in 1933 used a larger divisor for the total population than the act of 1917; the act of 1941, used still a larger divisor than the act of 1933 and finally the act of 1951 used still a larger divisor than the act of 1941. It is interesting to note that in 1931 with a state population of approximately 445,000 (U. S. Census 1930) there were 70 representatives; in 1933 only 63 representatives; after adoption of the 1933 act, the number of representatives in the 1935 session dropped to 59. With a state population of approximately 525,000 (U. S. Census 1940), after enactment of the 1941 act, the number of representatives for the whole state still remained at 59 for all ensuing sessions, even after adoption of the 1951 act. Application of the 1933 act to [265]*265the population, shown by the 1960 census, of 667,191, would provide 79 representatives in the house; and application of the 1951 act to the 1960 census would result in 63 representatives.
We thus are faced with the problem of whether the legislative enactment establishing the 1951 formula for use by the Secretary of State, insofar as its application to the rights of this plaintiff are concerned, is unconstitutional. As has been pointed out, this formula is required to fulfill a twofold purpose, (1) of establishing the total number of representatives for the next succeeding legislature, and (2) of allocating all in excess of the first forty-four representatives, (i. e., one per county) to the counties which by reason of greater population, are entitled to more than one representative.
It is clear that the constitutional requirement of one representative for each county, superimposed on the population requirement of the statute, will lead to discrepancies between the number of people who will be represented by each individual representative constituting the house of representatives, on a purely numerical basis. Respondent has forcefully pointed out such discrepancies, particularly by the exhibit in his complaint. Clark County, with a 1960 population of 915 persons, and Camas County with a 1960 population of 917, each is entitled to one representative under both the 1951 act and the 1933 act; Elmore County, with a 1960 population of 16,719, and Cassia County, with a 1960 population of 16,121, each likewise is entitled to only one representative under the 1951 act; whereas under the 1933 act each would be entitled to two representatives. These examples illustrate the extremes of the discrepancies in population representation. But, is such gross disparity so arbitrary and capricious that the 1951 act, and the 1941 act must be stricken down as unconstitutional, in favor of the previous 1933 act? Also, is this disparity created by the act itself, or created by the constitution? Another question is whether the disparity is the result of application of a set of facts and circumstances for which the legislation was not designed? Also, is such disparity violative of the equal protection clauses of Idaho’s Constitution, Art. I, sec. 2 and of the United States Constitution, Fourteenth Amendment?
The constitutional limitations of one representative per county and a maximum of not to exceed three times the number of senators immediately destroys any possibility of representation based solely on a per-capita or per-voter basis. Attempting to compare the representation afforded by the constitutional requirement of one representative per county to the representation to be afforded on a per capita basis is impossible. The exhibit to respondent’s complaint (which all parties agree is mathematically correct) establishes, that by ap[266]*266plying the formula of the 1951 act to the 1960 population in each county, thirty-four counties, (of the total of forty-four), are entitled to one representative, and under the 1933 act the same population in each county would reduce the number of counties limited to one representative, to thirty-one (Bonner, Cassia and Elmore Counties, would then be entitled each to two representatives).
The members of the Idaho Constitutional Convention were fully cognizant of the impossibility of mathematical equality in election of representatives by reason of this constitutional requirement of one representative per county, as is shown by the record of their proceedings. Vol. I, Idaho Constitutional Convention, Proceedings and Debates, p. 454, et seq., and Vol. II, p. 1194, et seq. The constitution, as then proposed and later adopted, also authorizes distribution of the representatives on a district basis (Idaho Const. Art. III, § 4), which authority has not been utilized by the legislature in recent years. The delegates to the convention considered the problems inherent in the adoption of this requirement of one representative per county, and were aware of the disparity that arises as to representation between the sparsely settled areas and the more populous areas; yet they believed that the interests of the state would be best served, by such requirement, and their judgment in the premises was ratified by the electorate adopting the Constitution. Such determination by the convention, so ratified by adoption of the Constitution, cannot be questioned by this court.
The constitutional provisions only established limitations of the legislative branch of the government in this field. The enactments of the legislative branch of the government acting within the scope of its constitutional authority can no more be questioned by this court than can the Constitution itself. Diefendorf v. Gallett, 51 Idaho 619, 10 P.2d 307.
The 1951 enactment increased the number in the divisor to be applied to the total population. One effect of such increase in the divisor was to reduce the number of representatives to constitute the house of representatives. It is claimed that respondent is deprived of “equal protection” under the Idaho Constitution.
In discussing the equal protection clause of the United States Constitution, Mr. Justice Brennan in Baker v. Carr, supra, stated:
“Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.”
Without attempting to define fully the equal protection clause of the Idaho Constitution, [267]*267the legislature in enacting the 1951 statute established the number of representatives, and insofar as the Constitution allowed, apportioned them between the rural and more populous areas; any discrimination inherent in representation arises not by reason of arbitrary and capricious legislative action, but by reason of the constitutional requirement of one representative per county, and in some measure by not adopting a lower divisor, thereby to increase the total number of representatives for apportionment among the counties. Notably, however, the record shows that the parties to this proceeding, as well as the trial court, in recognizing the existence of aspects of inequitable apportionment under the formulae of both the 1951 and 1941 acts, also recognized aspects of inequitable apportionment under the 1933 act because it provided only “a greater degree of equal representation,” as compared to the later acts.
The concurring opinion of Mr. Justice Stewart in Baker v. Carr, supra, in evaluating the holding of the Supreme Court of the United States in that case, in language most appropriate here, pointed out:
“The complaint in this case asserts that Tennessee’s system of apportionment is utterly arbitrary — without any possible justification in rationality. The District Court did not reach the merits of that claim, and this Court quite properly expresses no view on the subject. Contrary to the suggestion of my Brother HARLAN the Court does not say or imply that ‘state legislatures must be so structured as to reflect with approximate equality the voice of every voter.’ p. 772. The Court does not say or imply that there is anything in the Federal Constitution ‘to prevent a State, acting not irrationally, from choosing any electoral legislative structure it thinks best suited to the interests, temper, and customs of its people.’ p. 773. And contrary to the suggestion of my Brother DOUGLAS, the Court most assuredly does not decide the question, ‘may a State weight the vote of one county or one district more heavily than it weights the vote in another ?’ p. 724.” (Emphasis supplied).
In the same concurring opinion it is further stated:
“In MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, the Court held that the Equal Protection Clause does not ‘deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view cf the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.’ 335 U.S., at 284, 69 S.Ct. at 2. In case [268]*268after case arising under the Equal Protection Clause the Court has said what it said again only last Term — that ‘the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others.’ McGowan v. [State of] Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.” (Emphasis added.)
Without fully defining the meaning of the equal protection clause of the Idaho Constitution, it should be pointed out that equal protection is subject to all limitations inherent in the Constitution itself, and valid enactments of the legislature.
We do not deem this opinion to be contrary to the statements contained in Ballentine v. Willey, 3 Idaho 496, 506, 31 P. 994, 997, wherein this court stated:
“One of the very foundation principles of our government is that of equal representation, and the legislature is prohibited from enacting an apportionment law which does not give to the people of one county substantially equal representation to that given each other county in the state, based either upon the entire or voting population or upon some other just and fair basis. The reservation of rights by the people is broad enough to prohibit the legislature from passing an apportionment act which is manifestly unequal and unjust to the people of any portion of the state.”
In the Ballentine case this court was dealing with'a statute that allocated the number of representatives and senators; not a statute establishing a formula such as is here present. In the instant case the disparity of representation stems from the Constitution, not from the 1951 act. As pointed out by Justice Crockett in Parkinson v. Watson, 4 Utah 2d 191, 291 P.2d 400, at p. 409:
“We do not desire to be understood as departing from this basic precept: that the theory underlying our system of representative government, and our Constitution upon which it rests, presupposes that there must be reasonable correlation between representation and the number of inhabitants represented. But this principle is not absolute and of necessity cannot be, because practical exigencies require that it be modified by giving consideration to area representation.”
The determination of the number of representatives to constitute the house of representatives, as well as their allocation above the requirement of at least one per county, are decisions resting peculiarly within the area for legislative action. Such determinations are dependent on the information established by the U. S. Census. Until such time as the legislature has had ample opportunity to fully examine [269]*269the impact of the 1960 Census on the apportionment of representatives throughout this State, in the light of Idaho Const. Art. III, §§ 2, 4 and 5, we cannot say that the 1951 Act is unconstitutional as having failed to grant representative rights of the citizenry of this State afforded by the Constitution.
Judgment reversed, and cause remanded with directions to enter appropriate decree adjudging that the 1951 act is constitutional, and directing appellant to certify the number of representatives to the county auditors of the State, on the basis provided by that act.
No costs allowed.
SMITH, C. J., and KNUDSON, J., concur.