LEWIS, Circuit Judge.
This case was originally filed on January 16, 1963, by plaintiffs as a representative action wherein they sought for themselves as citizens of the United States and of the State of Utah, and as duly qualified voters in Salt Lake County, Utah, and for all other voters in the State of Utah who were similarly situated, a declaration that the provisions of Title 36, U.C.A.1963, as amended by the Laws of Utah 1955, were violative of the Fourteenth Amendment to the Constitution of the United States as an invalid apportionment statute pertaining to the election of members to both the Utah State Senate and House of Representatives. The defendants were named in their respective capacities as public officers and officials of the State of Utah charged by law with particular duties respecting the election of members of the Utah Senate and House of Representatives. Since the prayer of plaintiffs’ complaint sought the additional relief of injunctive restraint against the enforcement of a state statute and the action of state officers charged with the duty of enforcement, this statutory three-judge court was duly convened. 28 U.S.C. §§ 2281, 2284.
During the pendency of the action the Utah State Legislature made further amendments to the subject statutes which, with the approval of the Governor, became effective as the law of Utah during May, 1963. By leave of this court plaintiffs were allowed to file a supplemental complaint directing their contentions to what may be designated as the Reapportionment Act of 1963, Title 36, U.C.A., as amended by Laws of Utah 1963. After due response by defendants the case became at issue during May, 1963. In recognition of the potential [962]*962impact that a decision in the case might have upon the governmental affairs of Utah, this court upon its own motion abstained from hearing the case upon the merits pending the decisions of the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620, and Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, decided on June 15, 1964, which held, inter alia,, that both houses of a bicameral state legislature must be apportioned substantially on a population basis. The crystallization of federal constitutional requirements as held in the cited cases made it this court’s clear duty to give immediate consideration to plaintffs’ contention, and the case was heard and submitted upon August 3, 1964.
Jurisdiction in this court rests upon 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 1343(3), the Civil Rights Acts; a justiciable issue exists under the rule of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; the parties having agreed that there is no genuine issue as to any material fact, the ease is ripe for summary judgment. Rule 56, Fed.R.Civ.P.
The Utah Reapportionment Act of 1963' provides for a state Senate consisting of twenty-seven members elected from eighteen designated senatorial districts-consisting of one or more counties. See App. A. The act states that representation shall be determined upon the basis of one senator for the first twenty thousand inhabitants, or major fraction thereof, and one additional senator for each additional sixty-one thousand inhabitants, or major fraction thereof, residing within the senatorial district. The act is a. patent and probably successful attempt1 to apportion the senate in accordance-with the Utah Constitution which provides that there shall be a maximum of thirty senators in the Senate (art. IX,. sec. 3), that when two or more counties-form one district they must be contiguous, that no county shall be divided into more than one district unless such county contains sufficient population within itself to form two or more districts, and that no part of a county shall be united with another county in the formation of a senatorial district (art. IX, sec. 4).2
To test the validity of the senatorial apportionment the population distribution in Utah must be applied to the various districts and the number of senators elected from each district. See App. B. The senatorial districts average 32,986 3 inhabitants each, but District Three, Rich, Morgan, and Summit Counties, and District Eighteen, Washington County, each with one senator, [963]*963have 10,195 and 10,271 inhabitants respectively, while District Four, Weber County, with two senators, has 55,372 inhabitants per senator, and District Six, Salt Lake County, with seven senators, has 54,719 inhabitants per senator. The ratio of inhabitants per senator between the highest and lowest districts is 5.4 to one. The larger districts, those with two or more senators, average 51,195 inhabitants per senator as compared with an average of 16,078 in the smaller districts, a ratio of 3.2 to one. As a result, districts containing 225,097 inhabitants, or 25.3 per cent of the state’s population, can elect a majority of the state Senate.
Without laboring the application of simple mathematics to the senatorial apportionment, it is clearly apparent that representation is not presently based upon substantial equality in population and that there exists a gross and untenable dilution of the weight accorded the individual votes of citizens of Utah who reside in the more populous counties and districts. The disparity between the effectiveness of citizens’ votes, reaching as it does a ratio exceeding five to one, is an invidious discrimination denying to the people of Utah the •equal protection of its law and thus violating the compulsion of the Fourteenth Amendment to the Constitution of the United States. We hold, therefore, that the Reapportionment Act of 1963, as it pertains to the apportionment of the Utah State Senate, is federally unconstitutional.
Under the 1963 act, representation in the House of Representatives is on the basis of one representative for each sixteen thousand inhabitants, or major fraction thereof, residing within the district, except that each county must have •at least one representative. See App. C. The act provides for a total of sixty-nine representatives from Utah’s twenty-nine counties and is consistent with the Utah Constitution, which states that each county must have at least one representative •(art. IX, sec.
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LEWIS, Circuit Judge.
This case was originally filed on January 16, 1963, by plaintiffs as a representative action wherein they sought for themselves as citizens of the United States and of the State of Utah, and as duly qualified voters in Salt Lake County, Utah, and for all other voters in the State of Utah who were similarly situated, a declaration that the provisions of Title 36, U.C.A.1963, as amended by the Laws of Utah 1955, were violative of the Fourteenth Amendment to the Constitution of the United States as an invalid apportionment statute pertaining to the election of members to both the Utah State Senate and House of Representatives. The defendants were named in their respective capacities as public officers and officials of the State of Utah charged by law with particular duties respecting the election of members of the Utah Senate and House of Representatives. Since the prayer of plaintiffs’ complaint sought the additional relief of injunctive restraint against the enforcement of a state statute and the action of state officers charged with the duty of enforcement, this statutory three-judge court was duly convened. 28 U.S.C. §§ 2281, 2284.
During the pendency of the action the Utah State Legislature made further amendments to the subject statutes which, with the approval of the Governor, became effective as the law of Utah during May, 1963. By leave of this court plaintiffs were allowed to file a supplemental complaint directing their contentions to what may be designated as the Reapportionment Act of 1963, Title 36, U.C.A., as amended by Laws of Utah 1963. After due response by defendants the case became at issue during May, 1963. In recognition of the potential [962]*962impact that a decision in the case might have upon the governmental affairs of Utah, this court upon its own motion abstained from hearing the case upon the merits pending the decisions of the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620, and Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632, decided on June 15, 1964, which held, inter alia,, that both houses of a bicameral state legislature must be apportioned substantially on a population basis. The crystallization of federal constitutional requirements as held in the cited cases made it this court’s clear duty to give immediate consideration to plaintffs’ contention, and the case was heard and submitted upon August 3, 1964.
Jurisdiction in this court rests upon 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 1343(3), the Civil Rights Acts; a justiciable issue exists under the rule of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; the parties having agreed that there is no genuine issue as to any material fact, the ease is ripe for summary judgment. Rule 56, Fed.R.Civ.P.
The Utah Reapportionment Act of 1963' provides for a state Senate consisting of twenty-seven members elected from eighteen designated senatorial districts-consisting of one or more counties. See App. A. The act states that representation shall be determined upon the basis of one senator for the first twenty thousand inhabitants, or major fraction thereof, and one additional senator for each additional sixty-one thousand inhabitants, or major fraction thereof, residing within the senatorial district. The act is a. patent and probably successful attempt1 to apportion the senate in accordance-with the Utah Constitution which provides that there shall be a maximum of thirty senators in the Senate (art. IX,. sec. 3), that when two or more counties-form one district they must be contiguous, that no county shall be divided into more than one district unless such county contains sufficient population within itself to form two or more districts, and that no part of a county shall be united with another county in the formation of a senatorial district (art. IX, sec. 4).2
To test the validity of the senatorial apportionment the population distribution in Utah must be applied to the various districts and the number of senators elected from each district. See App. B. The senatorial districts average 32,986 3 inhabitants each, but District Three, Rich, Morgan, and Summit Counties, and District Eighteen, Washington County, each with one senator, [963]*963have 10,195 and 10,271 inhabitants respectively, while District Four, Weber County, with two senators, has 55,372 inhabitants per senator, and District Six, Salt Lake County, with seven senators, has 54,719 inhabitants per senator. The ratio of inhabitants per senator between the highest and lowest districts is 5.4 to one. The larger districts, those with two or more senators, average 51,195 inhabitants per senator as compared with an average of 16,078 in the smaller districts, a ratio of 3.2 to one. As a result, districts containing 225,097 inhabitants, or 25.3 per cent of the state’s population, can elect a majority of the state Senate.
Without laboring the application of simple mathematics to the senatorial apportionment, it is clearly apparent that representation is not presently based upon substantial equality in population and that there exists a gross and untenable dilution of the weight accorded the individual votes of citizens of Utah who reside in the more populous counties and districts. The disparity between the effectiveness of citizens’ votes, reaching as it does a ratio exceeding five to one, is an invidious discrimination denying to the people of Utah the •equal protection of its law and thus violating the compulsion of the Fourteenth Amendment to the Constitution of the United States. We hold, therefore, that the Reapportionment Act of 1963, as it pertains to the apportionment of the Utah State Senate, is federally unconstitutional.
Under the 1963 act, representation in the House of Representatives is on the basis of one representative for each sixteen thousand inhabitants, or major fraction thereof, residing within the district, except that each county must have •at least one representative. See App. C. The act provides for a total of sixty-nine representatives from Utah’s twenty-nine counties and is consistent with the Utah Constitution, which states that each county must have at least one representative •(art. IX, sec. 4), and that the House of Representatives shall have at least two and no more than three times as many members as there are senators (art. IX, sec. 3), limiting the membership of the House to ninety because of the Senate limitation to thirty (art. IX, sec. 3). The House districts average 12,908 inhabitants each, but Districts Twenty-one and Twenty-nine, Piute and Daggett Counties, have only 1,436 and 1,164 inhabitants respectively, compared with 21,135 in District Fifteen, Carbon County, and an average of 17,894 for each of the two representatives of District Two, Cache County. The ratio of inhabitants per representative of the highest to the lowest populated district is 18.2 to one, and districts with a total population of 336,400, or 37.8 per cent of the state’s population, can elect a majority in the House of Representatives. See App. D.
Again, we find it unnecessary to elaborate upon the obvious and simple fact that the House of Representatives is not presently apportioned according to substantial equality in population and that accordingly the equal protection of law is denied to the state’s citizens. We hold that the Reapportionment Act of 1963, as it pertains to the apportionment of the House of Representatives, is federally unconstitutional.
In enacting the Reapportionment Act of 1963, the state legislature considered itself bound by the restrictions affecting the subject matter contained in the Utah Constitution. And this was understandably so for it is their dual duty to observe the constitutional limitations contained in both the Constitution of Utah and the Constitution of the United States in all instances where such course is possible. In the case at bar it was not possible. For example, it is mathematically impossible to apportion upon a population basis a House of Representatives composed of not more than ninety members and with each county having at least one member. Thus, in application, the restrictive provisions of the Utah Constitution are in irreconcil[964]*964able conflict with the Constitution of the United States and, being so, are themselves federally unconstitutional and must be considered as totally void in application under the supremacy clause of the Constitution of the United States.4 And we so hold.
To what relief, then, are plaintiffs and others similarly situated entitled? The answer may be simply stated: To a prompt, effective and complete reapportionment of both houses of the Utah Legislature upon a basis premised upon substantial equality of population. The powers of this court to effectuate such relief are beyond doubt but should be exercised only in furtherance of the public good after deliberate consideration of the total equities inherent in the problem. In such regard we note both the imminence of the pending general election 5 and the regularly scheduled session of the Utah Legislature in 1965. The primary duty to establish a valid representation in the legislature lies with those officers of the State of Utah charged with the enactment of its law and does not lie with this court. Consequently, we think that the present welfare of the people of the State of Utah may best be served by withholding any immediate affirmative judicial relief in order to allow the legislature of the state to give its consideration to the complexities of apportionment and to enact at their first opportunity6 a valid law which meets the demands of the Constitution of the United States and which in their solemn judgment will best serve the welfare of the people of Utah. Should the legislature fail, refuse or be unable to reapportion validly it will be this court’s duty to give further consideration to the necessity of giving plaintiffs injunctive and affirmative relief by judicial decree. And for such purpose jurisdiction will be retained.
We do not deem it necessary or desirable to set out herein with particularity any specific plan of reapportionment that would meet federal constitutional requirements. To do so would be but to invite advocacy of such a plan as “court approved” or criticism of such plan as “court dictated.” Such is not the judicial function, for an almost unlimited number of greatly varying plans can satisfy the federal mandate. The legislature is faced with a discretionary problem limited only by the principle that apportionment must be based upon substantial equality of population with such minor deviations as “are free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620. Nor will this court now attempt to state in precise mathematical language the constitutionally permissible bounds of deviation from apportionment based strictly on population, ibid., but we call attention to the decisions of other courts indicating that any disparity greater than fifty per cent of the norm will be subject to [965]*965close judicial scrutiny and may be shown to be a result of factors other than substantial equality of population and therefore impermissible. Compare Sincock v. Duffy, D.Del., 215 F.Supp. 169, 190, affirmed and remanded, Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449; Drew v. Scranton, M.D.Pa., 229 F.Supp. 310, 325, passim.
In summary we hold:
1. That the Reapportionment Act of 1963 is unconstitutional as violative of the Fourteenth Amendment to the Constitution of the United States in its apportionment of representation in the Utah State Senate.
2. That the Reapportionment Act of 1963 is unconstitutional as violative of the Fourteenth Amendment to the Constitution of the United States in its apportionment of representation in the Utah State House of Representatives.
3. That to the extent that the provisions of Article IX of the Utah Constitution compel an apportionment of representation in the Utah Legislature that is violative of the Constitution of the United States, such provisions of the Utah Constitution are themselves unconstitutional and should not be regarded as mandatory upon the legislature of Utah when such provisions are considered either singly or in combination.
4. That the judgment of this court as reflected in 1, 2 and 3, supra, shall be a final judgment and as such subject to immediate review at the instance of the parties.
5. That jurisdiction of the case in all other aspects, including that to grant injunctive and affirmative relief to plaintiffs, is retained by this court.
A judgment will be entered accordingly.
APPENDIX A.
SENATE DISTRICTING AS PROVIDED BY 1963 REAPPORTIONMENT ACT.
Title 36, U.C.A., section 36-1-1: “Representation in senate. * * *
“First District: Box Elder County — one senator
“Second District: Cache County — one senator
“Third District: Rich, Morgan, and Summit Counties — one senator
“Fourth District: Weber County — two senators
“Fifth District: Duchesne and Wasatch Counties — one senator
“Sixth District: Salt Lake County — seven senators
“Seventh District: Utah County — two senators
“Eighth District: Beaver and Millard Counties — one senator
“Ninth District: Sanpete County — one senator
“Tenth District: Emery, Wayne, Piute, Garfield, and Kane Counties — one senator
“Eleventh District: Iron County — one senator
“Twelfth District: Grand and San Juan Counties — one senator
“Thirteenth District: Juab and Tooele Counties — one senator
“Fourteenth District: Carbon County — one senator
“Fifteenth District: Davis County — two senators
“Sixteenth District: Uintah and Daggett Counties — one senator
“Seventeenth District: Sevier County — one senator
“Eighteenth District: Washington County — one senator”
[966]*966APPENDIX B.
POPULATION OF SENATE DISTRICTS UNDER 1963 REAPPORTIONMENT ACT.
Senate Districts County Population Number of Senators
1 Box Elder 25,061 1
2 Cache 35,788 1
3 Rich, Morgan,-
Summit 10,195 1
4 Weber 110,744 2
5 Duchesne,
Wasatch 12,487 1
6 Salt Lake 383,035 7
7 Utah 106,991 2
8 Beaver,
Millard 12,197 1
9 Sanpete 11,053 1
10 Emery, Wayne,
Piute, Garfield,
Kane 14,954 1
11 Iron 10,795 1
12 Grand, San Juan 15,385 1
13 Juab, Tooele 22,465 1
14 Carbon 21,135 1
15 Davis 64,760 2
16 Uintah, Daggett 12,746 1
17 Sevier 10,565 1
18 Washington 10,271 1
APPENDIX C.
HOUSE OF REPRESENTATIVES DISTRICTING AS PROVIDED IN 1963 REAPPORTIONMENT ACT.
Title 36, U.C.A., section 36-1-2 “Representation in house of representatives. * * *
“First District: Box Elder County — two representatives
“Second District: Cache County — two representatives
“Third District: Rich County — one representative
“Fourth District: Weber County — seven representatives
“Fifth District: Morgan County — one representative
“Sixth District: Davis County — four representatives
“Seventh District: Tooele County — one representative
“Eighth District: Salt Lake County — twenty-four representatives
“Ninth District: Summit County — one representative
“Tenth District: Wasatch County — one representative
“Eleventh District: Utah County — -seven representatives
“Twelfth District: Uintah County — one representative
“Thirteenth District: Juab County — one representative
“Fourteenth District: Sanpete County — one representative
“Fifteenth District: Carbon County — one representative
[967]*967“Sixteenth District: Emery County — one representative
“Seventeenth District: Grand County — one representative
“Eighteenth District: Sevier County — one representative
“Nineteenth District: Millard County — one representative
“Twentieth District: Beaver County — one representative
“Twenty-first District: Piute County — one representative
“Twenty-second District: Wayne County — one representative
“Twenty-third District: Garfield County — one representative
“Twenty-fourth District: Iron County — one representative
“Twenty-fifth District: Washington County — one representative
“Twenty-sixth District: Kane County — one representative
“Twenty-seventh District: San Juan County — one representative
“Twenty-eighth District: Duchesne County — one representative
“Twenty-ninth District: Daggett County — one representative”
APPENDIX D.
POPULATION OF HOUSE OF REPRESENTATIVES DISTRICTS • UNDER 1963 REAPPORTIONMENT ACT.
Representative Number of RepreDistricts County Population sentatives
1 Box Elder 25,061 2
2 Cache 35,788 2
3 Rich 1,685 1
4 Weber 110,744 7
5 Morgan 2,837 1
6 Davis 64,760 4
7 Tooele 17,868 1
8 Salt Lake 383,035 24
9 Summit 5,673 1
10 Wasatch 5,308 1
11 Utah 106,991 7
12 Uintah 11,582 1
13 Juab 4,597 1
14 Sanpete 11,053 1
15 Carbon 21,135 1
16 Emery 5,546 1
17 Grand 6,345 1
18 Sevier 10,565 1
19 Millard 7,866 1
20 Beaver 4,331 1
21 Piute 1,436 1
22 Wayne 1,728 1
23 Garfield 3,577 1
24 Iron 10,795 1
25 Washington 10,271 1
26 Kane 2,667 1
27 San Juan 9,040 1
28 Duchesne 7,179 1
29 Daggett 1,164 1