DAVISON, J.
This is an original action in this court wherein the petitioner, Richard E. Romang, a voter and taxpayer of the State of Oklahoma, a resident of Garfield county and a State Representative therefrom, seeks the issuance of a writ of mandamus, directing the respondent, J. William Cordell, Secretary of the Election Board of the State of Oklahoma, to refuse to accept and file certain notifications and declarations of candidacy for nomination and election as members of the House of Representatives because of the alleged invalidity and unconstitutionality of parts of the 1951 act of the Legislature apportioning members of said House of Representatives.
The act under attack is House Bill No. 348 of the 1951 Legislature which is also designated 14 O. S. 1951 §§93-96, inc. The purpose of the act was to provide for “legislative apportionment of the House of Representatives; vitalizing art. V, §10 of the Constitution of the State of Oklahoma; establishing the decennial legislative period of November 16, 1952 — November 15, 1962, and dividing it into biennial legislative periods; establishing legislative districts and the number and boundaries thereof; designating the number of representatives for each county of the State; and repealing Acts in conflict.”
Petitioner contends that “under said Apportionment Act, thirty-five counties are allotted the exact number of State Representatives to which they are entitled, but forty-two different counties are allotted more representatives than permitted under the Constitution (art. V, §10); that the petitioner, as well as every other citizen living in a county having a constitutional number of State Representatives, is deprived of equal representation with those in the forty-two counties having extra State Representatives out of proportion to their population.”
It is not necessary to here discuss, in detail or at length, the constitutionality of the act under consideration. It violates the provisions of art. V, §10 of the Oklahoma Constitution, in the same particulars and to approximately the same extent as the previous apportionment acts and is, therefore, subject to the same criticisms which were discussed thoroughly in the case of Jones v. Freeman, 193 Okla. 554, 146 P. 2d 564. In that opinion, this court pointed out, with particularity, the “principles expressed or implied in the Constitution, (which) must be observed,” in order for an appointment act to be constitutional. None of these were followed in the preparation and passage of the 1951 act. It would serve no useful purpose to here repeat them or the legal foundation upon which they rest.
Of much more practical importance, is the other proposition with which we are confronted, namely, whether or not this court has power to grant the relief sought. In its zeal to prevent another from violating the provisions of the Constitution and exercising a power not authorized thereby, the court should not overlook the fact that its authority also springs from and is limited by the provisions of that same fundamental law. In a democratic form of government, the Constitution is the expression of the will of the people, the source of all governmental power and authority. Therefore, if a power is not, by the Constitution, conferred upon some department or officer of the government, it remains in the people.
“The People are vested with the supreme and sovereign authority. The Constitution is the voice of the People speaking in their sovereign capacity. (Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327, 342.)
“An act of the legislature is the voice of the People speaking through their representatives. The authority of the representatives in the legislature is a delegated authority and it is wholly derived from and dependent upon the Constitution.” In the Matter of Sherrill v. O’Brien, 188 N. Y. 185, 81 N. E. 124.
[371] The case of Fergus v. Marks, 321 Ill. 510, 152 N. E. 557, 46 A. L. R. 960, involved an application for a writ of mandamus compelling the Legislature to reapportion the state into legislative districts as required by the Constitution. In holding that it did not have jurisdiction to issue the writ, the court made the following statement:
“ . . . the powers of the government of this State are divided into three distinct departments, — the legislative, executive and judicial, — and no person or collection of persons, being one of these departments, may exercise any power properly belonging to either of the others, except as expressly directed or permitted by the Constitution. Neither of these three departments is subordinate to or may exercise any control over another except as is provided by the Constitution. . . .”
The opinion in the Jones v. Freeman case, supra, contains an extensive discussion of the jurisdiction of the court to determine the constitutionality of apportionment acts together with a collection of citations of many cases from other states dealing with the same proposition. Therein, art. V, §10 (j) of the Constitution, which provides as follows:
“An apportionment by the Legislature shall be subject to review by the Supreme Court at the suit of any citizen, under such rules and regulations as the legislature may prescribe, . .
was mentioned several times but there was no determination of whether or not it was self-executing or, if so, the extent of its effectiveness. It was there said:
“Assuming that section 10 (j), above, is self-executing, it does not follow that this court would have authority to revise and change the districts as fixed by the Legislature and as urged by the petitioner. While in some instances the words ‘review’ and ‘revise’ are used synonymously, we do not believe the framers o,f the Constitution so used the word ‘review’ in said provision. This court should not assume such authority, which is generally considered a legislative function, except where the language used is plain and compelling. It should not do so by a process of construction of language of doubtful meaning. Neither may we, by mandamus or otherwise, require the Legislature to enact proper apportionment statutes. The theory of separation of the powers of government prevents our doing so. The Legislature, being a co-ordinate branch of the government, may not be compelled by the courts to perform a legislative duty, even though the performance of that duty be required by the Constitution.”
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DAVISON, J.
This is an original action in this court wherein the petitioner, Richard E. Romang, a voter and taxpayer of the State of Oklahoma, a resident of Garfield county and a State Representative therefrom, seeks the issuance of a writ of mandamus, directing the respondent, J. William Cordell, Secretary of the Election Board of the State of Oklahoma, to refuse to accept and file certain notifications and declarations of candidacy for nomination and election as members of the House of Representatives because of the alleged invalidity and unconstitutionality of parts of the 1951 act of the Legislature apportioning members of said House of Representatives.
The act under attack is House Bill No. 348 of the 1951 Legislature which is also designated 14 O. S. 1951 §§93-96, inc. The purpose of the act was to provide for “legislative apportionment of the House of Representatives; vitalizing art. V, §10 of the Constitution of the State of Oklahoma; establishing the decennial legislative period of November 16, 1952 — November 15, 1962, and dividing it into biennial legislative periods; establishing legislative districts and the number and boundaries thereof; designating the number of representatives for each county of the State; and repealing Acts in conflict.”
Petitioner contends that “under said Apportionment Act, thirty-five counties are allotted the exact number of State Representatives to which they are entitled, but forty-two different counties are allotted more representatives than permitted under the Constitution (art. V, §10); that the petitioner, as well as every other citizen living in a county having a constitutional number of State Representatives, is deprived of equal representation with those in the forty-two counties having extra State Representatives out of proportion to their population.”
It is not necessary to here discuss, in detail or at length, the constitutionality of the act under consideration. It violates the provisions of art. V, §10 of the Oklahoma Constitution, in the same particulars and to approximately the same extent as the previous apportionment acts and is, therefore, subject to the same criticisms which were discussed thoroughly in the case of Jones v. Freeman, 193 Okla. 554, 146 P. 2d 564. In that opinion, this court pointed out, with particularity, the “principles expressed or implied in the Constitution, (which) must be observed,” in order for an appointment act to be constitutional. None of these were followed in the preparation and passage of the 1951 act. It would serve no useful purpose to here repeat them or the legal foundation upon which they rest.
Of much more practical importance, is the other proposition with which we are confronted, namely, whether or not this court has power to grant the relief sought. In its zeal to prevent another from violating the provisions of the Constitution and exercising a power not authorized thereby, the court should not overlook the fact that its authority also springs from and is limited by the provisions of that same fundamental law. In a democratic form of government, the Constitution is the expression of the will of the people, the source of all governmental power and authority. Therefore, if a power is not, by the Constitution, conferred upon some department or officer of the government, it remains in the people.
“The People are vested with the supreme and sovereign authority. The Constitution is the voice of the People speaking in their sovereign capacity. (Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327, 342.)
“An act of the legislature is the voice of the People speaking through their representatives. The authority of the representatives in the legislature is a delegated authority and it is wholly derived from and dependent upon the Constitution.” In the Matter of Sherrill v. O’Brien, 188 N. Y. 185, 81 N. E. 124.
[371] The case of Fergus v. Marks, 321 Ill. 510, 152 N. E. 557, 46 A. L. R. 960, involved an application for a writ of mandamus compelling the Legislature to reapportion the state into legislative districts as required by the Constitution. In holding that it did not have jurisdiction to issue the writ, the court made the following statement:
“ . . . the powers of the government of this State are divided into three distinct departments, — the legislative, executive and judicial, — and no person or collection of persons, being one of these departments, may exercise any power properly belonging to either of the others, except as expressly directed or permitted by the Constitution. Neither of these three departments is subordinate to or may exercise any control over another except as is provided by the Constitution. . . .”
The opinion in the Jones v. Freeman case, supra, contains an extensive discussion of the jurisdiction of the court to determine the constitutionality of apportionment acts together with a collection of citations of many cases from other states dealing with the same proposition. Therein, art. V, §10 (j) of the Constitution, which provides as follows:
“An apportionment by the Legislature shall be subject to review by the Supreme Court at the suit of any citizen, under such rules and regulations as the legislature may prescribe, . .
was mentioned several times but there was no determination of whether or not it was self-executing or, if so, the extent of its effectiveness. It was there said:
“Assuming that section 10 (j), above, is self-executing, it does not follow that this court would have authority to revise and change the districts as fixed by the Legislature and as urged by the petitioner. While in some instances the words ‘review’ and ‘revise’ are used synonymously, we do not believe the framers o,f the Constitution so used the word ‘review’ in said provision. This court should not assume such authority, which is generally considered a legislative function, except where the language used is plain and compelling. It should not do so by a process of construction of language of doubtful meaning. Neither may we, by mandamus or otherwise, require the Legislature to enact proper apportionment statutes. The theory of separation of the powers of government prevents our doing so. The Legislature, being a co-ordinate branch of the government, may not be compelled by the courts to perform a legislative duty, even though the performance of that duty be required by the Constitution.”
An analysis of the situation in the case at bar supplies several reasons why said section 10(j) of article V of the Constitution, and legislative enactments supplementary thereto (which have never been made in this state), would be beneficial and why the constitutional provision, standing alone, does not meet the requirements of many situations. The only parties actually before the court here are the plaintiff, who is a resident of, and State Representative from Garfield county, and the defendant, who is Secretary of the State Election Board, and who could have little, if any, actual adverse interest in the litigation. Any relief granted plaintiff, in line with the prayer of the petition, would adversely affect all residents of 42 of the 77 counties of the state, by depriving them of representation, in whole or in part, in the lower house of the Legislature. By granting the writ prayed for, 18 counties having a combined population of over 157,000 would be denied representation in the House of Representatives. The wording of the section indicates that the framers of the Constitution foresaw that just such a situation could arise and, therefore, so drafted the same that there might be a judicial review of the act in conformity with rules and regulations to be prescribed by the Legislature which would include some form of notice to interested par-ites and an opportunity for them to defend their rights. Until that is done, any review by the court is, for all practical purposes, little more than ex [372] parte and the jurisdiction of the court need not be greater than is provided by other parts of the Constitution or is naturally inherent. No rules and regulations .for such review have been adopted nor has the supreme sovereign power, the people, seen fit to force such action. Until it is done, no effectual relief can be enforced by the courts because they have “no power, under the Constitution, to compel the Legislature to (properly) reapportion the State, as required by the Constitution. * * * What this court cannot do directly in this respect it cannot do indirectly.” People ex rel. Fergus v. Blackwell, 342 Ill. 223, 173 N. E. 750.
In the case of Burns v. Flynn, 155 Misc. 742, 281 N. Y. S. 494, the petitioner sought an order of mandamus directing the Secretary of State and the Board of Elections of the City of New York to certify certain additional Senators and assemblymen in a certain county in New York because of an increase in population as shown by the latest Federal census. The court denied the writ, holding that reapportionment “is clearly the duty of the Legislature,” and a failure on their part “to act certainly does not give this court power to order an apportionment or assignment of legislative representatives.” The same rule would apply to the cancelling of an apportionment or assignment. Such in effect was the holding of this court in the case of Grim v. Cordell, 197 Okla. 144, 169 P. 2d 567.
Whether or not this court should issue any of the writs authorized by art. VII, §2 of the Constitution, when another co-ordinate branch of the government violates constitutional provisions, depends upon their necessity in order to safeguard the “sovereignty of the state, its franchises or prerogatives or the liberties of its people.” State v. Frear, 148 Wis. 456, 134 N. W. 673. Such necessity is, in turn, dependent upon the facts in each particular case.
The following statement, made in the case of Jones v. Freeman, supra, is applicable to the case at bar:
“But, though it may be conceded that we have the power to declare all apportionment statutes enacted since statehood void and to require the next election to be held under the apportionment made by the Constitution, it does not follow that we should do so. The result of such action would be to increase the inequality of representation already existing.”
The solution of the problem, in its final analysis, is solely in the hands of the people as the supreme sovereign. They may elect members of the Legislature who will enact a reapportionment act in conformity with the constitutional requirements as outlined herein and in the case of Jones v. Freeman, supra, or who will prescribe rules and regulations whereby this court may review and revise such acts as contemplated in art. V, §10(j) of the Constitution; or they may initiate a proper statute; or, as said in Jones v. Freeman, supra, “they may follow the example of other states . . . and amend the Constitution to take the power of apportionment from the Legislature and vest it in a special officer or board or representative of the state as a whole.”
The writ is denied.
WELCH, GIBSON, JOHNSON, and BINGAMAN, JJ., concur. CORN, J., concurs in result. ARNOLD, C. J., HALLEY, V. C. J., and O’NEAL, J., dissent.