Full opinion text
KILEY, Circuit Judge: This is a three-judge court composed pursuant to 28 U.S.C. § 2284 as required by 28 U.S.C. § 2281 at the request of the District Court. The Court has before it two actions: Bruce L. Stout, et al. v. Charles O. Hendricks, Secretary of State of the State of Indiana, et al., filed August 2, 1961, and Nelson G. Grills v. Matthew E. Welsh, Governor of Indiana, et al., filed August 7, 1962. The actions were consolidated as to all proceedings and for trial of all matters in issue by the Court upon its own motion on November 27, 1962. Each action relates to the apportionment of the legislative branch of government of the State of Indiana. The first action is a class action brought by the plaintiffs, Bruce L. Stout, John E. Hunter, John S. Griffin and David L. Matthews, upon their own behalf and upon behalf of all qualified voters in the respective counties in which plaintiffs live and in the state, who are similarly situated, as is permitted by Rule 23(a) of the Federal Rules of Civil Procedure. The action is brought against certain named and unnamed defendants as members of the same class, all of whom are officials of the State of Indiana or of counties in the State of Indiana, and all of whom are sued in their official capacity. Jurisdiction in the first ease, the Stout case, is predicated upon 42 U.S.C. §§ 1983 and 1988, the Civil Rights Acts, and upon 28 U.S.C. §§ 1343 and 1392(a), which relate to jurisdiction and venue of district courts. The complaint, as amended and supplemented, seeks pursuant to 28 U.S. C. § 2201, a declaration of plaintiffs’ rights and of the validity or invalidity of the statutes of the State of Indiana (Ind. Ann.Stats. §§ 34-102 and 34-104 (1949), hereinafter referred to as the “1921 apportionment statutes”) which apportion the members of the Indiana General Assembly among the counties of the State, and further, injunctive relief as may be proper to prevent defendants from continuing to comply with the allegedly unconstitutional statutes. The complaint in the Grills ease is an action by plaintiff Nelson G. Grills against the members of the State Election Board, who are also defendants in the Stout case, and is also a declaratory judgment action brought pursuant to 28 U.S.C. § 2201. The action is said to arise under, and jurisdiction is apparently predicated on, Article 4, Section 4, and Article 6 of, and the Fourteenth Amendment to, the Constitution of the United States. Although the theories of the two actions are not completely alike, the basic issue presented by each action is whether election of members of the Indiana General Assembly from districts created by the present statutes apportioning the legislature, passed in 1921, is in violation of the State and Federal Constitutions. The first action, the Stout case, is now before the Court following a trial upon the merits and upon a motion to dismiss the action, and the second action, the Grills case, is before the Court upon the motion of the plaintiff for a summary judgment and upon an amended motion to dismiss the action, which motion to dismiss is to be treated as a motion for summary judgment under the provisions of Rule 56 of the Federal Rules of Civil Procedure, since it contains matters outside the pleadings. There is no dispute about the relevant facts. They have been stipulated into the record and, in part, judicially noticed. The Court’s detailed statement of these facts is being filed contemporaneously herewith. It is deemed unnecessary to detail them in this opinion in view of the agreement by the defendants that these facts show that the 1921 apportionment statutes lack a rational basis. This agreement of the defendants sufficiently answers the vital question in these consolidated cases, i. e., “Do the 1921 apportionment statutes establish classifications predicated upon a rational basis or are they utterly arbitrary and lacking in rationality ? ” This agreement of the defendants also brings into play the decision of the United States Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), under which the instant court is to take jurisdiction and dispose of the plaintiffs’ suits. In respect to the latter, the Court finds and concludes, in fact and in law, that it has jurisdiction of the parties and the subject matter in each action. In view of defendants’ agreement that there is no rational basis for the 1921 apportionment acts, the conclusion follows, Baker v. Carr, that the acts are unconstitutional since they deny equal protection to plaintiffs, and those represented by them, in violation of the Fourteenth Amendment to the Constitution of the United States. Plaintiffs therefore are entitled to injunctive relief. The Stout case was filed in August, 1961, and this three-judge court was appointed by Chief Judge Hastings on August 14, 1961. The Grills case was filed in August, 1962. On October 19, 1962, the Court declined, at Grills’ insistence, to interfere with the November, 1962, election of members of the General Assembly. The Court at that time deemed it wise to abstain from action until after the General Session of the legislature in January and February of 1963. In that session, a reapportionment bill was passed by both houses of the General Assembly. It was vetoed by the Governor. The veto was sustained by the General Assembly. A Special Session was called by the Governor for April, 1963, and the call of the session included the subject of reapportionment. This Court again abstained from action with the expectation that appropriate reapportionment legislation would be adopted into law. Postponement of court action on both occasions was consistent with the wholesome doctrine of judicial abstention. To have done otherwise on either occasion would have been an unseemly judicial interference with a legislative function and responsibility. The legislature in the Special Session-adopted a resolution providing for a new basis of apportionment of legislative districts. The resolution, if it were to survive all necessary steps resulting in ■amendment of the Constitution, would not result in a legislature from reapportioned districts until the 1975 General -Session. In June, 1963, defendants con-ceded for the first time in this litigation that the Indiana apportionment statute of 1921 was, in effect, unconstitutional. 'The Court’s duty thereupon became clear. This Court cannot perform that duty Tby accepting the legislative resolution of April, 1963, as a satisfactory effort to •establish a just and constitutional reapportionment of Indiana’s present legislative districts having no rational basis. To accept the resolution as satisfactory would unduly delay justice for the citizens of Indiana. This Court is urged by plaintiffs to direct an “at-large” election for members of the General Assembly. The Court is not disposed to burden the Indiana electors with the obvious confusing and disrupting consequences of ordering that relief, especially in 1964, the year of a presidential election. This “cure” could Ue worse than the “disease.” Nor has the Court seriously considered declaring void "the November, 1962, election of members ■of the General Assembly of Indiana upon the vain hope that “within thirty days” the members thereby rendered de facto would adopt a just and constitutional re.-apportionment statute. To grant this prayer would be reckless. Finally, plaintiffs ask this Court itself to establish a just reapportionment. This xelief the Court must grant in the ab.sence of just and constitutional reapportionment legislation by the Indiana Gen•eral Assembly. It is unfortunate that federal courts in general have of necessity been drawn into assuming legislative responsibility •because of the failure of representatives elected by the people to abide by their sworn duty under the constitutions of the states. This Court is concerned to afford to the citizens of Indiana every practical, possible opportunity to obtain a just and constitutional apportionment through the legislative processes established by them in their fundamental law. We have decided, therefore, that we should suspend the effective date of the injunctive relief to be granted by this Court simultaneously with the filing of this opinion; and that we should defer court action to establish the appropriate reapportionment of legislative districts of the state. This is the middle path between accepting the legislative resolution of April, 1963, and granting the “at-large” election or the “thirty-day” relief. We think the electors of Indiana should have an opportunity in 1964 — with the aid of all other persons and groups interested in the problem — -to select representatives for the General Assembly who may hold best promise of dedication to attaining the goal of a just and constitutional apportionment in the 1965 General Assembly. We cannot assume that, of necessity, the electors cannot successfully demand and receive from the political parties of their choice an opportunity to make such a selection. It is our opinion, therefore, that the injunctive relief to be granted here should be made effective after the November, 1964, election, and that any court-established reapportionment of the State of Indiana should be dependent upon the failure of the General Assembly elected by the people in 1964 to enact appropriate reapportionment legislation in the 1965 General Session. DECLARATORY JUDGMENT AND DECREE. In accordance with the foregoing opinion, and based upon the Court’s detailed findings of fact being filed contemporaneously herewith, and it having been agreed by the defendants that the 1921 apportionment statutes (Ind.Ann.Stats. §§ 34-102, 34-104 (1949)) have no rational basis, and the Court having considered the pending motions and being further fully advised in the premises, It is ordered that defendants’ motion to dismiss the complaint in Grills v. Welsh, et al., No. IP 62-C-326, be and it is hereby denied. It is further ordered that the motion of plaintiff Grills in Case No. IP 62-C-326 for summary judgment be and it is hereby denied in so far as it differs from the relief prayed for in Case No. IP 61-C-236. The Court finds, on the facts stipulated, and upon the admission of defendants by the Attorney General of the State of Indiana, that there is no rational basis for the said 1921 apportionment statutes, and finds that the said statutes are invidiously discriminatory in violation of the Fourteenth Amendment of the Constitution of the United States; and it is therefore declared by the Court that said statutes are unconstitutional and void. The Court further finds, by reason of the foregoing declaration, that the plaintiffs are entitled to injunctive relief prayed for in Case No. IP 61-C-236; It is therefore ordered, adjudged and decreed, that the named defendants in each of the consolidated actions, and the unnamed defendants in the Stout action, as members of the same class as those named in said action, all of whom are officials of the State of Indiana or of counties in the State of Indiana, and their successors in office, be and they are hereby restrained and enjoined from conducting under said 1921 apportionment statutes any election after the 1964 general election to be held in November, 1964. It is therefore ordered that the Court reserves judgment at this time upon all other relief prayed by plaintiffs; that these consolidated eases are hereby reopened for the purpose of receiving additional recommendations from the parties hereto with respect to the further relief to be granted herein; and the Court hereby reserves jurisdiction in these consolidated causes to grant such further relief as may from time to time be deemed appropriate. STATEMENT OF THE FACTS. Based upon the evidence before the Court in the Stout case, which has been submitted largely by stipulation, and other facts of judicial notice, along with the pleadings, admissions, and affidavit in the Grills case, the Court finds the facts as here set out. The plaintiffs in the first action, Bruce L. Stout, John E. Hunter, John S. Griffin, and David L. Matthews, are citizens, residents and qualified voters residing in four counties of the State of Indiana, to wit, Allen, Lake, Marion, and St. Joseph counties, respectively. The defendant Charles O. Hendricks is the Secretary of State of the State of Indiana; the duties of his office include receipt of declarations of candidacy for nomination of members of the Indiana General Assembly at primary elections, transmission to the Clerk of the Circuit Court in each county of a certified list of candidates entitled to be voted for at primary elections, and other administrative, duties in connection with the holding of primary elections at which candidates for the Indiana General Assembly are nominated. The defendants Matthew E. Welsh, Edwin M. S. Steers and James E. Noland, named in both actions, are the members of the State Election Board of Indiana. The State Election Board has the duty of administering the election laws of the State of Indiana in their statewide application, distributing ballots and other supplies to local election officials, and generally supervising the conduct of elections on a statewide basis and by local election officials. The other named defendants are the Clerks of the Circuit Court and members of the County Election Boards of Allen, Lake, Marion and St. Joseph Counties, Indiana. The official duties of the Clerk of Circuit Court in each county of Indiana include acting as ex officio member and secretary of the County Election Board, publication of the list of candidates for office, including members of the Indiana General Assembly, to be voted upon at primary elections in such county, furnishing to the Secretary of State certified statements of the number of votes cast in such county for each candidate for member of the Indiana General Assembly, furnishing certificates of election to those persons elected to office in such county, including members of the Indiana General Assembly, preservation of ballots and election records, and other ministerial duties in connection with the holding of primary and general elections in such county. The County Election Board in each county has the duty of conducting all primary and general elections in such county (other than town elections), including preparation and distribution of ballots and voting machines, appointment and supervision of precinct election officials, tabulating the vote of the county for each office and certifying to the Clerk of Circuit Court the number of votes cast for each candidate for office (including members of the Indiana General Assembly) in each precinct, ward or township of the county. The class defendants, not specifically named as parties to this action, include the Clerks of Circuit Courts and members of the County Election Boards in each of the ninety-two counties into which the State of Indiana is divided. The General Assembly of Indiana, as established by Article 4, Section 2, of the Constitution of Indiana, consists of a House of Representatives of one hundred (100) members and a Senate of fifty (50) members. Under the Indiana Constitution regular sessions of each General Assembly are held biennially in odd-numbered years (Article 4, Section 9) and are limited in duration to sixty-one days (Article 4, Section 29). Special sessions can meet only upon call of the Governor (Article 4, Section 9) and each special session is limited in duration to forty (40) days (Article 4, Section 29). There is no state constitutional limitation upon the number of special sessions of any General Assembly which the Governor may call. Unlike many state constitutions, the Indiana Constitution contains no provision for initiative or referendum under which the people themselves could initiate and pass legislation for the purpose of reapportioning the Indiana General Assembly. And, under the Indiana Constitution, there is no effective way by which a constitutional convention may be called for the purpose of amending the Indiana Constitution, unless the General Assembly should provide for placing upon the ballot in any general election the question of whether or not such a constitutional convention shall be called. The provisions of the Indiana Constitution relating to division and apportionment of the membership of the General Assembly among the counties and districts of the State are as follows: [Article 4, Sections 2, 3, 4, 5, 6, and 7.] “§ 2. Number of members. — The Senate shall not exceed fifty, nor the House of Representatives one hundred members; and they shall be chosen by the electors of the respective counties or districts, into which the State may, from time to time, be divided. “§ 3. Term of office. — Senators shall be elected for the term of four years, and Representatives for the term of two years, from the day next after their general election: Provided, however, that the Senators elect, at the second meeting of the General Assembly under this Constitution, shall be divided, by lot, into two equal classes, as nearly as may be; and the seats of Senators of the first class shall be vacated at the expiration of two years, and those of the second class, at the expiration of four years; so that one-half, as nearly as possible, shall be chosen biennially forever thereafter. And in case of increase in the number of Senators, they shall be so annexed, by lot, to one or the other of the two classes, as to keep them as nearly equal as practicable. “§ 4. Periodical enumeration.— The General Assembly shall, at its second session after the adoption of this Constitution, and every sixth year thereafter, cause an enumeration to be made of all the male inhabitants over the age of twenty-one years. * * * “§ 5. Apportionment of representation. — The number of Senators and Representatives shall, at the session next following each period of making such enumeration, be fixed by law, and apportioned among the several counties, according to the number of male inhabitants, above twenty-one years of age, in each: Provided, that the first and second elections of members of the General Assembly, under this Constitution, shall be according to the apportionment last made by the General Assembly, before the adoption of this ■constitution. * * * “§ 6. Districts — Requirements as to divisions. — A Senatorial or Representative District, where more than ■one county shall constitute a district, shall be composed of contiguous counties; and no county, for Senatorial apportionment, shall ever be ■divided. “§ 7. Qualifications of members ■of assembly. — No person shall be a ■Senator or a Representative who, at •the time of his election, is not a citizen of the United States; nor any one who has not been for two years next preceding his election, an inhabitant of this State, and, for one year next preceding his election, an inhabitant of the county or district, whence he may be chosen. Senators shall be at least twenty-five, and Representatives at least twenty-one years of age.” In 1921, the General Assembly enacted Ind.Ann.Stats., Sections 34-102 and 34-104 (1949), (Indiana Acts 1921, Chapter 78, Section 2, and Acts 1921, Chapter 271, Section 2) (hereinafter referred to as the “1921 apportionment statutes”), which apportioned the members of the Indiana House of Representatives and Senate among the ninety-two counties of the state, as required by the aforementioned provisions of the Indiana Constitution. Such apportionment presumably was based upon an official enumeration of male inhabitants over twenty-one years of age in each county taken in 1919 and published by the Auditor of State. This apportionment has been in effect for all elections of members of the General Assembly beginning with the 1922 elections and is now in effect. No complete state enumeration, as required by Article 4, Section 4, of the Indiana Constitution, for purposes of apportionment of the Indiana General Assembly, has been taken or certified since 1931. The statutes (Ind.Ann.Stats. §§ 65-601 to 65-625 [Burns’ 1951 Repl.]) which provided for a method of taking the enumeration required under Article 4, Section 4, of the Indiana Constitution were repealed by Indiana Acts 1961, Chapter 319, and no law presently in effect provides for a method of taking such enumeration. The districts established by the 1921 apportionment statutes; the number of representatives or senators allocated to each district; the population per representative and senator of each district as shown by the 1919 state enumeration of male inhabitants over twenty-one years of age in each county; the population per representative and senator of the same districts as shown by the 1960 federal census of voting population in each county; and the relationship of the population per representative and senator in each district to the population of a district apportioned upon population, or an “ideal” district (with respect to both the 1919 state enumeration and 1960 federal census of voting population) are listed in Appendix A (with respect to the House of Representatives) and Appendix B (with respect to the Senate). [For purposes of these tables, in instances where one county is allocated one or more representative or senator, and in addition such county is allocated another representative or senator jointly with an adjoining county, such overlapping districts are combined in order to determine population per representative or senator. The population of an “ideal” district is defined to mean the total population of the state (as determined by the enumeration or census referred to, as the case may be) divided by 100, in the case of the House of Representatives (Appendix A), or such population divided by 50, in the case of the Senate (Appendix B).] Between 1920 and 1960 the total population of the State of Indiana, as determined by the decennial U. S. Census for 1920 and 1960, respectively, increased from 2,930,390 to 4,662,498, representing an increase in population for the state as a whole of 59.1 per cent. However, population changes in the various counties of Indiana during such period have been very uneven, with seventy-two counties having increased in population during such period and the remaining twenty counties having decreased in population. Eleven counties, including the four large counties in which plaintiffs in this action reside, more than doubled in population between 1920 and 1960. Of the counties which decreased in population during such period, thirteeen counties had a decrease of 10 per cent or more, and seven counties had decreases of more than 20 per cent. In terms of voting population per representative and senator as determined by the 1960 federal census, the largest representative district listed in Appendix A (Lake and Porter Counties combined) is 5.8 times as large as the smallest representative district (Parke County), and the largest senatorial district listed in Appendix B (Lake County) is 3.9 times as large as the smallest senatorial district (Clay and Parke Counties combined). Thus, one vote in Parke County for a member of the Indiana House of Representatives has the same weight as 5.8 votes in Lake or Porter County for a member of the House of Representatives, and one vote in Parke or Clay County for a member of the Indiana Senate has the same weight as 3.9 votes in Lake County for a member of the Senate. The evidence shows that, based upon the 1960 federal census of voting population in the various counties of Indiana, including districts now vacant by reason of death or resignation, twenty of the-one hundred members of the Indiana House of Representatives represent districts having less than two-thirds of the population of an “ideal” district, and fourteen additional members represent districts having between two-thirds and' three-fourths of the population of an “ideal” district. Twenty-six members of the House of Representatives represent districts having more than 125 per cent of the population of an “ideal” district. In the case of the Indiana Senate, eleven of the fifty members of that body represent districts having less than two-thirds-of the population of an “ideal” district, and five additional senators represent districts having between two-thirds and three-fourths of the population of an “ideal” district, and thirteen senators represent districts having more than 125-per cent of the population of an “ideal” district. The evidence further establishes that, based upon the 1960 federal census of voting population in the various-Indiana counties, eighteen House of Representatives districts electing twenty members of the House have voting populations per representative less than half as large as that of the district including Allen County; nineteen districts electing twenty-one members of the House have voting populations per representative less than half as large as that of the district including Marion County; forty-two districts electing forty-seven members of the House have voting populations per representative less than half as large as that of St. Joseph County; and forty-eight districts electing fifty-six members of the House having voting populations per representative less than half as large as that of the district including Lake County. Eleven Senate districts each electing one member to the Indiana Senate have voting populations per senator less than half as large as that of the districts including Allen County and Marion County; thirteen districts each electing one senator have voting populations per senator less than half as large as that of the district including St. Joseph County; and twenty-one districts electing twenty-two senators have voting populations per senator less than half as large as that of Lake County. Finally, the evidence shows that, according to the 1960 federal census, 35.3 per cent of the voting population of Indiana elects 51 per cent of the one-hundred members of the Indiana House of Representatives, and 37.4 per cent of the voting population elects twenty-six of the fifty members of the Indiana Senate. The “adjusted representation” of each county in Indiana in the House of Representatives and the Senate, and the “adjusted total representation” of each county in the General Assembly, as computed in accordance with the 1960 federal census of voting population, is listed in Appendix C. “Adjusted representation” for each county is computed as follows: The number of representatives or senators apportioned to such county alone, plus a fraction for each representative or senator which such county shares with one or more other counties, the numerator of which fraction is the voting population of such county and the denominator of which is the total voting population of all counties in the representative or senatorial district. “Adjusted total representation” for each county is computed as follows: (1) The number of representatives apportioned to such county alone, plus (2) twice the number of senators apportioned to such county alone, plus (3) a fraction for each representative which such county shares with one or more other counties, the numerator of which is the voting population of such county and the denominator of which is the total voting population of all counties in the representative district, plus (4) double a fraction for each senator which such county shares with one or more other counties, the numerator of which fraction is the voting population of such county and the denominator of which is the total voting population of all counties in the senatorial district. For purposes of this table (Appendix C), the various counties of Indiana are grouped into three categories, as follows: (1) “Rural” Counties are those counties having no municipality with total population of 10,000 or more; (2) “Semi-rural” Counties are those counties having one or more municipalities with total population of more than 10,000 but no municipality having total population of more than 50,000; and (3) “Urban” Counties are those counties having one or more municipalities with total population in excess of 50,000. As is shown by Appendix C, the disparity in representation in the General Assembly is not confined to differences based upon the rural, semirural or urban nature of the various counties. For example, Posey County, a rural county, has an Adjusted Total Representation of 0.27 with a 1960 voting population of 11,666, while Parke County, also a rural county, has a 1960 voting population of only 9,390, but has an Adjusted Total Eepresentation of 1.74. Johnson County, also a rural county, has a 1960 voting population of 25,059 (almost three times as great as that of Parke County), but has a Total Adjusted Eepresentation of 0.18. Similar disparities are found in counties classed as “semirural.” Thus Porter County has a 1960 voting population of 33,694 with an Adjusted Total Eepresentation of 1.26, while another semirural county, Huntington, has an Adjusted Total Eepresentation of 2.26, but has a 1960 voting population of only 20,615. And the urban County of Vigo has 6.66 Adjusted Total Eepresentation with a 1960 voting population of 68,157, whereas the urban County of St. Joseph has an Adjusted Total Eepresentation of only 6.76, but had a 1960 voting population of 141,959. The above are merely a few of the instances in which the evidence shows that the representative and senatorial districts in the Indiana General Assembly are not presently apportioned among the several counties of the State according to the number of male inhabitants over twenty-one years of age in each, as required by Article 4, Section 5, of the Indiana Constitution, and that such districts are not apportioned according to voting population, total population or any other criterion relative to population, in either the House of Eepresentatives or the Senate. Nor are such districts apportioned upon a basis of the urban, semi-rural or rural character thereof. In an apportionment of districts based upon population, whether the criterion used is male inhabitants over twenty-one years of age, voting population, or total population, and utilizing the 1960 federal census figures, with the number of representatives or senators to which a county would be entitled rounded to the nearest half number, the counties in which plaintiffs in this action reside would be entitled to the following number of representatives and senators: Allen County — 5 representatives and 2% senators; Lake County — 11 representatives and 5% senators; Marion County — 15 representatives and 7% senators; St. Joseph County- — -5 representatives and 2% senators. The number of representatives and senators which these counties now have (joint floterial representatives and senators being counted for this purpose as apportioned one-half to such county) in accordance with the 1921 apportionment statutes, are as follows: Allen County — 3% representatives and 1% senators; Lake County— 5% representatives and 3 senators; Marion County — 11% representatives and 5% senators; St. Joseph County — 3 representatives and 1% senators. The defendants in this action have not attempted to make, and the Court has been unable to find, any rational explanation or justification for the apportionment of the membership in either house of the Indiana General Assembly, as it presently exists under the 1921 apportionment statutes, in terms of population, geography, area, economic interests, historical tradition, representation of political units, weighted representation for rural as opposed to urban areas, or any other criterion which might conceivably be thought relevant to provide a rational basis for the districts as they presently exist. The Attorney General of Indiana, representing the various state officials who are party defendants, has candidly stated that the only explanation which he can make for the present apportionment, resulting from failure of nineteen consecutive general assemblies to perform their duty to reapportion under the Indiana Constitution is “the desire of the individual legislators to retain their seats.” The 93d Indiana General Assembly was elected, from districts created by the 1921 apportionment statutes, at the general election held November 6, 1962; it convened in regular session January 10, 1963, and adjourned sine die March 11, 1963. During the regular session of the 93d General Assembly, six resolutions were introduced proposing amendments to the Indiana Constitution relative to apportionment of the General Assembly. Only one of these, House Joint Resolution 6, was reported from committee. That resolution passed the House but was substantially amended in the Senate, the House dissented from the Senate amendments, and it failed to pass during such regular session. During the regular session of the 93d General Assembly, Senate Bill 160 passed the Senate by a vote of 40 to 8 and was amended and passed the House by a vote of 52 to 46, the Senate concurring in the House amendments. This bill, a copy of which is attached hereto as Appendix D, would have utilized the 1960 federal census as an enumeration of all inhabitants over twenty-one years of age of the various counties of Indiana and would have established new representative and senatorial districts effective for all candidates for the Indiana House of Representatives and Senate in the 1964 general election and thereafter, repealing the 1921 apportionment statutes. However, that bill, which became Senate Enrolled Act 160, was vetoed by the Governor of Indiana, Matthew E. Welsh, on March 15, 1963. In the special session of the 93d General Assembly the Senate sustained such veto on April 1, 1963, by a vote of 23 in favor of overriding the veto and 24 in favor of sustaining it, and such act thereupon failed to become law or to provide for a new apportionment of legislative districts for the 1964 election. [In his veto message with respect to this act, the Governor stated, “The redistricting of both the House of Representatives and the Senate which would be accomplished by this Act is in gross violation of Article 4, Section 5 of the Indiana Constitution, requiring apportionment of Senators and Representatives on a population basis,” and gave a number of specific examples of what he considered to be inequities among various counties given the same representation under such act.] Pursuant to the authority vested in him by Article 4, Section 9, the Governor of Indiana, Matthew E. Welsh, called a special session of the 93d General Assembly, which convened March 12, 1963, and adjourned sine die April 20, 1963. During the special session of the 93d General Assembly, three additional resolutions were introduced proposing amendments to the Indiana Constitution relative to apportionment of the Indiana General Assembly but none of these was reported from committee. House Joint Resolution 6, Laws 1963, Sp.Sess., e. 47, which had been introduced during the regular session, as amended passed both houses of the General Assembly on the last day of such special session, April 20, 1963. Such joint resolution, a copy of which is attached hereto as Appendix E, if adopted as an amendment to the Indiana Constitution, would establish a new basis for apportionment and would require the General Assembly to pass legislation implementing such amendment at its first regular session following the year in which the 1970 federal decennial census is promulgated. Such amendment, if adopted, could not be implemented by new apportionment acts until the 1973 regular session, and new districts established pursuant to such amendment could not be utilized as the districts for election of members of the General Assembly until the 1974 general election. In accordance with the procedure set out in Article 16 of the Indiana Constitution for adoption of constitutional amendments, the aforesaid House Enrolled Joint Resolution 6 was referred to the next General Assembly, the 94th General Assembly, for reconsideration. Under Article 16 of the Indiana Constitution, such resolution, or any other proposed constitutional amendment, could become a part of the Indiana Constitution only if passed by a majority of all members elected to each house of two consecutive general assemblies and if so approved, subsequently ratified by a majority of voters voting upon such proposed amendment at any election. During the special session of the 93d General Assembly, three additional bills were considered which, if passed, would have reapportioned either the House of Representatives or Senate, or both, effective for the 1964 general election and thereafter. All such bills failed to pass. Senate Bill 420, which as reported by a conference committee would have reapportioned both bouses of the General Assembly, was defeated by the House of Representatives by a vote of 57 to 32, and three successive sets of new conferees who were appointed failed to agree upon a second conference report. House Bill 1553, which would have reapportioned the House of Representatives only, passed second reading in the House but was not called up for final passage. House Bill 1369, which originally dealt with a different subject, was reported to the Senate as an amended bill to reapportion the senatorial districts and in such form was passed by the Senate by a vote of 39 to 8, but no further action on such bill was taken by the House of Representatives. The Governor of Indiana has not called a second special session of the 93d General Assembly. Unless the Governor of Indiana should call another special session of the 93d General Assembly, no further meeting of that General Assembly will be held. The next meeting of the Indiana General Assembly, absent such a special session, would normally be the regular session of the 94th General Assembly, which would be elected in November 1964, and would convene in January 1965. Thus, the 93rd General Assembly to date has been either unable or unwilling to reapportion the legislative districts among the various counties of the state, and unless further action is taken, the districts established by the 1921 apportionment statutes will remain in effect with respect to election of the 94th General Assembly in 1964, and for future elections to the Indiana General Assembly. Before concluding the statement of the facts, we direct our attention specifically to the Grills case. On July 29, 1959, Nelson G. Grills, as State Senator, brought an action for a declaratory judgment against certain other state senators in the Marion Superior Court, Room No. 5, Marion County, Indiana, wherein the capital of the State is located, the cause of action being S 59-600. The Attorney General of the State of Indiana was served as required by law and entered his appearance. On March 17, 1961, the Judge of that Court rendered a declaratory judgment declaring: “1. Chapters 78 and 271 of the Acts of 1921 are unconstitutional by reason of the apportionment under their terms failing to comply with the requirements of Article 4, Section 5 of the Indiana Constitution. “2. Any General Assembly, after the date of this Declaratory Judgment apportioned under the terms of Chapter 78 and Chapter 271 of the Acts of 1921 is declared to be in violation of the act of Congress enabling inhabitants of the territory of Indiana to form a state, approved April 19, 1816, Article 4, Sections 1 and 4 and Article 6, Sections 1 and 2 of the United States Constitution. “3. Members of a General Assembly attempting to serve after the date of this judgment, are without defacto authority to act as members of the General Assembly, apportioned under the terms of Chapter 78 and Chapter 271 of the Acts of 1921. It therefore follows, that Plaintiff and Defendants are in the same category as all the members of the General Assembly. Costs assessed against the Plaintiff.” No appeal from said judgment was perfected. APPENDIX A (To Statement of Facts) INDIANA HOUSE OF REPRESENTATIVES Present Districts Ranked According to 1960 Voting Population Per Representative, Showing Changes in Population Relative to Ideal District, 1919-1960. Note: In the case of counties which are assigned representatives individually and an additional representative jointly with another county, the two counties have been combined for purposes of this table. APPENDIX B (To Statement of Facts) INDIANA SENATE Present Districts Ranked According to 1960 Voting Population Per Senator, Showing Changes in Population Relative to Ideal District, 1919-1960. Note: In the case of counties which are assigned senators individually and an additional senator jointly with another county, the two counties have been combined for purposes of this table. APPENDIX D (To Statement of Facts) SENATE ENROLLED ACT NO. 160 “AN ACT fixing and prescribing the number of representatives and senators in the General Assembly of the State of Indiana; and apportioning the same among the several counties of the state. “Be it enacted by the General Assembly of the State of Indiana: “Section 1. It is hereby declared the intent of the members of the Ninety-third Indiana General Assembly to adopt and to incorporate in this act by reference the official report of the United States federal decennial census, taken in the year 1960, as an honest, true, correct and complete enumeration of the male and female inhabitants of the State of Indiana over the age of twenty-one years; and upon such report is based a legal and valid apportionment of the number of senators and representatives among the several counties of the state, pursuant to the provisions of Article 4, Section 5, of the Constitution of the State of Indiana. “Sec. 2. For the Ninety-fourth Indiana General Assembly and thereafter the House of Representatives shall consist of one hundred members. “Sec. 3. Representatives shall be elected from districts, comprised of one or more counties and having one or more representatives, as follows: Lake County: ten (10) representatives ; ■. Porter County: one (1) representative ; LaPorte County: one (1) representative ; LaPorte and Starke Counties: one (1) representative; >■ St. Joseph County: five (5) representatives ; Elkhart County: two (2) representatives ; LaGrange and Noble Counties: one (1) representative; Steuben and DeKalb Counties: one (1) representative; Allen County: five (5) representatives ; Whitley and Wabash Counties: one (1) representative; Kosciusko County: one (1) representative ; Marshall and Fulton Counties: one (1) representative; Newton, Jasper and Pulaski Counties: one (1) representative; Benton and White Counties: one (1) representative; Cass County: one (1) representative; Miami County: one (1) representative ; Wells and Adams Counties: one (1) representative; Grant County: one (1) representative ; Grant and Blackford Counties: one (1) representative; Huntington County: one (1) representative ; Howard County: one (1) representative ; Howard and Tipton Counties: one (1) representative; Carroll and Clinton Counties: one (2) representative; Tippecanoe County: one (1) representative ; Tippecanoe and Warren Counties: one (1) representative; Fountain and Montgomery Counties: one (1) representative; Boone County: one (1) representative ; Hamilton County: one (1) representative; Madison County: two (2) representatives ; Madison and Hancock Counties: ■one (1) representative; Delaware County: two (2) representatives ; Jay and Randolph Counties: one (1) representative; Wayne County: one (1) representative ; Wayne and Union Counties: one (1) representative; Henry County: one (1) representative ; Marion County: fifteen (15) representatives ; Hendricks County: one (1) representative ; Parke, Putnam and Owen Counties: one (1) representative; Vigo County: two (2) representatives ; Vigo and Vermillion Counties: one (1) representative; Sullivan and Clay Counties: one (1) representative; Monroe County: one (1) representative ; Morgan and Brown Counties: one (1) representative; Johnson County: one (1) representative ; Shelby and Rush Counties: one (1) representative; Fayette and Franklin Counties: one (1) representative; Ripley and Dearborn Counties: one (1) representative; Decatur and Jennings Counties: one (1) representative; Bartholomew County: one (1) representative; Knox County: one (1) representative ; Greene and Daviess Counties: one (1) representative; Martin and Lawrence Counties: one (1) representative; Jackson and Scott Counties: one (1) representative; Ohio, Switzerland and Jefferson Counties: one (1) representative; Clark County: one (1) representative; Floyd County: one (1) representative ; Orange and Washington Counties: one (1) representative; Crawford and Harrison Counties: one (1) representative; Perry and Spencer Counties: one (1) representative; Dubois and Warrick Counties: one (1) representative; Pike and Gibson Counties: one (1) representative; Vanderburgh County: three (3) representatives; Vanderburgh and Posey Counties: one (1) representative. “Sec. 4. For the Ninety-fourth Indiana General Assembly and thereafter the Senate shall consist of fifty members. “See. 5. Senators shall be elected from districts, comprised of one or more counties and having one or more senators, as follows: First District — Lake County: four (4) senators; Second District — Porter, Newton and Jasper Counties: one (1) senator; Third District — LaPorte and Starke Counties: one (1) senator; Fourth District — St. Joseph County: two (2) senators; Fifth District — Elkhart County: one (1) senator; Sixth District — DeKalb, La-Grange and Steuben Counties: one (1) senator; ;j Seventh District — Allen County: two (2) senators; Eighth District — Huntington, Noble and Whitley Counties: one (1) senator; Ninth District — Kosciuski and Marshall Counties: one (1) senator; Tenth District — Pulaski, Fulton and Cass Counties: one (1) senator; Eleventh District — Benton and Tippecanoe Counties: one (1) senator; Twelfth District — Carroll, Clinton and White Counties: one (1) senator; Thirteenth District — Howard and Miami Counties: one (1) senator; Fourteenth District — Grant and Wabash Counties: one (1) senator; Fifteenth District — Adams, Blackford and Wells Counties: one (1) senator; Sixteenth District — Jay and Randolph Counties: one (1) senator; Seventeenth District — Delaware County: one (1) senator; Eighteenth District — Madison County: one (1) senator; Nineteenth District — Hancock, Henry and Madison Counties: one (1) senator; Twentieth District — Boone, Hamilton and Tipton Counties: one (1) senator; Twenty-First District — Montgomery, Parke and Putnam Counties: one (1) senator; Twenty-Second District — Fountain, Vermillion and Warren Counties: one (1) senator; Twenty-Third District — Marion County: five (5) senators; Twenty-Fourth District — Marion and Johnson Counties: one (1) senator; Twenty-Fifth District — Wayne and Union Counties: one (1) senator; Twenty-Sixth District — Fayette, Rush and Shelby Counties: one (1) senator; Twenty-Seventh District — Hendricks and Morgan Counties: one (1) senator; Twenty-Eighth District — Vigo County: one (1) senator; Twenty-Ninth District — Clay, Owen and Sullivan Counties: one (1) senator; Thirtieth District • — • Greene, Monroe and Brown Counties: one (1) senator; Thirty-First District — Bartholomew, Decatur and Franklin Counties: one (1) senator; Thirty-Second District — Jennings, Ripley, Dearborn and Ohio Counties: one (1) senator; Thirty-Third District • — • Clark, Jefferson and Switzerland Counties: one (1) senator; Thirty-Fourth District — Jackson, Washington and Scott Counties: one (1) senator; Thirty-Fifth District — Lawrence, Martin and Orange Counties: one (1) senator; Thirty-Sixth District — Knox and Daviess Counties: one (1) senator; Thirty-Seventh District — Pike, Gibson and Posey Counties: one (1) senator; Thirty-Eighth District — Vanderburgh County: one (1) senator; Thirty-Ninth District — Vanderburgh and Warrick Counties: one (1) senator; Fortieth District — Dubois, Spencer and Perry Counties: one (1) senator; Forty-First District — Crawford, Harrison and Floyd Counties: one (1) senator. “Sec. 6. The senators elected in the general election of 1962 for a term of four years shall continue to hold their office until their term has expired by limitation. “Sec. 6a. The additional senator provided herein for the First District, Lake County, shall be elected at the general election held in 1964, for a term of two (2) years from the next day after his election. “Sec. 7. All laws and parts of laws in conflict herewith are repealed; and chapter 78 and chapter 271 of the Acts of 1921 are hereby specifically repealed.” APPENDIX E (To Statement of Facts) HOUSE ENROLLED JOINT RESOLUTION NO. 6 “A JOINT RESOLUTION proposing an amendment of the Constitution of the State of Indiana by amending sections 3, 4 and 5 of Article 4 of the Constitution and to provide for a decennial reapportionment of the House of Representatives and the Senate. “WHEREAS, the Ninety-third General Assembly of the State of Indiana recognizes the vital. need for a reapportionment of the General Assembly of the State of Indiana; and “WHEREAS, this General Assembly believes that the majority of the citizens of the State of Indiana desire to establish an apportionment of the House and the Senate of the General Assembly, based on population and on the traditional geographical, governmental, industrial and agricultural areas of the state, the interests of which areas frequently vary or conflict; and “WHEREAS, this General Assembly firmly believes that the Constitution of the State of Indiana must be amended to provide for such apportionment of the General Assembly: Therefore, “Be it resolved by the General Assembly of the State of Indiana: “Section 1. The following amendment to the Constitution of the State of Indiana is hereby proposed and agreed to by this, the Ninety-Third General Assembly of the State of Indiana, and is hereby referred to the next General Assembly for reconsideration and agreement. “Sec. 2. Section 3 of Article 4 of the Constitution of the State of Indiana is amended to read as follows: “Sec. 3. Senators shall be elected for the term of four years and Representatives shall be elected for the term of two years, commencing on the day next following their election in such manner as may be provided by law. Provided, however, That the Senators elect and holdover Senators at the first meeting of the General Assembly under this amendment of this Constitution, after apportionment shall divide themselves by lot into two equal classes, as nearly may be; and the seats of Senators of the first class shall be vacated at the expiration of two years, and those of the second class at the expiration of four years, so that one-half, ns nearly as possible, shall be chosen biennially thereafter. Provided, That in cases where more than one Senator is -elected from a Senatorial district, such Senators shall be divided by lot into two classes, and the terms of the Senators in the first class shall expire in two years and the Senators in the second class shall •expire in four years, so that as nearly as possible thereafter, one-half of the Senators within such Senatorial districts shall be chosen biennially. Senators elected to fill vacancies in the Senate shall only serve for and during the unexpired term •of the seat to which they are elected. “Sec. 3. Section 4 of Article 4 of the Constitution of the State of Indiana is .amended to read as follows: "“Sec. 4. The census taken in accordance with the provisions of the Constitution of the United States pursuant to congressional enactment in the year 1970, and every ten years thereafter, shall constitute the enumeration for the purpose of apportioning the number of Senators and Representatives as required by this Constitution. “Sec. 4. Section 5 of Article 4 of the Constitution of the State of Indiana is amended to read as follows: “Sec. 5. Based upon the enumeration of citizens twenty-one years of age and over of the State of Indiana at the first regular session of the General Assembly next following the year in which the 1970 federal decennial census is promulgated, the number of Representatives shall be fixed by law and apportioned among the several counties according to the number of inhabitants in each county over twenty-one years of age. Thereafter at the session of the General Assembly next following the year in which the census, as prescribed in Section 4 of Article 4 of this Constitution, is taken, the number of Representatives shall be fixed by law and apportioned among the several counties, according to the number of inhabitants over twenty-one years of age in each county. “At the first regular session of the Indiana General Assembly held next following the year in which the 1970 federal decennial census is promulgated, the number of Senators shall be fixed by law and apportioned among the several counties as follows: “(a) Each county shall be apportioned one-fifth of a Senator; and “(b) The balance of the Senators shall be apportioned among the several counties according to the number of citizens twenty-one years of age and over in each county of the State of Indiana as disclosed by the census taken in 1970, as prescribed in Section 4 of Article 4 of this Constitution. Thereafter at the session of the General Assembly next following the year in which the census, as prescribed in Section 4 of Article 4 of this Constitution, is taken the number of Senators shall be fixed by law and apportioned among the several counties in the same manner. “In creating House and Senatorial districts, any apportionment based upon population shall be as nearly equal as practicable taking into consideration the natural community area as well as the economic conditions within the district. “In the event any General Assembly, whose duty it is to make an apportionment, shall fail to make the same herein provided, it shall be the duty of the Governor, Secretary of State and Attorney General within thirty (30) days after the adjournment of the General Assembly to make such apportionment and when so made and a proclamation is issued by the Governor announcing such apportionment the same shall have the same force and effect as though made by the General Assembly.” HOLDER, District Judge (separate opinion). Prior to the decision of Baker v. Carr (1962), 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, the plaintiffs, in Cause Number IP 61-C-236, jointly and severally commenced this action in their own behalf and on behalf of all voters of Indiana similarly situated by filing their complaint on August 2, 1961. This Three-Judge District Court was convened on the 14th of August, 1961, pursuant to Title 28 U.S.C. § 2281 et seq. to hear and determine the action. The complaint was amended on May 25, 1962 following the Baker v. Carr decision of the United States Supreme Court. After the election of and the completion of the regular and special sessions of the 93rd Indiana General Assembly, the plaintiffs filed, on May 17, 1963, their supplemental complaint setting forth transactions, occurrences, and events which had transpired since the filing of their original and amended complaint. Before the Court for a ruling is the joint motion to dismiss plaintiffs’ amended complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure filed August 1,1962 of the following named defendants: Charles O. Hendricks, Secretary of State of the State of Indiana; Members of the State Election Board composed of Matthew E. Welsh, Governor of the State of Indiana, as ex officioChairman, Edwin M. S. Steers and James E. Noland, as members. Three other motions to dismiss were filed on August 24, 1961 and September 6, 1961 by certain of the named defendants. All of which adopted the same reasons assigned' in a previous motion of the Secretary of State and the State Election Board filed August 24, 1961. These three motions were addressed to the original complaint. They were not renewed as to the amended complaint and are no longer in issue. Upon trial, the evidence consisted of stipulations and admissions in the pleadings. After trial on the merits of the issues of the amended and supplemental complaints and the answer of the Secretary of State and the State Election Board, the combined arguments were heard on the issues of the motion to dismiss and the merits of the case. The action is against the named defendants and the class defendants who are the Secretary of State of the State of Indiana, all of the members of the State Election Board, all of the Clerks of the Circuit Courts of the State of Indiana, and all of the members of each of the ninety-two (92) County Election Boards of the State of Indiana. All of the defendants have certain prescribed duties in conduct of elections of the members of the General Assembly of the State of Indiana pursuant to the provision of the Indiana Election Code (Acts of the Indiana General Assembly of 1945, Chapter 208, as amended, being Bums’ Indiana Statutes, Section 29-2801 et seq.). The plaintiffs assert that the Indiana General Assembly in its various sessions since 1927 has failed and refused to follow the mandate of the Indiana Constitution of 1851, as amended, to reapportion itself; that since 1919 (the last enumeration) and since 1921 (the last apportionment) the growth in population has been uneven among the various counties resulting in a dilution and debasement of the voting strength and representation of certain counties, the voters and inhabitants, including plaintiffs, therein, whereas certain other counties and the voters and inhabitants therein have become grossly overrepresented contrary to the express provisions of the Indiana Constitution of 1851, as amended. The plaintiffs further assert that the 93rd Indiana General Assembly failed and refused to follow the Constitution’s mandate in its regular and special session since the United States Supreme Court’s decision of Baker v. Carr. The plaintiffs ask this Three-Judge District Court to take jurisdiction of their declaratory judgment action and declare the rights of the plaintiffs pursuant to 72 Stat.L. 349, 28 U.S.C. § 2201, to wit: 1. “a. That the present apportionment of the General Assembly of the State of Indiana has deprived and continues to deprive the plaintiffs of liberty and property without due process of law and has denied and continues to deny to the plaintiffs the equal protection of the laws, in violation of the 14th Amendment to the Constitution of the United States.” 2. “b. That Indiana Acts of 1921, Ch. 78, Sec. 2 and Indiana Acts of 1921, Ch. 271, See. 2 (Burns’ Indiana Statutes, Secs. 34-102 and 34-104) are void and invalid as contrary to the 14th Amendment to the Constitution of the United States, and the Constitution of the State of Indiana, by reason of the failure to reapportion the Legislative districts of the State of Indiana in accordance with the present distribution of population among the various counties of the State as herein alleged.” 3. “c. That the right of these plaintiffs to vote in free and equal elections as guaranteed by Article 2, Secs. 1 and 2 of the Constitution of Indiana, and the right of plaintiffs to be governed by a General Assembly representative of the people of the State as guaranteed by Article 1, Sec. 1 of the Constitution of the State of Indiana, has been impaired.” and that, after a hearing, further relief be granted plaintiffs pursuant to 62 Stat. L. 964, 28 U.S.C. § 2202, to wit: 4. “a. To restrain the defendants from furnishing forms for nominations, from receiving declarations of candidacy or nomination petitions and papers, from preparation of ballots to be used at primary or general elections in 1962, from certification of nominations or elections, and from any other acts necessary to the holding of elections for members of the Indiana General Assembly in acco