The opinion
SchíteideR, J.,
concurring in the judgment. It should be agreed that the federal and state constitutional validity of the act of the Governor, Secretary of State and Auditor of State in apportioning Ohio’s Legislature is res judicata with respect to the 107th General Assembly elected thereunder, presently in office, and functioning.
What bearing does this conclusion have upon the issue attempted to be raised in this case, i. e., the validity of future General Assemblies composed of identical constituencies?
If the question of the status of the 107th General Assembly *107 is res judicata, it necessarily means that the real plaintiff in the consolidated United States District Conrt cases of Nolan, Sive and Blosser, and in the instant case, is identical, that is, the public; that the defendants, the state officials, are common to all cases; and that the issues are identical.
Shortly after the United States District Court order of. October 27, 1965, the lower court herein recognized the common issues in entering an order on November 4, 1965, surrendering “pursuant to the rules of comity” its jurisdiction of the subject matter (the state questions) in the three federal court cases which “covers many of the same controverted questions and subjects as are involved in the within suit.”
That the status of the 107th General Assembly is res judi-cata necessarily means that the United States Court decided not only the federal constitutional validity of the 107th General Assembly but likewise its state constitutional validity, to decide which, that court had indisputable exclusive jurisdiction.
How, then, in the name of common logic can the question remain open that the single act of the apportioning officers which, by reason of the foregoing, produced a legitimate 107th General Assembly, is incapable of producing legitimate offspring in the form of subsequent General Assemblies, in the absence of significant changes in the population of the state and its distribution among the various district constituencies?
It seems to me that the Court of Appeals completely lost touch with reality in simultaneously conceding the complete vitality of the 107th General Assembly to meet and enact any law it so chooses and asserting that future General Assemblies composed of identical districts may not meet and enact an identical law.
And it further seems to me that both the majority and the minority opinions engage in diametrically opposite exertions in futility in attempting, respectively, to prove and to disprove a result which had been concluded on November 4, 1965.
I would point out, that the United States District Court’s attempt, however gracious, to defer the state questions to state courts as to future General Assemblies is without foundation in law or practicality.
As to the former, it did not utilize the doctrine of abstention (see, generally, annotations, 94 L. Ed. 879 , 3 L. Ed. 2d 1827 ; *108 Lisco v. McNichols, Governor, 208 F. Supp. 471 , approved in Lucas v. Colorado General Assembly, footnote 2, 12 L. Ed. 2d 632, 636 ) in that it did not postpone or decline to exercise its jurisdiction of the state issues in deference to the possibility that their resolution would obviate the necessity of deciding the federal question.
As to practicality, if the conclusion of the Court of Appeals herein were sustained, the United States District Court would necessarily be required to consider the federal constitutionality of some substitute plan of apportionment, the state constitutional validity of which would-, in turn, be subject to review by our state courts. This “to and fro,” which could be intolerably interminable, would finally screech to a halt only upon the discovery of a plan acceptable to both judicial systems. See Moore’s Manual on Federal Practice and Procedure, 79, Section 2.07 [2].