(dissenting).
I simply cannot bring myself to agree the court does not have jurisdiction in this kind of case. To say so would leave unexplainable the actions of federal and state courts with respect to apportionment of legislatures, which is strictly a prerogative of the legislature under constitutional provisions. For that matter, if courts do not have jurisdiction in this kind of case, then it would be hard to understand how they declare acts of a legislature unconstitutional in any case. Legislation is a constitutional prerogative of legislatures, yet courts have always exercised the duty of declaring their acts unconstitutional when necessary.
In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 1978, 23 L.Ed.2d 491 (1969), the United States Supreme Court rejected the contention that determination of a question pertaining to the right of one to sit in a legislative body would produce a “potentially embarrassing confrontation between coordinate branches” of government. The court expressly held such a determination falls within the traditional role accorded courts to interpret the law and does not involve a “lack of the respect due [a] coordinate [branch] of government.” I fail to find better or more current authority.
Also, in Rodriguez v. San Antonio Independent School District, U.S.D.C.W.Tex. (three-judge court) 337 F.Supp. 280 (December 23, 1971), it was recently pointed out a court cannot act as a “super-legislature,” but the judiciary can always determine that an act of the legislature is viola-tive of the constitution.
I do not consider State ex rel. Sullivan v. Schnitger, 16 Wyo. 479, 95 P. 698 (1908), helpful to appellees, because the court actually considered at great length the merits of the apportionment question there involved. It decided that the legislature being questioned was an equitable and legal one and that mandamus should not issue. Nevertheless, I am pleased that Justice Guthrie puts at rest the matter of reliance on that case when he says its sheen has been rather dulled by the recent activities of courts, both federal and state, which no longer bridle at the thought of consideration of the validity of reappor-tionments of legislative bodies and have proceeded many times to actually reapportion legislatures, since the decision in State ex rel. Sullivan v. Schnitger, supra.1
A quotation out of context from Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 706, 7 L.Ed.2d 663, cannot support the proposition that courts lack jurisdiction in a case like the one before us. The Baker case is a landmark case for the proposition that courts will reapportion legislative bodies despite that being in the first instance a constitutional prerogative of legislatures.
Even if the Baker opinion were interpreted as holding that courts cannot pass •on the right of a person to sit in a legislative body, such holding would be supersed*766ed by the clear and unequivocal language used in the subsequent Powell case. There, the court clearly said such determination falls within the traditional role accorded courts to interpret the law and does not involve a “lack of the respect due [a] coordinate [branch] of government.”
I hate to see the cases of Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235; and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491, swept neatly under the rug as they are here, with the statement that they are distinguishable.
We can do all the distinguishing we care to, and it still remains a fact that it was clearly held in both cases that courts will review the action of legislative bodies when such bodies exclude a duly elected member for alleged lack of constitutional qualifications. If courts will review such action when a member is excluded for lack of a constitutional qualification, it follows, a fortiori, that courts will likewise review such action when a member is seated without the necessary constitutional qualifications.
There is a more serious consideration to the problem presented in this case. We ought not to say or imply, as the opinion of Justice Guthrie does, that the house of representatives made a determination of Prosser’s qualifications as a resident. As Justice McEwan points out in his opinion, the decision of the district court was handed down prior to any action being taken by the legislature. That court held Prosser was a resident of Laramie County, Wyoming.
Thus, the ruling and decision of the district court was a caveat if not a binding determination of the law, and the only law at that time for the legislature to follow. We must assume the legislature acted as it did because of the court’s holding on the question of residency and not by reason of an independent determination of its own.
Justice Guthrie now says the district court should not have made such a determination. Hence, the district court’s holding on the matter of residency is now rendered void because it was an erroneous judicial determination. This leaves the matter of Prosser’s residence entirely undetermined. If the trial court was wrong in doing what it did, and if that led to an erroneous assumption on the part of the legislature, we ought to correct it before Prosser is put to the expense of another election campaign.
The most disappointing thing about the Guthrie opinion is the absence of a determination of whether Prosser lives in Colorado or Wyoming. Justice McEwan makes it clear in his opinion that he considers that question still open for future determination in an appropriate action. Counsel on both sides of this controversy insisted strongly in oral argument that they wanted the question of residence determined by our court; and that they hoped the decision would not go off on an incidental issue.
I can only assume from the silence on the subject that a majority recognizes that the record shows Prosser, at all times here involved, to have been a bona fide resident of Colorado and not of Wyoming. That is my view of the record.
I go along with Justice McEwan in saying nothing decided by this court shall preclude a future examination of similar questions arising in a different manner; that the action of the legislature was not an issue in this case; that the principles announced in the Bond and Powell cases may have some application in actions involving legislative determination of qualifications such as residency; that the question of whether courts may, upon proper application, inquire into the legislature’s determination remains unanswered; and that nothing is decided which would in the future preclude the courts from considering whether or not they can examine the question of residency in an action brought to keep a nonresident off the ballot.
If there be opinions by members of this court contrary to the conclusions of Justice *767McEwan, with which I am concurring, such opinions cannot be said to represent a majority of the court.
Suppose the question of Prosser’s residence is judicially determined in another suit such as one for a declaratory judgment ; one to determine his right to vote in Laramie County; one to determine his right to be a candidate; a divorce suit; or a taxation suit, would anybody suppose in such event that the legislature, in a subsequent session, would be able to override this judicial determination ? In other words, would anyone suggest the legislature could become a super-judiciary ? If so, I would hate to think what this could begin to lead to. .
The question of whether Prosser is a bona fide and legal resident of Colorado or Wyoming is clearly a judicial one, and I am sure members of the legislature expect it to be decided by the courts. It is unfortunate we are postponing that decision for a future case.
. See State ex rel. Whitehead v. Gage, Wyo., 377 P.2d 299, 301; and Schaefer v. Thomson, D.C.Wyo., 240 F.Supp. 247 (1964).