(concurring).
I concur in the conclusion reached in the principal opinion that we should not oust respondent Banks in this proceeding. In so doing, however, I would not reach or decide the issue of whether or not this court has a right to inquire into the right of a legislator to continue to hold his office when an attack thereon arises as to his qualifications under Art. Ill, § 4 or 13 of the Constitution of Missouri, 1945. The Attorney General’s brief does not ask that we enforce the Missouri constitutional provisions and oust respondent on the basis thereof. Instead, the sole basis advanced by petitioner’s brief for ousting Banks is that he was not a resident of his district as required by the Missouri Constitution, resulting in a violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. This equal protection issue is the only question briefed and relied on by the Attorney General and the only question we are called upon to decide herein.
The Attorney General recognizes that there is no requirement in the Federal Constitution that a state require a legislator to live in the district from which he is elected. Nevertheless, he says that since the State Constitution so requires, a failure to enforce that requirement uniformly as to all districts in the state constitutes unequal treatment of the residents of the districts *503and therefore violates the federal equal protection clause.
Considerable reliance is placed by petitioner on the cases of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. The basic principle established in these so-called one man, one vote cases is that the Constitution of the United States protects the right of all qualified citizens to vote and to have their votes counted, and that this includes protection from having one’s vote diluted or debased. The rule is established therein that apportionment of legislative districts must be made in such a manner as to give equal weight to the votes of all. In this quo warranto proceeding there is no contention advanced that the votes of the residents of the 54th Legislative District were diluted or that their votes did not count for as much as votes of persons in other districts in the state. Instead, the petitioner says that the election of respondent, who did not live in the 54th Legislative District,1 resulted in unequal protection to them in that their representative did not know the problems of the district or share their interest as is true in the case of legislators who are residents of their districts. So far as I can ascertain, the United States Supreme Court has not up to this time held that failure of a state to enforce a state eligibility requirement for legislators, such as residence or age, would violate the equal protection clause of the Fourteenth Amendment. Nor is any case cited from which I can conclude with confidence that the Supreme Court would so hold if and when such issue is presented to them. Nonresi-dence of the legislator elected is not necessarily comparable to situations in which the votes of persons are diluted by unequal apportionment of the districts, and in the absence of a determination by the Supreme Court of the United States that failure on the part of the state to enforce its residence or age requirements constitutes a violation of the equal protection clause of the Fourteenth Amendment, I do not believe that we as a state court should further extend the application of this federal constitutional provision.
Petitioner also cites and relies upon Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235. In that case the Georgia House of Representatives undertook to deny membership to Bond on the basis of statements he had made criticizing the policy-of the Government in Vietnam and the operation of the Selective Service System. The Supreme Court held that this action by the Georgia House of Representatives violated Bond’s First Amendment rights and that the House of Representatives could not refuse to seat him on that basis. I do not consider that the Bond case is at all analogous to the situation here presented.
Accordingly, I would hold simply that no violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States has been shown, and since this is the only basis briefed and argued by the Attorney General for ousting respondent, I would hold in favor of the respondent and dismiss the quo warranto proceeding.
. Our Special Commissioner, based on the evidence which he took, found that respondent Banks did not reside in the 54th Legislative District for the entire year next before the date of his election. The evidence is amply sufficient to sustain that finding. The respondent did not testify before the Special Commissioner, nor did bis wife, and when relator by pretrial discovery sought to have them answer interrogatories or to give their depositions as to their place of residence, they invoked the Fifth Amendment to the Constitution of the United States and declined to answer.