(concurring).
I concur in the result of refusing to order ouster. However, I reach this result because I do not believe that the record *504in this case presents any issue requiring a ruling on the merits thereof.
The evidence abundantly supports the finding of the commissioner that respondent was not a resident of his district as required by the Missouri Constitution. This fact situation raises three possible issues, two under the Missouri Constitution and one under the United States Constitution. These are: (1) respondent’s disqualification under Article III, Section 4, of the Missouri Constitution (which requires that each representative next before the day of his election shall have been a resident of the district which he is chosen to represent for one year) and this court’s jurisdiction to oust respondent because of such disqualification in view of the provision of Article III, Section 18, that each house of the General Assembly shall be the sole judge of the qualifications of its own members; (2) respondent’s forfeiture of his office because of removing his residence from the district for which he was elected, as provided in Article III, Section 13, of the Missouri Constitution; and (3) the violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution resulting from the representation of the residents of respondent’s district by a nonresident.
The information in the nature of quo warranto filed by the Attorney General in this case does not plead forfeiture under Article III, Section 13, of the Missouri Constitution (number 2 above), and does not pray for relief on that basis. Likewise, relator’s brief in this court does not contend for ouster on this basis. I, therefore, concur with Judge Morgan’s opinion that this issue is not before us for decision.
As to the first issue listed above, i. e. respondent’s disqualification because of nonresidence and this court’s jurisdiction to take action based thereon, relator does raise this issue in his pleading but the question is not briefed by him in this court. Respondent’s brief does attack the jurisdiction of this court but relator’s brief does not urge that we do have jurisdiction to act on this basis. Thus, this question is not properly before this court for consideration and should not be decided. The jurisdictional question involved is one of considerable difficulty and uncertainty and should not be decided without complete briefing on both sides of the question. Further, the record in this case is silent, both in pleading and proof, as to what occurred in the legislature, either at the time respondent was seated or afterwards. For all that appears in the record, respondent may have been seated through sheer oversight or inadvertence. This court cannot base its decision on what its members may individually and personally know. Such a record does not require a decision on this difficult and important jurisdictional question.
I, therefore, concur with Judges Finch and Seiler that the only issue properly briefed, argued and submitted to this court is the one having to do with equal protection. However, I must agree with Judge Morgan that “ ‘inaction’ has neither been alleged or proven”. The Fourteenth Amendment to the Constitution of the United States provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. While inaction may amount to denial as is shown by the cases cited in Judge Morgan’s opinion, (see 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 record in the case at bar does not show that this is not an isolated instance and does not show that it is not the result of inadvertence. Consequently, I do not believe that the inaction shown by the record amounts to denial and I do not believe that the proven fact of nonresidence, plus our judicial knowledge that this General Assembly has met in four different sessions, as pointed out by Judge Seiler, is sufficient to raise this case to the stature necessary to show a violation of equal protection. This is not to be under*505stood to mean that I believe that if this situation were the result of knowing inaction or refusal to act on the part of the legislature, this court should not grant ouster. It simply means that “inaction” which will result in a violation of equal protection must be knowing inaction and, regardless of our personal knowledge, the record before us does not demonstrate that there was knowing inaction on the part of the House of Representatives.
For these reasons, I concur in refusing to oust respondent.