(dissenting).
I agree with Judge Finch that the equal protection issue is the question which was briefed, argued, and which must be decided in this case. What we would do if we were deciding this case solely on the provisions of the Missouri Constitution (as was the case in Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235, where the question was whether Georgia could add qualifications beyond those set by the state constitution, and as was the case in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491, where the House of Representatives was attempting to add to the qualifications stated in the federal constitution) is beside the point. Nor does the matter of “a textually demonstrable constitutional commitment of the issue [by the Missouri Constitution] to a coordinate political department” [the Missouri House of Representatives] meet the equal protection issue raised, because as the majority opinion well says, we recognize “ * * * that when a federal constitutional right conflicts with a state constitutional provision, it is our duty to enforce the former by virtue of the supremacy clause. Article VI, United States Constitution * * We observe, also, that in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, from which the “textually demonstrable constitutional commitment” language is taken, the appellants’ claim that they were being denied equal protection was nevertheless there held justiciable. The “textually demonstrable” doctrine relates to the relationship between coordinate branches of the same government and “ * * * is primarily a function of the separation of powers * * * ”, Baker v. Carr, supra, 369 U.S. 1. c. 210, 82 S.Ct. l. c. 706, but the claim here asserted is a federally protected right and involves different governments, not merely separate branches of the same one.1 As in Baker v. Carr, the question here is “ * * * the consistency of state action with, the Federal Constitution *506* * * ”, 369 U.S. 1. c. 226, 82 S.Ct. 1. c. 715, and there is no question decided or to be decided By a political branch of Missouri government which could override the right to equal protection guaranteed by the 14th Amendment of the federal constitution.
Respectfully, I am unable to agree with Judge Morgan that “inaction” on the part of the legislature has not been proven, or with Judge Finch that there has not been a violation, of the equal protection clause of the 14th Amendment. I would grant ouster.
On the first point: On the record before us, there can be no doubt as to the correctness of otir commissioner’s findings that respondent, although seated as a member of the 54th district following the November 5, 1968 election, did not in fact reside in the 54th district for the entire year next before the day of his election or for all of the period after the election, but was, in fact, a resident of an entirely different district, the 40th, residing therein at 1615 Bredell Avenue, Richmond Heights. The record shows there is a home at this address, with a garage, yard, and a back yard with a barbeque pit. This is where respondent and his wife were seen going and coming. It is where respondent put up Christmas tree lights and the address from which he complained to the police that children were stealing Christmas tree lights from his front yard. This is the house and address where respondent barbequed, where his wife put out the trash cans, where he removed grass trimmings, where mail was delivered to him. The joint income tax returns for respondent and his wife for 1966 and 1967 showed 1615 Bredell Avenue as their home address. Respondent’s driver’s license application gave 1615 Bredell as his address. Mrs. Banks gave it as her address on her application for renewal of her nurse registration. Electric and water utilities showed respondent as the customer at the address.
Although respondent attempted to make a factual showing as to residency by calling several of his own witnesses, it is highly significant that the man who should know the most about it, respondent himself, saw fit not to testify. This is not a criminal case. There is no presumption of innocence .involved and the ban against attaching significance to the failure of the defendant to take the stand does not apply. It is reasonable to conclude that respondent did not testify for the reason his testimony would have been unfavorable to him. Respondent’s wife did not testify either. In sum, there is a complete absence of any convincing evidence in the record contrary to our commissioner’s findings.
Under these circumstances I do not see where we can indulge the assumption that the legislature has not neglected its duty and failed to act. This legislature, the Seventy-Fifth General Assembly, has been in session several times, twice in 1969 and twice so far in 1970, yet respondent continues in office.2 Under the record before us, at none of the times material to the residency issue, could the House have made a finding supported by any reasonable evidence that respondent met the residency requirements of the Missouri Constitution. There has been a clear showing of continuing inaction and no evidence of willingness to act on the part of the legislature.
On the second point: As Judge Finch says, petitioner is not arguing that the votes of the residents of the 54th district were diluted, but does argue that the election of respondent, a nonresident of the district, resulted in unequal protection to them, because they, unlike the residents in the other districts over the state, were denied representation by one of their own residents and *507were represented by an outsider — a sort of carpetbagger in reverse situation. It cannot be doubted that Missouri places a high value on the right of voters in a particular district to be represented by a representative who resides in their district. The Missouri Constitution is at pains to make this a requirement fot election and for remaining in office, Art. Ill, Secs. 4 and 13. It is a substantial and not a trivial right of the voters. Here it is being denied the voters of the 54th district in a way that denies them equal protection. Not only are they denied equal protection once the election is over, as compared to those who have a representative who resides in the district in the matter of knowing the problems of the district and sharing the interests of the residents thereof, they are denied equal protection in the election itself. For in the 54th district, the only way a voter could vote for a candidate who, if elected, would be a resident of the district, would be to vote for respondent’s opponent. Thus, a voter who wanted to vote for a candidate who resided in the district, actually had no choice in the 54th district. He could do this only by voting for respondent’s opponent, even though the latter might not be of the voter’s political party. Contrast this with the other legislative districts over the state where both candidates at the general election were residents of the district. The voter in such a district had a choice: either one could be elected and the voter would still be represented by a resident of the district.
It does not seem to me that merely because the United States Supreme Court has not yet passed on the situation before us means we should close our eyes to this denial of equal protection. If there is a denial of equal protection, as I believe there is, then I think we are obligated to remedy it, Art. VI, United States Constitution; Art. I, Sec. 4, Art. VII, Sec. 11, Missouri Constitution of 1945. I would therefore be in favor of ouster.
. It does not seem to me that the language of Justice Douglas from Baker v. Carr, supra, and Powell v. McCormack, supra, quoted on page 6 of Judge Morgan’s opinion supports the proposition that because the Missouri Constitution provides each house shall be the sole judge of its qualifications, we are powerless to act in this case.
In both Baker v. Carr and Powell v. McCormack, Justice Douglas was referring to a situation where the federal constitution having assigned a particular function to another department of the federal government, the federal judiciary will not intervene. In Baker v. Carr, he supported his statement by citing Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed.2d 726, which held that since the federal constitution commits the conduct of foreign relations to the executive and legislative branches, the exercise of such political power was not subject to the federal judiciary. In Powell v. McCormack, he was pointing out that Congress had no power to alter the constitutional qualifications for membership and in the next sentence after that quoted by Judge Morgan, Justice Douglas went on to say, “ * * * But the House is not the sole judge when ‘qualifications’ are added which are not specified in the Constitution”, 395 U.S. l. c. 552, 89 S.Ct. l. c. 1980.
I do not believe that Justice Douglas’ words can be taken as holding in any way that the commitment by the Missouri Constitution to the House of Representatives to be the sole judge of the qualifications of its members bars us from acting in this case, where there is a federally protected right to equal protection being denied as result of the failure of the House to act.
. The regular session ran from January 8 to June 30, 1969, the first extraordinary session from September 8 to September 30, 1969, the second extra session from January 19 to February 2, 1970, and the third extra, commencing April 15, 1970, is still in session.