(concurring).
I concur in result, but I would hold that this action should be treated as in quo warranto, and that a judicial candidate or applicant need be a resident of the circuit from which he or she is elected or appointed at the time of election or appointment and not before.
PROCEDURE
The applicants seek a writ of prohibition pursuant to SDCL 21-30. The original request was to prohibit Governor Mickelson from appointing Severson and Marshall (later Caldwell) to the position of circuit judge. When the petition was answered by the defendants, it was established that 1) the appointments were already made, and 2) that Severson and Caldwell were voting residents of their respective circuits at the time the appointments were made. The request for relief was then amended, seeking to prohibit Severson and Caldwell from taking their oaths of office, or in the alternative to prohibit the oath giver from administering the oaths.
The applicants’ contention is that Sever-son and Caldwell are not qualified to take office because they were not residents of the Second and First Circuits, respectively, at the time they applied for their positions. Therefore, the issue is whether the defendants Severson and Caldwell are entitled to their offices.
A writ of prohibition may be issued only when a person is acting or is about to act without or in excess of his jurisdiction. SDCL 21-30-1. Prohibition is not the proper remedy when the act complained of has already been completed. Williamson v. Herseth, 78 S.D. 476, 104 N.W.2d 473 (1960). Here, the appointments have already been made, and the gravamen of the action is a challenge to the qualification of Severson and Caldwell to hold office.
*503The proper action to try title to office is by quo warranto, rather than by prohibition. State ex rel. Walklin v. Shanks, 25 S.D. 55, 125 N.W. 122 (1910). A quo war-ranto action may be brought by a private person who has a sufficient “special interest” in the action. SDCL 21-28-1. Original jurisdiction may be assumed by this court in a quo warranto action. S.D. Const, art. V, § 5; SDCL 15-25-1.
In this case, plaintiffs Kabeiseman and Andal would lack standing to bring an action in quo warranto because their alleged interest is that of a voting resident in their respective circuits, which is insufficient. Knockenmuss v. DeKerchove, 66 S.D. 446, 285 N.W. 441 (1939). Cummings would have a special interest in the action against Severson because he (Cummings) did apply for the Second Circuit vacancy. Theoretically, if Cummings is correct that one must be a voting resident of the circuit at the time of application, then the field of applicants should have been narrowed to only voting residents in the Second Circuit, and his name may have been forwarded by the Qualifications Commission to the governor for consideration. His interest would therefore be more than a taxpayer or voter interest. He would not have standing to challenge Caldwell’s title to office because he was not a resident of the First Circuit when he applied.
The proper party plaintiff would therefore be Cummings and the proper defendant would be Severson. Because this matter involves substantial public interest and all parties except Governor Mickelson have requested a decision on the merits, I would call the action what it is and would treat it as in quo warranto. I would grant leave to Cummings to bring the action against Severson and would dismiss Ka-beiseman and Andal as parties plaintiff and Mickelson and Caldwell as parties defendant.
MERITS
At the heart of the controversy is the interpretation of Art. V, § 6 of the South Dakota Constitution. In this writer’s opinion, that section is ambiguous because it does not specifically state as of when one must be a voting resident of the circuit. Therefore, the Court can look to the rules of construction to determine the intent of people. Schomer v. Scott, 65 S.D. 353, 274 N.W. 556 (1937).
Here, we should look to the legislative history of the article, its purpose, the provision as it existed prior to amendment, the object sought to be obtained by the amendment, and the consequences of a particular construction. State ex rel. Payne v. Reeves, 44 S.D. 568, 184 N.W. 993 (1921); 73 Am.Jur.2d, Statutes, §§§ 150, 155, 192; Uniform Statutory Construction Act, § 15. Regard should be given to the whole instrument to harmonize various provisions. South Dakota Auto Club v. Volk, 305 N.W.2d 693 (S.D.1981).
Art. V, § 6, replaced the old Art. V, §§ 25 and 37. The old § 25 provided:
No person shall be eligible to the office of judge of the circuit ... courts unless he be learned in the law, be at least twenty-five years of age, and a citizen of the United States; nor unless he shall have resided in this state ... at least one year preceding his election, and at the time of his election be a resident of the ... circuit ... for which he is elected, (emphasis added).
Under this section, an election candidate must have met the citizenship, residency, and age requirement to be eligible to run for office, but need not have been a resident of the circuit until the time of the election.
The old § 37 stated:
All officers provided for in this article shall ... reside ... in the district ... for which they may be elected or appointed. Vacancies ... shall be filled by appointment until the next general election as follows: All judges of the ... circuit ... courts, by the governor.
SDCL 3-4-7 was in effect prior to the amendment, and provided:
Persons appointed to offices as herein provided shall qualify in the same manner as is required of those elected....
*504Whatever the practice may have been, it is clear from the above provisions that pri- or to the amendment, a candidate or an appointee must have been a citizen of the United States, twenty-five years old, and one-year resident of South Dakota to be eligible to run for election or to be appointed but need not have been a resident of the circuit for which he was elected or appointed until the time of the election or appointment.* Appointments are complete when the appropriate certificate of appointment is filed with the Secretary of State.
The purpose of the new provision was to relax the qualification requirement by eliminating the age and one year residency provisions, because they were “[arbitrary standards which often have little relevance to the qualifications needed for a judicial position.” Report and Recommendations of the Constitutional Revision Commission, v. I at 44-45.
The language in the new provision is that judges of the circuit courts must be “[citizens of the United States, residents of the State of South Dakota, and voting residents within the circuit from which they are elected or appointed.” There is nothing in the legislative history of Art. V, § 6 which indicates any intent to change the old requirement that one need only be a resident of the circuit at the time of election or appointment; the intent was merely to eliminate the age and durational residency requirements. It must be assumed that the new provision was intended to be consistent with SDCL 3-4-7, which put elective and appointive officers on equal footing concerning qualifications. That statute was in effect at the time of the amendment, and has not been repealed.
The phrase “from which they are elected or appointed” construed in light of the old provisions and the mischief sought to be remedied, means that a judge must be a resident of the circuit from which he or she is elected or appointed, but that he or she need only be .a resident from that circuit at the time of election or at the time of appointment. This construction would reconcile all of the new provisions with the old, and would have the effect of treating judicial candidates and appointees equally in terms of residency requirements, consistent with SDCL 3-4-7.
Because defendant Severson was a voting resident of the Second Circuit at the time of his appointment, I would hold that he is entitled to his office.
It is recognized that SDCL 12-9-5 (repealed in 1974) was seemingly inconsistent with art. V, § 25, in that the candidate had to declare in his petition that he was a resident of a county, which by implication had to be within the circuit in which he or she was running. The constitutionality of that statute was never litigated, and that issue would now be moot because of the repeal.