Cummings v. Mickelson

495 N.W.2d 493, 1993 S.D. LEXIS 10, 1993 WL 16397

• Court: South Dakota Supreme Court
• Decided: January 28, 1993
• Docket: 18162
• Status: Published

Opinions

GILBERTSON, Circuit Judge.

INTRODUCTION

Applicants Cummings, Kabeiseman and Andal (hereinafter Applicants) challenge the authority of the Governor of the State of South Dakota, George S. Mickelson, to appoint two attorneys to the positions of Circuit Court Judge. The basis for this challenge is the question of when a person receiving such an appointment must establish his or her residency within the judicial circuit to which he or she is appointed as required by Art. V, § 6 of the South Dakota Constitution.

ISSUES PRESENTED

I.

Should a writ of prohibition be denied when the acts sought to be prohibited by the Governor have already occurred?

II.

Should a writ of prohibition be denied in that the Applicants purportedly have a plain, speedy and adequate remedy in quo warranto?

III.

Must appointees to the position of Circuit Court Judge be voting residents of his or her circuit at the time of application for appointment or prior to his or her assuming office?

FACTS AND PROCEDURE

The Applicants seek to have this Court exercise its constitutional authority to issue a* writ of prohibition against Governor Mickelson concerning circuit court judicial vacancies in the First Judicial Circuit and the Second Judicial Circuit. These vacancies were created by the retirement of the Honorable E.W. Hertz of the First Judicial Circuit on December 20, 1992, and the Honorable Robert Heege of the Second Judicial Circuit on January 5, 1993.

Upon notification to the Governor of a judicial vacancy, the Governor is empowered, pursuant to Art. V, § 7 of the South Dakota Constitution, to fill the vacancy by appointment for the balance of the term. The current term for all circuit court judges in South Dakota will expire in January of 1999.

Applications were received and reviewed by the Judicial Qualifications Commission. The Commission forwarded names of applicants it certified to be qualified for appointment to the Governor.

On November 20, 1992, Governor Mickel-son announced he would appoint Glen A. Severson of Huron, South Dakota to the Second Judicial Circuit Court vacancy.¹ Huron is in the Third Judicial Circuit.

On the same day, the Governor also announced he would appoint Mark F. Marshall of Rapid City, South Dakota to fill the vacancy in the First Judicial Circuit.² Rapid City is in the Seventh Judicial Circuit. Mr. Marshall subsequently declined the appointment. Thereafter on December 7, 1992, Governor Mickelson announced his intention to appoint Kathleen K. Caldwell of Sioux Falls, South Dakota to fill the vacancy in the First Judicial Circuit. Sioux Falls is in the Second Judicial Circuit.

Governor Mickelson filed written appointments with the South Dakota Secretary of State on December 11,1992. These appointments are to take effect on February 1, 1993.

On December 10, 1992, the Applicants filed with this Court an application requesting this Court to exercise its original jurisdiction and issue a writ of prohibition against the Governor’s appointments. Applicant Douglas Cummings is an attorney from Sioux Falls and unsuccessfully sought the judicial vacancy in the Second Judicial Circuit. Applicant Andal is a resident of Minnehaha County. Applicant Ka-beiseman is an attorney from Yankton in the First Judicial Circuit.

On December 11, 1992, the South Dakota Attorney General, on behalf of the Governor, filed a brief with this Court arguing the writ sought by the Applicants should be denied as prohibition cannot be used to challenge the right to hold public office and the actions of the Governor are now complete, thus making any claim for relief against him moot.

On December 21, 1992, this Court determined that Caldwell and Severson were indispensable real parties in interest to this proceeding and ordered them joined along with the Governor, as Respondents.

Due to the fact the appointments were scheduled to take effect on February 1, 1993, this Court accelerated its normal briefing and oral argument schedule to determine this question of public importance.

ISSUE I

SHOULD THE WRIT OF PROHIBITION BE DENIED AS MOOT SINCE THE ACTS SOUGHT TO BE PROHIBITED HAVE ALREADY OCCURRED?

A writ of prohibition is an extraordinary remedy. S.D. Bd. of Regents v. Heege, 428 N.W.2d 535, 537 (S.D.1988). It may issue upon a showing that a public officer is acting or is about to act without or in excess of his jurisdiction, or without or in excess of the authority conferred by law. SDCL 21-30-1. It may be issued in a direct application to this Court in appropriate circumstances. Art. V, § 5 of the South Dakota Constitution; Heege, supra.

It is required that an applicant for a writ of prohibition must show that he or she has no “plain, speedy and adequate remedy in the ordinary course of law” available to them. SDCL 21-30-2. Corbly v. Matheson, 335 N.W.2d 347, 348 (S.D.1983). If there is another “plain, speedy and adequate” remedy at law or in equity, equally available to an applicant, this Court has held it will not issue a writ of prohibition. Brandon Savings Bank v. Swanson, 54 S.D. 95, 222 N.W. 660, 661 (1928); Gilmore v. Sandy, 50 S.D. 247, 209 N.W. 342 (1926).

The Governor has the legal authority to fill the vacancies pursuant to Art. V, § 7 of the South Dakota Constitution. He states that he has done so and that there remain no acts on his part for this Court to prohibit.³ He argues that once Severson and Caldwell qualify for office pursuant to SDCL 3-4-7, they will become judges on February 1, 1993, pursuant to their appointment.⁴

In State ex rel. Hellier v. Vincent, 20 S.D. 90, 104 N.W. 914 (1905) this Court determined that once an appointment is made by the appropriate authority, it is final or exhausted and cannot be withdrawn and exercised again unless a subsequent vacancy arises. In Burke v. Schmidt, 86 S.D. 71, 191 N.W.2d 281, 284 (1971) we noted that this doctrine specifically applies to circuit court appointments by the Governor pursuant to what is now Art. V, § 7 of our Constitution and its statutory counterpart, SDCL 3-4-3.

This Court has generally held that it will not issue a writ of prohibition where the public official has already completed the acts sought to be prohibited.

The case before us is one in prohibi-tion_ The thing sought to be prohibited has been done, and cannot be undone by any order of court_ Any adjudication which this court might make would be only an ineffectual decision of the question whether or not these petitioners were wronged by what has been fully accomplished. Under those circumstances there is nothing but a moot case remaining, and the motion to dismiss must be sustained.

Williamson v. Herseth, 78 S.D. 476, 477, 104 N.W.2d 473 (1960), quoting Jones v. Montague, 194 U.S. 147, 153, 24 S.Ct. 611, 612, 48 L.Ed. 913 (1904). See also Sioux Falls Argus Leader v. Young, 455 N.W.2d 864, 867-8 (S.D.1990); Church of Scientology v. U.S., — U.S. —,—, 113 S.Ct. 447, 449, 121 L.Ed.2d 313, 319 (1992).

However, as noted in Young, supra, and prior cases, this Court has not applied the mootness doctrine in exceptional circumstances. The basis for this exception is:

The decision as to whether to retain a moot case in order to pass on a question of public interest lies in the discretion of the court and generally a court will determine a moot question of public importance if it feels that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions.

Wheeldon v. Madison, 374 N.W.2d 367, 378 (S.D.1985), quoting Stanley County School v. Stanley County Ed. Ass ’n, 310 N.W.2d 162, 163 (S.D.1981). To invoke this public interest exception, three criteria must be met: (1) a general public importance; (2) probable future recurrence; and (3) probable future mootness. Young, supra, 455 N.W.2d at 868 n. 2; Sedlacek v. S.D. Teener Baseball Program, 437 N.W.2d 866, 868 (S.D.1989).

The issue before this Court is a question of general public importance. On February 1, 1993, Severson and Caldwell will begin to preside, along with their judicial colleagues, over two judicial circuits which contain nearly one-third of the state’s population. The power which the people of this state have entrusted to a circuit court judge affects the people’s lives, welfare and property to no small extent.

The second criteria is probable future recurrence. We take judicial notice that similar appointments have been made in the past. There is no reason to believe that they will not occur again. The Governor, by vigorously denying he has acted improperly, is clearly reserving his right to proceed in the same manner in the future.

The third criteria is probability of future mootness. The Applicants are in a Catch 22 situation. They do not know the Governor’s choices until his selections are publicly announced. Simultaneously the Governor can file the appropriate papers with the Secretary of State, thus always making his actions moot by the time his choices are made public.

We conclude that the public interest exception applies and we are prepared to address the issue of residency on the merits despite the fact that as to the appointments of Severson and Caldwell, the Governor’s actions are moot.⁵

ISSUE II

SHOULD THE WRIT OF PROHIBITION BE DENIED SINCE THE APPLICANTS PURPORTEDLY HAVE A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE FORM OF QUO WARRANTO?

The Governor argues that the Applicants have a plain, speedy and adequate remedy at law by an action in quo warranto brought under the authority of SDCL 21-28. This Court did hold in State ex rel. Walkin v. Shanks, 25 S.D. 55, 125 N.W. 122, 123 (1910) that quo warranto, rather than prohibition, is the proper method of determining the issue of title to public office. See also State ex rel. Pryor v. Axness, 31 S.D. 125, 139 N.W. 791 (1913); Gibbs v. Bergh, 51 S.D. 432, 214 N.W. 838 (1927); Burns v. Kurtenback, 327 N.W.2d 636 (S.D.1982); State ex rel. Rearick v. Bd. of Comr’s of Lyman County, 34 S.D. 256, 145 N.W. 548 (1914) (mandamus rejected in favor of quo warranto). In State ex rel. McGee v. Gardner, 3 S.D. 553, 54 N.W. 606 (1893) quo warranto was used to determine the title to the office of circuit judge.

However, other decisions of this Court show that this general rule has not always received uniform application and support in cases of this general factual setting. Initially, it should be noted that this Court early on in its existence made it clear that judicial discretion, rather than any fixed claims of right, were to govern the issuance of original writs of mandamus, prohibition, quo warranto, habeas corpus, injunction and certiorari:

It is not easy, if indeed it would be advisable to define definitely all the cases or classes of cases in which this court will exert its original powers. These must rest, as the constitution has left them, in the sound discretion of this court, to be exercised or denied as the circumstances of the given case may demand.

Everitt v. Bd. of County Commissioners, Hughes County, 1 S.D. 365, 370, 47 N.W. 296, 298 (1890).

In Putnam v. Phyle, 57 S.D. 250, 232 N.W. 20 (1930) the plaintiff sued the Secretary of State to have her enjoined from certifying an independent candidate for Governor. We noted that such an action should have properly been brought as a request for a writ of prohibition rather than an injunction. Instead of dismissing • on this point, we held that given the public importance of the case and the “need of prompt and final action,” we would not “sacrifice substance to form” and would decide the case on the merits in favor of the plaintiff. 57 S.D. at 255, 259, 232 N.W. at 22, 24.

Subsequently in State ex rel. Roberts v. Morrison, 64 S.D. 516, 268 N.W. 647 (1936) a member of this Court seeking re-election sought a writ of prohibition from this Court against the Secretary of State on the grounds that his opponent did not have enough valid signatures on his nominating petition. This Court found that prohibition was the “proper remedy” under which to examine the legality of the nominating petition. 64 S.D. at 522, 268 N.W. at 650. See also Vine v. Jones, 13 S.D. 54, 82 N.W. 82 (1900); State ex rel. Bakewell v. Hansen, 67 S.D. 499, 294 N.W. 445, 446 (1940); In re Opinion of the Judges, 85 S.D. 390, 182 N.W.2d 849 (1971) (Hanson and Wollman dissenting).

Assuming the Applicants produce the facts to support their claim, the Applicants would also have to persuade this Court to exercise its discretion, rather than demand a writ of quo warranto as a matter of right.⁶ Putnam, supra, 232 N.W. at 22. With February 1, 1993, fast approaching, Applicants had direct access to a circuit court for a cause of action in quo warranto but only a discretionary plea to this Court.

Pursuant to Art. V § 12, this Court is vested with the general supervision over all courts of this state. Were we to not act at this point, Severson and Caldwell could assume office on February 1, 1993, with a question as to their legal authority to act. The public has the right to know that it can rely on the legality of the actions of the circuit courts of this state. Having this issue continue to fester with Severson and Caldwell sitting on a legally questionable bench while the Applicants navigate their claim through the long and winding legal road of normal quo warranto proceedings is not in the best interest of anyone. Thus, we deem the exceptional circumstances of this case and the public interest involved appropriate to deviate from the general rule cited herein and will address the Applicants’ issue on the merits. See State v. Grayston, 349 Mo. 700, 163 S.W.2d 335 (1942).

ISSUE III

MUST APPOINTEES TO THE POSITION OF CIRCUIT COURT JUDGE BE VOTING RESIDENTS OF HIS OR HER CIRCUIT AT THE TIME OF APPLICATION FOR APPOINTMENT OR PRIOR TO HIS OR HER ASSUMING OFFICE?

1. Introduction.

Article V, § 6 of . the South Dakota Constitution states in part:

Justices of the Supreme Court, judges of the circuit courts and persons presiding over the courts of limited jurisdiction must be citizens of the United States, residents of the state of South Dakota and voting residents within the district, circuit or jurisdiction from which they are elected or appointed.

The language used in a constitution is of the primary importance in determining when the qualification to office must exist. Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93, 102 (1974); Slater v. Varney, 136 W.Va. 406, 68 S.E.2d 757, 768 (1951) citing 42 Am.Jur. Public Officers §§ 39 and 40. In the case of constitutional amendments, the legislative history and historical background can also be of assistance should there be an ambiguity in the constitutional language which requires interpretation by principles of construction. South Dakota Auto Club Inc. v. Volk, 305 N.W.2d 693, 697 (S.D.1981).

2. The Historical Background and Legislative History of Art. V, § 6 of the South Dakota Constitution.

The historical background provides guidance in addressing this question. City of Sioux Falls, v. Sioux Falls, Etc., 89 S.D. 455, 234 N.W.2d 35, 37 (1975). Current Art. V, § 6 is the 1972 successor to the former Art. V, §§ 10, 25 and 37 of our 1889 Constitution. The prior Art. V, § 25 required that to be elected a circuit court judge, the candidate had to meet the following residency requirement: “no person shall be eligible to the office of judge ... unless he shall ... at the time of his election be a resident of the district for which he is elected.” Art. V, § 37, which dealt with residency and appointed judges, stated:

All officers provided for in this article shall respectively reside in the district, county, precinct, city or town for which they may be elected or appointed. Vacancies in the elective offices provided for in this article shall be filled by appointment until the next general election as follows: All judges of the Supreme, circuit, and county Courts by the Governor. ...

Thus, under our former system an elected circuit court judge was specifically required to reside in his circuit at the time of election.

The Governor, Severson and Caldwell argue that in 1972 when the current Art. V, § 6 was approved by the voters, the prior specific requirement of residency at the time of election prior to taking office was deleted.

In South Dakota Auto Club Inc. v. Volk, supra, 305 N.W.2d at 697, this Court analyzed the reasons for going through the numerous steps necessary to amend our State Constitution:

Usually amendments are adopted for the express purpose of making a change in the existing system. Particularly applicable in the case of amendments are the rules relating to the intent of the framers and adopters and attainment of the object of a constitution. ‘The courts are under the duty to consider the old law, the mischief, and the remedy, and to interpret the constitution broadly to accomplish this manifest purpose of the amendment.’ [Citations omitted].

Art. V, § 6 was originally drafted by the Constitutional Revision Commission. When the meaning of words or terms employed in a constitution is uncertain or ambiguous, resort may be had to the view of the drafting body of that provision as an aid in determining its meaning and the intent, if it can be gathered from such proceedings. State ex rel. Rausch v. Amerada Petroleum Corp., 78 N.D. 247, 49 N.W.2d 14, 21 (1951). In its 1971 report to the legislature, the Commission discussed the effect that Art. V, § 6 would have if it were enacted to replace the then existing constitutional provisions:

This section omits the present period of residency and age requirements. Both are arbitrary standards which often have little relevance to the qualifications needed for a judicial position. A period of residency does not seem logical in the modern transitory society... ,⁷

The above conclusion of the Constitutional Revision Commission as to residency requirements supports the arguments of the Respondents. With the above stated Commission goal of doing away with “illogical” residency requirements, it would make little sense to require an attorney to declare residency in the circuit with a judicial vacancy just days prior to making application to the Judicial Qualifications Commission⁸ or just prior to receiving the appointment. Thus, the logical conclusion is that the Commission felt that adopting Art. V, § 6 would require establishment of residency prior to the judge taking office.

The object to be sought is the thought of the constitution makers in the use of this expression_ In case of doubt between different constructions claimed for a constitutional or statutory provision, or the meaning of a term, it is always allowable to inquire what results would legitimately follow either with a view of ascertaining, if possible, whether such consequences were contemplated or intended.

McGee v. Gardner, supra, 3 S.D. at 557, 54 N.W. at 607, cf. Aman v. Edmunds Central School Dist. 494 N.W.2d 198, 200 (S.D.1992).

3. The Language of Art. V, § 6.

The Applicants argue that the words “from which” found in Art. V, § 6 require voting residency⁹ at the time the candidate makes application for the judicial vacancy to the Judicial Qualifications Commission. Initially, it should be noted that words such as “from,” when used with respect to measurement of time, have no fixed or specific meaning. “Standing alone they are ambiguous and equivocal.” Fetters v. City of Des Moines, 260 Iowa 490, 149 N.W.2d 815, 818 (Ia.1967). Additionally, these words cannot be analyzed in isolation to the exclusion of the rest of the provision. “No wordage should be found to be surplus. No provision can be left without meaning.” Kneip, supra, 87 S.D. at 659, 214 N.W.2d at 102. “If possible, effect should be given to every part and every word.” State ex rel. Oster v. Jorgenson, 81 S.D. 447, 136 N.W.2d 870, 875 (1965).

The same issue that is now before this Court was addressed by the Oklahoma Supreme Court in the case of State ex rel. Stuart v. Rapp, 632 P.2d 388 (Okla.1981). It concluded:

Query: When must an appointee for such office become a legal resident of Pawanee County?

An appointee would not become a judge until he fulfilled all conditions precedent to his qualification and entered upon the duties of his office. Therefore, at the time an appointee takes and subscribes his oath of office, and entered upon the duties of his office, he must be a legal resident of Pawnee County. [Citation omitted].

632 P.2d at 391.

By the 1972 Amendment, the scope of the constitutional provision went from a “person ... eligible to the office of judge of the circuit ... court” to simply “judges of the circuit courts.” SDCL 16-1A-1(2) defines a “judge” as “a justice of the Supreme Court, a judge of the circuit court, or a judge of a court of limited jurisdiction.” See also SDCL 15-12-20(3).

The “logical results” analysis of McGee applied to the facts of this case show the fallacy of the Applicants’ argument. On December 11, 1992, both Judge Hertz and Judge Heege still legally occupied their positions. There is no provision cited which would allow two different individuals such as Heege and Severson to simultaneously exercise the powers of a circuit court judgeship when only one position is authorized by law. See SDCL 16-6-1. “It is self evident that merely seeking the office of ... judge ... does not involve the exercise of judicial powers.” Jordan v. Pearce, 91 Idaho 687, 429 P.2d 419, 421-2 (1967).

Art. V, § 6 refers to “judges” not “applicants,” “certified applicants” or something akin to persons appointed by the Governor but whom have not qualified pursuant to SDCL 3-4-7. Severson and Caldwell are not “judges” but in the language of former Art. V, § 25 they are a “person ... eligible to the office of judge of the circuit court_” As we held in Kneip, the framers of the Constitution use words in their natural sense and fully intend what they say. 87 S.D. at 658, 214 N.W.2d at 102, citing Schomer v. Scott, 65 S.D. 353, 274 N.W. 556 (1937). Just because an applicant obtains the right to hold office does not automatically make him or her into to a circuit judge. Subsequent events such as a change in career plans or the misfortunes of life may intervene. See In re Supreme Court Vacancy, 4 S.D. 532, 57 N.W. 495 (1894).

The North Dakota, Supreme Court in the case of Nielsen v. Neuharth, 331 N.W.2d 58 (N.D.1983) was faced with the same issue. Therein the candidate for judge who prevailed in the election was not a resident of his district at the time of his election but became a resident prior to his taking office. In holding that the residency requirement applied prior to taking office, rather than prior to the election, the Court reasoned:

where the word “eligibility” is used in connection with an office, and there are no explanatory words indicating that such word is used with reference to the time of election, it has reference to the qualification to hold the office rather than the qualification to be elected to the office.

331 N.W.2d at 60, quoting Enge v. Cass, 28 N.D. 219, 226, 148 N.W. 607, 609. See also Jordan, supra, 429 P.2d at 423.

Article V, § 6 does not contain the word “eligibility.” However, its command that “judges of the circuit court ... must be ... voting residents within ... the circuit ... from which they are ... appointed” certainly amounts to an eligibility requirement. Thus, the rationale of the North Dakota and Idaho Supreme Courts is of assistance in this question. This analysis also appears to be the one adopted by a majority of other jurisdictions that have ruled on this issue. Slater, supra, 68 S.E.2d at 769; State ex rel. Dostert v. Riggleman, 155 W.Va. 808, 187 S.E.2d 591, 595 (1972).

To construe Art. V, § 6 as contended by the Applicants would require this Court to incorporate sections into this provision which simply are not there anymore. State ex rel. Holmes v. Finnerud, 7 S.D. 237, 64 N.W. 121, 124 (1895). They were there from 1889 to 1972 as to judicial elections. They were removed by the legislature and the voters at that time by the constitutional amendment process. This amendment was submitted to an informed electorate who must be presumed to have known the reasons for the recommended changes. Barnhart v. Herseth, 88 S.D. 503, 222 N.W.2d 131, 137 (1974). Had the will of the legislature and the people been to retain or expand the previous residency requirements for judges, the same could have been easily drafted into Art. V, § 6. Kneip, supra, 214 N.W.2d at 102; Aman, supra, 494 N.W.2d at 199.¹⁰

We have examined the other claims of the Applicants and deem them without merit.

CONCLUSION

We hold that a person appointed to the office of circuit court judge must establish residency in that circuit prior to assuming said office. Thus, we conclude Governor Mickelson acted in accordance with Art. V, § 6 in the appointments of Severson and Caldwell.¹¹ The Applicants’ request for a writ of prohibition is denied.

MILLER, C.J., concurs. STEELE, Circuit Judge, concurs with writing. HENDERSON, J., concurs in part and dissents in part. SABERS, J., dissents. GILBERTSON, Circuit Judge, for WUEST, J., disqualified. STEELE, Circuit Judge, for AMUNDSON, J., disqualified.

1 . Pursuant to SDCL 16-5-1.2(2), the Second Judicial Circuit consists of Minnehaha County

2 . Pursuant to SDCL 16-5-1.2(1) the First Judicial Circuit consists of Bon Homme, Charles Mix, Clay, Douglas, Hutchinson, Lincoln, Turner, Union and Yankton counties.

3 . SDCL 3-4-6 sets forth the requirements for such appointments. They must be in writing and filed with the Secretary of State. The Court file shows this was done on December 11, 1992, when the appointments of Severson and Caldwell were filed with the South Dakota Secretary of State.

4 . Qualifications for office required by SDCL 3-4-7 are set forth in SDCL 3-1 and 3-5. None of the requirements of those two chapters give any authority or power to the Governor concerning the qualification process after he makes his appointment and files it with the Secretary of State.

5 . As Caldwell and Severson have not taken their oath and thus assumed office, clearly the claim of the Applicants against them is not moot.

6 . For the Applicants to pursue an action in quo warranto on their own, under SDCL 21-28-2(1) they must establish they have “a special interest in the action.” In Smith v. Reed, 60 S.D. 311, 244 N.W. 353 (1932) this Court held that a defeated candidate has such a special interest. However, in Knockemuss v. De Kerchove, 66 S.D. 446, 285 N.W. 441 (1939) we ruled that a private citizen claiming a special interest could not do so merely on the claim he was a citizen and a taxpayer. Thus, Applicants Andal and Kabeiseman would not have this special interest as they never sought the positions ultimately awarded to Caldwell and Severson. Even Cummings, who applied for Severson’s position, would have difficulty because he cannot establish whether his name was on the certification list sent to the Governor. As this determination by the Judicial Qualifications Commission is confidential, he cannot be faulted for failing to clarify this point.

On the other hand, a taxpayer or elector has standing to privately maintain a mandamus or prohibition action where the relief sought is a public matter or one of public right. State ex rel. Schilling v. Menzie, 17 S.D. 535, 97 N.W. 745 (1903).

While we do not rely on this "standing” matter as decisive in determining this issue because of time constraints placed on the parties and this Court, together with the brevity of the record, it serves to re-enforce the conclusion that a request for prohibition should be considered on the merits as the Applicants do not necessarily have a "plain, speedy and adequate" remedy in quo warranto.

7 . Views of individuals involved with the legislative process as to intent have not received the same recognition from this Court. We held such individual testimony of no assistance in State v. Bushfield, 69 S.D. 172, 176, 8 N.W.2d 1, 3 (1943) for two reasons: (1) it is the intent of the legislative body that is sought, not the intent of the individual members who may have diverse reasons for or against a proposition and (2) it is "universally held” that "evidence of a ... draftsman of a statute is not a competent aid to a court in construing a statute." The case now before us shows the wisdom of this prior holding.

The Applicants offer the affidavit of Robert E. Driscoll III, current Dean of the University of South Dakota School of Law, concerning his recollections as a drafting consultant to the Constitutional Revision Commission during 1970-1. Dean Driscoll recollects that it was the Commission’s intent that a candidate be a voting resident at the time of his or her appointment and prior thereto.

The Governor counters with the affidavits for former Chief Justice Jon Fosheim and Ronald D. Olinger, former Executive Secretary to the Constitutional Revision Commission.

It was former Chief Justice Fosheim (then a circuit judge who would have to live under any residency requirement) as a subcommittee chairman, that oversaw the drafting and revision of Art. V, § 6. Olinger was involved in the day to day work of the Committee and oversaw its staff. Both men state that it was the Commission's intent that the prior residency requirement be abolished and that this is verified by numerous drafts which so state in its commentary as well as the final commentary which was placed on every legislator’s desk.

All three of these individuals have served the public and the legal profession with distinction and integrity. All are called upon to resurrect events that occurred over twenty years before. The documentary evidence would lend credence to the Fosheim/Olinger view. Dean Driscoll states in his affidavit that he was not present for several commission meetings including the final ones where the recommendation to the Legislature was prepared. This probably explains the difference in recollection.as it is clear that early on in the Commission proceedings residency requirements were discussed.

In summary, this shows the difficulty of relying on the views of one or two persons, well after the fact, as establishing the consensus of the body as a whole.

8 . Applicant Cummings conceded at oral argument that had Severson and Caldwell done this, even under Cummings’ interpretation of Art. V, § 6, the actions of Caldwell and Severson would have met Cummings’ interpretation of that provision's residency requirement.

9 . The 1972 Amendment also changed the requirement from "resident" to "voting residents." As was noted at oral argument, this was probably in reaction to the demise of durational residency requirements which had previously been used to determine "residency." "Voting residency” is defined in SDCL 12-1-4 which was enacted in 1973.

10 . An early Commission draft of September 3, 1970, contained a requirement that a Supreme Court Justice be a resident "when appointed or elected.” Thus, it is clear that the Commission considered the concept of residency prior to taking office in some form. This language was not retained and after numerous subsequent drafts, Art. V, § 6 was to become the Commission's recommendation without dissent.

The Legislature which passed Art. V, § 6 is also certainly capable of enacting statutes containing residency requirements when it feels such a requirement is justified. SDCL 12-6-3.1 states:

Any candidate for office in the state Legislature shall be a resident of the district for which he is a candidate at the time he signs his declaration of candidacy as required by this chapter.

11 . The litigants in this matter have presented this Court with public policy reasons as to why appointments to the circuit court bench should or should not be made in this manner. These issues are not to be settled in this Court but rather rest with the public and its elected officials. We take no position on this political question.