Opinion of the Judges

• Decision Date: 29 December 1920
• Parties: IN RE OPINION OF THE JUDGES.
• Court: South Dakota Supreme Court

43 S.D. 648

180 N.W. 957

IN RE OPINION OF THE JUDGES.

#4837

In the matter of the Opinion of the Judges of the Supreme Court, in response to the request of Peter Norbeck, Governor of the State, concerning the validity of Laws 1919, Chap. 324, relating to the manufacture, distribution, and sale of cement and cement products by the State. Statute held constitutional.

Opinion filed December 29, 1920

To His Excellency, Peter Norbeck—Governor of the State of

South Dakota—Sir:

On December 24, 1920, you presented to us the following communication:

"To the Honorable Judges of the Supreme Court of the State of South Dakota:

"May It Please Your Honors;

"The Legislature of this state has enacted chapter 324 of the Session Laws of 1919 relating to the manufacture, distribution and sale of cement and cement products by the state. This commission, of which I am ex-officio chairman, under the provisions of section 2, has completed its exploration of materials and resources within the state, which may be used in the manufacture of cement and cement products and has made a thorough and complete investigation of the different prospective sites for cement plants, and has obtained data relating to transportation facilities, coal and other fuel supply, and to the demand for and the cost of production of such products; and as a result of such investigation such commission has determined that the state can successfully engage in the manufacture of cement and cement products and has made an order locating said plant in the vicinity of Rapid City, Pennington county, South Dakota, at which it is proposed that the state shall engage in the manufacture, sale and distribution of such cement and cement products. This order has been entered upon the journal showing the proceedings of said commission.

"The said act of the Legislature provides for the issuance of bonds as obligations of the state of South Dakota, and it is now the intention of the board to issue and sell a series of bonds in an amount aggregating two hundred fifty thousand ($250,000.00) dollars. Section 2 of the act provides that the commission shall consist of the Governor, who shall be chairman, and four other members. Subdivision A of section 6 provides that the bonds issued by the commission shall be executed in the name and on behalf of the state by the chairman and secretary of the commission. Because of the fact that this law imposes upon me as Governor and ex-officio chairman of the commission the duty of signing such bonds, may it please your honors to prepare and submit to me your opinion as to the constitutionality of said law, and as to whether or not bonds issued under the provisions thereof would constitute valid and binding obligations of the state of South Dakota. In order that the court may be fully advised as to the facts relating to this matter, I desire to inform you that no bonds or warrants have as yet been issued. by said commission.

Respectfully submitted,

[Signed] Peter Norbeck,

Governor of South Dakota.

"Dated this 23d day of December, 1920, A. D."

The inquiry is a broad one, covering, as it does, all possible points of attack upon the proposed bond issue based upon any infringement of the Constitution.

The title to chapter 324, Laws 1919, while unnecessarily an index of the contents of the act, appears to cover such contents and we do not think the bond issue would be invalid under the provisions of Const. art. 3, § 21.

We have examined the journals of the House and Senate, as well as the enrolled bill on file in the office of the secretary of state, and find that the act was lawfully adopted and approved under the requirements of Const. arts. 3, 4, although under the decisions in Krakowski v. Waskey, 145 N.W. 566, and State ex rel. Graber v. Schmidt, the enrolled bill on file in the office of the secretary of state is conclusive upon the courts.

In so far as the questions may arise that were asked by you concerning the Hydro-Electric Act (chapter 225, Laws 1919), we answer the same as we then did (In re Opinion of the Judges, 177 N.W. 812,) for the reason that the constitutional provisions underlying each act are the same in principle. Compare Const. art. 13, §§ 10, 11, with sections 12 and 13.

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