183 N.W. 651 (S.D. 1921), 4934, Eakin v. South Dakota State Cement Commission

Docket Nº4934.
Citation183 N.W. 651, 44 S.D. 268
Opinion JudgeWHITING, J.
AttorneyC. E. Deland, of Pierre, for plaintiff. Byron S. Payne, Atty. Gen., and Vernon R. Sickel, Asst. Atty. Gen., for defendants.
Case DateJune 30, 1921
CourtSupreme Court of South Dakota

Page 651

183 N.W. 651 (S.D. 1921)

44 S.D. 268




No. 4934.

Supreme Court of South Dakota

June 30, 1921

Original application by Edwin K. Eakin, a taxpayer, for a writ of prohibition against the South Dakota State Cement Commission and others. Writ denied.

C. E. Deland, of Pierre, for plaintiff.

Byron S. Payne, Atty. Gen., and Vernon R. Sickel, Asst. Atty. Gen., for defendants.


Application for writ of prohibition, to prohibit defendants from issuing and selling bonds for the purpose of carrying into effect the provisions of chapter 324, Laws 1919-being the law authorizing the creation of a state cement commission and conferring upon it authority to issue bonds to establish, within this state, a plant or plants for the manufacture of cement. Defendants interposed a demurrer to the application for the writ; they also answered alleging facts other than those set forth in plaintiff's application.

The same questions that are presented to us under this application for writ of prohibition were presented to the judges of this court in a communication from the then Governor of this state, and which questions will be found answered in Re Opinion of Judges, reported in 180 N.W. 957. Realizing that the ex parte views of the judges, as so given the Governor of this state, did not amount to a decision of the court, but were merely advisory in their nature and effect and not binding upon this or any other court (In re Opinion of Judges, 34 S.D. 650, 147 N.W. 729), plaintiff instituted the present proceeding seeking a holding of the court adverse to the views expressed in such ex parte communication to the Governor. Aided, as this court now is, by the able briefs of counsel, we have given this application careful consideration. This consideration has but confirmed us in the conclusion that the views expressed to the Governor are in all things correct; and we do now adopt such views as the holdings of the court in the present proceedings, and we make reference to such reported views for a statement of same.

In the light of the conclusion that our former views were correct, we might be warranted in disposing of the present application by merely sustaining defendants' demurrer, basing such a holding-as we did our views in the communication to the Governor-in part upon matters of which we feel that we...

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