Eakin v. South Dakota Cement Comm., 4934

CourtSupreme Court of South Dakota
Writing for the CourtWHITING, J.
Citation183 N.W. 651,44 S.D. 268
PartiesEDWIN K. EAKIN, Plaintiff, v. SOUTH DAKOTA STATE CEMENT COMMISSION, William H. McMaster, Governor and chairman of the South Dakota Cement Commission, Paul E. Bellamy, Secretary-treasurer of the Commission, and Charles M. Harrison, Frank H. Bernard and William J. Scharwood, members of the Commission, Defendants.
Docket Number4934
Decision Date30 June 1921
44 S.D. 268
183 N.W. 651

EDWIN K. EAKIN,
Plaintiff,
v.
SOUTH DAKOTA STATE CEMENT COMMISSION,
William H. McMaster, Governor and chairman of the South Dakota Cement Commission, Paul E. Bellamy, Secretary-treasurer of the Commission, and Charles M. Harrison, Frank H. Bernard and William J. Scharwood, members of the Commission,
Defendants.


South Dakota Supreme Court
Original Proceedings
Application for a writ of prohibition
#4934--Writ denied

C. E. DeLand
Attorney for Plaintiff.

Byron S. Payne, Attorney General
Vernon R. Sickel, Assistant Attorney General
Attorneys for Defendants.

Opinion filed June 30, 1921

[44 SD 270-271]

WHITING, J.


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, 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...

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6 practice notes
  • Reeves, Inc v. Stake, No. 79-677
    • United States
    • United States Supreme Court
    • June 19, 1980
    ...both public and private enterprises," and that were "threatening the people of this state." Eakin v. South Dakota State Cement Comm'n, 44 S.D. 268, 272, 183 N.W. 651, 652 Page 431 (1921).1 In 1920, the South Dakota Cement Commission anticipated "[t]hat there would be a ready market for the ......
  • SD State Cement Plant v. WAUSAU UNDERWRITERS INS., Civ. No. 91-3027.
    • United States
    • U.S. District Court — District of South Dakota
    • November 27, 1991
    ...and private enterprises,' and that were `threatening the people of this state'") (quoting Eakin v. South Dakota State Cement Comm'n, 44 S.D. 268, 183 N.W. 651, 652 (1921)).701 F.2d 1131 (5th Cir.1983); Board of Regents v. Hoops, 624 F.Supp. 1179 (D.S.D.1986). The South Dakota Supreme CoStat......
  • Arcon Const. Co., Inc. v. South Dakota Cement Plant, Nos. 14139
    • United States
    • Supreme Court of South Dakota
    • May 2, 1984
    ...products is a function of state government. Not only is such activity for a public purpose, Eakin v. South Dakota State Cement Commission, 44 S.D. 268, 183 N.W. 651 (1921); In re Opinion of the Judges, 43 S.D. 648, 180 N.W. 957 (1920), but, when this cause of action arose in 1978, SDCL 5-17......
  • Clem v. City of Yankton, No. 10511
    • United States
    • Supreme Court of South Dakota
    • July 16, 1968
    ...to the Constitution of the United States, or Section 2 of Art. VI of our Constitution. Eakin v. South Dakota State Cement Commission, 44 S.D. 268, 183 N.W. 651; Gripentrog v. City of Wahpeton, N.D., 126 N.W.2d 230; State ex rel. Ferguson v. City of Pittsburg, supra; nor violate the privileg......
  • Request a trial to view additional results
6 cases
  • Reeves, Inc v. Stake, No. 79-677
    • United States
    • United States Supreme Court
    • June 19, 1980
    ...both public and private enterprises," and that were "threatening the people of this state." Eakin v. South Dakota State Cement Comm'n, 44 S.D. 268, 272, 183 N.W. 651, 652 Page 431 (1921).1 In 1920, the South Dakota Cement Commission anticipated "[t]hat there would be a ready market for the ......
  • SD State Cement Plant v. WAUSAU UNDERWRITERS INS., Civ. No. 91-3027.
    • United States
    • U.S. District Court — District of South Dakota
    • November 27, 1991
    ...and private enterprises,' and that were `threatening the people of this state'") (quoting Eakin v. South Dakota State Cement Comm'n, 44 S.D. 268, 183 N.W. 651, 652 (1921)).701 F.2d 1131 (5th Cir.1983); Board of Regents v. Hoops, 624 F.Supp. 1179 (D.S.D.1986). The South Dakota Supreme CoStat......
  • Arcon Const. Co., Inc. v. South Dakota Cement Plant, Nos. 14139
    • United States
    • Supreme Court of South Dakota
    • May 2, 1984
    ...products is a function of state government. Not only is such activity for a public purpose, Eakin v. South Dakota State Cement Commission, 44 S.D. 268, 183 N.W. 651 (1921); In re Opinion of the Judges, 43 S.D. 648, 180 N.W. 957 (1920), but, when this cause of action arose in 1978, SDCL 5-17......
  • Clem v. City of Yankton, No. 10511
    • United States
    • Supreme Court of South Dakota
    • July 16, 1968
    ...to the Constitution of the United States, or Section 2 of Art. VI of our Constitution. Eakin v. South Dakota State Cement Commission, 44 S.D. 268, 183 N.W. 651; Gripentrog v. City of Wahpeton, N.D., 126 N.W.2d 230; State ex rel. Ferguson v. City of Pittsburg, supra; nor violate the privileg......
  • Request a trial to view additional results

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