Eakin v. South Dakota State Cement Commission

W'HITING, 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 ir 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. [1,2] 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.- [3] ■ 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 could properly take judicial notice; but, through an abundance of caution, defendants have seen fit to interpose an answer and to offer evidenee in support of the allegations thereof. By so doing they have proven not only facts of which this court would have taken judicial notice, but other facts, all establishing the ultimate fact that the manufacture of cement, under the conditions existing- in the state of South Dakota, is the carrying out of a public pur 272 pose. We therefore base our decision herein upon the law announced in our communication to the Governor, and upon the findings of fact which we have filed herein. These findings are, briefly: That cement and its products are commodities that are necessary to the people of this state; that they cannot be procured through individual effort; that, in the construction of highways, bridges, street paving, sidewalks, and public buildings within this state, cement is a necessary material, and for such construction there are required m'ore- than 1,000 barrels of cement per day; that cement and cement products are also necessary materials for the construction of homes and other structures not hereinbefore referred to; that the use of cement is rapidly increasing in this state as elsewhere; that a serious shortage in the supply of cement is threatening the people of this state; that there has been such a shortage many 'times during the past two years, and at times such shortage has interfered with and delayed both public and private enterprises; that the materials for the making of cement are found in large quantities and at accessible points within this state; that gravel, an essential part of cement construction, is found in abundance and distributed throughout the different portions of this state, thus making practicable the manufacture of cement and cement products within this state; that there are no privately owned and operated cement plants within this state or within som'e 175 miles of the borders thereof; and that the manufacture, distribution, and sale of cem’ent and cemtent products by the state will tend to promote the public welfare, prosperity, and contentment of all the citizens of the state, and will tend to secure equality of economic opportunity. It follows, therefore, that under the holding in Green v. Frazier, 253 U. S. 233, 40 Sup. Ct. 499, 64 L. Ed. 878, the carrying into effect of the statute before us would not deprive plaintiff of his property without due process of law; and therefore, for all the reasons stated in that opinion and by this court in its communication to the Governor, the writ applied for is denied.