State v. Thompson

Citations

• 64 Tex. 690

Syllabus

<p>1. Attorney-general — Authority — Practice — General Laws oe 1888, 107 — Purchase money.— Suit was brought for the purpose of canceling defendant’s claim of title to two sections of school lands. The applications to purchase were made under the act contained in chapter 105 of the Laws of 1881, page 119, and the purchaser was a deputy surveyor at the time of the purchase. Held:</p> <p>(1) That the right of the state to sue in any court having jurisdiction of the subject-matter cannot be questioned.</p> <p>(3) The statute requires, however, that suits of this character shall not be instituted by the attorney-general under the provisions of the act, unless it shall be advised and directed by at least three of the land board. Gen. Laws 1883, p. 108.</p> <p>(3) While anxious to discover and set aside purchases of school lands made in contravention of the act of July 8, 1879, and the amendatory act of April 6, 1881, the legislature was unwilling to have suits brought unless, upon examination by the board appointed by the act of April 14, 1883, reasonable cause was found in each case for believing that the law had been violated.</p> <p>(4) The state had the right to thus limit the power of the attorney-general through the legislature.</p> <p>(5) The authority of the attorney-general to bring suit was to be presumed in this case as in any other, and could be questioned only in the manner that the authority of any attorney assuming to represent a plaintiff could be.</p> <p>(6) It could not be done by a demurrer to a petition which did not allege the power under which the attorney assumed to be acting in the suit. It is a question of fact and not of law, and should be raised by some pleading or motion denying the authority, and to throw the burden of proof from the defendant, his motion or pleading should be sworn to. Turner v. Caruthers, 17 Cal., 433; Clark v. Willett, 35 Cal., 534.</p> <p>(7) The language of the statute is not ambiguous — that no county or district surve