State v. Thompson

Stayton, Associate Justice.

The right of the state to sue in cases of this or any other character, in any court having jurisdiction of the subject-matter of the suit, without a statute authorizing the suit to be brought cannot be questioned.

The statute which requires suits of this character to be brought, however, provides that “ no suit shall be instituted by the attorney-general under the provisions of this act unless it shall be advised and directed by at least three of the board created by this act.” General Laws, 1883, p. 108.

It is evident that while the legislature was anxious to discover and set aside all purchases of school lands made in contravention of the act of July 8, 1879, and of the amendatory act of April 6,1881, it was unwilling to have suits brought unless, upon examination by the board appointed by the act of April 14, 1883, reasonable cause was found to induce the belief, in a given case, that the law had been violated.

It therefore made the power of the attorney-general to bring such suits to depend upon the advice and direction of three members of the board whose duty it was to make investigation.

The state thus limited the power of the attorney-general, as it evidently had the right to do, through the legislature.

The petition in this case does not contain any averment that the attorney-general was advised or directed to bring this suit, and one of the special demurrers presents this as an objection to the sufficiency of the petition.

We have no doubt of the want of authority in the attorney-general to institute this suit, if in .fact he was not advised or directed by at least three members of the board to bring it.

The only question is, whether this question can be raised by an exception to the petition, or whether it should be presented by a plea of some kind raising an issue of fact.

It is not contended that the attorney-general and the district attorney who brought this suit are not the proper officers and attorneys to bring suits in the name of and in behalf of the state; but it is urged that their authority must be shown by the averments of the petition.

We are of the opinion that the same presumptions, as to their power to bring this suit, must be indulged as would be in any other.

It is not to be presumed that the attorney-general was not advised or directed by the board to bring this suit.

The fact, which it is claimed should be alleged, is not one bearing upon the right of the state to recover, but is one which bears upon the question of the authority of the officers who assume, and ordinarily have the power, to represent the state, to represent it in this case. The authority of these officers to represent the state must be questioned just as would the authority of any attorney assuming to represent a plaintiff in any other action; and this certainly could not be done by a demurrer to a petition which did not allege the power under which the attorney assumed to act in bringing a suit.

The question depends upon an issue of fact, and not upon an issue of law which it is the office of a demurrer to raise.

That a defendant may question- the authority of an attorney to represent a plaintiff whom he assumes to represent is true. The proper mode of procedure, if it be desired to question the authority of an attorney assuming to represent a plaintiff, is for the defendant to file some pleading or motion denying his authority, thus raising an issue of fact upon which evidence may be introduced; and to throw the burden of proof from the defendant, it seems his pleading or motion should be sworn to. Turner v. Caruthers, 17 Cal., 432; Clark v. Willett, 35 Cal., 534; People v. Mariposa County, 39 Cal., 683; McKiernan v. Patrick, 4 Howard (Miss.), 333; Lynn v. Glidwell, 8 Yerger, 2.

It is urged that the petition is defective, in that it gives as a reason why the defendant could not purchase school lands from the state, that be was a “deputy surveyor,” and does not allege that he was a “ special deputy surveyor.”

The statute seems to give to a person who is styled a “ special deputy surveyor ” power to perform all official acts which his principal may perform, but does not in terms confer such power on a “deputy surveyor.” R. S., 3840, 3842, 3843, 3853.

From this it is argued, that while the relations of a special deputy surveyor to the duties of the surveyor are such as to enable him to exercise an improper influence in the sale-of public school lands, and hence the purchase of such lands by such an officer prohibited, yet that no such prohibition extends to a deputy surveyor, as he is expressly charged with duties which do not give him any control, op right to act, in making sales of such lands.

We do not deem it necessary or proper to inquire into the powers of deputy and special deputy surveyors, in order to ascertain whether they are such as to make it proper for the legislature to prohibit each from purchasing public land.

This was a question for the legislature to determine, and it has declared:

“ If any person who is an officer or clerk in the general land office, or a district surveyor, or deputy district surveyor, or county surveyor or his deputy, shall directly or indirectly be concerned in the purchase of any right, title or interest in any public land, in his own name, or in the name of any other person, ... he shall be fined in any sum not exceeding $500.” P. C., 118.

If the language used by the legislature was ambiguous, courts might look to the evil intended to be remedied, and to the policy intended to be carried out; but when there is no uncertainty in the language through which the legislature has evidenced its intention, and announced a policy, the courts have no right or power, upon their own notions of public policy, to disregard the clearly expressed will of the law-making department of the government.

The law expressly forbids “a deputy surveyor” directly or indirectly to purchase any public land.

What the law forbids cannot be legally done.

Lands, such as the appellee purchased, have been held by this court to be, within the meaning of the statute above quoted, “ public lands.” Cotulla v. Laxson, 60 Tex., 444.

The act directing actions of this character to be brought seems to recognize the application of arts. 118, 119, P. C., to purchases made under the acts of July 8, 1879, and April 6, 1881. General Laws, 1883, p. 107.

It is urged in this case, as in others, that the state cannot maintain this action without returning or offering to return such sums of money as may have been paid by the defendant to the state on the purchase of the land.

. This view' we have held to be erroneous, in the case of The State w. D. H. Snyder, this day decided, and for the reasons given in that case we so hold in this.

The court erred in sustaining the demurrers urged in the court below, and the judgment will be reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered December 15, 1885.]