Montgomery v. Sparks , 225 Ala. 343 ( 1932 )

It is too clear to permit of argument that no person or officer, unless authorized by statute, can sue in the name of the state of Alabama, except on "the written direction of the governor of the state to the attorney of record." Code 1923, § 5644.

There is no pretense in this case that any such authority was given, but appellee seeks to meet the contention made by the appellant, that this proceeding was instituted without authority of law, by showing by parol testimony that the suit was authorized by the Attorney General.

The fault in this position of the appellee is that the authority to sue in the name of the state, conferred by section 854 of the Code, is an official duty imposed by the statute, and must be exercised by the Attorney General over his "signature and official designation," and is a power which he has no authority to delegate to another. Ex parte State of Alabama (In re Stephenson), 113 Ala. 85, 21 So. 210; State ex rel. Almon et al. v. Burke, Judge, 160 Ala. 163, 48 So. 1035; State ex rel. Gaston v. Cunninghame et al., County Com'rs,216 Ala. 423, 113 So. 309.

I am therefore of opinion that the motion to dismiss should have been granted, and that the court erred in overruling the motion.

I am further of opinion that Sparks was improperly joined as a complainant, and that the demurrer filed by the appellant assigning this ground was well taken, and should have been sustained. Sparks, if a necessary or proper party, should have been made a defendant.

I therefore respectfully dissent in part.