
    Joe Clark v. J. J. Terrell, Commissioner.
    No. 1265.
    Decided May 30, 1904.
    Supreme Court—Mandamus—Question of Fact.
    The Supreme Court will not entertain an original proceeding for writ of mandamus against the Commissioner of the General Land Office where the answer discloses an issue between the parties as to the facts. (P. 15.)
    Original application to the Supreme Court, by Clark, to obtain writ ■of mandamus against Terrell requiring him, as Land Commissioner, to accept relator’s application to purchase a tract of school land.
    
      A. S. James and E. H. Yeiser, for relator.
    
      C. K. Bell, Attorney-General, and T. S. Reese, Assistant, for respondent Terrell.
    
      S. T. Fagan, for respondent Harris.
   GAINES, Chief Justice.

This is a petition for a writ of mandamus to compel the Commissioner of the General Land Office to accept the application of relator to purchase a section of school land. The petition shows that the Commissioner refused the application on the ground that the land had been previously sold 'to one Jackson. Eor the purpose of establishing that the sale to Jackson was invalid, it is also alleged that it was made before the clerk of the county court of the county in which the land is situate had been notified by the Commissioner that the section had been classified and appraised and put upon the market for sale. W. G. Harris was made a defendant to the suit, upon the allegation that he was claiming the land as assignee of Jackson.

The respondent Terrell and the defendant Jackson have filed separate answers in which each specifically alleges that the clerk had received notice of the classification and appraisement of the land at the time Jackson made his application. The issue thus sharply presented raises a question of fact which we have no power to determine. De Poyster v. Baker, 89 Texas, 155.

The petition for the writ of mandamus is therefore dismissed.

Dismissed.  