with the railroad to construct part of its line. Payments for the work were to be made monthly upon the certificate of the engineer of the company, and it was covenanted that 10% from the value of the work as an agreed compensation for damages should be retained by the company in case of failure by Flynn to complete the whole amount of the work according to the stipulations of the agreement. It was contended by the railway company that it was entitled to retain the 10% as liquidated damages. The court found that the stipulation as to time was waived and by being waived was eliminated from the contract and the railway company was not entitled to any sum as liquidated damages.

In the present case, as we have seen from the findings, there was no thought by the officers of the Government of a culpable delinquency on the part of the appellant or of detriment to the Government. The steamer was delivered, tested, approved and paid for.

It was held, however, by the Court of Claims that the Quartermaster General had no power to waive the provision for liquidated damages. It is not clear that counsel contends for so broad a proposition. His contention is that "the Government is not bound by the acts of its officers in making unauthorized payments through mistake of fact or of law." There was no mistake of fact, and by mistake of law counsel may mean, the action of the Quartermaster General was outside of the scope of the official authority given him by law. If that officer so acted the Government is not bound by his acts. Wisconsin Central R. R. v. United States, 164 U. S. 190, 212, and Logan v. United States, 169 U. S. 255, 259.

The cited cases (they are those upon which the Government relies) involved the construction of statutory law, in other words, of a specific law which was the source of the officer's authority. The case at bar is a case of contract, authorized by law, necessarily entered into and

Opinion of the Court.

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conducted by the officers of the Government and as necessarily they must have had the powers to make it effective in its beginning and progress. The Court of Claims recognized this and found that (48 Ct. Cls., p. 52) "the Quartermaster General, United States Army, within his discretion under the contract, orally waived the time limit in said contract," a very essential discretion which might have been embarrassed or defeated if it had not extended to what depended upon the time limit of the contract. We think the case, therefore, falls under the ruling of Salomon v. United States, 19 Wall. 17, 19-20, where it is said that "The Act of 1862 (12 Stat. 411), requiring contracts for military supplies to be in writing, is not infringed by the proper officer having charge of such matter, accepting delivery of such supplies after the day stipulated, nor is a verbal agreement to extend the time of performance invalid." See also District of Columbia v. Camden Iron Works, 181 U. S. 453.

Judgment reversed and cause remanded with direction to dismiss the counter petition of the Government and to enter judgment for appellant in the amount claimed by it.

MR. JUSTICE MCREYNOLDS took no part in the consideration and decision of the case.

235 U. S.

Argument for Appellants.

LANKFORD AND OTHERS, COMPOSING THE STATE BANKING BOARD OF THE STATE OF OKLAHOMA, v. PLATTE IRON WORKS COMPANY.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF OKLAHOMA

No. 381. Argued October 14, 15, 1914. Decided January 5, 1915.

The decision of state tribunals in regard thereto is an important element to be considered in determining the interest which the State has in a fund administered by a state board.

The state courts of Oklahoma having held that the statute creating the State Banking Board intended to give the State a definite title to the Depositors' Guaranty Fund, the fact that the fund is to be used to satisfy claims of beneficiaries does not take its administration from the officers of the State or subject them to judicial control. This court will not assume that the fund will not be faithfully managed and applied. Murray v. Wilson Distilling Co., 213 U. S. 151. A suit by a depositor in a bank in Oklahoma against members of the State Banking Board and the Bank Commissioner of Oklahoma to compel payments from, distribution of, and assessments for, the Depositors' Guaranty Fund, is a suit against the State, and, under the Eleventh Amendment, cannot be maintained in the Federal court.

THE facts, which involve the application of the Eleventh Amendment to suits brought in the Federal courts against the members of the State Banking Board of Oklahoma to compel payments from, and distribution of, the Depositors' Guaranty Fund of that State, are stated in the opinion.

Mr. Charles West, Attorney General of the State of Oklahoma, for appellants:

The action is against the State of Oklahoma. Defend ants are sued in their official capacity. The relief sought is such as could only be granted against them as officials of the State. They have no personal interest in the litiga

Argument for Appellants.

235 U.S.

tion. Were they not officers of the State they could not in any way comply with the decree rendered. The bill seeks payment of the plaintiff's claim out of the Depositors' Guaranty Fund or if the cash available be insufficient to issue Depositors' Guaranty Fund Warrants in payment of same.

The Supreme Court of Oklahoma held, that the Depositors' Guaranty Fund is a fund of the State, and that the State had a first lien on the failed bank's assets to discharge whatever the State should advance for it. State v. Cockrell, 27 Oklahoma, 630; Lankford v. Oklahoma Engraving Co., 130 Pac. Rep. 278.

The object of the law is to serve public not private rights. Whether or not the Oklahoma Act served a private or a public purpose was the basis of the decision of this court in Noble State Bank v. Haskell, 219 U. S. 104; S. C., 219 U. S. 575.

The essence of the law is not to establish a private right but to conserve public welfare; and, as such, no justiciable rights in the depositors are to be presumed to arise; the law was not primarily enacted to return to the depositor his money, but more properly to prevent the public injury by bank panics. Nowhere is there language used showing an intent to give to a depositor the right to sue. See § 1, ch. 22, Sess. Laws, 1913; § 6, ch. 22, Sess. Laws, 1913.

With the exercise of a high executive discretion, the courts will not interfere. Decatur v. Paulding, 14 Pet. 497.

An action to compel state officers to pay a claim from a state fund in their charge, which they, in the exercise of an executive discretion, refused to pay, is an action against the State. Governor of Georgia v. Madrazo, 1 Pet. 110, 123; Smith v. Reeves, 178 U. S. 436.

An action to compel payment by the Treasurer of the State of a sum unlawfully collected as taxes is one to compel the State to pay out money from its funds and

235 U. S.

Counsel for Appellee.

therefore one against the State. See Re Ayers, 123 U. S. 443; Pennoyer v. McConnaughy, 140 U. S. 1, 10; Louisiana v. Jumel, 107 U. S. 711; Cunningham v. Macon & Brunswick Ry., 109 U. S. 446.

Murray v. Wilson Distilling Co., 213 U. S. 150, is conclusive of the issue here. The State has placed the management of a state fund in the hands of a board of state officers; and, as in that case, the purpose of the fund is to pay certain claimants; the State has selected that board, and no other tribunal to determine what claims shall be paid. The courts have no jurisdiction.

The case is not one in which it is sought to move the officer through the State but on the contrary the State is sought to be moved through its officers. Of this, the court has no jurisdiction, as it is in violation of the Eleventh Amendment.

The action is for mandamus, not ancillary to a prior judgment. Farmers Nat. Bank v. Jones, 105 Fed. Rep. 459. Not being ancillary to any judgment previously obtained, the Federal District Court had no jurisdiction thereof. Covington &c. Bridge Co. v. Hager, 203 U. S. 109; Knapp v. Lake Shore Ry., 197 U. S. 540; Fuller v. Aylesworth, 75 Fed. Rep. 694. See also Jabine v. Oats, 115 Fed. Rep. 861; Wiemer v. Louisville Water Co., 130 Fed. Rep. 246; Large v. Consul, 137 Fed. Rep. 168; Pensacola v. Lehman, 57 Fed. Rep. 324; Denton v. Barber, 79 Fed. Rep. 189; Burnham v. Fields, 157 Fed. Rep. 248; Gares v. Northwest Bldg. Assn., 55 Fed. Rep. 210; Indiana v. Lake Erie &c. Ry., 85 Fed. Rep. 3.

This rule applies to district courts as well as circuit courts. In re Forsyth, 78 Fed. Rep. 301.

The petition sets forth no cause of action.

Mr. Charles A. Loomis and Mr. Allen McReynolds, with whom Mr. Howard Gray and Mr. John W. Halliburton, were on the brief, for appellee: