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PITNEY, DAY, Van Devanter, LAMAR, JJ., dissenting. 235 U. S.

ment. We are referred by appellant's counsel to Louisiana v. Jumel, 107 U. S. 711; Cunningham v. Macon & Brunswick R. R., 109 U. S. 446; Hagood v. Southern, 117 U. S. 52; In re Ayers, 123 U. S. 443; N. Y. Guaranty Co. v. Steele, 134 U. S. 230; Pennoyer v. McConnaughy, 140 U. S. 1, 10; Smith v. Reeves, 178 U. S. 436; and similar cases. But there is a broad distinction, uniformly recognized by this court, which, as it seems to me, takes the present action out of the prohibition of the Eleventh Amendment. It was well expressed in Board of Liquidation v. McComb, 92 U. S. 531, 541, where the court, by Mr. Justice Bradley, said: "The objections to proceeding against state officers by mandamus or injunction are: first, that it is, in effect, proceeding against the State itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A State, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled, that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it." In the Jumel Case, 107 U. S. at p. 727, Mr. Chief Justice Waite said: "The relators do not occupy the position of creditors of the State demanding payment from an executive officer charged with the ministerial duty of taking the money from the public treasury and handing it over to them, and, on his refusal, seeking to compel him to perform that specific duty." In the Cunningham Case, 109 U. S. at p. 452, Mr. Justice Miller, in describing

235 U.S. PITNEY, DAY, VAN Devanter, LAMAR, JJ., dissenting.

the class of cases in which public officers may be sued, said: "A third class, which has given rise to more controversy, is where the law has imposed upon an officer of the government a well defined duty in regard to a specific matter, not affecting the general powers or functions of the government, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process." In Rolston v. Missouri Fund Commrs., 120 U. S. 390, 411, Mr. Chief Justice Waite said: "It is next contended that this suit cannot be maintained because it is in its effect a suit against the State, which is prohibited by the Eleventh Amendment of the Constitution of the United States, and Louisiana v. Jumel, 107 U. S. 711, is cited in support of this position. But this case is entirely different from that. There the effort was to compel a state officer to do what a statute prohibited him from doing. Here the suit is to get a state officer to do what a statute requires of him. The litigation is with the officer, not the State. The law makes it his duty to assign the liens in question to the trustees when they make a certain payment. The trustees claim they have made this payment. The officer says they have not, and there is no controversy about his duty if they have. The only inquiry is, therefore, as to the fact of a payment according to the requirements of the law. If it has been made, the trustees are entitled to their decree. If it has not, a decree in their favor, as the case now stands, must be denied; but as the parties are all before the court, and the suit is in equity, it may be retained so as to determine what the trustees must do in order to fulfill the law, and under what circumstances the Governor can be compelled to execute the assignment which has been provided for." In Reagan v. Farmers Loan & Trust Co., 154 U. S. 362, 390, where it was objected that the suit was in effect a suit against the State of Texas, the court, by Mr. Justice Brewer, said: "There

Statement of the Case.

235 U. S.

is a sense, doubtless, in which it may be said that the State is interested in the question, but only a governmental sense. It is interested in the well-being of its citizens, in the just and equal enforcement of all its laws; but such governmental interest is not the pecuniary interest which causes it to bear the burden of an adverse judgment. Not a dollar will be taken from the treasury of the State, no pecuniary obligation of it will be enforced, none of its property affected by any decree which may be rendered."

Finally, this is an equitable action brought to establish and enforce a trust in favor of plaintiff, with only an incidental prayer for a mandatory decree. It is not an original proceeding by mandamus, of which the Federal courts have no jurisdiction. Bath County v. Amy, 13 Wall. 244; Jordan v. Cass County, 3 Dill. 185; Fed. Cas. No. 7517; County of Cass v. Johnston, 95 U. S. 360, 370; County of Greene v. Daniel, 102 U. S. 187, 195; Davenport v. County of Dodge, 105 U. S. 237, 242.

It seems to me that the decree should be affirmed.

AMERICAN WATER SOFTENER COMPANY v. LANKFORD AND OTHERS, COMPOSING THE STATE BANKING BOARD OF THE STATE OF OKLAHOMA.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF OKLAHOMA.

No. 418. Argued October 14, 15, 1914.-Decided January 5, 1915.

Decided on authority of Lankford v. Platte Iron Works, ante, p. 461.

THE facts are stated in the opinion.

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Mr. C. Wilfred Conard, with whom Mr. L. J. Roach was on the brief, for appellant.

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

MR. JUSTICE MCKENNA delivered the opinion of the

court.

Appellant, on June 8, 1912, deposited with the Farmers' and Merchants' Bank of Sapulpa the sum of $3,337.50. The bank issued to appellant a certificate of deposit for the sum in the usual form.

The bank, which, it is alleged, was entitled to the benefits of the Oklahoma bank guaranty law, subsequently failed and was closed and taken possession of by appellees, composing the State Banking Board. The certificate of deposit was presented to the Banking Board and payment demanded out of the Depositors' Guaranty Fund or, if that fund should be insufficient, that there be issued to appellant a certificate of deposit. Both demands were refused and this suit was instituted to enjoin compliance with one or the other of the demands.

Motion was made by appellees to dismiss the bill on the ground that the court had no jurisdiction of the subject-matter of the action or of the persons of the defendants (appellees), the suit being one against the State of Oklahoma without its consent in violation of the provisions of the Eleventh Amendment to the Constitution of the United States.

The motion was granted on the authority of the court's opinion in Farish v. State Banking Board.

This appeal was then prosecuted.

The questions in this case are the same as those discussed and decided this day in Lankford, et al., Composing the State Banking Board, v. Platte Iron Works Company, VOL. CCXXXV-32

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ante, p. 461, and on the authority of that case the decree in this is

Affirmed.

MR. JUSTICE PITNEY, with whom concurred MR. JUSTICE DAY, MR. JUSTICE VAN DEVANTER, and MR. JUSTICE LAMAR, dissenting.

For reasons expressed in the dissenting opinion in Lankford v. Platte Iron Works Company, this day decided, ante, p. 461, I am unable to concur in the opinion and judgment of the court in this case.

FARISH v. STATE BANKING BOARD OF THE STATE OF OKLAHOMA.

STATE BANKING BOARD OF THE STATE OF OKLAHOMA v. FARISH.

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF OKLAHOMA.

Nos. 446, 447. Argued October 14, 15, 1914.-Decided January 5, 1915.

Lankford v. Platte Iron Works, ante, p. 461, followed to the effect that under the Eleventh Amendment the State Banking Board and Bank Commissioner of Oklahoma are not subject to suit by depositors of insolvent banks.

Although one may become subrogated to all the rights of a depositor in an insolvent bank in Oklahoma, that does not give him the right of suit against the state officers administering the Depositors' Guaranty Fund.

As the statute creating the State Banking Board of Oklahoma does not give the Board power to waive the State's exemption from suit, an

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