Joseph McKenna

“ By the 1913 amendment, the certificates of indebtedness are designated as 'depositors' guaranty fund warrants,' and are to constitute a charge upon the guaranty fund when collected, as well as a lien against the capital stock, surplus, and undivided profits of every bank to the extent of its liability to the fund. ”

“ The entire scheme is carefully devised to give assurance to every bank and to every bank depositor not merely of ultimate payment of the amount of the deposits, but of immediate payment in cash or in certificates salable for cash, in case the bank becomes insolvent. A winding up of the bank's affairs, with a liquidation of its assets and enforcement of the liabilities of stockholders, officers, and directors, is provided for, and the proceeds are to be devoted to restoring the guaranty fund and repaying to the solvent banks the amount of the emergency assessments ”

“ In short, the act, as I read it, simply establishes a plan for enforced co-operative insurance by all the banks in favor of the depositors of each and every bank, the bank commissioner and the banking board being charged with the management of it as public trustees, with duties owing to a limited class of persons having financial, and not political, interests. ”

“ I concede that the act implies a considerable latitude of administrative discretion with respect to the care and management of the fund; but it is quite different with the provision for the payment of depositors. Here the plain mandate is: 'Pay in cash, so far as you have it, and give certificates of indebtedness or warrants to the extent that the cash falls short.' The argument in behalf of appellants goes to the length of saying: 'It [the fund] may be used not only to pay the depositors of failed banks, but frequently to aid banks while in a failing condition. ”

“ For, if the action is not nominally or in effect a suit against the state, is not brought to enforce any liability or duty of the state, or interfere with its property, but has for its object merely to require public officers to perform a plain official duty, not of a political nature, owing to a special class of persons, among whom the plaintiff is included, it is not properly to be deemed a suit against the state within the prohibition of the 11th Amendment. ”

“ 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 ”

“ Justice Miller, in describing 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. ”

“ By act of March 6, 1913 (Sess. Laws, chap. 22, pp. 27-29) , the 3d section was amended so as to provide for the issuance of certificates of indebtedness to be known as 'depositor's guaranty fund warrants of the state of Oklahoma,' in order to liquidate the deposits of failed banks or other indebtedness properly chargeable against the fund ”

“ It was well expressed in Board of Liquidation v. McComb, 92 U.S. 531, 541, 23 L. ed. 623, 628, 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 ”