[816]*816GARFIELD, Chief Justice.
Plaintiff brought this action in mandamus against two officials of the University of Iowa to compel payment of her claim for alleged breach of contract of employment as a research associate at the institution. The trial court ruled the action was in reality one against the state which would not lie without its consent. Plaintiff has appealed from judgment dismissing the action pursuant to the ruling. We affirm.
Plaintiff’s petition alleges she was employed by the University as research associate in the College of Business Administration for one year commencing July 1, 1966 as shown by copy of the memorandum of employment (exhibit A) made part of the petition; on September 12, 1966 the University, through the dean of the college, wrongfully breached the contract by discharging plaintiff as shown by letter, (exhibit B) also made part of the petition; plaintiff has attempted without success to get like employment; the contract was valid and it was the duty of defendants, the dean and business manager-treasurer of the University, to carry it out; plaintiff attempted to perform her part of the contract but was prevented from doing so by the breach above referred to; there is owing plaintiff the amount specified in exhibit A for the period from October 12, 1966 to July 1, 1967; plaintiff has no speedy or adequate remedy at law.
Prayer of the petition is that a writ of mandamus issue compelling defendant dean to certify to the business manager-treasurer of the University the amount claimed to be owing plaintiff under her contract exhibit A and directing the latter official to pay such amount, and for such other relief as is equitable.
Exhibit A is a letter from the president of the University to plaintiff dated July 1, 1966 informing her she had been appointed, subject to law and general University policies, “Res. Assoc.” in the College of Business Administration, Bureau of Business and Economic Research, at a current salary of $12,000' with certain deductions for a retirement program, insurance and social security. Nothing in the exhibit refers to the period of plaintiff’s employment unless it be the amount of her current salary.
Exhibit B, the letter from the dean, dated September 12, 1966, notifies plaintiff her employment by the University would terminate October 12, 1966 as the result of her failure to function cooperatively and effectively with the director and staff of the Bureau of Business and Economic Research; her work in the Bureau would cease immediately and she would be on vacation until the termination date.
The first ground of defendants’ motion to dismiss is that the University is the educational arm of the state and as such is not subject to suit. The second ground asserts plaintiff’s action is actually against the University and the individual defendants as officers thereof are within the immunity which covers it.
Plaintiff’s resistance to the motion asserts in part that her right to payment for her services was legally agreed upon by the State of Iowa through defendants and others on behalf of the University.
As before indicated the court ruled plaintiff was attempting to recover for breach of contract from the state which was immune from suit and the action would not lie.
I. We have held many times the state is not subject to suit without its consent. The immunity is from suit, not from liability.
Rule 9 of the Rules of Civil Procedure, reported by us to the legislature in January, 1943, effective July 4, 1943, gives recognition to the rule just stated in this language: “The state may sue in the same way as an individual. * * * It may be sued as provided by any statutes in force at the time.” No statute has been cited or [817]*817come to our attention which provides the state may be sued in such an action as this.
The legislature must be held to have known the language of Rule 9 and to have approved it. We have repeatedly held these rules have the force and effect of statutes. Krebs v. Town of Manson, 256 Iowa 957, 960, 129 N.W.2d 744, 746 and citations; Kutrules v. Suchomel, 258 Iowa 1206, 1211, 141 N.W.2d 593, 596 and citations.
The legislature has given the consent of the state, upon the conditions provided in section 613.8 Code 1966 for its protection, that it be made a party to any action involving (1) the title to real estate, (2) partition thereof, (3) foreclosure of liens or mortgages against real estate or (4) the determination of priorities of liens or claims against real estate, for the purpose of obtaining an adjudication as to any such mortgage or other lien or claim. (Section 613.8)
Section 613.12 provides the state waives immunity from suit and consents to the jurisdiction of any court in which an action is brought against the state highway commission respecting any claim, right or controversy arising out of the work performed or by virtue of the provisions of any construction contract entered into by the commission.
It is at once apparent the present action is not of the kind in which the state has waived its immunity from suit in either 613.8 or 613.12. It is also apparent that if the state enjoyed no such immunity both, these statutes were wholly unnecessary.
Further, by express mention of the forms of action in which the state consents to be sued and waives its immunity from suit the legislature impliedly excluded others. “The legislative intent is expressed by omission as well as by inclusion.” State v. Flack, 251 Iowa 529, 533-534, 101 N.W.2d 535, 538, and citations; Dotson v. City of Ames, 251 Iowa 467, 471-472, 101 N.W.2d 711, 714; North Iowa Steel Co. v. Staley, 253 Iowa 355, 357, 112 N.W.2d 364, 365. See also Graham v. Worthington, 259 Iowa 845, 855, 146 N.W.2d 626, 633.
Immunity of the state from suit without its consent is widely recognized. We refer to some of the general statements of the rule.
81 C.J.S. States § 214, reads in heavy type “A state, by reason of its sovereign immunity, is immune from suit and it cannot be sued without its consent in its own courts * *
Collins v. State Board of Social Welfare, 248 Iowa 369, 372-373, 81 N.W.2d 4, 6, cites the above section of C.J.S., Rule 9 R.C.P., supra, and several Iowa decisions for this:
“The law is well settled, and conceded by Appellee, that in the absence of specific consent by the State, it or its agencies may not be sued in an action to obtain money from the State or to interfere with its sovereignty or the administration of its affairs through proper agencies.”
Wittmer v. Letts, 248 Iowa 648, 653, 80 N.W.2d 561, 564, holds there is no immunity from liability of a county hospital for injury to a paying patient from negligent maintenance of the hospital. The opinion thus points up the difference between such an action against a county and one like this which is really against the state: “Under the ancient common law the Sovereign, generally speaking, could not be sued and this policy has come down to us and is now found in our statutes. 58 I.C.A. Rule 9, R.C.P., and Section 613.8, Code 1950 I.C.A. Thus the State is immune from suit rather than from liability.” (page 650 of 248 Iowa, page 562 of 80 N.W.2d)
Montandon v.
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[816]*816GARFIELD, Chief Justice.
Plaintiff brought this action in mandamus against two officials of the University of Iowa to compel payment of her claim for alleged breach of contract of employment as a research associate at the institution. The trial court ruled the action was in reality one against the state which would not lie without its consent. Plaintiff has appealed from judgment dismissing the action pursuant to the ruling. We affirm.
Plaintiff’s petition alleges she was employed by the University as research associate in the College of Business Administration for one year commencing July 1, 1966 as shown by copy of the memorandum of employment (exhibit A) made part of the petition; on September 12, 1966 the University, through the dean of the college, wrongfully breached the contract by discharging plaintiff as shown by letter, (exhibit B) also made part of the petition; plaintiff has attempted without success to get like employment; the contract was valid and it was the duty of defendants, the dean and business manager-treasurer of the University, to carry it out; plaintiff attempted to perform her part of the contract but was prevented from doing so by the breach above referred to; there is owing plaintiff the amount specified in exhibit A for the period from October 12, 1966 to July 1, 1967; plaintiff has no speedy or adequate remedy at law.
Prayer of the petition is that a writ of mandamus issue compelling defendant dean to certify to the business manager-treasurer of the University the amount claimed to be owing plaintiff under her contract exhibit A and directing the latter official to pay such amount, and for such other relief as is equitable.
Exhibit A is a letter from the president of the University to plaintiff dated July 1, 1966 informing her she had been appointed, subject to law and general University policies, “Res. Assoc.” in the College of Business Administration, Bureau of Business and Economic Research, at a current salary of $12,000' with certain deductions for a retirement program, insurance and social security. Nothing in the exhibit refers to the period of plaintiff’s employment unless it be the amount of her current salary.
Exhibit B, the letter from the dean, dated September 12, 1966, notifies plaintiff her employment by the University would terminate October 12, 1966 as the result of her failure to function cooperatively and effectively with the director and staff of the Bureau of Business and Economic Research; her work in the Bureau would cease immediately and she would be on vacation until the termination date.
The first ground of defendants’ motion to dismiss is that the University is the educational arm of the state and as such is not subject to suit. The second ground asserts plaintiff’s action is actually against the University and the individual defendants as officers thereof are within the immunity which covers it.
Plaintiff’s resistance to the motion asserts in part that her right to payment for her services was legally agreed upon by the State of Iowa through defendants and others on behalf of the University.
As before indicated the court ruled plaintiff was attempting to recover for breach of contract from the state which was immune from suit and the action would not lie.
I. We have held many times the state is not subject to suit without its consent. The immunity is from suit, not from liability.
Rule 9 of the Rules of Civil Procedure, reported by us to the legislature in January, 1943, effective July 4, 1943, gives recognition to the rule just stated in this language: “The state may sue in the same way as an individual. * * * It may be sued as provided by any statutes in force at the time.” No statute has been cited or [817]*817come to our attention which provides the state may be sued in such an action as this.
The legislature must be held to have known the language of Rule 9 and to have approved it. We have repeatedly held these rules have the force and effect of statutes. Krebs v. Town of Manson, 256 Iowa 957, 960, 129 N.W.2d 744, 746 and citations; Kutrules v. Suchomel, 258 Iowa 1206, 1211, 141 N.W.2d 593, 596 and citations.
The legislature has given the consent of the state, upon the conditions provided in section 613.8 Code 1966 for its protection, that it be made a party to any action involving (1) the title to real estate, (2) partition thereof, (3) foreclosure of liens or mortgages against real estate or (4) the determination of priorities of liens or claims against real estate, for the purpose of obtaining an adjudication as to any such mortgage or other lien or claim. (Section 613.8)
Section 613.12 provides the state waives immunity from suit and consents to the jurisdiction of any court in which an action is brought against the state highway commission respecting any claim, right or controversy arising out of the work performed or by virtue of the provisions of any construction contract entered into by the commission.
It is at once apparent the present action is not of the kind in which the state has waived its immunity from suit in either 613.8 or 613.12. It is also apparent that if the state enjoyed no such immunity both, these statutes were wholly unnecessary.
Further, by express mention of the forms of action in which the state consents to be sued and waives its immunity from suit the legislature impliedly excluded others. “The legislative intent is expressed by omission as well as by inclusion.” State v. Flack, 251 Iowa 529, 533-534, 101 N.W.2d 535, 538, and citations; Dotson v. City of Ames, 251 Iowa 467, 471-472, 101 N.W.2d 711, 714; North Iowa Steel Co. v. Staley, 253 Iowa 355, 357, 112 N.W.2d 364, 365. See also Graham v. Worthington, 259 Iowa 845, 855, 146 N.W.2d 626, 633.
Immunity of the state from suit without its consent is widely recognized. We refer to some of the general statements of the rule.
81 C.J.S. States § 214, reads in heavy type “A state, by reason of its sovereign immunity, is immune from suit and it cannot be sued without its consent in its own courts * *
Collins v. State Board of Social Welfare, 248 Iowa 369, 372-373, 81 N.W.2d 4, 6, cites the above section of C.J.S., Rule 9 R.C.P., supra, and several Iowa decisions for this:
“The law is well settled, and conceded by Appellee, that in the absence of specific consent by the State, it or its agencies may not be sued in an action to obtain money from the State or to interfere with its sovereignty or the administration of its affairs through proper agencies.”
Wittmer v. Letts, 248 Iowa 648, 653, 80 N.W.2d 561, 564, holds there is no immunity from liability of a county hospital for injury to a paying patient from negligent maintenance of the hospital. The opinion thus points up the difference between such an action against a county and one like this which is really against the state: “Under the ancient common law the Sovereign, generally speaking, could not be sued and this policy has come down to us and is now found in our statutes. 58 I.C.A. Rule 9, R.C.P., and Section 613.8, Code 1950 I.C.A. Thus the State is immune from suit rather than from liability.” (page 650 of 248 Iowa, page 562 of 80 N.W.2d)
Montandon v. Hargrave Construction Co., 256 Iowa 1297, 1299-1301, 130 N.W.2d 659, 660-661, quotes with approval 81 C. J.S. States § 214, supra, and cites Witt-mer v. Letts for the proposition “Except where consent has been given by the legis[818]*818lature the state is immune from suit.” The Montandon opinion also1 points out that abrogation of the doctrine of governmental immunity “has generally applied to municipal corporations and not to the State except where legislative consent appears. * * *
“The statutes and decisions relating to municipal corporations do not apply to a suit against the State. Section 368.2, Code of Iowa, I.C.A., authorizes suits against cities and towns. There is no such statute authorizing suits against the State.
“The (highway) commission is an arm of the State, and unless legislative consent appears is not subject to suit in this case. Rhodes v. Iowa State Highway Commission, 250 Iowa 416, 419, 94 N.W.2d 97, 99.”
Referring to what is now Code Section 613.12, summarized supra herein, the Mon-tandon opinion quotes with approval this rule from 82 C.J.S. Statutes § 391, for construction of statutes in derogation of state sovereignty:
“Statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed, and should not be permitted to divest the state or its government of any of its prerogatives, rights or remedies, unless the intention of the legislature to effect this object is clearly expressed.” (page 1303 of 256 Iowa, page 662, 130 N.W.2d). To like effect are United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058, 1063 and citations, (Stone, J.). See also Dalehite v. United States, 346 U.S. 15, 24, 31, 73 S.Ct. 956, 97 L.Ed. 1427, 1438; Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389, 396.
Graham v. Worthington, supra, 259 Iowa 845, 861, 146 N.W.2d 626, 637, repeats with approval the quotation set out supra from Wittmer v. Letts, supra, 248 Iowa 648, 650, 80 N.W.2d 561, 562. The Graham opinion also points out the distinction between political subdivisions of the state such as cities, school districts and counties and officers, agents and employees thereof, on the one hand, and officers, agents and employees of the state acting within the scope of their office or employment, on the other hand, (pages 854-855 of 259 Iowa, page 633 of 146 N.W.2d.)
This statement of the rule of immunity of the state from suit appears in 49 Am. Jur., States, Territories and Dependencies, section 91, pages 301-304:
“It is an established principle of jurisprudence in all civilized nations, resting upon grounds of public policy, that the sovereign cannot be sued in its own courts or in any other court without its consent and permission. It is inherent in the nature of a sovereignty not to be amenable to the suit of an individual without its consent, and this principle applies with full force to the several states of the Union. No suit, whether at law or in equity, is maintainable against the state * * * by its own citizens, * * * unless by statute it has consented to be sued or has otherwise waived its immunity from suit. The legislature is the proper body to authorize suits against the state. The immunity of the state from suit applies where a contract or property interest of the state is involved.”
Among numerous citations in support of the quoted statement is Hampton v. State Board of Education, 90 Fla. 88, 105 So. 323, 42 A.L.R. 1456. And see Anno, page 1464 et seq; Dunn v. Schmid, 239 Minn. 559, 562, 60 N.W.2d 14, 16, and other citations in Note 42 to Span el v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795, 803; Note to Beers, etc. v. State of Arkansas, 20 How. 527, 15 L.Ed. 991.
Corbin on Contracts, Vol. 1, section 146 states: “The promises of a sovereign government, including those of the United States, cannot be enforced in the courts unless there is definite legislation authorizing such action.”
[819]*819Many Iowa decisions supporting our conclusion that the state is immune from such a suit as this in the absence of legislative consent thereto also include Wilson v. Louisiana Purchase Exposition Comm., 133 Iowa 586, 588, 110 N.W. 1045, 1046, 119 Am.St.Rep. 646; Hollingshead Co. v. Board of Control, 196 Iowa 841, 842-843, 195 N.W. 577 and citations; Cross v. Donohoe, 202 Iowa 484, 210 N.W. 532; Bachman v. Iowa State Highway Comm., 236 Iowa 778, 783-784, 20 N.W.2d 18, 20-21; Yoerg v. Iowa Dairy Industry Comm., 244 Iowa 1377, 1387, 60 N.W.2d 566, 571.
The Yoerg opinion discusses Bachman v. Iowa State Highway Comm., supra, at length and other authorities are also analyzed.
This from the Bachman opinion may be repeated here: “But whether the claim for damages he considered to be in tort for wrongful conversion of plaintiff’s property, or for breach of plaintiff’s contract with the state, it cannot be asserted against the state, directly or indirectly, and payment compelled out of state funds. As to that, plaintiff’s remedy is legislative and not judicial.” (page 784 of 236 Iowa, page 21 of 20 N.W.2d)
See also Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 88 L.Ed. 1121, 1125; Perry v. United States, 294 U.S. 330, 352, 354, 55 S.Ct. 432, 79 L.Ed. 912, 918, 919 (Hughes, C. J.); Foley Construction Co. v. Ward, Ky., 375 S.W.2d 392, 395-396; University of Maryland v. Maas, 173 Md. 554, 197 A. 123.
II. As we have indicated, there is little doubt plaintiff’s action is in reality against the state, rather than the two nominal defendants, to compel payment of her claim from state funds. The resistance to defendants’ motion to dismiss in effect so concedes and we do not understand plaintiff to contend here the action is not against the state, at least indirectly.
This general rule appears in heavy type in 81 C.J.S. States § 216b(l), p. 1311:
“Where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability and the state is the real party against which relief is sought so that a judgment for plaintiff will operate to control the action of the state or subject it to' liability, the suit is in effect one against the state and cannot be maintained without its consent.” Yoerg v. Iowa Dairy Industry Comm., supra, 244 Iowa 1377, 1379, 60 N.W.2d 566, 567, quotes this with approval.
The Yoerg opinion also quotes this with approval from Ford Motor Co. v. Department of Treasury of State of Indiana, supra, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389: “And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its soverign immunity from suit even though individual officials are nominal defendants.” (page 1383 of 244 Iowa, page 569 of 60 N.W.2d)
81 C.J.S. States § 216b(1) is also cited with approval in Collins v. State Board of Social Welfare, supra, 248 Iowa 369, 372-373, 81 N.W.2d 4, 6.
Substantially the same rule thus appears in 49 Am.Jur., States, Territories, and Dependencies, section 92, page 304: “While a suit against state officials is not necessarily a suit against the state, within the rule of immunity of the state from suit without its consent, that rule cannot be evaded by bringing an action nominally against a state officer or a state board, commission, or department in his or its official capacity when the real claim is against the state itself, and the state is the party vitally interested. If the rights of the state would be directly and adversely affected by the judgment or decree sought, the state is a necessary party defendant, and if * * * it has not consented to be sued, the suit is not maintainable.”
[820]*820The citation from which this quotation is taken is approved in Bachman v. Iowa State Highway Comm., supra, 236 Iowa 778, 783-784, 20 N.W.2d 18, 20; Yoerg v. Iowa Dairy Industry Comm., supra, (at page 1379 of 244 Iowa, page 567 of 60 N.W.2d).
We hold this action is in effect one against the state; as explained in Division I hereof, the state is immune from suit without its consent, and this has not been given in such a case as this. Indeed, plaintiff has not contended either in the trial court or here the state has consented to be sued or waived its immunity from suit in this action or one like it.
III. We have considered the precedents plaintiff cites. We do not find them contrary to our decision here. Perhaps most relied upon is the early case of Bryan v. Cattell, 15 Iowa 538. The issue of immunity of the state from suit without its consent seems not to have been presented or decided there.
Plaintiff cites no authority which supports her contention she has been denied a right protected by the federal constitution. That the contention is without merit see Lynch v. United States, 292 U.S. 571, 580-582, 54 S.Ct. 840, 78 L.Ed. 1434, 1441-1442 and citations. (Brandeis, J.).
Generally in the other precedents plaintiff cites there was no attempt as here to obtain money from the state or arm or agency thereof or to interfere with its sovereignty or the administration of its affairs through proper agencies. What was attempted was protection of the plaintiff’s property from appropriation or destruction by agents of the state acting without legal right and in violation of some plain provisions of statute or constitution as in Hoover v. Iowa State Highway Comm., 207 Iowa 56, 58-61, 222 N.W. 438, 439-440.
The question when action will lie against state officials is also fully discussed in Pierce v. Green, 229 Iowa 22, 31-35, 294 N.W. 237, 131 A.L.R. 335, 345-347. Of money demands such as this, the Pierce opinion observes “No one can seriously contend that action could be brought against the state or any arm' or agency of the state.” (page 32 of 229 Iowa, page 245 of 294 N.W. page 346 of 131 A.L.R.)
The same question is also well considered in Batcheller v. Iowa State Highway Comm., 251 Iowa 364, 368, 101 N.W.2d 30, 33, cited by plaintiff. Bachman v. Iowa State Highway Comm, and Yoerg v. Iowa Dairy Industry Comm., both supra, are there cited for this: “Nor may the courts require defendant to pay or disburse public funds without statutory authority.” The Batcheller opinion thus describes the nature of the action there sustained: “The action here is not for the payment of money from the state but * * * to require the defendant to take the proper statutory steps to acquire his (plaintiff’s) property.”
Plaintiff cites no authority which supports a reversal under this record.
IV. We may observe our decision does not leave plaintiff without a remedy. Code chapter 25 provides for consideration by the state appeal board of claims against the state “on which in the judgment of the comptroller the state would be liable except for the fact of its sovereignty” (section 25.1) and the recommendation of the board to the claims committee of the house and senate as to payment of the claims.
We have pointed out the legislature is in control of state funds, in that sense is the keeper of the states’ conscience and presumably will honor claims against the state that are just. Hollingshead Co. v. Board of Control, supra, 196 Iowa 841, 843, 195 N.W. 577. See also Lynch v. United States, supra, 292 U.S. 571, 580-581, 54 S.Ct. 840, 78 L.Ed. 1434, 1441; Perry v. United States, supra, 294 U.S. 330, 354, 55 S.Ct. 432, 79 L.Ed. 912, 919.
In view of what is said as to chapter 25, it should be noted the Iowa Tort Claims [821]*821Act, passed by the 61st General Assembly, now Code chapter 25A, provides for filing, passing upon and paying claims against the state for money only, on account of damage to or loss of property or for personal injury or death by the negligent or wrongful act or omission of any state employee while acting within the scope of his employment. This act waives immunity of the state as to the class of claims for which it provides redress but has no application to such claims as this. See Graham v. Worthington, supra, 259 Iowa 845, 855, 857, 146 N.W.2d 626, 633, 634; Article by Don R. Bennett in 17 Drake Law Rev. 189.
Other grounds of defendant’s motion to dismiss need not be considered. The judgment is
Affirmed.
LARSON, SNELL, RAWLINGS and LeGRAND, JJ., concur.
STUART, J., concurs specially.
BECKER, MOORE and MASON, JJ., dissent.