Opinion of the Court.

enactment, which, it is alleged, cannot be enforced without violating the constitutional rights of the plaintiffs. It is the settled doctrine of this court that a suit against individuals, for the purpose of preventing them as officers of a State from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the State within the meaning of that amendment. Pennoyer v. McConnaughy, 140 U. S. 1, 10; In re Tyler, 149 U. S. 164, 190; Scott v. Donald, 165 U. S. 58, 68; Tindal v. Wesley, 167 U. S. 204, 220.”

The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity. It would, indeed, be most unfortunate if the immunity of the individual States from suits by citizens of other States, provided for in the Eleventh Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress to reg ulate commerce among the several States, which forbid the States from entering into any treaty, alliance or confederation, from passing any bill of attainder, ex post facto law or law impairing the obligation of contracts, or, without the consent of Congress, from laying any duty of tonnage, entering into any agreement or compact with other States, or from engaging in war—all of which provisions existed before the adoption of the Eleventh Amendment, which still exist, and which would be nullified and made of no effect, if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations. Much less can the Eleventh Amendment be successfully pleaded as an invincible barrier to judicial inquiry whether the salutary provisions of the Fourteenth Amendment have been disregarded by state enactments. On the other hand, the judicial power of the United States has not infrequently been exercised in securing to the several States, in proper cases, the immunity intended by the Eleventh Amendment. Hans v. Louisiana, 134 U. S. 1, 10; North Carolina v. Semple, 134 U. S. 22; Harkrader v. Wadley, 172 U. S. 148; Fitts v. McGhee, 172 U. S. 516.

Opinion of the Court.

It is one of the important functions of this court to so interpret the various provisions and limitations contained in the organic law of the Union that each and all of them shall be respected and observed.

It is further argued by the appellant, as one of the grounds of his demurrer, that he was complained against in his official capacity as attorney general of the State of Nebraska, and not in his individual capacity as a citizen thereof, and that the attorney general of a State cannot be restrained by an injunction of a United States court from enforcing the criminal laws of the State.

This, we think, is only another phase of the same question.

It is true that the defendant was included in the bill as the attorney general of the State, but that was because he was one of the board of transportation, which was directed to enforce the provisions of the act. The bill did not seek to interfere with the acts of the attorney general in prosecuting offenders against the valid criminal laws of the State, but its object was to prevent him from collecting penalties that had accrued under the provisions of a statute judicially determined to be void. The injunction must be so read and understood.

Several changes of incumbents in the office of attorney general took place while the cases were proceeded in, but that did not deprive the court of jurisdiction. The successors in office were duly substituted, and thus became subjected to the preliminary and final decrees of the court. The object of the supplemental bill was to restrain the present appellant, as successor to Smyth, from attempting to transfer the very matters that stood for judgment in the Federal court to the state court by filing a bill in the latter. Such a course might bring about a conflict between those courts, and create the confusion so often deprecated by this court. Peck v. Jenness, 7 How. 612, 625; Chittenden v. Brewster, 2 Wall. 191; Orton v. Smith, 18 How. 263.

The jurisdiction of the Circuit Court could not be defeated `or impaired by the institution, by one of the parties, of subsequent proceedings, whether civil or criminal, involving the

Syllabus.

same legal questions, in the state court. Harkrader v. Wadley, 172 U. S. 148, 166.

The decree of the Circuit Court is

Affirmed.

MR. JUSTICE HARLAN concurring. I am in favor of modify ing the judgment in some particulars and then affirming it, but I do not concur in all the reasoning of the opinion.

GUTIERRES v. ALBUQUERQUE LAND AND IRRIGATION COMPANY.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF
NEW MEXICO.

No. 16. Argued January 9, 1902-Decided February 23, 1903.

1. The provisions of the corporation laws of the Territory of New Mexico relating to the formation and rights of irrigation companies are not invalid because they assume to dispose of property of the United States without its consent. By the act of July 26, 1866, 14 Stat. 233; Rev. Stat. § 2339, and the act of March 3, 1877, 19 Stat. 377, Congress recognized as respects the public domain and so far as the United States is concerned, the validity of the local customs, laws and decisions in respect to the appropriation of water, and granted the right to appropriate such amount of water as might be necessarily used for the purpose of irrigation and reclamation of desert land, part of the public domain, and as to the surplus, the right of the public to use the same for irrigation, mining and manufacturing purposes subject to existing rights. The purpose of Congress to recognize the legislation of Territories as well as of States in respect to the regulation of the use of public water is evidenced by the act of March 3, 1891, 26 Stat. 1095. The statute of New Mexico is not inconsistent with the legislation of Congress on this subject.

2. The act of March 3, 1877, is not to be construed as an expression of Congress that the surplus public waters on the public domain, and which are within the control of Congress or of a legislative body created by it, must be directly appropriated by the owners of lands upon which a beneficial use of the water is to be made and that consequently a territorial legislature cannot lawfully empower a corporation to become an intermediary for furnishing water to irrigate the lands of third parties.

VOL. CLXXXVIII-35

Statement of the Case.

The question whether the appropriation of water interferes with the rights of other appropriators below the mouth of a proposed new irrigation canal cannot be raised by parties who are strangers to such other appropriators not parties to the action.

THIS litigation was begun by the appellee, in the District Court for the Second Judicial District of the Territory of New Mexico, within and for the county of Bernalillo. In the bill of complaint equitable relief was sought against the now appellants. It was alleged, in substance, that plaintiff, on December 31, 1897, became a body corporate, pursuant to the provisions of an act of the general assembly of the Territory of New Mexico, approved February 24, 1887, for the purpose of constructing a canal, ditch and pipe line between named points in the county of Bernalillo, in the Territory of New Mexico; that, as preliminary to the construction of such canal, ditch and pipe line, a survey of lands along the proposed route thereof was necessary, and such survey was authorized by law; and that the defendants, asserting ownership of lands along such proposed route, had forcibly prevented the employés of the plaintiff from entering on said lands to make survey thereof. It was prayed that temporarily, pending the suit, and perpetually by the final decree, the defendants might be enjoined from further interference with the making of the survey, and there was also a prayer for general relief. In their answer the defendants admitted their interferences with the proposed survey, as complained of in the bill, but asserted their right to do so. Reiterating the allegations of the answer, by cross complaint, a perpetual injunction was asked restraining entry by the plaintiff upon the lands. An order was issued temporarily restraining the defendants, as prayed, and thereafter a demurrer to the answer and cross complaint of the defendant was filed and overruled. After replication by the respective parties the cause was transferred to the District Court of the First Judicial District for the Territory of New Mexico, within and for the county of Santa Fé. In that court trial was had and judgment was entered in favor of the plaintiff perpetuating the preliminary injunction and dismissing the cross complaint of the defendants.

Statement of the Case.

The following findings of fact and conclusions of law were embodied in the judgment:

"I. That the plaintiff is a corporation and has complied with the provisions of the laws of the Territory of New Mexico. It is organized for the purpose of constructing a canal from a point on the Rio Grande about twenty-eight miles above the city of Albuquerque to the railroad bridge across said Rio Grande, at Isleta, the initial and terminal points of said canal being within the county of Bernalillo.

"II. That the headgate of plaintiff's proposed canal is to be at a point on the Rio Grande three eighths (g) of a mile below or south of the Indian village of San Felipe, about twenty-eight miles above the city of Albuquerque; that the ultimate terminus or point of discharge into the river is at the railroad bridge near Isleta, the entire length of the canal to be about thirty-five (35) miles. The present proposed terminus is at the city of Albuquerque.

"III. That the engineer of the company was proceeding with a survey of the line between Albuquerque and the headgate when defendants interfered with and obstructed the said engineer in the making of said survey.

“IV. That the capacity of the said proposed canal is two hundred and ten (210) cubic feet of water per second.

"V. That there are at present thirteen ditches taking water from the river between the proposed headgate of plaintiff's canal and the Albuquerque, and seven between Albuquerque and the Indian town of Isleta.

"VI. That the aggregate capacity of all the said old ditches is four hundred and ninety-eight (498) cubic feet per second, and the court finds that there has been a valid prior appropriation by the owners of said old ditches of the said four hundred and ninety-eight (498) feet per second of water.

"VII. That during a few months or parts of the summer months of the years 1894, 1895, 1896 and 1897 there was no surplus water flowing in the river at the proposed headgate, but during a large majority of the months of each of these years