153.

Argument for Appellee.

eral attack thereafter upon the ditch proceeding may not be brought against the original petitioners but must be brought against such commissioner. Board of Commissioners v. Jarnecke, 164 Indiana, 658; Furness v. Brummitt, 48 Ind. App. 442; Carter v. Buller, 159 Indiana, 52.

The drainage proceeding was in fact a suit of a private character for the special benefit of the owners of the lands proposed to be drained, who are now represented by appellee. Although appellant because of the state practice may not directly enjoin such owners from obtaining the benefit of the decree establishing the ditch, nevertheless, it should not for that reason be deprived of all relief in a federal court. Since appellee stood for and represented the owners of the lands proposed to be drained, appellant's bill against him was in substance and effect merely a bill to enjoin him from obtaining for such owners the benefit of a decree affecting the property of appellant, which was void as against appellant for want of jurisdiction, and the District Court should have retained jurisdiction of the bill. Simon v. Southern Ry. Co., supra; Hunt v. New York Cotton Exchange, 205 U. S. 322; Colorado Eastern Ry. Co. v. Chicago, Burlington & Quincy Ry. Co., 141 Fed. Rep. 898; Marshall v. Holmes, 141 U. S. 589, 596-600; Smyth v. Ames, 169 U. S. 466, 516; Arrowsmith v. Gleason, 129 U. S. 86, 98-101.

Mr. John H. Gillett and Mr. Frank B. Pattee, with whom Mr. Randall W. Burns was on the brief, for appellee:

The attempt to restrain the drainage commissioner is in effect the same as an attempt to restrain the proceedings. Dietzsch v. Huidekoper, 103 U. S. 494; French v. Hay, 22 Wall. 250; Western Union Telegraph Co. v. Louisville &c. R. Co., 218 Fed. Rep. 628; Union Pacific Co. v. Flynn, 180 Fed. Rep. 565; Rensselaer &c. R. Co. v. Bennington &c. R. Co., 18 Fed. Rep. 617; Hyattsville &c. Assn. v. Bouic, 44 App. D. C. 408.

Argument for Appellee.

250 U.S.

The provisions of § 265 of the Judicial Code extend to the entire proceedings, from the commencement of the suit until the decree is performed. Sargent v. Helton, 115 U. S. 348; Chapman v. Brewer, 114 U. S. 158; Wayman v. Southard, 10 Wheat. 1; Leathe v. Thomas, 97 Fed. Rep. 136; Fenwick Hall Co. v. Old Saybrook, 66 Fed. Rep. 389; Amusement &c. Co. v. El Paso &c. Co., 251 Fed. Rep. 345.

Section 265 inhibits the granting of an injunction against proceedings in a state court even where the jurisdiction is attacked. American Assn. v. Hurst, 59 Fed. Rep. 1; Mills v. Provident &c. Co., 100 Fed. Rep. 344; Phelps v. Mutual Reserve Fund Life Assn., 112 Fed. Rep. 453; affd. 190 U. S. 159.

It is not material that the bill seeks to present a constitutional question. Aultman & Taylor Co. v. Brumfield, 102 Fed. Rep. 7, 11.

The subject-matter was in the possession, actual or constructive, of appellee, as commissioner, who was to all intents and purposes a receiver, and, therefore, the property was in custodia legis, and not subject to the write of other courts. Wiswall v. Sampson, 14 How. 52, 65; Palmer v. Texas, 212 U. S. 118.

The mere fact that a stranger may be prejudiced by the proceeding, the defect not appearing on the face of the record, does not render the judgment void.

Even after the rendition of the decree establishing the drain and ordering the work constructed, the cause continued to pend in the state court, to all intents and purposes as in the case of a receivership, with power on the part of the court not only to enforce the direct provisions of the statute concerning the duties of the commissioner, but with power to meet any situation which might develop in the course of the construction of the drain. Mak-Saw-Ba Club v. ◊ fin, 169 Indiana, 204; Rogers v. Voorhees, 124 Indiana, 469; Murray v. Gault, 179 Indiana, 658; Steele v. Hanna 117 Indiana, 333; Karr v. Board, 170 Indiana, 571.

The proceeding was not legislative, since it involved the awarding of rights granted by existing laws. If the legislature sees fit to make provision for the determination by a judicial tribunal of the right to the relief provided for by the statute, after an inquiry involving the determination of questions of law and fact, had after the manner of the common law, such proceedings are judicial, and the proceedings constitute a suit in the state court, concerning which the District Court of the United States cannot interfere from the time that the petition is filed until the drain is constructed and the commissioner discharged. Boom Co. v. Patterson, 98 U. S. 403; Union Pacific R. Co. v. Myers, 115 U. S. 1; County of Upshur v. Rich, 135 U. S. 467; In re The Jarnecke Ditch, 69 Fed. Rep. 161.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

An "Act concerning drainage," passed in Indiana in 1907, briefly outlined is as follows: (1) It authorized the appointment by the county commissioners of each county of an officer called a drainage commissioner and made the county surveyor also ex officio such an officer. (2) It empowered a defined circuit court, on the petition of private land owners or of municipal or other public bodies representing public ownership, to establish a drainage district and to authorize the carrying out in such district of the work petitioned for, and gave the court authority to appoint an additional drainage commissioner, the three being directed to aid the court to the extent by it desired in securing data concerning the questions required to be passed upon in disposing of the petition. (3) To accomplish the purposes of the statute, personal notice to known property holders and notice by publication to those unknown was exacted, and the court was empowered to reject the whole suggested scheme or to authorize such part

of it as might be deemed best, or to devise and sanction a new plan. (4) As to any plan which it authorized, the court was empowered to provide for the cost of the work by distributing the amount upon the basis of the benefits to be received and the burdens to result to each land owner. (5) It authorized the designation by the court of one of the drainage commissioners, or if it deemed best, of any other resident of the district, to carry into execution under the general supervision of the court any work authorized, with power to contract and subject to accountability to the court as the work progressed and at its conclusion.

The Little Calumet River, rising in the State of Indiana, flows in a westerly direction across Porter and Lake Counties in that State into Cook County, Illinois, within whose boundaries it commingles with the Grand Calumet which empties into Lake Michigan.

After proceedings under the statute, the circuit court of Porter County, in May, 1911, established a drainage district in Porter and Lake Counties and authorized the construction of a ditch to proceed from the Little Calumet River in a northerly direction to Lake Michigan. This action of the court was taken to the Supreme Court of Indiana and there affirmed (182 Indiana, 178), and on error from this court was also affirmed (242 U. S. 375).

Before work on the ditch was commenced, however, the appellant, an Illinois corporation which was not a party to the proceedings to establish the district, brought this suit against Corboy, the drainage commissioner appointed by the court to do the work, to enjoin the execution of the same. The relief prayed was based on the ground that the effect of the ditch would be to draw off from the Little Calumet River, an interstate stream, such a quantity of water as to seriously diminish the flow in that river and thereby practically, cripple, if not destroy,

the capacity of petitioner to continue to operate a plant for the production of electrical energy established and owned by it on the banks of the Little Calumet in Cook County, Illinois. It was alleged that the right to have the river flow in its normal volume was a property right enjoyed by petitioner under the law of Illinois, protected by the constitutions both of the State and of the United States, and which therefore could not be impaired or taken away without depriving the petitioner of property in violation of due process of law as afforded by both constitutions. The court, being of opinion that the relief prayed was prohibited by § 265 of the Judicial Code, dismissed the bill for want of jurisdiction. The case is here by direct appeal on that question alone.

Although a State may not be sued without its consent, nevertheless a state officer acting under color of his official authority may be enjoined from carrying into effect a state law asserted to be repugnant to the Constitution of the United States even though such injunction may cause the state law to remain inoperative until the constitutional question is judicially determined. The doctrine is elementary, but we refer to a few of the leading cases by which it is sustained: Pennoyer v. McConnaughy, 140 U. S. 1, 9; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 392; Ex parte Young, 209 U. S. 123, 152; Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 230; Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278; Greene v. Louisville & Interurban R. R. Co., 244 U. S. 499, 506.

There was jurisdiction therefore in the court below as a federal court to afford appropriate relief unless the want of power resulted from the prohibition of § 265 of the Judicial Code, which is as follows:

"The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State except in cases where such injunction