Page:Harvard Law Review Volume 8.djvu/169

153 POWER TO DIVERT AN INTERSTATE RIVER. 153 the authority under which they professed to act was void,"^ If a suit at law may be maintained against the agent to recover damages for his acts done in execution of a void statute of the State, it follows that a court of equity on a proper case will re- strain him by injunction from attempting to commit the wrong. " It being admitted, then," said Marshall, C. ]? " that the agent is not privileged by his connection with his principal, that he is re- sponsible for his own act, to the full extent of the injury, why should not the preventive power of the court also be applied to him ? Why may it not restrain him from the commission of a wrong which it would punish him for committing ? " That the remedy by injunction may be applied in such cases does not now seem open to doubt.^ For the sake of argument we have assumed that the city of Boston, or its board of water commissioners, are to be regarded as occupying the position of officers or agents of the State, acting under the peremptory command of the State. But it may well be questioned whether a municipality, acting by permission of the State to bring about a benefit peculiar to itself, stands like an officer obeying a peremptory governmental order. The above positions as to the non-applicability of the Eleventh Amendment are so thoroughly sustained by the decisions of the Supreme Court of the United States, that it can hardly be neces- sary to inquire whether, if a contrary view were taken of that amendment, it might not be found that there was another method of bringing this dispute before a Federal court. Suppose it to be held that suit by the Nashua Company against the agent of Massachusetts is prohibited by the Eleventh Amendment, on the ground that the suit is really against the State, and that the dis- pute is a matter of State concern. Now, if this is a matter of State concern for Massachusetts, why not also to New Hampshire.^ And if so, why may not New Hampshire avail herself of the clause in the United States Constitution extending the judicial power of the United States "to controversies between two or more States." One State may maintain a bill in equity against another to deter- mine a question of disputed boundary.* Has the United States ' 123 U. S. p. 500, Matthews, J. (in reference to Osborn v. Bank of U. S. 9 ■Wheaton, 738;. See also 2 Hare, Constitution?! Law, 1058. » See SwAYNE, J., 16 Wallace, pp. 220, 232 ; Matthews, J., 114 U. S. 295.
 * la 9 Wheaton, p. 843.
 * Rhode Island v. Massachusetts, 12 Peters, 657.