Sanitary Dist of Chicago v. United States, 161

Citation69 L.Ed. 352,266 U.S. 405,45 S.Ct. 176
Decision Date05 January 1925
Docket NumberNo. 161,161
PartiesSANITARY DIST. OF CHICAGO v. UNITED STATES
CourtUnited States Supreme Court

Messrs. Edmund D. Adcock, Clyde L. Day, George F. Barrett, and Louis J. Behan, all of Chicago, Ill., for appellant.

[Argument of Counsel from pages 406-413 intentionally omitted] Mr. Daniel N. Kirby, of St. Louis, Mo., for Mississiippi Valley States, amicus curiae.

Messrs. James M. Beck, Sol. Gen., of Washington, D. C., and Joseph B. Fleming, of Chicago, Ill., for appellee.

[Argument of Counsel from pages 414-422 intentionally omitted]

Page 422

Mr. Andrew B. Dougherty, Atty. Gen., for Michigan, Indiana, New York, Ohio, Pennsylvania, Wisconsin, and Minnesota, amicus curiae.

Page 423

Mr. Harvey D. Goulder, of Cleveland, Ohio, for Great Lakes Carriers' Ass'n, amicus curiae.

Mr. Justice HOLMES delivered the opinion of the Court.

This is a bill in equity brought by the United States to enjoin the Sanitary District of Chicago, a corporation of Illinois, from diverting water from Lake Michigan in excess of 250,000 cubic feet per minute; the withdrawal of that amount having been authorized by the Secretary of War. It is alleged that the withdrawal of more, viz., from 400,000 to 600,000 cubic feet per minute, has lowered and will lower the level of the water of Lake Michigan, Lake Huron, Lake St. Clair, Lake Erie, Lake Ontario, Sault Ste Marie, St. Mary's River, St. Clair River, Detroit River, Niagara River, St. Lawrence River, and all the harbors, etc., connected therewith, all of which are alleged to be navigable waters of the United States, and will thus create an obstruction to the navigable capacity of said waters; and that it will alter and modify the condition and capacity of the above named and their ports, etc., connected with them. The prohibition of such alterations and obstructions in the Act of March 3,

Page 424

1899, c. 425, § 10, 30 Stat. 1121, 1151 (Comp. St. § 9910), is set out at length and relied upon but the frame of the bill does not exclude a reliance upon more general principles if they were needed in order to maintain it.

The withdrawal practised and threatened is through an artificial channel that takes the place of the Chicago River, formerly a little stream flowing into Lake Michigan, and of a part of its branches. The channel instead of adding water to the Lake has been given an opposite incline, takes its water from the Lake, flows into the Desplaines River, which empties into the Illinois River, which in its turn empties into the Mississippi. The channel is at least twenty-five feet deep and at least one hundred and sixty-two feet wide; and while its interest to the defendant is primarily as a means to dispose of the sewage of Chicago, Missouri v. Illinois, 200 U. S. 496, 26 S. Ct. 268, 50 L. Ed. 572, it has been an object of attention to the United States as opening water communication between the Great Lakes and the Mississippi and the Gulf.

The answer shows that the defendant is proceeding under a state act of May 29, 1889 (Laws 1889, p. 125), by which it was provided that a channel should be made of size sufficient to take care of the sewage and drainage of Chicago as the increase of population might require, with a capacity to maintain an ultimate flow of not less than 600,000 cubic feet of water per minute, and a continuous flow of not less than 20,000 cubic feet for each 100,000 of the population within the sanitary district. It denies that the defendant has abstracted from 400,000 to 600,000 feet per minute, but as it alleges the great evils that would ensue if the flow were limited to the amount fixed by the Secretary of War or to any amount materially less than that required by the state act of May 29, 1889, and as it admits present conditions to be good, the denial cannot be taken very seriously. The act sufficiently indicates what the State threatens and intends to do unless

Page 425

stopped. The answer also denies that the abstraction of water substantially in excess of 250,000 cubic feet per minute will lower the levels of the Lakes and Rivers concerned or create an obstruction to the navigable capacity of those waters. It goes into the details of the construction of the channel; the expenses incurred; and the importance of it to the health of the inhabitants of Chicago, both for the removal of their sewage and avoiding the infection of their source of drinking water in Lake Michigan which had been a serious evil before. It shows the value of the channel for the great scheme of navigation that we have mentioned; recites acts of Congress and of officers of the United States alleged to authorize what has been done, and to estop the United States from its present course, and finally the bull by the horns and denies the right of the United States to determine the amount of water that should flow through the channel or the manner of the flow.

This brief summary of the pleadings is enough to show the gravity and importance of the case. It concerns the expenditure of great sums and the welfare of millions of men. But cost and importance, while they add to the solemnity of our duty, do not increase the difficulty of decision except as they induce argument upon matters that with less mighty interests no one would venture to dispute. The law is clear, and when it is known the material facts are few.

This is not a controversy between equals. The United States is asserting its sovereigh power to regulate commerce and to control the navigable waters within its jurisdiction. It has a standing in this suit not only to remove obstruction to interstate and foreign commerce, the main ground, which we will deal with last, but also to carry out treaty obligations to a foreign power bordering upon some of the Lakes concerned, and, it may be, also on the footing of an ultimate sovereign interest in the Lakes.

Page 426

The Attorney General by virtue of his office may bring this proceeding and no statute is necessary to authorize the suit. United States v. San Jacinto Tin Co., 125 U. S. 273, 8 S. Ct. 850, 31 L. Ed. 747. With regard to the second ground, the Treaty of January 11, 1909, with Great Britain, expressly provides against uses 'affecting the natural level or flow of boundary waters' without the authority of the United States or the Dominion of Canada within their respective jurisdictions and the approval of the International Joint Commission agreed upon therein. As to its ultimate interest in the Lakes the reasons seem to be stronger than those that have established a similar standing for a state, as the interests of the nation are more important than those of any state. In re Debs, 158 U. S. 564, 584, 585, 599, 15 S. Ct. 900, 39 L. Ed. 1092; Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 S. Ct. 618, 51 L. Ed. 1038, 11 Ann. Cas. 488; Hudson County Water Co. v. McCarter, 209 U. S. 349, 355, 28 S. Ct. 529, 52 L. Ed. 828, 14 Ann. Cas. 560; Marshall Dental Manufacturing Co. v. Iowa, 226 U. S. 460, 462, 33 S. Ct. 168, 57 L. Ed. 300.

The main ground is the authority of the United States to remove obstructions to interstate and foreign commerce. There is no question that this power is superior to that of the States to provide for the welfare or necessities of their inhabitants. In matters where the States may act the action of Congress overrides what they have done. Monongahela Bridge Co. v. United States, 216 U. S. 177, 30 S. Ct. 356, 54 L. Ed. 435; Second Employers' Liability Cases, 223 U. S. 1, 53, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. But in matters where the national importance is imminent and direct even where Congress has been silent the States may not act at all. Kansas City Southern Ry. Co. v. Kaw Valley Drainage District, 233 U. S. 75, 79, 34 S. Ct. 564, 58 L. Ed. 857. Evidence is sufficient, if evidence is necessary, to show that a withdrawal of water on the scale directed by the statute of Illinois threatens and will affect the level of the Lakes, and that is a matter which cannot be done without the consent of the United States, even were there no international covenant in the case.

Page 427

But the defendant says that the United States has given its assent to all that has been done and that it is estopped to take the position that it now takes. A state cannot estop itself by grant or contract from the exercise of the police power. Texas & New Orleans R. Co. v. Miller, 221 U. S. 408, 414, 31 S. Ct. 534, 55 L. Ed. 789; Atlantic Coast Line R. R. Co. v. Goldsboro, 232 U. S. 548, 558, 34 S. Ct. 364, 58 L. Ed. 721; Denver & Rio Grande R. Co. v. Denver, 250 U. S. 241, 244, 39 S. Ct. 450, 63 L. Ed. 958. It would seem a strong thing to say that the United States is subject to narrower restrictions in matters of national and international concern. At least it is true that no such result would be reached if a strict construction of the Government's act would avoid it. This statement was made and illustrated in a case where it was held that an order of the Secretary of War under the Act of March 3, 1899, c. 425, the same act in question here, directing an alteration in a bridge must be obeyed, and obeyed without compensation, although the bridge had been built in strict accord with an Act of Congress declaring that if so built it should be a lawful structure. Louisville Bridge Co. v. United States, 242 U. S. 409, 417, 37 S. Ct. 158, 61 L. Ed. 395; Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251, 35 S. Ct. 551, 59 L. Ed. 939. It only remains to consider what the United States has done. And it will be as well to bear in mind when considering it that this suit is not for the purpose of doing away with the channel, which the United States, we have no doubt, would be most unwilling to...

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