State of Wisconsin v. State of Illinois State of Michigan v. Same State of New York v. Same
| Decision Date | 22 May 1933 |
| Docket Number | Nos. 5,O,9,8,s. 5 |
| Citation | 53 S.Ct. 671,289 U.S. 395,77 L.Ed. 1283 |
| Parties | STATE OF WISCONSIN et al. v. STATE OF ILLINOIS et al. STATE OF MICHIGAN v. SAME. STATE OF NEW YORK v. SAME. riginal |
| Court | U.S. Supreme Court |
Messrs. Raymond T. Jackson, of Mineral Point, Wis., and Wm. J. Morgan and Ralph M. Hoyt, both of Milwaukee, wis., for complainants State of Wisconsin and others.
Messrs. Wm. Rothmann and Joseph B. Fleming, both of Chicago, Ill., for defendant Sanitary Dist. of Chicago.
Mr. Cornelius Lynde, of Chicago, Ill., for defendant State of Illinois.
In October, 1932, complainant states, Wisconsin, Minnesota, Ohio, and Michigan, applied for the appointment of a commissioner or special officer to execute the decree of April 21, 1930 (281 U.S. 696, 50 S.Ct. 331, 74 L.Ed. 1123) on behalf and at the expense of defendants. The applicants complained of the delay in the construc ion of the works and facilities embraced in the program of the Sanitary District of Chicago for the treatment and disposition of sewage so as to obviate danger to the health of the inhabitants of the district on the reduction, as the decree provides, of the diversion of water from Lake .michigan through the drainage canal. The court directed defendants to show cause why they have not taken appropriate steps to effect compliance with the requirements of the decree.
After hearing upon the return to the rule, the court appointed Edward F. McClennen as special master to make summary inquiry and to report to the court (1) as to the causes of the delay in obtaining approval by the Secretary of War of the construction of controlling works in the Chicago river and the steps which should now be taken to secure such approval and prompt construction; (2) as to the causes of the delay in providing for the construction of the Southwest Side Treatment Works and the steps which should now be taken for that purpose or, in case of a change in site, for the construction of an adequate substitute; and (3) as to the financial measures on the part of the sanitary district or the state of Illinois which are reasonable and necessary in order to carry out the decree of the court. 287 U.S. 578, 53 S.Ct. 210, 77 L.Ed. —-. The master has proceeded accordingly, and, after full hearing and careful review of the evidence received by him, has submitted his report and recommendations, upon which the parties have been heard.
The master has found that the causes of the delay in obtaining approval of the construction of controlling works in the Chicago river 'are a total and inexcusable failure of the defendants to make an application to the Secretary of War for such approval,' and that the causes of the delay in providing for the construction of the Southwest Side Treatment Works 'are (1) an inexcusable and planned postponement of the beginning of construction of these Works to January 1, 1935, which left an inadequate time for their completion before December 31, 1938, at the rate of progress expected or to be expected under the methods pursued by the Sanitary District, and (2) the failure to proceed to a difinite decision as to a site and to the acquisition of the site so chosen, and (3) the failure to proceed with reasonable diligence to prepare designs, plans, and specifications for the Works at this site or on the site of the West Side Works.' The evidence taken by the master supports these findings.
With respect to the steps which should now be taken to secure completion of the works above mentioned, the master finds that, because of its financial situation, the defendant sanitary district is at present powerless to contract 'for the design or for the construction of controlling works, or for the construction in a large way of the Southwest Side Treatment Works.' This is found to be due to the unmarketability of its bonds and its inability to obtain the needed moneys through levy of taxes or assessments. The master finds that 'in the conditions which now exist, there is no reasonable financial measure which the Sanitary District can take, which it is failing to take'; and that 'no way has come to light, whereby this decree can be performed under tolerable conditions, unless the State of Illinois meets its responsibility and provides the money.' The master recommends that the decree be enlarged so as to require the state of Illinois to provide the moneys necessary and to take the appropriate steps to secure the completion of adequate facilities for the treatment and disposition of sewage in order to carry out the decree of this court.
First. The state of Illinois raises questions as to its relation to this suit and its obligation under the decree. Counsel for the state present the view that the sanitary district is the 'active defendant,' and that, while no objection has been, or is, made to the joining of the state as a party defendant, there has been no determinat on in this suit as to the exact nature and extent of the 'legal liability of the State of Illinois for the acts of the Sanitary District,' and that this court 'should not now assume the existence of a legal liability on the part of the State.' This argument is untenable.
In this controversy between states, the state of Illinois by virtue of its status and authority as a state is the primary and responsible defendant. While the sanitary district is the immediate instrumentality of the wrong found to have been committed against the complainant states by the diversion of water from Lake Michigan, that instrumentality was created and has continuously been maintained by the state of Illinois. Every act of the sanitary district in establishing and continuing the diversion has derived its authority and sanction from the action of the state, and is directly chargeable to the state. The adjudication as to the right of the complainant states to have the diversion reduced as provided in the decree is an adjudication not merely as against the sanitary district but as against the state as the defendant responsible under the Federal Constitution to its sister states for the acts which its creature and agent, the sanitary district, has committed under the state's direction.
This conclusion would be inevitable even if the drainage canal had been established solely as a project for local benefit, that is, for the sanitation of the area immediately concerned and thus to meet the needs of the inhabitants of the great metropolis within that area. But, while the establishment and use of the drainage canal were primarily, as heretofore found, for the purpose of sanitation, the state did not authorize it with that purpose exclusively in view, but the canal project from its first initiation has been promoted by the state of Illinois to provide a waterway for general state purposes and the advantage of the people of the state at large. The act of the state Legislature of 1836 (Illinois Laws 1834—1837, p. 118), contemplated a canal to insure navigation and to be supplied with water from Lake Michigan and such other sources as the canal commissioner should think proper. By the act of 1861 (Illinois Laws 1861, p. 277), the Legislature provided for improvement in the canal and a larger flow of water from Lake Michigan. He menace from the pollution of the Chicago river through the introduction of sewage made it imperative to provide plans for purification, and while a waterway of such dimensions as to furnish ample dilution was regarded as the most economical plan, the advantages to the state of such a waterway as a highway of commerce were also in view. Wisconsin v. Illinois, 278 U.S. 367, 401—403, 419, 49 S.Ct. 163, 73 L.Ed. 426. When the provision was made in 1889 (Illinois Laws 1889, p. 125) for the creation of sanitary districts to provide for drainage and to improve navigable waterways, the Legislature, by joint resolution (Illinois Laws 1889, p. 376), set forth 'the policy of the state of Illinois to procure the construction of a water-way of the greatest practicable depth and usefulness for navigation from Lake Michigan via the Des Plaines and Illinois rivers, to the Mississippi river.'
In this suit, the state of Illinois has depended from the beginning upon the ground that diversion was essential with reference not only to the needs of sanitation but also for a continuous waterway from the lake to the Gulf. Wisconsin v. Illinois, supra, 278 U.S. 388, 396, 49 S.Ct. 163, 73 L.Ed. 426. But the court found this contention unavailing and that the existing diversion was unlawful. The court found no basis for the argument that the diversion had been authorized by the Congress. Id., pages 416—420 of 278 U.S., 49 S.Ct. 163, 171, 73 L.Ed. 426.
After a full examination of the facts, and considering the questions presented in all their aspects, the court deemed it to be its duty 'by an appropriate decree to compel the reduction of the diversion to a point where it rests on a legal basis, and th § to restore the navigable capacity of Lake Michigan to its proper level.' Id., page 420 of 278 U.S., 49 S.Ct. 163, 172, 73 L.Ed. 426. The 'restoration of the just rights of the complainants was made gradual rather than immediate in order to avoid so far as might be the possible pestilence and ruin with which the defendants have done much to confront themselves.' Wisconsin v. Illinois, 281 U.S. 179, 196, 50 S. Ct. 266, 74 L.Ed. 799. The final decree fixed the time and amount of the reduction of the diversion with this object in view. Id. That decree in terms bound the state of Illinois, no less than its creature, the sanitary district. In delivering the opinion of the court, Mr. Justice Holmes summed up the matter by saying: ...
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