1. Passing upon the Master's report in this case and the
exceptions thereto, the Court determines the amounts by which the
unlawful diversion of water from Lake Michigan (
278 U. S. 278 U.S.
367) should be diminished from time to time and the times to be
fixed for each step; the plans proposed for disposal of the Chicago
sewage are considered as material only as bearing on what those
determinations should be; the defendants must find the way to
comply with the determinations. P.
281 U. S.
197.
2. The performance to be exacted of the defendant state is to be
gauged by what is possible if it devotes all its powers to the
exigency. The state can base no defences upon difficulties which it
has itself created, nor upon anything in its own constitution that
may stand in the way of prompt action.
Id.
3. In determining the extent to which the diversion of water
should be reduced and the times at which the reductions should take
place, a recent rise in the level of Lake Michigan cannot be taken
into account, since, apart from speculation as to the duration of
the rise, delays are allowable only for the purpose of limiting
within fair possibility, the requirements of immediate justice
pressed by the complaining states.
Id.
4. These requirements as between the parties are the
constitutional rights of those states, subject to whatever
modification they may hereafter be subjected to by Congress acting
within its authority.
Id.
5. In present conditions, there is no invasion of the authority
of Congress by the former decision in these cases, and the right of
the plaintiffs to a decree is not affected by the possibility that
Congress may take some action in the matter.
Id.
6. The Court approves the Master's recommendations as to the
amounts in which the diversion shall be successively reduced and
the times within which the reductions shall be made, with a
provision requiring the defendant Sanitary District to file with
the Clerk of this Court at stated periods, reports of the progress
of
Page 281 U. S. 180
the work involved at the coming in of which either party may
make application to the Court for such action as may be suitable.
P.
281 U. S.
198.
7. All action of the parties and the Court in this case will be
subject to any order that Congress may make in pursuance of its
constitutional powers and any modification that necessity may show
should be made by this Court.
Id.
8. The Court rejects the plaintiffs' demands that all diversion
through the Drainage Canal cease, that the canal be closed at its
connection with the Des Plaines River, with an incidental return of
the flow of the Chicago River to its original course into the Lake,
and also (a demand not contemplated by their bills) that all water
pumped in the Sanitary District for domestic purposes be returned
to the Lake after being purified in sewage works, and adopts as
more reasonable the Master's report that, as the best way of
preventing the pollution of navigable waters, an outflow from the
canal into the Des Plaines should be permitted, and that the
interests of navigation in the Chicago River, as a part of the Port
of Chicago, will require the diversion of an annual average not
exceeding 1500 c.f.s., in addition to domestic pumpage after sewage
treatment. P.
281 U. S.
199.
9. The claims of the complaining states should not be pressed to
a logical extreme without regard to relative suffering and to the
time during which the plaintiffs have let the defendants go on
without complaint. P.
281 U. S.
200.
10. If the amount of water withdrawn for domestic purposes
should be excessive, it will be open to complaint.
Id.
11. Whether the right for domestic use extends to great
industrial plants (not argued) may be open for consideration at
some future time.
Id.
12. The defendants, having made the suits necessary by
persisting in unjustifiable acts, must pay the costs of the
litigation.
Id.
Decree directed, subject to future modification
Suits brought originally in this Court by the States of
Wisconsin, Minnesota, Ohio, Pennsylvania, Michigan, and New York,
against the Illinois and the Chicago Sanitary District, to enjoin
further taking of water from Lake Michigan for the purpose of
carrying off the sewage of Chicago and vicinity through a drainage
canal. Pursuant to the opinion reported in
278 U. S. 278 U.S.
367, the case
Page 281 U. S. 181
was referred for the second time to Charles E. Hughes, Esquire,
as Special Master. The Master was directed to take testimony on the
practical measures needed to dispose of the sewage without the
unlawful diversions of water, and the time required for their
completion, and to report his conclusions for the formulation of a
decree. The decision now reported was rendered after a hearing upon
exceptions to the Master's report under the second reference.
Page 281 U. S. 196
MR. JUSTICE HOLMES delivered the opinion of the Court.
These suits, brought to prevent the State of Illinois and the
Sanitary District of Chicago from continuing to withdraw water from
Lake Michigan as they now are doing, have passed through their
first stage in this Court. The facts were set forth in detail and
the law governing the parties was established by the decision
reported in
278 U. S. 278 U.S.
367. It was decided that the defendant state and its creature the
Sanitary District were reducing the level of the Great Lakes, were
inflicting great losses upon the complainants, and were violating
their rights, by diverting from Lake Michigan 8,500 or more cubic
feet per second into the Chicago Drainage Canal for the purpose of
diluting and carrying away the sewage of Chicago. The diversion of
the water for that purpose was held illegal, but 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. The case was referred a second time to the
master to consider what measures would be necessary and what time
required to effect the object to be attained. The master now has
reported. Both sides have taken exceptions, but, as we shall
endeavor to show, the issues open here are of no great scope.
Page 281 U. S. 197
The defendants have submitted their plans for the disposal of
the sewage of Chicago in such a way as to diminish so far as
possible the diversion of water from the Lake. In the main, these
plans are approved by the complainants. The master has given them a
most thorough and conscientious examination. But they are material
only as bearing on the amount of diminution to be required from
time to time and the times to be fixed for each step, and therefore
we shall not repeat the examination. It already has been decided
that the defendants are doing a wrong to the complainants, and that
they must stop it. They must find out a way at their peril. We have
only to consider what is possible if the State of Illinois devotes
all its powers to dealing with an exigency to the magnitude of
which it seems not yet to have fully awaked. It can base no
defences upon difficulties that it has itself created. If its
Constitution stands in the way of prompt action, it must amend it
or yield to an authority that is paramount to the state.
The defendants' exceptions deal with the extent to which the
diversion of water should be reduced, and to the time at which the
reductions should take place. They argue that a recent rise in the
level of Lake Michigan should be taken into account. This cannot be
done. Apart from the speculation involved as to the duration of the
rise, there is a wrong to be righted, and the delays allowed are
allowed only for the purpose of limiting, within fair possibility,
the requirements of immediate justice pressed by the complaining
states. These requirements as between the parties are the
constitutional right of those states, subject to whatever
modification they hereafter may be subjected to by Congress acting
within its authority. It will be time enough to consider the scope
of that authority when it is exercised. In present conditions,
there is no invasion of it by the former decision of this Court, as
urged by the defendants. The
Page 281 U. S. 198
right of the complainants to a decree is not affected by the
possibility that Congress may take some action in the matter.
See Southern Utilities Co. v. Palatka, 268 U.
S. 232,
268 U. S. 233;
Kansas v. Colorado, 206 U. S. 46,
206 U. S.
117.
The master finds that, on and after July 1, 1930, the diversion
of water from Lake Michigan should not be allowed to exceed an
annual average of 6,500 cubic feet per second in addition to what
is drawn for domestic uses. He finds that, when the contemplated
controlling works are constructed that are necessary for the
purpose of preventing reversals of the Chicago River at times of
storm and the introduction of storm flow into Lake Michigan, works
that will require the approval of the Secretary of War and that the
master finds should be completed and put in operation within two
years after the approval is given, and probably by December 31,
1935, the diversion should be limited to an annual average of 5,000
c.f.s. "in addition to domestic pumpage." On this point, we deal
only with the amount and the time. When the whole system for sewage
treatment is complete and the controlling works installed, he finds
that the diversion should be cut down to an annual average of 1,500
c.f.s. in addition to domestic pumpage. This, he finds, should be
accomplished on or before December 31, 1938, and the full operation
of one of the contemplated works, the West Side Sewage Treatment
Plant, which would permit a partial reduction of the diversion, is
to be not later than December 31, 1935. These recommendations are
subject to the appointment of a commission to supervise the work,
or, better in our opinion, to the filing with the clerk of this
Court at stated periods, by the Sanitary District, of reports as to
the progress of the work, at the coming in of which either party
may make application to the Court for such action as may seem to be
suitable. All action of the parties and the Court in this case will
be subject, of course, to any order that Congress may
Page 281 U. S. 199
make in pursuance of its constitutional powers and any
modification that necessity may show should be made by this Court.
These recommendations we approve within the limits stated above,
and they will be embodied in the decree. The defendants argue for
delay at every point but we have indicated sufficiently why their
arguments cannot prevail. The master was as liberal in the
allowance of time as the evidence permitted him to be.
The exceptions of the complainants go mainly to a point not yet
mentioned. The sewage of Chicago at present is discharged into a
canal that extends to Lockport on the Des Plaines River (which
flows into the Illinois, which in its turn flows into the
Mississippi), from Wilmette on the north and a point on the Lake
near the boundary line of Indiana on the south, with another intake
midway between these two at the mouth of the Chicago River, which
has been reversed from its former flow into Lake Michigan to a flow
from the Lake. The change is narrated at length in the former
decision of this case.
278 U. S. 278 U.S.
367,
278 U. S. 401,
et seq..
See also Missouri v. Illinois,
180 U. S. 208,
180 U. S. 211
et seq.; 200 U. S. 200 U.S.
496. It is partially to oxidize and carry off this sewage that the
main diversion of water is made. The complainants demand that this
diversion cease, and the canal be closed at Lockport, with an
incidental return of the Chicago River to its original course. They
also argue that what is called the domestic pumpage, after being
purified in the sewage works, be returned to the Lake. These
demands seem to us excessive upon the facts in this case. The
master reports that the best way of preventing the pollution of
navigable waters is to permit an outflow from the Drainage Canal at
Lockport, and that the interests of navigation in the Chicago River
as a part of the Port of Chicago will require the diversion of an
annual average of from 1,000 c.f.s. to 1,500 c.f.s. in addition to
domestic pumpage after the sewage
Page 281 U. S. 200
treatment program has been carried out. The canal was opened at
the beginning of the century, thirty years ago. In 1900, it already
was a subject of litigation in this Court. The amount of water
ultimately to be withdrawn unless Congress may prescribe a
different measure is relatively small. We think that, upon the
principles stated in
Missouri v. Illinois, 200 U.
S. 496,
200 U. S. 520
et seq., the claims of the complainants should not be
pressed to a logical extreme without regard to relative suffering
and the time during which the complainants have let the defendants
go on without complaint.
Perhaps the complainants would not be very insistent with regard
to the 1,000 or 1,500 c.f.s. which, earlier in this case, they
seemed to admit to be reasonable if their demand were allowed that
the domestic pumpage be purified and returned to the Lake -- a
demand not contemplated by their bill. But purification is not
absolute. How nearly perfect it will be with the colossal works
that the defendants have started is somewhat a matter of
speculation. The master estimates that, with efficient operation,
the proposed treatment should reach an average of 85 percent
purification, and probably will be 90 percent or more. Even so, we
are somewhat surprised that the complainants should desire the
effluent returned. The withdrawal of water for domestic purposes is
not assailed by the complainants, and we are of opinion that the
course recommended by the master is more reasonable than the
opposite demand. If the amount withdrawn should be excessive, it
will be open to complaint. Whether the right for domestic use
extends to great industrial plants within the District has not been
argued, but may be open to consideration at some future time.
We see no reason why costs should not be paid by the defendants,
who have made this suit necessary by persisting in unjustifiable
acts.
North Dakota v. Minnesota, 263 U.
S. 583.
Page 281 U. S. 201
A decree will be entered to the effect that, subject to such
modifications as may be ordered by the Court hereafter,
1. On and after July 1, 1930, the defendants, the State of
Illinois and the Sanitary District of Chicago, are enjoined from
diverting any of the waters of the Great Lakes-St.Lawrence system
or watershed through the Chicago Drainage Canal and its auxiliary
channels or otherwise in excess of an annual average of 6,500
c.f.s. in addition to domestic pumpage.
2. That, on and after December 31, 1935, unless good cause be
shown to the contrary, the said defendants are enjoined from
diverting as above in excess of an annual average of 5,000 c.f.s.
in addition to domestic pumpage.
3. That, on and after December 31, 1938, the said defendants are
enjoined from diverting as above in excess of the annual average of
1,500 c.f.s. in addition to domestic pumpage.
4. That the provisions of this decree as to the diverting of the
waters of the Great Lakes-St.Lawrence system or watershed relate to
the flow diverted by the defendants exclusive of the water drawn by
the City of Chicago for domestic water supply purposes and entering
the Chicago River and its branches or the Calumet River or the
Chicago Drainage Canal as sewage. The amount so diverted is to be
determined by deducting from the total flow at Lockport the amount
of water pumped by the City of Chicago into its water mains and as
so computed will include the run-off of the Chicago and Calumet
drainage area.
5. That the defendant the Sanitary District of Chicago shall
file with the clerk of this Court semiannually on July first and
January first of each year, beginning July first, 1930, a report to
this Court adequately setting forth the progress made in the
construction of the sewage treatment plants and appurtenances
outlined in the program as proposed by the Sanitary District of
Chicago, and also
Page 281 U. S. 202
setting forth the extent and effects of the operation of the
sewage treatment plants, respectively, that shall have been placed
in operation, and also the average diversion of water from Lake
Michigan during the period from the entry of this decree down to
the date of such report.
6. That, on the coming in of each of said reports, and on due
notice to the other parties, any of the parties to the above
entitled suits, complainants or defendants, may apply to the Court
for such action or relief, either with respect to the time to be
allowed for the construction, or the progress of construction, or
the methods of operation, of any of said sewage treatment plants,
or with respect to the diversion of water from Lake Michigan, as
may be deemed to be appropriate.
7. That any of the parties hereto, complainants or defendants,
may, irrespective of the filing of the above-described reports,
apply at the foot of this decree for any other or further action or
relief, and this Court retains jurisdiction of the above-entitled
suits for the purpose of any order or direction, or modification of
this decree, or any supplemental decree, which it may deem at any
time to be proper in relation to the subject matter in
controversy.
THE CHIEF JUSTICE took no part in the decision or consideration
of these cases.
