# Opposition Brief — Wisconsin v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1758%3A018 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1940 - **Citation:** 309 U.S. 569 ## Text Uete, 490U UNIGINAL NUD,O,LU & 44, — ae ~~ _ INTHE SUPREME COURT OF THE i Office Suereme Sours, Ue o- ORIGINAL JURISDICTIO mgmt | OCTOBER TERM, 1925 FER 27 1928 STATE OF WISCONSIN, STATE OF WM, R. SIANSEURY OHIO, STATE OF PENNSYLVANIA |_ - CLERK AND STATE OF MINNESOTA, Complainants, Vv. STATE ‘OF ILLINOIS AND SANI.-| _ Bill in Equity. - TARY DISTRICT OF CHICAGO, { Original Jurisdiction. Defendants. Newbtes STATE OF MISSOURI, STATE OF ? 7 TENNESSEE, STATE OF #KEN- TUCKY AND STATE OF LOUIS- IANA, | 4 Intervening Defendants. | > rd BRIEF ON BEHALF OF COMPLAINANTS IN OP ITION TO MOTION TO DISMISS — . . HERMAN L. EKERN, < Aitorney General of Wisconsin, RAYMOND T. JACKSON, Special Assistant Aitorney General of Wisconsin, RALPH M. HOYT, Special Assistant Attorney General of Wisconsin, CLIFFORD L. HILTON, Attorney General of Minnesota, C. C. CRABBE, Attorney General of Ohio, . NEWTON D. BAKER, ‘ Special Assistant Attorney General of Ohio, GEORGE W. WOODRUFF, Attorney General of a. PHILLIP WELLS, _.° Deputy "sce Genova of Penasyieonia, Mayer Frias Compeny, Ie: II. INDEX SYNOPSIS ° Page STATEMENT OF FACTS. Summary of the principal allegations of the amended TS SOT a RIN CON er eT: CS ” The history~of the Sanitary Canal conclusively estab- lishes that the canal is not now and never has been a navigation project, but that it is now and always has been simply a sanitation and power project for the bene- fit of the Sanitary District of Chicago .. If. A comparison of the commerce of the Des Plaines and VI. VII. Illinois Rivers with the commerce of the Great Lakes SY BCCI o..nssenesconecsnessenerenleenssennsesnecens ietels sabe saaiectaededdescoimgiaks One thousand cubic second feet is the greatest amount of water which will ever be required for the needs of navigation upon the Sanitary Canal, Des Plaines and SNE TNT iF ntasneccinien inseinin salgininevebaseainttladais caps tiato That the abstraction of the waters of the lakes in the quantity claimed by the defendants constitutes a sub- stantial and unreasonable obstructior. to the navigable capacity of the Great Laxes is an established fact........ There is a well defined divide between the Great Lakes and Mississippi watersheds ...... vageeee seat nnncuebinammosuanion The complaint and facts present not only the abstraction by an upper riparian state of all of the waters of an in- terstate watercourse: originating within its own borders but the case of a state, by reversing the flow of that part of the watercourse within its borders, through the 10 15 16 ii ‘ ° . Page * * agency of natural laws, abstracting waters of such watercourse which originated in lower riparian states and permanently diverting them from the watershed...... 18 VIII. The imminent national concern which attached and attaches to the Chicago abstraction arises from the lowering of the levels of the Great Lakes and not from the interests of Chicago and IIlinois in obtaining these * waters for sanitation or power purposes ..................0... 19 IX. The various permits granted by different Secretaries of War were not in aid of navigation........ repcedenediivenpatnens 19 X. The early acts of Congress were for a summit level cep LE AE PONT SRE TIE lo BRR POR 21 XI. National economic loss in power development.................. 22 pte ili POINTS AND AUTHORATIES oo.ccicccccccccccsecccssscssssseescesssece 23-37 ARGUMENT. I. THE COMPLAINT PRESENTS A JUSTICIABLE II. CONTROVERSY WITHIN THE ORIGINAL JU- RISDICTION OF fHIS COURT oie. THE COMPLAINING STATES HAVE SUBSTAN- TIAL LEGAL INTERESTS WITH CORRES- PONDING INJURIES INVOLVED IN THIS CON- TROVERSY WHICH ENTITLE THEM TO MAIN- TAIN THIS SUIT. 1. The complaining states have a proprietary interest in the waters of the Great Lakes and connecting waters within their respective borders, which they have the right WON GY, WOT aires icinscvsiercciccuhcc se oR 2. The actions of the State of Illinois and its agents, of which the bill complains, constitute an injury to the complaining siaies in their quasi-sovereign capacity, whol- ly distinct from the injuries to their citizens ; and they are entitled to maintain this suit in this court to vindicate Quasi-sovereign rights 2.0.0.0... sccesseeeceeseesese iuietdiebeianisitcene 3. The complaining states have a right to maintain this suit in their private capacities as owners of public works and public property _...........ccccescccccsesseecseeeeeeooeeceeecs... 4. The complaining states have a standing to maintain this suit as parens patriae to protect their people................ 5. This bill does not seek an academic vindication of the freedom of commerce but a redress for its injuries in Siew cmpenclnis. Miata nts ii = Se 38 45 51 55 iv Page 6. The bili does. not ask the court to regulate naviga- tion or to supervise long continuing acts ...........cecceccecceece--. III. THE UNITED STATES AND SISTER STATES ARE NOT INDISPENSABLE’ PARTIEG.........: ae IV. THE BILL OF COMPLAINT IS NOT MULTI- nth iy RS SOO ITC od PTO AMD V. THE STATE OF ILLINOIS WAS AND IS WITH- OUT POWER TO’ APPROPRIATE AND AB- STRACT THE WATERS OF THE GREAT LAKES. 1. The common:law of waters obtains in the defend- ant and -commplaining states 200200... cece cescessssneececseeseeeeees 2. As proprietors of the waters of the Great Lakes within their borders, the complaining states have a right to all ‘the waters coming naturally to them, preserved in _ their navigable capacity and°at their natural level and condition for :all:uses:and purposes... Revoad 3. An upper state appropriating waters in defiance of the rights of a lower state will be enjoined. Apply- ing to Illinois its owraw of waters, her asserted right + toabstract the waters.of-the Great Lakes fails........... Siiceone 4. Tilinois, the upper riparian state, not only abstracts all the water within its own boundaries, but by reversing the flow of the Chicago river abstracts waters: which originate in Wisconsinand Michigan and permanently diverts these waters from the Great Lakes watershed 5: Illmois: legislative actspurporting to authorize ab- straction of waters from Lake Michigan were wnconstitu- ne Oe WE oe chbeaepeamiuetianaraseniasiiens 68 71 74 78 Page VI. ASSERTING THAT CONGRESS IS WITHOUT POWER TO AUTHORIZE THE ABSTRACTION OF ANY WATERS FROM THE GREAT LAKES WATERSHED FOR ANY PURPOSE, COM- PLAINANTS ASK AN INJUNCTION ONLY AGAINST AN ABSTRACTION OF MORE THAN 500 CUBIC SECOND FEET FOR PRES- ENT NAVIGATION AND MORE THAN 1000 CUBIC SECOND FEET FOR ANY FUTURE NAVIGATION. SEE LEGISLATIVE RESOLU- TIONS IN APPENDIX. i. Construed in the light of history and the common law, the constitutional power over navigable waters does not extend to the abstraction of the waters of one water- shed for the benefit of another ............. y 81 2. Acts of Congress for improvement of navigation must be reasonably appropriate to that end, and not for sewage disposal or power purposes 200... occ ecccceeeeeee. 84 3. If Congress can appropriate these waters in any amount, it can do so only for the promotion of navigation, and then only to the extent reasonably necessary therefor 8&7 4. An Act of Congress appropriating the waters of one or more of the states, to their injury, for the benefit of another state violates Article I, Section 9, Clause 6, of the Constitution prohibiting any preference to the ports of one state over those of another... 89 VII. CONGRESS HAS NEVER AUTHORIZED SUCH ABSTRACTION OF THE WATERS OF THE GREAT LAKES AS TO IMPAIR THEIR NAVI- GABLE CAPACITY. vi Page 1. The Act of Congress of March 2, 1827, does not authorize the abstraction of the waters of the laBes............ 91 2. The permit of the Secretary of War issued March 3, 1925, does not purport to authorize any abstraction of the waters of the Great Lakes which would injure their CITE CO nn a es oe 92 3. The Rivers and Harbors Act does not empower the Secretary of War to authorize any obstruction of the navigable waters of the United States; and to the extent that the permit of the Secretary of War is claimed to _ authorize abstraction of the waters of the Great Lakes in excess of the amount needed for navigation, it would be clearly unauthorized by said acto. cece. 93 TEMPTS TO AUTHORIZE ABSTRACTION OF WATERS OF THE GREAT LAKES WITHOUT REGARD TO THE INJURY TO THEIR NAVI- GABLE CAPACITY AND NOT TO PROMOTE NAVIGATION, BUT FOR THE SANITATION AND POWER DESIRES OF ILLINOIS, IT IS UNCONSTITUTIONAL AND VOID................ 99 IX. ASSUMING THE PERMITS OF THE SECRE- TARIES OF WAR TO BE VALID PURSUANT TO CONGRESSIONAL AUTHORITY FOR THE ABSTRACTION OF THESE WATERS SO FAR AS RELATES TO THE NAVIGABLE CAPA- CITY (WHICH WE DO NOT CONCEDE) THESE PERMITS ARE NO DEFENSE TO THIS BELL XI. XII. XIII. Vii Page THE DOCTRINE, THAT IN MATTERS WHERE THE NATIONAL CONCERN IS IMMINENT AND DIRECT, THE STATES MAY NOT ACT AT ALL, EVEN WHEN CONGRESS HAS BEEN SILENT,-IS NO DEFENSE TO THIS BILL....... » i THE BOUNDARY WATERS TREATY OF 1909 IS NO AUTHORITY FOR THE ACT OF THE DEFENDANTS: ON THE CONTRARY, IT FOR- BIDS THE ACT 2 ae THE COMPLAINANTS ARE NOT ESTOPPED BY THE FORMER PLEADING.................. OTHER TECHNIbAL OBJECTIONS TO THIS BILL ARE WITHOUT MERIT ................. an ~ Vili CASES CITED Page Alabama v. Gulf Power Co., 283 Fed. 606.000.000.000. 35, 100 Amsterdam Knitting Co. v. Dean, 43 N. Y. St. 21, affirmed 56 Bs. ie go Ce 29, 70 Attorney General ex rel. Becker v. Bay Boom W. R. & F. Co., Ee Wee a BP I ne ah 36, 104 Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224... 24, 33, 47, 86 Barrett v. Mt. Greenwood C. emctery Association, 159 Ill. 385, 42 ae ig SRR te ie OTe RO aN ile de 29, 69 iilise '¥,. Rmennay, 40 TG a er 29, 69 Briscoe v. Bank of Kentucky, 11 Pet. 257, 9 L. Ed. 709... yale Burke v. Simonson, 104 Ind. 173, 2 N. E. 309... 29, 70 Burke v. Snively, 208 Ill. 328, 70 N. E. i cmatbaiecie cass is, we ae Burlington Gas Light Co. v. Burlington, etc. Rwy. Co., 165 U. S. oaU, 17 Sep. Ce. 399, 409. Ed. Joo * 33, 87 California v. Southern Pacific Co., 157 U. S. 299, 15 Sup. Ct. ey Oe ie MA Seen ti 27, 63, 65 Canton v. Shock, 66 Ohio St. 19, 63 N. E. 600... 29, 70 Cedar Lake Hotel Co. v. Cedar Lake Hydraulic Co., 79 Wis. a Oe cag Si Ag Sn eet NAO Cg kc 29, 69 Chicago v. Green, 238 INl..258, 87 N. E. 417... 6 Clark v. Pennsylvania R. R. Co.. 145 Pa. St. 438, 77 Atl. OP erties rea Cee fe eae bret 29, 70 Cobb v. Commissioners of Lincoln Park, 202 Ill. 427, 67 N. E. We earonehceiaecouael een een Dy at ee 36, 103 Columbia Salmon Co. v. mire, 5 Alms SIs 36, 105 ; ( ix Page Columbus and H. Coal & Iron Co. v. Tucker, 48 Ohio St. 41, CI I ns crs ear Oe 2 heiaipcdiviotmiomsennntionh 29, 70 Dayton v. Commissioners, 128 Ill. 271, 21 N. 2. Cae 29, 69 Dwight v. Hayes, 150 Ill. 237, 37 N. E. 218....-------..20----seeeeseeee-* 29, 69 Economy L. & Power Co. v. U. S., 256 U. S. 113, 41 Sup. Ct. iat GM. ac tsasincattecranedensnetniewenionsinadipsanead 30, 31, 78, 81 Evans v. Merriweather, 4 Ill. (3 Scam.) 492, 38 Am. Decisions 106 .... ai, Rs SO oO Georgia v. Tennessee Copper Company, 206 U. S. 230, 27 Sup. ee. Sek Ss aaeee 23, 25, 26, 39, 49, 50, 51, 55 Gibson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 99€.25, 48 Hans v. Lousiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. Hardin v. Jovdan, 140 U. S. 371, 11 Sup. 808, 35 L. Ed. 159....25, 48 Heckman et al. v. United States, 224 U. S. 413, 32 Sup Ct. 6 (2 S- 28, 67 Hoge v. Eaton, 135 Fed. 411 ......-..---------sseeecesesseseeseeeseeees 24, 30, 48, 74 Holyoke Water Power Co. v. Connecticut River Co., 52 Conn. 570, 22 Blatchf. 131, 20 Fed. 71........ 24, 30, 31, 48, 74, 78, 80 Hubbard v. Fort, 188 Fed. 987..........-. 34, 36, 96, 97, 98, 101, 102, 103 Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. 529, 52 L. Ed. 828 24, 25, 30, 31, 48, 52, 53, 71-72, 77, 79 210, 36 L. Ed. 1018 -...................-—--+----------0- 24, 35, 48, 100 llinois Steel Co. v. Bilot, 109 Wis. 418, 84 N. W. 855-....-... .29, 71 —x Internationai Bridge Co. v. New York, 254 U. S. 126, 41 Sup. Se AE an RII cen ia ee ee rere 36, 106 Kansas y. Colorado, 185 U. S. 125. 22 Sup. Ct. 552, 46 L. Ed. Rearend MM al stay Ra 23, 26, 27, 30, 37, 40, 54, 56, 74, 112 Kénsas v. Cologado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. DO select ee eee are, ON tac aes 23, 24, 25, 28, 30, 31, 32, 33, 35, 42, 44, 46, 49, 55, 64, 75, 76, 79, 82, 87, 99 Kansas % United States, 204 U. S. 331, 27 Sup. Ct. 388, 51 ag Ee A en A CORAL A ION IL, oe 28, 65 Kansas City So. R. R. Co. v. Kaw Valley Drainage District Co., 233 U. S. 75, 34 Sup. Ct. 564, 58 L. Ed. 857... 36.108 | Kawananakoa v. Polyblank, 205 U. S. 349, 27 Sup. 526, 51 \ CE ROD REET CALS na NERD ee 28, 65 Kimberly & Clark Co. v. Hewitt, 79 Wis. 334, 44 N. W. 303 | Ro ee 29, 69) Louisiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. | ena Beeote aS atin NS GLAM aD REI 24, 27, 43, 44, 57, 58 | Lousiville Bridge Co. v. U. S., 242 U.S. 409, 37 Sup. Ct. 158, Re We te a. ree ae ee eee 34,92 | McCarter v. Hudson Water Co., 70 N. J. Equity 695..............30, 72 McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248 ROD sei hcentibcomieshianny srabreroteatcadeapibedeea unten ig eke I ncscnsinaii nt sa esc Sl Ta re shel xi Miller vy. Miller, 9 Pa. 74, 49 American Decisions 545............... 29, 70 Minnesota Loan & Trust Co. vy. St. Anthony Falts Water Powtr Co., 82 Minn. 505, 85 N. W. 520 ..0..-o--ccccsoesccccseseccoeecceocscees... 29, 70 Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed. PH cheap anoninrbniadcai st ee es 23, 25, 26, 38, 54, 56 Missouri v. Illinois, 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed. RP sees temusnetar ns ee 23, 27, 42, 60-61 Mobile Transp. Co. v. Mobile, 187 U. S. 479, 239Sup. Ct. 179, A I cena tne teh ce he 25, 48 a SF RELA RE DOLL OAR PAL SaaS 31, 80 Muhlker v. N. Y. & Harlem R. R. Co., 197 U. S. 544, 25 Sup. Ar ete SP Dn: SR MD ise ae 33, 87 Murford v. Wardwell, 6 Wall. 423, 18 L. Ed. 756............... 25, 48 New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176, OF tak et OO ae orrrerrtrarceemannennnnnnnernen 24, 43, 44 New Jersey v. Sargent, 46 Sup. Ct. 122, 70 L. Ed. 177, (Advance Sheets) 2.0.0... cccscesssceeeees Liapsnnsdaitisiabesaacapengcsics 35, 100 New York vy, New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937........ 23, 25, 26, 28, 33, 36, 42, 49, 54, 56, 64, 88, 106 Norfold, etc. R. Co. v. SutherJand, 105 Va. 345, 55S. E. 465..37, 112 North Dakota v. Minnesota, 263 U. S. 365, 44 Sup. Ct. 138,68 Be OO BE rr 23, 25, 26, 39, 52, 54, 56 N. PacificeR. Ri Co. v. Slaght, 205 U. S. 122, 27 Sup. Ct. 442, ee ee nue 37, 111 Pe Pir i FO a ae et ee ag 23, 44 sii Page Osborn v. United States Bank, 9 Wheat. 738, 6 L. Ed. 204....28, 65 Pennsylvania v. West Virginia, 262 U. S. 553, 43 Sup. Ct. 658, ft PES” 3S | + 23, 26, 27, 42, 43, 53, 55, 56, 58, 60, 61 Note in 43 Sup. Ct. 658, 669 00... 25, 50 Pennsylvania v. Wheeling Bridge Co., 9 How. 647, 13 L. Ed. SAR See Aa ee ee eae = Pennsylvania v. Wheeling Bridge Co., 11 How. 528, 13 L. Ed. MERELY Es Cis colt nae 26, 55 Pennsylvania v. Wheeling Bridge Company, 13 How. 518, 14 PR chad or .23, 26, 27, 55, 59, 60 Pennsylvania v. Wheeling Bridge Co., 18 How. 421, 15 L. Ed. ee SEES Sa EEG ae aera PP 26, 33, 42, 55, 89 People v. Nelson, 133 Il. 565, 27 N. E. 217 ............................... 6 Pewaukee v. Savoy, 103 Wis. 271, £9 OW. 456 nsec 29, 71 Pine v. New York, 50 C. C. A. 145, 112 Fed. 98............ 24, 30, 48, 74 Pine v. New York, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. pee SEE SES et eS Oe 30, 31, 78, 79 Plumbleigh v. Dawson, 6 Il. (1 Gilman) 544 000. cccccccoeee 29, 69 Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565 oo... ccccccseeeee-oe- 24, 48 Priewe v. Wisconsin State Land and Improvement Co., 93 Wis. NES RT i a 29, 69 The Propeller Genesee Chief, 12 How. 443, 13 L. Ed. 1058....31, 80 ener create Be OP 28, 67 Rossmillerey. State, 114 Wis. 169, 89 N. W. 839.0... 29, 70 St. Anthony Falls Water Power Co. v. Commissioners, 168 U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497.0. nc enneeeene 25, 48 3 Page Sanitary District of Chicago v. United States, 266 U. S. 405, 45 Sup. Ct. 176, 69 L. Ed. 352....5, 15, 19, 22, 28, 31, 34, 35, 36, 66, 80, 91, 92, 98, 99, 107, 108, 110 Sauer v. City of New York, 206 U. S. 536 27 Sup. Ct. 686, 51 a OO ea pa ee aD $3, 87 Seattle v. Oregon & Washington Rwy. Co., 255 U. S. 56, 41 SD Re a, OP Rae Bs UIE cceractescemndckocsimenccteconciee .24, 35, 45, 100 Shields v. Barrow, 17 How. 130, 15 L. Ed. 158.....0000..000...-...- .27, 63 Shively v. Bowlby, 152 U. S. 1; Sup. Ct. 548, 38 L. Ed. 331..24, 47 South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782... tet bse ladles beicasat a eetoeplaasitietcabdagmosciesiet 23, 26, 33, 42, 89 Stock v. Jefferson, 114 Mich. 357, 72 N. W. 132 .0...eecsceceeeceeee 29, 70 Strathleven Steamship Co. v. Baulch, 244 Fed. 412..............37, 111 Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142.cccseccsoee 29, 70 Supreme Sitting O. of 1. H. v. Saker, 134 Ind. 293, 33 N. E. aks BE ie i aseevenciotvsniigllckecuncmmsctotieamstannesininancioasn 37, 112 Thlinket Packing Co. v. Harrison Co., 5 Alaska 471..........0.0-.. 36, 105 Turner v. Roundtree, 30 Ala. 706 ccc. PE Rite wae 37, 11? U. S. v. Chandler-Durbar Water Power Co., 229 U. S. 53, 33 ae A ge ee ee Ree 21, 34, 80, 93, 101 United States v. Rio Grande Dam & Irrigation Company, 174 U. S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136 . suckle baudiscelieammiaedanec tee! 25, 27, 28, 30, 33, 48, 62, 68, 74, 88 United States v. River Rouge Improvement Co., 46 Sup. Ct. 144, 70 L. Ed. 148 (Advance Sheets) -0............ceccccesescesoeee 35, 100 Virginia-Carolina Chemical Co. v. Home Insurance Co., 113 a SS MUG Ren ania AS La Ai i Xiv rs Page Virginia v. West V irginia, 220 U. S. 1, 31 Sup. Ct. 330, 55 L. i MINE Soi bipintetetiedcca tuna tee EU eG. ele, 37, 112 Western Union Telegraph Co. v. Attorney General of Massa chusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790....27, 58 Williams v. Bass, 179 Wis. 364, 191 N. W. 499.0000... 29, 69 Williams v. Talladega, 226 U. S. 404, 33 Sup. Ct. 116, 57 L. Ed. SOUPS cic sence SsssdapdinsacpssinLastepscecdblbenpssstessstiogs msmbtelenecic 27, 58 Wilson v. Hudson County Water Co., 76 N. J. Eq. 543, 76 pee Rccrsac he ee OMA ESSN OS ERE OOS BTR ETN YN 36, 103 Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. 668.000.000.000... 23, 43, 44 Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup. Ct. Ry ale MO ee Eee om 23, 43, 44 Woodruff v. North Bloomfield Gravel M ining Co., 18 Fed. 753, gu enansblanimniibiine tea ab niece eat oe en 33, 35, 85, 99 Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. ic , nna 23, 25, 26, 28, 31, 42, 49, 54, 64, 75, 76, 79 xV STATUTES, CONSTITUTIONAL PROVISIONS, SESSION LAWS, ETC. Page Ordinance U. S. Territorial -Odrinance of 1787 .................................. 31, 70, 81 U. S. Constitution FAT ny I ee ey 33, 35, 89, 100 BRAN Miicrerrsiditonn ping celica Oe eas Sou ak ee 23, 38 U. S. Statutes I IE a aa tres ea 21 4 «Ee SOE ERC Ep a ee eerie Eas ert 21, 34, 91 30 WEIR. forslitepeeeeAutceasis scnchnc oe teh a 35, 97 ; |S. PEAS ARES ROE Ai alae aoeCACeNE Da MCE 34, 93, 94, 95, 96 Illinois Constitution PU Or Oe ag ee 31, 81 Illinois Session Laws 1 Se PE RE dina re na 6 Illinois Statutes Starr and Curtis Stats. 1896, SRN OAERY HOR CTS TSE Ra MI A 6 xvi TEXTS CITED Page Me Ne hu, MAME sesprribahas ashes acto eisinc caealensprestostdsouinieeeormaga encanta 37, 111 31 Cyc. 463 See Em ce a SE? 37, 112 Farnham on Waters (1904) Vol. Deccccccccsccceeone 24, 30, 48, 73, 78 Hale, De Partibus Maris ....-.:csccsccececcseceenene Sen 25, 48 uae, oe. senemore (Ai ed.) (1G7S)—.W..ce . 25, 48 SUNG OL. TR CU a st rh aces 25, 48 Hyde on International Law (1922) Vol. Low... cceceeeeeees 30, 78 Moore, History of the Foreshore (3d ed.) (1888)...................- 25, 48 Odgers, Conmmon Law of England Vol. Eecccccceccscccocescesreune 32, 83 Xvii PUBLIC DOCUMENTS Page International Waterway Commission Public Reports, 1905, St cae eh ERR A EO iE a 21 United States Chief of Engineers Annual Report, 1868 (House Exec. Doc. No. 1, pt. 2, 40 Cong. 3d Sess., p. 438, 440)...11, 17 United States Chief of Engineers Annual Report, 1879 (House Exec. Doc. No. 81, 45th Cong. 3d Sess., i: SCE ll United States Chief of Engineers Annual Report, 1899.00... 16 | United States Chief of Engineers Annual Report, 1900, pp. cee Pie en ONES ERT PETC at 16 _Buited States Chief of Engineers Annual Report, 1911 (House ~~ \Doe. 762, 63d Cong. 2d Sess., pp. 101-107)... 12-13 United States Chief of Engineers Annual Report, 1920, p. 95 20 United States Engineer (Major Putman) Report, 1923 p. 66...... 18 United States Department of Commerce, Miscellaneous Series No. 119, Inland water transportation in the United States, og SS eae Es Ree Tae oS ae Ea 9 United States House Rivers and Harbors Committee Hearings (Comm. Doc. 59th Cong. Ist Sess.) ....cccecccccccscse---... | ERs 14 United States Hearings on the nine-foot channel from the Great Lakes to the Gulf, pursuant to Senate Resolution 411, 67th Cong. Wh Seve, Vol 29.741 14 United States House Committee Hearings of 1924, p. 105.......... 15 United States Rivers and He: bors Committee Hearings of April and May, 1924, Part 2, pp. 1800-1820 piel sadetnekdninincsacumais? i) a United States Rivers and Harbors Committee Hearings (68th Cong. Ist Sess., pt. 2, pp. 348, 376, Sa | ee 15 XVili Page United States Senate Special Committee, 1925, Report of hear- ings on fine-foot channel from Great Lakes to Gulf, 68th Cog: 2 Sone, Ya A, United States House Rivers and Harbors Committee Hearings, 69th Cong. Ist Sess., Jan. 30, 1926, p. 11.....2.......-cececececoseeeees United States Secretary of War, Decision denying permission to abstract 10,000 cubic second feet, Jan. 8, 1913.00.00... United States War Department Statistical Report, 1923.............. United States War Department Report to Congress (House Doc. 762, 63d Cong. 2d Sees., p. 14)... Warren Report, August 30, 1919, concurred in November 9, ray, Oy Coal al Gages ee 15 xix APPENDICES Page Report of Major Putman to Chief of Engineers............ 115-121 Recomendation of Chief of Engineers bist pro neapitenepabiaa nadiccc kane Letter of Secretary of War Weeks to Sanitary District..124-125 Potent of Sipe: 3, 1005 5. oe ena 125-128 . II. Wietinee Ranlitiee e 129-132 Minnesota Resolution ............... VASE DDIIL AE 1 92-135 a; CR Raids cs on has eo ee 135-136 Pennsylvania Resolution 220... ..c:c/ceccco0--. 137-138 ? peew Sek Tiina ee 138-140 pancengees Wencletien rs 140-142 Cnmncia Tcealitiog tae 142-143 IN THE SUPREME COURT OF THE UNITED STATES ORIGINAL JURISDICTION OCTOBER TERM, 1925 ‘ STATE OF WISCONSIN, STATE OF OHIO, STATE OF PENNSYLVANIA AND STATE OF MINNESOTA, Complainants, Vv. STATE OF ILLINOIS AND SANI-| _ Bill in Equity. TARY DISTRICT OF CHICAGO, ff Original Jurisdiction. Defendants. No. 16. STATE OF MISSOURI, STATE OF TENNESSEE, STATE OF KEN- TUCKY AND STATE OF LOUIS- | IANA, Intervening Defendants. J BRIEF IN OPPOSITION TO MOTION TO DISMISS THE « AMENDED BILL OF COMPLAINT STATEMENT OF FACTS This case comes on for hearing on a motion by defendants to dis- miss. This action was originally brought by the State of Wisconsin in 1922 against the State of Illinois and the Sanitary District of Chicago. In October, 1925, leave was granted by this court to file an amended complaint joining the states of Minnesota, Ohio and Pennsylvania as complainants. On January 4, 1926, the defendant State of Illinois filed its motion to dismiss and the defendant Sani- tary District of Chicago filed its answer and motion to dismiss. On January 25, 1926, the States of Missouri, Tennessee, Kentucky and ee Louisiana filed a motion to be admitted as intervening defendants and to dismiss. The salient facts set up in the amended complaint and for pres- ent purposes admitted by the demurrer and motions to dismiss may be briefly summarized. The complainants allege injuries to them in their proprietary Capacities as qguasi-sovereigns, and in their capacities as parens patriae of their people, resulting from unlawful acts of the defend- ant State of Illinois and defendant Sanitary District of Chicago. These injuries consist of a long continued and permanent !ower- ing of the levels of the Great Lakes and their connecting waters through the abstraction of the waters of Lake Michigan from the Great Lakes watershed and their permanent diversion through the Chicago, Des Plaines and Illinois rivers and the Sanitary Canal into the Mississippi watershed. This has obstructed the navigable capac- ity of the Great Lakes and connecting waters and caused large losses to these states and their people in reducing the carrying capacity of the large numbers of vessels navigating these waters and in damages done to their harbors, and in damages to the property rights of thousands of citizens cf the complainant states and to the proprietary rights of the complainant states in the waters within their borders. These injuries also consist of the excessive pollution of the navigable waters of the Chicago, Des Plaines and Illiaois rivers and the Sanitary Canal, making navigation thereon dangergus to the health and lives of the people of the complainant states having the right to navigate said waters in carrying on a large commerce which is or could be served by such navigation. ; The complainant states assert that neither the State of Illinois nor the United States could legally authorize any abstraction of the waters of the Great Lakes to be diverted into another watershed for any purpose, but bring this suit only to enjoin the defendants from so taking any water in excess of the amount needed fox_navigation without injury to the navigable capacity of the Great Lakes. The amount so needed is alleged not to exceed 500 cubic feet per second eee —3— for the present navigation and not to exceed 1,000 cubic feet per second for any possible future navigation over the Sanitary Canal, the Chicago, Des Plaines and Illinois rivers. I. 4 THE PRINCIPAL ALLEGATIONS OF THE AMENDED BILL OF COMPLAINT MAY BE SUMMARIZED AS FOLLOWS: That the complainants are states of the United States of America. The various acts of Congress define their boundaries as extending to the center of the lakes, between such states. That the complainant states have extensive shore lines along said lakes with numerous harbors and a large commerce amounting to many millions of tons annually for each of said states. That the Sanitary District Canal through which the waters of Lake Michigan are abstracted was constructed solely for sewage disposal purposes, pursuant to the legislative acts of the State of Illinois, beginning with the year 1889, which acts have been so con- strued by the highest court of the State of Illinois. That in 1903, the Illinois Legislature authorized the construction ‘and operation by the Sanitary District of an electric power plant which has been operating since 1907, producing more than 20,000 H. P., and many million dollars of profits to the Sanitary District. That an underestimate by engineers of the Sanitary District shows an abstraction of water from Lake Michigan increasing from 2,900 cubic feet per second in 1900 to 7,786 cubic feet per second in 1917, and that in fact ir 1917, and since, more than, 8,800 cubic feet per “second have been so abstracted. That the Great Lakes, excepting Lake Superior and connecting waters and the St. Lawrence River have been lowered not less than six inches by such abstraction of water by defendants, and that such lowering has reduced the possible loading of vessels thereon by at a me least six inches, and has reduced their cargo carrying capacity by many tons, with a resultant increase of freight costs to the people of complainant states and to the State of Wisconsin in its proprietary capacity. That the carriage of coal by such vessels constitutes the principal source of supply of coal for the State of Wisconsin and its people, that such lowering has lessened the utility of all of the ports of said lakes and connecting waters of said lakes, and that the total annual loss due to the lowered carrying capacity of lake vessels chargeable to the abstraction of such water amounts to many millions of dollars. That navigation in the Chicago River has been made so difficult and dangerous by the swift current created by the abstraction of this water as to reduce the commerce handled in the Chicago harbor from between six and eight millions of tons of freight each year to less than one-third that amount, a large part of which commerce was between citizens of Wisconsin and citizens of Illinois. That the State of Illinois asserts and seeks to bar the United States from control over said canal and to subordinate its use to sewage disposal and power purposes. That for the purpose of present navigation over said canal and the Chicago, Des Plaines and Illinois Rivers, the diversion necessary does not exceed 500 cubic feet per second, and that the maximum amount of water so needed to be diverted for the greatest possible navigation upon said canal and river will never exceed 1,000 cubic feet per second. That none of the permits issued by the various Secretaries of War are or ever have been of any force or effect to authorize a with- ¢rawal of water from Lake Michigan in such quantities as to obstruct its navigability, and that the defendants have never been authorized by Congress to divert any water from Lake Michigan. That the acts of the defendants have caused large pecuniary losses to the peoples of the complainant states and have violated the legal rights of the states themselves. The situation out of wWich this controversy arises has been in the Pe al courts so long and has been so recently before this court that the facts are already quite familiar to the court. We do not agree with the defendants as to the statements of facts in their briefs nor that matters set out therein are matters of which this court will take judicial notice or which are material at this time. Without conceding anything on these points or considering any statement of facts neces- sary for this present purpose other than as set out in the amended complaint, we add for such use as the court may find convenient the following supplementary matters which are based upon governmental reports, official documents and other public records. II. THE HISTORY OF THE SANITARY CANAL CONCLU- SIVELY ESTABLISHES THAT THE CANAL IS NOT NOW AND NEVER HAS BEEN A NAVIGATION PROJECT, BUT THAT IT IS NOW AND AL- WAYS HAS BEEN SIMPLY A SANITA- TION AND POWER PROJECT FOR THE BENEFIT OF THE SANITARY DISTRICT OF CHICAGO. Prior to the decision of this court in the Sanitary Distri:t of Chicago v. United States, 266 U. S. 405, 45 Sup. Ct. 176, 69 L. Ed. 352, there had never been any serious claim on the part of the de- fendants Sanitary District and State of Illinois that the Sanitary Canal was anything other than a sanitation and power project. When this court in the foregoing case decided that the defendant had no right to appropriate and abstract the waters of the Great Lakes-St. Lawrence System for local sanitation and power pur- poses, the defendant, the Sanitary District of Chicago and the State of Illinois, took the position in, the instant case, that such canal was not a sanitation and power project but was a navigation enterprise. This changed position upon facts which were well known to such ay ee defendants at and prior to decision of the Sanitary District case has an important bearing upon the weight to be given the claims of the defendants in urging that proposition in a court of equity at this time. The Sanitary Canal was opened in January of 1900. Separate Section 3, Constitution of Illinois 1870 and Starr and Curtis Statutes 1896, page 206, forbade the State of Illinois tu loan its credit or make appropriations in aid of canals. The necessary effect of this constitutional provision was applied in Burke v. Snively, 208 Ill. 328, 348, 70 N. E. 327. The defendant Sanitary District of Chicago was created by an Act of Illinois of May 29, 1889, entitled “An act to create sanitary districts, etc.” In Chicago v. Green, 238 Ill. 258, 87 N. E. 417, the highest court of the State of Illinois in speaking of this act said: , , “The purpose of the act of 1889 was to furnish a common out- let for the sewage of the incorporated municipalities within the limits of the district.” - In Peopie v. Nelson, 133 Ill. 565, 27 N. E. 217, it was said: “A sanitary district is a municioal corporation organized to secure, preserve and promote the public health.” From these various acts, decisions and constitutional provisions it is apparent that the State of Illinois could act only through the medium of the defendant Sanitary District and that such district could build and operate a sanitary canal solely as a sanitation project and not as a canal for the purposes of navigation. The true purposes of the Sanitary Canal are also shown in an official memorandum or report issued by the Trustees of the Sani- tary District in December, 1923, which contains the following state- ment on page four: “The Sanitary Project was developed by the City of Chicago with the cooperation of the State Board of Health of illinois and aoe. ees a joint committee of the Illinois General Assembly in the years 1885-1889. To study and report upon the problem Chicago cre- ated the Drainage and Water Supply Commission consisting of eminent Civil Engineers. ‘Three methods of the solution of the problem of disposal of the sewage of the Chicago District were considered by the Commission: First, the discharge of sewage into Lake Michigan at one end of the City and the taking of water supply from the Lake at the other extreme end of thé city; Second, the disposal of sewage on land by intermittent filtration over a vast sewage farm (as large as 15,000 acres); Third, the discharge of sewage into the Des Plaines River by means of a ship canal, and the resultant disposal by dilution. The third method, recommended by the Commission, was chosen as the basis of the Sanitary District Act. “Thereupon the Sanitary District of Chicago was created by act of the Illinois State Legislature May 29, 1889, and the validity of the act was affirmed by the State Supreme Court on June 12, 1890. Its purpose was to provide a Main Channel-or outlet and necessary adjuncts to divert the sewage of Chicago and adjacent towns from Lake Michigan, thus protecting the municipal water supply from contamination by sewage. To dispose of sewage by dilution and provide an outlet into the Illinois River the act re- quired that such channel should be made of such size and capacity as to provide a minimum dilution of 3.33 cubic feet per second for every 1,000 people.” While defendant Sanitary District and State of Illinois now at- tempt to argue that the principal object o¢-the Act of Illinois of 1889 was to provide for the construction of a Ship canal, the reason given by the Sanitary District in their requests to the War Department for permission to divert water from the Chicago River into the Des Plaines River were merely to aid in the disposition of the sewa,e of Chicago, and to prevent that sewage from entering Lake Michigan and polluting the water supply of Chicago. In 191i the defendant Sanitary District applied to Secretary of War Stimson for permis- sion to increase the withdrawal of water to ten thousand cubic second feet. In the opinion of Secretary Stimson containing his decision upon that application, he said: sm “The demand for the diversion of this water at Chicago is based solely upon the needs of that city for sanitation. There is involved in this case no issue of conflicting claims of navigation.” And again in that opinion Secretary Stimson says, “Having reached the conclusion that the proposed diversion of the waters of Lake Michigan would substantially injure the in- terests of navigation on the Great Lakes, which it is my legal duty to protect, it would clearly follow that the present application should be denied.” In 1907 the trustees of the defendant Sanitary District, after their application for a permit to reverse the current of the Calumet River had been denied, passed a resolution which reads in part as follows: “Whereas, heretofore, to-wit: on November 28, 1906, this board instructed its president to transmit to the Secretary of War an application for a permit to reverse the flow of said Calumet River and thereafter, to-wit: On March 14, 1907, the Secretary of War communicated to the board his refusal to issue such permit ; “Whereas, this board is advised that it has the right and that is the duty under the laws of the State of Illinois to construct said channel, notwithstanding the refusal of the Secretary of War to issue a permit therefor, for the purpose of furnishing the proper sanitary method of disposing of the sewage of the territory and inhabitants contiguous to the said proposed channel and within the corporate limits of the Sanitary District of Chicagu, and un- less restrained by a court having jurisdiction of the subject matter at the instance of the United States Government.” The testimony of the engineering expert for the proponents of the Sanitary District before the Illinois Legislative Committee on April 7, 1887, shows that the main reason for adopting the dilution method instead of the purification method for the disposal of the sewage of Chicago was to save some expense. See pp. 1800-1820, Part 2, Rivers and Harbors Committee Hearing of April and May, 1924, Ae. 2 } a ER The foregoing documentary evidence conclusively establishes that the Sanitary Canal was not constructed for navigation purposes, but solely for the purpose of disposing of the sewage of the Sanitary District by dilution methods. Ill. A COMPARISON OF THE COMMERCE OF THE DES | PLAINES AND ILLINOIS RIVERS WITH THE COMMERCE OF THE GREAT LAKES SYSTEM. The commerce upon the Sanitary Canal, the Des Plaines River and the I‘linois River is shown by the official publication of the U. S. Department of Commerce, 1923, Miscellaneous Series No. 119, entitled “Inland Water Transportation in the United States.” From that report it appears that the total volume of freight on the Illinois River in 1921 was 157,536 tons. The volume of commerce on the Des Plaines River was much smaller. The volume of commerce on the Sanitary Canal was approximately 400,000 tons, consisting chiefly of the removal of rock and debris from along its banks by barges. From page 67 of the same report it appears that in 1920 the total volume of freight carried on the Great Lakes was over one hundred and eleven million tons. The Statistical Report of the War Depart- ment for the year 1923 shows that of all the waterborne commerce into and out of and through the United States, approximately twenty- seven per cent was carried on the Greac Lakes. From the govern- ment reports it appears that the freightage through the Soo Canal alone has reached a peak of ninety-two million tons and is nearly double that of the combined freightage of the Panama and Suez Canals in their twelve months’ year against the lakes" eight months season. The Great Lakes perform a ton mile service equivalent to about twenty-five per cent of the tonnage of all the railroads of the United States, and carry bulky raw materials such as iron ore, stone, ae coal, and grain at a cost not exceeding one-fifth and sometimes as low as one-tenth of the cost of railway transportation. The present small commerce upongthe Des Plaines and upper Illinois Rivers cannot be substantially increased until the completion of the locks and improvements on these rivers, which, according to present plans, will not be for two or three years. The engineering reports hereinafter cited show that an abstraction of less than one thousand cubic second feet will suffice for the commerce of one hundred million tons per year, which is immensely greater than any probable commerce upon the Des Plaines and Illinois Rivers. IV. ONE THOUSAND CUBIC SECOND FEET IS THE GREAT- EST AMOUNT OF WATER WHICH WILL EVER BE REQUIRED FOR THE NEEDS OF NAVIGATION UPON THE SANITARY CANAL, DES PLAINES AND ILLINOIS RIVERS. Defendants assert that the allegation in the bill of complaint that the present needs of navigation upon the Des Plaines and Illinois Rivers do not exceed five hundred cubic second feet of abstraction and will not with any development of which those waters are cap- able exceed one thousand cubic second feet, should not be accepted by this court as a fact, although admitted by their motion to dismiss. The only argument advanced in support of this contention is that the complaint does not disclose whether such quantity cf water is needed for slack water navigation or free water navigation. For the purpose of this motion it must be considered as a verity that such an amount is sufficient for any type of navigation of which these waters are capable. However, 4s bearing upon the truth and the good faith of the contention, we will state the facts. With respect to the Des Plaines and upper Illinois Rivers no con- tention for free water navigation can be made in good faith. From pase (ee the end of the drainage canal at Lockport to the surface of the water at Utica there is a drop of about one hundred and thirty feet in a distance of sixty-six miles. As a physical fact, this drop demon- strates that no open river navigation is practical over this distance or even possible with any degree of safety. (In fact, the defendant State of Illinois is now constructing five locks averaging about twenty-six feet lift each to cover this section of the river.) At Lockport there is a fall of thirty-four feet. Obviously no possible quantity of water would render free navigation over such a drop possible. With reference to the lower Illinois from La Salle to its mouth at Grafton, there is a fall of only about thirgy feet in two hundred and twenty-four miles. Upon that portion of the Illinois River open navigation is possible with very small water flow, as any desirable draft can be obtained in the boat channel by dredging without the addition of any water to the natural flow of the stream, and ence secured will be practically permanent. Annual Report of the Chief of Engineers, 1868, House Executive Document No. 1, part 2, 40ch Congress, 3d Session, p. 438. A further report August 30, 1878, provided for no diversion of waters, but specifically stated that “the slack-water system * * * has the advantage in every im- portant feature.” Annual Report, Chief of Engineers, 1879, House Executive Document, No. 81, 45th Congress, 3d Session, p. 8. Since physical obstruction to the upper Illinois and Des Plaines Rivers demand locks under any system of improvement for navi- gation purposes, the only water needed from the Great Lakes System is a sufficient addition to the natural flow in the Des Plaines and dilinois Rivers to provide for efficient and proper operation of necessary locks. It is entirely feasible to provide any necessary capacity in the lower river by dredging, The expense of such dredging is nominal and when once incurred does not have to be incurred again. On the other hand, the annual damage tu navigation on the Great Lakes by an excessive abstraction of waters probably ss... equals or exceeds the total added cost to be incurred’ but once in the pie improvement of the Des Plaines and Illinois Rivers without abstrac- tion in excess of 1,000 cubic second feet. The five hundred to one thousand cubic second feet stated to be the maximum required for navigation, approximaies that required for the Soo and Welland Canals, where the traffic is greatly in excess of what could reasonably be expected for the Des Plaines-Illinois waterway. On the other hand, ¢ diversion of ten thousand cubic second feet creates a current of such an excessive velocity as to make navigation difficult and even dangerous. The attempt now being made by Chicago to establish permanent bridges over the Chicago River indicates that the people of the Sanitary District are not chiefly interested in providing for navigation either on the Sani- tary Canal or along the Illinois and Des Plaines Rivers. The alter- native Calumet-Sag Channel is ai present of shallow depth and the only existing proposal to deepen this channel does not contemplate the deepening of this channel ‘or a number of years. The Chicago Sa. itary District can, by installing sewage disposal works, as has been done elsewhere, dispose of all danger of pollution of the lake by returning only a safe effluent from such disposal works. The amount of water necessary for navigation purposes upon the Des Plaines-Illinois waterway was passed upon by the Special Board on the Waterway from Lockport, Illinois, to the :nouth of the Illinois River. This board was made up of government engineers under the chairmanship of General W. H. Bixby, Chief of Engineers. The report, dated January 23, 1911, was published in the House of Representatives Document 762, 63d Congress“Séeond Session, pages 101 to 107. We quote from pages 105, 106, 107 as follows: “The Board considers a bottom wicth of 160 feet in canal and 200 feet in the open river above the mouth of the Illinois River sufficient for a channel of eight or nine feet available depth. For safety and ease of navigation the channel should be extended to 11 feet in rock cuts and canals, and the locks should be given 11 feet depth, 80 feet width and 600 feet useful length. With these lock dimensions three barges carrying about 9,000 tons of freight may be locked through with their tow-boat. A waterway of these pe ee dimensions would have a capacity exceeding 100,000,000 ions per annum and would accommodate barge tows carrying about nine times the ordinary train-load of this vicinity. In addition the vessels using it would be capable of navigating the Ohio and Lowcr Mississippi Rivers. Such waterway will not require a diversion of more than 1,000 second feet from Lake Michigan, this amount would not injuriously lower lake levels nor cause excessive flooding of land in the Illinois Valley.” (Page 105.) (Pagé 106.) “For purposes of navigation a diversion from Lake Michigan of less than 1,000 second feet of water is all that will be necessary.” (Page 107.) “* * * The claim that more than 1,000 cubic feet per second is required for purposes of navigation cannot be maintained.” The statement that 1,000 cubic second feet is all that could ever be needed for navigation purposes in this waterway has often been reinterated. Thus Secretary Stimson in his decision of January 8, 1°13, denying permission to abstract 10,000 cubic second feet said : “The Chief of Engineers reports that so far as the interests of navigation alone are concerned, even if we should eventuaily con- struct a deep waterway from the Great Lakes to the Mississippi over the route of the sanitary canal, the maximum amount of water to be diverted from Lake Michigan need actually be not over 000. feet per second, or less than a quarter of the amount already being used for sanitary purposes in the canal. This estimate is confirmed by the report of the special board of engineers on the deep waterway from Lockport, IIl., to the mouth of the Illinois River, dated January 23, 1911. It is also confirmed by the practi- cal experience of the great Manchester Ship Canal in England. From the standpoint of navigation alone in such a waterway too great a diversion of water would be a distinct injury rather than a benefit. It would increase the velocity of the current and in- crease the danger of overflow and damage to adjacent lands.” Again, in the final report of the special board on the waterway from Lockport to the mouth of the Illinois River (House Document 762, 63d Congress, 2d Session, p. 14) dated December 16, 1913, it - is ‘said : a ae a. a ‘But the Board reiterates that a diversion exceeding 1,000 sec- ond feet is not necessary fur navigation purposes alone in the Illinois River, and that an added discharge will produce a slight and inadequate effect on the Mississippi River.” The report just quoted is the last official report of the War De- partment to Congress upon this subject, but Gereral Taylor, the present Chief of Engineers, when called before a senate committee on January 20, 1925, and questioned as to the amount of diversion necessary for the navigation of a nine-foot channel down the Illinois River, referred to the various reports that we have quoted above, and said with reference to the original Bixby report: “It has been investigated a number of times, and I think the conclusions reached by that board have always been concurred in.” (Vol. 2, p. 741, Hearings on the Nine-Foot Channel from the Great Lakes to the Gulf, Pursuant to Senate Resolution 411, 67th Congress, 4th Session. ) The abstractions of the defendant Sanitary District in excess of 1,000 cubic second feet have introduced a current into the Chicago River which has made it practically impossible for large boats to navigate that river, and has virtually driven all commerce from the tiver. This is clearly brought out by the defendants’ own engineer, Isham Randolph, in testimony given before the House Rivers and Harbors Committee. (See last paragraph of Document No. 6 of that Committee, 59th Congress, Ist Session.) Thus it is/apparent that not only is 1,000 cubic second feet all that will ever be needed for navigation purposes, but that the excessive amount now being diverted is an actual injury to navigation. The recently completed locks and dams, and the locks and dams under construction and those contemplated for the Des Plaines and Illinois Rivers, answer conclusively any argument that there can be any free water navigation with the abstraction of any possible amount/ of water from Lake Michigan. \ — EE --15— ¥. THAT THE ABSTRACTION OF THE WATERS OF THE LAKES IN THE QUANTITY CLAIMED BY THE DE- FENDANTS CONSTITUTES A SUBSTANTIAL AND UNREASONABLE OBSTRUCTION TO THE NAVIGABLE CAPACITY OF THE GREAT LAKES IS AN ESTABLISHED FACT. The levels of the lakes have been lowered approximately six inches by the Chicago abstraction. Chicago Sanitary District v. United States, 266 U.S. 405, 45 Sup. Ct. 176, 69 L. Ed. 352. This has resulted in a reduction of the carrying capacity of the Great Lake freighters and in a loss in that connection amounting to at least three million dollars per year. House Committee Hearings of 1924, page 105; Hearings Rivers and Harbors Committee, House of Representatives, 69th Congress, First Session Jan. 30, 1926, page 11. It has resulted in damages to docks, piers, and other property, and has required additional expense in dredging. Both the federal government and the Canadian government have expended large sums to improve the navigation of the Great Lakes. The loss in load for big lake freight carriers has been from eighty to eighty-eight short tons per inch of draft, Record Volume 3, 1245, Sanitary District of Chicago v. United States. These losses have increased as the commerce has grown. The increased extent of the damage appears from the testimony in the River and Harbors Committee hearings, 68th Congress, first Session, on Illinois and Mississippi Rivers and diversion of water from Lake Michigan, Part 2, pp. 348, 376 and 392-431. See also Senate Special Committee in 1925 Report on Hearings on Nine Foot Channel from Great Lakes to the Gulf, 68th Congress, Second Session, pursuant to Senate Resolution 411, 67th Congress, Fourth Session, in volumef%, pages 134, 230. Assuming that there is a lowering of the levels of the Great Lakes from naturai causes or any causes in addition to the lowering snl. caused by the abstraction of the defendant Sanitary District, that is no justificationfor its unlawful abstractions. If nature has caused a lowering of the levels of the lakes, then the abstraction of the defendant Sanitary District causing an additional lowering is so much the more serious. The contribution to the lowering of the lakes by the deepening of the St. Clair River is practically nothing, as shown by the annual report of the Chief of Engineers for 1900. A contrary allegation appearing on page 92 of Answer of Sanitary District can only be based upon the Wisner Report of Oct. 12, 1911 to Board of Trustees of Sanitary District. Mr. Wisner in his report on the Deep Water- way on pages 280 and 297 stated that he had learned that the deepening of the St. Clair Channel had lowered Lake Huron about one foot, the basis of that report being the probability of such a lowering as stated in the report of the Chief of Engineers for 1899. However, Colonel Leydecker, in charge of the United States Lake Survey, stated in the annual report of the Chief of Engineers for 1900 that he much regretted that this incorrect statement had ap- peared in his previous year’s report, and that a long and thorough investigation during the intervening year, of which the results were published on pages 5320 to 5401 of the Annual Report of the Chief of Engineers for 1900, showed conclusively that the lowering of lake Huron could not have been produced ‘by any changes in the St. Clair and Detroit Rivers. / However, it needs ow argument to show,that a lowering of the lake level by six inches constitutes an unreasonable and substantial obstruction to navigation. VI. THERE IS A WELL DEFINED DIVIDE BETWEEN THE GREAT LAKES AND MISSISSIPPI WATERSHEDS. Some attempt has been made by the defendants to@imply that there is not and never has been any well defined divide between the Pr 0 —————— =< —s LW ae. ame Mississippi and Great Lakes watersheds and that the waters of the Great Lakes System at times run into and mingled with the waters of the Mississippi system. There is a well defined divide of at least eight feet in height between the two watersheds. For legal purposes, it can make no difference whether the divide is eight feet or eight thousand feet in height. General Wilson, in the Annual Report of Chief of Engineers of 1868, at page 440, says: “About thirteen miles southwest of the mouth of the Chicago River is a depression of a mile or more in width * * * through which a part of the waters of the ™es Plaines River in times of flood flow into the lake.” General Wilson goes on to state that the surface of Lake Michigan is between eight and fourteen feet below the summit of this de- pression. Lake Michigan has never been known to rise to such a height. Consequently it is clear that in a state of nature all of the waters of the Chicago and Calumet Rivers always flowed into Lake Michigan, that the waters flowing into this depression in times of flood were a part of the Upper Des Plaines River waters flowing out of the Illinois or Mississippi basin into the Great Lakes basin, and that none of the waters of the Chicago River ever flowed into the Mississippi basin. pa ee VII. THE COMPLAINT AND FACTS PRESENT NOT ONLY THE ABSTRACTION BY AN UPPER RIPARIAN STATE OF ALL OF THE WATERS OF AN INTERSTATE WAT- ERCOURSE ORIGINATING WITHIN ITS OWN BORD- ERS BUT THE CASE OF A STATE, BY REVERSING THE FLOW OF THAT PART OF THE WATERCOURSE WITHIN ITS BORDERS, THROUGH THE AGENCY OF NATURAL LAWS, ABSTRACTING WATERS OF SUCH WATERCOURSE WHICH ORIGINATED IN LOWER RIPARIAN STATES AND PERMANENTLY DIVERTING THEM FROM THE WATERSHED. The defendant is claiming the right to abstract and appropriate the waters of the Chicago and Calumet plus eighty-five hundred cubic second feet from Lake Michigan, plus the domestic pumpage from Lake Michigan, which amounts to an additional 1,200 cubic second feet and which, instead of being returned to the lake, is diverted into the Sanitary Canal. (See Report of Major Putnam, Appendix I, to this brief.) Iilinois has less than seven per cent of the total area of the lake, and it contributes hardly three per cent of the total rainfall in the Lake Michigan basin or of the outflow of water from Lake Michigan and Lake Huron. Report of Major Putnam, November 1, 1923, page 66, as distributed by the Secre- tary of War. Prior reports have estimated the low water flow of the Chicago River at from six hundred to eight hundred cubic second feet. The flow of the Des Plaines is little larger. There are no other streams of appreciable size flowing into the lake in Illinois. It is obvious that the State of Illinois and the Chicago Sanitary District are asserting the right not only to appropriate all of the waters of an interstate watercourse originating within the borders of the State of Illinois, but through the agency of natural laws to appropriate and abstract the waters of that watercourse originating in the lower riparian states. , > aad oe G...- - VHIL. THE IMMINENT NATIONAL CONCERN WHICH AT- TACHED AND ATTACHES TO THE CHICAGO AB- _ STRACTION ARISES FROM THE LOWERING OF THE LEVELS OF THE GREAT LAKES AND NOT FROM THE INTERESTS OF CHICAGO AND ILLINOIS IN OBTAIN- ING THESE WATERS FOR SANITATION OR POWER PURPOSES. It is obvious that the matter of national concern in connection with this abstraction is the interference by a state with the natura! levels of the Great Lakes-St. Lawrence Waterways. Sanitary Dis- trict of Chicago v. United States, 266 U. S. 405, 46 Sup. Ct. 176, 69 L. Ed. 352. The United States generally has no interest in the sanitation needs, real or imaginary, or the power desires of Chicago or Illinois, sc long as they do not interfere with the rights of others. The defendants attempt to give their acts the status of an imminent national concern because their acts through the operation of natural laws affect a wholly different matter which was and is an object of such national concern. . IX. THE VARIOUS PERMITS GRANTED BY DIFFERENT SECRETARIES OF WAR WERE NOT IN AID OF NAVIGATION. A casual reading of the applications for various permits requested by the Sanitary District of Chicago, the decisions of the various secretaries of war, and the various permits actually issued discloses conclusively that such permits were not only not granted in aid of navigation but were reluctantly given in any degree because of the fact that they were injurious to navigation. In the letter of Secre- — tary of War Weeks to the President of the Board of Trustees of the Sanitary District of Chicago accompanying the permit under which the defendants now claim, and bearing date March 3, 1925, it is said : “This department has always held and continues to hold that the taking of an excess amount of water for sanitation at Chicago does affect navigation on the Great Lakes adversely, and that this diversion of water from Lake Michigan should be reduced to rea- sonable limits with utmost dispatch.” See Appendix I to this ’ brief. . In the recommendation of General Taylor, Chief of Engineers, upon which the permit of March 3, 1925 is based, he states in com- menting upon one of the conditions attached to that permit as fol- lows: “And the proposed construction is the first stage in a programme which will permit the ultimate reduction of the water diverted to 4,167 cubic feet per second or lower if treatment plants are in- stalled.” ~ Again, General Taylor states in his recommendation as follows: “It is, of course, highly desirable that the excessive diversion _of water from Lake Michigan be reduced to reasonable limits with the utmost dispatch. For humanitarian reasons, it is impractical to make. the desired reductions instantaneously * * *,” ‘ In the Warren report of August 30, 1919 as concurred in No- vember 9, 1920 by the Chief of Engineers in the Annual Report of the Chief of Engineers for 1920, at page 95, it is said: ~ “If conditions could be restored to those existing in 1890, and the city of Chicago should ask permission to divert water for use in such a sewage disposal system as they now have, the request would and should be refused. It would undoubtedly appear that the benefits to be obtained would not be commensurate with the damage which would be caused. If the question were to be de- —, ro cided solely on the basis of the most econouacal use of the waters of the Great Lakes the solution would involve restriction of the division to the amount required for purposes of navigation, and adoption of other methods of sewage disposal.” From all the documents relating to the various permits issued by the Secretary of War for different diversions by the defendants and particularly the present permit of March 3, 1925, it is obvious that such permits were not in aid of navigation but were given merely 1s a modus vivendi of handling a situation in which the defendant Sanitary District had wilfully placed the people of Chicago. ». ing THE EARLY ACTS OF CONGRESS WERE FOR A SUMMIT LEVEL CANAL. The acts of Congress of 1822 and 1827 provided merely for a summit level canal, which of course did not contemplate or au- thorize any abstractions from Lake Michigan. Moreover, these acts had no relation to the present canal. The Boundary Waters Treaty of 1909 had and has no connection with the Sanitary Canal. Claim is made that the Boundary Waters Treaty authorizes the Sanitary Canal abstraction. At the time this treaty was made the federal government was maintaining suit to enjoin the illegal acts of the defendant Sanitary District. Chicago Sanitary District. v. United States, 266 U. S. 405, 46 Sup. Ct. 176, 69 L. Ed. 352. De- fendants refer to preliminary reports which were not embodied in the treaty. The only diversions which were considered as the treaty was actually made were with reference to power developments al- ready in existence or under completion around Niagra Falls. The figures show that the computations were based upon the capacities of these plants without reference to the Chicago abstraction. In- ternational Waterway Commission Public Reports 1905, 1906, 1907. _ Moreover only legal diversions could be recognized. a ; Under a construction of the facts most favorable to the defendant’s contention no diversion in excess of 4,167 cubic second feet could have been authorized. The federal government has given a practical construction to the treaty to the effect that it did not authorize the claimed right of abstraction of these waters by the defendant Sani- tary District. This is conclusively shown by the fact that the ‘federal government successfully maintained a suit to prevent such abstraction as is now claimed as a matter of right under the treaty. Sanitary District of Chicago v. United States, 266 U. S. 405, 46 Sup. Ct. 176, 69 L. Ed. 352. A axis XI. NATIONAL ECONOMIC LOSS IN POWER DEVELOPMENT. It appears from the testimony in Sanitary District Chicago Vv. United States, 266 U. S. 405, 46 Sup. Ct. 176, 69 L. Ed. 352, that the diversion of ten thousand cubic second feet of water at Chicago is capable of producing about thirty thousand horsepower of electric energy at Lockport, although the average production has been about twenty thousand horse-power. The greatest possible development of power from this source, from Lake Michigan to the Mississi: i River, will not exceed eighty thousand horsepower. As against this, engineers have computed that this ten thousand cubic second feet of water, if permitted to flow through its natural channels down the Niagara River and into the St. Lawrence would produce not less than five hundred thousand horsepower of electric energy. The mere statement of these facts is sufficient to disclose the immense economic loss caused by the Chicago abstraction to the people of the United States and Canada, in the way of development of electric power. te on _ os — ee ee a. Ss POINTS AND AUTHORITIES. a THE COMPLAINT PRESENTS A JUSTICIABLE CON- TROVERSY WITHIN THE ORIGINAL JURIS- TION OF THIS COURT. Constitution of the United States, Article III, Section 2. Missouri V. Illinois, 180 U. S. 208, 241, 21 Sup. Ct. 331, 45 L. Ed. 497. Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, 27 Sup. Ct. 618, 51 L. Ed. 1038. ; North Dakota v. Minnesota, 263 U. S. 365, 373, 44 Sup. Ct. 138, 68 L. Ed. 342. Kansas v. Colorado, 206 U. S. 46, 97-98, 27 Sup. Ct. 655, 51 L. Ed. 356... Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838. Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 14 L. Ed. 249. Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed. 999. Missouri v. Illinois, 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed. 572. So. Carolinia v. Georgia, 93 U. S., 4, 23 L. Ed. 782. New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937. | Pennsylvania v. West Virginia, 262 U. S. 553, 591, 43 Sup. Ct. 658, 67 L. Ed. 1117. Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. €58. Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239. ; Oklahoma v. A. T. & S. F. Co., 220 U. S. 277, 31 Sup. Ct. 434, 55 L. Ed. 465. on en New Hampshire v. Lousiana, 108 U. S. 76, 2 Sup. Ct. 176, 27 L. Ed. 656. Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842. ].ouistana v. Texas, 176 U.S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347. / Il. THE COMPLAINING ‘STATES HAVE SUBSTANTIAL LEGAL INTERESTS WITH CORRESPONDING IN- JURIES INVOLVED IN THIJS CONTROVERSY / WHICH ENTITLE THEM TO MAINTAIN THIS SUIT. 1. The complaining states have a proprietary interest in the waters of the Great Lakes and connecting waters within their re- spective borders, which they have the right and duty to protect. Martin v. Waddell, 16 Peters 367, 410, 10 L. Ed. 997. Port of Seattle v. Oregon & Washington Rwy. Co., 255 U. S. 56, 41 Sup. Ct. 237, 65 L. Ed. 500. , Parney v. Keokuk, 94 U. S. 324, 338, 24 L. Ed. 224. Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. McCready v. Virginia, 94 U. S. 391, 394, 24 L. Ed. 248. Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331. Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565. | Manchester v. Mass., 139 U. S. 240, 11 Sup. Ct. 559, 35 L. Ed. 159. Ill. Cent. Rwy. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 _ L. Ed. 1018. Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. 529, 52 L. Ed. 828. Hoge v. Eaton, 135 Fed. 411, 414. Farnham on Waters, (1904) Vol. 1, pp. 29, 602. Holyoke Water Power Co. v. Conn. River Co., 20 Fed. 71. Pine v. New York, 112 Fed. 98. Ay ham / —25— U. S. v. Rio Grande Dam & Irrig. Co., 174 U. S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136. ; Moore, History of The Foreshore (3d ed.) (1888), 370-413. Hargrave’s Law Tracts (1787) pp. 11-12, 25-36. Hall, The Seashore, (2d ed.) (1875) pp. 1-9. Hale, De Partibus Maris, 84-89. Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 35. Ed. 159. Mumford v. Wardwell, 6 Wall. 423, 18 L. Ed. 756. St. Anthony Falls Water Power Co. v. Commissioners, 168 U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497. Mobile Transp. Co. v. Mobile, 187 U. S. 479, 23 Sup. Ct. 179, 47 L. Ed. 266. Ctbson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 996. Georgia v. Tennessee Copper Company, 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038. Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 342. Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed. 999, New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937. Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331; 45 L. Ed. 497. Pennsylvania v. West Virginia, note in 43 Sup. Ct. 658, 669. 2. The actions of the State of Illinois and its agents, of which the bill complains, constitute an injury to the complaining states in their quasi-sovereign capacity, wholly distinct from the injuries to their citizens; and they are entitled to maintain this suit in this court to vindicate quasi-sovereign rights. Georgia v. Tennessee Copper Company, 206 U. ‘Ss. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038. Hudson’ Water Company v. McCarter, 209 U. S. 349, 355, 357, 28 Sup. Ct. 529, 52 L. Ed. 828. North Dakota v. Minnesota, 263 U. S. 365, 44 Sup. Ct. 138, 139, 68 L. Ed. 342. = es Pennsylvania v. West Virginia, 262 U. S. 553, 592, 43 Sup. Ct. 658, 67 L. Ed. 1117. New York v. New Jersey, 256 U. S. 296, 494, 41 Sup. Ct. 492, 65 L. Ed. 937. North Dakota v. M innesota, 263 U. S. 365, 374, 44 Sup. Ct. 138, 68 L. Ed. 342. | Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497. Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838. Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed. 999 Pennsylvania v. Wheeling & B. Bridge Co., 9 How. 647, 13 L. Ed. ~ 294, 11 How. 528, 13 L. Ed. 799, 13 How. 518, 14 L. Ed. 249, 18 How. 421, 15 L. Ed. 435. _ South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782. 3. The complaining states have a right to maintain this suit in their private capacities as owners of public works and public prop- erty. Pennsylvania v. Wheeling Bridge Co., 13 How. 518, i4 L. Ed. 249. Pennsylvania v. West Virginia, 262 U. S. 553, 43 Sup. Ct. 658, 67 L. Ed. 1117. : Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. Georgia v. Tennessee Copper Co., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038. 4. The complaining states have a standing to maintain this suit as parens patriae to protect their people. Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 33645 L. Ed. 497. North Dakota v. Minnesota, 263 U. S. 365, 375-376, 44 Sup. Ct. 138, 68 L. Ed. 342. New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937. on Pennsyivania v. West V ‘rginia, 262 U. S. 553, 43 Sup. Ct. 658, 67 L. Ed. 1117. +4 i. Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838. 5. While a state may not maintain an action solely to vindicate the freedom of commerce in the role of a mere volunteer, where the action of another state violating the freedom of commerce inflicts special injury on the state in its proprietary or quasi-sovereign capa- city, Or as parens patriae of its people, it can maintain an action to enjoin such act, not as an academic vindication of the freedom of commerce but as a redress of it injuries in the capacities napet. Louisiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347. Western Union Telegraph Coinpany v. Attorney Generel of Massa- chusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790. Williams v. Talladega, 226 U. S. 404, 415, 416, 33 Sup. Ct. 116, 57 L. Ed. 275. Pemrsylvania v. West Virginia, 262 U. S. 553, 591, 43 Sup. Ct. 658, 67 L. Ed. 1117. Pennsylvania v. Wheeling Bridge Company, 13 How. 518, 578, 14 L. Ed. 249. a issouri v. Illinois, 200 U. S 496, 26 Sup. Ct. 268, 50 L. Ed. 572. 6. The bill does not ask the court to regulate navigation or to supervise long continuing acts. United States v. Rio Grande Dam & Irrigation Company, 174 U. S. 706, 19 Sup. Ct. 770, 43 L. Ed. 1136. III. THE UNITED STATES AND SISTER STATES ARE NOT INDISPENSABLE PARTIES. State of California v. Southern Pacific C ompany, 157 U. S. 229, 249, 15 Sup. Ct. 591; 39 L. Ed. 683. Shields v. Barrow, 17 How. 130, 139, 15 L. Ed. 158. —28— {. Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937. W’yoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed. 999. Kawananakoa v. Poly Blank, 205 U. S. 349, 27 Sup. Ct. 526, 51 L. Ed. 834. Kansas v. United States, 204 U. S. 331- 341, 27 Sup. Ct. 388, 57 L. Ed. 510. Mechanics Bank v. Seton, 1 Pet. 229, 306, 7 L. Ed. 152. Osborn v. United States Bank, 9 Wheat. 7 38, 6 L. Ed. 204. Sanitary District of Chicago v. United States, 266 U. S. 405, 431, 45 Sup. Ct. 176, 69 L. Ed. 352. IV. THE BILL OF COMPLAINT IS NOT MULTIFARIOUS Heckman et al. v. United States, 224 U. S. 413, 448, 32 Sup. Ct. 424, 56 L. Ed. 820. Risley v, Utica, 173 Federal 502. Virginia-Carclina Chemical Co. v. Home Insurance Co., 113 Fed. 1. V. THE STATE OF ILLINOIS WAS AND IS WITHOUT POW- ER TO APPROPRIATE AND ABSTRACT THE WA- TERS OF THE GREAT LAKES AND CONNECTING WATERS IN DEFIANCE OF RIGHTS OF THE COMPLAINING STATES. 1. The ¢.mmon law of waters has been generally adopted in the United States and obtains in the defendant and complaining states. United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, \ ee Canton v. Schock, 66 Ohio St. 19, 63 N. E. 600. Burke v. Simonson, 104 Ind. 173, 2 N. E. 309. Stock v. Jefferson, 114 Mich. 357, 72 N. W. 132. Amsterdam Knitting Co. v. Dean, 43 N. Y. St. 21, affirmed 56 herders, the complaining states have a right to the natural flow of — 702, 19 Sup. Ct.-770, 774, 43 L. Ed. 1136. Kimberly & Clark Co. v. Hewitt, 79 Wis. 334, 337, 44 N. W. 303. Priewe v. Wisconsin State Land and Improvement Co., 93 Wis. 534, 67 N. W. 918. Cedar Lake Hotel Co. v. Cedar Lake Hydraulic Co., 79 Wis. 297, 48 N. W. 371. Wiliams v. Bass, 179 Wis. 364, 191 N. W. 499. Evans v. Merriweather, 4 Ill. (3 Scam.) 492, 38 Am. Decisions 106. Barrett v. Mt. Greenwood Cemetery Association, 159 Il. 385, 42 N. E. 891. Village of Dwight v. Hayes, 150 Ill. 237, 37 N. E. 218. Plumleigh v. Dawson, 6 Il. (1 Gilman) 544. Dayton v. Commissioners, 128 Ill. 271, 21 N. E. 198. Bliss v. Kennedy, 43 Ill. 67. Minnesota Loan & Trust Co. v. St. Anthony Falls Water Power C G., 82 Minn. 505, 85 N. W. 520, 523. Miller v. Miller, 9 Pa. 74, 49 American Decisions 545. Clark v. Pennsylvania R. R. Co., 145 Pa. St. 438, 77 Atl. 989. Columbus and H. Coal & Iron Co. v. Tucker, 48 Ohio St. 41, 57, 26 N. E. 630. Mansfield v. Balliett, 65 Ohio St. 451, 63 N. E. 86, 58 L. R.A. 628, 633. N. E. 757, 162 N. Y. 278. Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142. Rossmiller v. State, 114 Wis. 169, 186, 89 N. W. 839. Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 426, 84 N. W. 855. Pewaukee v. Savoy, 103 Wis. 271, 274, 79 N. W. 426. 2. As proprietors of the waters of the Great Lakes within their r \ | aatatnariinetion ee ; — = the waters in such watershed and to all the waters coming naturally to them, to the end that the waters of the Great Lakes shall be pre- served in their navigable capacity and at their natural level and con- dition for all uses and purposes. Hudson County Water Co. vy. McCarter, 209 U. S. 349, 356, 28 Sup. Ct. 529, 52 L. Ed. 828 McCarter v. The Hudson Water Co., 70 N. J. Equity 695, 718-719, Farnham on Waters (1904) Vol. 1, p. 29, Hoge v. Eaton, 135 Fed. 411, 414, Holyoke Water Power Co. Vv. Connecticut River Co., 52 Conn. 570, 22 Blatchf. 131, 20 Fed. 71. Pine v. New York, 50 C. C. A. 145, 112 Fed. 9. 8 Kansas v. Colo., 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838. U.S. v. Rio Grande, 174 U. S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136. 3. An upper state through which flows or on which borders an interstate stream oF watercourse, cannot appropriate the waters thereof in defiance of the tights of a lower state; such appropri- ation will be enjoined by the court; and in determining the fair use of such interstate waters, the upper state cannot complain if its rights are measured by its own law of waters. Applying that rule, as the most favorable to Illinois which she could possibly demand, her asserted right to abstract the waters of the Great Lakes fails. Kansas v. Colo., 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. Wyoming v. Colorado, 259 U. S. 419, 466, 42 Sup. Ct. 552, 66 L. Ed. 660. Hudson County Water Company v. McCarter, 209 U. S. 349, 356, 28 Sup. Ct. 529, 52 L. Ed. 928 _Pine v. New York, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ea. 820. Economy Light and Pr. Co. v. U. S., 256 U. S. 113, 41 Sup. Ct. 409, 65 L. Ed. 847. Farnham on Waters, Vol. 1, page 59, Hyde on International Law (1922) Vol. 1, pp. 315-316. Holyoke Water Power Co. v. Conn. River Co., 20 Fed. 71. Lf —3]—. 4. Since a state has no power to abstract all of the waters of an interstate watercourse in defiance of lower riparian states, clearly Illinois has no right to not only abstract all.of the waters of such % watercourse within its own boundaries, but by reversing the flow of that part of the watercourse within its borders, to abstract waters of such waterccurse which originate in lower riparian states and permanently divert them from the watershed. Kansas v. Colorado, 206 U. S. 117, 27 Sup. Ct. 655, 46 L. Ed. &38. Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed. 660. Pine v. New York, 185 U. S. 93, 22 Sup. Ct. 519, 46 L. Ed. 820. Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. 529, 52 L. Ed. 828, Holyoke Water Power Co. v. Connecticut River Co., 20 Fed.’ 71, 5. The various acts of the Illinois Legislature purporting to authorize the Sanitary District of Chicago to abstract waters from lake Michigan were unconstitutional and void. These acts assumed to control and appropriate the waters of a national and international waterway. Moore v. American Transportation Co., 24 Howard 1, 16 L. Ed. 674. , The Propeller Genesee Chief, 12 Howard 443, 13 L. Ed. 1058, / U.S. v. Chandler-Dunber Water Power Co., <29 U. S. 53, 33 Sup. Ct. 667, 57 L. Ed. 1063. Sanitary District of Chicago v. United States, 266 U. S. 405, 426. 45 Sup. Ct. 176, 69 L. Ed. 352. Rurke v. Snively, 208 Il. 328, 70 N. E. 327. Separate Section 3, Constitution of Illinois, 1870. Ordinance of 1787. Economy L. & Power Co. v. U. S., 256 U. S. 113, 41 Sup. Ct. 409, 65 L. Ed. 847. a VI. IT IS NOT CONSIDERED THAT CONGRESS HAS POWER TO AUTHORIZE THE ABSTRACTION OF THE WA. TERS OF THE GREAT LAKES FROM THAT WATER. SHED AS A FEDERAL ACT, FOR ANY PURPOSE. COMPLAINANTS, HOWEVER, IN THIS ACTION, DO NOT NOW ASK AN INJUNCTION AGAINST ANY AB. STRACTION REASONABLY NECESSARY FOR NAVI. GATION PURPOSES WHICH WILL NOT BE IN EX. CESS OF 500 CUBIC SECOND FEET AT PRESENT, OR EVER IN EXCESS OF 1,000 CUBIC SECOND FEET—THE ATTITUDE OF THE COMPLAINING STATES BEING EXPLAINED BY LEGISLATIVE RESOLUTIONS AP. PEARING AS APPENDICES TO THIS BRIEF. 1. The constitutional power over navigable waters construed in the light of history and the common law, does not extend to the abstraction of the waters of one watershed for the benefit of an- other. Kansas v. Colorado, 206 U. S. 46, 94-95, 27 Sup. Ct. 655, 51 L. Ed. 956. Cdgers, Common Law of England, Vol. I, pp. 590-594. 2. In any event, the acts of Congress for improvement of navi- gation must be reasonably appropriate to that end. The acts of Congress in contro! and improvernent of navigation under the com- merce clause of the federal constitution must be reasonably ap- propriate to the ends of navigation and not arbitrary or capricious or for any other purpose, such as the sanitation needs, real or imaginary, or the power desires of another state or city. It cannot, under the guise of the power to regulate interstate Commerce, arbi- trarily destroy the rights of riparian owners or the proprietary rights of littoral states without any object not really related to navigation. a . Woodruff v. North Bloomfield Gravel Mining Co., 18 Fed. 753, 778, 779. ’ Barney v. Keokuk, 94 U. S. 324, 342, 24 L. Ed. 224. Burlington Gas Light Co. v. Burlington, etc. Rwy. Co., 165 U. S. 370, 17 Sup. Ct. 359, 41 L. Ed. 749. Muhlker v. N. Y. & Harlem R. R. Co., 197 U. S. 544, 25 Sup. Ct. 522, 4° L. Ed. 872. . Sauer v. City of New York, 206 U. S. 536, 27 Sup. Ct. 686, 51 L. Ed. 1176. 3. If Congress can appropriate these waters in any amount, it can do so only for the promotion of navigation, and then only to the extent reasonably necessary therefor; and the court will enjoin abstractions admittedly in excess thereof. Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. New York v. New J.rsey, 265 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937. U.S. v. Rio Grande Dam & Irrigation Co., 174 U. S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136. 4. If such an appropriation oi the waters of one or more of the states, to their injury, were otherwise valid, the act would still violate Article I, Section 9, Clause 6 of the federal constitution. Art. I, Sec. 9, Clause 6, U. S. Constitution. Pennsylvania v. Wheeling Bridge Co., 18 How. 421, 15 L. Ed. 435. So. Caroling v. Georgia, 93 U. S. 4, 13, 23 L. Ed. 782. a VII. ASSUMING THAT CONGRESS COULD AUTHORIZE SUCH AN ABSTRACTION OF THE WATERS OF THE GREAT LAKES AS TO IMPAIR THEIR NAVIGA- BLE CAPACITY, IT HAS NEVER DONE SO. 1. The Act of Congress of March 2. 1827, does not authorize the abstraction of the waters of the lakes. 4U. S. Stats. at L. 234. The Sanitary District of Chicago v. U. S., 266 U. S. 405, 45 Sup. Ct. 176, 69 L. Ed. 352. 2. The permit of the Secretary of War issued March 3, 1925, does not purport to authorize any abstraction of the waters pf the Great Lakes which would injure their navigable capacity. f Louisville Bridge Co. v. U. §., 242 U. S. 409, 37 Sup. Ct. 1%, 61 L. Ed. 395. 3.0: Chandler-Dunbar Water Power Co., 229 U. S. 53, 33 Sup. Ct. 667, 57 L. Ed. 1063. War is claimed to authorize obstruction of the waters of the Great Takes in excess of the amount needed for navigation, it would be ‘clearly unauthorized by said act. Section 10 of the Rivers and Harbors Act of March 3, 1899 (30 Stats. at L. 1151). Hubbard v. Fort, 188 Fed. 987, 992, 993. 996-997, 998-999. Sanitary District of Chicago v. United States, 266 U. S. 405, 431. 69 L. Ed. 352. v —35— VIII. IF THE RIVERS AND HARBORS ACT ATTEMPTS TO AUTHORIZE ABSTRACTION OF WATERS OF THE GREAT LAKES WITHOUT REGARD TO THE INJURY TO THEIR NAVIGABLE CAPACITY AND NOT TO PRO- MOTE NAVIGATION, BUT FOR THE SANITATION AND POWER DESIRES OF ILLINOIS, IT IS UNCON- STITUTIONAL AND VOID. Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. Woodruff v. North Bloomfield Gravel Mining Co., 18 Fed. 753, 778. Senitary District of Chicago v. United States, 226 U. S. 405, 431. 45 Sup. Ct. 176, 69 L. Ed. 352. United States v. River Rouge Improvement Co., 46 Sup. Ct. 144, 70 L. Ed. 148. | Illinois Central Rwy. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018. gas of Seattle v. Oregon Rwy. Co., 255 U. S. 56, 41 Sup Ct. 237, 5 L. Ed. 500. Alabama v. Gulf Power Co., 283 Fed. 606. New Jersey v. Sargent, 46 Sup. Ct. 122, 70 L. Ed. 177 (Advance Sheets ). Art. I. Sec. 9, Clause 6, U. S. Constitution. IX. ASSUMING THE PERMITS CF THE SECRETARIES OF WAR TO BE VALID PURSUANT TO CONGRESSIONAL AUTHORITY FOR THE ABSTRACTION OF THESE WATERS SO FAR AS RELATES TO THE OBSTRUC- TIGN OF NAVIGABLE CAPACITY (WHICH WE DO NOT CONCEDE), THESE PERMITS ARE NO DEFENSE TO THIS BILL. 30 U. S. Stats. at L. 1121. United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, eR 33 Sup. Ct. 667, 57 L. Ed. 1063. Hubbard v. Fort, 188 Fed. 987, 999, Cobb y. Commissioners of Lincoln Park, 202 Ill. 427, 439-440, 67 N.E. 5. Wilson v. Hudson County Water Co., 76 N. J. Eq. 543, 558, 76 Atl. | 560. Attorney General ex rel. Becker v. Bay Boom W. R. & F.C 0., 172 | Wis. 363, 376, 178 N.W. 569. Thlinket Packing Co. v. Harrison C 0., 5 Alaska 471. Columbia Salmon Co. y. Berg, 5 Alaska 538, New York v. New Jersey, 256 U.S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937. "4 International Bridge Co. v. New York, 254 U. S. 126, 132, 41 Sup. . Ct. 56, 65 L. Ed. 176, X. THE DOCTRINE, THAT IN MATTERS WHERE THE NA- TIONAL CONCERN IS IMMINENT AND DIRECT, THE STATES MAY NOT ACT AT ALL, EVEN WHEN CON- GRESS HAS BEEN SILENT, IS NO DEFENSE TO THIS BILL. Sanitary District of Chicago v. United States, 266 U. S. 405, 426, 45 Sup. Ct. 176, 69 L.Ed. 352 Kansas City So. R. R. Co. v. Kaw Valley Drainage District Co., 233 U. S. 75, 79, 34 Sup. Ct. 564, $8 L. Ed. 857, x1 | | THE BOUNDARY WATERS TREATY OF 19099 IS NO, AUTHORITY FOR THE ACT OF THE DEFENDANTS: ON THE CONTRARY, IT FORBIDS THE ACT | Sanitary District of Chicago v. United § tates, 266 U.S. 405, 45 Sup. Ct. 176, 69 L. Ed. 352. 1 a XII. THE COMPLAINANTS ARE NOT ESTOPPED BY THE FORMER PLEADING N. Pacific R. R. Co. vy. Slaght,-205 U. S. 122, 27-Sup. Ct. 442, 51 L. Ed. 738. Strathleven Steamship Co, v. Baulch, 244 Fed. 412. 21 C. J. 1234, XIII. OTHER TECHNICAL OBJECTIONS TO THIS BILL ARE WITHOUT MERIT Supreme Sitting O. of I. H. v. Baker, 134 Ind. 293, 33 N.E. 1128, 20 L. R. A. 210. | *. Norfold, ete. R. Co. v. Sutherland, 105 Va. 545, 55 S. E. 456. 31 Cyc. 463. x Turner v. Roundtree, 30 Ala. 706. Briscoe v. Bank of Kentucky, 11 Peters, 257, 9 L. Ed. 709. Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct: 552, 46 L. Ed. 838. Virginia v. West Virginia, 220 U. S. 1, 31 Sup. Ct. 330.'5§ L. Ed. 353, 357. : i, ARGUMENT a THE COMPLAINT PRESENTS A JUSTICIABLE CON-: TROVERSY WITHIN THE ORIGINAL JURIS- DICTION OF THIS COURT. The pertinent provision of the constitution is Section 2 of Article III of the Constitution of the United States, which, so far as being material, reads as follows: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, * * * to Controversies between two or more states ;—be- tween a State and Citizens of another State; * * *, “In ali Cases * * * in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme”Court shall have appellate Juris- diction, both as to Law and Fact. with such Exceptions, and under such Regulations as the Congress shall make.” This court has laid down the rule generally with respect to original jurisdiction of actions between states of the Union that wherever a controversy betw-en states is of such a nature that, if the states wefe independent, the controversy would become the subject of diplomatic representations with the right to resort to force in the event of a failure cf diplomatic representations, the case is one which is justicable in this court in its original jurisdiction. The original jurisdiction of this court in such matters was intended to take the place of the right of one state of the Union to vindicate its wrongs at the hands of another state by negotiation and force, which rights were surrendered by the states upon the adoption of the federal constitution. In Missouri v. Illinois, 180 U. S. 208, 241, 21 Sup. Ct. 331, 45 L. Ed. 497, this court said: “An inspection of the bill discloses that the nature of the injury Somplained of is such that an adequate remedy can only be found \ i — ‘ —39— in this court at the suit of the state of Missouri. It is true that no question of boundary is involved, nor of direct property rights be- longing to the complainant state. But it must surely be conceded that, if the health and comfort of the inhabitants of a state are threatened, the state is the proper party to represent and defend them. If Missouri were an independent and sovereign state, all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latcer would be devolved the duty of pro- viding a remedy arg! that remedy, we think, is found in the con- stitutional provisions we are considering. “The allegations of the bill plainiy present such a case. The health and comfort of the large communities inhabiting those parts of the state situated on the Mississippi River are not alone con- cerned, but contagious and typhoidal diseases introduced in the river communities may spread themselves throughout the territory of the state. Moreover, substantial impairment of the health and rosperity of the towns and cities of the state situated on the Mississippi River, including its commercial metropolis, would, in- juriously affect the entire state, “That suits brought by individuals, each for personal injuries, threatened or received, would be wholly inadequate and dispro- portionate remedies, requires no argument.” In Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, 27 Sup. Ct. 618, 51 L. Ed. 1038, this court said: “When the states by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court.” In North Dakota v. Minnesota, 263 U. S. 365, 373, 44 Sup. Ct. 138, 68 L. Ed. 342, this court in discussing its orginal jurisdiction in controversies between states of the Union, said: “The jurisdiction is therefore limited generally to disputes which, between states entirely independent, might be properly the subject ee ees ermine . —40— of diplomatic adjustment. They must be suits ‘by a state for an° injury to it in ifs capacity of quasi-sovereign. “In that capacity the state has an interest independent of and Aekind the titles of its citizens, in all the earth and air of its domain,’ ” In Kansas vy. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838, this court passed upon a demurrer to the complainant charging the state of Colorado with appropriation of waters of an interstate river in violation of the rights of the state of Kansas and its citizens and praying for injunctive relief against such appropriation of waters of the interstate water course. In discussing the justicable character of that suit at page 140, the court said: — “Undoubtedly as remarked by Mr. Justice Bradley in Hans y. Louisiana, 134 U. S. 1, 15, the Constitution made some things justicable, ‘which were not known as such at the common law; such, for example, as controversies between states as to boundary lines, and other questions admitting of judicial solution,’ And as the remedies resorted to by independent states for the determina- tion of controversies raised by collision between them were with- drawn from the states by the Constitution, a wide range of mat- ters, susceptible of adjustment, and not purely political in their " nature, was made justicable by that instrument.” Again at page 145 it was said: “Without subjecting the bill to minute criticism, we think its averments sufficient to present the question as to the power of one 4 state of the Union to wholly deprive another of the benefit of water from a river rising in the former and, by nature, flowing into and through the latter, and that, therefore, this court, speak- ing broadly, has jurisdiction. “We do not pause to consider the scope of the relief which it might be possible to accord on such a bill. Doubtless the specific prayers of this bill are in many respects open to objection, but there is a prayer for general relief, and under that, such appro- priate decree as the facts might be found to justify, could be entered, if consistent with the case made by. the bill, and not in- consistent with the specific prayers in whole or in part, if that je, sll were also essential. Tayloe v. Merchants’ Insurance Company, 9 How. 390, 406; Daniell, Ch. Pr. (4th Am. ed.) 380.” - The court then took the broad ground that the technicalities of the pleading which obtained in ordinary suits between private par- ties had no relation to controversies, practically international~in character, stripped the controversy of all technicalities, brushed - aside all defects in the bill and found that since there, was a robust controversy between two states, the court would sit as an interna- tional tribunal and hear the controversy without even attempting a close analysis of the bill to discover whether or not it contained im- perfections or inadequacies of statement. At page 146, it was said: “Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal law, state law, and international law, as the exigencies of the particular case may demand, and we are unwilling, in this case, to proceed on the mere technical admissions made by the demurrer. Nor do we regard it as necessary, what- ever imperfections a close analysis of the pending bill may disclose, to compel its amendment at this stage of the litigation. We think Proof shou!d be made as to the * * * circumstances, a variation in which might induce the court to either grant, modify, or deny the oy sought or any part thereof.” \ The complaint relates to the equitable use of interstate waters lying partl \n the complaining states and partly in the defendant State of Illinois. It relates to the alleged right of the State of Illinois to appropriate and abstract the waters of am interstate stream or water- course to the injury of the complaining states, which are lower riparian states upon such interstate stream or watercourse. It re- quires no argument to demonstrate that such a claim of right upon the part of the State of I!linois and action on the part of that state in pursuance of such an asserted right to the injury of the various interests of the complaining states in the waters vt the interstate Stream or watercourse constituting the Great Lakes-St. Lawrence System creates a controversy between the compiaining states and the 42... State of Illinois, which, if such States were independent, would give rise to diplomatic negotiation between such States with the right to resort to force in the event of the failure of amicable adjustment. In Kansas vy. Colorado, 206 U. S. 46, 97-98, 27 Sup. Ct. 655, 51 L. Ed. 956, this court said: “One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each state stands on the same level with all the rest. It can impose its own legislation on no ove of the others, and is bound to yield its own views to none. Yet, whenever, as in the case of Missouri v. Illinois, supra, the action of one state reaches, through the agency of natural laws, into the territory of another State, the question of the extent and the limitations of the rights of the two states becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them.” In this connection we also invite the attention of the court to the following cases: Pennsylvania vy. Wheeling Bridge Co., 13 How. 518, 14 L, Ed. 249; Wyoming ¥. Colorado, 259 U. S. 419, 42 Sup: Ct. 552, 66 L. Ed. 999; Missouri v. Illinois, 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed. 572; So. Carolina v. Georgia, 93 U. S. 4, 23 L. Ea. 782; New: York. v. New. Jersey-256.U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937; / Pennsylvania vy. West Virginia, 262 U. S. 553, 591, 43 Sup. Ct. 658, 67 L. Ed. ny. In:all of these cases the right of a state to maintain an original > — ae —43— the question whether there are rights asserted by the. compiaining states with corresponding injuries which entitle them to maintain this suit as real parties in interest, rather than in the role of volun- teers. However, before passing from this general question of the scope of ‘the jurisdiction of this court in original suits to which states arc parties, we wish to notice briefly the cases relied upon by the de- fendants as-establishing ‘that ‘the court is without jurisdiction of this controversy. The cases-which are relied upon by the defendants in this connection are as follows: Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. 668; Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239; Oklahoma v. A. T. & S. F. Cd., 220 U. S. 27, 31 Sup. ‘Ct. 434, 55 L. Ed. 4655. . New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176, =: 27 L. Ed. 656; Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ea. 842; Lousiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347. The claim that these cases are authority for the denial of juris- diction in this suit cr even that they have any pertinent relation to the maintenance of the suit is perhaps best answered in :the language of this court. In Pennsylvania v. West Virginia, 262 U. S. 553, 592,-43 Sup. Ct. 658, 67 L. Ed. 1117, this court in respect to-a similar subject, said: “The defendant State relies on such cases as New Hampshire v. Louisiana, 108 U. S. 76; Louisiana v. Texas, 176 | SE Kansas v. United States, 204 U. S. 331; Oklahoma vy. Atchison, Topeka & Santa Fe Rwy. Co., 220 U. S. 277, and ‘Texas v. Inter- state Commerce Commission, 258 U. S. 158, 162, but the facts on which they turned, as the opinions show, were so widely different from those here that they are not in point.” ene” ee Nevertheless, we will briefly comment on the cases as follows: In Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. 668, this court assumed jurisdiction, but denied relief because the bill was without equity. In Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239, this court assumed jurisdiction but denied re- lief upon the merits because it was an attempt to enforce extrater- ritorially the penal laws of the plaintiff state. The same situation exists in Oklahoma v. A. T. & S. F. Co., 220 U. S. 277, 31 Sup. Ct. 434, 55 L. Ed. 465. That such was the effect of the decisions in those cases has been heretofore stated by this court. Kansas v. Colorado, 206 U. S. 46, 83, 27 Sup. Ct. 655, 51 L. Ed. 956. The cases of New Hampshire y. Lousiana, supra, and Hans v. Lousiana, Supra, were cases which on the fatts amounted to suits by private individuals against one of the states of the Union in contravention of the 11th Amendment to the Constitution of the United States, forbidding the institution of a suit by any private person against another state of the Union. The decision in Louisiana v. Texas, 176 U. S. 1, 20 Sup. Ct. 251, 44 L. Ed. 347, was clearly explained and its lack of application to a suit such a this definitely stated in the opinion of the court in Kansas v. C olorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956: However, it is a sufficient commentary upon the alleged application of the decision of that case to the instant suit, to state that under the construction of the pleadings and facts adopt- ed by this court, Lousiana was attempting to maintain a suit merely as a volunteer for the vindication of the freedom of interstate com- merce. It requires no argument to demonstrate that upon such a State of facts the complaining state would present no interest in the suit which would entitle it to maintain the same without any regard to the nature of the controversy, since this court will not sit for the Purpose of determining a question which, as to the complainant, is merely academic, involving no right of such compiainant. & a —H5— II, THE COMPLAINING STATES HAVE SUBSTANTIAL LEGAL INTERESTS WITH CORRESPONDING IN- JURIES INVOLVED IN THIS CONTROVERSY WHICH ENTITLE THEM TO MAINTAIN THIS SUIT. l. The complaining states have a proprietary interest in the waters of the Great Lakes and connecting waters within their respec-" tive borders, which they have~the right and duty to protect. It is a well established principle of law that the states in their quasi-sovereign capacities are the owners of all the public waters and the submerged lands within their respective borders. The original states possessed these Proprietary rights at the time of the adoption of the federal constitution and their rights were not sur- rendered to the federal government but were retained in full vigor and effect, subject only to the paramount right of congress to regulate the navigable waters for the Promoiion of navigation and interstate commerce. All subsequent states of the Union upon admission to Statehood acquired the same rights in the waters and submerged lands within their domains as existed, and still exist in the Original States of the Union. _In touching upon this right in the case of Martin vy. Waddell, 16 - Weters 367, 410, 10 L. Ed. 997, the court said: “* * *When the Revolution took place, the people of each state became themselves sovereign; and in that character held the ab- solute right to all their navigable waters, and the soils under them for their own common use, subject only to the rights since sur- rendered by the Constitution to the general government.” In the case of Port of Seattle v. Oregon & Washington Rwy. Co., 255 U. S. 56, 41 Sup. Ct. 237, 65 L. Ed. 500, this court in discussing ies: the proprietary rights of a state in the waters and submerged lands within its borders, said: “The right-of the United States in the navigable waters within the several states is limited to the control thereof for purposes of navigation. Subject to that right, Washington became, upon its organization as a state, the owner of the navigable waters within its boundaries and of the land under the same. (Weber v. Board of Harbor Com., 18 Wall. 57, 21 L. Ed. 798.) By section one of article 17 of its Constitution, the state asserted its ownership in the bed and shore ‘up to and including the line of ordinary high tide in waters where the tide ebbs and flows.’ The extent of the state's ownership of the land is more accurately defined by the decision of the highest court, as being the land below high-water mark, or the meander line, whichever of these lines is the lower. The character of the state’s ownership in the land and in the waters is the full proprietary right. The state, being the absolute owner of the tide lands and of the waters over them, is free in conveyi tide lands either to grant with them rights in the adjoining water area or to completely withhold all such rights.” Again, in Barney v. Keokuk, 94 U. 3. 324, 338, 24 L. Ed. 224, this court. said: “And since this court, in the case of The Genesee Chief v. Fitz- hugh [12 How. 443, 13 L. Ed. 1058], has delnrcd that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the Proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignity, and the United States has wisely abstained from extending (if it could extend) its survey and grarts beyond the limits of high water.” This citation was quoted with approval by this court in Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956. Again, in McCready y. Virginia, 94 U.S. 391, 394, 24 L. Ed. 248, this court said: “The principle has long been settled in this court, that each : \ —47— \ ‘ State owns the beds of all tide-waters within its jurisdiction, un- less they have been granted away. Pollard’s Lessee y. Hagan, 3 How. 212; Smith v. Maryland, 18 How. 74; Mumford v. Ward- well, 6 Wall. 436; Weber v. Harbor Commissioners, 18 Wall. 66. In like manner, the States own the tide-waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 410. The title thus held is subject to. the paramount right of navigation, the regulation of which, in respect to foreign and inter-state commerce, has been granted to the United States.” In that case it was further stated that any states upon admission to the Union acquired the: same: rights in the navigable waters and submerged lands as were and are held by the: original: states. In Snively v. Bowlby, 152 U.S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331, the court quoted Martin v. Waddell, supra, with appreval to the effect that when the revolution took place, the people of each state became themselves sovereign, and in that connection held their ab- solute right to all navigable waters and the soils under them for . their common use, subject only to the rights subsequently surrendered by ‘the Constitution to the general government. The court further pointed out that by common law both the title and the: dominion of the sea and of the rivers and arms thereof. where the-tides ebbed and flowed; and all lands below the high wate. mark within the jurisdic- tion of the Crown of England, were in the King; that upon the American: Revolution, all the rights of the Crown and Parliament in such waters and submerged lands vested in the several states. That such rights in the waters and submerged lands are not limited to tidal waters, but extend to all navigable wate.s of the United States, is pointed out in the opinion of this court in Barney v. Keo- kuk, supra. Other cases and texts which establish and define the proprietary rights of the states of the Union in their quasi-sovereign capacities — 42. in the public waters thereof, and the submerged lands within their ‘lomains, are as follows: Pollard vy. Hagan, 3 How. 212, 11 L. Ed. 565; Manchester vy. Mass., 139 U. S. 240. 1] Sup. Ct. 559, 35 L. Ed. 159; Hl. Cent. Rwy. Co. v. Tilinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1048; Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. 529, 52 L. Ed. 828; Hoge v. Eaton, 135 Fed. 411, 414: Farnham on Waters, (1904) Vol. 1, pp. 29, 602; Holyoke Water Power Co. v. Conn. River Co., 20 Fed. 71; Pine v. New York, 112 Fed. 98; U. S. v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 19 Sup. Ct. 770, 43 L. Ed. 1136; Moore, History of the Foreshore (3d ed.) (1888), 370-413; Hargrave’s Law Tracts, (1787), pp. 11-12, 25-36; Hall, The Seashore, (2d ed.) (1875) pp. 1-9; Hale De Partibus Maris, 84-89; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 35 L., Rd. 159; Mumford v. Wardwell, 6 Wall. 423, 18 L. Ed. 756; St. Anthony Falls Water Power Co. v. Commissioners, 168 U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497; Mobile Transp. Co. v. Mobile, 187 U. S. 479, 23 Sup. Ct. 179, 47 L. Ed. 266; Gibson v. U. S., 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 996. Since these complaining states under the authorities hereinbefore cited have the full proprietary right in the navigable waters within their boundaries and the lands under the same, it would seem to require no citation of authority to demonstrate that they have + standing in this court to protect those right as against any other — oo state which may attempt to appropriate such waters, in which they have the full proprietary interest, to their injury and in violation of their proprietary rights. However, there is abundant authority to sustain that right. That right stands upon an equal plane with the right to protect the forests of a state or any other great gift of nature within its borders. It stands on a parity with the right to protect air over its domains. In fact, it would seem to rise to a dignity higher than that of the right to protect its forests, since the title to the forests is in private citizens, whereas the title to the waters is in the states themselves. In Georgia v. Tennessee Copper Company, 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038, the court held that the state of Georgia had a right to maintagh an origina! suit in this court to protect its forests from destruction without regard to their economic value, and without regard to the fact that such forests were held in private ownership. In Kansas v. Colorado, 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956, Kansas asserted its right to protect an interstate river because of its ownership of the bed of the same. The right to maintain the suit was sus- tzined, as we understand it, on this as well as additional grounds. ' That a_ state may vindicate its rights in interstate waters f) as against the appropriation thereof, or pollution thereof by another state or agency thereof, has algo been recognized by this court in Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 552, 66 L. Ed. 999, New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937, Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. er “Ed. 497. ; ; —~ The allegations of the bill disclose that a large part of this inter- state stream or watercourse, together with connecting waters thereof, which is generally known and described as the Great Lakes-St. Lawrence. Waterway, lies within the borders of the complaining states, If such allegations did not appear from the face of the bill. this court would take judicial notice thereof, since the court will necessarily take judicial notice of the extent of the boundaries of 2 state of the Union. From such judicial notice this court would i. knew that the borders of the complaining states extend to the center of such of the Great Lakes as “border upon the respective complaining states and include within their boundaries many of the connecting waters thereof. The bill further discloses not only that the action of the State of Illinois, of which complaint is made, is interference with the natural fow of the waters of an interstate watercourse within the borders of the offending state, but also that the act of which complaint is made, by reversing the natural flow of a portion of that course, attempts to reach into the borders of the complaining states through the operation of natural laws and abstract from those states waters of an interstate stream or water- course, which originated in such complaining states or some of them. and which were never within the boundaries of Illinois, except through the agency of the act of which complaint is made. That the abstraction and taking of waters of the complaining states in which they hold the ful! proprietary right constitutes an injury to those states, would follow without any express allegation to that effect. Thus, in Georgia v. Tennessee C opber @0., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038, the court said: “The state has a property interest in water naturally flowing into it and in the public waters and air within its boundaries.” And in a note to Pennsylvania v. West | ‘irginia, 43 Sup. Ct. 658, 649: ‘ “If running water is withheld. its Property is taken. If the public water or air is polluted, its territorial integrity is invaded.” However, the bill aptly states injury to the states and to large numbers of their citizens. = (7 walt) 2. Lhe actions of the State of Illinois and its agents, of which the _ bill complains, constitute an injury to the complaining states in their quasi-sovercign capacity, wholly distinct from the in- juries to their citizens; and they are entitled to maintain thic suit in this court to vindicate quast-sovereign rights. While the states of the Union have surrendered some of their sovereign rights to the federal government they still retain in their capacities of quasi-sovereign, many rights which they are entitled to maintain and vindicate. In Georgia v. Tennessee Copper Com- pany, 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038, where the State of Georgia instituted an original suit in this court to enjoin the discharge of noxious fumes over the territory of that state, this court disregarded any proprietary interest which Georgia might have in minute tracts of forest lands within its borders, but laid down the principle that in its capacity of quasi-sovereign it had a right to protect its forests from destruction, and the air over its domain from pollution. In this connection the court said: “This is a suit by a state for an injury to it in its capacity o1 quasi-sovereign. In that capacity the state has an interest inde- pendent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall: be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the state as a private owner is merely a make- weight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.” . In that case the court further pointed out that no proof of special (damage was requisite to the successful maintenance of the suit; that the injury to a state by the invasion of its quasi-sovereign rights was not susceptible of being compensated in money, and that the right to balance equities as against an invasion of such sovereign right does not exist. In this case the court said: “Some peculiarities necessarily mark a suit of this kind. If tiie i State has a case € all, it is somewhat more certainly entitied to specific relief than a private party may be. It is not lightly, to be required to give up quasi-sovereign rights for pay; and, apart from the difficulty of valuing such rights in money, if that be its choice it may insist that an infraction of them shall be stopped. The states, by entering the Union, did not sink to the position of private owners, subject to one system of private law. This court has not quite the same freedom to balance the harm that will be done by an injunction against that of which the plaintiff complains, that it would have in deciding between two subjects of a single political power.” The court further pointed out that it was immaterial whether the action of Georgia would do more harm than good to her citizens, as that was a matter for a state alone to determine. In Hudson Water Company v. McCarter, 209 U.S. 349, 355, 28 Sup. Ct. 529, 52 L. Ea. 828, this court said: “It sometimes is difficult to fix boundary lines between the pri- vate right of property and the police power when, as in the case at bar, we know of few decisions that are very much in point. But In North Dakota v. Minnesota, 263 WU, S. 365, 373, 44 Sup. Ct. 138, 68 L. Ed. 342, this right was reaflirmed by this court, The foregoing cases proceed upon the principle that a state in its quast-sovereign capacity has the right to protect the forests, the air over its domain, and the public waters. An injury to any of these great gifts of nature constitutes an injury to the state in its quasi- sovereign capacity, which is not susceptible of being compensated in money, and as to which its decision with respect to the maintenance of its natural resources unimpaired by outside interference is con- satin clusive, and which quasi-sovereign rights it may vindicate without assigning any reason therefor. As stated in Hudson Water C ompany v. McCarter, 209 U. S. 349, 357, 28 Sup. Ct. 529, 52 L. Ed. 828: “It finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no one a reason for its will.” The complaint, however, discloses another injury to the com- plaining states in their quasi-sovereign capacities which entitles them tc maintain this suit. It appears affirmatively from the bill of com- plaint that the alleged wrongful act of the State of Illinois and its agents has lowered the waters of the Great Lakes to the extent of at least six inches. From this fact it necessarily follows that there has been great damage to the rights of riparian owners of these lands who are citizens of the complaining states. It further appears from the allegations of the bill that this lowering of the levels of the Great Lakes within the borders of these states and also connecting waters within the borders of these states has caused great damage to thousands of the citizens of the complaining states in their attempts to navigate these waters. It has been often held by this court that injury to the welfare, prosperity, and property of a large nuraber of the citizens of a state constitutes an injury to such state in its quasi-sovereign capacity wholly distinct from injuries to its citizens and entitles the state to maintain an original action in this court against an offending state. In Pennsylvania v. West Virginia, 262 U. S. 553, 592, 43 Sup. Ct. 658, 67 L. Ed. 1117, in considering the right of a state to maintain an action where a substantial portion of its population has been affected, the court said: “Their health, comfort and welfare are seriously jeopardized by the threatened withdrawal of the gas from the interstate stream. This is a matter cf grave public concern in which the State, as the representative of the public, has an interest affected. It is not merely a remote or elnical interest apart from that of the indi- viduals but one which is immediate and recognized by law.” 54... Again, in New York y. New Jersey, 256 U. S. 296, 494, 41 Sup. Ct. 492, 65 L. Ea. 937, the court said: “The health, comfort and prosperity of the people of the state and the value of their property being gravely menaced, as it is averred that'they are y the proposed action of the defendants, the state is the Proper party to represent and defend such rights by resort to the remedy of an original suit in this court under the Provisions of the Constitution of the United States, Missouri vy. Illinois, 180 U. S. 208, 241, 243, 21 Sup. Ct. 331, 45 L. Ed. 497; Georgia v. Tennessee C opper Co., 206 U. S. 230, 27 Sup. Ct. 618, 51 L. Ed. 1038, 11 Ann. Cas. 488,” : Again, in North Dakota y. Minnesota, 263 U. S. 365, 374,°44 Sup. Ct. 138, 68 L. Ed. 342, this court said: “It needs no argument, in the tight of these authorities to reach the conclusion that, where one state by a change in its method of draining water from lands within its border increases the flow into health, and prosperity of her farm owners that resort may be had to this court for relief.” The converse of the foregoing Proposition is obviously of equal truth; and therefore a change in the method of drainage which di- Missouri vy. Illinois, 180 U.S. 208, 21 Sup. Ct. 331, 45 L. Ed. 497 ; . Kansas v. C. olorado, 185 U. S.125, 22 Sup. Ct. 552, 46 L. Ed. 838; ; Wyoming v. Colorado, 259 U. S. 419, 42 Sup. Ct. 522, 66 L. Ed. 999; —— i Pennsylvania v. Wheeling & B. Bridge Co., 9 How. 647, 13 L. Ed. 294; 11 How. 528, 13 L. Ed. 799; 13 How. 518, 14 L. Ed. 249; 18 How. 429, 15 L. Ed. 435; South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782. 3. The complaining states have a right to maintain this suit in their privale Capacities as owners of public works and public property. The right of a state to maintain an original action in this court to protect its rights where theuwnlawful act of another state, person, or corporation has caused injury to such state in its capacity of owner of public works and public property has always been recog- nized. Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 14 L. Ed. 249; Pennsylvania v. West Virginia, 262 U. S. 553, 43 Sup. Ct. 658, 67 L. Ed. 1117; Kansas v. Colorado, 206 U. S. 46, 27 Sup. pr 055, 51 L. Ed. 956; Georgia v. Tennessee Copper Company, 206 U. S230, 27 Sup. Ct. 618, 51 L. Ed. 1038. The bill avers in considerable detail special damage to the State of Wisconsin .in its ownership of public works and public property by reason of the alleged wrongful acts of the State of Illinois and its agents. Some contention is made in the various briefs filed by and or behalf of the defendants that such injury is not real or sub- stantial. For the purposes of a motion to dismiss or of demurrer, this allegation of fact in the complaint is admitted and stands as a verity in the case. The defendants can not both admit the fact and ask the court to disregard it. If they had seen fit to defy that fact and put the complainant to its proof, it would have bee“ their right, but they cannot admit it and then ask the court to disregard it for the purpose of avoiding the force of their admission. The same situation applies to many other arguments of fact attempted to be made by-or on behalf of the defendants. > —56—/7 4. The complaining states have a standing to maintain this suit as parens patriae to protect their people. It has been recognized in this court by a large number of decisions that a state has a standing as parens patriae of its people where the legal act of another state, person, or corporation has caused injury and damage to a large number of the citizens of that state. As has ra been pointed o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1758%3A018. Public record. Not legal advice.