Motion — Illinois v. City of Milwaukee

caonn! orc 9 Wi

Supreme Court of the Unite 1. States... me:

Ocroser Term, 1970.

No. AQ...

STATE OF ILLINOIS, ex rel. WILLIAM z: SCOTT,

Attorney General of Illinois,

Plaintiff, {

or

CITY OF MILWAUKEE, WISCONSIN, a municipality

incorporated under the. laws of the State:of Wisconsin,

and a political subdivision thereof, and _

CITY OF KENOSHA, WISCONSIN, a municipality in-

-corporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

CITY. OF RACINE, WISCONSIN, a municipality incor-

porated under the laws of the State of Wisconsin, and

“a political subdivision thereof, and

CITY OF‘SOUTH MILWAUKEE, WISCONSIN, a muni-

cipality incorporated under the laws of the State of

-Wisconsin, and a political subdivision thereof, and

THE SEWERAGE COMMISSION OF THE CITY OF

~ MILWAUKEE, a municipality existing under the laws

of the State of Wisconsin, and a political subdivision

thereof, and

I THE METROPOLITAN) SEWERAGE COMMISSION OF

THE COUNTY OF MILWAUKEE, a municipality in-

q _ eorporated under the laws of the State of Wisconsin,

: and a political subdivision thereof, ae

Defendants.

MOTION FOR LEAVE TO FILE BILL OF

COMPLAINT, BILL OF COMPLAINT AND

STATEMENT AND BRIEF IN SUPPORT OF MOTION.

| Wit J. Scorr, —

_Attorney General of the State of Illinois,

State of Dlinois Building,

160 North La Salle Street,

Chicago, Illinois 60601,

Attorney for Plaintiff.

Frap F. Herzoa,

| a oe Com es ,

LS ge MES ee TR s . DEY, NO YREL eee SETI PA CARR NOUR IED ee

ices

.. INDEX

PAGE

MOTION FOR LEAVE TO FILE BILL OF COM- —

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Purpose of the Proposed Action ..............

. Direct Precedents Invoking Original Jurisdiction

OE ee SES nbs 5 regan cb eles cess duens

Need for the Exercise = Original Jurisdiction .

i COTE T reer ET: Pern men

. CITATIONS

Cases:

Georgia v. Tennessee Copper Company, 206. U.S.

230, 27 S. Ct. 618, 51 L. ed. 1038 (1907) ......

New Jersey v. New York City, 283 U.S. 473, 51

GS. Ob. 519, 75 L. ed. 1176 (1981) ......4.....

Wisconsin v. Illinois, 281 U.S. 179, 50 S. Ct. 266,

» 74 L. ed. 799 (1980) 2... eee cee eee ?

Statutes: | ~

Constitution of the United States, Article IM,

Section 2, Clause 2. ...... ccc ccecscccccevece 4,12

United States Code, Title 28, Section 1251 ..4,12,14

IN THE

Supreme Court of the United States

Octoser Trrm, 1970.

Peat

STATE OF ILLINOIS, ex rel. WILLIAM J. SCOTT,

attornily General of Illinois, |

- Plaintiff,

vs.

‘CITY, OF MILWAUKEE, WISCONSIN, a municipality

incorporated under the laws of the State of bie aac

and a political subdivision thereof, and

CITY OF KENOSHA, WISCONSIN, a municipality in- |

corporated under the laws of the State of Wisconsin,

_ and a political subdivision thereof, and

CITY OF RACINE, WISCONSIN, a municipality incor-

porated under the laws of. the State of Wisconsin, and

a political subdivision thereof, and |

CITY OF SOUTH MILWAUKEE, WISCONSIN, a mur*-

Cipality incorporated under the laws of the Staic of

Wisconsin, and a. political subdivision,thereof, and

THE SEWERAGE COMMISSION OF THE CITY OF

MILWAUKEE, a municipality existing under the laws

_ of the State of Wisconsin, and a political subdivision

thereof, and .

THE METROPOLITAN SEWERAGE COMMISSION OF

THE COUNTY OF MILWAUKEE, a municipality in-

corporated under the laws of the State of Wisconsin;

and a political subdivision thereof,

- Defendants.

MOTION FOR LEAVE TO FILE BILL OF

COMFLAINT, 2ILL OF COMPLAINT AND

STATEMENT AND BRIEF IN SUPPORT OF MOTION.

ore ame econ pe crsemoeronacmemerserers et ee staat SESE é ¥ > er Ere et DOPAC Oy a

RO Gy eS eR ee

MOTION FOR LEAVE TO FILE

‘BILL OF COMPLAINT.

—_——————

e ?

~“

The State of Illinois, ex rel., by its Attorney General,

William J. Scott, hereby seeks leave to file its bill of

complaint, respectfully submitted herewith, against. the

City of Milwaukee, a municipality incorporated under

the laws of Wisconsin, the City of Kenosha, a munieipali-

ty incorporated under the laws of Wisconsin, the City

of Racine, a municipality incorporated under the laws

of Wisconsin, the City of South Milwaukee, a munici-

pality incorporated under the laws of Wisconsin, the

Sewerage Commission of the City of Milwaukee, a mu-

nicipality existing under the laws of Wisconsin, and the

Metropolitan Sewerage Commission of the County sof

Milwaukee, a municipality incorporated under the laws

of Wisconsin. | .

Wituiam J. Scort,

Attorney General of the State of Illinois, .

State of Illinois Building,

160 North La Salle Street,

Chicago, Illinois 60601,

| Attorney for Plaintiff.

December, 1970.

PREP IT 2 EOP AL LF OTA LOO E IE LI Reh t Lg Cade Fe

Bec omse scope meee

IN THE >

Supreme Court of the United States

OcToBER TERM, 1970.

a Loeveess Original.

STATE OF ILLINOIS, ex rel. WILLIAM J. SCOTT,

Attorney General of Illinois, ;

Plaintiff,

Vs.

CITY OF MILWAUKEE, WISCONSIN, a municipality

incorporated under the laws of the State of Wisconsia,

and a political subdivision thereof, and

CITY OF KENOSHA, WISCONSIN, a municipality in-—

corporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

CITY OF RACINE, WISCONSIN, a municipality incor-

porated under the laws of the State of a and

a political subdivision thereof, and

CITY OF SOUTH MILWAUKEE, WISCON SIN, a muni-

cipality incorporated under the laws of the State of

. Wisconsin, and a political subdivision thereof, and

THE SEWERAGE COMMISSION OF THE CITY OF

MILWAUKERH, a municipality existing under the laws —

of the State of Wisconsin, and a political subdivision

thereof, and

THE METROPOLITAN SEWERAGE COMMISSION OF

THE COUNTY OF MILWAUKEE, a municipality in-

. @orporated under the laws of the State of Wisconsin,

and a political subdivision thcreof, |

- Defendants.

BILL OF COMPLAINT.

_ The State of Illinois, by William J. Scott, its Attorney

General, brings this suit against defendants, the City of

Milwaukee, City of Kenosha, City of Racine, City of South

Milwaukee, Sewerage Commission of the City of Milwau-

kee, and Metropolitan Sewerage Commission of the Coun-

ty of Milwaukee, and for its cause of action states:

I

William J. Scott is the duly elected, qualified and acting

Attorney General of the Statesof Illinois and in that ca-

pacity is empowered to bring, and does bring, this suit on

behalf of the State of Illinois and its citizens. —

II.

The original jurisdiction of this Court is invoked under

Article III, Section 2, Clause 2 of the Constitution of the

United States and Title 28, U.S.C., Section 1251.

II.

The defendants, City of Milwaukee, City of Kenosha,

City of Racine, City of South Milwaukee, Sewerage Com-

mission of the City of Milwaukee, and Metropolitan Sew-

erage Commission of the County of Milwaukee, are muni-

cipalities, incorporated under the laws of the State of

Wisconsin, politicalsubdivisions thereof and hence citi-

zens of that State. The defendant Sewerage Commission

of the City of Milwaukee is charged by law with the duty

of collecting, transmitting, and disposing of the. city’s

sewage, while the defendant Metropolitan Sewerage Com-

mission of the County of Milwaukee has the responsibility

ire 4)

for the transmission, treatment and disposal of sewage

from territory located within its drainage area. :

IV.

At all times pertinent to this complaint, the plaintiff,

State of Illinois, has been and now is, the owner in trust,

for the benefit of its citizens, of the waters of Lake Michi-

gan within the State’s territorial boundaries, and the. pro-

tector and guardian of these waters for the use, needs; and

enjoyment of its citizens and inhabitants, along the Illi-

nois shore from the Wisconsin-Titinois RONEPTEY, to the

Indiana-Illinois boundary. |

V.

From ancient geological periods, Lake Michigan has

been and is now a natural body of fresh water. It is bor-

dered by the States of Illinois, Wisconsin, Michigan,

and Indiana. Frequeniiy, natural currents and atmos-

pheric conditions cause the waters of Lake Michigan to

flow north to south along the shoreline of Lake Michi-

gan from a point north of the City of Milwaukee, past

the cities of Milwaukee, South Milwaukee, Racine, and

Kenosha, Wisconsin, past the Wisconsin-Illinois _ bor-

der along the Illinois shore, and thence southerly and

easterly along the Indiana shore. Lake Michigan has

been and is now a vital source ot water supply for many

municipalities, citizens, and inhabiia:ts of Illinois, and

has been and is now used as a place or recreation, relaxa-

tion, and enjoyment by numerous citizens and inhabi-

tants of Illinois.

VI.

The defendant municipalities and political subdivis-

ions which are situated in the State of Wisconsin at and

*<

near the shoreline of Lake Michigan, as is demonstrated

by Exhibit A, attached to this complaint and herewith —

made a part hereof, are now authorizing, causing, per-

mitting or allowing, and have, for a long time hereto- .

fore, authorized, caused, permitted or allowed, the dis-

charge of matters and effluents into Lake Michigan, con-

sisting of untreated raw sewage or improperly or in-

adequately treated sewage which originates from and

‘within the defendants’ cities or sanitary sewerage sys-

tems, all confgolled and operated by the defendant mu-

nicipalities, their employees, servants, or agents; these

matters and effluents discharged into the waters of

Lake Michigan are contamigants which pollute the wa-

ters of the Lake and make them unfit for drinking, agri-

cultural, manufacturing, and recreational purposes. They

have a deleterious-and injurious effect upon human be-

ings, animals, and various forms of aquatic life, severely

damaging, and ultimately leading to the destruction of,

the ecology and water quality of the Lake. They affect

detrimentally, especially as far as the plaintiff is con-

cerned, those parts of the Lake which are located with-

in the northern Lake Michigan shoreline region of the

State of Illinois.

VIL.

The sewage and contaminants discharged by or with

the consent of the defendant municipalities into the wa-

ters of Lake Michigan are frequently carried by the flow

of the waters, natural currents, and atmospheric condi-

tions southward into the State of Illinois, below the Wis-

consin-Illinois boundary, and thereby render the wa-

ters of Lake Michigan within the State of Illinois pollut-

ed, since the sewage and the contaminants so discharged

-

lg

contain viruses,. pathogens, and various types of bacilli

which are’ harmful to human beings and animals, and

can cause organic malfunction and disease in the human

as well as the animal body; hence they constitute a se-

vere danger to the health, safety, and welfare of the

citizens and inhabitants of the State of Illinois, who

make use or attempt ‘o make use of the waters of Lake

Michigan within the boundaries of Illinois.

VII.

Since the State of Illinois and its agencies and subdi-

visions prohibit and prevent the disehaege of raw or in-

adequately or improperly treated sewage into Lake Mich-

igan, protect the quality of the Lake waters from pollu-

tion within the State’s territorial boundaries, exert ev-

ery effort to prevent the deterioration of water ~quality

of the Lake.and strive to steadily upgrade and improve

that quality by proper legislation and administrative and

court proceedings, all those efforts and endeavors are

and will be set at naught and made futile, if the .Lake-

waters flowing and finding their way into Illinois from

Wisconson are polluted by defendants, thus causing grave

harm and danger to the health, safety, and welfare of ~—

citizens and inhabitants of the State of Illinois.

1b a

The defendant municipalities and each of them owe

a duty to riparian land owners and water users and to

the People of the State of Illinois not to pollyte Lake.

Michigan in the manner heretofore described and owe

a further duty to preserve the water quality and ecology

of the Lake so as not to endanger the health, safety and

welfare of the citizens and inhabitants aera of.

Tllinois.

: 8

The defendant municipalities have failed and continue

to fail to use proper recognized and approved methods

and practices to adequately and properly treat and dis-

pose of the sewage emanating from their localities or

originating in the sewerage works owned or operated by

them; they have thereby neglected to exercise due and

proper care and diligence in conducting and carrying

out their municipal responsibilities and have thus in-

juriously affected the rights and legal interests of the

citizens and inhabitants of the State of Illinois.

X.

Notwithstanding the fact that the defendant munici-

palities have been repeatedly urged to improve their |

sewerage systems and to halt the discharge of contami-

nants into the waters of Lake Michigan, they have up

till now failed to do so.

XI.

The discharge-ofthe -sewage and contaminants by de-

fendants into the waters of Lake Michigan, which are

carried by the natural flow and currents of the water

and atmospheric conditions into Illinois, and, particular-

ly, to the waters adjacent to the Illinois shore, causes

and constitutes a public nuisance, injuriously affecting

the health, safety and welfare of the citizens and inhabi-

tants of the State of Illinois.

PEER

To tho, best of rlaintiff’s knowledge and belief, the de-

fendant municipalities or most of them cont'nne and

wiil continue the wrongful act of discharging sewage

and contaminants into Lake Michigan unless restrained

and enjoined by this Court. Plaintiff has no adequate

remedy save that afforded by a court of equity. The in-

9

juries to Lake Michigan’ and‘to the citizens and inhabi-

tants of Illinois are irreparable, and only an order en-

tered by this Court can lead to the elimination or, at

least, the minimizing of the injuries to plaintiff and its

citizens and inhabitants.

Wuererore, plaintiff prays that this Court enter a

decree: ,

1. Perpetually enjoining the defendants and each of

them from discharging raw sewage, or inadequately or

improperly treated sewage into the waters of Lake Mich-

igan;

2. Awarding the costs- of the eceedines including

but not limited to expert witnesses’ fees, scientific study

and research costs, to plaintiff; and

3. Granting such other and further relief as the nature

of the case may require and as this Court may ena

proper or appropriate.

Respectfully submitted,

WiuaM J. Scort, ‘

Attorney General of the State of Illinois,

State of Illinois Building,

160 North La Salle Street,

Chicago, Illinois 60601,

Attorney for Plaintiff.

WINNEBAGO BOONE |MCHENRY

ILLI ae i) |

EXHIBIT A

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> Columbus @ on °

eMorrisonville Oo <'YMANNeoshoO ma arburg _

ee Reeseville o lebanon | Ric Meld OThiensvill emMequon

@De Forest . pores ermantow

kee Marshall ag ttettow

una “esyn, ° Waterloo a ake

disdiy [JEFFERSON Ixonia©

‘5 looming -—" Mills 0 Johnson ow

FOVE Oebiierg reek eld Wautwal Milwaukee xs

Jeffersono * ‘ullivano os ° W.

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Atkinson Palmyra] gag) Greends ~

tougnton ° agle

- aibion__ | _ Whitewater StusGvonag =

>TROCK @ Edgerton WALWORTH. Og

Milton Jc.@ ‘@ Milton Honey oe mee

Evansville Rocheste Sturtevante

Lima Center 5} Ikhorn Burlington@un of

cotvilleo . @& Janesville Delavan © KENOSHA

- Hanover = Avalon @ Sinan’ Bristol

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This steed is also available with County Outlines only.

SAAT we

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~CITY OF RACINE, WISCONSIN, a municipality incor-

ed IL TADS 12d Seieha SaoPt dead bs os Sood tlt Scale al

11

IN THE

Supreme Court of the United States

October TERM, 1970.

Mo. ......0. Original.

STATE OF ILLINOIS, ex rel. WILLIAM J. SCOTT,

Attorney General of Illinois,

Plamtiff,

us.

CITY OF MILWAUKEE, WISCONSIN, a municipality

incorporated under the laws of the State of Wisconsin,

and a political subdivision thereof, and

CITY OF KENOSHA, WISCONSIN, a municipality in-

corporated’ under the-laws of the State of Wisconsin,

and a political subdivision thereof, and

porated under the laws cf the State of Wisconsin, and

a political subdivision thereof, and

CITY OF SOUTH MILWAUKEE, WISCONSIN, a muni-

cipality incorporated under the laws of the State of

Wisconsin, and a political subdivision thereof, and

THE SEWERAGE COMMISSION OF THE CITY OF

MILWAUKEE, a municipality existing under the laws

of the State of Wisconsin, and a political subdivision

thereof, and

THE METROPOLITAN SEWERAGE COMMISSION OF

THE COUNTY OF MILWAUKEE, a municipality in-

corporated under the laws ‘of the State of Wisconsin,

and a political subdivision thereof,

Defendants.

STATEMENT AND BRIEF IN SUPPORT OF MOTION

12,

_ JURISDICTION

The action, for which leave to file. is herein sought, is

to be instituted by the State of Illinois against several

municipalities located in the State of Wisconsin. All

these municipalities which are incorporated under the

laws of the State of Wisconsin are citizens and political

subdivisions of that State. Hence original jurisdiction of

this Court for the action to be filed is invoked under

the authority and provisions of Article III, Section 2,

Clause 2 of the Constitution of the United Statcs and

Title 28, U. S. C., Section 1251. —

PURPOSE OF THE PROPOSED ACTION

Investigation has revealed that the waters of Lake

Michigan, flowing from Wisconsin into Illinois, have

been severely polluted by raw or inadequately or im-.

properly treated sewage’ discharged into the Lake by va-

rious municipalities situated in Wisconsin in areas adja-

cent or near to or not too far distant from the bounda-

ries of the State of Illinois. According to the allegations

of the complaint the sewage so discharged emanates

from and has been originating in the cities or..sewerage

systems owned or operated by the municipalities named

as defendants in the complaint. The waters of Lake

Michigan, contaminated by those discharges, frequently

flow and find their way into the State of Illinois, there-

by polluting the vital water supply of many communi-

ties in Illinois and posing a grave danger to the health,

safety, and welfare of uumerous Illinois residents. This

detrimental condition, which has persisted for many

years and not been remedied by the municipalities in-

volved, not only leads to the destruction and death of

13

the Lake, gravely affecting the vital interests of the citi-

zens and inhabitants of the State of Illinois, but also

thwarts and sets at naught the ceaseless efforts of the

State of Illinois, acting through its governmental branch-

. es and political subdivisions, to keep the waters of Lake

Michigan clean and free from pollution within the State’s

territorial boundaries. |

The complaint, therefore, prays that the defendant mu-

nicipalities be permanently enjoined from discharging

- Yaw, or inadequately or improperly treated sewage into

‘ the waters of Lake Michigan and that such other and

N further relief may be granted as the iature of the case

- may require and as this Court may deem proper or ap-

‘ propriate.

DIRECT PRECEDENTS INVOKING ORIGINAL

JURISDICTION OF THIS COURT

This Court has always exercised original jurisdiction

when citizens of one state engaged in activities which

contaminated either the air or the water utilized and en-

\ joyed by the inhabitants of another state. Thus, some

‘sixty-odd years ago, the Attorney General of the State

Yof Georgia successfully invoked the jurisdiction of this

Court when he instituted proceedings against the Ten-

hessee Copper Company which was located: in Tennessee

and was not a Georgia corporation. The copper produc-

ing plant of the defendant company had polluted the

Georgia air and land through the emission of noxious

fumes. This Court gave recognition to the right of the

State of Georgia to protect its land from contamination

and granted injunctive relief, Georgia v. Tennessee Cop-

per. Company, 206 U. S. 230, 27 S. Ct. 618, 51 L.ed. 1038

(1907).

\

14

In the early thirties the State of New Jersey sought

direct relief from this Court against the continual dump-

ing of sewage into the Atlantic Ocean by the City of New

York; great amounts of that sewage were frequently car-

ried by water currents and winds to the New Jersey coast

line, polluting the State’s waters and beaches. This Court

- authorized the granting of injunctive relief, after the

matter had been assigned to a special master for hear-

ing and recommendations. New Jersey v. New York City,

283 U. S. 473, 51 S. Ct. 519, 75 L.ed. 1176 (1931).

Exercise of original jurisdiction is particularly appro-

priate in this matter since ‘this Court has shown in the

past its direct and immediate concern for the protection

of the rights and interests of the shore line States and

their inhabitants in the preservation of the waters of

Lake Michigan. That concern is effectively demonstrated

by the case of Wisconsin vy. Illinois, 281 U.S. 179, 50

S. Ct. 266, 74 L. ed. 799 (1930), in which this Court regu-

lated the withdrawal of water from Lake Michigan. Al-

though the jurisdictional authority in the latter case

was based upon the provisions of the Judicial Code pres-

ently implemented and contained in Title 28, U. S. C.,

Section 1251 (a) (1) (all controversies between two or

more states), it is respectfully submitted that the case,

together with the other two cases cited, establishes a firm

basis of strong and persuasive authority for the exercise

of original jurisdiction by this Court in the present mat-

ter.

15

NEED FOR THE EXERCISE OF ORIGINAL

JURISDICTION

The need for the exercise of original jurisdiction by

this Court is pressing and imperative. This case involves

the contamination of the water supply of many commu-

nities in a State upon which literally hundreds of thous-

ands of persons depend. It involves the preservation of

invaluable natural resources. It involves the battle

against pollution,

The battle against pollution is a battle against time.

If defendant municipalities are not stopped ir their detri-

mental conduct by the decree of the highest court of the

land, without the possibility of long, drawn-out contests

in the lower courts, then indeed the death of Lake Michi-

gan and the destruction of the most important water sup-

ply of the State of Illinois might become an imminent

reality. The gravity and urgency of the problem brook no

delay. |

Coupled with the immediate and serious danger to the

health and safety of numerous inhabitants of the State of

Illinois is the fact that the conduct with which the defend-

ant municipalities are charged in the complaint manifests

itself in activities which are governmental in nature. The

collection, treatment and disposal of sewage certainly

rank among the most basic governmental functions in the

field of public health. The municipalities engage in that

function as political subdivisions of the state in pursu-

ance of power delegated to them by the state. Hence,

since these municipalities carry out responsibilities for,

in behalf and under the authority of the state, they are

an arm of the state, and the present complaint is in ef-

fect directed against the state under which these muni-

a

a

> Frep F. Herz,

16

cipalities operate. Viewed in that light, the exercise of

original jurisdiction in the instant case approaches a con-

stitutional imperative.

CONCLUSION

For all the reasons stated it is respectfully asked that

the motion for leave tu file the bill of complaint in this

Court be granted.

Respectfully submitted,

Wituiam J. Scott,

Attorney General of the State of Illinois,

State of Dlinois Building,

160 North La Salle Street,

Chicago, Illinois 60601,

Attorney for Plaintiff.

Of Counsel