# Motion — Illinois v. City of Milwaukee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0002%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion - **Published:** January 1, 1971 - **Citation:** 402 U.S. 940 ## Text 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- — RR in ge bo ois £05 v's cee deer egeedownns TION Fe WALES aw ann ee» POLAT WON Le eee she NE 6 eas vn odes weauneaeee Sheu vans 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 ; VU BUA BENE KERUDALUC r oe; * ville? Randolph o Mayville “|waskincroN cena Rio Beaver Burnt gHorcon W t Bend dines Doy! fo) Juneauo “0 - tae oy estown? uneau R Allenton Sau ille® GPort Washington > 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. oe Rockdale ines au : es a 1 ve pa a a Utica Fort N. Prairie? NewBerlin pe 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 Ortordvilie Ont ke Geneva@ New Munster” "oO { in wgWijemsti aN eFontana Salemh i : ' ow xtra EBelvidere = _ | ton an Gna on L M N PO SAE IRE OR RI eI: UN CR LIER eS hah TS Se BENT oP ererean This steed is also available with County Outlines only. SAAT we ESO SE OTR lee annaR per air ntaes Ap oreim Ge oneness pian Bay’ ~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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0002%3A1. 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