This is a bill in equity brought by the United States to enjoin the Sanitary District of Chicago, a corporation of Illinois, from diverting water from Lake Michigan in excess of 250,000 cubic feet per minute; the withdrawal of that amount having been authorized by the Secretary of War. It is alleged that the withdrawal of more, viz., from 400,000 to 600,000 cubic feet per minute, has lowered and will lower the level of the water of Lake Michigan, Lake Huron, Lake St. Clair, Lake Erie, Lake Ontario, Sault Ste. Marie, St. Mary's River, St. Clair River, Detroit River, Niagara River, St. Lawrence River, and all the harbors, &c., connected therewith, all of which are alleged to be navigable waters of the United States, and will thus create an obstruction to the navigable capacity of said waters; and that it will alter and modify the condition and capacity of the above named and their ports, &c., connected with them. The prohibition of such alterations and obstructions in the Act of March 3,
The withdrawal practised and threatened is through an artificial channel that takes the place of the Chicago River, formerly a little stream flowing into Lake Michigan, and of a part of its branches. The channel instead of adding water to the Lake has been given an opposite incline, takes its waters from the Lake, flows into the Desplaines River, which empties into the Illinois River, which in its turn empties into the Mississippi. The channel is at least twenty-five feet deep and at least one hundred and sixty-two feet wide; and while its interest to the defendant is primarily as a means to dispose of the sewage of Chicago, Missouri v. Illinois, 200 U.S. 496, it has been an object of attention to the United States as opening water communication between the Great Lakes and the Mississippi and the Gulf.
The answer shows that the defendant is proceeding under a state act of May 29, 1889, by which it was provided that a channel should be made of size sufficient to take care of the sewage and drainage of Chicago as the increase of population might require, with a capacity to maintain an ultimate flow of not less than 600,000 cubic feet of water per minute, and a continuous flow of not less than 20,000 cubic feet for each 100,000 of the population within the sanitary district. It denies that the defendant has abstracted from 400,000 to 600,000 feet per minute, but as it alleges the great evils that would ensue if the flow were limited to the amount fixed by the Secretary of War or to any amount materially less than that required by the state act of May 29, 1889, and as it admits present conditions to be good, the denial cannot be taken very seriously. The act sufficiently indicates what the State threatens and intends to do unless
This brief summary of the pleadings is enough to show the gravity and importance of the case. It concerns the expenditure of great sums and the welfare of millions of men. But cost and importance, while they add to the solemnity of our duty, do not increase the difficulty of decision except as they induce argument upon matters that with less mighty interests no one would venture to dispute. The law is clear, and when it is known the material facts are few.
This is not a controversy between equals. The United States is asserting its sovereign power to regulate commerce and to control the navigable waters within its jurisdiction. It has a standing in this suit not only to remove obstruction to interstate and foreign commerce. the main ground, which we will deal with last, but also to carry out treaty obligations to a foreign power bordering upon some of the Lakes concerned, and, it may be, also on the footing of an ultimate sovereign interest in the Lakes.
The main ground is the authority of the United States to remove obstructions to interstate and foreign commerce. There is no question that this power is superior to that of the States to provide for the welfare or necessities of their inhabitants. In matters where the States may act the action of Congress overrides what they have done. Monongahela Bridge Co. v. United States, 216 U.S. 177. Second Employers' Liability Cases, 223 U.S. 1, 53. But in matters where the national importance is imminent and direct even where Congress has been silent the States may not act at all. Kansas City Southern Ry. Co. v. Kaw Valley Drainage District, 233 U.S. 75, 79. Evidence is sufficient, if evidence is necessary, to show that a withdrawal of water on the scale directed by the statute of Illinois threatens and will affect the level of the Lakes, and that is a matter which cannot be done without the consent of the United States, even were there no international covenant in the case.
The defendant in the first place refers to two acts of Congress: one of March 30, 1822, 3 Stat. 659, which became ineffectual because its conditions were not complied with, and another of March 2, 1827, c. 51, 4 Stat. 234, referred to, whether hastily or not, in Missouri v. Illinois, 200 U.S. 496, 526, as an act in pursuance of which Illinois brought Chicago into the Mississippi watershed. The
In an appropriation Act of March 3, 1899, c. 425, § 10; 30 Stat. 1121, 1151; Congress provided "That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; . . . and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same." By § 12 violation of the law is made a misdemeanor and punished, and the removal of prohibited structures may be enforced by injunction of the proper Court of the United States in a suit under the direction of the Attorney General. This statute repeatedly has been held to be constitutional in respect of the power given to the Secretary of War. Louisville Bridge Co. v. United States, 242 U.S. 409,
After this statute was passed the Secretary of War granted various permits, which are relied on by the appellant although in their nature they all were revocable licenses. On May 8, 1899, the Secretary, on application of the appellant, granted permission to open the channel, assumed in the recitals to have a flowage capacity of 300,000 cubic feet per minute with a velocity of one and one-quarter miles an hour, on the conditions that the permit should be subject to the action of Congress (which was superfluous except as a warning); that if at any time the current created proved to be unreasonably obstructive to navigation or injurious to property he reserved the right to close or modify the discharge; and that the Sanitary District must assume all responsibility for damages to property and navigation interests by reason of the introduction of a current in Chicago River. On July 11, 1900, improvements of the Chicago River were permitted with the statement that the permission did not affect the
States bordering on the Mississippi allowed to file briefs as amici curiae suggest that they were not heard and that rights have not been represented before the Secretary of War. The City of Chicago makes a similar complaint and argues that it is threatened with the loss of a hundred million dollars. The interest that the River States have in increasing the artificial flow from Lake Michigan is not a right, but merely a consideration that they may address to Congress, if they see fit, to induce a modification of the law that now forbids that increase unless approved as prescribed. The investment of property in the canal and the accompanying works took the risk that Congress might render it valueless by the exercise of paramount powers. It took the risk without even taking the precaution of making it as sure as possible what Congress might do. But we repeat that the Secretary by his action took no rights of any kind. He simply refused an application of the Sanitary Board to remove a prohibition that Congress imposed. It is doubtful at least whether the Secretary was authorized to consider the remote interests of the Mississippi States or the sanitary needs of Chicago. All interests seem in fact to have been copiously represented but he certainly was not bound to give them a hearing upon the application upon which he was requested to pass.
After the refusal, in January, 1913, to allow an increase of flow, the appellant was notified by direction of the War Department that it was drawing more water than was allowed and was violating § 10 of the Act of March 3, 1899. In reply it intimated that it was bound by the state law to which we have referred and in obedience to it had been flowing 20,000 cubic feet per minute for each
The parties have come to this Court for the law, and we have no doubt that as the law stands the injunction prayed for must be granted. As we have indicated, a large part of the evidence is irrelevant and immaterial to the issues that we have to decide. Probably the dangers to which the City of Chicago will be subjected if the decree is carried out are exaggerated, but in any event we are not at liberty to consider them here as against the edict of a paramount power. The decree for an injunction as prayed is affirmed, to go into effect in sixty days — without prejudice to any permit that may be issued by the Secretary of War according to law.