278 U.S.

367
49 S.Ct. 163
73 L.Ed. 426

STATE OF WISCONSIN et al.

v.
STATE OF ILLINOIS et al. (STATE OF MISSOURI et al.,
Interveners). STATE OF MICHIGAN v. STATE OF
ILLINOIS et al. STATE OF NEW YORK v. SAME.
Nos. 7, 11, and 12, Original.
Argued April 23 and 24, 1928.
Decided Jan. 14, 1929.

[Syllabus and Statement of the Case from pages 367-371 intentionally

omitted]
Messrs. Albert Ottinger, of New York City, R. J. Le Boeuf, Jr., of Albany,
N. Y., Albert J. Danaher, of Watervliet, N. Y., and Nathan L. Miller, of
New York City, for the State of New York.
Messrs. Edw. J. Brundage, Wm. F. Mulvihill, Morton S. Cressy,
[Argument of Counsel from pages 371-376 intentionally omitted.]
Messrs. Wilber M. Brucker, Wm. W. Potter, and Arthur E. Kidder, all of
Lansing, Mich., for the State of Michigan.
[Argument of Counsel from pages 376-380 intentionally omitted.]
[[WEST,S.Ct. 164!} Messrs. Wm. J. Morgan and Ralph M. Hoyt, both of
Milwaukee, Wis., Herman L. Ekern, of Madison, Wis., C. L. Hilton, of St.
Paul, Minn., E. C. Turner and C. C. Crabbe, both of Columbus, Ohio,
Geo. W. Woodruff, of Philadelphia, Pa., Newton, D. Baker, of Cleveland,
Ohio, John W. Reynolds, of Madison, Wis., R. T. Jackson, of Mineral
Point, Wis., and G. A. Youngquist, of St. Paul, Minn., for State of
Wisconsin and others.
[Argument of Counsel from pages 380-387 intentionally omitted]

Messrs. Edmond D. Adcock, Oscar E. Carlstrom, H. A. Brouillet, Jas.

Hamilton Lewis, Geo. F. Barrett, and Louis J. Behan, all of Chicago, Ill.,
J. T. Kenworthy, and Cyrus E. Deitz, both of Rock Island, Ill., Hugh S.
Johnson, of Springfield, Ill., Maclay Hoyne, of Chicago, Ill., and James M.
Beck, of Washington, D. C., for the State of Illinois and another.
[Argument of Counsel from pages 387-397 intentionally omitted]
North T. Gentry, of Columbia, Mo., F. M. Thompson, of Nashville, Tenn.,
F. E. Daugherty, of Louisville, Ky., Percy Saint, of New Orleans, La.,
Daniel N. Kirby, of St. Louis, Mo., H. W. Applegate, of Little Rock, Ark.,
Rush H. Knox, of Jackson, Miss., and Cornelius Lynde, of Chicago, Ill.,
for the State of Missouri and others.
Messrs. A. B. Dougherty,
[Argument of Counsel from pages 397-399 intentionally omitted]
Mr. Chief Justice TAFT delivered the opinion of the Court.

These are amended bills by the states of Wisconsin, Minnesota, Michigan,

Ohio, Pennsylvania, and New York, praying for an injunction against the state
of Illinois and the Sanitary District of Chicago from continuing to withdraw
8,500 cubic feet of water a second from Lake Michigan at Chicago.

The court referred the cause to Charles Evans Hughes as a special master, with
authority to take the evidence, and to report the same to the court with his
findings of fact, conclusions of law, and recommendations for a decree, all to
be subject to approval or other disposal by the court. The master gave full
hearings and filed and submitted his report November 23, 1927, to which the
complainants duly lodged exceptions, which have been elaborately argued.

When these bills were filed, there was pending in this court an appeal by the
Sanitary District of Chicago from a decree granted at the suit of the United
States by the United States District Court for the Northern District of Illinois,
against a diversion from the lake in excess of 250,000 cubic feet per minute, or
4,167 cubic feet per second. This amount had been permitted by the Secretary
of War. In January, 1925, this court affirmed the decree, without prejudice to
the granting of a further permit by the Secretary of War according to law. 266
U. S. 405, 45 S. Ct. 176, 69 L. Ed. 352. On March 3, 1925, the Secretary of
War after that decree enlarged the permit for a diversion not to exceed an
annual average of 8,500 cubic feet per second, upon certain conditions hereafter

to be noted.
4

The amended bills herein averred that the Chicago diversion had lowered the
levels of Lakes Michigan, Huron, Erie, and Ontario, their connecting
waterways, and of the St. Lawrence river above tidewater, not less than six
inches, to the serious injury of the complainant states, their citizens, and
property owners; that the acts of the defendants had never been authorized by
Congress, but were violations of the rights of the complainant states and their
people; that the withdrawals of the water from Lake Michigan were for the
purpose of taking care of the sewage of Chicago, and were not justified by any
control Congress had attempted to exercise or could exercise in interstate
commerce over the waters of Lake Michigan; and that the withdrawals were in
palpable violation of the Act of Congress of March 3, 1899 (30 Stat. 1121). The
bills prayed that the defendants be enjoined from permanently diverting water
from Lake Michigan or from dumping or draining sewage into its waterways
which would render them unsanitary or obstruct the people of the complainant
states in navigating them.

The state of Illinois filed a demurrer to the bills and the Sanitary District of
Chicago an answer, which included a motion to dismiss. The states of Missouri,
Kentucky, Tennessee, and Louisiana, by leave of court, became intervening
codefendants, on the same side as Illinois, and moved to dismiss the bills. The
demurrer of Illinois was overruled, and the motions to dismiss were denied,
without prejudice. Thereupon the intervening defendants and the defendants the
Sanitary District and the state of Illinois filed their respective answers. The
states of Mississippi and Arkansas were also permitted to intervene as
defendants, and adopted the answers of the other interveners. The answers of
the defendants denied the injuries alleged, and averred that authority was given
for the diversion under the acts of the Legislature of Illinois and under acts of
Congress and permits of the Secretary of War authorized by Congress in the
regulation of interstate commerce. All the answers stressed the point that the
diversion of water from Lake Michigan improved the navigation of the
Mississippi river and was an aid to the commerce of the Mississippi Valley and
sought the preservation of this aid. They also set up the defense of laches,
acquiescence and estoppel, on the ground that the purposes of the canal and the
diversion were known to the people and the officials of the complainant states,
and that no protest or complaint had been made in their behalf prior to the filing
of the original bills herein.

The master has made a comprehensive review of the evidence before him in
regard to the history of the canal, the extent and effect of the diversion, the
action of the state and federal governments, the plans for the disposal of the

sewage and waste of Chicago and the other territory within the Sanitary
District, as well as the character and feasibility of works proposed as a means
of compensating for the lowering of lake levels. From this review we shall take
what will assist us in the consideration of the issues deemed necessary to be
considered on the exceptions to the report.
7

We shall first consider in brief the parts taken by Congress and the state of
Illinois and their respective agencies in the construction of the Sanitary District
Canal and the creation of the Lake Michigan diversion.

By the Act of March 30, 1822, c. 14; 3 Stat. 659, Congress authorized Illinois
to survey and mark, through the public lands of the United States, the route of a
canal connecting the Illinois river with Lake Michigan, and granted certain
lands in aid of the project. A further land grant was made in 1827. The canal
was completed in 1848. The canal crossed the continental divide between the
Chicago and Des Plaines rivers, on a summit level 8 feet above the lake, and
then paralleled the Des Plaines river and the Upper Illinois river to La Salle,
Ill., where it entered the latter stream. The summit of the canal was supplied
with water by pumps located in a plant on the Chicago river. Originally, only
enough water was pumped to answer the needs of navigation in the canal, but
thereafter, in 1861, the Legislature provided for improvement in the canal by
excavation and a larger flow of water from Lake Michigan.

Before 1865, the Chicago river, being a sluggish stream in its lower reaches,
had become so offensive, because of receiving the sewage of the rapidly
growing city, that for its immediate relief the municipal authorities and the
canal commissioners agreed to pump water from the river in excess of the
needs of navigation. By 1872 the summit level of the canal had been lowered,
and it was hoped that this would result in a permanent flow of lake water
through the south branch of the Chicago river, sufficient to keep it in good
condition, but the plan failed, and the canal again became grossly polluted.

10

In 1881, the Illinois Legislature passed a resolution authorizing the installation

of pumps at the northern terminus of the canal, with a capacity of not less than
1,000 cubic feet a second, to draw water from Lake Michigan through the
Chicago river and the canal. Pumps were installed and pumping was begun in
1883. For a few years this afforded sufficient dilution in the canal because of
the high stage of Lake Michigan, but in 1886 the lake level began to fall, and
continued to fall until 1891, when it was two feet lower than when the pumps
were installed. Their capacity was thus reduced to a little more than 600 cubic
feet a second. The nuisance along the canal continued to grow. The drainage
and water supply commission of the state recommended, as the most

economical method for meeting the requirement, a discharge into the Des
Plaines river through a canal across the continental divide, providing a
waterway of such dimensions as would furnish ample dilution. The commission
pointed out that the proposed canal would, from its necessary dimensions and
its regular discharge, produce a magnificent waterway between Chicago and the
Mississippi river, suitable for navigation of boats having as much as 2,000 tons
burden, and would give also large water power of great commercial value to the
state.
11

The Sanitary District was organized under the Illinois act of 1889 (Laws 1889,
p. 125). It was completed in 1890. It embraced an area of 185 square miles. By
later acts it was increased to approximately 438 square miles, extending from
the Illinois state line on the south and east to the northern boundary of Cook
county on the north, with about 34 miles of frontage on Lake Michigan,
embracing the metropolitan area of Chicago, consisting of a total of 54 cities,
towns, and villages.

12

The main drainage canal was begun in 1892, and was opened in January, 1900.
Since that time the flow of the Chicago river has been reversed; that is, it has
been made to flow away from Lake Michigan toward the Mississippi. As
originally constructed, the canal ended in a nonnavigable tail race. There was
no lock at the southwestern end. But by the Act of May 14, 1903 (Laws 1903,
p. 113), the Illinois Legislature gave the Sanitary District the power to construct
dams, water wheels, and other works appropriate to render available the power
arising from the water passing through the main channel and any auxiliary
channels thereafter constructed.

13

In 1908, the Constitution of Illinois was amended to authorize the Legislature to

provide for the construction of a deep waterway or canal, from the water power
plant of the Sanitary District of Chicago, at or near Lockport, to a point on the
Illinois river at or near Utica, and to provide that this power might be leased for
the benefit of the state treasury. Meantime, all the sewage in the drainage
district, including Evanston, was turned into the main channel, and the water
directly abstracted from Lake Michigan by the Sanitary District was increased
from 2,541 cubic feet a second in 1900 to 5,751 in 1909, to 7,228 in 1916 to
6,888 cubic feet a second in 1926, not including pumpage.

14

The Sanitary District authorities have expended in the construction of works for
sewage and the deep waterway canal $109,021,613, including interest on
bonds.

15

In 1888, Congress directed the Secretary of War to make surveys for a channel

15

In 1888, Congress directed the Secretary of War to make surveys for a channel
improvement in the Illinois and Des Plaines rivers. In 1892, Congress
appropriated $72,000 to complete the improvement of the harbor at Chicago,
and again $25,000 in 1894. Three engineers appointed by the Secretary of War
reported to him that a diversion of 10,000 cubic feet a second through the
Sanitary and Ship Canal would lower the levels of the lakes, except Lake
Superior. In 1896, Congress appropriated money for dredging the Chicago
river. The Sanitary District in that year asked for a permit from the Secretary of
War to enlarge the cross-section of the Chicago river, and announced that the
work had progressed so far that this must be done to make available the
artificial channel under construction from Robey street, Chicago, to Lockport,
28 miles distant. The Secretary of War granted the permit, but said that this
authority was not to be interpreted as an approval of the plans of the Sanitary
District of Chicago to introduce a current into the Chicago river; that the United
States should not be put to any expense, and that the authority was to expire by
limitation in 2 years. Other permits relating to the same subject were issued by
the same officer in 1897, 1898, and twice in 1899. The act of Congress of 1899
amplified the provisions of an earlier act of 1890 (26 Stat. 452) looking to the
regulation, prevention, and removal by federal authority of obstructions to
navigation and alteration of capacity of the navigable waters of the United
States by enacting sections 9 and 10 thereof (33 USCA 401, 403).

16

Other permits were allowed by the Secretary of War-one on December 5, 1901,

allowing a diversion of 250,000 cubic feet per minute throughout the full 24
hours of each day. And in another instance on January 17, 1903, a diversion of
350,000 cubic feet per minute until March 31, 1903, was permitted, in order to
carry off the accumulations of sewage deposit lining the shores along the city,
with the provision that after that, the flow should be reduced to 250,000 cubic
feet per minute as required by the permit of December, 1901. The Board of
Engineers in 1905 reported to Congress that the effect upon the level of Lake
Michigan of withdrawing 10,000 cubic feet per second for an indefinite period
had been the subject of elaborate investigation, and that the conclusion reached
was that the final effect would be to lower the level of the lake six inches.

17

An application for the flow of more water through the Calumet Sag Channel
was declined by the Chief of Engineers, and was refused by the Secretary of
War in March, 1907, and as the Sanitary District apparently intended to proceed
with the work for which a permit had been refused, the United States brought
suit in 1908 to prevent its construction and prevent the increase of the flow.
Another application was refused by the Secretary of War in January, 1913, and
there seems to have been another denied later.

18

A second bill to enjoin the Sanitary District from a diversion of more than

250,000 cubic feet per minute or its equivalent 4,167 cubic feet a second of
water from Lake Michigan was filed and was consolidated with the earlier suit,
and after a long delay of 6 or 7 years an oral opinion was given by Judge
Landis of the United States District Court for the Northern District of Illinois in
favor of the Government. A decree not having been entered before Judge
Landis resigned, a decree was entered by Judge Carpenter in the case, which
was affirmed by this court in January, 1925. Sanitary District of Chicago v.
United States, 266 U. S. 405, 45 S. Ct. 176, 69 L. Ed. 352.
19

This court's decree provided that the defendant, the Sanitary District of
Chicago, its agents, and all other persons acting or claiming or assuming to act
under its authority, should be enjoined from diverting or abstracting any waters
from Lake Michigan over and above or in excess of 250,000 cubic feet per
minute, to go into effect in 60 days, without prejudice to any permit that might
be issued by the Secretary of War according to law.

20

Immediately after this decision, the Sanitary District applied to the Secretary of
War for permission to divert 10,000 cubic feet a second. The exigency was set
out in the petition. The Secretary of War then issued a permit on March 3,
1925, which recited that the instrument did not give any property rights either in
real estate or material, or any exclusive privileges, and that it did not authorize
any injury to private property or invasion of private rights, or any infringement
of federal, state, or local laws or regulations, or obviate the necessity of
obtaining the state's assent to the work authorized. It certified that upon the
recommendation of the Chief of Engineers, the Secretary of War, under section
10 of the act of 1899 (33 USCA 403), authorized the Sanitary District to
divert from Lake Michigan an amount of water not to exceed an annual average
of 8,500 cubic feet per second, the instantaneous maximum not to exceed
11,000 cubic feet per second, upon certain conditions.

21

The conditions of the permit require the city of Chicago to take immediate steps
to carry out sewage treatment by artificial processes, so that before the
expiration of the permit they should provide the equivalent of 100 per cent.
treatment of the sewage of 1,200,000 people, or one-third of the population of
the city, and that this should be done under supervision of the United States
District Engineer at Chicago, the permit to be revoked if the conditions were
not complied with, and the permit to cease unless renewed on December 31,
1929. In granting the permit, the Secretary of War expressed the opinion that
steps should be taken to complete the entire work of providing for disposal of
all the sewage in 10 years. Colonel Schultz, United States District Engineer at
Chicago, reported that the conditions of the March 3, 1925, permit have been
complied with, and the master confirms this in his report.

22

In providing for the improvement of the channel of the Illinois river in the Act
of January 21, 1927, c. 47; 44 Stat. 1013, Congress declared that nothing in the
act should be construed as authority for any diversion from Lake Michigan.

23

The master's findings on the subject of injury to the complainants are in effect
as follows:

24

The diversion which has taken place through the Chicago Drainage Canal has
been substantially equivalent to a diversion of about 8,500 cubic feet a second
for a period of time, sufficient to cause, and it has caused, the lowering of the
mean levels of the lakes and the connecting waterways, as follows: Lakes
Michigan and Huron approximately 6 inches; Lakes Erie and Ontario
approximately 5 inches; and of the connecting rivers, bays, and harbors to the
same extent respectively. A diversion of an additional 1,500 cubic feet per
second, or a total diversion of 10,000 cubic feet a second, would cause an
additional lowering in Lakes Michigan and Huron of about one inch, and in
Lakes Erie and Ontario a little less than one inch, with a corresponding
additional lowering in the connecting waterways. The master also finds that, if
the diversion at Chicago were ended, assuming that other diversions remained
the same, the mean levels of the lakes and rivers affected by the Chicago
drainage would be raised in the course of several years (about 5 years in the
case of Lakes Michigan and Huron, and about 1 year in the case of Lakes Erie
and Ontario) to the same extent as they had been lowered, respectively, by that
diversion.

25

The master finds that the damage due to the diversion at Chicago relates to
navigation and commercial interests, to structures, to the convenience of
summer resorts, to fishing and hunting grounds, to public parks and other
enterprises, and to riparian property generally, but does not report that injury to
agriculture is established. He says that the Great Lakes and their connecting
channels form a natural highway for transportation, having a water surface of
over 95,000 square miles, and a shore line of 8,300 miles, extending from
Duluth-Superior, and from Chicago and Gary, to Montreal, at the head of
deepdraft ocean navigation on the St. Lawrence; that there are approximately
400 harbors on the Great Lakes and connecting channels, of which about 100
have been improved by the federal government; that the latter improvements
consist in the excavation and maintenance of channels from deep water in the
lakes to the harbor entrances; that inner or local harbors are located inside of
the federal channels, and the depths in the inner harbors have been obtained and
are maintained at local expense; that inner harbors are necessary to afford
practical navigation; that extensive and expensive loading, unloading, and other
terminal facilities have been constructed in these various ports within the

territory of the complainant states, on the Great Lakes, at local expense.

26

The master's report says that the waterborne traffic on the Great Lakes for the
year 1923 consisted of 81,466,902,000 ton-miles of water haul, and that
consideration of individual loaded boats and of their respective dimensions
shows that, if water had been available for an additional 6 inches of draft, the
fleet could have handled for the year 3,346,000 tons more than was actually
transported, or to put the matter in another light, the season's business could
have been done with the elimination from service of about 30 freighters of the
2,000-3,000 ton class, and that the lost tonnage of the total through business of
the Lakes for 1923, incident to a 6-inch deficiency of draft, exceeded 4,000,000
tons, and that the average water-haul rate for the year was 88 cents per ton.

27

The great losses to which the complainant states and their citizens and their
property owners have been subjected by the reductions of levels in the various
lakes and rivers, except Lake Superior, are made apparent by these figures.

28

The pleadings question the jurisdiction of this court and the sufficiency of the
facts set forth in the bills to constitute a cause of action. These issues, although
raised, are not pressed by the defendants and we concur with the master in his
conclusion that they are met completely by our previous decisions. Missouri v.
Illinois, 180 U. S. 208, 21 S. Ct. 331, 45 L. Ed. 497; Id., 200 U. S. 496, 26 S.
Ct. 268, 50 L. Ed. 572; Hans v. Louisiana, 134 U. S. 1, 10 S. Ct. 504, 33 L. Ed.
842; Sanitary District of Chicago v. United States, 266 U. S. 405, 45 S. Ct. 176,
69 L. Ed. 352; Kansas v. Colorado, 185 U. S. 125, 22 S. Ct. 552, 46 L. Ed. 838;
Id., 206 U. S. 46, 27 S. Ct. 655, 51 L. Ed. 956; New York v. New Jersey, 256
U. S. 296, 41 S. Ct. 492, 65 L. Ed. 937; Wyoming v. Colorado, 259 U. S. 419,
42 S. Ct. 552, 66 L. Ed. 999; North Dakota v. Minnesota, 263 U. S. 365, 44 S.
Ct. 138, 68 L. Ed. 342; Pennsylvania v. West Virginia, 262 U. S. 553, 623, 43
S. Ct. 658, 67 L. Ed. 1117, 32 A. L. R. 300; Id., 263 U. S. 350, 44 S. Ct. 123,
67 L. Ed. 1144; Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, 27 S.
Ct. 618, 51 L. Ed. 1038, 11 Ann. Cas. 488.

29

The controversies have taken a very wide range. The exact issue is whether the
state of Illinois and the Sanitary District of Chicago by diverting 8,500 cubic
feet from the waters of Lake Michigan have so injured the riparian and other
rights of the complainant states bordering the Great Lakes and connecting
streams by lowering their levels as to justify an injunction to stop this diversion
and thus restore the normal levels. Defendants assert that such a diversion is the
result of congressional action in the regulation of interstate commerce, that the
injury, if any, resulting is damnum absque injuria to the complaining states.
Those states reply that the regulation of interstate commerce under the

Constitution does not authorize the transfer by Congress of any of the navigable
capacity of the Great Lakes system of waters to the Mississippi basin, that is
from one great watershed to another; second, that the transfer is contrary to the
provision of the Constitution forbidding the preference of the ports of one state
over those of another; and, third, that the injuries to the complainant states
deprive them and their citizens and property owners of property without due
process of law, and of the natural advantages of their position, contrary to their
sovereign rights as members of the Union. If one of these issues is decided in
favor of the complaining states, it ends the case in their favor, and the diversion
must be enjoined. But in the view which we take respecting what actually has
been done by Congress some of these objections need not be considered or
passed upon.
30

The complainants, even apart from their constitutional objections, contend that
Congress has not, by statute or otherwise, authorized the Lake Michigan
diversion, that it is therefore illegal, and that injuries by it to the complainant
states and their people should be forbidden by decree of this court. The
diversion of 8,500 cubic feet a second is now maintained under a permit of the
Secretary of War of March 3, 1925, acting under section 10 of the act of 1899,
which it is contended by the complainants vests no such authority in him. They
claim that the diversion is based on a purpose not to regulate navigation of the
lake, but merely to get rid of the sewage of Chicago; that this is a state purpose,
not a federal function, and should be enjoined to save the rights of
complainants. If the view urged by the complainants is right, the necessity for
the use of the 8,500 cubic feet a second to save the health of the inhabitants of
the Sanitary District will then present the problem of the power and discretion
of a court of equity to moderate the strict and immediate rights of the parties
complainant to a gradual one which will effect justice as rapidly as the situation
permits. The framing of the decree will then require the careful consideration of
the court.

31

The complainants contend that Congress has given no authority for the
diversion from Lake Michigan, even if it has power so to do by way of
regulating interstate commerce. The defendants rely for this authority on the
permit of the Secretary of War issued by him March 3, 1925, to the Sanitary
District shortly after the decree of this court in the Sanitary District v. United
States, 266 U. S. 405, 45 S. Ct. 176, 69 L. Ed. 352. That decree forbade the
diversion of the waters from Lake Michigan in excess of 4,167 cubic feet a
second, but was made expressly without prejudice to any permit issued by the
Secretary of War according to law. The complainants contend that the permit
which allows a diversion of 8,500 cubic feet a second is not in regulation of
interstate commerce, is not according to law and should be declared invalid.

32

The defendants base their claim of congressional authority on section 10 of the

Act of March 3, 1899, c. 425, 30 Stat. 1151:

33

'That the creation of an 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 build or commence the building of any
wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other
structures in any port, roadstead, haven, harbor, canal, navigable river, or other
water of the United States, outside established harbor lines, or where no harbor
lines have been established, except on plans recommended by the Chief of
Engineers and authorized by the Secretary of War; 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.'

34

The policy carried out in the Act of March 3, 1899, had been begun in the Act
of September 19, 1890, c. 907, 26 Stat. 454, 455. Sections 9 and 10 were the
rearranged result of the provisions of sections 7 and 10 of the act of 1890. A
new classification was made in sections 9 and 10 of the act of 1899, and
substituted for section 10 of the act of 1890. The latter provided that the
creation of any obstruction to navigable capacity was prohibited, unless
'affirmatively authorized by law' (33 USCA 403a), and this was changed so as
to read 'affirmatively authorized by Congress.' 33 USCA 403. The change in
the words of the first clause of section 10 was intended to make mere state
authorization inadequate. Sanitary District v. United States, 266 U. S. 405, 429,
45 S. Ct. 176, 69 L. Ed. 352; United States v. Bellingham Bay Boom Co., 176
U. S. 211, 20 S. Ct. 343, 44 L. Ed. 437. It was not intended to override the
authority of the state to put its veto upon the placing of obstructing structures in
navigable waters within a state, and both state and federal approval were made
necessary in such case. Cummings v. Chicago, 188 U. S. 410, 23 S. Ct. 472, 47
L. Ed. 525. The words 'affirmatively authorized by Congress' should be
construed in the light of the administrative exigencies which prompted the
delegation of authority in the succeeding clauses. Congress, having stated in
section 9 as to what particular structures its specific consent should be required,
intended to leave to the Secretary of War, acting on the recommendation of the
Chief of Engineers, the determination of what should be approved and
authorized in the classes of cases described in the second and third clauses of
section 10. If the section were construed to require a special authorization by
Congress whenever in any aspect it might be considered that there was an

obstruction to navigable capacity, none of the undertakings specifically

provided for in the second and third clauses of section 10 could safely be
undertaken without a special authorization of Congress. We do not think this
was intended. The Supreme Court of Maine, in Maine Water Co. v.
Knickerbocker Steam Towage Co., 90 Me. 473, 59 A. 953, took the same
general view in construction of the same section. It held that the broad words of
the first clause of that section were not intended to limit the second and third
clauses and that Congress' purpose was a direct prohibition of what was
forbidden by them, except when affirmatively approved by the Chief of
Engineers and the Secretary of War. We concur in this view.
35

The true intent of the act of Congress was that unreasonable obstructions to
navigation and navigable capacity were to be prohibited, and, in the cases
described in the second and third clauses of section 10, the Secretary of War,
acting on the recommendation of the Chief of Engineers, was authorized to
determine what in the particular cases constituted an unreasonable obstruction.

36

This construction of section 10 is sustained by the uniform practice of the War

Department for nearly 30 years. Nothing is more convincing in interpretation of
a doubtful or ambiguous statute. United States v. Minnesota, 270 U. S. 181,
205, 46 S. Ct. 298, 70 L. Ed. 539; Swendig v. Washington Water Power Co.,
265 U. S. 322, 331, 44 S. Ct. 496, 68 L. Ed. 1036; Kern River Co. v. United
States, 257 U. S. 147, 154, 42 S. Ct. 60, 66 L. Ed. 175; United States v.
Burlington & Missouri River R. R., 98 U. S. 334, 341, 25 L. Ed. 198; United
States v. Hammers, 221 U. S. 220, 228, 31 S. Ct. 593, 55 L. Ed. 710; Logan v.
Davis, 233 U. S. 613, 627, 34 S. Ct. 685, 58 L. Ed. 1121.

37

The practice is shown by the opinion of the Acting Attorney General,

transmitted to the Secretary of War. 34 Op. Attys. Gen. 410, 416. The Secretary
of War acted on this view on May 8, 1899, about two months after the passage
of the act. This was followed by the permits subsequently granted down to
March 3, 1925. The fact that the Secretary of War acted on this view was made
known to Congress by many reports.

38

But it is said the construction thus favored would constitute it a delegation by

Congress of legislative power and invalid. We do not think so. The
determination of the amount that could be safely taken from the lake is one that
is shown by the evidence to be a peculiarly expert question. It is such a
question as this that is naturally within the executive function that can be
deputed by Congress. Southern Pacific Co. v. Olympian Dredging Co., 260 U.
S. 205, 208, 43 S. Ct. 26, 67 L. Ed. 213; Sanitary District v. United States, 266
U. S. 405, 428, 45 S. Ct. 176, 69 L. Ed. 352; Field v. Clark, 143 U. S. 649, 693,

12 S. Ct. 495, 36 L. Ed. 294; Butterfield v. Stranahan, 192 U. S. 470, 496, 24 S.

Ct. 349, 48 L. Ed. 525; Union Bridge Co. v. United States, 204 U. S. 364, 386,
27 S. Ct. 367, 51 L. Ed. 523; Monongahela Bridge Co. v. United States, 216 U.
S. 177, 192, 30 S. Ct. 356, 54 L. Ed. 435; Louisville Bridge Co. v. United
States, 242 U. S. 409, 424, 37 S. Ct. 158, 61 L. Ed. 395; J. W. Hampton, Jr., &
Co. v. United States, 276 U. S. 394, 407, 48 S. Ct. 348, 72 L. Ed. 624.
39

The construction of section 10 of the Act of March 3, 1899, was settled by this
court in the decision of the first Chicago Drainage Canal Case in 266 U. S. 405,
429, 45 S. Ct. 176, 69 L. Ed. 352. The decision there reached and the decree
entered cannot be sustained, except on the theory that the court decided, first,
that Congress had exercised the power to prevent injury to the navigability of
Lake Michigan and the other lakes and rivers in the Great Lakes watershed;
and, second, that it could properly and validly confer the administrative
function of passing on the issue of unlawful injury or otherwise on the
Secretary of War, and that it had done so. To give any other interpretation
would necessarily be at variance with our previous decision.

40

It is further argued by complainants that while the power of Congress extends

to the protection and improvement of navigation, it does not extend to its
destruction or to the creation of obstructions to navigable capacity. This court
has said that while Congress, in the exercise of its power, may adopt any means
naving some positive relation to the control of navigation and not otherwise
inconsistent with the Constitution (United States v. Chandler-Dunbar Co., 229
U. S. 53, 62, 33 S. Ct. 667, 57 L. Ed. 1063), it may not arbitrarily destroy or
impair the rights of riparian owners by legislation which has no real or
substantial relation to the control of navigation or appropriateness to that end
(United States v. River Rouge Improvement Co., 269 U. S. 411, 419, 46 S. Ct.
144, 70 L. Ed. 339; Port of Seattle v. Oregon & Washington R. R., 255 U. S.
56, 63, 41 S. Ct. 237, 65 L. Ed. 500).

41

So complainants urge that the diversion here is for purposes of sanitation and
development of power only, and therefore that it lies outside the power
confided by Congress to the Secretary of War. The master says:

42

'There is no doubt that the diversion is primarily for the purposes of sanitation.
Whatever may be said as to the service of the diverted water in relation to a
waterway to the Mississippi, or as to the possible benefit of its contribution to
the navigation of that river at low water stages, it remains true that the
disposition of Chicago's sewage has been the dominant factor in the promotion,
maintenance and development of the enterprise by the state of Illinois and the
Sanitary District. The purpose of utilizing the flow through the drainage canal

to develop power is also undoubtedly present, although subordinated to the

exigency of sanitation. So far as the diverted water is used for the development
of power, the use is merely incidental. This court, in Sanitary District v. United
States, 266 U. S. 405, 424, 45 S. Ct. 176, 69 L. Ed. 352, in describing the
channel, looked upon its interest to the Sanitary District 'primarily as a means to
dispose of the sewage of Chicago,' although it was also 'an object of attention to
the United States as opening water communication between the Great Lakes
and the Mississippi and the Gulf."
43

The master then considered whether there was any express authorization of the
diversion now permitted, except under sections 9 and 10 of the Act of March 3,
1899, already referred to. On this subject he said:

44

'Consideration by Congress of the advisability of the proposed waterway from

Lake Michigan to the Illinois and Mississippi Rivers, demands by Congress for
surveys, plans and estimates, the establishment of project depths, and
appropriations for specified purposes, did not in my opinion constitute direct
authority for the diversion in question, however that diversion, or the diversion
of some quantity of water from Lake Michigan, might fit into an ultimate plan.'

45

This conclusion of the master is fully supported by reference to the already

cited Rivers and Harbors Appropriation Act of 1927, declaring that nothing
therein should authorize any Lake Michigan diversion.

46

The master also says that appropriations for widening and deepening the
Chicago river, and the co-operation with the Sanitary District for several years
in that improvement, merely committed Congress to the work as thus actually
prescribed, but did not go further, whatever the advantages of that work in
connection with the purposes of the Sanitary District's canal.
He then proceeds:

47

'There is nothing in any of the acts of Congress upon which the defendants rely
specifying any particular quantity of water which could be diverted and it could
hardly be considered a reasonable contention that the acts of Congress justified
any diversion of water from Lake Michigan that the state of Illinois and the
Sanitary District might see fit to make. It is manifest that it was the view of the
War Department that Congress had not acted directly and whatever the
department did was subject to such action as Congress might take.'
The continues:

48

'This understanding that Congress has not yet acted directly so as to authorize
the diversion in question has continued. It was in this view that the United
States prosecuted its suit to decree in this court to enjoin the defendants from
taking more water from Lake Michigan than the Secretary of War had allowed.'

49

In this conclusion, which the court confirms, we are therefore remitted solely to
the effect and operation of the permit of 1925 as authority for the maintenance
of the diversion.

50

The normal power of the Secretary of War under section 10 of the Act of March
3, 1899, is to maintain the navigable capacity of Lake Michigan and not to
restrict it or destroy it by diversions. This is what the Secretaries of War and the
Chiefs of Engineers were trying to do in the interval between 1896 and 1907
and 1913, when the applications for 10,000 cubic feet a second were denied by
the successive Secretaries, and in 1908 a suit was brought by the United States
to enjoin a flow beyond 4,167 cubic feet a second. Then, pending the suit, the
Sanitary District disobeyed the restriction of the Secretary of War's permit and
increased the diversion to 8,500 cubic feet in order to dispose of the sewage of
that district. Had an injunction then issued and been enforced, the port of
Chicago almost immediately would have become practically unusable, because
of the deposit of sewage without a sufficient flow of water through the canal to
dilute the sewage and carry it away. In the nature of things it was not
practicable to stop the deposit without substituting some other means of
disposal. This situation gave rise to an exigency which the Secretary, in the
interest of navigation and its protection, met by issuing a temporary permit
intended to sanction for the time being a sufficient diversion to avoid
interference with navigation in the port of Chicago. See New York v. New
Jersey, 256 U. S. 296, 307, 308, 41 S. Ct. 492, 65 L. Ed. 937. The elimination
and prevention of this interference was the sole justification for expanding the
prior permit, the limitations of which had been disregarded by the Sanitary
District. Merely to aid the district in disposing of its sewage was not a
justification, considering the limited scope of the Secretary's authority. He
could not make mere local sanitation a basis for a continuing diversion.
Accordingly he made the permit of March 3, 1925, both temporary and
conditional-temporary in that it was limited in duration and revocable at will,
and conditional in that it was made to depend on the adoption and carrying out
by the district of other plans for disposing of the sewage.

51

It will be perceived that the interference which was the basis of the Secretary's
permit, and which the latter was intended to eliminate, resulted directly from
the failure of the Sanitary District to take care of its sewage in some way other
than by promoting or continuing the existing diversion. It may be that some

flow from the lake is necessary to keep up navigation in the Chicago river
which really is part of the port of Chicago, but that amount is negligible as
compared with 8,500 second feet now being diverted. Hence, beyond that
negligible quantity, the validity of the Secretary's permit derives its support
entirely from a situation produced by the Sanitary District in violation of the
complainants' rights, and but for that support complainants might properly press
for an immediate shutting down by injunction of the diversion, save any small
part needed to maintain navigation in the river. In these circumstances we think
they are entitled to a decree which will be effective in bringing that violation
and the unwaranted part of the diversion to an end. But in keeping with the
principles on which courts of equity condition their relief, and by way of
avoiding any unnecessary hazard to the health of the people of that section, our
decree should be so framed as to accord to the Sanitary District a reasonably
practicable time within which to provide some other means of disposing of the
sewage, reducing the diversion as the artificial disposition of the sewage
increases from time to time, until it is entirely disposed of thereby, when there
shall be a final, permanent, operative and effective injunction.
52

It is very apparent from the report of the master and from the state legislation,
that the Legislature of Illinois and the Sanitary District have for a long period
been strongly insistent upon such a use of the waters of Lake Michigan as
would dispose of the sewage of the district and incidentally furnish a navigable
water route from Lake Michigan to the Mississippi basin, and that not until
1903 was the attention of the public, and especially of the district authorities,
drawn to the fact that a diversion like that now used would lower the lake levels
with injurious consequences to the Great Lakes navigation and to the
complainant states. The Secretary of War and the Chief of Engineers in 1907
refused a permit by which there would be more than 4,167 feet a second
diverted. Advised that the district authorities proposed to ignore that limitation,
the United States brought suit against the authorities of the district to enjoin any
diversion in excess of that quantity, as fixed in an earlier permit. Another
application for enlargement was made to Secretary of War Stimson in 1913 and
was rejected. For several years, including the inexcusable delays made possible
by the failure of the federal court in Chicago to render a decision in the suit
brought by the United States, the district authorities have been maintaining the
diversion of 8,500 cubic feet per second or more on the plea of preserving the
health of the district. Putting this plea forward has tended materially to hamper
and obstruct the remedy to which the complainants are entitled in vindication of
their rights, riparian and other.

53

The intervening states on the same side with Illinois, in seeking a recognition of
asserted rights in the navigation of the Mississippi, have answered denying the

rights of the complainants to an injunction. They really seek affirmatively to

preserve the diversion from Lake Michigan in the interest of such navigation
and interstate commerce though they have made no express prayer therefor. In
our view of the permit of March 3, 1925, and in the absence of direct authority
from Congress for a waterway from Lake Michigan to the Mississippi, they
show no rightful interest in the maintenance of the diversion. Their motions to
dismiss the bills are overruled, and, so far as their answer may suggest
affirmative relief, it is denied.
54

In increasing the diversion from 4,167 cubic feet a second to 8,500, the
Sanitary District defied the authority of the national government resting in the
Secretary of War. And in so far as the prior diversion was not for the purposes
of maintaining navigation in the Chicago river it was without any legal basis,
because made for an inadmissible purpose. It therefore is the duty of this court
by an appropriate decree to compel the reduction of the diversion to a point
where it rests on a legal basis, and thus to restore the navigable capacity of
Lake Michigan to its proper level. The Sanitary District authorities, relying on
the argument with reference to the health of its people, have much too long
delayed the needed substitution of suitable sewage plants as a means of
avoiding the diversion in the future. Therefore they cannot now complain if an
immediately heavy burden is placed upon the district because of their attitude
and course. The situation requires the district to devise proper methods for
providing sufficient money and to construct and put in operation with all
reasonable expedition adequate plants for the disposition of the sewage through
other means than the lake diversion.

55

Though the restoration of just rights to the complainants will be gradual, instead
of immediate, it must be continuous and as speedy as practicable, and must
include everything that is essential to an effective project.

56

The court expresses its obligation to the master for his useful, fair, and
comprehensive report.

57

To determine the practical measures needed to effect the object just stated and
the period required for their completion there will be need for the examination
of experts; and the appropriate provisions of the necessary decree will require
careful consideration. For this reason, the case will be again referred to the
master for a further examination into the questions indicated. He will be
authorized and directed to hear witnesses presented by each of the parties, and
to call witnesses of his own selection, should he deem it necessary to do so, and
then with all convenient speed to make report of his conclusions and of a form
of decree.

58

It is so ordered.