17. Feasibility of remedial works to offset the effect of the Chicago 18. Works and plans for sewage treatment, sanitary district_. 4. Question of direct authorization by Congress__. 5. Authority conferred by Congress on the Secretary of War. 6. Validity and effect of permit of March 3, 1925.. Summary of conclusions. LAKE LEVELS IN THE SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1927 State of Wisconsin, State of Minnesota, State of Ohio, and State of Pennsylvania, complainants, v. State of Illinois and Sanitary District of Chicago, defendants. State of Missouri, State of Kentucky, State of Tennessee, State of Louisiana, State of Mississippi, and State of Arkansas, intervening defendants. No. 7, Original. State of Michigan, complainant, v. State of Illinois and Sanitary District of Chicago, defendants. No. 11, Original. State of New York, complainant, v. State of Illinois and Sanitary District of Chicago, defendants. No. 12, Original. REPORT OF THE SPECIAL MASTER To the Supreme Court of the United States: In the cause entitled State of Wisconsin et al. v. State of Illinois and Sanitary District of Chicago, State of Missouri, et al., intervening defendants, being No. 7, Original, October term, 1927, this honorable court appointed me as special master, by its order dated June 7, 1926, as follows: It is ordered that this cause be referred to Charles Evans Hughes, Esq., as the special master, with directions and 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 subject to examination, consideration, approval, modification, or other disposal by the court. The special master shall have authority (1) to employ competent stenographic and clerical assistants, (2) to fix the times and places of taking the evidence, and (3) to issue subpœnas to secure the attendance of witnesses and to administer oaths. When the special master's report of his findings of fact, conclusions of law, and recommendations for a decree is completed the clerk of the court shall cause the same to be printed; and when the same is presented to the court in printed form the parties will be accorded a reasonable time, to be fixed by the court, within which to present exceptions. The special master shall be allowed his actual expenses and a reasonable compensation for his services to be fixed hereafter by the court. The allowances to him, the compensation paid to his stenographic and clerical assistants, and the cost of printing his report shall be charged against and be borne by the parties in such proportions as the court hereafter may direct. If the parties to the related suit of State of Michigan v. State of Illinois and Sanitary District of Chicago, now pending in this court, so elect and so notify the special master they shall be permitted to participate in the taking of evidence and in the hearing before the special master in like manner and with like effect as if that suit had been consolidated with this cause by the court's order; and the court specially reserves to itself authority to order such a consolidation if it becomes proper to do so. If the appointment herein made of a special master is not accepted, or if the place becomes vacant during the recess of the court, the Chief Justice shall have authority to make a new designation, which shall have the same effect as if originally made by the court herein. By order of November 23, 1926, the court directed that the parties to the suit of the State of New York v. State of Illinois and Sanitary District of Chicago be permitted to participate in the taking of evidence in the hearing before the special master in like manner as if the suit of the State of Wisconsin and that of the State of New York had been consolidated. All the parties, complainants and defendants in the above-entitled suits appeared before me, as special master, by their respective counsel, at public hearings in the city of Washington, D. C., at various times between November 8, 1926, and June 3, 1927, and have presented their evidence, and have been heard in argument, with respect to the findings of fact, conclusions of law, and recommendations for a decree, which they have requested, respectively. Now, pursuant to the above-mentioned orders, I have reported the testimony and the exhibits, received by me as special master, by filing the same in the office of the clerk of this court with my certificate; and I herewith submit to the court my findings of fact, conclusions of law, and recommendations. Respectfully submitted. CHARLES E. HUGHES, Special Master. THE PLEADINGS The original bill was filed by the State of Wisconsin on July 14, 1922. The bill sought an injunction against the diversion of water from Lake Michigan through the Sanitary and Ship Canal, which extends from the Chicago River to the Des Plaines River. At the time the suit was brought there was pending in this court an appeal by the Sanitary District of Chicago from a decree in a suit brought by the United States enjoining the sanitary district from diverting water from Lake Michigan in excess of 250,000 cubic feet per minute, or 4,167 cubic feet per second, the amount then allowed by a permit of the Secretary of War. In January, 1925, this court affirmed that decree, without prejudice, however, to any permit that might be issued by the Secretary of War according to law. On March 3, 1925, the Secretary of War gave a permit allowing a diversion 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. On October 5, 1925, by leave of court the State of Wisconsin filed an amended bill, and the States of Minnesota, Ohio, and Pennsylvania became cocomplainants. The amended bill, like the original, alleged that the diversion at Chicago had caused a lowering of the level of Lakes Michigan, Huron, Erie, and Ontario, and of the waterways connecting these lakes, and of the St. Lawrence River above tide water, not less than 6 inches below the level that would otherwise exist, to the serious injury of the complainants. It was alleged that the defendant. Sanitary District of Chicago, had not complied with the conditions of the permit of March 3, 1925; that the acts of the defendants in the diversion of water from Lake Michigan had never been authorized by Congress and were in violation of the legal rights of the complainant States, and of their people, to the free and unobstructed use of Lake Michigan, and the ports and harbors thereof within the borders of said States, for the purposes of navigation, trade, and commerce, free from any interference with the navigable capacity of such waters, by any agency other than the complainant States, or the United States Government, and their rights to the free and unobstructed navigation of Lakes Michigan, Huron, Erie, and Ontario, and the navigable waters between these lakes and from tlrem into the Mississippi River and the Atlantic Ocean, both under the common law and under the express guaranty in the ordinance of June 13, 1787, for the government of the Northwest Territory; and also that the acts of the defendants were in violation of the provisions of the act of Congress of March 3, 1899, and particularly of section 10 of that act. The amended bill seeks an injunction restraining the defendants from causing any water to be taken from Lake Michigan, in such manner as permanently to divert the same from the lake. There is a further prayer that, if the Sanitary and Ship Canal shall be used as a navigable waterway of the United States and be subject to the same control on the part of the United States as other navigable waterways, the defendants shall be restrained against permanently diverting any water from Lake Michigan in excess of the amount which the court shall determine to be reasonably required for navigation in and through said canal and the connecting waters to the Illinois and Mississippi Rivers, without injury to the navigable capacity of the Great Lakes and their connecting waters. It is also prayed that the defendants be restrained from dumping or draining into the sanitary district canal any sewage or waste in such quantity and manner as excessively to pollute and render the canal, the Chicago, Des Plaines, and Illinois Rivers, insanitary and injurious to the people of the complainant States navigating said waterways. To the amended bill the State of Illinois filed a demurrer and the Sanitary District of Chicago filed its answer, which included a motion to dismiss. The States of Missouri, Kentucky, Tennessee, and Louisiana, by leave of court, became intervening codefendants and moved to dismiss the bill. The demurrer was overruled and the motions to dismiss were denied, without prejudice, on March 22, 1926; and thereupon the intervening defendants and the defendant, the State of Illinois, filed their respective answers. The States of Mississippi and Arkansas were permitted to intervene as defendants, and adopted the answers filed by the other intervening defendants. The answer of the defendant Sanitary District of Chicago denied the injuries alleged, set forth the nature of the site, the history of the canal and of the diversion of water from Lake Michigan, and its purposes, and averred authority for the diversion under 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. The answer alleged full compliance with the conditions of the permit of the Secretary of War of March 3, 1925. It also set up the defense of laches, acquiescence, and estoppel, it being alleged that the fact that the canal was to be, and was being, constructed, its purposes and the diversion of water from Lake Michigan, were known to the people and the officials of the com plainant States, and that no protest or complaint had been made in their behalf prior to the filing of the original bill of complaint. It was alleged in the answer of the defendant Sanitary District of Chicago that the lowering of the mean lake levels of Lakes Michigan, Huron, Erie, and Ontario and the connecting waterways, due to the Chicago diversion as authorized by the permit of March 3, 1925, did not, and would not, exceed 434 inches. The answer of the intervening defendants was substantially to the same effect. The answer of the State of Illinois adopted the answer of the defendant Sanitary District of Chicago, and the answers of the other defendants, except that part which averred that the lowering of the mean level of the Lakes and connecting waterways, by reason of the diversion, did not exceed 434 inches, and denied that the mean level of these waters had been lowered to any extent greater that that which would exist in the absence of such diversion. While presenting similar defenses to those of the Sanitary District of Chicago, the answer of the intervening defendants 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. The State of Michigan, on March 8, 1926, filed its bill in this court against the State of Illinois and the Sanitary District of Chicago, for the same relief; and the defendants filed their answers on June 1, 1926. On October 22, 1926, the State of New York filed its bill in this court against the State of Illinois and the Sanitary District of Chicago, for the same relief; and on April 18, 1927, it was ordered that the answer filed by the defendants in the suit brought by the State of Michigan should be accepted and treated as their answer to the bill of complaint, other than the third paragraph thereof; and subsequently, on May 31, 1927, this paragraph was stricken out, without prejudice. FINDINGS OF FACT The facts deemed to be established by the evidence, and which may be considered material to the contentions of the parties in relation to the site and 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, and the character and feasibility of works to compensate for the lowering of lake levels, or to regulate such levels, are as follows: 1. The site. The city of Chicago lies on a low prairie, between Lake Michigan and the Des Plaines River. The continental divide, separating the drainage basins of the Great Lakes-St. Lawrence system and the Mississippi River system, passes about 10 miles to the west of the southwestern end of Lake Michigan, and, in a state of nature, was from 10 to 11 feet above the level of that lake. Between the divide and the lake lay the basin of the Chicago River, with its two branches, both near the shore of the lake, the North Branch, which flows in a southerly direction, and the South Branch, flowing northerly. About 1 mile from the lake these branches unite to form the main channel of the river. It has been shown to be the opinion of competent students that, in a remote past, an earlier Lake Michigan, with a higher level, had an outlet through a river filling the lower portion of the Des Plaines Valley. But I find no |