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Show 650 INTERSTATE ADJUDICATIONS It is further argued by complainants that while the power of Con- gress 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 having some positive relation to the control of navigation and not otherwise inconsistent with the Constitution, United States v. Ghandler-Dunbar Co., 229 U.S. 53, 62, it may not arbitrarily destroy or impair the rights of riparian owners by legislation which has no real or substantial rela- tion to the control of navigation or appropriateness to that end. United States v. River Rouge Improvement Go., 269 U.S. 411, 419; Port of Seattle v. Oregon <& Washington R.R., 255 U.S. 56, 63. 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: "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 pos- sible 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 inci- dental. This Court, in Sanitary District v. United States, 266 U.S. 405, 424, 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.' " The Master then considered whether there was any express author- ization of the diversion now permitted, excerpt under Sections 9 and 10 of the Act of March 3, 1899, already referred to. On this subject he said: "Consideration by Congress of the advisability of the proposed waterway from Lake Michigan to the Illinois and Mississippi Elvers, demands by Congress for surveys, plans and estimates, the establish- ment 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." 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. The Master also says that appropriations for widening and deepen- ing the Chicago River, and the cooperation 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, what- ever the advantages of that work in connection with the purposes of the Sanitary District's Canal. |