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Show -97- a continuance of very substantial diversions seems to have been contemplated a year later in the Root-Bryce treaty allowing Canada to divert nearly twice as much water as the United States at Niagara Falls, doubtless in part to balance the existing Chicago diversion and maintain the equality of right and benefit between the two nationse^-92 However that may be, the suit of the United States was delayed seventeen years before a final decision in the United States Supreme Court adverse to the Sanitary District was rendered directing an injunction to prevent unauthorized diversions, but without pre- judice to any permit for further diversions which the Secretary of War might see fit to issue.193 In that decision the Court, after discussing the ob- ligations of the Root-Bryce treaty and a possible "ultimate sovereign interest" of the United States in the Great Lakes, nevertheless placed its decision squarely upon the commerce clause of the federal constitution, saying; "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 ¦^^ The history of preliminary investigations and the making of the treaty, with its provision for diversion "by both nations in unequal amount near Niagara Falls, is set forth in the briefs for Illinois, in Wisconsin v. Illinois, 278 U«S, 367, L& Sup, Ct* I63, 73 L» Ed. i|26 (1929), which quote Secretary Root's explanation from "Proceedings Foreign Relations Committee, 57-62, Congress, pp« 271-2," as followsj "The great bulk of the v;ater goes on the Canadian side, and the Waterways Commission that was appointed some time ago to deal with the question of the lake levels reports, I think, th&t 36,000 feet can be taken out on the Canadian side and 18,500 feet on the American side without injury to the Falls. I thought it wise to follow the report of the Commission, and put in 1,500 feet in addition, to get round numbers, so our limit is higher than we want, but their limit would not be cut down below, that is because there are three companies on the Canadian side who have works there. Then there is this further fact why we could not object to this 36,000 cubic feet on the Canadian side: We are now taking 10,000 cubic feet per second out of Lake Michigan at Chicago, and I refused to permit them to say anything in the treaty about it. I would not permit them to say anything about Lake Michigan* I would not have anything in th.e treaty about it, and. under the circumstances, I thought it better not to kick about this 36,000. They consented to leave out of this treaty any reference to the Drainage canal, and we are now taking 10,000 cubic feet per second for the Drainage canal, which really comes out of this lake system*tt ^Sanitary District of Chicago v. United States, 266 U.S. I4O5, I4.5 Siap. Ct. 176, 69 L. Ed. 352 (1925). The statement that the United States proba-bly has an "ultimate sovereign interest in the lakes" is not supported by any authority which this study has disclosed; nor apparently by the authorities cited by the Court, the first of which is In re Debs, I58 U.S. 56I+, 590, X5 Sup. Ct". 900, 908, 39 L. Ed. 1092, IIOI4. (1895), where in a discussion of the federal power over highways of commerce (either natural or artificial) it was said: "Both spring from the power to regulate commerce. The national govern- ment has no separate dominion over a river within the limits of a State; xts |
