OCR Text |
Show -100- that all diversions in excess of such requirements-which are relatively light- and especially diversions in aid merely of local sanitation, are illegal; that the normal power of the Secretary of War under existing acts of Congress is to maintain the navigable capacity of Lake Michigan and not to restrict or destroy it by diversions, but that his temporary permit for larger diversions in aid of sanitation pending the establishment of facilities for sewage disposal other than by dumping in the Chicago drainage canal was in truth a permissible measure to protect navigation in the Port of Chicago during the emergency caused by the unlawful acts of the Sanitary District. Upon the same theory the Court declined to order the immediate issuance of an injunction to abate the existing injury to navigation on the Great Lakes and to the riparian property of the complaining States, but referred the case back to the special master for a finding and re- port as to the length of time required for the Sanitary District of Chicago to provide other means of sewage disposal; upon the confirmation of which report the Court has declared "there shall be a final, permanent, operative and ef- fective injunction." The litigants were left in the dark as to whether Congress may constitution- ally authorize a Lakes-to-t he-Gulf Waterway, incidentally solving the Chicago sewage problem, but increasing navigable capacity of the Mississippi by its corresponding reduc'tion in the Treat Lakes; or as to whether any compensation may be claimed by the lake States for injuries suffered prior to judgment and for the continued infliction of such injuries, as permitted by the Court, during gradual cessation by the wrongdoer. If a decision of the Court in a controversy between States is a constitutional substitute for diplomatic adjustment, as has been frequently asserted, then it is difficult to justify the decision in the Chicago diversion case which establishes the existence of unlawful injury but affords no redress except a continuing future diminution to the vanishing point more or less at the convenience of the offender. The decision appears to have been based upon strict legal rights; therefore, it was not a case for balancing of conveniences. The Court found no fault in the conduct of the complaining States; so there was no estoppel, and no "equity to be doneft on their part* But -the Court was confronted with more than legal theories. Was the main- tenance oi* navigation in the Port of Chicago the whole reason for the unusual prayer therefor. In our view of the permit of March 3j 1925* and in the absence of direct authority from Congress for a waterway from Lake Michigan to the Miss- issippi^ -they show no rightful interest in the maintenance of the diversion* . • "In increasing the diversion from U,l67 cubic feet a second to 8,500, the Drainage 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 second report of the special master, made about ITov* 1, 1929> recom- mended a clecree requiring the Sanitary District to reduce diversion ultimately to 1500 c«f.s» - the amount required for navigation only-by completing all ne- cessary sewage treatment works progressively through the years ending on Dec. JI |