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Show 648 INTERSTATE ADJUDICATIONS the problem of the power and discretion of a court of equity to moder- ate the strict and immediate rights of the parties complainant to a gradual one which will effect justice as rapidly as the situation per- mits. The framing of the decree will then require the careful consider- ation of the Court. 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. 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 diver- sion of 8,500 cubic feet a second is not in regulation of interstate commerce, is not according to law and should be declared invalid. The defendants base their claim of Congressional authority on § 10 of the Act of March 3, 1899, c. 425; 30 Stat. 1121, 1151- "That the creation of any 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 Engi- neers 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." 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. 426, 454, 455. Sec- tions 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 Sec- tions 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 ob- struction to navigable capacity was prohibited, unless "affirmatively authorized by law" and this was changed so as to read "affirmatively authorized by Congress." The change in the words of the first clause of Section 10 was intended to make mere State authorization inade- quate. Sanitary District v. United States, 266 U.S. 405, 429; United States v. Bellingham Bay Boom Co., 176 U.S. 211. It was not in- tended 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. The words "affirmatively authorized by Congress" should be construed in the light of the admin- istrative exigencies which prompted the delegation of authority in |
