Canada's Interest in the Recent Decision of the United States Supreme Court in the Matter of the Chicago Drainage Canal

MR. C. P. TISDALL was in the Chair and introduced the speaker, who said: The subject which your Chairman asked me to speak about is rather technical in its nature, and one which in most communities would be regarded as a dry subject for an afterdinner discourse. The question, however, of the level of the Great Lakes, and the amount of water that flows down our international rivers, is becoming increasingly important, since water is the lifeblood of our two nations. So perhaps I am justified in discussing what is more than an American lawsuit, because, while you were not parties to the record, your interests were before the Court, and were doubtless considered by the Court in reaching the determination which I feel is fair to the lake States and the lake Provinces.

The suits brought in the United States Supreme Court by the State of New York and the other States against the State of Illinois and the Sanitary District of Chicago have been finally decided by the Supreme Court ten days ago, in accordance with the claims of the complainant States. (Applause.) This lawsuit, international in its effect, has been well said to have affected more people and more property value than any other lawsuit ever brought on this continent. It has occupied a considerable portion of my own time since I undertook the office of Attorney-General of New York State on the first of January a year ago. While the Dominion of Canada and the Provinces of Ontario and Quebec were affected in the same way as the complainant States, you were not parties to the litigation, although an eminent barrister, Mr. J. Lewis Corey, of Ottawa, attended all the hearings before the Master, attended all the sessions of the Supreme Court, and was most helpful to the complainant States in his suggestions.

Our Great Lakes have a comparatively small watershed, but, by reason of the falls at Niagara and the Sault and in the St. Lawrence, their level is easily maintained, and their water-borne commerce in proportion to their extent is the greatest in the world, not only in tonnage but in value. Their shores are 8,300 miles, and there are over 400 harbours; and that means major harbours. The annual grain movement alone is nearly five hundred million bushels, and fifty million tons of ore are moved every year. As you all know, of course, vast sums of money have been spent by both Governments in deepening the harbours and channels, and the International Joint Commission has very carefully outlined the amount of water that can be taken for power purposes by both nations, both at the Sault, Niagara Falls, and ultimately, I presume, will do so at the St. Lawrence'. The natural outlet of these lakes is to the east. There is no other such water power reserve in the world, where ordinary seasonal changes do not affect the flow of water. The only thing that affects the flow of water at Niagara Falls is the course of the wind in Lake Erie; sometimes the water is raised or lowered by the wind, but there is practically no seasonal variation in the flow of the water. I presume that is true both at the Sault and at Niagara Falls. Water power matters have been much under discussion in our State in the last year, and power men tell me they know of no other situation like that in the world, where nature has provided such a wonderful reservoir.

At the time of the commencement of these suits by the complainant States, the City of Chicago, by means of an artificial channel, not authorized by any international agreement--that never came under the consideration of the International Commission, and so far as I know there has been no treaty reference to it-was diverting in the neighbourhood of 10,000 cubic feet in a second. Passing from Lake Michigan through an artificial canal, into the Illinois River, whence it flowed into the Mississippi, this diversion was for the purpose of diluting the sewage of the City of Chicago. The sewage emptied into the Chicago River, and this flow of water was intended- to dilute the sewage and carry it into and out of the Chicago River. Chicago, like your city and the other lake cities, takes its supply of water for domestic purposes from the lake, and naturally was anxious to avoid the pollution of its water supply by its sewage. Of course their problem is a much greater problem than the problem of the smaller lake cities; there is no other city on the lakes that can approach Chicago in size. So this is a very serious thing for Chicago, as well as being a serious thing for those of us who are interested in maintaining the levels of the Great Lakes.

The abstraction of this great volume of water was found to have reduced the lake levels about six inches-I think in Ontario about five inches. Now, that does not seem like so much until you realize that our harbours and channels have been dredged to a uniform depth of 21 to 22 feet. I think in the Welland Canal development a greater depth is provided for; I believe it is 25 feet over the sills. Our lake carriers, those great vessels that are carrying your grain and our ore, are built in the most economical manner and designed for the greatest depth possible, and that means the depth of the shallowest place they have to pass over. Twenty-one feet, I think, they are almost universally designed to draw. Now just see what a difference six inches makes on that. It makes a difference in the carrying capacity of the vessels on the lakes of three million tons a year, and the average rate on tonnage is 68 cents a ton; that is, a loss of between two and three million dollars a year on that item alone, by reason of taking from the depth of the harbours and channels.

Now a word about the history of this diversion. Of course there are other diversions; there is your Welland Canal diversion, but that does not take the water out of the watershed, it takes it from above the falls and returns it to the watershed below the falls. I know of no other diversion from the lake system itself, except a small diversion made by the State of New York years ago when the Erie Canal was built-no, that came back to Lake Ontario; it carried the water through Buffalo, down through New York State, to the Seneca River, when it was emptied into Lake Ontario; so that even that barge canal of New York, while it kept the water out of the shed for 200 or 300 miles, ultimately returned it. As far back as 1822 Congress authorized a canal from Lake Michigan so that small boats could pass into the Illinois River and down the Mississippi. Of course, we all remember in our history that the building up of this country, on both sides of the line, was originally from the development of water transportation, and there were several canals that led from the Great-Lakes system to the south. One of them was a canal through Chicago. That was not completed until 1848, and it had to lock over a little level there. It is rather interesting that the height of ground between the Great Lakes and the Mississippi valley was only about nine feet, and I think originally, before the last glacial period, scientists tell us that the Great Lakes flowed down the Mississippi, and not this way; that is, the upper Great Lakes. They enlarged this canal from time to time, and finally by 1872 they reduced it to a lake level canal, and water began to flow out of the watershed. I do not think it was by reason of that diversion, because it was not serious, but probably by reason of drought the lake levels were diminished. I presume this dredging operation at Detroit has tended to diminish the lake levels in the upper river, and probably the work in the Niagara River has also tended to permit more water to flow over Niagara Falls. Any removal of obstructions for the purposes of navigation necessarily permits a greater flow of water. So matters stood in 1872. After that they had to pump water into this canal; it did not flow any longer into the Mississippi. Then this sewage problem began to trouble Chicago. Chicago was growing by leaps and bounds; it had a very active and aggressive population; it took its water from the lake and emptied its sewage into the lake, and the Chicago River became very foul. So there was conceived the idea of turning this sewage down the back door. They enlarged that canal under State Charter; they formed a municipal corporation called the Chicago Sanitary District, and they took more and more water out of the lake. At first the States along the Mississippi, into which this sewage was being dumped, complained, and Missouri brought an action restraining the emptying of Chicago's sewage, into its waters. They also took the position that an international question was involved, that it was a violation of treaty rights to lower the level of the lakes. It was difficult, however, for Missouri to show that any of the polluted sewage really affected their water supply, because of other sources of pollution; and gradually the river States became reconciled to the idea, because of the vastly increased flow of water in the Mississippi River caused by this diversion. It was better for commerce, and so when the final test came between the State of Illinois and the other lake States, we found the Mississippi River States in agreement with Illinois, and appearing in opposition to the lake States, for the purpose of maintaining that diversion in the interests of navigation.

Now this canal, as it at present exists, is not a navigable canal; it is purely a sanitary proposition. It runs about twenty miles from Chicago, and there ends in a declivity down which the water plunges, and at which a considerable amount of power is developed, which is used by the city and sold by them. In 1908 the Attorney General of the United States brought a suit in the United States District Court in the Northern District of Illinois, asking that the Sanitary District be restrained from diverting any water in excess of a permit by the Secretary of War, which allowed 2,500 cubic feet per second. That suit came to be heard before judge Landis, and he kept it under consideration-he lived in Chicago (Laughter)-for seven years without deciding it. (Laughter.) In the meantime Chicago increased and continued to increase the diversion, and it was only upon the judge retiring from the bench to take up his present duties, that he rendered a decision, holding that Chicago had been wrong all the time. (Laughter.) That case got to the United States Supreme Court in 1925; and in that case, too, stress was laid upon the international question, although you were not a party to the case. And the Court there held that the lowering of the lake levels constituted an obstruction to navigation, in which the lake States had a right to complain. And then it was left to the Secretary of War to say to Chicago, "You must not do it". The Secretary of War said so frequently, and ineffectually. (Laughter.) The problem of coercing a sovereign state, I presume, is not unique in our country. (Laughter.) But in spite of the protests of the Secretary of War the diversion continued, and so it became necessary for the States themselves to bring the suit, the termination of which I announced at the opening of my remarks. Wisconsin, Minnesota, Michigan, Ohio, brought suit against Illinois, and New York brought a separate suit, in which we asked the Supreme Court to restrain Illinois from this diversion. We took the position that this was no different from a suit between individuals brought in the courts of a province or state. We said, we are riparian owners-that means owners having access to the waterfront with rights in the water; we are riparian owners, and this diversion interferes with the rights of our people; it affects the depth of the water in our harbours, and burdens our commerce unjustly and unnecessarily. No issue was made in the lawsuit at any time of the waterpower issue, that is, the diminution of the flow of water over the various points where power is developed, because it would be difficult to prove any damage by reason of the fact that the International Joint Commission only permits a small proportion of water to be used for power purposes, except, I believe, at the Sault. Suits of that kind between states in the United States are brought, not in the ordinary way, by starting them in the lower courts-a process with which you are all familiar, and which is owing to our Anglo-Saxon heritage; but we start in the highest court a suit between the states, and then the highest court mayas they did in the old treason case where Aaron Burr was indicted for treason--they may empanel a jury, and act like an ordinary trial judge; or they may, as is more common in these days when the court is so heavily burdened, appoint a Master to hear the proof; and in this case they appointed our former Secretary of State, Charles Evans s, as Master to hear the proof. Chicago contended that as a riparian owner she had a right to take water from the lakes; that she was a coowner in this heritage and that she was only taking her share and no more than her share, and that her paramount necessities justified this diversion. She pointed out that the total flow of water over Niagara Falls was, I think, something in the neighbourhood of 150 thousand cubic feet per second, or greater, and that her diversion amounted to less than ten percent of that. She said that if there was any damage to commerce and navigation, it could be remedied by the placing of obstructions at Detroit, at the Sault, and in the Niagara River, which would hold back the water, and maintain the lake levels. She did not, however, offer any palliation or method of resolving the conditions in the St. Lawrence, where at Montreal, according to the proof made by the complainant States, the water level was reduced five inches; and of course obstructing works in the upper lakes would have increased that instead of diminishing it.

The proof went before the Master, and much evidence was introduced on the part of the complainant States about the proper method of disposing of Chicago sewage. It was contended that she could do what the other lake cities did, and, while the expense would be greater, it would be no greater in proportion to her wealth and ability to pay. (Applause.)

The Master found that there was damage; he found that the lake levels had been reduced, that shipping had been harmed, that riparian owners had been damaged; but he felt that that diversion was within the power of Congress, and that Congress had not acted expressly to prohibit it, and that courts had partially permitted it, and so he dismissed the complaint of the complainant States regretfully, as he found they had suffered real and substantial damage. He did not touch on the international question in his report. Of course he could not foreclose the international question; no American court could foreclose an international question. The lake States took an appeal from that decision to the United States Supreme Court, and the United States Supreme Court held that while the Master was right on his facts-that is, that we had been damaged-they held he was wrong on his law, that is, that we did not have any remedy. They pointed out the remedy; perhaps I had better read briefly, for the sake of clarity, what the Court said. That decision was handed down on the 14th of January, 1929. They said they did not care to pass on the authority of Congress to authorize the diversion, because that was not squarely before them; but they said that this was the true intent of Congress, and that they had no disposition to override the veto power of the States to protect themselves when their rights were interfered with, by taking water from one watershed and emptying it into another. What may be taken from the lakes, said the Supreme Court, is peculiarly an expert question which is naturally within the executive function and can be deputed to Congress; nevertheless, Congress may not arbitrarily destroy or impair the rights of riparian owners by legislation which has no real or substantial relation to the control of navigation. The diversion here, the Master found, and the Court held, was primarily for the purpose of sanitation and not navigation. The Secretary of War may not make this a basis for continued diversion, said the Court. "It may be that some flow from the lake is necessary to keep up navigation in the Chicago River, which really is a part of the Port of Chicago, but that amount is negligible when compared with the 8,500 cubic feet now being diverted. Beyond this negligible quantity the validity of the Secretary's permit derives its support entirely from a situation produced by the Sanitary District in violation of the complainants' rights, and but for that support, the complainants might properly press for the immediate shutting down by injunction of the diversion, save any small part needed to maintain navigation in the river. In these circumstances we think they are entitled to a decree which will be effective in bringing that violation and the unwarranted part of the diversion to an end. It is therefore the duty of this Court by appropriate decree to compel the reduction of the diversion to a point where it rests on a legal basis, and thus restore the navigable capacity of Lake Michigan to a proper level. The Sanitary District, for the purpose relying in argument on the health of the people, have too long delayed the substitution of suitable sewage plants as a means of avoiding the diversion in the future, and therefore they cannot now complain if an ' immediate heavy burden is placed on the District because of their attitutde and course. The situation requires the District to devise proper methods for providing sufficient money to construct and put in operation with all reasonable expedition adequate plants for the disposition of sewage through other means than lake diversion; though the restoration of just rights to the complainants will be gradual instead of continuous, and as speedy as pracitcable and must include everything that is essential to an effective project."

Then the Court said that the Master must resume his duties for the purpose of determining how soon Chicago could terminate the diversion. So we went back to the Master. We hired hydraulic engineers, sanitary engineers, and even some political engineers (Laughter), and we gave evidence as to how Chicago could dispose of its sewage. Chicago had prepared a partial plan, showing how it could dispose of its sewage: but they said, this will cost us 300 million dollars, and will take fifteen years. Our contention was that the cost would be much less than that, and that by active diligence the diversion could be terminated by 1936. The Master reported that in his judgment the diversion could be terminated, except for 1,500 cubic feet per second, by 1938, and so reported to the Court.

You see, there is something beside this diversion, there is something beside the water that is used to flush the sewage. Chicago pumps from the lake its water supply, perhaps two thousand cubic feet per second of water, which passes through the houses and factories and becomes polluted, and the residue of it is the sewage which flows into the sewers. Now what to do with that was a separate question. In that respect my position was different from that of the other lake States. They said that as a matter of strict law Chicago must not take any water, even sewage, from the watershed, but must return everything that it took, that was not consumed, to the watershed. I felt that that was too strict a rule to impose on Chicago, and that as long as the pumpage for domestic purposes was confined within reasonable limits, and did not amount to any reduction in lake level, it would be a pretty hard thing to say to a city, "You can pump your domestic supply of water from the lake but you must evaporate your sewage in beds, as can be done by smaller communities." You do not know whether that water is going to get back into the Mississippi watershed or the Great Lakes watershed, so you may use a reasonable amount of water that you need for domestic pumpage, and dispose of it as you see fit. The Master adopted that theory--that Chicago must stop using the lake water for anything but domestic pumpage; that so long as its domestic pumpage was reasonable, and did not amount to enough to lower the lake levels, they might dispose of that as they saw fit. From that decision of the Master an appeal was taken by Chicago, and appeals were also taken by the complainant States. I objected to Chicago's being permitted to divert 1,500 cubic feet per second for navigation; the other complainant States objected to that, and they objected to Chicago being allowed to divert its domestic pumpage. So we came on, on the 12th of last March, before the Supreme Court again. In the meantime an interesting thing had happened. Mr. Hughes, the Master who had sat on this case on two occasions, had become Chief Justice of the United States, and the great pillar of strength that the complainant States had in the former Chief Justice we had lost. Of course Mr. Hughes could not sit in this case that he had reported on, and so the balance of the Court took the case. The case was argued, and with great expedition, in barely a little more than a month, the report was made, in which the Court said that the domestic pumpage might be taken by Chicago, although if the use became unreasonable, or if large amounts of water were diverted for industrial purposes, we might come back to the Court to restrain that. They said that all other diversion must be stopped, except an amount not to exceed 1,500 cubic feet per second for the purpose of maintaining navigation in this canal, which is about to become, under a recent Act of Congress, a real canal, needing in the neighbourhood of a thousand cubic feet per second to operate it. They required Chicago to report every six months about the progress it was making in completing these sewage plants for the purpose of doing away with the diversion, and they said in substance to Chicago--for they really had gotten a little bit annoyed with Chicago (Laughter)--it is a singular thing that from the time the Court rendered its first opinion that Chicago was wrong (I speak of Chicago, but the city is not a party, it is the Sanitary District, which includes a territory larger than Chicago) that the Sanitary District was wrong in diverting so much water, from that time to the time we got back again, a little over a year later, Chicago had got practically no progress in carrying out this work which the Supreme Court had said they must undertake and must pay for. They have a peculiar financial situation there (Laughter), but that really is not an answer. When you get a judgment against a debtor, it really is not an answer for the debtor to say, I would rather use my, money to go to Europe. (Laughter.) "It is not particularly material", says the Court, "what means the defendant takes to diminish its diversion; it has already been decided that the defendants are doing a wrong to the complainants and they must stop it, and they must find a way out al their peril. We have only considered what is possible if the State of Illinois devotes all its power to deal with an exigency, to the magnitude of which it does not seem to have fully awakened. If its constitution stands in the way of prompt action, it must amend it, or must yield to an authority that is paramount in the state." I know of no instance where the Supreme Court has used language of that force to any of our sovereign states.

Now it remains to be seen how quickly Chicago will act, in how much good faith and goodwill the Sanitary District will heed the mandate of the Court. There is ample power in the Supreme Court to enforce its mandate. The flow of water through the sanitary canal is now in charge of United States Engineers, who will be bound by the instructions of the Court. No one--I am sure no one in the complainant States, and no one here-wants to jeopardize the health of the people of Chicago or the Sanitary District, but we do feel that they ought to do what Toronto has to do, and what the other lake cities have to do; they ought to keep their sewage out of their water supply, and out of our water supply. It is a situation which they have created, and, when it harms others besides themselves, it is a duty common to every English-speaking jurisdiction to do their best to repair it at the earliest possible moment. (Applause.)

Before I leave the subject I must tell you about a rather amusing application; it is amusing from a lawyer's standpoint and I think it will appeal to all of you. The great City of New York and the great City of Boston need water. (Laughter.) Well, even Buffalo does. (Laughter.) They have practically exhausted the water in their immediate watersheds, so Boston has had to go over to the western part of Massachusetts and take water from streams which flow into the Connecticut River, an interstate river which flows from Massachusetts into Connecticut. New York has to go over into the west side of the Catskill Mountains; she has absorbed all the water that flows down the eastern slopes, that is fit for use, so has to go over and tunnel through the Catskills and take water from the head of the Delaware River that flows south, and forms the boundary between Pennsylvania and New Jersey. New York seeks to take 600,000 gallons of water a minute from that watershed, which is about one-third of the amount that is developed in the territory which she seeks to take, leaving two-thirds to flow down stream. New Jersey and Connecticut resent that, and they take the position that they are entitled to the full flow of the water, and the water that falls on that watershed must keep on going; we can take it out but we have to put it back. And so suits are now pending in the United States Supreme Court against the State of Massachusetts on the part of Connecticut, and against the State of New York on the part of New Jersey, to restrain those cities from carrying out their plans to take water. This decision of the United States Supreme Court, holding that Chicago may take water for domestic pumpage seems to me to be quite a life-saver to the State of New York. (Laughter.) My legal friends from Chicago, when we were in the Supreme Court, asked me if I was going to find a hole to crawl through, so as to stop Chicago from taking water, and let New York take it. I think this decision about domestic pumpage is a fair and equitable decision. (Laughter.) I see that you, gentlemen, grasp the humour of it very readily. (Laughter.) I think when a lawyer finds himself embarrassed everybody likes to laugh, anyhow. There is a reason behind that decision. You have got to apply a little more liberal rule to states than you have to cities. In the east, the states have grown up and developed from small interests which were ruled just as individuals were ruled. The riparian rights of the state have been judged to be the same as the riparian rights of a person or corporation. But in the west, both in your provinces and in our western States, where civilization came suddenly and development came suddenly, and where the land was part of a national domain before it was owned by the States or Provinces, a different rule is applied. You may take water for irrigation in the western States, and I believe in your western Provinces the upper proprietor may take a part of the water and he may use it. If he takes it for purposes of irrigation he cannot restore it to the watershed. The State of Kansas some years ago challenged the right of Colorado to take water from the watershed and use it, and said, "The Old English doctrine of riparian rights requires you to restore the water to the watershed; use it for irrigation if you want to, but put it back." Of course you could not do that, because irrigation consumes it. The Supreme Court said, "This is a different world; these are different conditions, these western conditions. Water is the life of the west; if all the water is left in the river it would be an unfair discrimination in favour of the last man on the river; he would have all the water." And so they said there must be in interstate rivers an equitable division of the benefits. Now that rule has not been adopted as to our eastern States. In the Chicago case, however, the Court said, "We will not apply the strict rules of the common law, which require all the water to be put back." And so I think the Court in the New Jersey case and the Connecticut case will ultimately say, "While New York and Boston must not abuse the rights of the lower owners, still as a sovereign state in which that water rises, there must be an equitable division of the benefits." (Hear, hear.)

Just one thing before I sit down. One of the objections that the State of New Jersey urged about our taking any of the water was that they had a lot of little oysters down in the end of the river, and they got a fine flavour when the spring floods carried the mud down from the Catskills, and it was a shame for the Philadelphia epicures to lose that. (Laughter and applause.)

The gratitude of the Club to the speaker was voiced by

HON. MR. FERGUSON.

CAPTAIN NOBBS, of Australia, a former resident of Toronto, blinded in the war, and now on a trip around the world, was introduced by the Chairman, and expressed his pleasure in being back in Toronto. He spoke briefly on the importance of developing intra-Empire trade relations.