# Missouri v. Illinois (180 U.S. 208)

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## Dissenting Opinion

    Fuller
United States Supreme Court
180 U.S. 208
Missouri v. Illinois
Argued: April 30, 1900. --- Decided: for oral argument May 21, 1900
In January, 1900, the state of Missouri filed in this court a bill of complaint against the state of Illinois and the Sanitary District of Chicago, a corporation of the latter state, in the following terms:
'The complainant, the state of Missouri, and one of the states of the United States, brings this its bill of complaint against the state of Illinois, one of the states of the United States, and the Sanitary District of Chicago, a public corporation organized under the laws of the state of Illinois, and located in part in the city of Chicago and in the county of Cook, in said state of Illinois, and a citizen of the state of Illinois.
'And your orator complains and says that it is a state containing a population of upwards of three millions of people, and lying on the west bank of the Mississippi river, a public, navigable, and running stream, and having a frontage on said stream of over 400 miles.
'And your orator shows that by the act of Congress providing for the organization and admission of Illinois and Missouri as states of the Union it was declared that the western boundary of Illinois and the eastern boundary of Missouri should be the middle of the main channel of the Mississippi river; that the shores of the Mississippi river, where its waters form the Missouri and Illinois boundary, and the soil under the waters thereof, were not granted by the Constitution of the United States, but were reserved to the states of Illinois and Missouri respectively.
'And your orator shows that the states of Missouri and Illinois each have concurrent general jurisdiction over the waters of the Mississippi river forming the boundary between them, and each of said states has exclusive territorial jurisdiction over that portion adjacent to its own shore; and your orator shows that the Illinois river empties into the Mississippi river at a point above the city of St. Louis, on the Illinois side of said Mississippi river.
'And your orator further shows that within the territory of your orator, and on the banks and shores of said Mississippi river, and below the mouth of the Illinois river, are many cities and towns in the state of Missouri, and many thousands of persons who are compelled to and do rely upon the waters of said river, in their regular, natural, and accustomed flow, for their daily necessary supply of water for drinking and all other domestic and agricultural and manufacturing purposes, and for watering stock and animals of all kinds, and that said Mississippi river has been flowing in its regular course and has been used for the purposes aforesaid by the inhabitants of the said state of Missouri for a time whereof the memory of a man runneth not to the contrary, and that said river and its waters and the use thereof for drinking, agricultural, and manufacturing purposes, in their accustomed and natural flow, are indispensable to the life and health and business of many thousands of the inhabitants of the state of Missouri, and of great value to your orator as a state.
'And your orator shows that cities and towns below the mouth of said Illinois river, within the territory of your orator, do and are compelled, by means of waterworks, water towers, and intakes, built and constructed for that purpose, to supply the inhabitants of said cities and towns with an adequate supply of pure and wholesome water fit and healthful for drinking and all other domestic purposes and uses, from the said Mississippi river so flowing in its ancient, accustomed, and natural course.
'And your orator shows that said waterworks systems are constructed with reference to said Mississippi river and for the purpose of taking water therefrom, and not from any other source.
'And your orator shows that heretofore to wit, in 1889, the state of Illinois enacted a law known as the sanitary district act, together with an act for the improvement of the Illinois and Des Plaines rivers, and that under said act of said state the said corporation known as the said Sanitary District of Chicago was organized and is now existing and operating, and that by the express terms of said act any canal or drain corporation organized in accordance with its provisions may have conditions, restrictions, or additional requirements placed in said corporation, or the act authorizing the creation of said corporation may be amended or repealed, and that by the express provisions of said act, before any water or sewage shall be admitted into any channel constructed under said act the trustees of said channel shall notify the governor of Illinois of the completion of said channel, and the governor of Illinois shall appoint three commissioners to examine said canal or channel, and report to the governor if the same complies with the act of the state of Illinois; and if it does, the governor shall authorize the water and sewage to be turned into said channel; and that without the said permit it cannot be so turned in; and that by the general provisions of said act said channel is at all times subject to the control and supervision of the state of Illinois and her authorities.
'And your orator further shows that the Chicago river is situated in the basin of Lake Michigan, and has two forks or branches flowing through the city of Chicago and into Lake Michigan, and that the natural drainage of Chicago, Illinois, is into Lake Michigan, and the sewage and drainage of the territory embraced in the defendant's district, the Sanitary District of Chicago, is led into or flows into the Chicago river and Lake Michigan.
'And your orator further shows that the defendant herein, the Sanitary District of Chicago, with the authority of the state of Illinois, and acting as a governmental agency of said state, and under the supervision and control and subject to the approval of the state of Illinois, has constructed a channel or open drain from the west fork of the south branch of the Chicago river, in the city of Chicago and county of Cook, in the state of Illinois, to a point near Lockport, in the county of Will, in said state, where said channel or drain connects with and empties into the Des Plaines river, which empties into the Illinois river, and which latter river flows and empties into the Mississippi river at a point distant about 43 miles above the city of St. Louis, Missouri.
'And your orator further states that the channel built by the Sanitary District of Chicago was so built by said sanitary district as one of the governmental agencies of the state of Illinois, and by the pretended lawful authority of said state, and under the direction, supervision, and control and governmental power of the state of Illinois, and which said state has heretofore at all times sanctioned, and now, through its governor and other officers, sanctions, the building of said channel and opening thereof.
'And your orator further shows that in the construction of said channel or drain the defendant, the Sanitary District of Chicago, Illinois, with the sanction and approval of the state of Illinois, cut through the natural bridge or watershed which divides the basin of Lake Michigan from the basins of the Des Plaines and Illinois rivers and the basin of the Mississippi river, and that having so constructed said channel, and having about completed the same, and having, under the supervision of and with the sanction of the state of Illinois, extended said artificial channel through said natural divide of the watershed, the defendants now propose and threaten to receive into said channel or drain the sewage matter and filth of the Sanitary District of Chicago, which embraces nearly the whole city of Chicago and a portion of the county of Cook, and, without any legal authority so to do, has already in part effectuated its said threat and purpose, and threatens to permit and to cause said sewage and filth, by artificial means of pumping and otherwise, to flow through the channel or drain towards and into the said Des Plaines river and eventually into the Mississippi river, thereby, with the approval of and subject to the inspection and control and supervision of the state of Illinois, and by the pretended authority thereof, reversing the natural flow of said Chicago river.
'And your orator further shows that the sewage matter and poisonous filth which it is thus threatened to receive and to permit and to cause to flow through said artificial channel into said Des Plaines river is that which is created by a population of upwards of one and one half millions of people, besides that which is created by a great number of stock yards, slaughtering establishments, rendering establishments, distilleries, and other business enterprises and industries lining both sides of the Chicago river, producing filth and noxious matters; all of which are there discharged into the said Chicago river or drained therein from the surface.
'And your orator further shows that for many years past the said city of Chicago, the greater portion of which is embraced in the limits of the defendant corporation, the Sanitary District of Chicago, as aforesaid, has been discharging its sewage matter and filth into the Chicago river and into Lake Michigan in such large quantities that much of it has accumulated in the bed and along the sides of the river and upon the bed of said Lake Michigan, near the shores thereof, and that the plan threatened and attempted now to be adopted by the defendant, the Sanitary District of Chicago, acting in conjunction with and subject to the control of the defendant, the state of Illinois, and by the pretended authority of the said state of Illinois, will loosen said accumulated matter and filth, and will also direct it and cause it to flow towards and into said artificial channel or drain, and thence into said Des Plaines river, and finally into the Mississippi river and into the waters thereof within the jurisdiction and under the control of your orator and past the homes of the inhabitants of your orator and the towns and cities within the borders of your orator, and past the waterworks of said cities and towns within the state of Missouri.
'And your orator further shows that the amount of said undefecated filth and sewage and poisonous and unhealthful and noxious matters proposed to be, and now about to be, permitted to be turned into said artificial channel and through said Des Plaines and Illinois rivers into the Mississippi river from the said Sanitary District of Chicago by the defendants, acting jointly, will amount daily to about 1,500 tons, and that if defendants should be permitted to carry their said threats into execution, and should cause said above amount of undefecated sewage and other poisonous and noxious matters, which would otherwise flow into Lake Michigan, to flow into the Mississippi river, that the waters of the Mississippi river within the jurisdiction of your orator will of a certainty be poisoned and polluted and rendered wholly unfit and unhealthful for drinking and domestic uses, and will render wholly valueless and entirely worthless the various waterworks system of towns and cities on the borders of the state of Missouri established and acquired at great cost and expense, and will deprive your orator, the state of Missouri, and its inhabitants, of the right to use of the waters of said river for drinking and all other domestic and manufacturing and agricultural purposes, as said water has been so used in its accustomed and natural flow heretofore for the length of time that the memory of man runneth not to the contrary thereof.
'And that said threatened action of the defendants will amount to a direct and continuing nuisance, and be an interference with the use by your orator and its inhabitants of the waters of the Mississippi river flowing in their natural state, polluting and poisoning the same by the means aforesaid, whereby the health and lives of the inhabitants of your orator will be endangered and the business interests of said state will be greatly and irreparably injured, and which said damage to the lives and health and the business interests of said state resulting from said poisoning and polluting of said waters as aforesaid to your orator cannot be estimated in money value.
'And your orator on information and belief states and charges the fact to be that said 1,500 tons of poisonous undefecated filth and sewage of said Sanitary District of Chicago will be daily carried through said artificial channel and sent through the Des Plaines and Illinois rivers into the Mississippi, and great quantities thereof will be deposited in the bed and soil of said river belonging to your orator and wholly within the jurisdiction thereof, to your orator's great and irreparable damage, and that the 1,500 tons of undefecated sewage and filth now about to be daily injected into the waters of the Mississippi river and into the portion thereof over which the state of Missouri has jurisdiction, and from which thousands of her inhabitants obtain drinking water, will pollute and poison the said water of the Mississippi river to such an extent as to render it unwholesome and unfit and unhealthful for use for drinking by the said inhabitants in the territory of your orator, and unfit for use for watering stock and for manufacturing purposes.
'And your orator further shows that great quantities of undefecated sewage turned into the Mississippi river in the manner and by the means aforesaid will poison and pollute said water with the germs of disease of various and many kinds. And your orator further shows that the acts herein complained of on the part of the state of Illinois, acting in conjunction with one of her governmental agencies, the said Sanitary District of Chicago, will cause a continuing nuisance in the Mississippi river, and that the said state of Illinois has no power or authority to cause, or permit or assist in causing, the commission and continuance of a nuisance in the flowing waters of the Mississippi river, a navigable stream, to the detriment and irreparable and continuing damage and injury of the state of Missouri, and the continuing and irreparable injury to the lives and health of the citizens and inhabitants of the state of Missouri, and that unless restrained by the order and decree of this court the defendants, the state of Illinois and the Sanitary District of Chicago, acting together, will, in accordance with the terms of the act under which said sanitary district is organized, upon the permit and authority of the governor of Illinois and of the state of Illinois, turn said water and sewage aforesaid, by the manner and means aforesaid, into the Des Plaines and Illinois rivers and thence into the Mississippi; all of which your orator says and avers is contrary to equity and good conscience, and would result in the manifest and irreparable injury of your orator and the health of her citizens in the premises; and your orator is wholly without remedy at law and without any adequate remedy to prevent the flowing of said sewage, as aforesaid, save by the interposition of this court.
'Forasmuch as your orator can have no adequate relief except in this court, and to the end, therefore, that the defendants may, if they can, show why your orator should not have the relief prayed, and to the end that the defendants may make a full, true, direct, and perfect answer to the matters hereinbefore stated and charged, but not under oath, an answer under oath being hereby expressly waived, and to the end that the defendants, their officers, agents, servants, and employees may be restrained by injunction issuing out of this court from receiving or permitting any sewage to be received or discharged into said artificial channel or drain, and from permitting the same to flow or causing the same to be made to flow through said channel or drain towards and into the Des Plaines river, your orator prays that your honors may grant a writ of injunction, under the seal of this honorable court, properly restraining and enjoining the defendants, the officers, agents, employees, and servants of the Sanitary District of Chicago and the state of Illinois, from permitting or causing any of said sewage to be discharged into said channel or drain, and from permitting or causing said sewage and poisonous filth thence to flow into said Des Plaines river; that defendant, the state of Illinois, be enjoined and restrained from issuing to its codefendant permission and authority to do and perform the acts aforesaid or to allow them to be done; and your orator also prays for a provisional or temporary injunction pending this cause, restraining and enjoining the several acts aforesaid, and for such other and further relief as the equity of the case may require and to your honors may seem meet.
'May it please your honors to grant unto your orator, not only a writ of injunction conformable to the prayer of this bill, but also a writ of subpoena of the United States of America, directed to the state of Illinois, the governor and attorney general thereof, and to said Sanitary District of Chicago, its officers, trustees, and agents, commanding them on a day certain to appear and answer unto this bill or complaint, and to abide such order and decree of the court in the premises as to the court shall seem proper and required by the principles of equity and good conscience.'
In March, 1900, came the defendants and filed a demurrer to the bill of complaint, in the following terms:
'Now come the state of Illinois by its attorney general, Edwin C. Akin, and the Sanitary District of Chicago by its attorneys, and demur to the bill of complaint filed herein, and say that the said bill of complaint and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law for the said state of Missouri to have and maintain its aforesaid action against the said state of Illinois and the Sanitary District of Chicago, and that said defendants are not bound by the law of the land to answer the same; and the said defendants, according to the form of the statute in such case made and provided, state and show to the court here the following causes of demurrer to the said bill of complaint:
'First. That this court has no jurisdiction of either the parties to or of the subject-matter of this suit, because it appears upon the face of said bill of complaint that the matters complained of, as set forth therein, do not constitute, within the meaning of the Constitution of the United States, any controversy between the state of Missouri and the state of Illinois, or any of its citizens.
'Second. That the matters alleged and set forth in said bill of complaint show that the only issues presented therein arise, if at all, between the state of Illinois and a public corporation created under the laws of said state, and certain cities and towns in their corporate capacity as such, in the state of Missouri, and certain persons in said state of Missouri, residing on or near the banks of the Mississippi river, and which matters so stated in said bill of complaint, if true, do not concern the state of Missouri as a corporate body or state.
'Third. That said bill of complaint shows upon its face that this suit is in fact for and on behalf of certain cities and towns in said state of Missouri, situate on the banks of the Mississippi river, and certain persons who reside in said state on or near the banks of said river; and that, although the said suit is attempted to be prosecuted for and in the name of the state of Missouri, said state is, in effect loaning its name to said cities and towns and to said individuals, and is only a nominal party to said suit, and that the real parties in interest are the said cities and towns in their corporate capacity as such, and said private persons or citizens of said state.
'Fourth. That it appears upon the face of said bill of complaint that the said state of Missouri, in her right of sovereignty, is seeking to maintain this suit for the redress of the supposed wrongs of certain cities and towns in said state, in their corporate capacity as such, and of certain private citizens of said state, while under the Constitution of the United States and the laws enacted thereunder the said state possesses no such sovereignty as empowers it to bring an original suit in this court for such purpose.
'Fifth. That it appears upon the face of said bill of complaint that no property rights of the state of Missouri are in any manner affected by the matters alleged in said bill of complaint; nor is there any such property right involved in this suit as would give this court original jurisdiction of this cause.
'Sixth. That in order to authorize this court to maintain original jurisdiction of this suit as against the state of Illinois, or against any citizens of said state, it must appear that the controversy set forth in the bill of complaint and to be determined by this court is a controversy arising directly between the state of Missouri and the state of Illinois, or some of its citizens, and not a controversy in vindication of the alleged grievances of certain cities and towns in said state or of particular individuals residing therein.
'Seventh. The said bill of complaint is in other respects uncertain, informal, and insufficient, and that it does not state facts sufficient to entitle the said state of Missouri to the equitable relief prayed for in said bill of complaint.
'Wherefore, for want of a sufficient bill of complaint in this behalf, the said defendants pray judgment, and that the said state of Missouri may be barred from having or maintaining the aforesaid action against said defendants, and that this court will not take further cognizance of this cause, and that the said defendants be hence dismissed with their costs.'
On November 12, 1900, the case came on
Messrs. B. Schnurmacher and E. C. Crow for complainant.
Messrs. Charles C. Gilbert, Wm. M. Springer, E. C. Akin, and Samuel M. Burdett for defendants.
Mr. Justice Shiras delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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