Earl Warren: Number 56, United States, Petitioner, versus Republic Steel Corporation, et al. Mr. Solicitor General.
J. Lee Rankin: Mr. Chief Justice, may it please the Court. This action involves the question of an obstruction to navigation in a water that's under the jurisdiction of the United States. The United States maintained the action in the trial court and it was reversed in the Court of Appeals of the Seventh Circuit. It involves two questions, one is whether or not industrial waste can be poured into the channel of the Calumet River without being a violation of the law of the United States and secondly, whether the United States isn't entitled to an injunction against such action. The scene of this activity is in the channel of the Calumet River about 11 miles south to the City of Chicago, along the state lines of Indiana and Illinois. The respondents are three large manufacturing operations. One of them engaged in iron manufacture, amongst other things, Interlake and the other two engaged in both iron and steel along with the others. The other two are Republic and -- Republic Steel and International Harvester. There is no dispute on the facts in regard to certain aspects of them. We do not, on behalf of the Government, think that the factual issue is before the Court now. It was reserved by the Court of Appeals and was not gone into. There are contentions by the respondents that the facts did not bear out the findings of the District Court. The Court made elaborate findings after a long trial and found against the respondents in regard to the factual matters and their principal contention where that the shoals or interference reduction of the channel of this river were due to natural causes and other manufacturing institutions and not alone to them. The Court found that 81%, a little over 81%, of the amount of the interference or obstruction to navigation was due to these -- the activities of the -- these three respondents. There are 27 sewers or outfalls from which this waste from these manufacturing concerns including flue dust and other things came out into this channel. And this quite -- it's agreed between the parties that about 0 -- 0.02% of the amount of the material was the -- the kind that caused this interference or obstruction of the channel of the Calumet River. That is not a very large amount concededly, but when you take into account the fact that they used six billions of gallons of water out of the river each month and multiply that by 12 and you have a 72 billions of gallons of water during a year. You can see that even with .02% being of these settleable solids that it could be a substantial amount. And then the record shows that converting this to what was established as going into the channel during the years 1952 to 1955, you find that the Republic Steel Company put in according to their proof, 19,000, during these four years, 19,000 tons of this material, or according to the Government's proof, 27,000 tons of the material during four years or better than 6000 tons of this interference during this -- during each year. It didn't work out exactly that way because there were some times when the plants were down and that had to be taken into account and so forth. So, it was established over the four-year period of 1952 to 1955. Interlake's figure was an agreed figure of 20,000 tons for the four years or approximately 5000 tons that they put into this channel and International Harvester was in excess of 27,000 tons of such material for the same period. So even that 0.02%, you can see that the amount was very great that was involved. Now, the statute is Section 10 and 13 are the ones in issue here of the Act of the United States in regard to obstructions to navigation.
Felix Frankfurter: Sections 10 and what Mr. Solicitor?
J. Lee Rankin: Sections 10 and 13 and they are 33 U.S.C.
Felix Frankfurter: (Inaudible)
J. Lee Rankin: 403 and 407. Now, the -- in the appendix at pages 46 and thereafter and we set forth the statutes. I want to call your attention to the fact that on 46 is the 1890 statute which was -- the Government contends, in part, repealed because the repeal was whatever was inconsistent by the 1899 Act that's set forth on page 47 of the appendix of the Government's brief. Section 10 is on page 47, Section 12, the enforcement statute about injunction is on the bottom of that page and on 48, Section 13 that is -- one that is in considerable issue between the parties is on that lower half of 48 and -- on over -- on 49. Then there are several other sections that I will refer to and I will go into the particular provisions that are involved as we go along with the argument.
Felix Frankfurter: Did I -- did I rightly infer from what you've said that no questions of fact or findings etcetera before us, except so far as they are conceded in the case fundamentally turns one on the construction of 10 and 13?
J. Lee Rankin: Yes, Mr. Justice Frankfurter.
Felix Frankfurter: And secondly, the -- the question as to decree, the propriety of that decree that the Government has?
J. Lee Rankin: Yes, where they were entitled to an injunction.
Felix Frankfurter: But on the substantive -- the substantive issues turn on construction of Sections 10 and 13 of the 1899 statute, is that right?
J. Lee Rankin: That's our position --
Felix Frankfurter: Plus the question whether any bearing that Section 10 of the 1890 Act had of the derivative problem, is that right?
J. Lee Rankin: That's the position of the Government, Mr. Justice Frankfurter and the reason for that is that the Court of Appeals did not pass upon the objections in regard to the record, that is the findings.
Felix Frankfurter: So that --
J. Lee Rankin: And it still reserved that question in effect in its opinion.
Felix Frankfurter: So that hypothetically if we should reverse it, you'll have to go back on those issues.
J. Lee Rankin: I think that's still open to them in light of the way that the Court of Appeals decided.
Felix Frankfurter: And I guess one focused on what -- on what is that focused on (Voice Overlap) --
J. Lee Rankin: Yes, Mr. Justice. This Act was --
Felix Frankfurter: For purposes of -- for purpose -- now, in answers to the question, for purposes of dealing with 10 and 13 intelligently or ultimately, may one accept the findings of -- the finding should any background understanding or what kind of thing we're dealing with here or not. Or is it just a blank and I (Inaudible) view what I thought to be considering with that 10 and 13 justify the claims that you made in your original complaint.
J. Lee Rankin: Well, I -- I believe that you can accept the findings as the Court of Appeals assumed that there was these -- there were the deposits that were being made and said that they did not come within the statute.
Felix Frankfurter: That is we can -- we can say that assuming these kind of deposits, assume their consequence or effect brings them within 10 or 13.
J. Lee Rankin: I think that's the issue for the Court.
Charles E. Whittaker: Mr. Solicitor.
J. Lee Rankin: Yes, Mr. Justice.
Charles E. Whittaker: (Voice Overlap) 10, that Section 10 of the 1890 Act is or is not repealed by Section 20 of the 1899 Act in connection with Section 10 of that Act?
J. Lee Rankin: The position of the Government is that it was not repealed because Congress said, “Whatever is inconsistent with the Act that was passed in 18 -- 1899 is repealed.” And this Court has dealt with both Acts as we construe it subsequent to the passage of 1899 as being in effect. And so, according to the language, only the inconsistent part was repealed by the exact terms.
Charles E. Whittaker: Well then, if that's so, do we get to this place that Section 10 of the 1890 Act is still existing and it prohibits obstructions, but Section 10 of the 1899 Act not being inconsistent then, would have to deal only with structures. Would that impale on the horns of one or the other of the horns of the dilemma?
J. Lee Rankin: Well, we don't think that the 1899 Act is inconsistent in that regard --
Charles E. Whittaker: Oh --
J. Lee Rankin: -- the one that you named either, Mr. Justice Whittaker.
Charles E. Whittaker: I see.
J. Lee Rankin: It also provides for obstructions in so many words and for --
Felix Frankfurter: (Inaudible)
J. Lee Rankin: That's the first thing that starts out with and it prohibits them.
Charles E. Whittaker: It does use the word obstruction in the first -- the first line.
J. Lee Rankin: Yes.
Charles E. Whittaker: But then, it treats with nothing but structures, the building of any wharf, pier, dolphin, boom, weir or breakwater, bulkhead, etcetera.
J. Lee Rankin: That is in addition. You'll notice there is a semicolon there. You see, it makes an absolute prohibition if you turn 47 -- page 47 and says that the creation of any obstruction not affirmatively authorized by Congress to the navigable capacity of any other waters of the United States is hereby prohibited. Then it goes on to say and it shall, that's in addition, not be lawful to do so and so and so and so and so. Now, the reason for the passage of 1890 Act was that this Court had held in the Willamette Iron Bridge case that there was no common law that would preclude obstructions to navigation. There is no federal common law and so, there had -- that the United States when it tried to stop such obstructions would have to turn to the state law and very promptly after that, Senator Dole who had -- was involved in the losing sight on that case brought this matter to the attention of Congress and proposed this legislation and got it through, that's the 1890 Act. Then thereafter, the lower court -- lower federal court and there -- and later this Court when it reached it, held that under the 1890 Act as you will notice on page 46, had a provision that unless it's affirmatively authorized by law, in the first sentence of Section 10 there, a lower federal court held that affirmatively authorized by law was satisfied by state law and so that was called to the attention of the Congress. That case along with other things by the Chief of the Corps of Engineers and Congress to take care of that put in the language affirmatively authorized by Congress. Now, that wasn't all that happened between 1890 and 1899. And the way that Congress had been dealing with this subject, they had taken the Rivers and Harbors Bills each time and they had put a provision about obstructions to navigations beginning back in 1890 and then in a subsequent year, they would put another provision about obstructions and navigation. And the Congress said in 1896 to the Corps of Engineers, “Won't you please get together our revisions? So, we'll have in one place, all of the things that are involved in this question of obstructions to navigation.” And the Corps of Engineers did that and Congress suggested that they provide any amendments or corrections of ambiguities or emendations. And the Corps of Engineers brought forth the proposed Act that became the 1899 statute in this one that's -- that we're relying on here and it is the principle at involving this question and they said they'd made certain revisions and additions, but no emendate -- emendations. No -- they hadn't taken anything out. They tried to make this complete codification and they presented that to Senator Frye, who then brought that before the Congress. And this history is very important to this case, because it shows the congressional intent and Senator Frye brought it out before the Congress and he said, “This legislation, it has some minor revisions. No material changes and you don't even have to read it,” don't have to or have it read to the Congress at this time before passing on, because that's what I represented is. It's already been before the Committee and that's what we're doing and it's in the light of that, that the Congress then passed the 1899 Act to -- that's involved here and not showing no intention on the part of the Congress to reduce the effect of the prior Act of 1890 in anyway. Now, in addition to that, this Court has already said in two cases, in the Sanitary District case and also in Wisconsin against Illinois, that the purpose of the 1899 Act was to enlarge and -- and add to -- and it was very clear the intention and purpose of the Congress to cover this whole area of forcefully (Inaudible) of obstructions to navigation.
Earl Warren: Am I correct in thinking that, I don't know whether it has gotten significance in my -- that in the 1890 -- in the 1890 Act, the obstruction clause on which you rely was in a remedial provision or had its own remedial provision including the injunction provision. And that in the 1899 Act when they read that -- the sections, the remedial provisions were lifted out -- what had been Section 10 and stuck into what is Section 6 or something or other and then qualified in their application to the other section, is that correct?
J. Lee Rankin: Yes, Mr. Justice Harlan. That was the format that they tried to take the remedial provisions and --
Earl Warren: And --
J. Lee Rankin: -- put them in one place.
Earl Warren: And maybe anticipating the -- another branch of your case, but I want to see if I had that history in my mind (Voice Overlap) --
J. Lee Rankin: Now, they still did leave however, this absolute prohibition to any obstruction to navigation in the 1890 Act -- 1899 Act. And the -- it's exactly the same substantially as the 1890 except for the provision as to authorization by law in the 1890 Act and authorized by the Congress in the 1899. So, you see they were trying to make that to foreclose any state legislative action that would satisfy the 1890 Act, but it couldn't any longer satisfy the requirements of the 1899. Now --
Earl Warren: Your -- your position is -- let's see if I get it straight on the -- on this part of it is that obstructions in Clause 1 of the 1899 Act is a sort of the catchall phrase that includes something more than is in Clause 3 of Section 10 that you rely on and something more than is included in Section 13 which you also rely on, is that it?
J. Lee Rankin: Yes, Mr. Justice Harlan -- Justice Harlan, except there is this one factor that we have to accept the decision of this Court in Sanitary District in Wisconsin against Illinois in construing the 1899 Act. Reading the language by itself, we would say that an obstruction against navigation cannot -- is not permitted under this law, unless Congress affirmatively approved it, but this Court said that in the Sanitary District case and in Wisconsin against Illinois, that this should be construed as in the latter part of the same Section 10, delegating to the Secretary of the Army, upon representations or recommendations of the Corps of Engineers, the power to decide whether or not the interference with navigation is reasonable. That was the term used by the Court. So that he by -- by a permit -- and there's no permit in this case at all and never asked for one and never got any, by permit, he could allow what was not and not unreasonable or what was reasonable as an interference with -- with navigation so that in the light of the way this Court then construed, in those two cases, the 1899 statute Section 10, I think you have to read unto it the gloss that there is -- if there was any permit involved, a power to find that there is no unreasonable interference, but of course, since they have left with that, that isn't in the case.
Earl Warren: That's why I've been asking, what is it that you draw on from Section 10 of the 1890 Act that you haven't got in the 1899?
J. Lee Rankin: The only thing we don't have in the 1899 Act that we had in the 1890 Act is the reference to the right to an injunction for an obstruction to navigation and when they put it in the later section and -- in this codification and tried to get these remedies together, they've made it that we should have the right to an injunction to a structure. And we say, well, it's clear Congress said they weren't making any material changes in this old statute when they passed 1899, that structure in the light of that kind of a history must be construed to mean obstruction, that's the only thing we draw upon it in this particular (Voice Overlap) --
Earl Warren: It is true that in terms, the remedies of Section 6 of the 1899 Act exclude or at least do not in terms apply to obstruction in Section 10.
J. Lee Rankin: Well, it doesn't say obstruction, Mr. Justice Harlan. But --
Earl Warren: Well, it -- it doesn't say obstruction. It says that it applies to certain sections and that -- and -- and one of those sections is not Section 10.
J. Lee Rankin: That's correct.
Earl Warren: Yes.
J. Lee Rankin: Now, on the other hand, we have this to rely upon and that is in the Sanitary District and in Wisconsin against Illinois, this Court knows enough about the recent matters before them that those involved, the withdrawal of water from the Great Lakes system, particularly at Lake Michigan and that that did not involved what we would know as structures as such. It involved and the permit so said, the right to withdraw so much water and yet the Court held that that could be enjoined under the 1899 Act because you see, those were in 1925 and 1929, those decisions. So the Court has already held that those which are certainly outside of any other kind of structures that are referred to in these other sections and that counsel -- that respondents urge, it should be limited, were sufficient that the United States could get an injunction. Now, on Justice -- Mr. Justice Holmes, in writing the Sanitary District opinion, treated the question of whether or not the United States was entitled to an injunction. He didn't refer to any particular section of the statute. But he treated it as -- as the Attorney General having the power to bring the action that there was certainly inherent power in the Court to correct this kind of an abuse, once you found that it was a -- the Congress had -- decided it was unlawful. And so he, citing the San Jacinto case, treated it as though a power that was obviously there and you don't have to go into any refinements about what's the Congress has said is unlawful that the United States and the Attorney -- to the Attorney General can get some relief.
Felix Frankfurter: Except that you -- making mess to the argument, is rather than what has Congress had said and how could you, about the way of an injunction that Congress does create something, then, the relief is limited to what it says.
J. Lee Rankin: Well, they only answer that --
Felix Frankfurter: I'm not -- I'm not --
J. Lee Rankin: Yes, Mr. Justice.
Felix Frankfurter: -- saying that he meant with that argument.
J. Lee Rankin: I think a good answer to that is that it was -- that argument was made in Sanitary District and the Government made the argument that it should have the right to an injunction under the inherent powers that's relevant to what -- the statute and the Court held with it. So that -- but beyond that, I would not ordinarily urge this Court that structures mean obstruction to navigation. It's different language and ordinarily, I wouldn't be trying to say the things that they are equivalent, but I think, this Court has said many times that you have to try it to find out what the intent of the Congress was.
Earl Warren: Well, you have to do that to maintain your case.
J. Lee Rankin: Yes, Mr. Justice.
Earl Warren: What (Voice Overlap) --
J. Lee Rankin: And one very good reason --
Earl Warren: Well, only -- only in one part of it.
J. Lee Rankin: Yes.
Charles E. Whittaker: What do you do, Mr. Solicitor, in that connection with the word, “work”, in Section 10 of the 1899 Act? Unless the work has been recommended by the Chief of Engineers, could that contemplate merely the siltation from sewage of the river bed?
J. Lee Rankin: Mr. Justice Whittaker, we think it could. Now, the reason we think that is -- is twofold. We think that's one of the lesser problems in the case because of this. When Congress refers to the kind of plans or a program for a particular type of construction, it generally refers to works. And if you'll notice that -- that the respondents in their brief had referred to a number of references, I think it's in the footnote in which they -- it's repeatedly treated as works and not as work as it is done here. That is a -- that is a nice distinction, but it's one that Congress deals with all the time. And I think in -- you just examine some of the statutes about public works and the Rivers and Harbors bills and all of those things and you'll see it's generally a question of works. Now, if you'll look above in the same statute, Section 10 (2), you'll also see that it says, except on plans --
Earl Warren: Yes.
J. Lee Rankin: -- recommended by the Chief of Engineers and authorized by the Secretary of the Army. Now, that's different than the -- the matter of work or works. And if you'll notice, the whole concept here was to try -- was to treat some of these things differently. Now, an obstruction to navigation as such, was being condemned by the Congress. The Congress didn't want any kind of an obstruction to navigation. Then, it was leaving and out however, for certain things that may not be complete obstruction to navigation, but might be in part. And that's the way this Court construed it in the two cases I've referred to that there could be not and unreasonable or that there could be a reasonable interference with navigation and there isn't any question but what some of these things that are named in the second and third clauses here, do interfere with navigation. You just look at them and read them and you'll see that there isn't any question, but what they would keep a vessel from going through that particular kind of construction or even a fill. But it might be necessary to have a fill at a certain point, in order to develop a proper channel. It's done on the Mississippi River and the Missouri all the time that they're built all kinds of constructions in order to direct the channel in a certain manner and yet, it would interfere with anybody taking a vessel on the old channel or other places that have been commonly used for navigation. So, it is an order to provide for them that the Congress said, “There shall be no obstruction in navigation. And then this Court read that it -- that power that was granted to the Secretary of War was to permit whatever was not an unreasonable interference in these limited cases.
Felix Frankfurter: As I understand you and you go on (Inaudible) 1890, only when it comes to the remedy of substantive law, you'll stand on what exactly was insufficient and adequate there on the 1899, is that right?
J. Lee Rankin: Yes, Mr. Justice Frankfurter.
Felix Frankfurter: And that was engaged -- that's allowed you very far from that.
J. Lee Rankin: Well [Attempt to Laughter] I'll get to that, I think, shortly. Now, I think we do have an -- an important problem, maybe you're not ready to leave this one yet, but an important problem in regard to Section 13. And it's relied on -- there it was relied on by the Court of Appeals and very largely by respondents.
Charles E. Whittaker: All right --
J. Lee Rankin: In regard, I might -- I want to treat the Court of Appeals' holding in regard to Section 10. The Court of Appeals read Section 10 and said, since these provisions for the -- for the Secretary of War to grant a permit for certain -- for a fill and these other modifying course, location, condition or capacity of any harbor, canal and so forth. And I want to call the attention to the fact that Sanitary District and Wisconsin against Illinois were exactly there. They did modify and change the harbor and canal and so forth in this very situation, because they permitted this water to be drawn out of the Lake. No question but what it was reducing, the size and the depth of Lake Michigan. And it was changing that, but the Court of Appeals held that since there was -- you couldn't allow a fill like this, like these in litigation here, because they would obstruct navigation. That's what exactly what they do, because this is a 21-channel -- 20-foot -- one-foot channel, 200 feet wide. And the evidence is clear that it has been reduced from 21 feet, by this action, to 17 feet and in some instance, 12 feet. Now, that is unquestionably very destructive of the great volume of navigation that's involved in this very channel, one of the principal navigation channels of commerce in the United States. The volume that goes through here is very great, not only to these people, but all along this channel in this -- the Sag channel and down to the Illinois River to the Chicago Sanitary Canal. So, the courts said, “Well, since they couldn't approve it, it couldn't be precluded by the first section.” And the Government says, “That's absurd.” That's a wrong leading of it. If it's something that couldn't be approved, Congress didn't want it allowed by anybody except itself, if it was such an obstruction. If it was so great an obstruction that the -- it's obvious it would be an unreasonable interference with navigation, then it certainly couldn't be approved by anybody, but Congress. On the other hand, it provided these other provisions so that if it was something that was reasonable and it was desirable in order to get its benefits as distinguished from some liabilities or detriments that would be involved, then the Secretary of War was allowed in these particular situations, to permit it. And that provides -- that's the reason why they added these other clause in regard to the fill and the change in location.
Earl Warren: But assuming it was (Inaudible) 1890 Act?
J. Lee Rankin: My recollection is they were. Now, I'll see if I (Inaudible)
Earl Warren: Don't -- don't interrupt your argument. I will get them.
J. Lee Rankin: There is a provision for bridges, piers, docks, wharfs and similar structures and so forth. And this went into more detail in the 1899 Act.
Charles E. Whittaker: As I understand, Mr. Solicitor, your answer to Mr. Justice Frankfurter, that although it may be that the substantive material in Section of the 1890 Act is repealed by Section 10 of 1899 Act yet, the remedy provided by Section 10 of the 1890 Act still obtains. Is that right or not?
J. Lee Rankin: Well, I think we go at it a little differently. We say that insofar as the remedy was there, it still remains because they repealed anything that's inconsistent. We first say that structures in the 1899 Act meant obstructions to navigation because they were -- they said to the Congress and it was a whole history. They weren't trying to change anything materially and that would change it materially. But we say, if you don't find it on that basis, then they said we repeal only what is inconsistent and therefore, you still have a -- a provision in regard to obstructions (Voice Overlap) --
Charles E. Whittaker: It left me with a void however, as to how after you had eliminated all of the substantive remedial provisions of the Act, you could still have the remedy.
J. Lee Rankin: Well, you still would have the -- the provisions in the new Act of all the -- the remedies and the declaration that it was unlawful. So, it's just like you would use this sheers and cut out part and you say, this is not inconsistent, that stays in. This -- that's inconsistent or superseded here, goes out because that's what the Congress said. But you still have the fundamental declaration that an obstruction to navigation is unlawful. And then once you find that it is unlawful and this is the very kind of thing that was involved, then you apply the remedy. And if you don't find that it -- it in the remedy, that structures meant in light of the legislative history, obstruction to navigation for the purpose of the injunction, you go back to 1890 Act and what Congress said when it says, just to be safe in this matter, they -- I'm -- that's my language, but I think that's what they were trying to do, just to be safe, we only repeal. And you know, Congress doesn't do that generally, they -- they repeal an Act in terms or so much of the Act and so forth, but just to be safe, they did say we repeal whatever is inconsistent which means, they left in effect, everything that wasn't there.
Hugo L. Black: (Voice Overlap) --
J. Lee Rankin: Now, that's generally --
Hugo L. Black: What was in the Commission?
J. Lee Rankin: Well, if you read the construction of the provision of Section -- I think it's 16 to limit -- let me see -- no, it's Section 12 on the top of page 48 where it says, “The removal of any structures -- Mr. Justice Black is down and further on page 48 of our brief there. The relief provision about injunctions and further, the removal of any structures or parts of structures directed in violations of provisions on the said section's maybe -- maybe enforced by injunction and so forth. Now, that uses the word structures instead of obstruction to navigation as was before. And we say that if that is inconsistent, if you won't, you don't find it that you can read it as the same because Congress was trying to do the same thing and not making material change, then we say, you go back to the other Act and add to this whatever is there because it's not inconsistent. Now, I -- I do want to deal with Section 13, which prohibits the discharge for any manufacturing establishment and so forth of refuse matter of any kind. That's on the lower half of page 48 of the Government's brief and then, the point that's particularly in issue is other than that flowing from streets and sewers passing therefrom in a liquid state into any navigable water of the United States and so forth. And they claim, the claim by respondents is that it's intended that their type of material coming out in this sewer is within that exception and therefore, they are not subject to Section 10, they are subject to Section 13, but they are within the exception and this obstruction therefore, is not in violation of law. Now, we -- it's the position of the Government in the first place with what comes out doesn't satisfy the exception because it isn't in a liquid state.
Charles E. Whittaker: Some of the -- what percentage of it is -- is in liquid form?
J. Lee Rankin: It's 99 and 98 hundredths.
Charles E. Whittaker: Well, now then, you say that's not liquid?
J. Lee Rankin: Well, Mr. Justice Whittaker, I don't think there is any question about what -- in people dealing with this subject that is not liquid in a liquid state, because it's not complete. There are -- these particles are what are known by people dealing in the question of pollution and obstructions in navigation are known as settleable.
Felix Frankfurter: As what?
J. Lee Rankin: Settleable particles and the -- then, there are suspended particles.
Charles E. Whittaker: Well, do you not have that margin of solids in so-called pure water?
J. Lee Rankin: I was -- I wouldn't be able to answer that.
Charles E. Whittaker: It goes through it, don't you?
J. Lee Rankin: I didn't think of it that large in the ordinary processing of drinking water, but I -- I wouldn't want to answer that without examining directly.
Hugo L. Black: Does still water create sediments?
J. Lee Rankin: Well, generally, it --
Hugo L. Black: Like this?
J. Lee Rankin: It doesn't. Now, that's -- that's the difference between settleable particles or solids and suspended as understood in terms of pollution, because there are many kinds of particles that are solids. No question about it.
Hugo L. Black: It might bring some wood.
J. Lee Rankin: Yes. That are suspended in water or in liquids, but those solids when they're exposed to oxygen and the other elements in the water of the stream, will disappear and be dissipated and never form an obstruction of any kind. Now, that involves a question of the speed of the stream in this channel, is when it moves very slowly. In fact, it reverses itself at times. So the problem is much greater, but there isn't any question about what this is known and treated by people who deal with this subject as settleable solids or those within a period of two hours will settle out and then become an obstruction to navigation. Now a good example of how people distinguish that were working in this whole field is the Ohio Compact and if you'll recall in the briefs, they refer to the fact that -- that the -- that the United States permitted these compacts to be made in the higher compact and if Congress thought this law -- many thing like this, why would they allow a compact like that? Well, the compact provides in so many term -- words expressly that all the settleable solids are to be removed. That's what we're dealing with here. Now, they didn't distinguish in using that argument between suspended solids that don't become settleable and those that are settleable, but the compacting states didn't purport for a moment in that compact to allow them to take settleable solids and be able to only eliminate 45% as they did with regard to the rest of it. And the reason for that is that the other type of solids will generally, unless their conditions are unusual, take care of themselves by becoming dissolved and completely liquid. So, they become no obstruction to navigation, but overall in this whole picture, Congress was trying to see that we be able to -- to have navigation. We have commerce and they were not -- you can't find anything in this law or the legislative history that shows a disposition to allow people to build something up like this and destroy what the country is spending millions of dollars every year to provide not just for these people, but for the whole community.
Earl Warren: And you're talking now on the question of power, aren't you? Nobody disputes power. It's whether the Congress is acting, isn't it?
J. Lee Rankin: No. I'm talking beyond power. I'm talking to what Congress was trying to do. They were trying to get rid, avoid and protect against this very kind of thing. They were trying to preserve and protect navigation.
Earl Warren: They were doing that also in the context of other interest in the future. To say namely the rights of riparian people and people who were doing the kind of thing that these parties are doing. There's a -- there are two competing sets of factors. There are -- I wasn't wholly directed on navigation, was it?
J. Lee Rankin: No, Mr. Justice Harlan, but they were also, you recall in Section 13, they do have an out in that they also provide for the Secretary of War to grant permits but -- I would like to deal -- now, it's claimed that back in 1890, in 1899, no one concedes at all that you couldn't pour out of the sewers, any kinds of material like this.
Felix Frankfurter: Are you leading this question of remedy, etcetera?
J. Lee Rankin: Yes, I was Mr. Justice.
Felix Frankfurter: I'd like to have you have you illuminate, if you will for me what is -- I think an (Inaudible) of the 1899 Act which exquisitely gives somebody by way of injunction to violations of provisions 9, 10 and 11. And you need to move over to Section 16, another remedial provision that does not include the remedy of injunction for violations of Section 13, 14 and 15. Now, if only a printed Section 13 having gone to -- I find that 14 deals with -- 13 deals with reference broadly speaking, 14 deals with the placement and things like that and 15 deals with obstruction to -- floating timbers and -- and vessels and so on.
J. Lee Rankin: Yes, Mr. Justice.
Felix Frankfurter: Will you indicate why it was that Congress ask to -- 9, 10 and 11 specifically authorized the Attorney General to move for an injunction when it comes to 13, 14 and 15, they gave other remedies such as libeling the vessel etc was left out (Inaudible) injunction.
J. Lee Rankin: There is no -- Mr. Justice, there is no legislative history to unlikeness.
Earl Warren: It means to be a very conscious differentiation, isn't it?
J. Lee Rankin: Yes. Now, there is a -- a case that came up, the Wilson case in the Second Circuit in regard to that part of the problem that's involved here and that was the sunken barge and there, the Government tried to get an injunction and the Court held that they couldn't get injunction --
Earl Warren: Could not?
J. Lee Rankin: Yes because it said, there is a provision here that if a party who has a sunken barge, does not remove it, you can do it yourself and you can charge the vessel and -- or give it to the person that removes it and that's an adequate remedy. We don't quarrel with that because we think Congress did give us another adequate remedy and took care of the problem. And we do say is that there are some statements in that opinion that we don't agree with. It took issue to the Ninth Circuit holding in regard to the 1890 and 1899 Acts being both in effect.
Felix Frankfurter: Did the Court deny its power to issue an injunction or did it say, considering the fact that you have self remedy, no use of asking us for a mandatory injunction?
J. Lee Rankin: No. It denied the power.
Felix Frankfurter: It denied --
J. Lee Rankin: It said that Congress had provided the other remedy which was adequate and -- and had so decided by this particular provision where it didn't provide coverage for the other, but in -- even in that case, it didn't say that there wasn't a violation.
Felix Frankfurter: No, no. They (Voice Overlap) --
J. Lee Rankin: It -- it said there was a -- an obstruction in navigation, but said you had to look to this particular provision for relief.
Felix Frankfurter: Now, I haven't read either of the briefs, but if -- if Congress had made no provision for an injunction, it said nothing about an injunction, I should find it very difficult to deny the power of equity to issue an injunction would make effective the prohibition of the statute and so, the argument must mean that by a particularizing, there is a limitation, is that right?
J. Lee Rankin: That's the argument, Mr. Justice Frankfurter and we don't think that's correct because we think --
Felix Frankfurter: But you also argued -- you argued for the retention of what would be there, Congress hasn't specified?
J. Lee Rankin: Yes, Mr. Justice and we say that if you're going to read it out, you have to find an express purpose of the Congress to deprive the courts of an inherent power to protect in regard of this situation that it would have except for such a prohibition.
Felix Frankfurter: I suppose we can all start including the -- the respondent that the 1899 Act simply was meant to stiffen the control of the dealing with obstructions to navigation. But that a steady progression in the -- in the laws as you indicated, in the beginning Congress dealt with each case ad hoc.
J. Lee Rankin: Yes, sir.
Felix Frankfurter: And then came 1890 which was a very inadequate statute in part and the experience under that, it got 1899 which meant to enlarge the grip of control and not to relax it. Is that a fair summary of the history?
J. Lee Rankin: Well, I think it's one we all have to accept because this Court said it twice. And so, they're -- in the Sanitary District case and Wisconsin against Illinois, this Court said, the purpose was to enlarge and to take care of all these problems in various certain terms.
Hugo L. Black: May I ask you, if you do not have the remedy of injunction which you've been talking about, is there any other remedy in the Act?
J. Lee Rankin: Well, there is a remedy to find and in present provisions in some -- both of those are provided in the Act, but the Government --
Hugo L. Black: In particular things?
J. Lee Rankin: Yes.
Hugo L. Black: But why -- where is that? What's the --
J. Lee Rankin: In section 16.
Felix Frankfurter: 49 -- page 49.
J. Lee Rankin: Page 49.
Felix Frankfurter: But that's a -- Sections 13, 14 and 15.
J. Lee Rankin: Yes.
Felix Frankfurter: Is there any other provision?
J. Lee Rankin: Then in Section 12 --
Hugo L. Black: As far as Section 10 is concerned.
J. Lee Rankin: There are some fines provided.
Hugo L. Black: What?
J. Lee Rankin: In Section 12 on page 47 in the top of four -- page 48.
Hugo L. Black: Yes, but that's limited according to their argument to structures, actual structures. Assuming they are right on that, does the Government have any remedy as to this settlement at the bottom of the river?
J. Lee Rankin: Well, Mr. Justice Black, I don't think it's fair to characterize their argument as merely limiting the fine part to structures. I think they concede that the fine and imprisonment provisions would apply to obstruction as well.
Hugo L. Black: Well, they would say that you had the right to try them criminally, but did not have the right to enjoin --
J. Lee Rankin: That's right.
Hugo L. Black: (Voice Overlap) --
J. Lee Rankin: And we say that that is -- does not -- not an adequate remedy that we've -- for navigation, we've got to get rid of this obstruction and not have to deal with it periodically or repeatedly.
Felix Frankfurter: Well, you have to go beyond that, if may suggest, not merely that it isn't adequate, but that the -- that the attitude of Congress as revealed by legislation and the background of it was that they were concerned with -- with affirmative relief and not putting people in jail or inadequate fine.
J. Lee Rankin: Yes, Mr. Justice Frankfurter. I add that on, but in order to deal with the inherent power and the -- and the equitable right, I say that there's other provisions. Now, I'd like to deal just briefly with this question of their claim that back in 1890 in -- in that -- and 1899 when these laws were passed, everybody knew that this kind of material was going out in the sewers and therefore, it's absurd to claim that this exception wasn't provided to take care of this very thing. I think they are seriously affected on that argument if you examine it, by the fact that Congress was careful to provide that the Secretary of War could allow permits even as to Section 13. So that if it was the kind of thing that had to be done in the interest of carrying on the competing interest, there is a provision for it, assuming that it isn't an absolute obstruction to navigation. It's something that could be construed as being reasonable and I assume that that competing interest would have to be reasonable in order to be justified in its competition. But going beyond that, it's claimed that there -- here is an Attorney General's opinion which they cite on page 32 of International Harvester Company brief, 32 of the International Harvester Company brief and they say it's an 1894 opinion and they use it to say that the Attorney General refused to give an opinion. And therefore, they say that since he didn't refer to the other sections when they asked him about Section 6 and its effect, which was now Section 13 substantially, that he must've recognized that the only possible place for -- that there could be any application to Section 13. Now, there are several things wrong with that argument, I want to deal with very briefly. First, the opinion was given 1897 and not 1894 as they state. Secondly, the law that they referred to was the 1894 law and it didn't have in it the Section 10 and the provisions that we refer to. That was in a different statute. And third, the Attorney General was only asked about this particular one, but the thing that cuts against them very greatly, is the further language as you get down to the bottom of that opinion in which he is dealing with the fact that he's asked as to application of this particular statute, Section 6, that's now, substantially Section 13 and then he says what the statute provides and that's in quotes. And then he says, “Whether or not, the bar complained of is formed by discharge from the sewer which so far as appears, is left to inference and whether the sand or other materials discharged merely in suspension and is then deposited upon the bar by the ordinary prompt action of gravity or passes out in solution and is then precipitated, are facts that he must have before he can answer the question. Now, I think that shows how unreasonable or -- or unsupported their claim is that people at that time didn't think of the very thing that we're claiming in this case as the difference between settleable and suspended particles when he says exactly the description we have, I've got to know, are these the kind of particles that are going to fall down or are they going to continue in suspension. And if you tell me that, then I can answer this question which shows that in order to try to answer what was in a liquid state, he was looking for exactly the kind of thing we tell this Court now. These are settleable particles that did do fall down and will fall down and do form an obstruction. And if there was any idea at that time that people were doing this to such an extent, that it would be absurd to make such a claim today, then why would the Attorney General pose a very question that we say is controlling? Now, there's no question of what these very particles are obstructions, they are settleable and they have formed this obstruction and caused this great reduction in this channel. Now, they form it in -- in this way. They really form a structure and I'm not urging that as satisfying the provisions of -- of the Section in regard to structures and injunction at all, but actually, as described by the engineers and technicians, these particles, iron particles and others that come out of this waste have an electric charge and they form what is called flocculation so that they interlace. And they then form a regular small building in this channel and you can pour sand, you can pour other kinds of sludge and other waste in it and it will be the same capacity, the same size after you get through as is it was immediately before, because it will fit within the structure. So that -- that they in effect, is the flocculation really of these particular particles as they settle out that builds them into structure that makes it impossible to navigate in the area where they are.
Earl Warren: Can I ask you a practical question. As I understand this injunction, I was referring to the (Inaudible) from putting back into the river any water that contained these impurities, right?
J. Lee Rankin: Yes, sir. And it also --
Earl Warren: It --
J. Lee Rankin: It requires them to dredge.
Earl Warren: Not a standard right --
J. Lee Rankin: Unless they get a permit.
Earl Warren: Now, do you claim that they can purify this water beyond what they have done, succeeded in doing so far?
J. Lee Rankin: I think it could be done. I don't know whether it's economic.
Earl Warren: Well, the -- if they couldn't, the result would be I suppose that they could take the water and then under this injunction, they couldn't put -- they wouldn't be permitted to put it back so they -- it wouldn't get back into the river at all, so the --
J. Lee Rankin: Well, in the -- in the past, they've dredged. Some of them was dredged in -- for 50 years, this construction has been made by the Corps of Engineers on this very statute as what it means. And for many years, the Illinois Steel Company that isn't the respondent or defendant in this case, proceeded to dredge, every couple of years and clean this out. Now, there was -- a demand was made from 41 to 49 on these people and they didn't do it. In 1951, they did dredge and then they refused to and the -- and the Congress Committee said, it's absurd that they should be getting all the benefits of this channel, the navigation and all of the money that United States was pouring into it and not be willing to dredge out the interference that they themselves were creating. So, the Court left it that they -- if they've got a permit and would make arrangements to dredge and take care of his burden, they were imposing on navigation that they would -- it would be sufficient and I assume that would be the attitude of the Corps of Engineers and -- and the Government. All the Government wants is to have the benefit of this navigation channel for all the people, not just for these.
Felix Frankfurter: Before you sit down, again very hypothetically, an injunction was originally granted by Judge (Inaudible) in this case, is it not?
J. Lee Rankin: Yes, Mr. Justice.
Felix Frankfurter: Do we have to -- on the assumption that he is correct, the Government collects under substantive law, this one anticipates, do we have to pass on the scope of the injunction? Is that or would that be remitted to the Court of Appeals? Is that in controversy here?
J. Lee Rankin: Well, I didn't think it was. I don't --
Felix Frankfurter: Well --
J. Lee Rankin: I might ask the other counsel --
Felix Frankfurter: That's the other reason.
J. Lee Rankin: From the Government's standpoint, we certainly were not putting an issue. We didn't think it was. We could be mistaken by --
Felix Frankfurter: I (Inaudible) because it would be remitted in -- you know that has been the facts.
J. Lee Rankin: Yes.
Felix Frankfurter: And I suppose that would open up -- however (Voice Overlap) --
J. Lee Rankin: Yes.
Felix Frankfurter: Thank you very --
Charles E. Whittaker: Mr. Solicitor and Mr. Chief Justice, may I ask one more question?
Earl Warren: Yes, you may.
Charles E. Whittaker: I'm still concerned about this -- what seems to me a small amount of sedimentation. Are you not here -- the Government is here in the Great Lakes cases insisting that Chicago and the State of Illinois put back into the Lake effluent from industrial and domestic use of 90% pure water with 10% sedimentation?
J. Lee Rankin: No, Mr. Justice Whittaker. The Government never took that position in those cases. The Government is -- thought that the question should be reexamined and the question of how much water could be withdrawn form Lake Michigan for the purposes of the Chicago Sanitary Canal and the Illinois River navigation, what it needed and how much purification there could be, but we have never taken the position that there should be -- the effluent should be returned from the river. Now, that is the position of the other States, but not of the Government.
Charles E. Whittaker: I see.
Earl Warren: You may have five minutes to -- to conclude if you wish and counsel may have five extra minutes, if they wish at the end of their time. Mr. Jackson, you may proceed.
Raymond T. Jackson: Mr. Chief Justice, may it please the Court. May I say preliminary the request of Mr. W.S. Bodman, who is here and he is counsel for respondent, International Harvester Company, that in view of the Court's reluctance to permit three counsel to argue on one side although separate cases, he waives his right to do so and will not participate in the oral argument, but rely upon his brief and he hopes upon arguments of counsel for the other respondents. We may wish to withdraw that later.[Laughter] Now, if the Court please, I should like briefly to set out my conception of what is before this Court on certiorari in this case. And sufficient of the factual segment, so as to make intelligible the discussion of the statutes which are involved. As has been said, the Government brought an action in which it alleged that each of the respondents violated Section 9 and Section 13 of the R & H Act of 1899 and prayed for injunctive relief. The Court of Appeals held that the petitioner had failed to establish a violation of either Section 10 or Section 13 of the 1899 Act and then is a cumulative ground of decision that even if a violation of either section had been established, the remedies created by Congress for the violation of those sections are severally exclusive and do not authorize petitioner to maintain any civil action on this relation to this subject matter. Now, very briefly, the respondent's own plant from the Calumet River and if in -- of interest, their general location is shown on the map, it's back of the International Harvester Company brief. The -- and Interlake Iron Corporation which happens to be my client, operates coke ovens and two blast furnaces to produce pig iron for the merchant trade. In the operation of the coke ovens and the blast furnaces, it withdraws water from the Calumet River which already contains some suspended solids. In these operations unavoidably, coke ovens create some coke breeze and blast furnace creates some flue dust. Each consists principally of very fine particles and so far as here, a material is very fine, many of them being so small that they cannot be seen with the aid of an ordinary microscope. Now, each of these products are valuable, they have commercial value and Interlake uses numerous processes and various equipment to recover all of these coke breeze and flue dust to the greatest practical extent, from the water before it throws back through its sewers into the Calumet River. Now, some of this small amount of this very fine material, it cannot practically be recovered from the water before it returns. So, it -- and it is carried in suspension or a solution depending upon your technical definition of terms and some of it may well deposit at unforeseeable times in unknown places, either in the privately owned slip adjacent to the plant in the river, but not within the navigation channel and probably some of it in the navigation channel. Now, Interlake regularly dredges its private slip and in the part of its plant and the -- however, the net result is for the purposes of the questions here presented, that as the Solicitor General has said, the effluent or outflow from the sewers of these respondents is 99 -- just more 98% water. Now, I should say that the other respondents, International Harvester and Republic Steel Corporation also operates coke ovens and blast furnaces to produces pig iron for their own use, in their own plants which they then convert into steel and into some steel products. And as appears from my map, the very large plant of U.S. Steel and Youngstown Sheet and Tube are located at the Lake, which since Chicago reversed the Calumet River, is now the source instead of the mouth, so that any material from those plants would pass downstream towards the plants of the respective respondents. Now then, in our view, the simple question is whether the discharge of sewer outflow or effluent of which 99 -- just more 98% is water, but which carry some small amount of very fine materials that may settle out admittedly, as here or there, is a violation of Section 9 or Section 13 of the Rivers and Harbors Act of 1899.
Earl Warren: 10 to be, not 9.
Raymond T. Jackson: I beg your pardon. I should say 10, 10 and 13. I thank you. Later, one side of the moment, the question of what remedy if any, would be available in the event the petitioner had established a violation of either section. Now, in order to -- to -- before discussing these specific statutes, I should like to mention some considerations. Something of the background upon which I believe this -- the Rivers and Harbors Act of 1899 and the material sections must be construed. First, as I shall show a little later, the River and Harbors Act of March 4, 1899 was a comprehensive and all inclusive revision of all general laws with minor exceptions that I will mention later, for the protection of navigable waters. In which the Congress carefully segregated the different segments of the old river problem, its different process in particular sections and made a similarly discriminating choice of remedies. Now, when Congress enacted these Rivers and Harbors Act of March 3, 1899, it was exercising its exclusive constitutional authority under the Commerce Clause of our Constitution, to balance the national interest in navigation and non-navigation uses of our navigable waters. Concededly, throughout the history of our country, in 1899 and even today, the -- the non-navigable -- navigation, uses of navigable waters for domestic use, for manufacture and a host of other purposes, have been essential to the development and the maintenance of our national economy and incidentally to the development and maintenance of the tax resources upon which both national and local governments could depend. Now, I think it -- it necessarily -- it necessarily follows that in undertaking such a problem, Congress necessarily segregated the different process. Provided different regulations, provided different remedies and as I shall try to show later, there is no room for trying to transpose, draft the one section of -- of a substantive section on another, one remedy upon another remedy. Then, we say one word about the -- Section 10 of the Act of 1890, works with great deference in certainly, all respect, I say that the petitioner here has been forced into the untenable propositions for our position of contending that Section 10 of the Act of 1890 was not repealed, because it suddenly discovered the even if it could prove a violation of Section 10 of the Act of 1899, it had -- the Congress had not provided the equitable remedy which it was seeking. Now later, I would like to -- I would like to come back to that a little further. Then, I -- I know -- I want to turn to -- well, I want to say one other thing, quite inadvertently I'm sure, the Solicitor General overstated what he conceived to be the degree of agreed facts. So far as I know, there are no agreed facts except that we operate the plants that we -- return the water the way that we have specified and that so much of it is water, as the Solicitor General stated himself on -- in his argument. Now, there is no -- there's a question of settleable solids. Anything in suspension most -- well, deposit sometime -- it's just a question of time -- just the question of condition and there is as far as I have ever found, no water known to nature in a pristine forest, which does not carry some solids in suspension. Now, these very fine particles which are carried in the sewer outflows of these respondents are inert. They are not putrescible. And to speak about how the sewage in the light disappears, is wholly irrelevant and -- and I -- if I may, with diffidence say incorrect. It is true that if you discharge putrescible material into flowing water, it will oxidize that material so that it will no longer be putrescible, noxious --
William J. Brennan, Jr.: What's that word that you've said?
Raymond T. Jackson: Putrescible. I think, it means, it will rot, but (Inaudible) and excuse me, if I am, but it doesn't mean that there's nothing left of it, it means that the materials which have been purified from the standpoint of public health, from the standpoint of offensive -- you know, (Inaudible) to the public, that is where they give off bad odors and so forth, will have disappeared. Now, I come to the first proposition. I only want to spend a minute on it, because I think it's tied too closely to the others. In -- we contend first that Section 13 of the 1899 Act is the only such -- which has any application to the respondents' acts. And that Section 10 of the 1899 Act is wholly inapplicable. The -- this -- the Act of 1899 was not only a comprehensive, but all inclusive revision, but it was made with great care. The -- the Congress directed the Secretary of War and the army engineers in 1896 to -- to review all of the general laws which had been passed from time to time for the protection of navigable waters. You report them to the same and their recommendations as revision emendates in our enlargement of the laws as he thought at that cases. Now, that was done and the report was made on February 13, 1897. And the statute which in -- the graft statute which in large part, became the Act of 1899, was before the members of Congress for over two years. This was not any hasty act. Incidentally, it explains perhaps the limit on repeal because the Secretary recommended that there be no change made in two existing laws since they had already been construed by the courts and regulations have been promulgated by the Department under them, they authorized regulations for certain purposes. Of course, it would be singular indeed to find that the Congress having given this one reason for asking this careful and comprehensive revision of all the general laws to be made. There should -- thereafter, provides that all of the -- one -- and the reason -- for the reason that they had been enacted at various times, are difficult to locate and so forth, that it should then enact a new set of laws on the same subject and declare however that you had to look at all of the old laws scattered throughout the statutes to see whether or not they were not also in effect. It would -- I -- it seems to me, have changed confusion to chaos. Now then, I'm going -- I want to know briefly of -- of the construction of Section 13 of the -- of the 1899 Act. That is quoted at page 27 of the brief as far as I think -- as I believe to be relevant, but is quoted in full on pages 48 and 49 of the Appendix A to petitioner's brief.
Charles E. Whittaker: I understand your argument now as to why you think such intent of the 1890 Act was repealed.
Raymond T. Jackson: Yes.
Charles E. Whittaker: But I do not understand your reasons for saying that Section 10 aren't -- the provisions of Section 10 are not applicable.
Raymond T. Jackson: Well, my reason I -- should've added is this. The question here involves the discharge or deposit of refuse matter into navigable water. Section 13 of the 1899 Act regulates that subject matter in detail and comprehensively. Section 10 of the 1899 Act does not in my opinion deal with that subject matter at all. But if it did -- if you can say that the -- the generality of its language in a broadest stream might be held to encompass to discharge of or deposit of refuse matter. The settled principle as I understand it is that in the same statute, a section in which Congress had expressly and specifically regulated one segment of the overall subject matter, is the exclusive and controlling regulation of that facet of the subject matter even though there maybe another section with such general language that it could be construed to encompass the specific section. I think it -- the reasoning is further emphasized by bearing in mind constantly that the Congress was here balancing the national interest in navigation and non-navigation use and as I hope to show more point, a little discussion of Section 13. That was a particular segment of the problem which could not be dealt within generalized language and still come out with what Congress believed to be a reasonably sound balance between the navigation and non-navigation interest. Now --
Earl Warren: Could I ask you a question?
Raymond T. Jackson: Certainly, sir. I'm sorry.
Earl Warren: Following on Mr. Justice Whittaker's question, having regard to the Clauses 2, 3 and Section 13 and other portions of the Act, what is there left for section -- the first clause of Section 10 to operate on? In other words --
Raymond T. Jackson: Well -- I -- I was wondering, I can cover that after 13, but I -- I will decide to take it up first even that -- that is --
Earl Warren: Well, I don't want to interrupt you, but --
Raymond T. Jackson: Well, I --
Earl Warren: You read Section 10 out of the picture and that I think was one of the -- the Government has to rely on it and --
Raymond T. Jackson: I do not -- I do not read it out the picture. Well --
Felix Frankfurter: I just --
Raymond T. Jackson: -- let us look at Section --
Felix Frankfurter: Forgive me -- forgive me Mr. Jackson, but I thought, you stated if I may say so impressively a little while ago that you urge on us strongly the consideration that where a Congress comes out a little sirloin from the pole, that's all it serving up and --
Raymond T. Jackson: That's right.
Felix Frankfurter: And therefore, why did you say that you -- why did you just answer to Justice Harlan --
Raymond T. Jackson: Well, I --
Felix Frankfurter: -- you do not read of 10.
Raymond T. Jackson: I'm afraid I misunderstood, but we do -- we do contend that it's wholly inapplicable to this case.
Earl Warren: In this case. Yes.
Raymond T. Jackson: But I perhaps misunderstood Your Honor, and thought you might be inquiring whether in that view, it was left -- was no applicable --
Felix Frankfurter: No, no. Of course (Voice Overlap) --
Raymond T. Jackson: And I -- don't --
Earl Warren: I think you understood me correctly. I think I'm to blame. That's what I did mean.
Raymond T. Jackson: Well, as you prefer, I would like to go to 13, because I think it follows back -- and better after, but I take the --
Earl Warren: All right. Leave it alone because I think the question is probably in -- in that form.
Raymond T. Jackson: Well, I -- I'm sure they do --
Felix Frankfurter: Let me, let me understand it clearly. You do say that Section 10 of the 1899 Act has no relevance to this that the Government's feel in this case --
Raymond T. Jackson: That is so --
Felix Frankfurter: -- and that whatever right it has -- rights it has, it must derive from Section 13 dealing with refuse.
Raymond T. Jackson: That is the -- that is exactly our position, sir. Well, coming to such intent of course, now and -- I --
Felix Frankfurter: We're -- if you say coming to it, you -- you -- this is rebuttal to the Government's argument, is that it?
Raymond T. Jackson: It is really, yes.
Felix Frankfurter: But from your point of view, your argument is (Inaudible), is that right?
Raymond T. Jackson: Well, my point of view, I discuss 13 first, because I think it's the applicable one -- so we don't violate it --
Earl Warren: Yes.
Raymond T. Jackson: And then I would --
Earl Warren: We leave Section 10 in limbo for a bit and go on with your argument.
Raymond T. Jackson: Very well, sir. You're very gracious. Well, Section 13 which is quoted in full on appendix to petitioner's brief on pages 48-9, has a -- one of my contentions to this language. Now, the -- the act that a section declares that it shall not be lawful to discharge or deposit and so forth, refuse matter. Now, I direct attention -- invite attention to the fact that the prohibition with respect to the sewers from which the waste matter may come, is all inclusive and there is no basis for carving anything out of that prohibition, such as domestic sewage. Then in particular, of course, it mentions particularly establishment or mill of any kind of manufacturing plant. Then, the language follows any refuse matter of any kind or description, whatever. Now, that language is also sweeping an inclusive. Now, we then come to this significant language, other than that point from streets and sewers and passing there from -- in a liquid state. First, I have observed that that exception is -- as the all inclusive and sweeping as -- as the language with respect to the source of the refuse matter and the kind of refuse matter. I also invite attention to the fact that admittedly, everything which falls within that exception is not a violation of Section 13 and I submit cannot be a violation of any other section. Now then, we come to this -- and that's when about the bank provision about deposits on the bank are not here involved. We have also provision about government work not here involved. Now, reference has been made to -- to the matter of the certain permits under certain conditions. I -- I reject the Solicitor General's construction of that for two reasons. First, it plainly has no application to the language which I -- from which I quoted in regard to the general prohibition. Secondly, in the case of any discharge or deposit which comes within the exception created by the Congress, manifestly, there can be no violation of the section and there can be no need for a permit and obviously Congress didn't authorized the permit where it was wholly unnecessary. Now then, in the court below, the Government was faced with a problem here seriously. And there, they urged upon the lower court that this exception included only a -- only sewer outflows or streets runoffs, which did not contain any material in suspension or anything of that -- other than water which was not impermanent solution. On our course manifestly, such a construction would render the exception inapplicable to any new sewer outflow or street runoff and I believe to any known natural stream, even though it would be in the wilds of Canada where as yet, there has been little contamination, if any, from civilization. Or obviously, that you could hardly expect that Congress intended -- put in the exception for nothing. The next proposition is that the Congress was exercising its exclusive constitutional authority to balance the national and non-national interest in the uses of navigable water. And under these facts as they existed in 1899 and as they exist today, such an extreme statute as would be represented by the construction claimed by the petitioner, would bring to a standstill, industrial activity in both urban and rural life. These -- these consequences to the economy would be hard to tell. Now, a great problem, great view is made to the fact that there maybe some of these deposits and that might somehow and some unknown extent, increase the normal and conceding it isn't normal, annual or periodic costs of maintenance dredging, our maintenance cost which is incident to practically all the navigational improvements and particularly on rivers where they are made by enlarging a natural channel. Now of course, the obvious answer to that is that the Congress must have concluded either that it would be equitable for the Government to gain and to bear any increase in maintenance dredging, if there might be, or that the alternative was to -- would -- would create chaos, would be disastrous from the standpoint of the national economy. No one argues that the Congress could not completely shut down these plants tomorrow, which can operate only by discharging these -- these effluence into these things, but we do not believe the Congress did or ever will exercise any such -- make any such arbitrary exercise of its plenary power under the Commerce Clause. Now then, as I've -- am I -- should I be out of here, (Inaudible)
Earl Warren: You have -- we'll recess at 4:30, but you have considerable time.
Raymond T. Jackson: Oh, thank you very much, sir.
Earl Warren: Between there, you have an hour. I don't know how you provided the --
Raymond T. Jackson: Oh well, I -- Mr. -- I told you Mr. Conaghan may have (Voice Overlap) --
Earl Warren: That's up to you.
Raymond T. Jackson: Well --
Felix Frankfurter: That's what that light indicated.
Raymond T. Jackson: I thought it's like a double -- just to add a -- a little bit here. Now then, they have in this Court for the first --
Felix Frankfurter: (Voice Overlap) --
Raymond T. Jackson: Pardon, sir.
Felix Frankfurter: Whatever reasons (Voice Overlap) --
Raymond T. Jackson: Yes. A lot of our associates has the time now to say -- I can say it in two three sentences, if I made in the brief, but I don't know if I can, but may I try? At his expense that -- in -- in the -- in this Court for the first time, the petitioner said, “Well, that exception obviously, it claims from legislative history, if I may say because if they keep rolling on, they acquire a steam in their brief that that referred only to domestic sewers. Now, as I‘ve pointed out, the all inclusive language with respect to the sewers of any waste, with respect to the character of any waste and the similarly inclusive -- all inclusive language of the exception itself, does not admit of any such refinement as that. And furthermore, the -- there's nothing in the legislative history that I have seen in any brief filed in any Court or that any -- I could find that anyone who's willing to take up the burden for me to find that whatever it suggests that the -- Congress had any such an intent, I --
Felix Frankfurter: Mr. Jackson, is your -- is your associate going to deal with the problem of whether the inherent right of equity to grant injunction?
Raymond T. Jackson: Well --
Felix Frankfurter: Are wholly apart from the statutory limitation?
Raymond T. Jackson: Your Honor -- I should -- I've promised to do that, but I -- became through for both and so I'll have to ask him to rely up -- I'm kind of in to do that, Your Honor. I may say only in passing that it seemed -- just one observation, I don't think that there's any inherent power of the course of equity, there's no common law cause of action that can deal with --
Felix Frankfurter: I'm not talking about the cause of action, but I'm talking assuming there's a cause of action?
Raymond T. Jackson: Oh, assuming there's a cause of action. I -- assuming (Voice Overlap) --
Felix Frankfurter: Assuming -- assuming that Congress had said nothing, I should describe if you deny that then there would be.
Raymond T. Jackson: If the Congress had done nothing except to create prohibitory regulations, I would suspect that the Court might reasonably infer. That Congress expected them to shape the remedy, law or equity, which they deemed appropriate to that end. Now, here however, you see the difference -- I'll -- I'll cite you their language, excuse me. But here, Your Honors, we have two things, one, statute 1890 and some others, in which at various places, there were criminal penalties, equitable remedies. Then they come to the Act of 1899 or refine that Congress has shifted classifications -- has changed the remedies entirely and --
Felix Frankfurter: Distributed --
Raymond T. Jackson: Yes, right. And it hasn't overlooked them both, because it's -- it's a -- prototype had them and because it's got them here in this case. And then, of course, our position is that -- that the Attorney General to maintain in the action that the United States has, but that doesn't enlarge the action of the United States (Voice Overlap) --
Earl Warren: Yes.
Raymond T. Jackson: Well, isn't it -- well, I could impress because I don't know of this sort of the uncertainty is permissible but, you say a word because it's closing -- closing time and ending time. About Section 10, now that -- this is purely defensive as Justice Frankfurter has indicated. I mean by that, if we say it has nothing to do with it. But in explanation --
Charles E. Whittaker: Before you pass to that term Mr. Jackson, might I ask you, is it your view on the matter of general equitable remedy here that inasmuch as a statutory remedy of some kind has been provided for this type of thing by Section 13 of the 1899 Act, that then the general -- the reach of general equity powers do not apply?
Raymond T. Jackson: Although it's a little more complicated for that, but that -- but that was coming down essentially do that. The first was cause of action of any kind except for a statute. Congress created that.
Charles E. Whittaker: Yes.
Raymond T. Jackson: Congress selected the remedy.
Charles E. Whittaker: Yes.
Raymond T. Jackson: And it must be remembered that if selection of remedies had an equally important bearing upon it's balancing of the national interest in navigation and non-navigation, that uses of navigable waters.
Charles E. Whittaker: And Congress having entered that field with the statute to some extent destroyed the reach of general equity powers.
Raymond T. Jackson: That's right. I think they -- they had -- in other words --
Hugo L. Black: Would you take -- would you take that position that the only remedy Congress had provided was to make it a crime?
Raymond T. Jackson: Well, I -- I think in a -- in many cases, I would not sir, if you might have such a clear indication in legislative history that they limited it to that, but here, I would suggest that in -- we have suggested in our brief to render late, that if the Congress had provided no remedy or perhaps provided nothing but a criminal offense, it would be arguable, if they expected the Court to exercise its common law powers or -- I mean, remedies and equitable remedies, but that is foreclosed as we see it here.
Hugo L. Black: You -- you -- that's on the ground that the statute doesn't make this unlawful.
Raymond T. Jackson: That's right. Well, it also presides the remedy where -- if -- for the employee violation --
Hugo L. Black: Well, either one of you discussed the application of the Sanitary District case?
Raymond T. Jackson: Well, I may say just on word, because I have some familiarity with that situation, having been in good deal of the early litigation. The Sanitary District case involved a great system of -- of that district created by state statutes designed to divert the sanitary and -- and trade waste of the metropolitan area into the Mississippi watershed. Now, that plan involved the planned excavation of the entire river -- Chicago River, its south port, the erection of numerous structures and bridges and the reversal of its natural flow and hydraulic radiance and with water from Lake Michigan. The -- similarly, the -- before the Sanitary District case was decided, it involved -- in the excavation of the entire channel of the Calumet River. The reversal of its national flow and hydraulic radiance so that it would be diverted into the sanitary and ship canal, advanced into the other watershed. Now, none of those things -- they were not kind of things are covered by Section 13, they were planned excavations of the greatest magnitude and clearly could not be done under the third -- what I call the third clause of Section 10, except pursuant to a permit. Now, as this Court (Inaudible) held the power to prove includes the power to disapprove, I may have gotten in reverse, anyway the power to improve in -- disapprove includes the power to improve -- approve on condition. And those permits beginning back in 1896, that's the 30-year administrative construction that that -- this Court spoke of in the opinion.
Hugo L. Black: I -- I shouldn't -- I didn't make my question quite focused --
Raymond T. Jackson: Yes.
Hugo L. Black: -- it's the only point I was interested in quite enough. In construing Section 10 --
Raymond T. Jackson: Yes.
Hugo L. Black: -- it was given a very broad construction by the Court, wasn't it?
Raymond T. Jackson: I don't think so.
Hugo L. Black: (Voice Overlap) --
Raymond T. Jackson: On how to explain why I don't think why it was.
Hugo L. Black: Although water was withdrawn, it nevertheless created an obstruction, because it made it less navigable.
Raymond T. Jackson: Well-- I -- it did in -- in one -- in one round of the state action, but I don't think it is any different under Section 10 because all of these permits, they couldn't -- they -- they were conditions they couldn't withdraw water except when and to the extent they should be authorized by the Secretary of War or Congress.
Hugo L. Black: Well, that you'll have an argument in the morning if (Voice Overlap) --
Raymond T. Jackson: Well, I'm not -- I'm now --
Hugo L. Black: It's a part of -- it's a part of the opinion on page 428 and 429 with reference to Section 10. That's the part I was interested in.
Raymond T. Jackson: Yes.
Earl Warren: We'll recess.