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STATE OF MISSOURI v. STATE OF ILLINOIS, 180 U.S. 208 (1900)

U.S. Supreme Court

STATE OF MISSOURI v. STATE OF ILLINOIS, 180 U.S. 208 (1900)

180 U.S. 208

STATE OF MISSOURI, Complainant,
v.
STATE OF ILLINOIS and Sanitary District of Chicago.

No. 5, Original.
Submitted April 30, 1900

Ordered for oral argument May 21, 1900.
Argued November 12, 13, 1900.

In January, 1900, the state of Missouri filed in this court a bill of complaint against the state of Illinois and the Sanitary [180 U.S. 208, 209]   District of Chicago, a corporation of the latter state, in the following terms:

In March, 1900, came the defendants and filed a demurrer to the bill of complaint, in the following terms:

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:

This cause is now before us on the bill of complaint and the demurrer thereto.

The questions thus presented are two: First, whether the allegations of the bill disclose the case of a controversy between [180 U.S. 208, 219]   the state of Missouri and the state of Illinois and a citizen thereof, within the meaning of the Constitution and statutes of the United States, which create and define the original jurisdiction of this court; and, second, whether, if it be held that the allegations of the bill do present such a controversy, they are sufficient to entitle the state of Missouri to the equitable relief prayed for.

The question whether the acts of one state in seeking to promote the health and prosperity of its inhabitants by a system of public works, which endangers the health and prosperity of the inhabitants of another and adjacent state, would create a sufficient basis for a controversy, in the sense of the Constitution, would be readily answered in the affirmative if regard were to be had only to the language of that instrument.

As there is no definition or description, contained in the Constitution, of the kind and nature of the controversies that should or might arise under these provisions, it might be supposed that, in all cases wherein one state should institute legal proceedings against another, the original jurisdiction of this court would attach.

But in this, as in other instances, when called upon to construe and apply a provision of the Constitution of the United States, we must look, not merely to its language, but to its historical origin, and to those decisions of this court in which its meaning and the scope of its operation have received deliberate consideration.

After the Declaration of Independence the united colonies, through delegates appointed by each of the colonies, considered [180 U.S. 208, 220]   articles of confederation, which were debated from day to day, and from time to time, for two years, and were on July 9, 1778, ratified by ten states; by New Jersey on November 26 of the same year; by Delaware on the 23d of February, 1779, and by Maryland on March 1, 1781.

The 1st article was as follows: 'The style of this confederacy shall be 'The United States of America."

The 9th article contained, among other provisions, the following:

It will therefore be perceived that under the confederation the necessity of a tribunal to hear and determine matters in question between two or more states was recognized; that a court was provided for that purpose; and that the scope or field within which it was expected such matters in question or controversies should or might arise for the determination of such court extended to 'all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatever.'

When the Federal convention met in 1787 to form the present Constitution of the United States, several drafts of such an instrument were presented for the consideration of the convention. One of these was offered on May 29 by Edmund Randolph, of Virginia, in the shape of resolutions covering the entire subject of a national government. The 9th resolution prescribed the formation of a national judiciary, to consist of a supreme and inferior tribunals, with jurisdiction to hear and determine, among other things, 'questions which involve the internal peace or harmony.' 1 Elliot, Debates, p. 143. On the same day Charles Pinckney, of South Carolina, submitted a draft of a Federal government, the 7th article whereof was as follows: [180 U.S. 208, 222]   'The Senate shall have the sole and exclusive power to declare war and to make treaties, and to appoint ambassadors and other ministers to foreign nations, and judges of the Supreme Court.'

On June 19 the committee of the whole, to which had been referred the several propositions and drafts, reported to the convention for its consideration a draft as altered, amended, and agreed to in the committee. The 13th resolution was as follows:

On August 6 a committee of five members, to which the various propositions, as originally made and as amended in the committee of the whole, reported to the convention a draft of the Constitution, the 9th article of which was as follows:

The 11th article contained, among other sections, the following: [180 U.S. 208, 223]   'Sec. 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the United States . . . .

It may be observed, in passing, that, in this draft, all disputes and controversies between two or more states respecting jurisdiction or territory are to be determined by a special court to be constituted by the Senate; and controversies between two or more states, except such as shall regard territory or jurisdiction, are determinable by the Supreme Court. It is therefore apparent that other disputes or controversies between states were regarded and provided for besides those respecting territory or jurisdiction.

This draft, together with numerous suggestions and amendments, was on August 7 submitted to the committee of the whole.

On September 12 a committee on revision reported a draft of the Constitution as revised and arranged. This draft, which, as respects our present subject, was in the terms of the Constitution as finally adopted, took from the Senate the power to constitute a court to try disputes between the states respecting territory or jurisdiction, and struck out the provision excluding from the jurisdiction of the Supreme Court disputes between the states in matters respecting jurisdiction and territory. The entire jurisdiction of controversies between states was bestowed upon the Supreme Court, in the 2d section of article 3, in the following terms:

The judicial power shall extend to all cases in law and [180 U.S. 208, 224]   equity, arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects.

As in this section power is conferred on Congress to make regulations affecting the exercise by the Supreme Court of its jurisdiction, it may not be out of place to quote the provisions in this respect of the judiciary act of 1789:

The case of New York v. Connecticut, 4 Dall. 3, 1 L. ed. 715, in 1799, was the first instance of an exercise by the Supreme Court of its jurisdiction in a controversy between two states. It was a case of a bill in equity filed by the state of New York against the state of Connecticut and certain private persons who were grantees of the latter state of lands, the jurisdiction over which was claimed by both states. The object of the bill was to obtain an injunction to stay proceedings in ejectment pending in the circuit court of the United States for the district of Connecticut.

The court was of opinion that, as the state of New York was not a party to the suits below, nor interested in the decisions [180 U.S. 208, 225]   of those suits, an injunction ought not to issue. No argument was made that the court had not jurisdiction, and the court proceeded on the assumption that it possessed jurisdiction, although, under the facts of the case, it refused the injunction prayed for.

New Jersey v. New York, 5 Pet. 285, 8 L. ed. 127, was the case of a bill filed by the state of New Jersey against the state of New York for the purpose of ascertaining and settling the boundary between the two states. In an opinion awarding the process of subpoena Chief Justice Marshall said:

In March, 1832, the state of Rhode Island filed in this court a bill against the state of Massachusetts, for the settlement of the boundary between the two states, and moved for a subpoena to be issued, according to the practice of the court in similar cases. An appearance was entered for Massachusetts, and a motion was made to dismiss the bill for want of jurisdiction. In support of the motion it was contended that this court had no jurisdiction because of the character of the respondent independent of the nature of the suit, and because of the nature of the suit independent of the character of the respondent. It was not denied that Massachusetts had agreed, by adopting the Federal Constitution, to submit her controversies with other states to judicial decision, but it was claimed that Congress had passed no law establishing a mode of proceeding, the character of the judgment to be rendered, and means of enforcing it. As respects the nature of the suit, it was argued that it was in its character political, brought by a sovereign, in that avowed character; that the judicial power of the United States extended, by the Constitution, only to cases of law and equity, [180 U.S. 208, 226]   and that questions of jurisdiction over territory were not cases of that kind, nor of 'a civil nature.'

The court held that jurisdiction was conferred by the Constitution and the judiciary act, and that, as Massachusetts had appeared, submitted to the process, and pleaded in bar of the plaintiff's action certain matters on which the judgment of the court was asked, all doubts as to jurisdiction over the parties were at rest.

As respected the power of the court to hear and determine the subject- matters of the suit, it was held that jurisdiction existed; that the dispute was a controversy between two states within the judicial power of the United States. 12 Pet. 657, 9 L. ed. 1233; 13 Pet. 23, 10 L. ed. 41.

Before leaving this case it is to be remarked that the principal contest was as to whether a question of boundary, involving as it did the question of sovereignty over territory, was a judicial question of a civil nature. The implication was that the controversies between two or more states, in which jurisdiction had been granted by the Constitution, did not include questions of a political character. In some of the later cases the contention has been the very opposite; that the intention of the Constitution was only to apply to questions in which the sovereign and political powers of the respective states were in controversy.

In Florida v. Georgia, 11 How. 293, 13 L. ed. 702, leave was given by this court to the state of Florida to file a bill against the state of Georgia, and process of subpoena was directed to be issued against the state of Georgia. The object of the bill was to ascertain and establish the boundary between the two states, which was in controversy. The state of Georgia answered, and the cause was proceeded in, in pursuance of the prayers of the bill. Subsequently an application was made by the Attorney General of the United States, alleging that the latter were interested and concerned in the matter in controversy, and moving the court that he be permitted to appear in the case, and be heard in behalf of the United States, in such time and form as the court should order. This motion was opposed by the states, and the matter was argued at length. The [180 U.S. 208, 227]   judges differed, but neither in the opinion of the majority, granting the motion of the Attorney General, nor in that of the dissenting minority, was any doubt expressed of the existence of the jurisdiction of the court over the controversy between the two states.

Pennsylvania v. Wheeling & B. Bridge Co. 9 How. 647, 13 L. ed. 294; Idem v. Idem, 11 How. 528, 13 L. ed. 799; Idem v. Idem, 13 How. 518; Idem v. Idem, 18 How. 429, 15 L. ed. 436, was a case in equity, in which the state of Pennsylvania filed a bill against the Wheeling & Belmont Bridge Company, a corporation of Virginia, and certain contractors, charging that the defendants, under color of an act of the legislature of Virginia, were engaged in the construction of a bridge across the Ohio river at Wheeling, which would, as was alleged, obstruct its navigation to and from the ports of Pennsylvania, by steamboats and other crafts which navigated the same. Many different questions were discussed by counsel and considered by the court, respecting the nature and extent of the jurisdiction of this court, the right of the complainant state, whether at law or in equity, and the character of the decree which could be rendered. Several observations made in the opinion of the court will be hereafter adverted to when we come to consider the second ground of demurrer urged in the case before us. It is sufficient for our present purpose to say that the original jurisdiction of the court was sustained, a commissioner was appointed to take and report proofs, and a decree was entered declaring the bridge to be an obstruction of the free navigation of the river, that thereby a special damage was occasioned to the plaintiff, for which there was not an adequate remedy at law, and directing that the obstruction be removed, either by elevating the bridge to a height designated, or by abatement.

South Carolina v. Georgia, 93 U.S. 4 , 23 L. ed. 782, was a suit in equity brought in this court, whereby the state of South Carolina sought an injunction to restrain the state of Georgia, the United States Secretary of War, the Chief Engineer of the United States Army, their agents and subordinates, from obstructing the navigation of the Savannah river, in violation of an alleged compact subsisting between the states of South Carolina and [180 U.S. 208, 228]   Georgia, and which had been entered into on April 24, 1787. This court, not denying, but assuming, jurisdiction in the case, held that, by adopting the Federal Constitution, and thereby delegating to the general government the right to regulate commerce with foreign nations and among the several states, the compact between the two states in respect to the Savannah river ceased to operate, and that the acts complained of, being done in pursuance of congressional authority, and designed to improve navigation, could not be deemed an illegal obstruction, and accordingly the special injunction previously granted was dissolved and the bill dismissed.

Wisconsin v. Duluth, 96 U.S. 381 , 24 L. ed. 669, was the case of a bill in chancery filed in this court by the state of Wisconsin, by virtue of the constitutional provision which confers original jurisdiction of suits between the states and between a state and citizens of other states. The city of Duluth, a corporation and citizen of the state of Minnesota, was defendant; and, after answer, replication, and the taking of a large amount of evidence, the case came on for a final decree. The nature of the case and the reasoning upon which this court proceeded in disposing of it will sufficiently appear in the following quotations from the opinion delivered by Mr. Justice Miller:

The court then proceeded to inquire into the action of the general government in the matter of the canal in question, and found that, as matter of fact, the United States had taken possession and control of the canal as a public work. The opinion concluded as follows:

The court therefore did not decline jurisdiction, but exercised it by inquiring into the facts put in issue by the bill and answer, and by dismissing the bill for want of equity.

In Virginia v. West Virginia, 11 Wall. 39, 20 L. ed . 67, a bill was filed in this court to settle the boundaries between the two states. [180 U.S. 208, 231]   There was a demurrer to the bill. In delivering the opinion of the court Mr. Justice Miller said:

And, after citing Rhode Island v. Massachusetts, 12 Pet. 724, 9 L. ed. 1260; Missouri v. Iowa, 7 How. 660, 12 L. ed. 861; Florida v. Georgia, 17 How. 478, 15 L. ed. 181; and Alabama v. Georgia, 23 How. 505, 16 L. ed. 556, the conclusion of the court was thus expressed:

In New Hampshire v. Louisiana, and New York v. Louisiana, 108 U.S. 76 , 27 L. ed. 656, 2 Sup. Ct. Rep. 176, it was found that, in view of the 11th Amendment to the Constitution of the United States, declaring that 'the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens and subjects of any foreign state,' as matter of fact, under the pleadings and testimony, the suits were commenced and were prosecuted solely by the owners of the bonds and coupons to collect which was the object of the suits, and it was accordingly held that 'the evident purpose of the amendment, so promptly proposed and finally adopted, was to prohibit all suits against a state by or for citizens of other states or aliens, without the consent of the [180 U.S. 208, 232]   state to be sued, and, in our opinion, one state cannot create a controversy with another state, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other state to its citizens. Such being the case, we are satisfied that we are prohibited, both by the letter and the spirit of the Constitution, from entertaining these suits, and the bill in each case is dismissed.'

In Wisconsin v. Pelican Ins. Co. 127 U.S. 265 , 32 L. ed. 239, 8 Sup. Ct. Rep. 1370, the nature of the case and of the question involved was thus stated by Mr. Justice Gray, in delivering the opinion of the court:

After citing and considering the cases, the justice expressed the following conclusions:

And consequently judgment was entered for the defendant on the demurrer that had been interposed to the declaration.

Hans v. Louisiana, 134 U.S. 1 , 33 L. ed. 842, 10 Sup. Ct. Rep. 504, was an action brought in the circuit court of the United States for the eastern district of Louisiana, against the state of Louisiana, by Hans, a citizen of that state, to recover the amount of certain coupons annexed to bonds of the state. The circuit court, on motion of the attorney general of the state, dismissed the case for want of jurisdiction. This court affirmed the judgment of the circuit court, and held that the judicial power of the United States did not extend to the case of a suit brought against a state by one of its own citizens.

In the course of the opinion, delivered by Mr. Justice Bradley, the following observations were made:

The last case which we have had occasion to examine is that of Louisiana v. Texas, 176 U.S. 1, 15 , 44 S. L. ed. 347, 353, 20 Sup. Ct. Rep. 251, 256. The case was brought before us by a bill in equity filed by the state of Louisiana against the state of Texas, her governor, and her health officer. The bill alleged that the state of Texas had granted to its governor and its health officer extensive powers over the establishment and maintenance of quarantines over infectious and contagious diseases; that this power had been exercised in a way and with a purpose to build up and benefit the commerce of cities in Texas, which were business rivals of the city of New Orleans, and prayed for a decree that neither the state of Texas, nor her governor, nor her health officer, has the right, under the cover of an exercise of police or quarantine powers, to declare and enforce an embargo against interstate commerce between the state of Louisiana, or any part thereof, and the state of Texas, or the right to make discriminative rules affecting the state of Louisiana, or any part thereof, and different from and more burdensome than the quarantine rules and regulations applied to other states and countries; and the bill asked for an injunction restraining the Texas officisls from enforcing the Texas laws in the manner in which they were enforced. To this bill a demurrer was filed, assigning the following causes:

In the opinion of the court, delivered by Mr. Chief Justice Fuller, after a consideration of the cases hereinbefore mentioned and of others, it was said:

After quoting the provisions of the statute of the state of Texas regulating the subject of quarantine, the Chief Justice proceeded to say:

Accordingly the demurrer was sustained and bill dismissed.

From the language of the Constitution, and from the cases in which that language has been considered, what principles may be derived as to the nature and extent of the original jurisdiction of this court in controversies between two or more states? [180 U.S. 208, 239]   From the language, alone considered, it might be concluded that whenever and in all cases where one state may choose to make complaint against another, no matter whether the subject of complaint arises from the legislation of the defendant state, or from acts of its officers and agents, and no matter whether the nature of the injury complained of is to affect the property rights or the sovereign powers of the complaining state, or to affect the rights of its citizens, the jurisdiction of this court would attach.

Chief Justice Marshall in the case of Cohen v. Virginia, 6 Wheat. 364, 392, 5 L. ed. 281, 288, said:

But it must be conceded that upon further consideration, in cases arising under different states of facts, the general language used in Cohen v. Virginia has been, to some extent, modified. Thus, in the cases of New Hampshire v. Louisiana, and New York v. Louisiana, 108 U.S. 76 , 27 L. ed. 656, 2 Sup. Ct. Rep. 176, jurisdiction was denied to this court where the cause of action belonged to private persons who were endeavoring to use the name of one state to enforce their rights of action against another; though, perhaps, it may be said that jurisdiction was really entertained, and that the bills were dismissed because the court found that, under the pleadings and testimony, the states complainant had no interest of any kind in the proceedings.

So, too, in Wisconsin v. Pelican Ins. Co. 127 U.S. 265 , 32 L. ed. 239, 8 Sup. Ct. Rep. 1370, the court held that, notwithstanding the action was brought by a state against the citizens of another state, and was thus within the letter of the Constitution, yet that the court had a right to inquire into the nature of the case, and, when it found that the object of the suit was to enforce the penal laws of one state against a citizen of another, to refuse to exercise jurisdiction.

In the case of Louisiana v. Texas, 176 U.S. 1 , 44 L. ed. 347, 20 Sup. Ct. Rep. 251, the bill was dismissed because a controversy between the two states was not actually presented; that what was complained of was not any action of the state of Texas, but the alleged unauthorized conduct of its health officer, acting with a malevolent purpose against the city of New Orleans. Here again it may be observed that the court did not decline jurisdiction, but exercised it in holding that the facts alleged in the bill did not justify the court in granting the relief prayed for.

The cases cited show that such jurisdiction has been exercised in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property [180 U.S. 208, 241]   rights and interests of a state. But such cases manifestly do not cover the entire field in which such controversies may arise, and for which the Constitution has provided a remedy; and it would be objectionable, and, indeed, impossible, for the court to anticipate by definition what controversies can and what cannot be brought within the original jurisdiction of this court.

An inspection of the bill discloses that the nature of the injury complained of is such that an adequate remedy can only be found in this court at the suit of the state of Missouri. It is true that no question of boundary is involved, nor of direct property rights belonging to the complainant state. But it must surely be conceded that, if the health and comfort of the inhabitants of a state are threatened, the state is the proper party to represent and defend them. If Missouri were an independent and sovereign state all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing a remedy, and that remedy, we think, is found in the constitutional provisions we are considering.

The allegations of the bill plainly present such a case. The health and comfort of the large communities inhabiting those parts of the state situated on the Mississippi river are not alone concerned, but contagious and typhoidal diseases introduced in the river communities may spread themselves throughout the territory of the state. Moreover, substantial impairment of the health and prosperity of the towns and cities of the state situated on the Mississippi river, including its commercial metropolis, would injuriously affect the entire state.

That suits brought by individuals, each for personal injuries threatened or received, would be wholly inadequate and disproportionate remedies, requires no argument.

It is further contended, in support of the demurrer, that even if the state of Missouri be the proper party to file such a bill, yet that the proper defendant is the Sanitary District of Chicago solely, and that the state of Illinois should not have been made a party, and that, as to her, the demurrer ought to be sustained. [180 U.S. 208, 242]   It can scarcely be supposed, in view of the express provisions of the Constitution and of the cited cases, that it is claimed that the state of Illinois is exempt from suit because she is a sovereign state which has not consented to be sued. The contention rather seems to be that, because the matters complained of in the bill proceed and will continue to proceed from the acts of the Sanitary District of Chicago, a corporation of the state of Illinois, it therefore follows that the state, as such, is not interested in the question, and is improperly made a party.

We are unable to see the force of this suggestion. The bill does not allege that the sanitary district is acting without or in excess of lawful authority. The averment and the conceded facts are that the corporation is an agency of the state to do the very things which, according to the theory of the complainant's case, will result in the mischief to be apprehended. It is state action and its results that are complained of,- thus distinguishing this case from that of Louisiana v. Texas, where the acts sought to be restrained were alleged to be those of officers or functionaries proceeding in a wrongful and malevolent misapplication of the quarantine laws of Texas. The Sanitary District of Chicago is not a private corporation formed for purposes of private gain, but a public corporation whose existence and orerations are wholly within the control of the state.

The object of the bill is to subject this public work to judicial supervision, upon the allegation that the method of its construction and maintenance will create a continuing nuisance dangerous to the health of a neighboring state and its inhabitants. Surely, in such a case, the state of Illinois would have a right to appear and traverse the allegations of the bill, and, having such a right, might properly be made a party defendant.

It is further contended that, even if this court has original jurisdiction of the subject-matter, and even if the respective states have been properly made parties, yet the case made out by the bill does not entitle the state of Missouri to the equitable relief prayed for.

This proposition is sought to be maintained by several considerations. In the first place, it is urged that the drawing, by artificial means, of the sewage of the city of Chicago into the [180 U.S. 208, 243]   Mississippi river may or may not become a nuisance to the inhabitants, cities, and towns of Missouri; that the injuries apprehended are merely eventual or contingent, and may, in fact, never be inflicted. Can it be gravely contended that there are no preventive remedies, by way of injunction or otherwise, against injuries not inflicted or experienced, but which would appear to be the natural result of acts of the defendant, which he admits or avows it to be his intention to commit?

The bill charges that the acts of the defendants, if not restained, will result in the transportation, by artificial means and through an unnatural channel, of large quantities of undefecated sewage daily, and of accumulated deposits in the harbor of Chicago and in the bed of the Illinois river, which will poison the water supply of the inhabitants of Missouri, and injuriously affect that portion of the bed or soil of the Mississippi river which lies within its territory.

In such a state of facts, admitted by the demurrer to be true, we do not feel it necessary to enter at large into a discussion of this part of the defendants' contention, but think it sufficient to cite one or two authorities.

Atty. Gen. v. Jamaica Pond Aqueduct Corp. 133 Mass. 361, was a proceeding in equity in the supreme judicial court to enjoin the defendants from lowering the water in one of the public ponds of Massachusetts. It was claimed that the necessary effect of such lowering would be to impair the rights of the people in the use of the pond for fishing, boating, and other lawful purposes, and to create and expose upon the shores of the pond a large quantity of slime, mud, and offensive vegetation, detrimental to the public health. The defendants demurred, claiming that no case was stated which came within the equity jurisdiction of the court, and questioning the power of the attorney general, on behalf of the commonwealth, to maintain the proceedings. Speaking for the court the Chief Justice said:

And replying to the claim that resort to equity was unnecessary, the court further said:

The nature of equitable remedy in the case of public nuisances was well described by Mr. Justice Harlan, speaking for the court in the case of Mugler v. Kansas, 123 U.S. 623, 673 , 31 S. L. ed. 205, 214, 8 Sup. Ct. Rep. 273, 303:

In Coosaw Min. Co. v. South Carolina, 144 U.S. 550 , 36 L. ed. 537, 12 Sup. Ct. Rep. 689, it was said by this court, through Mr. Justice Harlan, after citing English and American cases:

It is finally contended that, if the bill was not prematurely filed, then it was filed too late; that, by standing by for so long a period, the complainant was guilty of such laches that a court of equity will not grant relief.

The inconsistency between these contentions is manifest, and, on consideration, we are of opinion that the suggestion that the complainants' remedy has been lost by delay is not founded in fact or reason.

In Goldsmid v. Tunbridge Wells Improv. Comrs. L. R. 1 Eq. 161, answering a similar contention, it was said by Romilly, M. R.:

This decree of the Master of the Rolls was subsequently affirmed on appeal. L. R. 1 Ch. 348.

Similar views prevailed in Chapman v. Rochester, 110 N. Y. 273, 1 L. R. A. 296, 18 N. E. 88, where a bill was filed to enjoin the defendant city from polluting, by the discharge of sewage by artificial means, a natural stream flowing through his lands.

In the opinion of the New York court of appeals, it was said by Danforth, J., after citing Goldsmid v. Tunbridge Wells Improv. Comrs.:

Cases cited by defendants' counsel, where injunctions were refused to aid in the suppression of public nuisances, were cases where the act complained of was fully completed, and where [180 U.S. 208, 248]   the nuisance was not one resulting from conduct repeated from day to day. Most of them were cases of purpresture, and concerned permanent structures already existing when courts in equity were appealed to.

The bill in this case does not assail the drainage canal as an unlawful structure, nor aim to prevent its use as a waterway. What is sought is relief against the pouring of sewage and filth through it, by artificial arrangements, into the Mississippi river, to the detriment of the state of Missouri and her inhabitants, and the acts are not merely those that have been done, or which when done cease to operate, but acts contemplated as continually repeated from day to day. The relief prayed for is against, not merely the creation of a nuisance, but against its maintenance.

Our conclusion, therefore, is that the demurrers filed by the respective defendants cannot be sustained. We do not wish to be understood as holding that, in a case like the present one, where the injuries complained of grow out of the prosecution of a public work authorized by law, a court of equity ought to interpose by way of preliminary or interlocutory injunction, when it is denied by answer that there is any reasonable foundation for the charges contained in the bill. We are dealing with the case of a bill alleging, in explicit terms, that damage and irreparable injury will naturally and necessarily be occasioned by acts of the defendants, and where the defendants have chosen to have their rights disposed of, so far as the present hearing is concerned, upon the assertions of this bill.

We fully agree with the contention of defendants' counsel that it is settled that an injunction to restrain a nuisance will issue only in cases where the fact of nuisance is made out upon determinate and satisfactory evidence; that if the evidence be conflicting and the injury be doubtful, that conflict and doubt will be a ground for withholding an injunction; and that, where interposition by injunction is sought, to restrain that which it is apprehended will create a nuisance of which its complainant may complain the proofs must show such a state of facts as will manifest the danger to be real and immediate. [180 U.S. 208, 249]   But such observations are not relevant to the case as it is now before us.

The demurrers are overruled, and leave is given to the defendants to file answers to the bill.

Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice White, dissenting:

Controversies between the states of this Union are made justiciable by the Constitution because other modes of determining them were surrendered; and before that jurisdiction which is intended to supply the place of the means usually resorted to by independent sovereignties to terminate their differences can be invoked, it must appear that the states are in direct antagonism as states. Clearly this bill makes out no such state of case.

If, however, on the case presented, it was competent for Missouri to implead the state of Illinois the only ground on which it can be rested is to be found in the allegation that its governor was about to authorize the water to be turned into the drainage channel.

The sanitary district was created by an act of the general assembly of Illinois, and the only authority of the state having any control or supervision over the channel is that corporation. Any other control or supervision lies with the lawmaking power of the state of Illinois, and I cannot suppose that complainant seeks to coerce that. It is difficult to conceive what decree could be entered in this case which would bind the state of Illinois or control its action.

The governor, it is true, was empowered by the act to authorize the water to be let into the channel on the receipt of a certificate, by commissioners appointed by him to inspect the work, that the channel was of the capacity and character required. This was done, and the water was let in on the day when the application was made to this court for leave to file the bill. The governor had discharged his duty, and no official act of Illinois, as such, remained to be performed.

Assuming that a bill could be maintained against the sanitary [180 U.S. 208, 250]   district in a proper case, I cannot agree that the state of Illinois would be a necessary or proper party, or that this bill can be maintained against the corporation as the case stands.

The act complained of is not a nuisance per se, and the injury alleged to be threatened is contingent. As the channel has been in operation for a year, it is probable that the supposed basis of complaint can now be tested. But it does not follow that the bill in its present shape should be retained.

In my opinion both the demurrers should be sustained, and the bill dismissed, without prejudice to a further application, as against the sanitary district, if authorized by the state of Missouri.

My brothers Harlan and White concur with me in this dissent.

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