UNITED STATES v. REPUBLIC STEEL CORP.

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Argument of Rankin

Chief Justice Earl Warren: Number 56, United States, Petitioner, versus Republic Steel Corporation, et al.

Mr. Solicitor General.

Mr. 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.

Justice Felix Frankfurter: Sections 10 and what Mr. Solicitor?

Mr. Rankin: Sections 10 and 13 and they are 33 U.S.C.

Justice Felix Frankfurter: (Inaudible)

Mr. 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.

Justice 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?

Mr. Rankin: Yes, Mr. Justice Frankfurter.

Justice Felix Frankfurter: And secondly, the -- the question as to decree, the propriety of that decree that the Government has?

Mr. Rankin: Yes, where they were entitled to an injunction.

Justice Felix Frankfurter: But on the substantive -- the substantive issues turn on construction of Sections 10 and 13 of the 1899 statute, is that right?

Mr. Rankin: That's our position --

Justice Felix Frankfurter: Plus the question whether any bearing that Section 10 of the 1890 Act had of the derivative problem, is that right?

Mr. 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.

Justice Felix Frankfurter: So that --

Mr. Rankin: And it still reserved that question in effect in its opinion.

Justice Felix Frankfurter: So that hypothetically if we should reverse it, you'll have to go back on those issues.

Mr. Rankin: I think that's still open to them in light of the way that the Court of Appeals decided.

Justice Felix Frankfurter: And I guess one focused on what -- on what is that focused on (Voice Overlap) --

Mr. Rankin: Yes, Mr. Justice.

This Act was --

Justice 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.

Mr. 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.

Justice 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.

Mr. Rankin: I think that's the issue for the Court.

Justice Charles E. Whittaker: Mr. Solicitor.

Mr. Rankin: Yes, Mr. Justice.

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?

Mr. 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.

Justice 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?

Mr. Rankin: Well, we don't think that the 1899 Act is inconsistent in that regard --

Justice Charles E. Whittaker: Oh --

Mr. Rankin: -- the one that you named either, Mr. Justice Whittaker.

Justice Charles E. Whittaker: I see.

Mr. Rankin: It also provides for obstructions in so many words and for --

Justice Felix Frankfurter: (Inaudible)

Mr. Rankin: That's the first thing that starts out with and it prohibits them.

Justice Charles E. Whittaker: It does use the word obstruction in the first -- the first line.

Mr. Rankin: Yes.

Justice Charles E. Whittaker: But then, it treats with nothing but structures, the building of any wharf, pier, dolphin, boom, weir or breakwater, bulkhead, etcetera.

Mr. 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.

Justice John M. Harlan: 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?

Mr. Rankin: Yes, Mr. Justice Harlan.

That was the format that they tried to take the remedial provisions and --

Justice John M. Harlan: And --

Mr. Rankin: -- put them in one place.

Justice John M. Harlan: And maybe anticipating the -- another branch of your case, but I want to see if I had that history in my mind (Voice Overlap) --

Mr. 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 --

Justice John M. Harlan: 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?

Mr. 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.

Justice John M. Harlan: 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?

Mr. 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) --

Justice John M. Harlan: 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.

Mr. Rankin: Well, it doesn't say obstruction, Mr. Justice Harlan.

But --

Justice John M. Harlan: 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.

Mr. Rankin: That's correct.

Justice John M. Harlan: Yes.

Mr. 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.

Justice 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.

Mr. Rankin: Well, they only answer that --

Justice Felix Frankfurter: I'm not -- I'm not --

Mr. Rankin: Yes, Mr. Justice.

Justice Felix Frankfurter: -- saying that he meant with that argument.

Mr. 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.

Justice John M. Harlan: Well, you have to do that to maintain your case.

Mr. Rankin: Yes, Mr. Justice.

Justice John M. Harlan: What (Voice Overlap) --

Mr. Rankin: And one very good reason --

Justice John M. Harlan: Well, only -- only in one part of it.

Mr. Rankin: Yes.

Justice 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?

Mr. 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 --

Justice John M. Harlan: Yes.

Mr. 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.

Justice 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?

Mr. Rankin: Yes, Mr. Justice Frankfurter.

Justice Felix Frankfurter: And that was engaged -- that's allowed you very far from that.

Mr. 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.

Justice Charles E. Whittaker: All right --

Mr. 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.

Justice John M. Harlan: But assuming it was (Inaudible) 1890 Act?

Mr. Rankin: My recollection is they were.

Now, I'll see if I (Inaudible)

Justice John M. Harlan: Don't -- don't interrupt your argument.

I will get them.

Mr. 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.

Justice 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?

Mr. 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) --

Justice 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.

Mr. 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.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Rankin: Now, that's generally --

Justice Hugo L. Black: What was in the Commission?

Mr. 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.

Justice Charles E. Whittaker: Some of the -- what percentage of it is -- is in liquid form?

Mr. Rankin: It's 99 and 98 hundredths.

Justice Charles E. Whittaker: Well, now then, you say that's not liquid?

Mr. 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.

Justice Felix Frankfurter: As what?

Mr. Rankin: Settleable particles and the -- then, there are suspended particles.

Justice Charles E. Whittaker: Well, do you not have that margin of solids in so-called pure water?

Mr. Rankin: I was -- I wouldn't be able to answer that.

Justice Charles E. Whittaker: It goes through it, don't you?

Mr. 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.

Justice Hugo L. Black: Does still water create sediments?

Mr. Rankin: Well, generally, it --

Justice Hugo L. Black: Like this?

Mr. 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.

Justice Hugo L. Black: It might bring some wood.

Mr. 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.

Justice John M. Harlan: 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?

Mr. 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.

Justice John M. Harlan: 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?

Mr. 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.

Justice Felix Frankfurter: Are you leading this question of remedy, etcetera?

Mr. Rankin: Yes, I was Mr. Justice.

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.

Mr. Rankin: Yes, Mr. Justice.

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.

Mr. Rankin: There is no -- Mr. Justice, there is no legislative history to unlikeness.

Justice John M. Harlan: It means to be a very conscious differentiation, isn't it?

Mr. 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 --

Justice John M. Harlan: Could not?

Mr. 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.

Justice 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?

Mr. Rankin: No.

It denied the power.

Justice Felix Frankfurter: It denied --

Mr. 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.

Justice Felix Frankfurter: No, no.

They (Voice Overlap) --

Mr. Rankin: It -- it said there was a -- an obstruction in navigation, but said you had to look to this particular provision for relief.

Justice 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?

Mr. Rankin: That's the argument, Mr. Justice Frankfurter and we don't think that's correct because we think --

Justice Felix Frankfurter: But you also argued -- you argued for the retention of what would be there, Congress hasn't specified?

Mr. 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.

Justice 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.

Mr. Rankin: Yes, sir.

Justice 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?

Mr. 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.

Justice 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?

Mr. 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 --

Justice Hugo L. Black: In particular things?

Mr. Rankin: Yes.

Justice Hugo L. Black: But why -- where is that?

What's the --

Mr. Rankin: In section 16.

Justice Felix Frankfurter: 49 -- page 49.

Mr. Rankin: Page 49.

Justice Felix Frankfurter: But that's a -- Sections 13, 14 and 15.

Mr. Rankin: Yes.

Justice Felix Frankfurter: Is there any other provision?

Mr. Rankin: Then in Section 12 --

Justice Hugo L. Black: As far as Section 10 is concerned.

Mr. Rankin: There are some fines provided.

Justice Hugo L. Black: What?

Mr. Rankin: In Section 12 on page 47 in the top of four -- page 48.

Justice 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?

Mr. 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.

Justice Hugo L. Black: Well, they would say that you had the right to try them criminally, but did not have the right to enjoin --

Mr. Rankin: That's right.

Justice Hugo L. Black: (Voice Overlap) --

Mr. 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.

Justice 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.

Mr. 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.

Justice John M. Harlan: 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?

Mr. Rankin: Yes, sir.

And it also --

Justice John M. Harlan: It --

Mr. Rankin: It requires them to dredge.

Justice John M. Harlan: Not a standard right --

Mr. Rankin: Unless they get a permit.

Justice John M. Harlan: Now, do you claim that they can purify this water beyond what they have done, succeeded in doing so far?

Mr. Rankin: I think it could be done.

I don't know whether it's economic.

Justice John M. Harlan: 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 --

Mr. 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.

Justice Felix Frankfurter: Before you sit down, again very hypothetically, an injunction was originally granted by Judge (Inaudible) in this case, is it not?

Mr. Rankin: Yes, Mr. Justice.

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?

Mr. Rankin: Well, I didn't think it was.

I don't --

Justice Felix Frankfurter: Well --

Mr. Rankin: I might ask the other counsel --

Justice Felix Frankfurter: That's the other reason.

Mr. Rankin: From the Government's standpoint, we certainly were not putting an issue.

We didn't think it was.

We could be mistaken by --

Justice Felix Frankfurter: I (Inaudible) because it would be remitted in -- you know that has been the facts.

Mr. Rankin: Yes.

Justice Felix Frankfurter: And I suppose that would open up -- however (Voice Overlap) --

Mr. Rankin: Yes.

Justice Felix Frankfurter: Thank you very --

Justice Charles E. Whittaker: Mr. Solicitor and Mr. Chief Justice, may I ask one more question?

Chief Justice Earl Warren: Yes, you may.

Justice 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?

Mr. 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.

Justice Charles E. Whittaker: I see.

Chief Justice 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.

Argument of Raymond T. Jackson

Mr. 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.

Justice John M. Harlan: 10 to be, not 9.

Mr. 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 percussible.

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 percussible material into flowing water, it will oxidize that material so that it will no longer be percussible, noxious --

Justice William J. Brennan: What's that word that you've said?

Mr. Raymond T. Jackson: Percussible.

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.

Justice Charles E. Whittaker: I understand your argument now as to why you think such intent of the 1890 Act was repealed.

Mr. Raymond T. Jackson: Yes.

Justice 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.

Mr. 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 --

Justice John M. Harlan: Could I ask you a question?

Mr. Raymond T. Jackson: Certainly, sir.

I'm sorry.

Justice John M. Harlan: 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 --

Mr. 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 --

Justice John M. Harlan: Well, I don't want to interrupt you, but --

Mr. Raymond T. Jackson: Well, I --

Justice John M. Harlan: You read Section 10 out of the picture and that I think was one of the -- the Government has to rely on it and --

Mr. Raymond T. Jackson: I do not -- I do not read it out the picture.

Well --

Justice Felix Frankfurter: I just --

Mr. Raymond T. Jackson: -- let us look at Section --

Justice 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 --

Mr. Raymond T. Jackson: That's right.

Justice Felix Frankfurter: And therefore, why did you say that you -- why did you just answer to Justice Harlan --

Mr. Raymond T. Jackson: Well, I --

Justice Felix Frankfurter: -- you do not read of 10.

Mr. Raymond T. Jackson: I'm afraid I misunderstood, but we do -- we do contend that it's wholly inapplicable to this case.

Justice John M. Harlan: In this case.

Yes.

Mr. 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 --

Justice Felix Frankfurter: No, no.

Of course (Voice Overlap) --

Mr. Raymond T. Jackson: And I -- don't --

Justice John M. Harlan: I think you understood me correctly.

I think I'm to blame.

That's what I did mean.

Mr. 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 --

Justice John M. Harlan: All right.

Leave it alone because I think the question is probably in -- in that form.

Mr. Raymond T. Jackson: Well, I -- I'm sure they do --

Justice 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 --

Mr. Raymond T. Jackson: That is so --

Justice Felix Frankfurter: -- and that whatever right it has -- rights it has, it must derive from Section 13 dealing with refuse.

Mr. Raymond T. Jackson: That is the -- that is exactly our position, sir.

Well, coming to such intent of course, now and -- I --

Justice Felix Frankfurter: We're -- if you say coming to it, you -- you -- this is rebuttal to the Government's argument, is that it?

Mr. Raymond T. Jackson: It is really, yes.

Justice Felix Frankfurter: But from your point of view, your argument is (Inaudible), is that right?

Mr. 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 --

Justice John M. Harlan: Yes.

Mr. Raymond T. Jackson: And then I would --

Justice John M. Harlan: We leave Section 10 in limbo for a bit and go on with your argument.

Mr. 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)

Chief Justice Earl Warren: You have -- we'll recess at 4:30, but you have considerable time.

Mr. Raymond T. Jackson: Oh, thank you very much, sir.

Chief Justice Earl Warren: Between there, you have an hour.

I don't know how you provided the --

Mr. Raymond T. Jackson: Oh well, I -- Mr. -- I told you Mr. Conaghan may have (Voice Overlap) --

Chief Justice Earl Warren: That's up to you.

Mr. Raymond T. Jackson: Well --

Justice Felix Frankfurter: That's what that light indicated.

Mr. 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 --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Raymond T. Jackson: Pardon, sir.

Justice Felix Frankfurter: Whatever reasons (Voice Overlap) --

Mr. 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 --

Justice 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?

Mr. Raymond T. Jackson: Well --

Justice Felix Frankfurter: Are wholly apart from the statutory limitation?

Mr. 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 --

Justice Felix Frankfurter: I'm not talking about the cause of action, but I'm talking assuming there's a cause of action?

Mr. Raymond T. Jackson: Oh, assuming there's a cause of action.

I -- assuming (Voice Overlap) --

Justice Felix Frankfurter: Assuming -- assuming that Congress had said nothing, I should describe if you deny that then there would be.

Mr. 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 --

Justice Felix Frankfurter: Distributed --

Mr. 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) --

Chief Justice Earl Warren: Yes.

Mr. 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 --

Justice 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?

Mr. 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.

Justice Charles E. Whittaker: Yes.

Mr. Raymond T. Jackson: Congress selected the remedy.

Justice Charles E. Whittaker: Yes.

Mr. 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.

Justice Charles E. Whittaker: And Congress having entered that field with the statute to some extent destroyed the reach of general equity powers.

Mr. Raymond T. Jackson: That's right.

I think they -- they had -- in other words --

Justice Hugo L. Black: Would you take -- would you take that position that the only remedy Congress had provided was to make it a crime?

Mr. 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.

Justice Hugo L. Black: You -- you -- that's on the ground that the statute doesn't make this unlawful.

Mr. Raymond T. Jackson: That's right.

Well, it also presides the remedy where -- if -- for the employee violation --

Justice Hugo L. Black: Well, either one of you discussed the application of the Sanitary District case?

Mr. 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.

Justice Hugo L. Black: I -- I shouldn't -- I didn't make my question quite focused --

Mr. Raymond T. Jackson: Yes.

Justice Hugo L. Black: -- it's the only point I was interested in quite enough.

In construing Section 10 --

Mr. Raymond T. Jackson: Yes.

Justice Hugo L. Black: -- it was given a very broad construction by the Court, wasn't it?

Mr. Raymond T. Jackson: I don't think so.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Raymond T. Jackson: On how to explain why I don't think why it was.

Justice Hugo L. Black: Although water was withdrawn, it nevertheless created an obstruction, because it made it less navigable.

Mr. 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.

Justice Hugo L. Black: Well, that you'll have an argument in the morning if (Voice Overlap) --

Mr. Raymond T. Jackson: Well, I'm not -- I'm now --

Justice 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.

Mr. Raymond T. Jackson: Yes.

Chief Justice Earl Warren: We'll recess.

Print this transcript Transcript: 

Argument of Paul R. Conaghan

Chief Justice Earl Warren: Number 56, United States, Petitioner, versus Republic Steel Corporation et al.

Mr Conaghan.

Mr. Paul R. Conaghan: Mr. Chief Justice, may it please the Court.

At the time for adjournment yesterday afternoon, Mr. Justice Black was discussing with Mr. Jackson the case of Sanitary District versus United States in 266 U.S.

I proposed first to present an analysis of that case.

This was an -- unanimous opinion by Mr. Justice Holmes.

The Illinois statutes permitted a diversion from Lake Michigan of 600,000 cubic feet per minute.

The Secretary of War by permit allowed a diversion from Lake Michigan of 250,000 cubic feet per minute.

The Sanitary District, 1913, asked the Secretary of War to divert from Lake Michigan 10,000 cubic feet per second, considerably more than 250,000 cubit feet per minute.

The Sanitary District -- this application for a permit was denied but the district persisted in diverting more water than permitted by the Secretary of War.

And then the United States brought the suit in equity to restrain the State of Illinois and its subdivision, the Sanitary District from taking more than 250,000 cubic feet per minute from Lake Michigan and diverting it to the Des Plaines River and Illinois River to the Mississippi River basin.

Now, the Sanitary District in that case denied the right of the United States to determine the amount of water that should flow through the channel to the Mississippi basin and also deny the right of the Secretary of War to determine the manner of the flow.

Mr. Justice Holmes stated in his opinion at page 426 that the evidence is sufficient that evidence is necessary to show that the withdrawal of water on a scale directed by the statutes of Illinois threatens and will affect the level of the Lakes, and that is a matter which cannot be done without the consent of the United States.

Now, Mr. Justice Holmes proceeded to "The first and third clauses of Section 10 of the 1899 statutes," which I would refer to as Section 403, U.S. Code annotated, 33 Volume.

The Court then stated at page 429 as now applied, it concerns a change in condition of the lakes and the Chicago River admitted to be navigable.

Now clearly, in making that statement, Mr. Justice Holmes was referring to the third clause of Section 10 or Section 403.

But then he continued --

Chief Justice Earl Warren: Which reads this -- it reads how?

Mr. Paul R. Conaghan: Which reads, “And it shall not be lawful to excavate or fail or in any manner to alter it or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, canal, lake, harbor of refuges, or inclosure within the limits of any breakwater or within the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to the beginning of this, sir.

Chief Justice Earl Warren: Now, what language in that Section applies more to the state of facts you've just related and does the language of the same Section applied to U.S. situation?

Take the specific --

Mr. Paul R. Conaghan: We --

Chief Justice Earl Warren: -- language, --

Mr. Paul R. Conaghan: Yes.

Chief Justice Earl Warren: -- do you say there's no language that authorizes this action so far as you're concerned.

Now, what specific language in that Section authorized or brought the Court to this conclusion?

Mr. Paul R. Conaghan: You mean this particular clause in the Section?

Chief Justice Earl Warren: Yes.

What's specific language --

Mr. Paul R. Conaghan: It's the --

Chief Justice Earl Warren: -- in there is applicable to that situation?

Mr. Paul R. Conaghan: The magic word is condition.

The condition --

Chief Justice Earl Warren: Don't you have it in --

Mr. Paul R. Conaghan: -- of the lakes and rivers --

Chief Justice Earl Warren: Don't you have a condition?

Mr. Paul R. Conaghan: We have conditions, but we do not -- we do not have the work as it is understood by Sanitary Engineers, that is a -- a technical word that refers to -- to gates gates, to machinery, to open gates, to speed the flow of water or to any mode of construction with respect to the transportation of navigable waters.

Chief Justice Earl Warren: Well, I thought in that sanitary case, the Government had authorized that canal.

The only -- the only thing they were doing was taking more water than the Government authorizes in that gate.

Mr. Paul R. Conaghan: That is quite true Mr. Chief Justice.

Chief Justice Earl Warren: Would you say that they have brought any additional works in the case, would it?

Mr. Paul R. Conaghan: No, Mr. Justice Holmes in this decision he did not.

In his subsequent decision in 281 U.S. he did.

He then referred --

Chief Justice Earl Warren: Well, what was that?

Is that Sanitary District?

Mr. Paul R. Conaghan: That's Wisconsin versus Illinois, but he was construing the same Section.

Chief Justice Earl Warren: What's he doing was in -- on the same point?

Mr. Paul R. Conaghan: Yes.

On the same point, because the Wisconsin and other Great Lake states joining in that case complained to the Court that the State of Illinois and the Sanitary District was not complying with the provisions of the permit issued by the Secretary of War, and that as a result, the level of the Great Lakes was going down.

And they -- they complained about this because it was -- so they claimed ruining commerce and destroying the shores and materially affecting navigation.

There is some language in the Sanitary District case which I would like to refer to that also is one page 429.

Mr. Justice Holmes says, “If that be necessary and obstruction to their navigable capacity,” referring to the lakes of course.

Now, the word obstruction is not within the third clause of Section 10 which I have just read, condition is there and he -- as anything affecting the condition of a lake or navigable river.

Obstruction appears in the first clause of Section 10 and I shall I read it.

“The creation -- that the creation of any obstruction not affirmatively authorized by Congress to the navigable capacity of any of the waters of the United States is hereby prohibited.”

Now, the reference to obstruction by Mr. Justice Holmes in the Sanitary District case, really was surplusage because that first clause must be construed with Section 9 which is now Section 401 in the code.

In other words --

Justice Hugo L. Black: Why -- why do you think it's used?

Mr. Paul R. Conaghan: I didn't understand you Mr. --

Justice Hugo L. Black: I said why do you think he used that point?

Mr. Paul R. Conaghan: I don't know.

I don't know.

It was not necessary for the decision.

Chief Justice Earl Warren: Well, I thought the most important part of Mr. Justice Holmes' decision on that point is to be found on page 428, this proceeding which you have -- have said in -- on 429 beginning with that -- beginning with that paragraph on -- concerning Section 10 on page 428?

Mr. Paul R. Conaghan: Yes, he -- he there quoted the -- the first clause and the third clause of Section 10.

Chief Justice Earl Warren: Yes.

Mr. Paul R. Conaghan: I'm now trying to analyze.

Chief Justice Earl Warren: Is -- he used the other -- isn't the other just what you had in 29 just detail on the trade?

Isn't what he really said incorporated in page 428 there in that paragraph that begins with the discussion of Section 10?

Mr. Paul R. Conaghan: Yes.

He -- he held clearly that what the Sanitary District was doing was a violation of Section 10.

But he referred in his decision to the first clause of Section 10 and the third clause of Section 10 and I --

Justice Hugo L. Black: Did he -- did he base the holding on the fact, at least on that part or can it be said that he did not base it on the subject?

That there was an obstruction merely by the fact that they had drawn water out and that was enough to violate the Act?

Mr. Paul R. Conaghan: Yes.

And there is also a violation, a clear violation of the permit issued by the Secretary of War.

There was that, and then there was a claim of the State of Illinois that it had the right to dictate to the Sanitary District how much it should take from Lake Michigan notwithstanding the permit issued by the Secretary for a lesser amount.

So it seems to me the -- the issue in the Sanitary District case was relatively simple.

Justice Hugo L. Black: Suppose they had -- are there any difference in spite of the physical fact concerned except that here, it's -- the depth has decreased by this silt or whatever you call it is on the but -- but that that was decrease because they withdrew water from it.

Mr. Paul R. Conaghan: From the top.

Justice Hugo L. Black: Both of them constitute equally an obstruction of navigation?

I'm not talking about your thirteenth clause.

Mr. Paul R. Conaghan: Yes.

No, I -- I think not Your Honor.

And I'd like to explain it this way.

In the 1899 statutes, the Court -- the Congress did in Section 10 provide for obstructions to navigation unless -- and that they were unlawful unless affirmatively authorized by Congress.

But the prior section provided specifically what construction should receive the approval of the Congress and not the Secretary of War and approved by the --

Justice Hugo L. Black: Which --

Mr. Paul R. Conaghan: -- Chief of Engineers.

Justice Hugo L. Black: -- which section are you referring to?

Mr. Paul R. Conaghan: That is Section 401 of the Code.

It is not printed in the appendix to the Government's brief.

Justice Hugo L. Black: Not printed anywhere here?

Mr. Paul R. Conaghan: No, it -- it is not.

It's not contained there.

But it is 33 U.S.C. 401 or Section 9 of the 1899 Act.

I shall read it.

It appears on page 35 of the brief for Republic.

Justice Hugo L. Black: Oh, you have it printed?

Mr. Paul R. Conaghan: Yes, on page 35 of our brief for Republic.

“It shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river or other navigable water of the United States until a consent of Congress to the building of such structure shall have been obtained.

And until the plans for the same shall have been submitted and approved by the Chief of Engineers and by the Secretary of the Army.”

Close quote of that first part of Section 401.

Now, this Court in Wisconsin versus Illinois in the 278 Illinois construed the language and referred to Section 9 or this Section 401 that I've just read.

At 278 U.S. page 412 Wisconsin-Illinois which is quoted on page 33 of the brief for Republic, the Court stated, “The words affirmatively authorized by Congress should be construed in the light of administrative executives which prompted the delegation of authority in the succeeding clauses.

Congress, having stated in Section 9 as to what particular structures is its specific consent should be required, intended to leave to the Secretary of War, acting on recommendation of the Chief Engineers the determination of what should be approved and authorized in classes of cases described in the second and third clauses of Section 10.”

Now, here is the most important part of this quotation which was omitted from the Government's brief in this case.

“If the Section were construed to require a special authorization by Congress, whenever in any aspect it might be considered that there was an obstruction to navigable capacity, none of the undertakings specifically provided in the second and third clauses of Section 10 could safely be undertaken without a special authorization of Congress.”

We do not think this was intended.

This Court also stated in U.S. versus Appalachian Power referred to on page 36 of the brief for Republic, “Sections 9 and 10 of the Rivers and Harbors Act of 1899 make it unlawful to construct a dam in any navigable water of the United States without the consent of Congress.”

Now, it's obvious that the Court there in referring to Sections 9 and 10 referred only to the first clause of Section 10 and that the Court in the Appalachian case considered Section 9 to be in pari materia with Section 10.

So that if we follow the contention of the Government here, it will amount to a repeal of the language quoted from Wisconsin versus Illinois in 278 U.S. page 412 and also a material of this -- a material modification of this language I have just quoted from the Appalachian case.

And there -- there is -- there is no basis.

We submit for -- for modifying or amending or revising the -- the law which has been well settled for many years and well reasoned for that matter.

Chief Justice Earl Warren: Well, I -- I get back to your analysis of the Sanitary District case.

I -- I didn't get my mind cleared up on -- on that.

As I -- I understood you, the magic word in -- in Justice Homes' opinion was condition?

Mr. Paul R. Conaghan: Condition because --

Chief Justice Earl Warren: Condition, yes.

Mr. Paul R. Conaghan: -- he takes that from clause three.

Chief Justice Earl Warren: Now, I want -- I -- I'd like to know what language if you get to in -- in that case, you get comfort from indiscriminating as between the facts in your case and the facts in that case, so that in the one case we were dealing with a condition and in your case we are not.

Mr. Paul R. Conaghan: Mr. Chief Justice, I -- I referred to that case, first of all, because Mr. Justice Black referred to it, and secondly, because the Government is relying upon words taken out of context from the Sanitary District case.

The respondents get no comfort out of the Sanitary District case.

We say that it doesn't apply to our situation.The issue is relatively simple than the Sanitary District case.

Here was the state legislature of Illinois and the Sanitary District of Municipal Corporation trying to tell Congress that it had no power to delegate to the Secretary of War and Chief of Engineers matters with respect to navigation as it affected the Sanitary District.

But we all know that the -- the power of Congress with respect to the navigable waters is plenary and supreme.

And once Congress has spoken and delegated to the proper officials in a constitutional manner, there, the -- the law then becomes simple because whatever Congress says is supreme.

We get no comfort out of the Sanitary District case but I thought it advisable to explain it and -- and deflate if I may, the argument of the Government.

Justice Felix Frankfurter: May I ask you in the question about --

Mr. Paul R. Conaghan: Yes Mr. Justice Frankfurter.

Justice Felix Frankfurter: -- the case of Bellingham.

Unless I misunderstood Mr. Jackson's fear argument if the contention is that this case -- that Section 10 of the 1899 Act is irrelevant to the issues in this case and that whatever rights the Government has or may assert, it must assert under 12?

Under the 13 --

Mr. Paul R. Conaghan: 13.

Justice Felix Frankfurter: Is that correct?

Mr. Paul R. Conaghan: Yes, Mr. Justice Frankfurter.

Justice Felix Frankfurter: Now, the Sanitary case involves the withdrawal of water, an injunction against it.

I can well understand your last remark to the Chief Justice that if Congress specifically deals to the question of commerce in regulation of waters that are navigable in interstate commerce, that's that.

And of course that is -- that was the practice of the Congress of the United States from the beginning down trough 1890s willfully speaking.

It has ad hoc specific legislation dealing with specific rivers and specific bridges and specific booms and the rest of it?

But the Sanitary case granting or sustaining an injunc -- granting an injunction to the Government rest the power to issue such an injunction on 12, on -- on the violation of Section 10.

And Section 10 deals with obstruction.

And therefore the withdrawal of water as I follow the argument of the case in its implication, the withdrawal of water constituted an obstruction.

Is that right?

Mr. Paul R. Conaghan: That's correct.

Justice Felix Frankfurter: We assume this that the --

Mr. Paul R. Conaghan: Mr. Justice Holmes did that.

Justice Felix Frankfurter: Therefore I want to know why the deposits of -- of this noxious or undesirable or obstructing -- these obstructing materials.

Why they may not be deemed an obstruction in the same way which withdrawal of water deemed an obstruction.

Mr. Paul R. Conaghan: We contend that --

Justice Felix Frankfurter: And if -- may I just?

Mr. Paul R. Conaghan: Yes sir, Mr. Justice.

Justice Felix Frankfurter: If it is an obstruction, if -- if it does come -- if this situation comes within Section 10, then there is no difficulty about the power to grant an injunction --

Mr. Paul R. Conaghan: No.

That's correct.

Justice Felix Frankfurter: -- that follows?

Alright.

Mr. Paul R. Conaghan: Yes, Your Honor.

Justice Felix Frankfurter: Now, because enough to enlighten you.

Mr. Paul R. Conaghan: We contend that while there maybe a construction as a matter of fact that there is no obstruction.

There maybe an obstruction as a matter of fact but there is no obstruction as a matter of law because there must be a specific delegation of authority by Congress to the Secretary of War and Chief of Engineers, regulating suspended solids in our process.

There is no such specific authorization in the case about it.

Justice Felix Frankfurter: Well, the -- this -- the Secretary of War may have -- had followed in the Section 10 to sanction everything that is complained of against the respondent, is that not true?

Mr. Paul R. Conaghan: No.

I -- I submit, Mr. Justice Frankfurter that that is not true.

Justice Felix Frankfurter: You mean the Secretary of War couldn't sanction what you've been doing?

Mr. Paul R. Conaghan: I think he could if he had the power but he has not the power because as I have explained, the -- the word “obstruction” in the first clause of Section 10 relates back to Section 9 and refers to any bridge, dam, causeway or so forth.

And it's that type of obstruction that is referred to in the first clause of Section 10.

Justice Felix Frankfurter: And -- and was -- was that (Voice Overlap) --

Mr. Paul R. Conaghan: And that requires --

Justice Felix Frankfurter: (Voice Overlap) to the case.

Mr. Paul R. Conaghan: That --

Justice Felix Frankfurter: Were that true of the Sanitary case?

I thought the obstruction, the only obstruction that -- that existed there was found there by successive Secretary of the War or the obstruction due to the withdrawal of the waters beginning with Secretary routes down to the other secretaries that their routes that we'd have in this seems -- they all have a sharing in this -- as it that you well know.

Mr. Paul R. Conaghan: Yes, and they all issued permits regulating the amount of the withdrawal.

Now --

Justice Felix Frankfurter: But they -- but the -- the obstruction which they found and I think I speak by the books.

The obstruction which they found was the lowering of the water levels?

Mr. Paul R. Conaghan: The obstruction that they found was that the controlling works were interfering with navigation.

The works of the Sanitary District in withdrawing the water, there is a relation.

But when Mr. Justice Holmes in -- in 281, in Wisconsin versus Illinois, talked about the situation he made no reference to obstruction whatsoever.

And -- and --

Justice Felix Frankfurter: Well, that's what the interstate -- that was an interstate route?

Mr. Paul R. Conaghan: Yes.

Justice Felix Frankfurter: Again --

Mr. Paul R. Conaghan: They were rights of --

Justice Felix Frankfurter: Again, has some other aspects (Voice Overlap) --

Mr. Paul R. Conaghan: Yes, that is true.

My time is expiring.

Justice William J. Brennan: And this has the phrase (Inaudible)

Do I understand your given answer to Mr. Justice Frankfurter that if this condition is an obstruction within Section 10, and the Government's right to equitable problems?

Mr. Paul R. Conaghan: Well, we -- we contend of course that it is not an obstruction as a matter of law --

Justice William J. Brennan: And I wonder if --

Mr. Paul R. Conaghan: -- but if it --

Justice William J. Brennan: And hence, if it is, you say that -- the reason I ask as I thought I misunderstood you exactly to say “Yes, it does.”

Or even the distribution were structure within Section 10.

Therefore, unless it's not what -- what the word “structure” means.

Mr. Paul R. Conaghan: Structure --

Justice William J. Brennan: -- and therefore, this equitable relief would not be available.

Mr. Paul R. Conaghan: We contend that Section 10 would not apply, Mr. Justice Brennan for this reason.

Because the Section 13 or Section 407 specifically authorizes the respondents to do what they're doing and therefore, Section 10 is irrelevant.

We -- we have delegated to us by Congress, by the provisions of Section 13.

Justice William J. Brennan: I understand that but that's not my question.

I'll try to say it slow.

It sets down the premise that Section 10 does apply and this is -- this condition isn't obstruction within that Section.

What relief is the Government is entitled to if that's (Inaudible)

Mr. Paul R. Conaghan: They're entitled to the relief or -- or to -- to no relief as far as the respondents are concerned because by Section 13, we are specifically authorized to do what we're doing.

Justice William J. Brennan: I understand that.

Justice John M. Harlan: The question Mr. Justice Brennan is asking I think if I follow it is whether you accept the Government's argument, that structure in the injunction provision of Section 12 means obstruction.

Mr. Paul R. Conaghan: Oh, no.

Oh definitely not.

Certainly, flue dust in the river cannot be a structure.

Justice Hugo L. Black: Well, I would like to have then is on a little (Inaudible) assuming that one believes in the prior.

Does the Government have any remedy?

Mr. Paul R. Conaghan: The Government has -- you mean with --

Justice Hugo L. Black: And assuming --

Mr. Paul R. Conaghan: -- respect to the respondents?

Justice Hugo L. Black: -- assuming that your position should be rejected that 13 makes 10 irrelevant and the 10 does apply, what is the Government's remedy?

Mr. Paul R. Conaghan: The Government has no remedy by injunction because --

Justice Hugo L. Black: What remedy does it have?

Mr. Paul R. Conaghan: What Mr. Justice?

Justice Hugo L. Black: What remedy would it have?

Mr. Paul R. Conaghan: The remedy of a fine and the conviction for a misdemeanor.

The remedies are specific -- as specifically set forth in Section 12 and Section 12 refers to Section 10.

It provides for an injunction with respect to structures but there is no provision in the remedy for an injunction with respect to obstruction.

Justice Hugo L. Black: What was the remedy granted in the Senate?

Mr. Paul R. Conaghan: The remedy -- the -- the injunction prayed for was granted and it was granted.

Justice Hugo L. Black: Was it granted under 10?

Mr. Paul R. Conaghan: But in the -- in the -- what was your question, Mr. Justice?

Justice Hugo L. Black: Was it granted on this -- under 10 because of the violation of 10?

Mr. Paul R. Conaghan: Yes, Mr. Justice Black, it was.

Justice Hugo L. Black: Your argument is that this is not the kind of an obstruction even if we believe it's an obstruction under 10.

It's not the kind of an obstruction what -- which the Government could get -- get relief against by injunction?

Mr. Paul R. Conaghan: That's correct, Mr. Justice Black.

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Rankin

Mr. Rankin: Mr. Chief Justice and may it please the Court.

While we're on the subject of the Sanitary District case, I'd like to call attention to the language of the Court on pages 428 and 429.

Justice Home was -- Holmes was explicit.

In the first part, he quoted in regard to Section 10 not only the subsequent clauses referred to by counsel with just argument.

But he started out by the first -- first clause involving the creation of any obstruction, not affirmatively authorized by Congress is hereby prohibited.

He includes that as the language that he is considering in Section 10 as well as the later part.

Then he says by Section 12, violation of the law is made a misdemeanor and punished and the removal of prohibited structures maybe enforced by injunction of the proper court of the United States in a suit under the direction of the Attorney General.

So he's talking about the same Section 10 and the same provision about structures.

This statute repeatedly has been held to be constitutional, and then he goes on to say, there's a broad expression of policy in unmistakable terms advancing upon an earlier Act of 1890.

And then he says it forbad obstruction to navigable capacity.

Then he goes on to say, as now applied, it concerns a change in the condition of the lakes and the Chicago River admitted to be navigable -- navigable, and if that be necessary an obstruction to their navigable capacity.

Then the Court proceeded in accordance with that under Section 10 and Section 12 to grant the injunction as grave.

Justice Felix Frankfurter: As I understand Mr. Conaghan, his argument is that while there was a practical factual obstruction to the withdrawal of water, that was incident to works to physical obstruction.

And therefore, to the physical obstructions clearly would intend -- it could have been incident to abating that nuisance, if I may use that terms, also prohibits the withdrawal of water.

I think that was his argument, so that you haven't got withdrawal of water simplicity.

Mr. Rankin: Well, but the essence to the case was (Voice Overlap) the withdrawal of water.

The permit was the extent of the water and the Court didn't enjoin the works in any way.

It enjoined the withdrawal beyond what the Secretary had permitted.

Justice Felix Frankfurter: And through those works they could withdraw X or X-Y?

Mr. Rankin: That's right.

And they could continue to have the works? Or they could do them by any other means?

Chief Justice Earl Warren: But they would authorize the works, did they not?

Mr. Rankin: Yes.

Chief Justice Earl Warren: Is it not?

Mr. Rankin: But if the issue was the question of the permit which they had exceeded and then obstructed this -- the navigable capacity.

Now, in the Wisconsin against the Illinois, in the opinion by Chief Justice Taft, the Court deals with the Sanitary opinion and says, “The true intent of the act of Congress was that unreasonable obstructions to navigation and navigable capacity were to be prohibited.”

And in the cases described in the second and third clause of Section 10, the Secretary of War acting on the recommendations of the Chief of Engineers was authorized to determine what in the particular cases constituted an unreasonable obstruction.

So it first says that obstructions that were unreasonable were absolutely prohibited unless they got Congress' consent.

And then if they were not unreasonable, they could get the permit that would authorize it.

Now, that is the proper construction of those cases and the Government's willing to rely on those two cases of this Court as to how they have applied and interpreted this Act -- these sections of the Act.

Justice Charles E. Whittaker: My I ask you Mr. Solicitor, what (Inaudible)

Mr. Rankin: Well, they could do a great deal.

Now, they say it's not economic to take anymore of this material out of the water.

And I think probably isn't economic because there isn't any question what they could precipitate or settle more by additional settling basins but it's a question of what the cost would be of doing that?

Now, then you have to weigh it against the question of dredging and it's cheaper to dredge than to build additional settling basins to take it out.

In the first place as we set out in the appendix here in 1899, the Secretary -- of the Corps of Engineers went to the Illinois Steel Company involved in the same problem, although Illinois Steel has dredged over a great many years as the Government asked.

But back in 1899, the question was brought up and the Corps of Engineers asked that they put in settling basins because they were throwing even more material into this channel and obstructing it.

Now, of course it's -- it's a lot cheaper if you don't have to dredge either like they're saying here today.

The Government has asked them to get a permit and dredge or not do it anymore.

Justice Charles E. Whittaker: Is there evidence that they can ask more preferences, show upon these waters and to (Inaudible)

Mr. Rankin: Well, I don't think there's any question but what it can -- because portable water is recognized by the people in municipal water field as having 30 to 50 particles of several solids in it per million parts.

Now, this is at least four times or more than now.

So in order to get portable water, all your municipal systems have to do better than this.

It's just a question of the economics of whether they want to do it.

And if they can get out dredging and get out of doing it, they unload the whole cost on the citizens in taxes.

And it's the position of the Government just as -- as the Committee said that it's unreasonable.

They get the full benefit of this navigation and the tremendous sum of the United States pays to provide navigable channels and waters for this country.

And it's a wonderful benefit to them but they don't.

They want to unload these -- this residue there and make the people pay for that too.

And the -- the Congress thought it was unreasonable and the Government thinks is unreasonable.

And that we'd like to have as much help as possible from the Court to help clean up these waters that are one of the great assets of this nation.

Justice John M. Harlan: May I ask you one question before you sit down.

Mr. Rankin: I'll just answer it, sir.

Justice John M. Harlan: As Congress made any (Inaudible)

Mr. Rankin: Not that I know, Mr. Justice Harlan.

Now, there is one amendment in regard to oil and then there's some legislative history that this Act didn't cover.

This was to deal to with obstructions to navigation and oil is not an obstruction, it is a matter of pollution.

And so there's quite a bit of -- of -- in legislative history at that time about the meaning of this Act and what it's trying to reach.

And that this Section 13 was not trying to reach pollution but was trying to reach obstructions.

And it goes into that at some length.

And therefore, they wanted a provision, felt that it wasn't covered oil.

That you might pour -- many people were pouring out of vessels and out of manufacturing concerns.

It didn't form an obstruction to navigation but it pollute the water and therefore it had to be handled separately.

Justice John M. Harlan: It had the same situation, the same issue, problem as a part of the legislative history, do they?

Mr. Rankin: Well, it's -- I think it's worse here because this channel moves so slowly.

You see it was built so that it -- with it Sag channel, it would run away from the lake when originally it ran to the lake.

And therefore, even sometimes when there is a lot of flood water.

It still runs into the lake despite the engineering that they have made of it.

But in normal times it moves very slowly and that's one of the problems of settlable solids because by definition, that's whatever it will settle within a period of two minutes.

But in a fast moving stream, for instance, like the Hudson or something like that, it would wash on down and get out of the way.

Although even there, there is -- there had been some problems that are -- are -- the Congress has had to deal with because the vessels that the City of New York would use in other people dealing with sanitation problems, they take them in all scows that couldn't hold the material and it would all drop out in the harbor before they got out to a great enough depth.

And the Congress has acted in separate section in regard to that.

So it is a very serious problem but it comes up differently in this particular channel because of the slow moving.

Justice William O. Douglas: (Inaudible)

Mr. Rankin: I didn't mean to represent.

It was in the record.

I was just dealing with the physical of the situation.