RESPONDENT: City of Milwaukee
LOCATION: Former Moose Lodge No. 107
DOCKET NO.: 49 ORIG
DECIDED BY: Burger Court (1972-1975)
CITATION: 406 US 91 (1972)
ARGUED: Feb 29, 1972
DECIDED: Apr 24, 1972
Fred F. Herzog - for plaintiff
Harry G. Slater - for defendants
Facts of the case
Media for Illinois v. City of Milwaukee
Audio Transcription for Oral Argument - February 29, 1972 in Illinois v. City of Milwaukee
Warren E. Burger:
Next in number 49 Original, the State of Illinois against the City of Milwaukee and others.
Mr. Herzog, you may proceed whenever you’re ready.
Fred F. Herzog:
Mr. Chief Justice and may it please the Court.
This is a motion by the State of Illinois asking this Court for a leave to file a Bill of Complaint against various Wisconsin municipalities including and foremost the city of Milwaukee which as you know quite well contains within its boundaries, the greatest concentration of people and industry in the State of Wisconsin.
Now, the Bill of Complaint is quite simple.
It merely charges that huge amounts of raw sewage and inadequately treated sewage are dumped everyday into the waters of Lake Michigan that these waters thereby become contaminated and that these polluted waters find their way into the Illinois territory where this severely and I mean severely endanger the life and health of many residents of the State of Illinois.
Actually, in this particular instance, the Department of Natural Resources of the State of Wisconsin which is the agency which deals with water pollution matters in the State of Wisconsin has estimated that 200 million gallons a day, 200 million gallons a day in the Milwaukee area alone are discharged into the waters of Lake Michigan.
Now, this is not a small matter.
And it is not a small matter as we in Illinois are concerned therewith.
We in Illinois, I must put here the matter straight in this instance have actually done everything possible to wipe out pollution.
Of course, there are some spots which are remaining but it was through efforts of our Attorney General who is sitting next to me here that we have accomplished that.
And I might say here in this instance that we cannot tolerate and suffer that such an epidemic, a possible epidemic lurks behind every way which really finds its way into the Illinois region.
We are familiar, unfortunately, in Illinois with such an epidemic.
In 18 -- the 1880’s, the City of Chicago dumped raw sewage into Lake Michigan.
The consequence was one of the severest typhoid epidemics which ever hit the City of Chicago -- having shrink the population of Chicago and it was at that time that the Chicago Sanitary District was created where the flow of the rivers as you might know is reversed and for a -- nothing goes into Lake Michigan on this instance.
We have -- we are actually here in this particular instance, we have really a situation where sovereign interest clash with each other.
Although the suit is filed by us performer against various Wisconsin municipalities, in reality -- in political reality and in effect it is directed against the State of Wisconsin.
As a matter of fact, the respondents all in their briefs say and emphasize that they are controlled by the Department of Natural Resources of the State of Wisconsin which are just indicate that this -- the agency which is in charge of water pollution matters particularly those concerned in Lake Michigan.
Therefore, we have here, as I indicate it a clash of such sovereign interests, the municipalities and State agencies merely being the bearers of the sovereign police power of the State of Wisconsin in the field of public health.
Under these circumstances, I respectfully suggest that if you have such a clash of sovereign interest, the exercise of original jurisdiction approaches the constitutional mandate -- I might even say it becomes mandatory here in this instance.
We have an example here too, in the case of Missouri versus Illinois, although the Illinois they have -- the State of Illinois was made to perform party.
The real culprit if I may say so was the Chicago Sanitary District against which the complaint was levied by the State of Missouri and there reached -- original jurisdiction was exercised.
William H. Rehnquist:
Mr. Herzog, is from a pollution point of view are -- is the way that Waukegan and Wilmington when that they have to handle their raw sewage materially different from the way that Kenosha and Racine, Milwaukee handle theirs?
Fred F. Herzog:
Yes, they handle it presently different.
First of all, as far as we made this concern, it belongs to the matter to the area of the Chicago Metropolitan Sanitary District.
Hence, their extensive treatment is provided and it doesn’t go into Lake Michigan but as far as Waukegan is concerned and to the communities in the North Shore Sanitary District, they are presently under orders of our Pollution Control Board, the Foul Water Control -- Pollution Control Board not to emit any sewage into Lake Michigan.
So, they do handle it differently.
As I said, due to our efforts and the persistent efforts which we have made in this field.
Now, being here, a clash of inter-controversy involving sovereign interest, I have indicated that really original jurisdiction is almost mandatory in this instance.
However, even if they alleviate form or the substance in this instance and say, “Well, the complaint is really not directed officially against the State of Wisconsin.”