PEOPLE OF THE STATE OF ILLINOIS, ON THE RELATION OF EDWARD F. DUNNE, v. ECONOMY LIGHT & POWER COMPANY.

This was a proceeding brought in the circuit court of Grundy county, Illinois, being an information filed by the attorney general of the state on behalf of the people of the state on the relation of the governor, against defendant in error, the Economy Light & Power Company, to restrain that company from erecting a dam across the Des Plaines river, and from causing the waters of the river to back up and overflow the lands of the state; to refrain from permitting the obstructions placed in the river to remain therein; and that certain deeds, leases, and contracts made by the canal commissioners of the state to the company be declared null and void. The information was dismissed by the circuit court and its decree was affirmed by the supreme court. This writ of error was then sued out by plaintiffs in error.

A motion is made to dismiss on the grounds—(1) that no Federal question was decided by the supreme court adversely to plaintiffs in error. (2) The Federal questions sought to be raised in this court were not raised in the trial court, and under the practice in Illinois were not open to review in the supreme court, and were not reviewed. (3) The Federal questions raised are without merit. (4) The decision of the supreme court is sustainable upon non-Federal grounds.

The motion makes necessary a consideration of the allegations of the information and of the grounds of decision of the court. The information alleges the following: The state of Illinois was formed out of the Northwest territory ceded by Virginia to the United States in 1784, and by the ordinance for the government of the territory it was declared in article 4 that 'the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States and those of any other states that may be admitted into the Confederacy, without any tax, impost, or duty therefor.' [1 Stat. at L. 52, note.]

On the 18th of May, 1796 [1 Stat. at L. 468, chap. 29, U. S. Comp. Stat. 1901, p. 1567], Congress passed an act for the sale of lands of the United States in the territory northwest of the Ohio river and above the mouth of the Kentucky river, by § 9 of which act it was provided that all navigable rivers within the territory to be disposed of by virtue of the act should be deemed to be and remain public highways. Subsequently there was separated from such territory by an act of Congress, dated May 7, 1800 [2 Stat. at L. 58, chap. 41], the portion thereof which now embraces the states of Illinois and Louisiana, to be called Indiana territory. On March 26, 1804 [2 Stat. at L. 277, chap. 35], Congress, acting under the Constitution of 1787, passed an act for the disposal of the public lands in Indiana territory, by which it was provided that all the navigable rivers, creeks, and waters within that territory should be deemed to be and remain public highways.

By an act of February 3, 1809 [2 Stat. at L. 514, chap. 13], Congress divided the Indiana territory and constituted that portion of it which now comprises the state of Illinois a separate territory, to be called Illinois, and provided that its inhabitants should be entitled to and enjoy all and singular the rights, privileges, and advantages granted and secured to the people of the Northwest territory by the ordinance of July 13, 1787.

On the 18th of April, 1818 [3 Stat. at L. 428, chap. 67], Congress passed an act to enable the people of Illinois to form a constitution and state government for admission into the Union upon an equality with other states, and provided that the government should be republican, and not repugnant to the ordinance of July 13, 1787. A constitution was adopted, and Congress, on the 3d of December, 1818 [3 Stat. at L. 536], declared the admission of the state into the Union, that its constitution and government was republican and in conformity to the provisions of the articles of compact between the original states and the people and the states in the territory northwest of the River Ohio, passed on July 13, 1787.

The river Des Plaines is situated in the Northwest territory, rises in Wisconsin, and flows southerly into the state of Illinois (its course is given), in all a distance of about 96 miles.

The river Kankakee rises in Indiana and flows westerly into Illinois and unites in Grundy county with the Des Plaines, forming with it the Illinois, which flows thence westerly and southwesterly through several counties in Illinois into the Mississippi river. Wherefore, by reason of the fact that the Des Plaines river is wholly within the Northwest territory, and that it empties its waters into the Mississippi, and by reason of the other facts set forth, it is subject to the provisions of the acts of Congress set out.

It is shown by early explorations and discoveries that the Des Plaines river was navigable from a point near where is now situated the city of Chicago to its mouth, and was used as a highway for commercial purposes, and commerce was carried on over it and over the Chicago river, located in Cook county, Illinois, and connection therewith made by a short portage between the two rivers near the site of what is now the city of Chicago and was in use as a highway of commerce leading from Lake Michigan and the waters emptying into the St. Lawrence river, on the one hand, and the waters of the Mississippi river, on the other, thenceforward from the time of said first use up to and at the time when the ordinance of 1787 and the several acts of Congress were respectively enacted.

Afterward the state of Illinois, by and through its legislature, and in obedience to the several acts of Congress set forth, assumed charge of the river, and in 1839 gave permission for the building of a toll bridge across the river, and subsequently, by an act passed in 1839, amending the several laws in relation to the Illinois and Michigan canal, it was provided that no stream of water passing through the canal lands should pass by the sale so as to deprive the state of the use of such water if necessary to supply the canal without charge for the same; and it was further provided that the lands situated upon the streams which have been meandered by the surveys of public lands by the United States should be considered as bounded by the lines of those surveys, and not by the streams. In the same year an act was passed declaring the river a navigable stream, and providing that it should be deemed and held a public highway, and should be free, open, and unobstructed from its point of connection with the canal to its utmost limit within the state for the passage of all boats and water craft of every description.

In 1845 the state authorized the construction and continuance of the milldam across the river with reservation of the right to the state of improving the dam and of using the water for the canal, and for any other purpose; and in 1849, authorized the building of a bridge at Lockport. The state, by certain acts of its legislature (they are set out), created the Sanitary District of Chicago, under the provision of which a channel was constructed connecting Lake Michigan with the Des Plaines river, at a point some 16 miles above the site of the dam in question, and through which about 300,000 cubic feet of water per minute are drawn through the Chicago river and the Sanitary District drainage channel, and discharged in the Des Plaines river.

It was provided that the channel when completed should be a navigable stream, and that when the general government should improve the river, it should have full control over the same for navigation purposes, but not to interfere with its control for sanitary drainage purposes.

On the 6th of December, 1907, the legislature passed an act, which is as follows:

'Sec. 1. Be it enacted by the people of the state of Illinois, represented in the general assembly: That the Des Plaines and Illinois rivers throughout their courses from below the water power plant of the main channel of the Sanitary District of Chicago in the township of Lockport, at or near Lockport, in the county of Will, are hereby recognized as and are hereby declared to be navigable streams, and it is made the special duty of the governor and the attorney general to prevent the erection of any structures in or across said streams without explicit authority from the general assembly, and the governor and attorney general are hereby authorized and directed to take the necessary legal action or actions to remove all and every obstruction now existing in said rivers that in anywise interferes with the intent and purpose of this act.'1

The relator, Charles S. Deneen, is the governor referred to in the act, and that, by virtue of the statute, his office and constitutional duty, he has a special interest and responsibility in the matters set forth.

The purchasers from the state in § 25 and other similarly situated lands with reference to the Des Plaines river did not take and did not claim to take under their several purchases that portion of the lands lying between the meander line and the water of the river, and that the lands so lying have never been used by any individual under any claim of authority or right vested in the purchasers from the state of Illinois, save and except as claimed by defendant. Lands so lying, therefore, together with the bed of the stream of the river in said quarter section, and other lands similarly situated with reference to the river, have not passed by any purchase of adjoining lands from the state of Illinois, but the same and every part thereof is owned by the state, and held for the benefit of its people and of the people of the United States as a public highway for commerce.

The trustees of the Illinois and Michigan canal executed and delivered to one Charles E. Boyer a deed bearing date October 22, 1860, to land in § 25, excepting and reserving so much as was occupied by the canal and its waters, and a strip 90 feet wide on either side of the canal, containing 196 62-100 acres, the tract being a portion of the land granted by the United States to the state to aid the state in opening a canal to connect the waters of the Illinois river with those of Lake Michigan, and by the state granted to the board of trustees of the canal for the purposes set forth in the act of February 21, 1843.

The defendant derives its title by mesne conveyances from Boyer and certain contracts and leases entered into between the canal commissioners and one Harold F. Griswold and assigned to defendant, and, in pursuance of the claim of right thus obtained, defendant commenced the construction of a dam across the river, but that the said several leases, deeds, and contracts are ineffectual to confer any right to build or maintain the dam.

The legislature of the state, by a proper resolution passed on the 16th of October, 1907, has proposed the building of a deep waterway commencing at the southern end of the Chicago drainage canal and extending along the Des Plaines river, to be submitted to a vote of the people of the state, and, if the same is built, as incident thereto locks and dams will necessarily be constructed across the deep waterway at or near the S. E. 1/4 of section 25, which dams will incidentally afford water power of the value of several millions of dollars to the state, which will be lost to the state if the defendant be permitted to construct the dam in question.

The 90-foot strip along the line of the Illinois and Michigan canal constitutes an integral part of the canal, and the trustees of the canal and the canal commissioners of the state had no right or authority under the law to convey the same by deed, lease, or otherwise. Wherefore the defendant acquired no right to such strip, and said deeds, leases, contracts, and other agreements are void so far as they pertain to the bed of the stream of the river, and to the lands lying outside the meander line.

By virtue of the several acts of Congress set forth, the state is the owner of such lands and other lands similarly situated. The defendant, claiming to own such lands and other lands in section 25, has actually begun the erection of the dam referred to; the attorney general, therefore, on the 12th of December, 1907, served notice upon the defendant to desist from the erection of the dam and from further trespassing upon the lands owned by the state, and to remove any and all obstructions placed thereon. Defendant has ignored the notice, and, unless prevented by injunction, will complete the dam, to the great impairment of navigation, and to the great and irreparable damage to the people of the state.

There are other allegations in regard to the leases and contracts from the canal commissioners which are not necessary to be given.

The prayer of the information was for an injunction in accordance with the allegations.

Defendant in error summarizes its answer as follows: It denied that the Des Plaines river was or ever had been navigable, and alleged that it never had been navigated for the purpose of commerce; and also that it had, from the earliest times, been completely obstructed by various bridges and dams built without legislative authority, and that the state itself had constructed and for many years maintained, and still maintains, a dam entirely across the river at Joliet. It set out correspondence with the War Department of the United States before the construction of the dam was begun, from which it appeared that the plans of the proposed structure were submitted to that Department for the purpose of ascertaining whether the project would be in harmony with the work of the improvement of the river proposed—but never decided upon—by the government, and that the officers of the Department stated not only that it would be so in harmony, but, if carried out, it would save the government large sums of money. The correspondence also stated that the river had never yet been considered a navigable stream of the United States, and that it was not subject to the provision of §§ 9-13 of the act of March 3, 1899 [30 Stat. at L. 1151, 1152, chap. 425, U. S. Comp. Stat. 1901, pp. 3540-3542], or to other similar United States legislation.

The answer further alleged that subsequently defendant in error acquired the property, and that a large sum of money had been expended and heavy obligations incurred by it in carrying out the project of building the dam.

Upon the issues thus made, evidence was taken, which composes three large volumes, upon which the courts below decided against plaintiffs in error; and we are to consider whether, in so doing, any Federal right was passed upon or denied it.

To sustain the contention that such right was passed upon and denied, it is said 'that at the time the information in equity was filed, and for over six years before the defendant in error became a riparian owner, the Des Plaines river, irrespective of the question of its navigability, was a navigable river of the United States at the point where the dam was erected,' and this because of the 'concurrent action of the state and Federal governments by the construction of the Chicago Sanitary ship canal, the connection of it with the Chicago river and Lake Michigan on the northeast, and the discharge of the water into Lake Michigan from it into Des Plaines and Illinois on the southwest.'

It is further contended that the state court did not decide this question adversely to plaintiffs in error, but, on the contrary, excluded the admitted fact as being immaterial because that condition was artificially created. And this because defendant in error urged in that court that the navigability of the river could not be determined by its capacity as improved by the addition of the water of the Sanitary District. The court, in its decision, therefore, it is the final contention, denied the rights arising from the condition of navigability thus created by state and Federal action, and plaintiffs in error insist that 'if artificial navigability can create a public right which is entitled to protection against the acts of one who purchases riparian property after that condition was created, then, on the conceded law, the judgment of the state court was erroneous. And if those public rights are created or protected by Federal law, this court has jurisdiction to reverse the judgment.'

The inquiry immediately occurs, How did the so-called public right arise? From the mere addition of water to the river or by the conditions upon which it was admitted? The bill alleges the enactment of many laws and a complex system of improvements by virtue of them, rights asserted by the state to the lands bordering on the river, and rights to the bed of the river, conveyances, leases, and contracts by public officers constituted by laws which verbally, at least, confer authority upon them, and rights asserted by defendant in error arising from the execution of such authority. But all of the questions hence arising are state questions, whether depending upon law or fact, which it is not in our province to review. It would seem, therefore, at the outset, that one of the elements of the Federal right asserted is absent. However, let us see what the supreme court of the state has decided.

Mr. Justice Vickers, delivering the opinion of the court, says: 'Appellant [the state] bases its claim to relief on three propositions—as follows: (1) That the state of Illinois owns the bed of the river at the point where it is proposed to build said dam; (2) that the Des Plaines river is a navigable stream, and that the proposed dam would constitute an obstruction to navigation; (3) that certain contracts executed by the commissioners of the Illinois and Michigan canal, under which appellee [defendant in error] claims certain rights in connection with the construction of said dam, are void, and that no rights were acquired by or can be asserted under said contracts.' [241 Ill. 309, 89 N. E. 760.]

The first and third propositions manifestly involve state questions and were decided adversely to plaintiffs in error. They might be put out of discussion except so far as they may have bearing on the second proposition. By the second proposition the navigability of the river is presented as a question of fact, and of it the court said that it had received the most exhaustive treatment by counsel, and that if the dismissal of the bill by the court below had been without prejudice to renew the application for injunction, the action of the court could be sustained because of the utter failure of the plaintiffs in error to prove that the construction of the proposed dam would be an obstruction to the then navigation of the river. 'There is no proof,' the court said, 'that the river is now being used as a public highway for commerce. On the contrary, the evidence not only shows that the river is not being so used, but it shows affirmatively that, owing to the presence of numerous other dams and some fifty or more bridges which span the river, it would be impossible, under existing conditions, to navigate the stream. There being at present no navigation whatever upon the river, obviously the dam in question cannot be said to be an obstruction to navigation that has no existence in fact.' The trial court not making the indicated reservation, but having rendered a decree based on the finding that the river was not navigable, thus settling the question for all time, the supreme court considered the question as presented on the merits. After a review of the evidence and the contentions of the parties, it decided that the river was not navigable in a state of nature, and declared that there was not in the entire record a well authenticated instance in which a boat engaged in commerce navigated the waters of the Des Plaines river. Referring to the testimony, the court said: 'Whatever may be thought of the preponderance of it one way or the other, it can have but little weight as against the uncontroverted fact that the river has never been used as a public highway for commerce.' And again, 'After the most careful consideration of this question we are of the opinion that the Des Plaines river in its natural condition is not a navigable stream, and that the rights of parties to this suit must be determined upon that basis.' The court besides rejected the contention that the Sanitary District act declared the river to be navigable. The contention, it was said, was 'based on a sentence in § 24 of said act, as follows: 'When such channel shall be completed, and the water turned therein, to the amount of 300,000 cubic feet of water per minute, the same is hereby declared a navigable stream.' Appellant's [the state] contention, under this statute, is thus stated in its brief: 'The same means that the water flowing in that channel is a navigable stream. The water so turned in was navigable in fact, and it does not lose its navigability in passing out of the artificial channel into the channel of the Des Plaines river. The water is just as navigable one-half mile southwest of Joliet as it is one-half mile northeast of Joliet.' The argument is based upon an erroneous construction of the word 'same.' That term refers to the channel of the Sanitary District, and has on reference to the water after it leaves the channel.'

The court, however, said that even if the legislature had declared in unequivocal language that the river was navigable, as it did by the act of 1907 [the act under which the information was filed], the declaration could not affect the rights of defendant in error, they being protected by the Constitution of the state, which forbids private property from being taken for public use without just compensation previously made, for which the court cited a number of cases and Cooley on Constitutional Limitations, *591. And it was added that none of the legislative acts had the primary purpose of permitting a deep-water channel from the Lakes to the Gulf by means of improving the channel of the Des Plaines river, nor did the various acts passed in the interest of the Illinois and Michigan canal nor the Sanitary District act include a general scheme for the improvement of that river. 'Up to this time,' it was further said, 'no general plan for the deep waterway has been adopted by the state or nation,' and whether any such enterprise will ever be adopted, and whether it will include the Des Plaines river, 'are all legislative questions with which the courts have no concern.' If it be done, the court continued, it must be done 'with due regard to the rights of every citizen, however humble and insignificant those rights may seem in contrast with the great public consummation.'

We have already seen that the contention of the plaintiff in error that the bed of the river was in the state, and not in the riparian owners, among whom is defendant in error, by force of the act of the legislature of the state of February 26, 1839, in relation to the Illinois and Michigan canal, was held untenable, and it was further held that the contracts of the canal commissioners under which defendant in error claims rights were valid. And the court further decided that the legislation of the state did not intend nor contemplate the improvement of the Des Plaines river from a condition of non-navigability to navigability, and no act, except that of 1907, had declared it to be navigable, and that no act could do so and affect private rights under the Constitution of the state. The supreme tribunal of the state has therefore decided that plaintiffs in error have no elements of right against defendant in error.

It is said, however, as a foundation of a right under the acts of Congress alleged, that the river, although it was not navigable in its natural state, became so by the addition of water from the Sanitary District. This contention was rejected by the supreme court, the court deciding, as we have seen, that the navigability of the river was to be determined by its natural condition, and not by its condition created by artificial means. In resistance to this conclusion of the court, and in assertion of a Federal right, plaintiffs in error cite, besides the acts of Congress referred to in the information, certain acts of Congress passed in 1899, 1900 [31 Stat. at L. 580, chap. 790], and 1902 [32 Stat. at L. 364, chap. 1079], appropriating money for 'a survey and estimates of cost for the improvement of the upper Illinois and lower Des Plaines rivers in Illinois, with a view to the extension of navigation from the Illinois river to Lake Michigan,' and adduce, besides, other recognitions by Congress of the navigability of the river, and contend that therefore, the rights of the state are based on Federal laws, and 'that in its sovereign right, and as parens patrios and of its citizens, and on behalf of the citizens of all of the United States [italics counsel's], it had the right under those Federal laws to prevent the accomplishment by defendant of an act destructive of the navigability of the stream.'

Plaintiffs in error state their contention another way. They say the acts of the two sovereignties, state and national, in furtherance therance of a common object, are so interwoven and related that the rights and questions arising from them, and the construction of their effect, necessarily create Federal questions.

But we have seen that the supreme court of the state decided there was no concurrence of the state in furtherance of the so-called common object; that is, that the various acts in regard to the Illinois and Michigan canal or the Sanitary District did not include any general scheme for the improvement of the Des Plaines river, and it was certainly within the competency of the court to so determine. The court was also of the view that, under the Constitution of the state, the state did not have the 'sovereign right, and as parens patrioe,' to restrain the acts of defendant in error.

The court seemed to consider that it had decided all of the contentions of the state when it had decided the question of the navigability of the river both in its natural condition and its condition after the addition of the waters of the Sanitary District. The fact was and is pivotal. The ordinance for the government of the Northwest territory and the subsequent acts of Congress set out in the information do not determine navigability of the streams, but only define rights which depend upon its existence. Passing the question, therefore, whether the ordinance or the acts refer to physical obstructions or to political regulations, and also passing the question whether they were of force after the admission of the state into the Union (on both questions see Willameete Iron Bridge Co. v. Hatch, 125 U. S. 1, 31 L. ed. 629, 8 Sup. Ct. Rep. 811), the fact of navigability having been decided against the state by the state court, there is no Federal right left to review. Crary v. Devlin, 154 U. S. 619, and 23 L. ed. 510, 14 Sup. Ct. Rep. 1199; Cameron v. United States, 146 U. S. 533, 36 L. ed. 1077, 13 Sup. Ct. Rep. 184; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300. In the latter case it was decided that the question of navigability is purely one of fact.

It is said, however, that by the acts of 1899, 1900, and 1902, Congress has taken jurisdiction of the Des Plaines river. If so, the state is not the instrument through which the jurisdiction can be exercised. United States v. Bellingham Bay Boom Co. 176 U. S. 211, 44 L. ed. 437, 20 Sup. Ct. Rep. 343; Willamette Iron Bridge Co. v. Hatch, supra; Cleveland v. Cleveland Electric R. Co. 201 U. S. 529, 50 L. ed. 854, 26 Sup. Ct. Rep. 513.

But the cited acts are not appropriations for improvements undertaken, but for improvements which may be undertaken; not a jurisdiction exercised, but a jurisdiction to be exercised. And, as we have seen, it is alleged in the answer, and the allegation is sustained by the evidence, that the plans of defendant in error's structure were submitted to the War Department, and it was declared by that Department, 'The work proposed is in general harmony with the work of improvement recommended by the board of engineers appointed under the authority of the rivers and harbors act of June 13, 1902 (32 Stat. at L. 331, 334, chap. 1079).' But the Department, inasmuch as Congress had not authorized the improvement of the river, did 'not deem it expedient to take further and definite action in the matter of approving the plans.' It is manifest, therefore, that the state has no right under Federal laws which it may assert for itself or 'on behalf of the citizens of all of the United States,' and the motion to dismiss must be granted.

Dismissed.