Sanitary District v. Chicago Packing Co.

241 Ill. App. 288, 1926 Ill. App. LEXIS 34

• Court: Appellate Court of Illinois
• Decided: June 23, 1926
• Docket: Gen. No. 30,337
• Status: Published

Opinions

Mr. Justice O’Connor

delivered the opinion of the court.

The Sanitary District of Chicago filed its bill of complaint in the circuit court of Cook county, seeking to enjoin the 23 defendants, all of whom are engaged in the meat packing business in the stockyards in Chicago, from disposing of certain of their trade wastes through the sanitary channel constructed and maintained by complainant. Each of the defendants filed a general demurrer to the bill and each demurrer contained a special allegation that the bill was multifarious. This special ground is in no way referred to in defendants’ brief and we will, therefore, treat the demurrers as general demurrers. After argument an order was entered sustaining the demurrers, and the complainant having elected to stand by its bill of complaint, a decree was entered dismissing the bill at complainant’s costs and it appeals, so that the question before us is the sufficiency of the bill.

So far as it is necessary for us to state them, the allegations of the bill are: That the complainant is a municipal corporation, organized and existing under the Act of the General Assembly of the State of Illinois in force July 1, 1889; that before the organization of the complainant the drainage and sewage of Chicago flowed into Lake Michigan by way of the Chicago River, polluting the water supply of the city; that to remedy this the legislature passed the Act of 1889 and afterwards complainant was organized under the act to provide an outlet for the drainage and sewage so that it would flow through the Chicago River into the Des Plaines River and the Mississippi Valley system and away from Lake Michigan; that complainant, under the act, constructed its main channel, commonly called the Drainage Canal, which connects the west fork of the south branch of the Chicago River at Robey Street, in Chicago, with the Des Plaines River, near Lockport, and in 1900 turned the water from Lake Michigan into the Chicago River through the Drainage Canal to the Des Plaines River, thereby preventing the sewage and drainage from contaminating the water supply of the city and suburbs; that after-wards complainant constructed and now operates the north shore channel, which connects the north branch of the Chicago River with Lake Michigan, between Wilmette and Evanston and which intercepts the sewage of several cities and villages lying north of Chicago and diverts it into the Chicago River; that after-wards complainant constructed and now operates a canal known as the Calumet-Sag Channel, which connects the Little Calumet River at a point east of Blue Island with the main channel; that complainant also constructed and now operates certain pumping stations and intercepting sewers, which turn all the sewage from Lake Michigan into the main channel.

It is further alleged that under the act complainant is required to turn into its main channel through the Chicago River, or by other means, not less than 20,000 cubic feet of water per minute for each 100,000 inhabitants of thé Sanitary District of Chicago, as long as it uses the main channel as an outlet for disposing of the sewage and drainage; that the complainant is now turning into its main channel the quantity of water required by the act and that the number of inhabitants within complainant’s boundaries is now approximately 3,000,000; that the Act of 1889 provides that any channel constructed under the authority of the act, which discharges its sewage without the limits of the district, shall be of sufficient size and capacity to produce a continuous flow of water so that it shall not be offensive nor injurious to the health of any of the people of the State and that before any sewage shall be discharged into any such channel or outlet, all garbage, dead animals or parts thereof, and other solids, shall be taken therefrom.

It is further alleged that the complainant owns in fee simple approximately 6,200 acres of land bordering on the main channel which is of the value of $25,000,-000; that the value of this land depends upon the maintenance of the depth and navigability and lack of noisome and foul water in the channel, and that unless the waters in the channel are kept as the act requires, the land will be of little value.

It is further alleged that the defendants “slaughter and dress cattle, hogs, sheep, fowl and other animals for food, prepare and manufacture products partly or wholly from slaughtered or live animals, and store and sell live and slaughtered animals” within the region generally known as the stockyards district in Chicago; that each of the defendants in the conduct of its business produces a large quantity of waste material which consists of “garbage, offal, flesh, blood, hair, bone, parts of dead animals and other liquid and solid matter” and that they throw and deposit these into the Chicago River, the common sewers leading into the river and into the main channel and that such waste materials are carried in solution or in suspension into the main channel, and it is alleged that this is in violation of the provisions of section 221 of the Criminal Code of Illinois [Cahill’s St. ch. 38, [[453] which provides that it is a public nuisance to throw or deposit any offal or other offensive matter, or the carcass of any dead animal in any watercourse, lake, pond, spring, well or common sewer, street or public highway. It is further alleged that such waste materials settle to the bottom of the main channel and greatly decrease the depth of the water in the channel and lessen the capacity of the channel to carry the water and sewage; that this increases the current and obstructs and impedes navigation thereby damaging complainant’s real property; that a portion of such waste material is diluted and oxidized by the water in the main channel so that the capacity of the water thus used prevents the proper dilution and oxidation of the sewage turned into the main channel; that on account of this part of the sewage is deposited in the bed of the main channel; that part of such waste material flowing in the main channel remains undiluted and unoxidized and does not settle in the bed of the channel, but flows in solution into the Des Plaines and Illinois Rivers and as a result pollutes the water of the channel and makes the same offensive and injurious to the health of the people of the State of Illinois.

It is further alleged that the defendants do not comprise all who have committed the acts above mentioned; that there are other persons, firms and corporations, whose names are unknown to the complainant, and it is impossible for it to ascertain them and impracticable and impossible to make them defendants in the instant case.

The prayer of the bill is that the defendants may be temporarily restrained and upon a final hearing may be perpetually enjoined from depositing and throwing or permitting to be deposited or thrown “garbage, offal, flesh, bone, parts of dead animals and other liquids or solid matter” produced by them in the conduct of their business into the Chicago River, sewer and drainage channel.

The defendants contend that the express terms of the Act of 1889, construed in the light of historical facts, impose upon the complainant the duty of disposing of all of the sewage of the Sanitary District, including the waste from defendants’ plants. And in support of this, it is pointed out that the general history of the drainage problem prior to the passage of the Sanitary District Act has been outlined by the Supreme Court of this State in the cases of Canal Com’rs v. Sanitary Dist. of Chicago, 191 Ill. 326, and City of Chicago v. Green, 238 Ill. 258, and counsel then point out that from 1848 the question of the drainage of Chicago was considered by officials and other persons, surveys and reports were made from time to time, all pointing out that for many years before 1889 the sewage from the city of Chicago and the trade wastes from the defendants’ plants were flowing into Lake Michigan by way of the Chicago River and thereby polluting the water supply of the city and that to prevent this it was finally determined to construct a drainage channel and other adjuncts by which the sewage, including the trade wastes, would be turned from Lake Michigan into the Des Plaines and Illinois Rivers and Mississippi Valley drainage system; that all of these reports and surveys mentioned the fact that part of the pollution of the water of Lake Michigan was occasioned by defendants’ trade wastes, and that if the legislature in passing the Act of 1889 had intended that these trade wastes should not be taken care of by the Sanitary District, it would have said so; that the legislature did not distinguish between the sewage of the city and the trade wastes of the defendants or any other trade wastes, and furthermore that this is the construction placed on the act by the officials of the Sanitary District from the time the water was turned into the channel in 1900 until the bill in the instant case was filed. On the other hand, the complainant’s position is that it was organized pursuant to the act of the legislature to prevent the drainage and sewage of Chicago and suburbs from flowing into the waters of Lake Michigan, thereby contaminating the water supply, but it was not required by the act, nor was it authorized by the act to receive or dispose of any of the trade wastes of the defendants.

Section 7 of the Act of 1899 provides: “The Board of Trustees of any sanitary district organized under this Act shall have power to provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more main channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district.” In 1921 the legislature amended this section whereby the trustees of the Sanitary District were authorized to lay out, establish, construct and maintain sewage disposal and treatment plants and other works that may be necessary in preventing the water in any channel or outlet which may be discharged beyond the limits of the district from becoming offensive or injurious to the health of any people of the State of Illinois, and that “beginning with the year 1925, some efficient method of treating sewage other than by water dilution shall be annually provided to create an affluent thereof which shall not be offensive or injurious to the health of any of the people of the state and which shall be adequate to care for a population of 300,000, until at least 60 per centum of the present population of the Sanitary District of Chicago has been provided for.”

Section 20 of the Act of 1899, among other things, provides: “Before any sewage shall be discharged into such channel or outlet, all garbage, dead animals and parts thereof and other solids shall be taken therefrom.” In 1923 the legislature, apparently realizing that it would take some time for the Sanitary District of Chicago to construct treatment plants as required by the amendment to section 7 in 1921, passed an act which empowered the Sanitary District to contract with cities and towns within its limits to use any sewer or drain or treatment works of such city or town and to operate the same. And in 1925 the legislature passed another act authorizing the Sanitary District of Chicago to increase its bonding power from 3 per cent to 4 per cent so as to make funds available for the construction of treatment plants. And the defendants contend, in view of this legislation, that it is apparent that the legislature had in mind that the Sanitary District of Chicago would be required to build treatment plants for the purpose of disposing of such trade wastes as are involved in the instant case as well as the disposal of treatment of sewage and that this evidences a clear intention on behalf of the legislature and of the officials of the Sanitary District of Chicago, at whose request defendants say the amendments to the Sanitary District Act were passed, to require the Sanitary District to take care of the trade wastes of the defendants.

We think the legislation passed in 1921, 1923, and 1925, was occasioned to a great extent by the fact that the quantity of water that might be withdrawn from Lake Michigan through the Chicago River and into the main channel was controlled and might be limited by the Federal officials at Washington, and this reduction in the quantity of water would necessitate the building of treatment plants for the proper disposal of the sewage of Chicago. It had been contended for a number of years by States bordering on the Great Lakes that the withdrawal of water by the Sanitary District would and did lower the level of some of the Great Lakes as well as the St. Lawrence River and thereby interfere with interstate and international commerce, and that the withdrawal of water under these circumstances was illegal and unwarranted. In 1908 the United States brought a suit in the Federal Court at Chicago against the Sanitary District of Chicago to enjoin it from diverting water from Lake Michigan in excess of 250,000 cubic feet per minute. The injunction was awarded and on appeal to the Supreme Court of the United States, the decree of the district court was affirmed. Sanitary Dist. v. United States, 266 U. S. 405. The opinion in that case was rendered on January 5,1925, and in discussing the case the court said that the interest of the Sanitary District of Chicago in diverting water from Lake Michigan through the Chicago River and its channel was “primarily as a means to dispose of the sewage of Chicago. Missouri v. Illinois, 200 U. S. 496.” In that case the court pointed out that the quantity of water that might be withdrawn from Lake Michigan was under the control of the Secretary of War and the several permits issued by the War Department in this respect are set out in the opinion. Shortly after the filing of the opinion by the United States Supreme Court, the officials of the Sanitary District appeared before the Hon. John W. Weeks, Secretary of War at Washington, and obtained a permit from him by the terms of which the Sanitary District of Chicago was authorized “to divert from Lake Michigan, through its main drainage canal and auxiliary channels an amount of water not to exceed an annual average of 8500 cubic feet per second” upon condition that such diversion would not affect navigation. And further: “That the sanitary district of Chicago shall carry out a program of sewage treatment by artificial processes which will provide the equivalent of the complete (100%) treatment of the sewage of a human population of at least 1,200,000 before the expiration of the permit.” Other conditions are mentioned and the permit by its terms provides that it, “if not previously revoked or specifically extended, shall cease and be null and void, December 31, 1929.” This permit was issued by the Secretary of War, March 3, 1925. (Barrett’s “The Waterway from the Great Lakes to the Gulf of Mexico” 165.) And subsequently on June 19, 1925, the legislature of this State amended sections 8 and 9 of the Act of 1889, which authorized the corporate authorities of the district to increase their bonding power. So that we think it appears that the legislation passed in 1921, 1923, 1925, was not enacted primarily to enable the Sanitary District to take care of the trade wastes of the defendants and others, but that it appears that the district would be required to dispose of the sewage flowing into the main channel on account of the action of the Secretary of War.

The primary purpose of the legislature in authorizing the creation of sanitary districts and in the construction of the sanitary channel and other adjuncts by the Sanitary District of Chicago was the disposal of sewage. Sanitary Dist. v. United States, supra; Beidler v. Sanitary District, 211 Ill. 628; City of Chicago v. Green, 238 Ill. 258.

In the Beidler case, the court said (pp. 637-638):

“It is evident, from an examination of the act for the creation of Sanitary districts, that the primary and principal purpose of their creation under the statute is to provide for the preservation of the public health by improving the facilities for the final disposition of sewage and by supplying pure water. The fact that a navigable waterway may be created is a mere incident, and not one of the purposes for which a sanitary district is created.” And in the Green case the court said (p. 264): “A consideration of the various provisions of the Sanitary District Act of 1889 leads, it seems, irresistibly to the conclusion that this act was passed to furnish a common outlet for the sewage of the incorporated municipalities within the limits of the district. ’ ’

The proper disposal of sewage by the Sanitary District of Chicago being the primary purpose for which the district was created, authorizes the defendants to turn their sewage into the channel of the Sanitary District of Chicago, but does not authorize them to turn into the channel any of their trade wastes that may not be properly designated as sewage. The bill alleges and the demurrers admit that the defendants “slaughter and dress cattle, hogs, sheep, fowl and other animals for food, prepare and manufacture products partly or wholly from slaughtered or live animals” and that in doing so they “produce a large quantity of waste material which consists * * * of garbage, offal, flesh, blood, hair, bone, parts of dead animals, and other liquid and solid matter” and that they throw and deposit this into the Chicago River and sewers leading into the main channel.

In our opinion, many of the trade wastes above mentioned are not sewage in any proper sense of the word. Certainly it cannot be said that garbage, bones, parts of dead animals and other solid matters are sewage, while on the other hand, it is true other of the trade wastes which are liquid or which may be diluted and oxidized by the water flowing in the channel are properly designated as sewage. As to those trade wastes the defendants are authorized to dispose of them through the Chicago River and sewers into the main channel, but they are not authorized to dispose of garbage, bones, parts of dead animals and other solid matters, unless they be diluted and oxidized by the water and as to the latter trade wastes there can be no estoppel against the Sanitary District on account of what has transpired in the past. Whether such trade wastes have since 1900, when the water was turned into the main channel, been thrown or deposited by the defendants into the Chicago River and common sewers so that they come, into the main channel does not appear, nor is it material, because it was illegal at all times for such trade wastes to be thrown or deposited into the main channel.

It will be noted that the amendment to section 7 of the Act which was passed in 1921, and which requires the sanitary trustee to establish and maintain plants for the treatment of sewage so as to render it inoffensive and not injurious to the health of the people of the State, provides that such treatment plants shall be adequate to care for a population of not less than 300,000 annually. This provision we think shows that the primary purpose of the act was the disposition of sewage, since it is based on human population and that the matter of taking care of trade wastes is not involved, except such trade wastes as may be designated sewage as above pointed out. Nor do we think that defendants ’ contention to the effect that the complainant is required to take care of their trade wastes is strengthened by the provision of section 20 of the Act of 1889, which provides inter alia that before any sewage shall be discharged into a channel or outlet, such as the main channel, “all garbage, dead animals and parts thereof and other solids shall be taken therefrom.” We think this provision was an extra precaution taken by the legislature so that in case garbage, dead animals or other solids should get into the main channel, the complainant should remove them before they pass into the Des Plaines River, but it is not to be construed as authority for the defendants or other concerns to throw or deposit through sewers or directly into the Chicago River or the channels thereof their garbage or dead animals. It certainly would be an unreasonable construction to say that the defendants had a right to place such materials so that they come into the main .channel and then require the complainant to remove them.

The defendants further contend that the demurrer was properly sustained because the complainant has no jurisdiction over the sewers of the city of Chicago into and through which the defendants disposed of their trade wastes. And they further contend that the allegations of the bill fail to disclose any special injury to the complainant, and finally that under the equitable rule of relative convenience, an injunction will not be awarded where it will be productive of greater harm to the defendants than benefit to the complainant. We think none of these contentions can be sustained. It is true that complainant has no jurisdiction over the sewers of the city of Chicago, but when it is made to appear that certain of the trade wastes of the defendants are being illegally discharged into the main channel and since the law requires the complainant to keep the channel open and the water including the sewage therein from being contaminated so as not to be injurious to the health of any of the people of the State of Illinois, we think equity has jurisdiction to prevent the continuation of such illegal deposits and this too, whether there be any special injury to the real estate belonging to the complainant or not. Complainant is a municipal corporation charged by law with the duty of constructing and maintaining an outlet for the sewage and to so dilute or dispose of the sewage as not to he injurious or offensive to the people of the State of Illinois. What damage the defendants will sustain, in being restrained from depositing certain of their trade wastes above mentioned so that they come into the main channel, we are unable to say from the record, but this element cannot be controlling in view of the fact that we hold that under the law certain of the trade wastes may not be thrown or deposited into the main channel.

It follows from what we have said that the bill of complaint stated a good cause of action as to certain of the trade wastes and as to certain other trade wastes it did not state a cause of action, but in these circumstances, since the demurrer was general, it should have been overruled, because it is the law that where a bill sets forth various claims for relief and the defendant files a general demurrer, the demurrer should be overruled, if any of the claims set forth be proper for equitable jurisdiction. Brown v. Hogle, 30 Ill. 119; Snow v. Counselman, 136 Ill. 191; Kinder v. La Salle County Coal Co., 301 Ill. 362; Miller v. Hale, 308 Ill. 275; Sec. 443 Story’s Eq. Pl.

The decree of the circuit court of Cook county is reversed and the cause remanded with directions to overrule the demurrers.

Reversed and remanded.