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That the Supreme Court is undoubtedly ready to advance and sustain legislation as here proposed seems well indicated in the learned opinion of Mr. Justice Holmes in the case of Missouri v. Illinois (200 U. S. 496). That was the case in which the State of Missouri brought an action against the State of Illinois for the purpose of preventing the discharge of sewage through the drainage canal into the upper Mississippi and charging that the sewage was contaminating the water supply of the people of St. Louis and causing an increase in death by typhoid fever. The learned Justice indicated the danger of cases of this kind establishing a new field of the law, which would be rigid and in a sense irrevocable, except by the Court overruling its own decision, and indicated how much more to be preferred was legislation by Congress which could from time to time be modified or changed as circumstances might demand.
The learned Justice in this case further pointed out that if the States were independent nations these controversies would normally be settled by war, but under our Constitution they are settled by appeal to the Supreme Court, which has original jurisdiction in cases arising between the States.
Conditions are arising all over the country where pollution deposited into a waterway in one State carries its ill effect into another. A recent incident is the trade-waste pollution in the Tioga Creek, Tioga County, Pa. There a certain industry emptied its vats into the Tioga, a tributary of the Susquehanna. The Tioga flows into New York State before joining the Susquehanna. The trade-waste poison was carried into New York State and there it killed thousands of fish. The conservation director of New York was helpless to obtain relief under the penal laws of that State which impose a fine of $10 per fish upon offending industries, owing to the fact that the New York statute was ineffective across the State line.
If Pennsylvania persists in not taking adequate action to protect the waters flowing into other States, the seeds of a vicious controversy are thus sown which can only be settled by appeal to the Supreme Court. This the Supreme Court is not at all inclined to encourage and there is little doubt that if Congress was to legislate on the subject the Supreme Court would go the limit to uphold the congressional legislation rather than have its dockets crowded with cases arising from controversies between the several States, to dispose of which it would have to develop a new branch of the law, inflexible as it would be uninviting.
Protection of fish and fisheries. The extent to which Congress may legislate for the protection of aquatic life, especially anadromous fish, whose normal habitat is the sea but which enters the rivers to spawnfor example, shad and salmon-has been not determined. If Congress does not assert by affirmative legislation its right or will to assume control of the fisheries in the bays, inlets, rivers, harbors, and ports of the United States, the right of control remains with the State. (See Manchester v. Massachusetts (139 U. S. 254).) In this case, however, the Supreme Court expressly based its decision on the fact that Congress had not legislated on the subject and therefore the Court did not pass on the question whether it could or could not have legislated.
It is inconceivable, however, that Congress which has jurisdiction over the sea, should not be allowed to legislate to protect against destruction of the great schools of fish, such as salmon and shad,
which while living in the sea must come into the fresh water to spawn and propagate their species. Since the Manchester case, there has been a tremendous development in the exercise of Federal control over matters more or less remotely connected with interstate commerce, there being a realization that the necessity of uniformity makes a most liberal interpretation of the interstate commerce clause necessary. Witness examples of the recent extension by Congress of its authority in radio, animal quarantine, and aviation laws. The Supreme Court is more and more standing firmly by the fundamental principle that Congress is the best judge of the relationship between the matter sought to be remedied and interstate commerce.
Destruction of waterfowl..—The treaty covering migratory birds and fowl has given Congress undoubted right to legislate concerning migratory birds. It would seem that a declaration of Congress to the effect that pollution of streams has a destructive effect on the migratory bird life, would warrant legislation to prohibit the same, and its declaration of the necessity of such legislation would not be reviewed by the Supreme Court.
It is to be noted that Congress under the act of March 10, 1934 (ch. 55, sec. 2, 48 Stat. 40), authorized the Secretary of Agriculture and the Secretary of Commerce to make such investigations as they deemed necessary to determine the effects of domestic sewage, trade wastes, and other polluting substances on wildlife, with special reference to birds, mammals, fish, and shellfish, and to make reports to the Congress of their investigations with recommendation for such remedial measures. Apparently, Congress has already laid the ground for its vindication of any declaration which it may enact that stream pollution is destructive of migratory bird life.
Summary:-1. The power of Congress to regulate interstate streams must extend not only to the main stream but the tributaries, and it has already exercised jurisdiction over nonnavigable tributaries so far as prohibiting insoluble matter being cast into a tributary, which would flow into the main stream.
2. Congress has power to prohibit stream pollution on the ground of its effect to hinder, impede, destroy, or injure navigation, and Congress' judgment as to what it may prohibit to prevent such injury will probably be conclusive and not reviewed by the Supreme Court.
3. Congress has even greater power under the maritime and admiralty jurisdiction provision of the Constitution, because it has power to declare what are admiralty or maritime offenses-the right to do so having been held by Court to be fairly implied from the provision in the Constitution surrendering to the Federal courts jurisdiction in such matters.
4. That Congress probably has power in protection of the sea fisheries especially the anadromous fish, which continued pollution of the streams would destroy.
5. Finally Congress has power pursuant to the international treaty to protect migratory birds, to declare stream pollution a menace to these birds, especially the waterfowl.
Conclusion.-In conclusion, the writer of this brief contends that if Congress recites that pursuant to authority vested in it by the Constitution under the interstate-commerce clause, as well as the power to change, amend, and enlarge the maritime and admiralty law, for the purpose of protection of navigation of streams used for interstate commerce or which can be rendered capable of use for interstate commerce and protection of shipping and water transportation; and to render the use of the rivers by shipping convenient, comfortable, and endurable; and in order to protect the fisheries, particularly the anadromous fish and those fish entering fresh water from the sea as well as the fish traveling from one State to another; and for the purpose of protecting migratory bird life; Congress may then declare that the discharge of all matter of every kind, character, and description polluting the streams to be an improper use thereof, inimical to aquatic animal, and migratory bird life, unlawful and an offense against the Nation, and vest jurisdiction in the appropriate Federal courts to abate the same.
SUPPLEMENTAL BRIEF SUSTAINING THE CLAIM OF THE RIGHT OF THE
FEDERAL GOVERNMENT TO LEGISLATE UNDER THE ADMIRALTY AND MARITIME JURISDICTION CLAUSE
In the case of Crowell v. Benson (285 U. S. 22–95, 76 Law. Ed. 598), the Supreme Court had before it for consideration the constitutionality of the Longshoremen's and Harbor Workers' Act (U. S. C., title 33, secs. 901-950). This act provided a system of workmen's compensation for longshoremen and harbor workers in respect to disability or death of employees from an injury occurring upon the navigable waters of the United States. It was held to be within the power of Congress to alter and to revise the maritime law.
It is interesting to note that the act in question provided for a setting up of an administrative tribunal to find the facts in the first instance, subject, however, to a review by the courts so far as legal questions were concerned.
The act provided, inter alia:
If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the deputy commissioner making the order, and instituted in the Federal district court for the judicial district in which the injury occurred
Nowhere does the act mention that the order is reviewable in a court of admiralty.
It was urged, among other things, upon the Supreme Court, that the power of Congress to legislate could not be sustained under the admiralty provision of the Constitution, because the admiralty court was not expressly mentioned. On this subject, Chief Justice Hughes said:
The reservation of legal questions is to the same court that has jurisdiction in admiralty, and the mere fact that the court is not described as such is unimportant. Nor is the provision for injunction proceedings (sec. 21 (b)) open to objection. The Congress was at liberty to draw upon another system of procedure to equip the court with suitable and adequate means for enforcing the standards of the maritime law as defined by the act. The Genesee Chief v. Fitzhugh (12 How. 443, 459, 460, 13 L. ed. 1058, 1065, 1066).
See on the same point also the case of Marine Transit Corporation v. Dreyfus (284 U. S. 263, 76 L. ed. 282), in which case the arbitration law was extended to admiralty cases where marine contracts were involved and held to be within the power of Congress.
In support of the contention that the Congress has ample power under the migratory bird treaty with Canada, there may be cited the
case of State of Missouri v. Ray P. Holland, United States Game Warden (252 U. S. 416, 64 L. ed. 641), which upheld both the constitutionality of the treaty and the legislation passed to give it effect.
In that case, the claim of the State of Missouri was that it had exclusive right to deal with migratory birds found within its borders and that the right so to do was one of the powers reserved to it under the tenth amendment, and could not be divested either of its police power or ownership or control of wild game.
The Court held that the treaty was a valid exercise of Federal power and that the legislation adopted to give it force and effect under article 1, section 8 was equally valid.
The following language of Mr. Justice Holmes is pertinent:
Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and of our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld.
(S. 15, 75th Cong., 1st sess.) A BILL To amend section 13 of the Act of March 3, 1899, relating to the deposit of refuse in the navigable
waters of the United States, and section 3 of the Oil Pollution Act, 1924 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 13 of the Act entitled “An Act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes”, approved March 3, 1899, as amended, is amended by striking out other than that flowing from streets and sewers and passing therefrom in a liquid state” and inserting in lieu thereof a comma and the following: “including sludge, corrosive substances, and sewage from which the bulk of the suspended and floating matter has not been removed and sewage in a liquid state as well as other matter”.
SEC. 2. Section 3 of the Oil Pollution Act, 1924, is amended by inserting after the words "coastal navigable waters of the United States” a comma and the following: “or into any tributary of any such waters where the same shall be liable to be washed into such waters, either by ordinary or high tides, or by storms or floods or otherwise, from the shore, or any wharf, refinery, manufacturing establishment, or mill of any kind or”.
HARTFORD, Conn., TREATMENT PLANT,
BUREAU OF PUBLIC WORKS,
Hartford, Conn., March 18, 1937. Hon. AUGUSTINE LONERGAN, United States Senator,
Senate Office Building, Washington, D. C. DEAR SENATOR LONERGAN: Your telegram regarding the metropolitan-district sewage-treatment plant was received this noon.
The plant, now about two-thirds completed, will treat the sewage from a present population of about 200,000, living in Hartford, West Hartford, the northerly portion of Wethersfield, and the Blue Hills district of Bloomfield. The plant is designed for an ultimate population of 300,000 and will eventually treat sewage from Newington and the southerly portion of Windsor as well as from the area to be served initially.
The plant will consist of the following units:
(a) Screens.--Bar screens with 34-inch opening, mechanically cleaned for removal of large particles. The screenings are conveyed to:
(b) Shredder, in which the screenings are reduced to a pulp and returned to the sewage for further treatment along with the rest of the sewage solids.
(c) Grit chambers.-Four grit chambers, each 8 feet wide by 6 feet deep by 60 feet, long, with mechanical scraper conveyors for collection of grit, sand, stone dust, and street wash. Inclined screw elevators lift the grit out of the sewage, washing it meanwhile.
(d) Venturi meter.—The meter measures the total sewage flow which will vary from 20,000,000 to 80,000,000 gallons per day, with an average of about 40,000,000.
(e) Sedimentation tanks.—The sewage next flows into eight sedimentation tanks each 68 feet wide by 100 feet long by 8 feet deep. The detention period in these tanks is from 2 to 3 hours and during this time the solids which settle, forming "sludge” on the bottom, are removed by a scraper mechanism to the inlets of sludge pumps. The effluent from the sedimentation tanks goes directly to the river.
(f) Digestion tanks.—The sludge (a semiliquid) will be pumped from the sedimentation tanks into four circular, closed, heated tanks each 50 feet in diameter and 30 feet high. These tanks will be kept at 90° temperature, and during the 30 or more days that the sludge is retained in them, a biochemical action will take place, changing the sludge from a putrescible unstable substance to a relatively inert unobjectionable material. A vast quantity of gas (up to 300,000 cubic feet per day), of good fuel value, will be given off during this process, and this gas will be collected and burned under boilers and the heat used to maintain the tanks at 90°, at which temperature the process works best.
(9) Elutriation. The sludge will then be “elutriated” or washed with water, for removal of certain ammoniacal compounds which retard dewatering.
(h) Sludge dewatering.–The final step will include the addition of chemicals for coagulation and the drying of the sludge by means of a rotary vacuum device in which the semiliquid sludge is dried so that it may be handled and spread upon the dump.
The plant proper will cost about one and one-third million dollars. Approximately $2,000,000 will be spent on intercepting and trunk sewers for the collection of sewage now discharged into the Connecticut River and other water
This sewer construction is now about three-quarters complete. Trusting that this gives you the information you require, and with kindest personal regards, I am Yours sincerely,
Roscoe N. CLARK, Manager. Mr. VINSON. Mr. Chairman, I understand there is a gentleman here from Boston, Mass., Mr. Harrison E. Eddy, who will be unable to be here tomorrow, so I present Mr. Eddy, consulting engineer, Boston, Mass.
Mr. BATES. Incidentally, Mr. Chairman, he built our sewer system for us, so I know the gentleman pretty well.
Thé CHAIRMAN. Did he do a good job?
STATEMENT OF HARRISON P. EDDY, SANITARY ENGINEER,
Mr. Eddy. Mr. Chairman, my name is Harrison P. Eddy, of Eddy & Metcalf, sanitary engineers, Boston, Mass.
I started in the practice of sanitary engineering in 1891. There has not been a year or a month from that day to this when I have not been engaged in sewage-disposal and water-supply problems. I want to mention that so that you will understand that I am approaching this problem from an entirely different point of view from that of those who have already addressed you. I began in the operation and the construction of the sewage treatment plant of the city of Worcester, Mass., which was built under a mandatory statute. I call that to your attention particularly, because it was a mandatory statute. I have served cities in various parts of the country, Schenectady, Syracuse, Buffalo, Cleveland. I am now on the board serving Detroit,