Oliver Wendell Holmes, Jr.

“ It hardly can be that we should be justified in declaring statutes ordaining such action void in every instance where the circuit court might intervene in a private suit, upon no other ground than analogy to some selected system of municipal law, and the fact that we have jurisdiction over controversies between states. ”

“ There is no pretense that there is a nuisance of the simple kind that was known to the older common law. There is nothing which can be detected by the unassisted senses,-no visible increase of filth, no new smell. On the contrary, it is proved that the great volume of pure water from Lake Michigan, which is mixed with the sewage at the start, has improved the Illinois river in these respects to a noticeable extent. ”

“ Louis to take preventive measures, by filtration or otherwise, against the dangers of the plaintiff's own creation or from other sources than Illinois. What will protect against one will protect against another. The presence of causes of infection from the plaintiff's action makes the case weaker in principle as well as harder to prove than one in which all came from a single source.
Some stress was laid on the proposition that Chicago is not on the natural watershed of the Mississippi, because of a rise of a few feet between the Desplaines and the Chicago rivers. ”

“ It affirms that the Illinois is better or no worse at its mouth than it was before, and makes it at least uncertain how much of the present pollution is due to Chicago and how much to sources further down, not complained of in the bill. It contends that if any bacilli should get through, they would be scattered and enfeebled and would do no harm. The defendant also sets against the experiment with the bacillus prodigiosus a no less striking experiment with typhoid germs suspended in the Illinois river in permeable sacs. ”

“ Of course these acts do not grant the right to discharge sewage, but the case stands no differently in point of law from a suit because of the discharge from Peoria into the Illinois, or from any other or all the other cities on the banks of that stream.
We might go more into detail, but we believe that we have said enough to explain our point of view and our opinion of the evidence as it stands. What the future may develop, of course we cannot tell. ”

“ As this bacillus is asserted to have about the same length of life in sunlight in living waters as the bacillus typhosus, although it is a little more hardy, the experiment is thought to prove one element of the plaintiff's case, although the very small number found in many samples of water is thought by the other side to indicate that practically no typhoid germs would get through. ”

“ The experts differ as to the time and distance within which a stream would purify itself. No case of an epidemic caused by infection at so remote a source is brought forward and the cases which are produced are controverted. The plaintiff obviously must be cautious upon this point, for, if this suit should succeed, many others would follow, and it not improbably would find itself a defendant to a bill by one or more of the states lower down upon the Mississippi. ”

“ It hardly was disputed that Congress could deal with the matter under its power to regulate commerce. The majority observed that although Congress had not declared in terms that a state should not obstruct the navigation of the Ohio by bridges, yet it had regulated navigation upon that river in various ways, and had sanctioned the compact between Virginia and Kentucky when Kentucky was let into the Union. By that compact the use and navigation of the Ohio, so far as the territory of either state lay thereon, was to be free and common to the citizens of the United States. ”

“ The experiments of the defendant's experts lead them to the opinion that a typhoid bacillus could not survive the journey, while those on the other side maintain that it might live and keep its power for twenty-five days or more, and arrive at St. Louis. Upon the question at issue, whether the new discharge from Chicago hurts St. ”