January 2, 1900: On January 2, 1900, the City of Chicago opened up an earthen dam that isolated the Chicago Drainage Canal and forced the Chicago River to reverse its course and discharge into the Mississippi River 43 miles above the intake for the water supply of St. Louis, Missouri.(Hill 2000) The total travel distance for the sewage from its generation to St. Louis intake was about 357 miles. Missouri sued Illinois to plug the connection to the Mississippi River, also called the Sanitary and Ship Canal, which they claimed was contaminating the St. Louis water supply and increasing the incidence of typhoid fever in that community.
The U.S. Supreme Court asserted primary jurisdiction in the case. Testimony of witnesses was held before Frank S. Bright who was Commissioner of the US Supreme Court. In the first sentence of a report on the trial, the author of the report, which summarized the testimony in the case gave his opinion on the importance and the content of the trial.
“The testimony taken in the suit of the, State of Missouri against the State of Illinois and the sanitary district of Chicago comprises the best symposium on river pollution, its biological and chemical aspects, and its general and special sanitary significance that has ever been assembled.”(Leighton 1907)
The case was more well-known than the lawsuit associated with the first use of chlorine to disinfect a U.S. water supply—Jersey City, New Jersey. The outcome of the Chicago case rested on the testimony of renowned water quality experts on both sides. Of particular interest, some of the same expert witnesses in the Chicago Drainage case testified in the Jersey City trials. The sanitary experts in common were, for the plaintiff: George C. Whipple, Allen Hazen, William T. Sedgwick and George W. Fuller. For the defendant, the experts in common were: Rudolph Hering (business partner with George W. Fuller, but on the opposite side of the case), William P. Mason and Leonard P. Kinnicutt.(Leighton 1907) It was not uncommon for the leading sanitary engineers, chemists and bacteriologists to find themselves on one side of a lawsuit or another from their brethren and then the next trial would result in a new mix of experts and their clients.
The final verdict in the trial came from the U.S. Supreme Court. The Justices read the transcript and briefs submitted to it and rendered an opinion written by Justice Oliver Wendell Holmes. Based on his opinion, it was clear that the Justices relied on the clarity, truthfulness and logic of the experts on both sides and the chemical and bacteriological data presented during trial. Differences of opinion between the experts were evaluated and resolved by the Court. In one example, Justice Holmes noted that while St. Louis was blaming sewage from Chicago for increasing the typhoid fever death rate in their city, experts for the defendants showed convincingly that there was no evidence that contamination from Chicago was causing the problem and that sewage discharges from other cities above the intake in Missouri and Illinois including St. Louis were more likely responsible for the degraded quality of their water supply. The Court found on all points for the defendants and the Court obviously believed that the weight of expert opinion testimony favored the defendants’ position.(Leighton 1907)
What the trial did not do was establish a precedent or make a ruling that revolutionized the conduct of cities with regard to sewage discharges and water supply. Unlike the impact of the Jersey City case, which is presented in full in the book, The Chlorine Revolution: Water Disinfection and the Fight to Save Lives, the result of the Chicago Drainage Canal case was that contamination of a water supply by an upstream sewage discharge had to be proven with real data and not based on the speculation and unproven opinions of expert witnesses. Contamination had to be proven as actually coming from the upstream party being sued. As Justice Holmes stated in his opinion: “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.”(Leighton 1907) In effect, St. Louis and the state of Missouri reached too far (about 357 miles) and the U.S. Supreme Court did not agree with their claims.
In the history of sanitary engineering in the U.S., the Chicago Drainage Canal case has been far better known than the Jersey City case. The only logical reason is that an excellent summary of the Chicago case was published in a U.S. Geological Survey report that was widely available. The Jersey City trial transcripts were contained in a limited printing of 12 volumes covering over 6,800 pages that no one had summarized and very few people had ever read.
The well-known attorney, Alan M. Dershowitz, published a book in 2004 summarizing the major trials in the U.S. over the past 300 years that “transformed our nation.” The trials that he summarized extended all the way back to the 17th century and the Salem Witch Trials. Important trials that are covered in the book included the Boston Massacre Trials, the Trial of Aaron Burr, the Dred Scott Case, the Scopes “Monkey” Trial, the trial of the Chicago Seven, the O.J. Simpson Trial, the Clinton Impeachment Trial, and Bush v. Gore. Neither the Chicago Drainage Canal case nor the two Jersey City trials were mentioned in Dershowitz’s book despite their importance to water quality improvements and major advances in public health.(Dershowitz 2004)
Dershowitz, Alan M. America on Trial: Inside the Legal Battles that Transformed our Nation. New York:Warner Books, 2004.
Hill, Libby. The Chicago River: A Natural and Unnatural History. Chicago:Lake Claremont Press, 2000.
Leighton, Marshall O. “Pollution of Illinois and Mississippi Rivers by Chicago Sewage: A Digest of the Testimony Taken in the Case of the State of Missouri v. the State of Illinois and the Sanitary District of Chicago.” U.S. Geological Survey, Water Supply and Irrigation Paper No. 194, Series L, Quality of Water, 20, Department of the Interior, Washington, DC:U.S. Government Printing Office, 1907.