Dissenting Opinion by
Mr. Justice Musmanno:On December 19, 1949, the Commonwealth, on relation of the District Attorneys of Butler and Clarion Counties, the Sportsmen’s League and certain citizens, firms and corporations “similarly affected” brought an action in equity against the New York and Pennsylvania Company, a New York Corporation, to restrain a public nuisance. The bill averred that the corporate defendant operates a pulp and paper mill at Johnsburg, Elk County, which mill discharged and continues to discharge into the.Clarion River and its tributaries, industrial waste composed of putrescible organic matter, noxious harmful materials and acids, in such quantity and intensity, as to pollute the waters of the Clarion River to the damage and injury of the public health, *371to animal and acqnatic life, and to the uses of the river for domestic and industrial consumption and recreation. It averred that the action of the defendant corporation constitutes a public nuisance and that its ill effects are destroying the public waters and tributary lands and have contaminated the air to the detriment and peril of the health of the residents of the riparian lands in the Clarion Eiver Basin and extending into the Allegheny Eiver south into the City of Pittsburgh. The bill averred that the defendant company is allowing the discharge in excess of 20 millions of gallons of polluted water daily into the waters of this Commonwealth.
The history of what followed the filing of the Complaint has been related somewhat in detail in the Majority Opinion and therefore need not be repeated here. It is enough to say that four and one-half years have passed since the filing of a Complaint aimed at preventing the contamination, pollution and poisoning of the waters of a river of this Commonwealth and the litigation is yet at a standstill while the contaminating, polluting and poisoning continue to run their obnoxious, deleterious and destructive course.
The law’s delays which provoked Hamlet into contemplating even the lethal use of a “bare bodkin” was never more apparent than in this litigation which, following almost five years of pleadings, arguments, appeals and re-appeals, is no closer to adjudication than it was in December, 1949, although in the meantime 300 billions of gallons of polluted water, according to the Complaint, have entered the Clarion Eiver and, through its confluence with other streams, have had their deleterious effect on the entire geographical area watered by those streams.
The bill charges the commission of a public nuisance and there can be no question that an Equity court has jurisdiction to consider and inquire into such a *372cause of action. The bill is particularly brought under the provisions of the Pure Streams Act of June 22, 1937, P. L. 1987, Art. I, par. 3, but this part of the Act is only declaratory of the common law relating to nuisances, since corruption of waterways has long been recognized as both a public and private nuisance. As early as 1832, this Court said in the case of Howell v. McCoy, 3 Rawle 256, 268: “It is a principle of the common law, that the erection of any thing in the upper part of a stream of water, which poisons, corrupts, or renders it offensive and unwholesome, is actionable. And this principle not only stands with reason, but it is supported by unquestionable authority ancient and modern.”
Thus, there can be no question that the action was well brought under common law and statutory authority. The question has been raised, however, as to whether Attorneys Harry Alan Sherman, William D. Henning and Francis X. McCulloch may act on behalf of the district attorneys of Butler and Clarion Counties. The lower court ruled that these three attorneys do not have such authority and the Majority of this Court has affirmed that action.
In its entire opinion the majority has cited three cases: Comm. of Pennsylvania ex rel. Shumaker v. N. Y. & P. Co., 367 Pa. 40; Comm. ex rel. Minerd et al. v. Margiotti, 325 Pa. 17; and Comm. v. Brownmiller, 141 Pa. Superior Ct. 107. None of these cases is authoritative of its decision, and, in fact, one of them, Comm. ex rel. Minerd, can, by broad comparison, support the position of the appellants. The district attorneys of the various counties of Pennsylvania at one time were all deputies attorney general. In Com. v Lehman, 309 Pa. 486, this Court, speaking through Mr Justice Linn, said: “Prior to the Act of May 3, 1850 P. L. 654,16 PS, section 1691, the attorney general was *373represented in each county by his deputy who conducted criminal prosecutions; by that statute the office of district attorney was created and that officer was charged with the performance of the duties theretofore performed by the deputy attorney general.”*
It has been argued in this case that because of their participation in the proceedings the three attorneys are in effect holding public office and this they may not do. The same argument was unsuccessfully made in the Minerd case: “It is argued that the special attorney thus appointed holds an office. We think this by no means follows. He is just what the act says he is, a special attorney ‘retained and employed’ by the Attorney General to represent the Commonwealth in the particular matter or matters just as the Attorney General may retain and employ special attorneys to represent the Commonwealth in other special situations Avhen in his judgment it is proper to do so. The person so retained and employed is the representative of the Attorney General for the time being and in the business confided to his care.” (P. 31)
What the Attorney General may do on a state-wide scale, the District Attorney may do on a county-Avide scale, since the district attorney is in effect the attorney general of a county and possesses the same powers which the attorney general had in each county prior to 1850. In Com. v. Brownmiller, 141 Pa. Superior Ct. 107, the District Attorney of Dauphin County petitioned the Court of Quarter Sessions for the appointment of additional district attorneys to assist him in the investigation and trials of certain cases. The assistants were appointed and their appointments challenged. The Superior Court held: “Assuming these assistants to the district attorney were but officers de *374facto and not de jure, they were discharging their duties on behalf of the public under an appointment, which, if irregular, gave them color of title and therefore they were not mere volunteers. Their authority to act cannot be successfully attacked here.”
Applying the same reasoning to the case at bar we have the situation of three attorneys being appointed by two District Attorneys. They are, therefore, not “mere volunteers”, and, under the Brownmiller case, the defendant, being a private corporation, had no authority to attack the appointment. Furthermore, the three attorneys here have not actually been made assistant district attorneys. They are only special counsel for the two district attorneys in one special case.
The appellees in their brief refer to various statutes collected in the General County Law of May 2, 1929, P. L. 1278, 16 P.S. §1 et seq., for the purpose of showing that Messrs. Sherman, Henning and McCulloch cannot qualify as assistant district attorneys because they are not residents of either Butler or Clarion Counties; further, that there is no provision made for compensation to such additional District Attorney assistants. But, as I have already stated, these three lawyers are not assistant district attorneys in the technical sense of men appointed by the District Attorney to assist him in all his functions as a district attorney. Secondly, these three lawyers have not asked for, nor are they to receive any compensation for the services they will voluntarily offer to the two counties. It is not an anomaly (and certainly it is most gratifying) that there are people who are willing to offer their services to the government content only with the compensation of having done a patriotic duty. During our national emergencies many business men • volunteered to work for the token pay of a dollar a year so that *375they might assist in the fields in which they were best qualified in the defense of our endangered nation.
It may be that the warrants of attorney signed by the District Attorneys of Butler and Clarion County are too broad in their authorization, but this is a matter that can easily be attended to at the proper time and place. The District Attorneys may modify those warrants of attorney to coincide with the actual services to be rendered by the three lawyers, but there is no statutory prohibition against their availing themselves of the assistance of any qualified person to confront any emergency which arises during their respective incumbencies.
In Commonwealth v. Jones, 275 Pa. 298, the appointment of special counsel for the County Commissioners of Cambria County was attacked on the ground that the County had its regular county solicitor who could do the work entrusted to special counsel. This Court held that the appointment was legal and proper: “The services to be rendered were not general in relief of the county solicitor, but special in connection with specific projects, these being, all matters connected with proposed alterations and additions to the courthouse, the bonding of the county to provide the funds necessary to make them, and in all the legal incidents thereof, also as special associate counsel in connection with a proposed bond issue of the county, which the record shows was in excess of $4,000,000, for the purpose of providing improved highways within the county, part of which it was necessary to authorize by popular vote, and in all matters of a legal nature incident to or arising out of the creation of this indebtedness and the purposes thereof.”
The services rendered and to be rendered by the three attorneys in this case are “special in connection with specific projectsIt was brought out at the oral *376arguments that because of special study, training and experience, Attorneys Sherman, Henning and McCulloch are peculiarly qualified to prepare and try cases involving the Pure Streams Act. The subject is unquestionably a vast one, involving not only maintenance of our watercourses in a clean and salubrious state, but also the proper protection of industries for the prosperity and economic health of the Commonwealth.
Can it possibly harm anyone legally to have three experts prepare and try this case for the Commonwealth? The Attorney General’s office over many years has employed special counsel who are not deputies attorney general but who enter into negotiations for the State and try causes for the Commonwealth involving countless millions of dollars. The results attained by these special counsel for the Attorney General have never been questioned, their authority has never been challenged. Considerable confusion and harm would result if, because of the decision of the Majority today, the legality of the actions of special counsel for the Attorney General should be thrown into the twilight of doubt.
In the criminal courts of Allegheny County and Philadelphia County, and, I presume, in other counties of the State as well, private counsel nearly always represent the District Attorney’s Office where cross-suits are involved. In those cases the District Attorney takes no part in the trial. The private counsel examine and cross-examine witnesses, sum up to the jury and make representations to the Court. Does the decision today of the Majority of this Court cast a mist of inconclusiveness over all jury verdicts, all jail sentences imposed and fines collected under the cross-suit system? In none of these cases is private counsel appointed by the Court.
*377Now that the Majority has affirmed the decision of the lower court what is to happen? The lower court declared that: “The instant action shall not be further prosecuted by the remaining plaintiffs unless it is actively and personally directed and conducted by the present district attorneys of Butler and Clarion counties or their successors in office.” It may be that the District Attorneys of Butler and Clarion Counties are too busy with the normal functions of their offices in the detection and prosecution of crime to take up this additional burden of a civil case which requires the amassing of data, the gathering of evidence not from one county but many counties, the summoning of witnesses, many days of court trial in a county not that of the involved district attorney. It may be that the district attorneys believe themselves lacking in the technical knowledge and training necessary adequately to prepare and try the issues raised by the pleadings. It may be that since more than their respective counties are involved, the district attorneys may have difficulty in correlating their respective official participation and that therefore the services of attorneys not bound to geographical limits of either county are imperative.
What is to happen? The law is a sphinx and in the meanwhile 20 millions of polluted water daily are pouring into the arteries of the Commonwealth.
Mr. Justice Bell joins in this dissent.Bmphasis throughout, mine.