concurs.
Thomson, J., dissenting: I am unable to concur in the decision of this case as announced in the foregoing majority opinion. In that opinion it is said that the primary purpose for which the Sanitary District of Chicago was created was the disposal of sewage, from which the conclusion is reached that the defendants may turn into the channels of the District, through the sewers, such of their trade wastes as may be contemplated within the term sewage.
In People ex rel. Longenecker v. Nelson, 133 Ill. 565, the Supreme Court pointed out that the purpose of the Sanitary District Act was “the preservation of the public health,” and that the scheme provided by the act “was formulated mainly if not exclusively with reference to the sanitary condition and needs of the City of Chicago and its environs.” The court called attention to the fact that Lake Michigan was the source of the water supply of the territory embraced within the Chicago Sanitary District, and that a proper construction could not be given to the meaning of the act without taking into account the situation of the territory embraced within the Sanitary District of Chicago. The court then said: “The object of the system of drainage proposed by said Act is to prevent the drainage and sewage of the city and its environs being carried into Lake Michigan, thereby contaminating the waters of the lake,” by providing a channel which will give an outlet “for the drainage and sewage of the city” through the Desplaines and Illinois Bivers. Similar language was used by the court in City of Chicago v. Green, 238 Ill. 258, and in City of Chicago v. Sanitary Dist. of Chicago, 272 Ill. 37, where the court said that “the Sanitary District was organized mainly to solve the sanitary and sewage problems of the City of Chicago by giving it an outlet for its drainage and sewage and preventing the contamination of the waters of Lake Michigan. * * * The object for which the Sanitary District was organized is accomplished by providing and maintaining a channel sufficient to carry through it, the drainage emptying into it by the municipalities in the district.”
By the terms of section 7 of the Sanitary District Act, the board of trustees of any district organized under the act is empowered to construct and maintain channels for carrying off and disposing of “the drainage (including the sewage) of such district.” Even if the legislature had used no other term than “sewage” in the course of the provisions of the sanitary act and the dictionary definitions of that word were such as to confine its meaning to that contended for by complainant in this case, that meaning, in my opinion, would not necessarily control. In City of Chicago v. Green, supra, the Supreme Court said: “Whenever the meaning of a word in a legislative act is important, we must discover its meaning by finding the sense in which it was intended to be used by the legislative body, for that must control.” In construing the Sanitary District Act in that case the court said: “While we think the wording of the law is clear and unambiguous, if there be any doubt as to its meaning, the courts may, in order to find out its purpose or intent, take into consideration the contemporary circumstances and external or historical facts which led to its enactment, and read it in the light of such surrounding facts. In seeking for the legislative intention, we may consider not only the language used, but also the object to be attained and the evil to be remedied.”
What was the evil which the legislature sought to remedy by the passage of the Sanitary District Act and the object thereby sought to be attained? It is a matter of common knowledge that the “drainage (including the sewage) ” of Chicago and the surrounding territory, prior to the passage of the Sanitary District Act and the operation of its channels by the Chicago Sanitary District, passed into Lake Michigan and contaminated the water supply and that this evil grew more and more serious as the community increased in size and the drainage flowing into the lake increased in amount; that the problem affecting the public health, which was thus presented, was considered and studied by committees and commissions created for the purpose and various recommendations were made, and the object of the legislature in providing the scheme contained in the Sanitary District Act, and in passing that legislation, was to furnish a solution to that problem and provide for “the preservation of the public health” by removing the contamination to the water supply, and turning all the material that had been theretofore draining into Lake Michigan through the Chicago River and the sewers, away from that water supply, and so diluting and treating such material as to carry it off through the rivers in the Illinois Valley in such a manner that it would be “neither offensive nor injurious to the health of any of the people of this State.” It is further a matter of common knowledge that prior to the passage of the Sanitary District Act and the operation of the Drainage Canal by the Chicago Sanitary District, as contemplated by that act, one of the chief contaminating elements entering into the drainage problems in Chicago was the trade wastes which were emptied into the sewers and through them i#nto the Chicago River and Lake Michigan, by those engaged in the meat packing industry in the Union Stock Yards, and by others engaged in various other lines of industry.
The history of the attempts to keep the “drainage (including the sewage) ” of Chicago and its environs out of Lake Michigan, by various means, prior to the passage of the Sanitary District Act, is fully set forth in the opinions of the Supreme Court in Canal Com’rs v. Sanitary Dist. of Chicago, 191 Ill. 326, and City of Chicago v. Green, supra. In the latter opinion the court refers to many of the contemporary circumstances and historical facts which led to the enactment of the act, and in that connection the court makes many references to a work on Drainage Channel and Waterway by Gr. P. Brown, to which work counsel for defendants have also called our attention in the case at bar. The title page of the work referred to recites that it is “a history of the effort to secure an effective and harmless method for the disposal of the sewage of the City of Chicago, and to create a navigable channel between Lake Michigan and the Mississippi River,” and it is further stated that this history was prepared “by authority of the Board of Trustees of the Sanitary District of Chicago,” the complainant in the case at bar. It was published in 1894. As pointed out by the Supreme Court in the Green case, Brown’s history of the growth of the evil involving the contamination of Chicago’s water supply, and the elements entering into that evil, gives an account of the studies made of the problem by the commissions appointed for that purpose from time to time. One such commission in 1887 pointed out that the problem demanded two things, “the protection of the water supply and the removal of the river nuisance.” It is pointed out by the complainant’s historian that at one stage of the study of this problem the chief engineer of the Board of Public Works of Chicago, in discussing the causes of the pollution of the Chicago River and the consequent pollution of the water supply of the city, stated that while the sewers were responsible to some extent, the pollution was chargeable chiefly to the discharge of blood and other refuse from the slaughter and packing houses in and around the city, as well as from the distilleries, glue factories and works for rendering offal. Brown on Drainage Channel and Waterway, 66.
In 1865, arrangements were made with the commissioners of the Illinois and Michigan canal by which they agreed to pump water from the Chicago River into the canal at certain times by means of the Bridgeport pumping works. Complainant’s historian points out that this action was taken in large part by reason of the pollution of the south branch of the Chicago River, for which the increasing business of the packing houses at Bridgeport was mainly responsible. It is pointed out that the number of animals slaughtered was greatly increasing and this growth in the packing industry was resulting in a correspondingly increasing pollution of the river. In 1871, the packing houses were removed from Bridgeport to their present location in the city of Chicago. Brown, 307.
In the report of the Drainage and Water Supply Commission, submitted in 1886, it was pointed out that the “south (west) fork of the south branch of the Chicago River received a large amount of sewage and was charged with the waste from the Union Stock Yards and packing houses and that it had no artificial or other means for circulation of its water and therefore it was in a very filthy condition.” Brown, 305-351.
In May, 1887, the legislature appointed a commission to examine and report to the next session of the legislature, on the subject of the drainage of Chicago and its suburbs. This commission reported the Sanitary Act, substantially as it was passed by the next legislature. In its report accompanying the submission of the proposed act the commission stated to the legislature that it had diligently studied the subject submitted to it, “in all its sanitary and commercial aspects * # *. All plans for meeting the demands of the river and valley communities and the pressing needs of Chicago have been carefully examined by this commission. The plan agreed upon by the Commission, as set forth in detail in the bill which accompanies this report, is believed by the Commission to be the most feasible, practicable, and satisfactory method for all the varied interests involved.” Brown, pp. 375-376; City of Chicago v. Green, supra, p. 270.
In my opinion it thus clearly appears, from the history set forth by authority of the complainant itself, that when the legislature approved the report of the commission last referred to, and adopted the plan recommended by it, having to do “mainly if not exclusively,” (People v. Nelson, supra,) with the solving of the problem of removing the source of the contamination of the water supply of Chicago and its environs, and the proper disposal of all its drainage, which had up to that time been contributing to that contamination, a problem affecting the health of everybody living within the district, which problem the commission reported it had diligently studied, “in all its sanitary and commercial aspects,” and when the legislature passed the bill (Sanitary District Act of 1889) substantially as submitted by the commission, and thereby empowered the trustees of any sanitary district organized under the act, to “provide for the drainage of such district” by establishing and maintaining channels for carrying off and disposing of “the drainage (including the sewage) of such district,” it was the very evident intention of the legislature to thereby provide a method for disposing of everything which had theretofore been finding its way into Lake Michigan through the sewers and the Chicago Eiver, including the trade wastes from the packing houses in the stockyards, as well as from other industries. If by the passage of the Act of 1889 it had been the intention and purpose of the legislature to empower the trustees of the Chicago Sanitary District, with reference to which the act mainly had to do, to carry off and dispose of the sewage of the district, using that word in its restricted sense, but not to carry off the trade wastes which had theretofore been such a material contributing factor to the problem affecting the water supply and the sanitary condition of the district, then, I believe the legislature would have drawn a clear distinction between those classes of drainage, but it did not do so, and in the language it did use, I am unable to find any indication of any such purpose.
It therefore is my opinion that under the terms of the Sanitary District Act the complainant in this case is empowered and obliged to carry off and dispose of all such trade wastes from the industries in this district as were found in the drainage which was moving into Lake Michigan, through the sewers and the Chicago River at the time the Sanitary District Act was passed, and had been for years prior thereto. This has been the construction of the Sanitary District Act adopted by the complainant itself, and followed ever since the Drainage Canal has been in operation and up to the time of the filing of the bill of complainant in the case at bar, for it is a matter of common knowledge that ever since the complainant began operation under the act, those engaged in the packing industry have disposed of their trade wastes through the sewers and channels of the district and the district has carried off and disposed of them as provided by the act. In my opinion, the course which the trustees have pursued under the act, with reference to those trade wastes, amounts to an executive construction of the act, which is the opposite of the construction they now seek to place upon it. Our Supreme Court has said in Nye v. Foreman, 215 Ill. 288, and Cook County v. Healy, 222 Ill. 310, that “when it appears that executive officers charged with the duty of applying the law, have, by contemporaneous, long, uniform and practical construction, accepted and acted upon it as having a definite and practical meaning, the conclusion so reached and acted upon by such officers will, in view of the great injury and injustice which would result from a change in such construction and meaning, be accorded great weight by the judiciary when that department of the government is called upon to construe the law, and will in general control.”
I am further of the opinion that the recent amendments to the Act of 1889, which have been adopted by the legislature, indicate a legislative confirmation of the intention which was present at the time the original act was adopted as- above set forth. If we may take judicial notice of the fact that these recent amendments, providing for disposal and treatment plants and requiring the complainant to establish and maintain them beginning with the year 1925, were prompted in some degree by the attitude of the Federal Government, concerning the amount of water the Sanitary District of Chicago might withdraw from the lake and pump into its channels, as indicated in the majority opinion, we may also take judicial notice of the fact that the materials which the complainant was carrying away and disposing of through its channels have, in recent years, been greatly increasing in quantity, not only by reason of the increase in population of the District, but also by reason of the industrial growth of the District. It is not my understanding that it is contended by the defendants that these recent amendments, providing for treatment and disposal plants, were enacted primarily to enable the complainant to take care of the trade wastes of the defendants and others. It may well be, as stated in the majority opinion, that such was not their object primarily. But, in my opinion, the significance of those amendments is that they not only empower, but require, the complainant to dispose of certain quantities of the drainage of the District by means of treatment plants, and as in the original act, so in the amendments, no distinction is made as to the classes of drainage to be so treated. It is a matter of common knowledge that these amendments were adopted at the solicitation and instigation of this complainant, itself, and the last of the amendments referred to was adopted by the legislature after the complainant had begun the suit at bar and while that suit was pending in the trial court. If it had been the intention that the disposal plants were not for the purpose of treating trade wastes as well as other drainage, and if the burden of the District had come to be such, by reason of the increase of drainage and sewage, that it was necessary to afford the complainant some relief from the obligations which the Act of 1889 placed upon it, and which it has since been carrying out, and the legislature had had any thought of eliminating trade wastes from the operation of the act, again the opportunity was presented to accomplish it, and the fact that it was not done, even though at the time the last amendment was adopted the complainant was seeking the relief prayed for in this bill, in my opinion indicates clearly that the intention of the legislature in adopting the amendments was to increase the facilities of the complainant for continuing its work of disposing of the drainage of this district, just as it has been disposing of it ever since it began to operate under the original act.
The majority opinion calls attention to the fact that the amendment to section 7, passed in 1921, requires that “in the case of the Sanitary District of Chicago, beginning with the year 1925, some efficient method of treating sewage other than by water dilution shall be annually provided to create an effluent thereof, * * * which shall be adequate to care for a population of not less than 300,000, until at least 60 per centum of the present population of the Sanitary District of Chicago has been provided for,” and the opinion then states that this shows that “the primary purpose of the Act was the disposition of sewage since it was based on human population,” and, therefore, the matter of taking care of trade wastes is not involved, “except such trade wastes as may be designated as sewage.” In my opinion, the point made is untenable. I am unable to see that the provision referred to indicates anything to the effect that the provisions should not include trade wastes. Even counsel for the complainant, in the brief filed in this court, point out that the complainant’s own engineers have, themselves, used a human population unit in measuring trade wastes, for the brief tells us that complainant’s engineers after an extended investigation have reported that the stockyards trade wastes, which the complainant has been carrying away and disposing of through its channel, “are equal in amount to the ordinary sewage of a population of one million.”
The majority opinion further states that the complainant is required to carry off and dispose of, under the provisions of the Sanitary District Act, such trade wastes as may be diluted and oxidized by the water flowing in its channel, but that it is not authorized or required to dispose of the wastes complainant describes in its bill of complaint, “unless they may be diluted and oxidized by the water.” In my opinion the method of disposal of drainage by treatment plants as well as by the dilution method, should be taken into consideration, with reference to these wastes, in view of the action of the legislature in passing the amendments of 1921 and 1925.
Complainant has called our attention to section 221, of division 1 of the Criminal Code (Cahill’s St. ch. 38, ¶ 453) and contends that when the legislature passed the Sanitary District Act it must be presumed to have known that said section was in full force and effect,, and that, therefore, the sewage referred to in the Act of 1889 may not be considered as including trade wastes. The section referred to declares what shah, be considered' as constituting a public nuisance, and, among other things, declares that it shall be a nuisance to throw or deposit any offal or any other offensive matter, or the carcass of any animal in any watercourse or common sewer. This statute on nuisances, passed by our legislature in 1874, is in lieu of B. S. 1845, page 175, section 134, and a later statute found in Laws of 1861, page 270, paragraph 1. The “common sewer” of 1845, or 1861, or even of 1874, was a far different thing from the Sanitary District channels provided for by the Sanitary District Act of 1889. In my opinion, in so far as the Sanitary District Act provides for the carrying off and disposal of the drainage of the Sanitary District of Chicago, that act must be considered as superseding the provisions of section 221 of division 1 of the Criminal Code, to the extent of any conflict there may be in their terms (Village of Atwood v. Cincinnati, I. & W. R. Co., 316 Ill. 425; Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402), and in so far as the latter may be considered as having had application to the territory within the District, and to have theretofore applied to any part of the subject matter covered by the later act. Moreover, in Walker v. City of Aurora, 140 Ill. 402, our Supreme Court has said that section 221 of the Criminal Code does not constitute an absolute prohibition against the discharges of the substances therein referred to, into any watercourse or sewer but that it merely prohibits such discharge in a manner that will cause injury to others. In that case the court held that a proposed sewage system which was to empty into the Fox River could not reasonably be considered a violation of the provisions of section 221 of the Criminal Code. In my opinion we find another clear recognition by the legislature of the fact that trade wastes, under the Act of 1889 and its amendments, are properly part of the drainage of the Chicago Sanitary District, to be carried off and disposed of by the District through its channels and the Des Plaines and Illinois Rivers, in an act recently passed by the legislature entitled, “An Act Creating a Rivers and Lakes Commission for the State of Illinois, and defining the duties and powers thereof.” Section 14 of that act (Cahill’s St. ch. 19, ¶ 72) provides that it shall be unlawful for anyone to discharge industrial wastes or any refuse containing solids into any watercourse in the State, “provided, however, that the provisions of this section shall not apply to that portion of the Des Plaines River lying down stream from any point at which the waters of the Sanitary District of Chicago have been or are discharged into said Des Plaines River.”
Of course, the defendants should not be permitted to dispose of anything and everything through the channels of the complainant, and the contention of complainant that the interpretation of the act urged by defendants leads to that result is, in my opinion, untenable. By the terms of the Act of 1889 and the amendments thereto, the complainant is required to carry away and dispose of only such materials as are shown to be proper trade wastes and such as were being disposed of through the sewers and the Chicago River, and thus into Chicago’s water supply, when the legislature passed the Act of 1889, and thus established the public policy of disposing of them through the channels of the Sanitary District. The complainant, by the allegations of its bill, does not complain of certain specific trade wastes, alleging that they are not the kinds of wastes which were discharged into the sewers or the river and were a part of the drainage finding its way into the lake, at the time the Sanitary District Act was passed, and so could not have been within the contemplation of the legislature at that time, but that since that time the defendants have come to dispose of them in the manner complained of. Complainant’s bill is so broad as to include all the trade wastes of the defendants. It asks that the defendants be enjoined from putting into the channels of the District certain specified materials, and “other liquid or solid matter produced by them.” Such relief must be based on the theory that under the Act of 1889 and the amendments thereto, the complainant is under no obligation, so far as trade wastes are concerned. In my opinion, that theory is not tenable. If, in fact, the defendants are attempting to dispose of, through the channels of the Sanitary District, materials not properly considered as trade wastes, and which may be said not to have been within the contemplation of the legislature, when the method of disposal provided in the Sanitary District Act was adopted, and the complainant seeks relief as against such materials, then it should be required to amend its bill, and base its prayer for relief on that theory and confine it to such materials. In my opinion, the principle invoked in the last paragraph of the majority opinion may not properly be applied in the situation presented by this bill. The chancellor, in my opinion, properly sustained the demurrers interposed to the bill by the defendants,