United States v. Republic Steel Corp/Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

362 U.S. 482

United States  v.  Republic Steel Corp

 Argued: Jan. 12, 13, 1960. --- Decided: May 16, 1960.

Mr. Justice HARLAN, with whom Mr. Justice FRANKFURTER, Mr. Justice WHITTAKER and Mr. Justice STEWART, join, dissenting.

In my opinion this decision cannot be reconciled with the terms of the Rivers and Harbors Act of 1899, apart from which the Court, as I understand its opinion, does not suggest the United States may prevail in this case. Far from presenting the clear and simple statutory scheme depicted by the Court, the provisions of the governing statute are complex and their legislative history tortuous. My disagreement with the Court rests on four grounds: (1) that the term 'any obstruction' in § 10 of the Act was not used at large, so to speak, but refers only to the particular kinds of obstructions specifically enumerated in the Act; (2) that the discharge of this liquid matter from the respondents' mills does not fall within any of the Act's specific proscriptions; (3) that in any event injunctive relief was not authorized; and (4) that Sanitary District Co. of Chicago v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 does not militate against any of these conclusions.

Five sections of the Act are relevant to this case:

(1) Section 9, 33 U.S.C. § 401, 33 U.S.C.A. § 401, makes it unlawful to construct any bridge, dam, dike, or causeway without the consent of Congress and the approval of the Chief of Engineers and the Secretary of War. ^[1]

(2) Section 10, 33 U.S.C. § 403, 33 U.S.C.A. § 403, contains three clauses: Clause 1 provides 'That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited.' Clause 2 makes it unlawful to build any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structure without complying with certain conditions. Clause 3 makes it unlawful 'to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of * * * the channel of any navigable water' without the authorization of the Secretary of War. ^[2]

(3) Section 12, 33 U.S.C. § 406, 33 U.S.C.A. § 406, provides that violation of § 9, § 10, or § 11 (the last ^[3] not being material here) constitutes a misdemeanor, and that removal of any 'structures or parts of structures' erected in violation of said sections may be enforced by injunction. ^[4]

(4) Section 13, 33 U.S.C. § 407, 33 U.S.C.A. § 407, makes it unlawful to place in navigable waters any refuse of any kind other than 'that flowing from streets and sewers and passing therefrom in a liquid state * * *.' ^[5]

(5) Section 16, 33 U.S.C. § 411, 33 U.S.C.A. § 411, makes violation of § 13, § 14, or § 15 (the latter two not being involved here) ^[6] a misdemeanor. No injunctive relief is provided for. ^[7]

The Court holds that respondents have violated §§ 10 and 13, and that injunctive relief is authorized under the present circumstances. A closer examination of the Act and its history than that undertaken in the Court's opinion, in my view, refutes both conclusions.

The Court relies primarily on the first clause of § 10, which provides:

'That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited. * * *'.

If that clause stood in isolation, it might bear the broad meaning which the Court now attributes to it. However, it is but one part of an involved and comprehensive statute which has emerged from a long legislative course. The bare words of the clause cannot be considered apart from that context.

Two circumstances apparent on the face of the statute immediately raise a doubt whether the term 'any obstruction' can be taken in its fullest literal sense. First, the clause is surrounded in the statute by an exhaustive enumeration of particular types of obstructions and cognate activities, that is, 'bridge, dam, dike, or causeway' (§ 9); 'wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures' (§ 10, cl. 2); 'excavate,' 'fill,' 'alter,' 'modify' (§ 10, cl. 3); and 'any refuse matter of any kind' (§ 13). If the 'any obstruction' clause were intended to cover a category of obstructions not included within any of the specific enumerations, it is strange that it should be inserted at the beginning of a section which lists several specific obstructions and which is itself both preceded and followed by other sections making similar enumerations. Second, the lawful creation of the structural obstructions mentioned in § 9 requires the approval of Congress, while those listed in clauses 2 and 3 of § 10 and in § 13 can be lawfully accomplished with only the authorization of the Secretary of War. Yet clause 1 of § 10 says that 'any obstruction' must be affirmatively authorized by Congress. If the clause is taken in its literal sense, the condition of congressional approval therein prescribed is difficult to square with the condition of approval by the Secretary of War prescribed as to many of the obstructions specifically enumerated. ^[8] Because of the doubts raised by these considerations, it becomes necessary to explore the derivation of the 1899 Act. When this is done, I believe it will be found that 'any obstruction' will not bear the broad meaning given it by the Court, but that it must be taken as embracing only the particular obstructions specified in the statute.

The provisions of the 1899 Act dealing with obstructions derive ultimately from a proposal made by the Chief of Engineers and transmitted to Congress by the Secretary of War in 1877. ^[9] A bill based on this recommendation was three times introduced in Congress, ^[10] and came to be known as the Dolph bill. It was reported favorably all three times, and was passed by the Senate twice. ^[11] It enumerated the proscribed obstructions in terms virtually identical to those contained in the 1899 Act, but did not contain the 'any obstruction' clause found in § 10 of that Act.

After the Senate had for the second time passed the Dolph bill but before the House had acted on it, the annual rivers and harbors appropriation bill, which was to become the Rivers and Harbors Act of 1890, ^[12] came up for consideration on the floor of Congress. The bill already contained a set of provisions dealing with the power of the Secretary of War to order the alteration or removal of bridges which obstructed navigation. During the Senate debate on those provisions, Senator Edmunds of Vermont offered as an amendment an additional section which provided as follows:

'Every obstruction, not affirmatively authorized by law, to the navigable capacity of any waters in respect of which the United States has jurisdiction is hereby prohibited. * * * Every person and every corporation which shall be guilty of creating or continuing any such obstruction in this section mentioned shall be deemed guilty of a misdemeanor * * *. The creating or continuing of any obstruction in this section mentioned may be prevented by the injunction of any circuit court * * *.' ^[13]

Subsequently, the Dolph bill was offered in toto as a further amendment. ^[14] The Senate accepted the Edmunds amendment and passed the appropriation bill as so amended, ^[15] but it refused to add the Dolph bill. ^[16] In conference, however, it was decided to accept both by combining them. The penal section of the Dolph bill, which followed all of the sections enumerating particular obstructions, had provided simply that every offender against any provision of the Act should forfeit a $250 penalty and be liable for actual damages. The conferees deleted that entire section and replaced it with an adaptation of the Edmunds amendment. ^[17] The latter, which was enacted into law as § 10 of the Rivers and Harbors Act of 1890, read as follows:

'That the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited. * * * Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor * * * (T)he creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any circuit court * * *.' ^[18]

Thus, the Edmunds amendment, in which the 'any obstruction' clause had first appeared, and which carried both penal and injunctive sanctions, was substituted for a section which theretofore had contained purely penal provisions and had followed an exhaustive enumeration of those particular obstructions to which the penalties applied. It is to be further noted that while the original Edmunds amendment had made its remedial provisions applicable to any person creating 'any such obstruction in this section mentioned,' Congress, in incorporating the Edmunds amendment into the Dolph bill, made such provisions applicable to any person creating 'any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act * * *.' (Emphasis added.) In both instances, the word 'such' clearly referred back to the initial sentence of the section prohibiting 'any obstruction,' the only place in either bill where that term appears. Whatever the meaning of 'any obstruction' may have been in the original Edmunds amendment, Congress made it clear in § 10 of the 1890 Act that 'such' obstruction meant those obstructions 'in this act mentioned.' To consider 'any obstruction' in that section as embracing something more than the kinds of obstructions specifically enumerated in the Act would lead to the conclusion that the remedial provisions of § 10 did not cover all the obstructions proscribed by the first sentence of the section. ^[19] Definition of an additional set of offenders-those 'who shall violate the provisions of the last four preceding sections of this act'-was made necessary by the fact that the Dolph bill contained prohibitions of several practices which might not amount to obstructions.

From this background, I think the reasonable conclusion to be drawn is that 'any obstruction' in § 10 of the 1890 Act referred only to those obstructions enumerated in the preceding sections of the Act, and not to obstruction in the catchall sense. ^[20]

The Rivers and Harbors Act of 1899, with which the present case is directly concerned, came about as a result of Congress' direction to the Secretary of War in 1896 to prepare a compilation and revision of existing general laws relating to navigable waters. ^[21] The Secretary's report purported only to codify existing law with no substantive changes, ^[22] and Senator Frye, the Chairman of the Commerce Committee, and the conferees on the bill as ultimately passed, confirmed that the legislation was to have no new substantive effect. ^[23] This indeed is recognized by the Court. As part of the codification, Congress took the first sentence of § 10 of the 1890 Act and inserted it as the first sentence of one of the provisions enumerating several specific obstructions which then became § 10 of the 1899 Act. ^[24] There is nothing to indicate that in so doing, Congress departed from its announced intention to leave the substance of the Act unchanged. Thus the 'any obstruction' language of the first sentence of new § 10 was, as it had been in the old § 10, simply declaratory of all the obstructions specifically proscribed throughout the Act, whether of a structural or nonstructural nature. ^[25]

I cannot agree that respondents' practices are prohibited by any of the specific provisions of the Act of which § 10, cl. 1, is declaratory. The Court seems to rely in part on § 10, cl. 3, on the theory that the discharge from respondents' plants 'alter or modify the * * * capacity' of the Calumet River. But again, this provision must be read in context. It is evident that in §§ 9 and 10 Congress was dealing with obstructions which are constructed, in a conventional sense, reserving for § 13 the treatment of discharges of refuse which may eventually create obstructions. The structure of § 10, cl. 3, itself confirms this. The basic prohibition of the clause relates to excavations and fills, both of which represent construction in the ordinary sense of that term. The immediately following phrase, 'or in any manner to alter or modify the * * * capacity * * * of the channel of any navigable water,' must be read as referring to the same general class of things as the basic prohibition of the clause. If there could be any doubt about the clause's frame of reference, it is dispelled by the concluding words: 'unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.' (Emphasis added.)

Finally, I do not believe that § 13 can be construed to proscribe respondents' practices. The term 'any refuse matter of any kind or description whatever' undoubtedly embraces the matter discharged from respondents' mills. However, § 13 expressly exempts refuse 'flowing from streets and sewers and passing therefrom in a liquid state.' ^[26] The Court says that materials in 'a liquid state' must mean materials which do not settle out. But it is difficult to believe that a nineteenth century Congress, in carving out an exception for liquid sewage, meant to establish an absolute standard of purity which not only bore no relation to the prevailing practice of sewage disposal at the time, ^[27] but also is impossible to achieve even under present-day technology. It is conceded that despite respondents' best efforts to separate out industrial solids, a few minute particles remain. These comprise a small fraction of 1% of the total solution and the most damaging of them are too small to be seen under a microscope. One need not be an expert to say that the refuse discharged by an ordinary sewer pipe today, and a fortiori 60 years ago, undoubtedly contains far more solid matter in suspension than respondents' discharges. And the statute affords no basis for differentiating, as the Court suggests, between industrial and domestic refuse.

Even if a violation of § 10 or § 13 could be established, injunctive relief would not be authorized. The Court seems to avoid saying that the statute provides for injunctive relief under the present circumstances, but holds that the propriety of such relief can somehow be 'inferred' from the statute. However, where, as in this statute, Congress has provided a detailed and limited scheme of remedies, it seems to me the Court is precluded from drawing on any source outside the Act. One need go no farther than the plain words of § 16, which prescribes the penalties for violation of § 13, to see that an injunction against violation of the latter section is not authorized. As to violations of § 10, section 12 provides only that 'the removal of any structures or parts of structures erected in violation of' §§ 9, 10, or 11 may be enforced by injunction. (Emphasis added.)

The Government relies heavily on the fact that the comparable provision in § 10 of the 1890 Act authorized injunctive relief against 'any unlawful obstruction.' A closer examination of that section, however, undermines the Government's conclusion. It authorized criminal penalties in two instances: First, for the creation of any unlawful obstruction mentioned in the Act, and second, for violation of the preceding four sections. By contrast, the section authorized injunctive relief only in the first instance-the creation of any unlawful obstruction 'in this act mentioned.' To me this indicates that a deliberate distinction was drawn between those prohibitions relating to obstructions created by construction in the ordinary sense and those relating to other types of interferences with navigation, including the discharge of refuse. In the 1899 Act, the provisions relating to the erection of particular types of obstructions were gathered together in § 9, § 10, and § 11 and subjected to the penalties of § 12. The criminal penalties of § 12 are applicable to any violation of the preceding three sections (and any rule promulgated by the Secretary of the Army under § 14), while injunctive relief is limited to 'structures or parts of structures,' thus reflecting the same distinction made in the 1890 Act. The provisions relating to violations not involving the erection of any structures, such as discharge of refuse, unauthorized use of government navigational installations, and careless sinking of vessels. were gathered together in §§ 13, 14, and 15 and subjected to the penalties of § 16 The last-mentioned section is conspicuously lacking in any reference to injunctive relief, thus again reflecting the distinction established by the 1890 Act. Since the deposits attributable to respondents' mills are not 'structures' within the meaning of § 12, their removal, as I read the Act, cannot be enforced by injunction.

The Court seems to say that § 17, which directs the Department of Justice to conduct the legal proceedings necessary to enforce the Act, itself authorizes injunctive relief. But it would have been futile for Congress to prescribe and carefully limit the relief available for violation of the Act if § 17 were meant to authorize a disregard of those limitations. Section 17, in my view, does no more than allocate within the Government the responsibility for the invocation of those remedies already authorized by Congress.

The case of Sanitary District Co. of Chicago v. United States, supra, is not, in my opinion, the 'decisive' authority which the Court finds it to be, either as to the question whether a violation has taken place or as to whether injunctive relief would be authorized under the present circumstances, given a violation of the Act. The United States in that case had originally sought an injunction against the construction of the Calumet-Sag channel and later against the diversion thereby of water from Lake Michigan in excess of the amount authorized by the Secretary of War. There is no doubt that a substantive violation of the Act was made out under §§ 9 and 10, since the complained-of diversion and consequent alteration in the navigable capacity of the Great Lakes had been brought about by the excavation of a channel and the construction of pumping stations, intercepting sewers, movable dams, and navigational locks. ^[28] By contrast, respondents in the present case have erected no structures which could give rise to either a violation of the Act or a right to injunctive relief.

To the extent that Sanitary District relied on the inherent power of the United States, apart from the statute, it is wide of the mark in this situation. The Court here seems to concede that the Sanitary case is no authority for inferring a substantive cause of action arising from the constitutional power of the United States over navigable waters. Indeed, no other conclusion could well be reached in view of the holding in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8, 8 S.Ct. 811, 815, 31 L.Ed. 629, that 'there is no common law of the United States which prohibits obstructions and nuisances in navigable rivers,' and of the opinion in State of Wisconsin v. State of Illinois, 278 U.S. 367, 414, 49 S.Ct. 163, 170, 73 L.Ed. 426, which said of the Sanitary case that '(t)he decision there reached and the decree entered cannot be sustained, except on the theory that the court decided * * * that Congress had exercised the power to prevent injury to the navigability of Lake Michigan * * *.'

The Court nevertheless seems to find in the Sanitary case an authorization to infer that the United States has a right to injunctive relief, despite the statute's failure to provide for it. Whatever the validity of that proposition may have been in the context of Sanitary, it can have no applicability here. For in the former case, the effect of the complained-of practices was to lower the level of the entire Great Lakes system. The Government there argued that a right to injunctive relief could be inferred because of the repercussions of the State's action beyond its own borders, ^[29] and the Court expressly relied upon the 'sovereign interest' of the United States in all the Great Lakes and upon a treaty with Great Britain touching the use of Canadian boundary waters. In the present case, the waters affected consist of a few miles of the Calumet River lying wholly within the State of Illinois, and no treaty or international obligation is involved.

What has happened here is clear. In order to reach what it considers a just result the Court, in the name of 'charitably' construing the Act, has felt justified in reading into the statute things that actually are not there. However appealing the attempt to make this old piece of legislation fit modern-day conditions may be, such a course is not a permissible one for a court of law, whose function it is to take a statute as it finds it. The filling of deficiencies in the statute, so that the burdens of maintaining the integrity of our great navigable rivers and harbors may be fairly allocated between those using them and the Government, is a matter for Congress, not for this Court.

I would affirm.

Notes

1. Section 9 provides in full as follows:
2. Section 10 provides in full as follows:
3. Section 11 deals with the power of the Secretary of War to establish harbor lines.
4. Section 12 provides in full as follows:
5. Section 13 provides in full as follows:
6. Section 14 deals with unauthorized use and occupation of federal navigational installations. Section 15 deals with floating obstructions and sunken vessels.
7. Section 16 provides in full as follows:
8. It is to be noted that if § 10, cl. 1, is construed to cover obstructions not within any of the Act's specific prohibitions, and if the respondents' practices are held to fall only within § 10, cl. 1, then the relief granted by the District Court would not in any event be proper, since its decree required only the approval of the Chief of Engineers of the Department of the Army. D.C., 155 F.Supp. 442, 453.
9. The letters are reprinted in S.Rep. No. 224, 50th Cong., 1st Sess.
10. H.R. 2007, 49th Cong., 1st Sess.; S. 27, 50th Cong., 1st Sess.; S.Rep. No. 224, 50th Cong., 1st Sess.; H.R.Rep. No. 2760, 50th Cong., 1st Sess.; S. 88, and H.R. 394, 51st Cong., 1st Sess.; H.R.Rep. No. 1635, 51st Cong., 1st Sess.; H.R.Rep. No. 477, 51st Cong., 1st Sess.
11. 19 Cong.Rec. 2338, 21 Cong.Rec. 1319.
12. 26 Stat. 426.
13. 21 Cong.Rec. 8607.
14. 21 Cong.Rec. 8684.
15. 21 Cong.Rec. 8608, 8691.
16. 21 Cong.Rec. 8685.
17. 21 Cong.Rec. 9558.
18. 26 Stat. 454.
19. The scanty legislative history in connection with the Edmunds amendment does not militate against this view. It was reported from the Senate Judiciary Committee with no explanation three days before the floor consideration of the appropriation bill. See 21 Cong.Rec. 8603. It was first discussed in the context of its effect on the problem of bridges and its relation to the provisions already in the appropriation bill dealing with the Secretary of War's power over bridges. Id., 8603-8605. Subsequent discussion centered on the meaning of the term 'not affirmatively authorized by law.' Id., 8607.
20. The Court asserts that a contrary construction of § 10 of the 1890 Act was established by United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136. The defendant there attempted to build a dam across the Rio Grande River in New Mexico. The building of dams was specifically prohibited by § 7 of the 1890 Act. The defendant, however, contended that the Act did not apply because the Rio Grande was nonnavigable at the point where the dam was to be built. The very passage of which the Court quotes only a part deals simply with that contention:
21. 29 Stat. 234.
22. H.R.Doc. No. 293, 54th Cong., 2d Sess.
23. 32 Cong.Rec. 2296-2297, 2923.
24. The identity of the numbers of the respective sections in the new and old Acts is purely coincidental.
25. This construction of the first clause of § 10 seems to have been assumed, though not expressly passed on, by this Court in State of Wisconsin v. State of Illinois, 278 U.S. 367, 412-413, 49 S.Ct. 163, 169, 73 L.Ed. 426. The phrase not 'affirmatively authorized by law' was changed to 'not affirmatively authorized by Congress' simply to overcome the holding of a lower court that authorization by state law was sufficient. United States v. Bellingham Bay Boom Co., C.C.D.Wash.1896, 72 F. 585, affirmed, 9 Cir., 1897, 81 F. 658, reversed on other grounds, 1900, 176 U.S. 211, 20 S.Ct. 343, 44 L.Ed. 437. See Sanitary District Co. of Chicago v. United States, 266 U.S. 405, 429, 45 S.Ct. 176, 179, 69 L.Ed. 352; State of Wisconsin v. State of Illinois, supra, 278 U.S. at page 412, 49 S.Ct. at page 169. Since the prohibition of the clause covers both those obstructions which require congressional approval and those which require only approval of the Secretary of War, the phrase 'authorized by Congress' must be read to mean authorized by Congress or the agency designated by it. State of Wisconsin v. State of Illinois, supra, 278 U.S. at pages 412-413, 49 S.Ct. at page 169.
26. While a refuse provision was contained in the Dolph bill which became the 1890 Act, the liquid-sewage exception was first added in 1894, 28 Stat. 363, and carried forward into the 1899 Act. There was no discussion in the reports or debates of the meaning of the exception.
27. In 1900, only 4% of the urban population having sewage facilities provided any treatment at all for domestic and trade wastes. Modern Sewage Disposal (1938), p. 13 (Federation of Sewage Works Assns., Langdon Pearse, editor, Anniversary Book, Lancaster Press, Inc.).
28. Brief for Appellant, pp. 5-14. It is to be noted that the Sanitary District did not challenge the propriety of injunctive relief in the District Court, and indeed invited it to avoid criminal penalties in testing its right to maintain the channel and divert the complained-of amount of water. 266 U.S. at pages 431-432, 45 S.Ct. at page 180; Record on Appeal, Vol. VIII, pp. 129, 151-152; Brief for Appellee, pp. 66-67, 284-285.
29. Brief for Appellee, pp. 123-158.