In October, 1932, complainant states, Wisconsin, Minnesota, Ohio, and Michigan, applied for the appointment of a commissioner or special officer to execute the decree of April 21, 1930 (281 U.S. 696, 50 S.Ct. 331, 74 L.Ed. 1123) on behalf and at the expense of defendants. The applicants complained of the delay in the construc ion of the works and facilities embraced in the program of the Sanitary District of Chicago for the treatment and disposition of sewage so as to obviate danger to the health of the inhabitants of the district on the reduction, as the decree provides, of the diversion of water from Lake .michigan through the drainage canal. The court directed defendants to show cause why they have not taken appropriate steps to effect compliance with the requirements of the decree.
After hearing upon the return to the rule, the court appointed Edward F. McClennen as special master to make summary inquiry and to report to the court (1) as to the causes of the delay in obtaining approval by the Secretary of War of the construction of controlling works in the Chicago river and the steps which should now be taken to secure such approval and prompt construction; (2) as to the causes of the delay in providing for the construction of the Southwest Side Treatment Works and the steps which should now be taken for that purpose or, in case of a change in site, for the construction of an adequate substitute; and (3) as to the financial measures on the part of the sanitary district or the state of Illinois which are reasonable and necessary in order to carry out the decree of the court. 287 U.S. 578, 53 S.Ct. 210, 77 L.Ed. --. The master has proceeded accordingly, and, after full hearing and careful review of the evidence received by him, has submitted his report and recommendations, upon which the parties have been heard.
The master has found that the causes of the delay in obtaining approval of the construction of controlling works in the Chicago river 'are a total and inexcusable failure of the defendants to make an application to the Secretary of War for such approval,' and that the causes of the delay in providing for the construction of the Southwest Side Treatment Works 'are (1) an inexcusable and planned postponement of the beginning of construction of these Works to January 1, 1935, which left an inadequate time for their completion before December 31, 1938, at the rate of progress expected or to be expected under the methods pursued by the Sanitary District, and (2) the failure to proceed to a difinite decision as to a site and to the acquisition of the site so chosen, and (3) the failure to proceed with reasonable diligence to prepare designs, plans, and specifications for the Works at this site or on the site of the West Side Works.' The evidence taken by the master supports these findings.
With respect to the steps which should now be taken to secure completion of the works above mentioned, the master finds that, because of its financial situation, the defendant sanitary district is at present powerless to contract 'for the design or for the construction of controlling works, or for the construction in a large way of the Southwest Side Treatment Works.' This is found to be due to the unmarketability of its bonds and its inability to obtain the needed moneys through levy of taxes or assessments. The master finds that 'in the conditions which now exist, there is no reasonable financial measure which the Sanitary District can take, which it is failing to take'; and that 'no way has come to light, whereby this decree can be performed under tolerable conditions, unless the State of Illinois meets its responsibility and provides the money.' The master recommends that the decree be enlarged so as to require the state of Illinois to provide the moneys necessary and to take the appropriate steps to secure the completion of adequate facilities for the treatment and disposition of sewage in order to carry out the decree of this court.
First. The state of Illinois raises questions as to its relation to this suit and its obligation under the decree. Counsel for the state present the view that the sanitary district is the 'active defendant,' and that, while no objection has been, or is, made to the joining of the state as a party defendant, there has been no determinat on in this suit as to the exact nature and extent of the 'legal liability of the State of Illinois for the acts of the Sanitary District,' and that this court 'should not now assume the existence of a legal liability on the part of the State.' This argument is untenable.
