Missouri v. Illinois (180 U.S. 208)/Dissent Fuller

Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan and Mr. Justice White, dissenting:

Controversies between the states of this Union are made justiciable by the Constitution because other modes of determining them were surrendered; and before that jurisdiction which is intended to supply the place of the means usually resorted to by independent sovereignties to terminate their differences can be invoked, it must appear that the states are in direct antagonism as states. Clearly this bill makes out no such state of case.

If, however, on the case presented, it was competent for Missouri to implead the state of Illinois the only ground on which it can be rested is to be found in the allegation that its governor was about to authorize the water to be turned into the drainage channel.

The sanitary district was created by an act of the general assembly of Illinois, and the only authority of the state having any control or supervision over the channel is that corporation. Any other control or supervision lies with the lawmaking power of the state of Illinois, and I cannot suppose that complainant seeks to coerce that. It is difficult to conceive what decree could be entered in this case which would bind the state of Illinois or control its action.

The governor, it is true, was empowered by the act to authorize the water to be let into the channel on the receipt of a certificate, by commissioners appointed by him to inspect the work, that the channel was of the capacity and character required. This was done, and the water was let in on the day when the application was made to this court for leave to file the bill. The governor had discharged his duty, and no official act of Illinois, as such, remained to be performed.

Assuming that a bill could be maintained against the sanitary district in a proper case, I cannot agree that the state of Illinois would be a necessary or proper party, or that this bill can be maintained against the corporation as the case stands.

The act complained of is not a nuisance per se, and the injury alleged to be threatened is contingent. As the channel has been in operation for a year, it is probable that the supposed basis of complaint can now be tested. But it does not follow that the bill in its present shape should be retained.

In my opinion both the demurrers should be sustained, and the bill dismissed, without prejudice to a further application, as against the sanitary district, if authorized by the state of Missouri.

My brothers Harlan and White concur with me in this dissent.