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are done and threatened in five counties of the State. It alleges also a vain application to the State of Tennessee for relief. A preliminary injunction was denied, but, as there was ground to fear that great and irreparable damage might be done, an early day was fixed for the final hearing and the parties were given leave, if so minded, to try the case on affidavits. This has been done without objection, and, although the method would be unsatisfactory if our decision turned on any nice question of fact, in the view that we take we think it unlikely that either party has suffered harm.
The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the State as a private owner is merely a makeweight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.
The caution with which demands of this sort, on the part of a State, for relief from injuries analogous to torts, must be examined, is dwelt upon in Missouri v. Illinois, 200 U. S. 496, 520, 521. But it is plain that some such demands must be recognized, if the grounds alleged are proved. When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court. Missouri v. Illinois, 180 U. S. 208, 241.
Some peculiarities necessarily mark a suit of this kind. If the State has a case at all, it is somewhat more certainly entitled to specific relief than a private party might be. It is not lightly to be required to give up quasi-sovereign rights for pay; and, apart from the difficulty of valuing such rights in money, if that be its choice it may insist that an
infraction of them shall be stopped. The States by entering the Union did not sink to the position of private owners subject to one system of private law. This court has not quite the same freedom to balance the harm that will be done by an injunction against that of which the plaintiff complains, that it would have in deciding between two subjects of a single political power. Without excluding the considerations that equity always takes into account, we can not give the weight that was given them in argument to a comparison between the damage threatened to the plaintiff and the calamity of a possible stop to the defendants' business, the question of health, the character of the forests as a first or second growth, the commercial possibility or impossibility of reducing the fumes to sulphuric acid, the special adaptation of the business to the place.
It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source. If any such demand is to be enforced this must be, notwithstanding the hesitation that we might feel if the suit were between private parties, and the doubt whether for the injuries which they might be suffering to their property they should not be left to an action at law.
The proof requires but a few words. It is not denied that the defendants generate in their works near the Georgia line large quantities of sulphur dioxide which becomes sulphurous acid by its mixture with the air. It hardly is denied and can not be denied with success that this gas often is carried by the wind great distances and over great tracts of Georgia land. On the evidence the pollution of the air and the magnitude of that pollution are not open to dispute. Without any attempt to go into details immaterial to the suit, it is proper to add that we are satisfied by a preponderance of evidence that the sulphurous fumes cause and threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within the plaintiff State as to make out a case within the requirements of Missouri v. Illinois, 200 l. S. 496. Whether Georgia by insisting upon this claim is doing more harm than good to her own citizens is for her to determine. The possible disaster to those outside the State must be accepted as a consequence of her standing upon her extreme rights.
It is argued that the State has been guilty of laches. We deem it unnecessary to consider how far such a defence would be available in a suit of this sort, since, in our opinion, due diligence has been shown. The conditions have been different until recent years. After the evil had grown greater in 1904 the State brought a bill in this court. The defendants, however, already were abandoning the old method of roasting ore in open heaps and it was hoped that the change would stop the trouble. They were ready to agree not to return to that method, and upon such an agreement being made the bill was dismissed without prejudice. But the plaintiff now finds, or thinks that it finds, that the tall chimneys in present use cause the poisonous gases to be carried to greater distances than ever before and that the evil has not been helped.
If the State of Georgia adheres to its determination, there is no alternative to issuing an injunction, after allowing a reasonable time to the defendants to complete the structures that they are now building, and the efforts that they are making to stop the fumes. The plaintiff may submit a form of decree on the coming in of this court in October next.
Injunction to issue.
MR. JUSTICE HARLAN, concurring.
The State of Georgia is, in my opinion, entitled to a general relief sought by its bill, and, therefore, I concur in the result. With some things, however, contained in the opinion, or to be implied from its language, I do not concur. When the Constitution gave this court original jurisdiction in cases“ in which a State shall be a party,” it was not intended, I think, to authorize the court to apply in its behalf, any principle or rule of equity that would not be applied, under the same facts, in suits wholly between private parties. If this was a suit between private parties, and if under the evidence, a court of equity would not give the plaintiff an injunction, then it ought not to grant relief, under like circumstances, to the plaintiff, because it happens to be a State possessing some powers of sovereignty. Georgia is entitled to the relief sought, not because it is a State, but because it is a party which has established its right to such relief by proof. The opinion, if I do not mistake its scope, proceeds largely upon the ground that this court, sitting in this case as a court of equity, owes some special duty to Georgia as a State, although it is a party, while under the same facts, it would not owe any such duty to the plaintiff, if an individual.
DECISION OF THE PERMANENT COURT OF ARBITRATION IN THE MATTER OF
THE MARITIME BOUNDARY DISPUTE BETWEEN NORWAY AND SWEDEN
Whereas, by Convention under date of March 14, 1908, Norway and Sweden agreed to submit to the final decision of a Tribunal of Arbitration, comprised of a president who shall neither be a subject of either of the contracting parties nor domiciled in either of the two countries. and of two other Members of whom one shall be a Norwegian and the other a Swede, the question of the maritime boundary between Norway and Sweden as far as this boundary has not been determined by the royal resolution of March 15, 1904; and
Whereas, in pursuance to said convention, the two Governments have appointed respectively as president and arbitrators:
Mr. J. A. Loeff, Doctor of Law and Political Sciences, former Minister of Justice, Member of the Second Chamber of the States-General of the Netherlands;
Mr. F. V. N. Beichmann, President of the Court of Appeals of Trondhjem, and
Mr. K. Hj. L. de Hammarskjöld, Doctor of Law, former Minister of Justice, former Minister of Public Worship and Public Construction, former Envoy Extraordinary and Minister Plenipotentiary to Copenhagen, former President of the Court of Appeals of Jönköping, former Professor in the Faculty of Law of Upsal, Governor of the Province of Upsal, Member of the Permanent Court of Arbitration ; and
Whereas, in accordance with the provisions of the Convention, the memorials, counter memorials, and replications have been duly exchanged between the parties and communicated to the arbitrators within the periods fixed by the President of the Court; and
Whereas, the two Governments have respectively appointed as agents, to wit:
The Government of Norway, Mr. Kristen Johanssen, attorney at the Supreme Court of Norway; and the Government of Sweden, Mr. C. 0. Montan, former member of the Court of Appeals of Svea, Judge in the Mixed Court of Alexandria ; and
Whereas, it has been agreed by Article II of the Convention :
1. That the Court of Arbitration shall determine the boundary line in the waters from the point indicated by XVIII on the map annexed to the project of the Norwegian and Swedish Commissioners of August 18, 1897, in the sea as far as the limit of the territorial waters;
2. That the lines, limiting the zone which may be the subject of litigation in consequence of the conclusions of the parties and within which the boundary line shall consequently be established, must not be traced in such a way as to comprise either islands, islets, or reefs which are not constantly under water; and
Whereas, it has likewise been agreed by Article III of the said Convention:
1. That the Tribunal of Arbitration must decide whether the boundary line is to be considered, either wholly or in part, as being fixed by the boundary treaty of 1661 together with the map thereto annexed, and in what manner the line thus established should be placed.
2. That, as far as the boundary line shall not be considered as fixed by said treaty and said map, the Tribunal shall fix this boundary line, taking into account the circumstances of fact and the principles of international law; and
Whereas, the agents of the parties have presented the following conclusions to the Tribunal :
The agent of the Norwegian Government:
That the boundary between Norway and Sweden within the zone which constitutes the object of the arbitral decision, shall be determined in accordance with the line indicated on the map annexed, under No. 35, to the memorial presented in behalf of the Norwegian Government.
And the agent of the Swedish Government:
May it please the Tribunal of Arbitration to declare that the boundary line in dispute, as regards the space between point XVIII as already fixed on the map of the Commissioners of 1897, and point A on the map of the boundary treaty of 1661, is but incompletely established by the said treaty and the map annexed thereto, for the reason that the exact situation of this point is not shown clearly therein, and, as regards the rest of the space, extending westward from the same point A to the territorial boundary, that the boundary line was not established at all by these documents.
II. As regards these main questions:
1. May it please the Tribunal to be guided by the treaty and map of 1661, to take into account the circumstances of fact and the principles of the law of nations, and to determine the maritime boundary line in dispute between Sweden and Norway from point XVIII as already fixed, in such a manner that in the first place the boundary line shall be