+/- All Case Law (16)

This page contains relevant case law from federal and state courts concerning community water fluoridation and recent updates that may have had an effect on changes to current policies.

+/- Coshow v. City of Escondido

California, Due Process Violations, Push for FDA Approval, Right to privacy, State police power, Unlicensed Practice of Medicine/Compulsory Medication, Violation of Fundamental Liberties

• Plaintiff
  Paul Coshow et al.
• Defendant
  City of Escondido
• State
  California
• Other Parties
  -
• Case Tags
  - Due Process Violations

  - Push for FDA Approval

  - Right to privacy

  - State police power

  - Unlicensed Practice of Medicine/Compulsory Medication

  - Violation of Fundamental Liberties
• Citation
  132 Cal. App. 4th 687; 34 Cal. Rptr. 3d 19 (Cal. Ct. App. 2005)
• Year
  2005-00-00T00:00:00
• Court Name
  Court of Appeals of California, Fourth Appellate District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  D045382
• Opinion Judges
  Haller J, McConnell PJ, Irion J concurring
• Opinion Text
  HALLER, J. Paul Coshow and several other residents of Escondido, California ^FN1 (collectively Coshow) sued the City of Escondido (City) and the California Department of Health Services (Department) for declaratory and injunctive relief, challenging the City's plan to fluoridate its drinking water with hydrofluorosilicic acid (HFSA) and claiming the use of HFSA violates their constitutional rights and exposes the general public to unnecessary health risks. The court granted judgment on the pleadings in favor of City and Department after finding Coshow failed to state a cause of action for declaratory or injunctive relief. FN1. In addition to Coshow, the plaintiffs are Robin Winton, Sabrina Gese, Owen Morrison, Dottie Glen, Al McGowen and Jim Petersen, suing on behalf of themselves, the general public and all persons similarly situated. Shirley Macy was a plaintiff but is not a party in this appeal. Coshow appeals, contending: (1) the court erred by granting judgment on the pleadings based on motions in limine filed by City and Department; (2) he had standing to challenge City's unconstitutional conduct and its impermissible expenditure of public funds under Code of Civil Procedure sections 1060 and 526a; (3) his fourth amended complaint alleged violations of fundamental constitutional rights to privacy and bodily integrity under the federal and state Constitutions; (4) the court erred by refusing to consider allegations that HFSA is a drug which the Federal Food and Drug Administration (FDA) has not approved for the prevention of dental caries; (5) the court erred by refusing to consider allegations that use of HFSA to fluoridate City's drinking water violates Penal Code section 374.8; and (6) the court's factual findings are unsupported by the evidence and were improperly applied to grant judgment on the pleadings. Accepting, as we must, the truth of the allegations of Coshow's complaint, we conclude Coshow cannot state a cause of action for violations of fundamental constitutional rights or a violation of Penal Code section 374.8. Accordingly, we affirm the judgment.^FN2 FN2. We deny Coshow's request for judicial notice of (1) Blackstone, Commentaries on the Laws of England, vol. 1 (1765), pp. 125-130; and (2) a statement by the FDA regarding the use of fluoride in drinking water and drug products. FACTUAL AND PROCEDURAL BACKGROUND City operates a community water system serving about 130,000 people through nearly 25,000 service connections. In June 2001, City directed its staff to implement a fluoridation plan in compliance with the California Safe Drinking Water Act (SDWA) (Health & Saf.Code, ^FN3 § 116270 et seq.), which requires fluoridation of each public water system having at least 10,000 service connections. (§ 116410, subd. (a).) FN3. Statutory references are to the Health and Safety Code unless otherwise specified. In September 2001, Coshow filed a complaint for declaratory relief, alleging City's plan to fluoridate its water was unconstitutional and illegal because mass fluoridation of the water supply presents a reasonable certainty of harm to City's residents, including permanent dental scarring, genetic damage, cancer and other ailments. In a first amended complaint filed in December 2001, Coshow alleged a single cause of action for declaratory relief against City, challenging the constitutionality of fluoridating City's water supply and seeking a judicial determination as to whether City's decision to implement a fluoridation plan was constitutionally permissible. City demurred to the first amended complaint and the court sustained the demurrer with leave to amend. Coshow filed a second amended complaint in April 2002, adding the State of California as a defendant and seeking declaratory and injunctive relief as to the constitutionality of City's decision to fluoridate its drinking water. The court overruled City's demurrer in part and sustained it in part with leave to amend. In September 2002, Coshow filed a third amended complaint against City and the State of California, this time challenging the constitutionality of City's use of HFSA to fluoridate its water supply and alleging City violated his fundamental right “to preserve [his] health from such government-imposed practices as may prejudice or annoy it.” City answered the complaint and the State of California demurred. Based on Coshow's representation he was not making a facial challenge to the legislation mandating the fluoridation of City's drinking water, the court overruled the demurrer in part and sustained it in part, giving Coshow leave to amend to name the proper state agency involved, to clarify the nature of his claim against that entity and to specify the particular legislation involved. In October 2002, City submitted an application to Department to amend City's domestic water supply permit to begin fluoridation. While this lawsuit was pending, Department approved City's application. Department determined City's plan, including use of HFSA, complied with requirements of all applicable state drinking water laws and regulations. In January 2003, Coshow filed a fourth amended complaint, the relevant pleading here, again challenging the constitutionality of using contaminated, industrial-grade HFSA to fluoridate City's public water supply. As to City, Coshow sought a declaration that: (1) the implementation of City's fluoridation plan to use contaminated HFSA, without his informed consent, violates his fundamental rights under the state and federal Constitutions to be free from such government-imposed practices as may prejudice or annoy his health; and (2) the fluoride implementation contracts signed by City are illegal and void because they violate his constitutional rights. Coshow further alleged City's fluoridation plan violates Penal Code section 374.8 and is an illegal expenditure of public funds, warranting injunctive relief. As to Department, Coshow alleged its conduct in requiring, approving and permitting City to fluoridate its water with contaminated HFSA is illegal under Penal Code section 374.8 and unconstitutional as applied to the facts of this case. City and Department filed motions for summary adjudication of claims and summary judgment, primarily arguing City's fluoridation plan complied fully with the SDWA and its implementing regulations and thus, no triable issue of fact existed as to Coshow's claims. In his opposition, Coshow abandoned his earlier claim the City's plan would result in an excessive concentration of fluoride in the drinking water and instead claimed HFSA is hazardous waste because it contains trace levels of lead and arsenic, thereby making City's fluoridation plan illegal and harmful to the public health, and unconstitutional as an infringement of bodily integrity. The court denied City's and Department's motions. The parties then filed trial briefs and pre-trial motions, including numerous motions in limine. The court ruled on the parties' motions in limine, heard argument on Coshow's constitutional allegations and continued the trial. After receiving additional briefing on the constitutional issues, the court: (1) excluded evidence concerning Coshow's allegations that HFSA has not been approved by the FDA; (2) found the fourth amended complaint did not allege a claim under article I, section 1 of the California Constitution for violation of the right to privacy; and (3) denied Coshow's request for leave to amend. The court also found the only potential theories of constitutional liability were the alleged substantive due process violations as to “conduct which impacts a fundamental right (here, the right to be free from the introduction of an allegedly toxic substance, HFSA, into the municipal drinking water, i.e., toxic for reasons other than [ ] merely containing fluoride)....” Following that ruling, Coshow sought an order setting a hearing to address the state of trial evidence. Coshow attached exhibits, including copies of Department's final approval of City's application for a permit amendment to begin fluoridation, the permit amendment and Department's engineering report on City's application. The parties filed additional motions in limine as to the remaining constitutional issues, including City's motion to dismiss Coshow's constitutional claims and Department's motion to dismiss any claims under Penal Code section 374.8. The court issued an order construing City's and Department's motions as a motion for judgment on the pleadings and concluded as a matter of law that Coshow failed to state causes of action for declaratory or injunctive relief. DISCUSSION I The Court Properly Treated Motions in Limine as a Motion for Judgment on the Pleadings Coshow contends the court erred by granting judgment on the pleadings based on motions in limine filed by City and Department. He asserts Code of Civil Procedure section 1008 was the exclusive vehicle for reconsideration of issues previously decided on demurrer and summary judgment and there is no authority for the “irregular” procedure used here to obtain a dismissal of his claims through a motion in limine. A court's inherent powers to control litigation and conserve judicial resources authorize it to conduct hearings and formulate rules of procedure as justice may require. (Walker v. Superior Court (1991) 53 Cal.3d 257, 267-268, 279 Cal.Rptr. 576, 807 P.2d 418; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377, 5 Cal.Rptr.2d 882.) Exercising these powers, the court may enter judgment in favor of a defendant when motions in limine show that, “ ‘even if the plaintiff's allegations were proved, they would not establish a cause of action.’ ” (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 285, 54 Cal.Rptr.2d 655; see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 676-677, 78 Cal.Rptr.2d 225.) Here, the motions in limine, although directed at particular items of Coshow's evidence, had the cumulative effect of an objection to all evidence on the ground Coshow failed to state any cause of action, entitling City and Department to judgment as a matter of law. (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451-452, 238 Cal.Rptr. 339.) Although the court previously overruled City's and Department's demurrers and denied their motions for summary adjudication of claims and summary judgment, those rulings did not deprive the court of its inherent power to grant judgment on the pleadings if it believed Coshow's allegations, even if proved, would not establish a cause of action. Indeed, it is not uncommon that as a case proceeds to trial and additional discovery is conducted, evidence is revealed which will either substantiate or disprove a cause of action. Once the court here sustained various objections to Coshow's evidence, no viable cause of action remained. Thus, the court properly exercised its inherent powers over the proceedings by construing the motions in limine as a motion for judgment on the pleadings. (Lucas v. County of Los Angeles, supra, 47 Cal.App.4th at p. 285, 54 Cal.Rptr.2d 655.) Moreover, Code of Civil Procedure section 1008 governs a party's ability to renew a motion, not a court's inherent power to reconsider its rulings. (See People v. Castello (1998) 65 Cal.App.4th 1242, 1248, 77 Cal.Rptr.2d 314 [court's inherent powers are wide and include authority to rehear or reconsider rulings]; Gailing v. Rose, Klein & Marias (1996) 43 Cal.App.4th 1570, 1579, 51 Cal.Rptr.2d 381.) Indeed, a court has complete power to change its decision until judgment is entered. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181, 90 Cal.Rptr.2d 171; Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1237-1238, 58 Cal.Rptr.2d 217.) Contrary to Coshow's assertion, Code of Civil Procedure section 1008 did not prevent the court here from revisiting issues of law previously raised or from considering motions in limine as a basis to grant judgment on the pleadings. (See Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 204-205, 56 Cal.Rptr.2d 732 [Code of Civil Procedure section 1008 is inapplicable if issue of law is the same but motion is different].) II Standard of Review Judgment on the pleadings is similar to a demurrer and is properly granted when the “complaint does not state facts sufficient to constitute a cause of action against [the] defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii); Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254, 2 Cal.Rptr.3d 739; Rolfe v. California Transportation Com. (2002) 104 Cal.App.4th 239, 242, 127 Cal.Rptr.2d 871.) The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. (Code Civ. Proc., § 438, subd. (d).) The trial court accepts as true all material facts properly pleaded but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts which are judicially noticed. (Shea Homes Limited Partnership v. County of Alameda, supra, 110 Cal.App.4th at p. 1254, 2 Cal.Rptr.3d 739.) We independently review the trial court's ruling on a motion for judgment on the pleadings to determine whether the complaint states a cause of action. In so doing, we accept as true the plaintiff's factual allegations and construe them liberally. (Rolfe v. California Transportation Com., supra, 104 Cal.App.4th at pp. 242-243, 127 Cal.Rptr.2d 871.) If a judgment on the pleadings is correct upon any theory of law applicable to the case, we will affirm it regardless of the considerations used by the trial court to reach its conclusion. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216, 70 Cal.Rptr.2d 745.) III Coshow Cannot State a Cause of Action for Declaratory or Injunctive Relief Based on a Violation of a Fundamental Constitutional Right Coshow contends he stated a cause of action for violation of a fundamental constitutional right by alleging City's conduct of dumping dangerous levels of arsenic into the public water supply severely and negatively impacts his bodily integrity and that of every other citizen served by City's water supply. He asserts he is being forced, without his consent, to drink the municipal water containing a drug-HFSA-that has never been tested or approved by the FDA to treat dental caries and which is dangerous to his health and the health of other residents.^FN4 FN4. Coshow also contends the court erred by finding he had no standing to seek declaratory and injunctive relief under Code of Civil Procedure sections 526a and 1060. However, the record shows the trial court did not base its ruling on lack of standing to challenge the constitutionality of government conduct, but rather on the ground Coshow's fourth amended complaint failed to state causes of action for declaratory or injunctive relief based on a violation of a fundamental constitutional right. In any event, because we address the merits of Coshow's constitutional challenge, we need not decide the issue of standing. A The Safe Drinking Water Act and Its Implementing Regulations Congress enacted the Safe Drinking Water Act (federal SDWA) (42 U.S.C., § 300f et seq.) in 1974 to establish uniform quality standards for the public water systems in the United States and to reduce contamination in drinking water. The federal SDWA prohibits states from enacting drinking water laws less stringent than those established by the Environmental Protection Agency (EPA). (42 U.S.C., § 300g.) In 1976, the Legislature enacted California's SDWA, declaring water delivered by public water systems in this state should be at all times pure, wholesome and potable, and adopting procedures to be followed in an effort to accomplish this objective. (Stats.1976, ch. 1087, § 2.5, pp. 4918-4929, adding former § 4010 et seq., currently codified in § 116270 et seq.; see Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 268, 115 Cal.Rptr.2d 874, 38 P.3d 1098; Paredes v. County of Fresno (1988) 203 Cal.App.3d 1, 5, 249 Cal.Rptr. 593.) The SDWA was meant to reduce to the lowest level feasible all concentrations of toxic chemicals in drinking water that may cause cancer, birth defects and other chronic diseases. (§ 116270, subd. (d).) In this regard, the SDWA “establishes standards at least as stringent as the federal SDWA and is intended to be ‘more protective of public health’ than the minimum federal standards.” (Hartwell Corp. v. Superior Court, supra, 27 Cal.4th at p. 268, 115 Cal.Rptr.2d 874, 38 P.3d 1098, citing §§ 116270, subd. (f), 116325.) Because the SDWA is a remedial act intended to protect the public from contamination of its drinking water, we are required to construe it broadly to accomplish its protective purpose. (Western States Petroleum Assn. v. State. Dept. of Health Services (2002) 99 Cal.App.4th 999, 1008, 122 Cal.Rptr.2d 117.) In the SDWA, the Legislature delegated to Department “the initial and primary authority, and the corresponding responsibility, for establishing drinking water standards. (§§ 116270, subd. (g), 116275, subds. (c) & (d); see also § 116610, subds. (c) & (d).) Courts must respect this primary delegation of authority.” (Western States Petroleum Assn. v. State. Dept. of Health Services, supra, 99 Cal.App.4th at p. 1008, 122 Cal.Rptr.2d 117.) One of Department's responsibilities under the SDWA is to establish “primary drinking water standards that include the maximum levels of contaminants which, in [its] judgment, may have an adverse effect on the health of persons.” (Id. at p. 1002, 122 Cal.Rptr.2d 117, citing §§ 116275, subd. (b), 116365.) Department is also responsible for reviewing and revising public health goals for contaminants in drinking water, including preparing health risk assessments for any contaminants deemed carcinogenic or acutely toxic. (§§ 116360, 116365, 116375.) With respect to acutely toxic substances, the maximum contaminant level (MCL) is set at a level that will avoid any known or anticipated adverse effects on public health with an adequate margin of safety. (§ 116365, subd. (a)(1).) With respect to carcinogens, the MCL is set at a level that will avoid any risk to public health. (§ 116365, subd. (a)(2); see also Cal.Code Regs., tit. 22, §§ 64431 [MCL for inorganic chemicals], 64444 [MCL for organic chemicals].) City is required to ensure its public water system complies with the primary and secondary drinking water standards established by Department. (§ 116555, subd. (a)(1).) To ensure these standards are met, the SDWA provides comprehensive administrative procedures for the issuance of permits to operate public water systems (§§ 116525-116580), regulation of the quality of the water supply (§§ 116325-116395), enforcement of regulations and correction of violations (§§ 116625-116655), judicial review (§ 116700) and imposition of civil and criminal penalties (§§ 116725, 116730). Effective September 29, 1996, section 116410 was added to the SDWA, requiring public water systems with at least 10,000 service connections to be fluoridated “to promote the public health of Californians of all ages through the protection and maintenance of dental health, a paramount issue of statewide concern.” (§ 116410, subd. (a).) This provision requires Department to adopt regulations mandating the fluoridation of public water systems. (Ibid.) ^FN5 The SDWA also prescribes the administrative procedure to be followed when a public water system intends to fluoridate its drinking water, including an application to amend the water system's existing permit (§ 116550, subd. (a)), investigation of the proposed plan by Department (§ 116535), a public hearing on the application (§ 116545) and Department's denial or issuance of a permit amendment, including any conditions necessary to assure pure, wholesome water that does not endanger the health of consumers (§ 116540). FN5. These regulations, adopted by City and other public water systems, are contained in California Code of Regulations, title 22, section 64433.3 et seq. Although fluoridation has been and continues to be a controversial issue, “[c]ourts through[out] the United States have uniformly held that fluoridation of water is a reasonable and proper exercise of the police power in the interest of public health. [Citations.] The matter is no longer an open question.” (Beck v. City Council of Beverly Hills (1973) 30 Cal.App.3d 112, 115, 106 Cal.Rptr. 163; see also deAryan v. Butler (1953) 119 Cal.App.2d 674, 682, 260 P.2d 98 [addition of fluoride to water supply, as directed by resolution of city council, was valid exercise of police power of City of San Diego].) The manner of fluoridation, challenged by Coshow in this case, is also prescribed by the SDWA and its implementing regulations, which mandate the concentration of fluoride in drinking water supplied to the public. (§ 116410, subds.(a), (b)(1) & (2).) For example, the regulations adopted by Department set forth the optimal fluoride levels based on daily air temperatures (Cal.Code Regs., tit. 22, § 64433.2), the MCL's for inorganic chemicals such as fluoride and arsenic (Cal.Code Regs., tit. 22, § 64431, subd. (a)), and the detection limits for purposes of reporting contaminants such as lead (Cal.Code Regs., tit. 22, § 64678, subd. (a)). Additionally, the regulations contain extensive monitoring and compliance requirements (Cal.Code Regs., tit. 22, § 64433.3) and impose stringent record-keeping, reporting and notification requirements for fluoridating water systems (Cal.Code Regs., tit. 22, § 64433.7). Although the SDWA and its implementing regulations provide specific mechanisms to ensure the drinking water is safe for all consumers, including City's residents, the water need not be completely free of contaminants for which there are MCL's and detection limits. “While pure water is an objective of the state, statutory and regulatory standards do not require that water be entirely pure; and few, if any, water supplies are entirely clear of a broad range of contaminants. (See Cal.Code Regs., tit. 22, §§ 64444, 64449, 64450.)” (Western States Petroleum Assn. v. State. Dept. of Health Services, supra, 99 Cal.App.4th at p. 1015, 122 Cal.Rptr.2d 117.) Before a particular chemical is added to drinking water as part of the treatment process, it must first be tested and certified as meeting the specifications of the American National Standard Institute/National Sanitation Foundation Standard 60 (ANSI/NSF 60). (Cal.Code Regs., tit. 22, § 64700, subd. (a).) HFSA meets this standard as an approved chemical additive under the regulations, and Coshow does not claim otherwise. (See Commonwealth of PA., Dept. of Env. Res. v. Bierman (1976) 23 Pa.Cmwlth. 646, 354 A.2d 48, 50-51 [use of HFSA to fluoridate public water supply was not “prejudicial to public health”].) Thus, the statutory and regulatory schemes allow fluoridating agents, including HFSA, to contain contaminants (such as arsenic and lead) as long as those agents comply with MCL's and detection limits. B City's Choice of HFSA as a Fluoridation Agent is a Legislative Function Coshow does not challenge Department's broad statutory authority, mandated by express legislative directive, to choose a method for fluoridation or to determine the level of contamination in City's drinking water. (See Western States Petroleum Assn. v. State. Dept. of Health Services, supra, 99 Cal.App.4th at p. 1011, 122 Cal.Rptr.2d 117 [if the maximum contaminant level set by Department is not arbitrary and capricious, it is not inconsistent with Department's statutory authority].) Instead, Coshow contends he was entitled to a declaratory judgment that City's admitted conduct of “discharging arsenic into the water,” through the use of HFSA as required and approved by Department, violates his fundamental constitutional rights. Regardless of how Coshow frames his argument, his objection is, in essence, to the particular chemical chosen to comply with the legislatively mandated fluoridation plan. ^FN6 However, that choice necessarily involved a determination and weighing of facts and policies pertaining to fluoridation of water supplies. “This is a distinctively legislative process, and a court does not have the authority to exercise its independent judgment with respect to the performance of legislative functions.” (Western States Petroleum Assn. v. State. Dept. of Health Services, supra, 99 Cal.App.4th at p. 1007, 122 Cal.Rptr.2d 117; see also Hughes v. City of Lincoln (1965) 232 Cal.App.2d 741, 747, 43 Cal.Rptr. 306 [decision to fluoridate is legislative rather than administrative].) FN6. Indeed, this is shown in Coshow's opposition to City's and Department's motions in limine to dismiss claims, where he argued HFSA “is extremely dangerous as being harmful to health and there are safe and effective alternatives in the form of [s]odium [f]luoride available at the same cost ... but without the same harmful invasion of one's bodily integrity.” The SDWA itself empowers Department to approve methods of fluoridation. (§ 116410, subd. (a).) Department's selection of a particular tested and certified fluoridation chemical is made in the context of a comprehensive and highly regulated statutory scheme with a goal of providing pure, wholesome and potable water. Water quality standards are the product of Department study and expertise. (Hartwell Corp. v. Superior Court, supra, 27 Cal.4th at p. 271, 115 Cal.Rptr.2d 874, 38 P.3d 1098.) We cannot reweigh the various considerations, guided by stringent regulations, which led to Department's choice of HFSA and to City's approval of that choice. The record shows Coshow sued City in September 2001 after it directed its staff to implement a fluoridation plan in compliance with the SDWA but before City applied to Department for a permit to begin fluoridation. Coshow initially challenged the constitutionality of fluoridation in general, but when unsuccessful on that ground, Coshow's lawsuit evolved into a challenge to the particular fluoridation chemical used (HFSA). At no time before the issuance of the permit in July 2004 did Coshow voice his concern about the dangers of using HFSA or request a hearing on City's permit application under section 116545 to investigate whether using HFSA would exceed the MCL's of any primary drinking water standard or public health goal, including those for arsenic and lead, under section 116365. Moreover, the record does not show Coshow submitted to Department, for its consideration in connection with City's application for a permit, any of the extensive information about the risks and dangers of HFSA that he alleged in, and attached as exhibits to, his fourth amended complaint. In light of the comprehensive procedures and remedies established by the SDWA to ensure public water systems deliver pure and safe water to their consumers, any challenge to the propriety of using HFSA to fluoridate the water should have been made at the administrative level. Coshow Cannot State a Claim for Violation of the Right to Privacy or Bodily Integrity In an attempt to state a cause of action for declaratory and injunctive relief based on a constitutional violation, Coshow characterizes City's fluoridation plan as “forced medication” with potential adverse consequences to human health, or with a chemical that has not been approved by the FDA for such medicinal purposes, thereby implicating his fundamental rights to bodily integrity and privacy under the Ninth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the California Constitution. He claims the right to be free from forced medication contaminated with arsenic is a fundamental one, requiring strict scrutiny review. 1. No fundamental constitutional right is involved here The guarantee of due process of law includes a substantive component which prohibits the government from infringing on certain “fundamental” liberty interests unless the infringement is narrowly tailored to serve a compelling state interest. (Washington v. Glucksberg (1997) 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772; Reno v. Flores (1993) 507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1.) An analysis of whether a fundamental right has been violated begins with a “careful description” of the asserted fundamental liberty interest because “ ‘the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’ ” (Reno v. Flores, supra, 507 U.S. at p. 302, 113 S.Ct. 1439; Washington v. Glucksberg, supra, 521 U.S. at p. 721, 117 S.Ct. 2258; Chavez v. Martinez (2003) 538 U.S. 760, 776, 123 S.Ct. 1994, 155 L.Ed.2d 984 [vague generalities, such as “ ‘the right not to be talked to,’ ” are insufficient].) Only rights “ ‘deeply rooted in this Nation's history and tradition’ ” and “ ‘implicit in the concept of ordered liberty’ ” are recognized as fundamental. (Washington v. Glucksberg, supra, 521 U.S. at p. 721, 117 S.Ct. 2258; Moore v. East Cleveland (1977) 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531.) In his fourth amended complaint, Coshow alleges City's use of HFSA to fluoridate the public drinking water violates his fundamental right “to preserve [his] health from such government-imposed practices as may prejudice or annoy it.” However, given this vague and general assertion of a fundamental liberty interest, we must heed the Supreme Court's advice against expanding “the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” (Collins v. Harker Heights (1992) 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261.) When we view the asserted right in the factual context of this case, it is evident Coshow is seeking to establish a right to public drinking water of a certain quality or, more specifically, a right to drinking water uncontaminated with HFSA. In determining whether this right is fundamental, we do not compare its “relative societal significance” to other public entitlements, nor do we consider whether public drinking water free of HFSA is as important a right as any other constitutionally protected right. (San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 33, 93 S.Ct. 1278, 36 L.Ed.2d 16.) Rather, we assess whether there is such a right “explicitly or implicitly guaranteed by the Constitution.” (Id. at pp. 33-34, 93 S.Ct. 1278.) We conclude no such fundamental right exists. The mere novelty of claiming a fundamental right to public drinking water free of HFSA is sufficient to create a doubt whether such a right is protected by substantive due process because it is not “ ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” (United States v. Salerno (1987) 481 U.S. 739, 750-751, 107 S.Ct. 2095, 95 L.Ed.2d 697; Reno v. Flores, supra, 507 U.S. at p. 303, 113 S.Ct. 1439.) The Legislature's deliberate choice to fluoridate the state's drinking water despite the presence of certain contaminants in the fluoridation process likewise compels the conclusion the right to drinking water free of HFSA is not a fundamental one explicitly or implicitly guaranteed by the Constitution. (Concerned Citizens of Nebraska v. U.S. Nuc. Reg. (8th Cir.1992) 970 F.2d 421, 426-427.) As we previously discussed, courts throughout the United States have uniformly upheld the constitutionality of adding fluoride to the public water supply as a reasonable and proper exercise of the police power in the interest of public health. (Beck v. City Council of Beverly Hills, supra, 30 Cal.App.3d at p. 115, 106 Cal.Rptr. 163.) No court has recognized a substantive due process claim entitling citizens to drinking water in a form more pure than that required by federal and state drinking water standards. There is no dispute the right to bodily integrity is a fundamental right which limits the traditional police powers of the state in the context of public health measures under the federal and state Constitutions. (Jacobson v. Massachusetts (1905) 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224; Conservatorship of Wendland (2001) 26 Cal.4th 519, 530, 110 Cal.Rptr.2d 412, 28 P.3d 151 [competent adult has the right to refuse medical treatment].) ^FN7 However, the right to bodily integrity is not coextensive with the right to be free from the introduction of an allegedly contaminated substance in the public drinking water. Neither the state nor federal Constitution guarantees a right to a healthful or contaminant-free environment. (Concerned Citizens of Nebraska v. U.S. Nuc. Reg., supra, 970 F.2d at pp. 426-427 [no fundamental right to be free of non-naturally occurring radiation]; In re Agent Orange Product Liability Litigation (E.D.N.Y.1979) 475 F.Supp. 928, 934 [no constitutional right to healthful environment based on spraying foliage with chemical agents]; Gasper v. Louisiana Stadium & Exposition District (E.D.La.1976) 418 F.Supp. 716, 721 [no fundamental right to breathe clean air free of tobacco smoke].) Although Coshow alleged he had a fundamental right to bodily integrity, there simply is no such right in the context of public drinking water.^FN8 In this regard, Coshow has identified no particular fundamental right which he claims City and Department have infringed by their approval and use of HFSA to fluoridate the drinking water. ^FN7. Contrary to Coshow's argument on appeal, the trial court did not conclude the right to bodily integrity is not a fundamental right. Rather, the court concluded Coshow alleged “a right to safe drinking water and/or a toxic-free environment,” which has not been recognized as a fundamental constitutional right. FN8. For similar reasons, Coshow's constitutional right to privacy is not at issue here. The cases on which Coshow relies, including Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, do not apply in the context of public drinking water. 2. Fluoridation using HFSA is not forced medication Coshow contends he is being forced, without his consent, to drink the municipal water containing a drug which has never been tested or approved by the FDA to treat dental caries and which is dangerous to his health and the health of other residents because of the high levels of arsenic in HFSA. He asserts the use of municipal water as the drug delivery system is forced medication in violation of his constitutional rights. “ ‘[A] competent adult has the right to refuse medical treatment, even treatment necessary to sustain life.’ ” ( In re Qawi (2004) 32 Cal.4th 1, 14, 7 Cal.Rptr.3d 780, 81 P.3d 224; Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. at p. 278, 110 S.Ct. 2841.) However, the right to be free from forced medication is not a fundamental constitutional right in the context of adding fluoride or other chemicals to public drinking water. City's use of HFSA to fluoridate its drinking water does not force Coshow to do anything. Fluoridation occurs before it enters each household and stops with the water faucet. The HFSA in the water is not directly introduced into Coshow's or other residents' bloodstreams. Because Coshow is not compelled to drink the fluoridated water, his freedom to choose not to ingest HFSA remains intact. (See Quiles v. City of Boynton Beach (Fla.App.2001) 802 So.2d 397, 399 [water fluoridation did not violate plaintiff's constitutional right to refuse medical treatment]; Kraus v. Cleveland (1955) 163 Ohio St. 559, 127 N.E.2d 609, 613 [fluoridation does not constitute mass medication].) Fluoridating public drinking water with approved chemicals (such as HFSA) is clearly distinguishable from the invasive and highly personalized medical treatments used in cases where the state sought to override a person's freedom to choose and where the Supreme Court has recognized a liberty interest in freedom from such unwanted medical treatment. (See Sell v. United States (2003) 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 [forced administration of antipsychotic drugs on criminal defendant]; Riggins v. Nevada (1992) 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 [same]; Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 [use of life-sustaining medical treatment for an individual unable to decline the treatment]; Jacobson v. Massachusetts, supra, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 [mandatory smallpox vaccination]; In re Qawi, supra, 32 Cal.4th 1, 7 Cal.Rptr.3d 780, 81 P.3d 224 [right to refuse antipsychotic medication].) Unlike cases that “involve the state's power to physically force ‘artificial life-support’ directly into the body of an individual claiming the right to refuse such treatment,” supplying fluoridated water using HFSA is not a medical procedure which is subject to constitutional protections. (Quiles v. City of Boynton Beach, supra, 802 So.2d at p. 399; Kraus v. Cleveland, supra, 127 N.E.2d at p. 613.) The statutes and regulations requiring fluoridation of public water supplies as a means of combating dental caries is a valid exercise of the state's police power with respect to public health. In this regard, chemicals, which in their concentrated or basic state may be poisonous, are often introduced into water for the purpose of purification or to protect and preserve health. (Beck v. City Council of Beverly Hills, supra, 30 Cal.App.3d at p. 115, 106 Cal.Rptr. 163.) When used in an extensively regulated fluoridation program which complies with the SDWA, Department ensures the type and amount of any chemicals introduced into the public water supply are not impure or dangerous to the public. (Ibid.) We presume Department will act properly and perform its duty to ensure “the condition of the water, as ultimately distributed, is one of purity and potability.” (Ibid.) Thus, introducing chemicals such as HFSA into the public drinking water does not constitute an infringement of the constitutional right of privacy to be free from forced medication.^FN9 FN9. Even if, as argued by Coshow, HFSA is a drug, we nevertheless conclude fluoridating public drinking water with HFSA is not forced medication. 3. Fluoridation with HFSA satisfies the rational basis test under due process principles “Generally, the constitutional guaranty of substantive due process protects against arbitrary legislative action; it requires legislation not to be ‘unreasonable, arbitrary or capricious' but to have ‘a real and substantial relation to the object sought to be attained.’ [Citation.] Thus, legislation does not violate substantive due process so long as it reasonably relates ‘to a proper legislative goal.’ ” (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125, 278 Cal.Rptr. 346, 805 P.2d 300; see also Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 [in the absence of a fundamental right, rational basis standard applies and legislation is presumed valid if state action is rationally related to legitimate state purpose].) Where, as here, the challenged action primarily concerns health and safety, no fundamental right to privacy is at stake. (Wilson v. California Health Facilities Com. (1980) 110 Cal.App.3d 317, 322, 167 Cal.Rptr. 801.) Consequently, when the state asserts important interests in safeguarding health, review is under the rational basis standard. (Ibid., citing Roe v. Wade, supra, 410 U.S. at pp. 163-165, 93 S.Ct. 705 [state may, without encroaching on any right of privacy, further its important interests in the areas of health and safety].) In the area of health and health care legislation, there is a presumption both of constitutional validity and that no violation of privacy has occurred. (People v. Privitera (1979) 23 Cal.3d 697, 707-709, 153 Cal.Rptr. 431, 591 P.2d 919; Wilson v. California Health Facilities Com., supra, 110 Cal.App.3d at p. 324, 167 Cal.Rptr. 801.) The actions of City and Department in fluoridating the public drinking water with HFSA are clearly mandated by the Legislature and permitted under the applicable regulations. Water fluoridation is integrally related to a strong state interest-public health-and the manner of accomplishing this objective is a cost-effective way of providing dental protection to residents. As we previously discussed, the type and amount of any chemical City intends to use to fluoridate its water must be approved by Department. (§ 116550, subd. (a).) Use of a particular chemical is prohibited unless it meets exacting standards and specifications. (Cal.Code Regs., tit. 22, § 64700.) Department is required to investigate City's fluoridation plan to ensure the provision of pure, wholesome water that does not endanger the health of consumers. In this regard, City's use of HFSA, which meets required standards and specifications, is rationally related to the statutory objective of protecting dental health through the fluoridation of drinking water. Coshow's disagreement with City's choice of an approved fluoridating agent does not render that choice constitutionally defective. IV The Court Properly Excluded Evidence that HFSA is a Drug Not Approved by the FDA to Treat or Prevent Dental Caries In his fourth amended complaint, Coshow alleged HFSA has never been evaluated and approved by the FDA for safety and effectiveness in reducing tooth decay. The court granted City's and Department's in limine motions to exclude evidence concerning lack of FDA approval of HFSA on the ground it was irrelevant. Coshow contends the court should have considered this evidence in determining whether use of HFSA, viewed under the strict scrutiny test, violated his fundamental constitutional rights. As we previously concluded, no fundamental constitutional right was implicated by City's use of HFSA, as approved by Department, and thus no strict scrutiny analysis was required. In any event, whether HFSA received FDA approval for purposes of treating dental caries was not relevant to Coshow's claim City's fluoridation plan is illegal and harmful to the public health, and unconstitutional as an infringement of privacy and bodily integrity. The FDA, in its oversight of food, drugs and cosmetics, regulates fluoride as an anticaries drug in a variety of over-the-counter products such as toothpastes, gels and rinses. (21 C.F.R., §§ 355.1, 355.3 (2005).) In this capacity, the FDA establishes the types of fluoride compounds and their concentrations that may be used in products (21 C.F.R., § 355.10) as well as packaging and labeling requirements (21 C.F.R., §§ 355.20, 355.50, 355.55, 355.60). The FDA's approval of fluoride compounds is limited to fluoridated products in forms “suitable for topical administration to the teeth....” (21 C.F.R., § 355.1.) The FDA also regulates fluoride in bottled water,^FN10 which may optionally contain fluoride added within certain established limitations. (21 C.F.R., § 165.110, subds. (a)(1) & (b)(4)(ii).) The FDA's authority over food, drugs and cosmetics, including its regulation of fluoride in various products, does not extend to public supplies of drinking water. FN10. “Bottled water is water that is intended for human consumption and that is sealed in bottles or other containers with no added ingredients except that it may optionally contain safe and suitable antimicrobial agents.” (21 C.F.R. § 165.110, subd. (a)(1) (2005).) The legislative goal of the SDWA to provide California's citizens with pure and safe drinking water requires Department to adopt standards for contaminants in drinking water no less stringent than those adopted by the EPA. To ensure these standards, the Office of Environmental Health Hazard Assessment must prepare and publish an assessment of the risks to public health posed by each contaminant, including arsenic, for which Department proposes a primary drinking water standard. (§§ 116361, 116365, subd. (c)(1).) Nothing in the comprehensive statutory and regulatory scheme of the SDWA requires a risk assessment of contaminants by the FDA or FDA approval of any chemical added to the public drinking water. Thus, the court properly excluded this evidence as irrelevant. V City's Use of HFSA, as Approved by Department, Was Not an Illegal Expenditure of Public Funds In his fourth amended complaint, Coshow unsuccessfully sought injunctive relief against City on the ground its use of HFSA to fluoridate the drinking water is an illegal expenditure of public funds because it violates Penal Code section 374.8. That statute creates criminal penalties for any person who knowingly causes any hazardous substance to be deposited into the waters of the state. (Pen.Code, § 374.8, subd. (b).) Under Code of Civil Procedure section 526a, a taxpayer may challenge wasteful or illegal government action that otherwise would go unchallenged because of standing requirements. (Vasquez v. State of California, supra, 105 Cal.App.4th at p. 854, 129 Cal.Rptr.2d 701.) To state a claim, the taxpayer must allege specific facts and reasons for the belief the expenditure of public funds sought to be enjoined is illegal. “ ‘General allegations, innuendo, and legal conclusions are not sufficient....’ ” (Ibid.) A cause of action under Code of Civil Procedure section 526a will not lie where the challenged governmental conduct is legal. (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027, 46 Cal.Rptr.2d 177.) Conduct in accordance with regulatory standards “is a perfectly legal activity.” (Machado v. State Water Resources Bd. (2001) 90 Cal.App.4th 720, 729, 109 Cal.Rptr.2d 116.) Further, a taxpayer is not entitled to injunctive relief under Code of Civil Procedure section 526a where the real issue is a disagreement with the manner in which government has chosen to address a problem because a successful claim requires more than “an alleged mistake by public officials in matters involving the exercise of judgment or wide discretion.” (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1138, 232 Cal.Rptr. 814, 729 P.2d 80.) Here, City's exercise of its police power to fluoridate the water using HFSA cannot constitute illegal conduct. City is required by law to fluoridate its water system (§ 116409) and can do so only after Department investigates the fluoridation plan and approves an amendment to City's permit (§§ 116525-116550). City's fluoridation plan must meet MCL's and other water quality standards established by Department under the SDWA. (§ 116555.) If Department determines these standards have been met, City's fluoridation plan will have complied with state law governing the use of a particular chemical in the fluoridation of the public water system. Because Department approved City's use of HFSA to fluoridate its water supply, no illegal conduct occurred and thus, there was no illegal expenditure of public funds under Penal Code section 374.8.^FN11 FN11. Having independently reviewed the trial court's ruling granting City's and Department's motions for judgment on the pleadings, we need not address Coshow's contention the court's factual findings are unsupported by the evidence and were improperly applied to grant the motion. (Schabarum v. California Legislature, supra, 60 Cal.App.4th at pp. 1216-1217, 70 Cal.Rptr.2d 745 [reviewing court conducts appropriate analysis regarding judgment on the pleadings and need not defer to trial court; court's dismissal may be upheld even if motion granted for wrong reason].) DISPOSITION The judgment is affirmed. WE CONCUR: McCONNELL, P.J., and IRION, J.

+/- City Commission of City of Fort Pierce v. State ex rel. Altenhoff

Florida, Abuse of Municipal Authority, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, State police power

• Plaintiff
  City Commission of City of Fort Pierce
• Defendant
  State ex rel. Altenhoff
• State
  Florida
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations

  - State police power
• Citation
  143 So.2d 879 (Fla. Dist. Ct. App. 1962)
• Year
  1962-00-00T00:00:00
• Court Name
  District Court of Appeals of Florida, Second District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Allen
• Opinion Text
  ALLEN, Acting Chief Judge. Injunctive relief was sought below by the relator, John Altenhoff, appellee in this court, to restrain the City Commission of the City of Fort Pierce, Florida, respondent below, appellant here, from implementing a municipal ordinance directing the City Manager of the City of Fort Pierce to provide for the introduction of fluoride into the water supply of said city as directed by the State Board of Health. The complaint alleged that, under the ordinance, respondent ‘determined to cause the public water supply produced by the said City and furnished to the relator and the citizens of said City and others, to be impregnated with sodium fluoride in the ratio of one part sodium fluorido to one million parts of water, or more, the same being the type of fluoride and the ratio of impregnation directed by the said State Board of Health and referred to in said ordinance.’ The complaint further alleged that the above described fluoridation of the water supply constitutes a nuisance under § 823.01, F.S.A.; that it is injurious to the health of those citizens supplied by the water system, particularly relator and his family; that the ingestion of fluoride from the water supply is cumulative and productive of fluoride poisoning and intoxication which are fatal to persons afficted with diabetes, nephritis or glandular diseases; and that sodium fluoride is an insidious poison generally injurious to the health of the citizenry. It was also alleged that fluoridation of the water system would cause irreparable injury to those members of the public dependent upon it for water, for which there would be no adequate remedy at law. It was further alleged that fluoridation of the water system, amounting to mass medication, violates the rights of the citizens guaranteed by §§ 1 and 5 of the Declaration of Rights, F.S.A.; that the ordinance (# E44) providing for fluoridation is void as an unlawful delegation of the authority delegated to the City by the Legislature in that it vests in the City Manager and/or the State Board of Health an arbitrary discretion; that the ordinance exceeds the powers granted to the City in its charter, Chap. 57-1331, Laws of Florida, 1957 (Spec.Acts), in that fluoridation is not purification but pollution of the water supply; that there has been no lawful appropriation of funds to purchase the equipment provided for in the ordinance; and that the ordinance ‘is violative of the constitutional guarantee against Class Legislation in that its proponents only claim it is beneficial to children of the age group of one to fourteen years; yet the mass medication must be consumed by the remaining 86% of the population regardless of the detriment to this large percent of the population of said City.’ The complaint then prayed for both a temporary and permanent injunction restraining the respondent from fluoridating the water supply and purchasing any equipment designed to accomplish that end. Respondent's motion to dismiss was denied, whereupon an answer was filed denying the material allegations of the complaint and averring that ‘the preservation of health and safety of the people in a community is of prime importance in the exercise of the police power of said City, and that said ordinance E-44 is designed to promote the health and welfare of the citizens * * * dependent upon the water supply furnished to them by the said City.’ Paragraph 8 of the answer was stricken on relator's motion, but with leave to amend, and as amended reads in part as follows: ‘1.-Further answering said Complaint this Respondent avers that public hearings were had before the Commission of the City of Fort Pierce, Florida on March 30, 1959 and April 2, 1959 and at said hearings the opponents and proponents to the fluoridation of the public water supply of the City of Fort Pierce presented evidence and arguments in support of their position; excerpts from the minutes of the said meetings of the City Commission of the City of Fort Pierce are hereto attached and by reference made a part hereof; that subsequent to said hearings, that is, on December 7, 1959, Ordinance E-44 was duly adopted by the City Commission of the City of Fort Pierce. ‘2.-That the St. Lucie County Health Department being an agency of the State Board of Health, is employed by the Respondent as its health inspectors and officers; that the St. Lucie County Health Department is under the direction and supervision of Dr. Neill Miller, a deputy State Board of Health Officer; that the Florida State Board of Health has broad concern for all conditions which affect the health of the citizens of the State of Florida and has formulated general policies affecting the public health of the State of Florida; that under the general direction of the State Board of Health the State Health Officer is required to enforce rules and regulations relating to the general health of the people of the State of Florida and to cooperate with other appropriate state, county, municipal and private boards, departments or organizations for the improvement and preservation of the public health in supervising services which affect the health of the community as a whole. That the Florida State Board of Health, after a public hearing held on August 20, 1955 to allow both the opponents and proponents to present any new-or to reevaluate any old-scientific evidence which might have a bearing on the desirability, effectiveness or safety of the fluoridation of the public water supplies, determined, authorized and recommended that the fluoridation of the public water supply was an urgent need for the improvement of dental health and for the control of dental caries; that this Respondent has complied with all of the policies and regulations of the State Board of Health for the fluoridation of its public water supply; that the fluoride content to be applied to its public water supply will not exceed 1.1 parts per million gallons of water which said fluoride will be impregnated into the public water supply under the supervision and direction of the State Board of Health through employees and servants of the Respondent.’ Thereafter, the parties jointly filed a stipulated statement of the facts which the lower court approved in its pretrial order and which he ruled would control the subsequent course of the cause unless modified during trial to prevent manifest injustice. Said fact statement reads: ‘It is stipulated and agreed by and between counsel for the respective parties to the following statement of facts to be submitted to the Court for its consideration in the determination of the above entitled cause, to-wit: ‘1. That the form of fluoride intended to be used by the City in its fluoridation of the water supply is Sodium Fluoride or some other type of fluoride chemical preparation approved by the State Board of Health, hereinafter referred to as fluoride. ‘2. That Fluoride is not a purifying agent when put in a water supply or thereafter. ‘3. That the sole purpose of fluoridation of the City's water supply is to reduce the number of caries, or cavities, in the teeth of individuals from birth to age seventeen, with a residual benefit to those persons throughout life, by drinking the fluoridated water. ‘4. The percentage of distribution of fluoride in the City's water supply in different parts of the City can be checked, either in the lines or at point of consumer use or the entire system at any time so required. ‘5. That the Florida State Board of Health is in no sense under the control of or subject to the orders of the City Commission of the City of Fort Pierce but that the City of Fort Pierce is subject in some respects to orders by the State Board of Health in the operation of its water supply system. ‘6. That the incumbent City of Fort Pierce City Manager is not a physician, chemist or pharmacist. ‘7. That there has been a determination of the percentage of fluoride in the present water supply and the information is available at the Bureau of Dental Health and the Bureau of Sanitary Engineering, Florida State Board of Health, Jacksonville, Florida. ‘8. That the amount of water used for drinking purposes from the City's water supply is very low and not more than two percent. ‘9. That the cost of equipment necessary for fluoridation of the City's water supply will be approximately $9,000.00 and that the annual cost of the Fluoride to be placed in the water supply will be in excess of $3,000.00; that the City's water supply is between two and four million gallons per day.’ Each party filed a motion for summary decree. In opposition to the motion filed by respondent, the attorney for relator filed the following affidavit: ‘Comes now E. O. DENISON, as Attorney for the Relator herein, JOHN ALTENHOFF, and makes this affidavit for and on behalf of said Relator and Plaintiff, and after being duly sworn, by me, the undersigned authority, deposes and says: ‘1. That the allegations of Paragraph 7 of the Respondents' Motion for Summary Decree is denied. ‘2. That the fluoridation of the water supply of the City of Fort Pierce is not for the general welfare and health of the community, but on the contrary, is for the purpose of retarding the prevalence of dental caries in the teeth of minors up to and including the age of fourteen years who imbibe the City's water supply if and after the same has been flurinated (sic), and that the percentage of the population of said City designed to be benefitted is but a small portion, thereof, i. e. less than 20%, and is not for the benefit of the general welfare and/or health of the people of the City of Fort Pierce. ‘3. That the fluoridation of the City's water supply is an illegal and ultravires exercise of the powers delegated to the City of Fort Pierce by the Legislature of the State of Florida under its police powers, or otherwise. ‘4. Depondent further denies that the purported official policies of the State Board of Health attached to and by reference made a part of Respondents' Motion, are not the current policies of said State Board of Health with reference to the fluoridation of public water supplies, but on the contrary, are antiquated and obsolete and not in conformity with the current medical dental and surgical opinion concerning the harm and benefit derived and/or suffered by the public as a result of the fluoridation of a public water supply in the proportion specified in said ‘policy’ i. e., one part per million Sodium Fluoride to water, and that material issues in this cause are raised an must be determined on the points herein stated.' The lower court granted relator's motion and entered a summary final decree granting the injunctive relief sought. Significant protions of the chancellor's opinion incorporated therein are set forth as follows: ‘* * * Each side has filed a Motion for Summary Decree and each claims the right to a Summary Decree as a matter of law only, based solely on the Complaint, Answer as amended, and Stipulation, so that a granting of one motion necessarily denies the other-without consideration of whether the other is well founded from procedural points of view.’ (Emphasis ours.) ‘The Court has heard lengthy argument by able counsel for each side, and also by counsel for the State Board of Health who appeared, with consent of the Court, as amicus curiae. Voluminous authority and a multitude of citations have been submitted. ‘Because of the grave importance of this litigation to the inhabitants of the City and also to those charged with administrative affairs of the Municipal Corporation, the Court feels it is within the bounds of propriety to set forth some observations. ‘This case is one of original impression in the State of Florida. Only a few of the sister States have passed on the question of fluoridation and they have only begun to scratch the surface in answering all the questions posed by the subject, and none is of any great benefit in answering the immediate problem before this Court. The immediate problem before this Court is only indirectly connected with the pros and cons of fluoridating public supplies of water and counsel have kindly furnished for the edification of the Court a mountain of authentic printed material, pro and con, on the subject of fluoridation. A perusal thereof shows it to be very conflicting and leads to two conclusions; first, that any trial on the merits of fluoridation brings forth greatly conflicting evidence and, second, that medical science must be relied upon to find the ultimate soultion. ‘As to the advisability of fluoridating water, it is of no consequence or improtance whether the Court personally approves or disapproves of fluoridation. The only question to be determined here is of a purely legal and constitutional origin and the question will so be dealt with, and only from that standpoint. The Supreme Court of the State of Washington, ([ Kaul v. City of Chehalis, 45 Wash.2d 616,] 277 P.2d 352) in discussing the decision of the trial court in the Shreveport, Louisiana fluoridation case ([ Chapman et al. v. City of Shreveport, 225 La. 859] 74 So.2d 142) made this rather unusual statement: ‘The trial Judge subtly adopts the arguments of the scientific opponents of fluoridation. Although the relevancy of that question is denied on one hand, it is nurtured on the other.’ ‘Any ‘nurturing’ on the part of this Court in behalf of either proponents or opponents of fluoridation is purely accidental and committed unconsciously. ‘The proposition presented by Relator's Motion for Summary Judgment is: ‘Has the State of Florida, by existing law, granted power to the City of Fort Pierce to fluordate its public water supply?’ ‘The question is both serious and troublesome. ‘The Court is not here confronted with the question of whether the State can authorize the fluoridation of the public water supply, but whether the State has, expressly or by implication, granted this power to the City of Fort Pierce. This Court is not called upon, nor can it, in answering this question, pass on the desirability and justification of fluoridating the public water supply. ‘The legislature of the State of Florida has enacted no statute expressly authorizing fluoridation. Therefore, the power of the City to fluoridate must be implied. ‘The Constitution of Florida by Article VIII, Section 8, provides: “The legislature shall have power to establish and to abolish, municipalities to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time * * *.' (Emphasis supplied). ‘it is a recognized and established principle of law that municipalities are purely creatures of the legislative branch of the Government. The following from 23 Florida Jurisprudence under the general heading Municipal Corporations is indicative of this principle: ‘Page 23. ‘In exercising certain public functions at the local level, a municipality is to that extent exercising State functions for the benefit of the public in the local community. A municipality derives all of its powers, duties and its very existence from the State, acting through its legislative body.’ ‘Page 146. ‘The immediate source of a municipal corporation's police power is the special act of the legislature establishing its charter, the general laws specifying the powers and authority of municipalities, and the implied grant of power in its charter and the general laws. “The principe that grants of power are to be strictly construed is applicable to grants of police power. Consequently it is a well settled principle that any fair, reasonable doubt concerning the existence of police power will be resolved by Courts against the municipal corporation and the power will be denied. “The police power of municipalities exists solely by virtue of such (statutory and constitutional) grant. ‘Page 112. ‘So far as their (ordinances) constitutional validity is concerned, they are considered in the same light as laws of the State and must conform to the Supreme organic law in every respect.’ ‘The Town of Fort Pierce was originally incorporated under the general law on February 2, 1901. This incorporation was validated by the legislature by Chapter 5100, Acts of 1901, and in later years the City has been reincorporated, or received a new Charter, at various times and the present charter, Chapter 57-1331 Acts of 1957, was adopted at a referendum election held December 3, 1957. Amendments enacted by the 1959 session are of no concern here. “The Constitution empowers the legislature to create a municipality by special act. The municipality is powerless to act unless such a special act gives it authority to do so. The paramount law of a municipality so created is the municipal charter. It is the municipality's constitution enumerating and giving it all the powers it possesses, unless other statutes are applicable to it.' 23 Fla.Jur. 41. ‘Section 142 of the Charter provides that the City is authorized to procure and distribute; “* * * An abundant supply of good wholesome water * * *.' ‘Also in section 14(34-a) under the heading ‘Police Powers' the City if granted the power and authority ‘as provided by law’ (emphasis added): “To exercise all of the powers of local self-government and to do whatever may be deemed necessary or proper for the safety, health, convenience or general welfare of the inhabitants of the City; to exercise full police powers to do and perform all acts and things permitted by the laws of the State of Florida, and comprehended as duties in the performance of anything recognized as a ‘municipal purpose’, whether now existing and recognized, or hereby recognized as a municipal purpose by statute, law or court decision.' ‘Therein, within the bounds of the last three above quoted statements and within the further bounds of any and all reasonable, rational, honest and legal implications which may be drawn therefrom, must be found the answer. “The legislative intent is the polar star by which the Courts must be guided since it is the essence and vital force behind the law and the ruls of statutory construction are the means whereby the Courts seek to determine this intent when it is not clear. 30 Fla.Jur. 173. “It is not a question of supplying or deleting words or distorting and analyzing phrases to see what the legislature had in mind.  The problem is to arrive at the legislative intent from the content of the Act as is.   Overman v. State Board of Control, et al., Fla., 62 So.2d 696.' ‘Persuasive authority from other jurisdictions has been examined without conclusive result. As stated above, few of the sister States have passed on the question of fluoridation, and in most cases it has been upheld for a variety of reasons. However, in none of the cases, or combinations thereof, can an answer be found to the question before this Court, since a careful examination of each will reveal a different factual and legal situation when analyzed and compared with the problem presented here. ‘No authority has been cited and the Court has found none which gives the State Board of Health independenty authority to fluoridate the water supply of the City; and it should be remarked in passing that the State Board of Health claims none. ‘The Court takes judicial notice that a public water supply is not fluoridated in order to filter the water, or purify it, or to make it more abundant, potable or wholesome. ‘The Court conceives fluoridation of the public water supply to be for the direct benefit of a limited percentage of the population; and in this respect fluoridation is unlike emergency health measures such as compulsory vaccination or compulsory detention and enfodrced treatment for veneral disease, both of which are not only for the benefit of the individual but the general populace as well. An individual with dental caries is not directly, or indirectly, a menace or hazard to the community or to other individuals. Dental caries is neither infectious or contagious and when the water is fluoridated the individual alone receives the direct benefit. ‘It is true that any direct benefit to one is indirectly a benefit to all; but how far the indirect benefit reaches, or to what extent it is limited, is not to be decided here. ‘Any scheme, plan or legislation to preserve and protect health, whether on a mass basis or not, is both laudable and desirable-and in modern society needed, if for no other reason than to reduce the cost of medical service-provided there is no violation of organic law. ‘But to the Court it is no more reasonable to imply, from the passages quoted above, a grant of power to the City to fluoridate its water supply than it would be to imply, from these same passages, a grant of power to the City to require all children between the ages of six to sixteen to report periodically to a public health agency for individual fluoride treatment. Admittedly, the one situation is both ridiculous and unreasonable; but unreasonable also is the other, when examined under the light of organic law. ‘Speculation, guesswork and conjecture have no part in statutory interpretation, and fair, reasonable doubts concerning the existence of police power must always be resolved against a municipality. ‘The City Commissioners of the City of Fort Pierce, Florida, and their successors in office, are hereby permanently enjoined from taking any further action or doing any other thing wherein or whereby said Ordinance E-44, or amendments thereto or reenactments thereof, may or might be effectuated; unless and until duly enacted power and authority so to do is granted by the Legislature of the State of Florida.’ In ruling on and granting the relator's motion for summary decree, the lower court determined that the question before it was ‘Has the State of Florida, by existing law, granted power to the City of Fort Pierce to fluoridate its water supply?’ This then is the only question before this court in this appeal, although the parties have attempted to raise other issues. At the outset, it should be noted that the legislature has not in so many words, either by charter provision or otherwise, specifically authorized the City to fluoridate its water supply. Therefore, if the City does so have the power to fluoridate, it has it by virtue of other, more broad provisions of authority expressly conferred upon it. The present charter of the City of Fort Pierce appears as Chap. 57-1331, Laws of Florida, 1957 (Spec. Acts). Article II of the charter relates to the powers conferred upon the City by the legislature. See also Article X, Utilities, paragraphs 142 and 149. Paragraph 32, § 14 of Article II authorizes the City to maintain an adequate water supply and to keep it free from pollution. It deals primarily, however, with the establishment of the water system's physical plant and the problem of water purification. The language in said paragraph 32 does not persuade either pro or con on the question of the City's power to fluoridate. Such power to fluoridate, if it is to be inferred from any of the provisions in the charter as a logical implementation of broader powers expressly granted, must be inferred from paragraph 34, ‘Police powers,’ and paragraph 36, ‘Enumerated powers not exclusive,’ appearing in Article II. Paragraph 34 reads in part as follows: ‘(a) To exercise all of the powers of local self-government and to do whatever may be deemed necessary or proper for the safety, health, convenience or general welfare of the inhabitants of the city; to exercise full police powers to do and perform all acts and things permitted by the laws of the State of Florida, and comprehended as duties in the performance of anything recognized as a ‘municipal purpose’, whether now existing and recognized, or hereby recognized as a municipal purpose by statute, law or court decision.' Paragraph 36 reads: ‘36. Enumerated powers not exclusive. The special and general powers granted by this charter shall be construed as objects, purposes and powers of the city and shall be construed to be in furtherance and not in limitation of general powers conferred by the laws of the state upon cities and towns; and it is specifically provided that no limitation, expression or declaration of specific powers and purposes enumerated in this charter shall be deemed to limit or restrict or to be exclusive. Whenever this charter shall grant or confer upon the city the rights, powers and privileges now belonging to or conferred upon cities and towns by the general laws of the state, such rights, powers, and privileges enjoyed by cities and towns under the general laws of this state and hereby granted and conferred upon the city, shall extend but no restrict or infringe upon or limit the rights, privileges and powers conferred by this Charter. The city, in receiving and exercising the rights, privileges and powers conferred upon cities and towns under authority of either special or general laws of the state, shall not thus be subjecting itself to any other duties, limitations or obligations naturally a part of such rights, privileges and powers, except those herein specifically provided; and finally in addition to any enumerated particular powers or adoption of powers of other cities and towns in the state granted either by general or special laws of the state, the city shall have and exercise all other powers which under the state constitution it would be competent for the legislature to enumerate specifically.’ (Emphasis added.) Clearly, under the above two charter provisions, the City has been given a broad power to legislate by municipal ordinance for the general welfare and health of the populace. The closest to an express provision authorizing fluoridation, of course, is subsection 34 permitting ‘municipal legislation’ under the police power for the health and general welfare of the inhabitants. No one could seriously question that the subject of fluoridating a water supply is concerned with health. The contention has been made in this court that the power to legislate for the health of the people extends only to preserving health but excludes such public measures as may be designed to improve halth. This contention is further refined by comparing the process of chlorination with that of fluoridation. With the former, which is commonly employed, water is treated so that its consumers do not contract any diseases from the water itself. In short, it purifies. The process of fluoridation, however, is in no way connected with purification but rather has as its object curative and preventive medicine, or more accurately dentistry. To be apecific, the drinking of fluoridated water is purported to reduce the incidence of tooth decay and cavities, predominantly in children. In the words of some of its opponents, fluoridation is ‘mass medication.’ That there is, in logic, a valid factual distinction between preserving health on the one hand and improving it on the other, we do not question. We do feel, however, that it is a distinction which the courts should not be made to suffer in arriving at a determination as to whether a particular public health measure is or is not a reasonable or legitimate exercise of the power to legislate in the public interest on the state or local level. Nor should the legislature in granting City Charters be bound to anticipate and therefore required to specify what particular measures are or may become necessary and proper in the interests of the health and general welfare of the inhabitants of cities chartered by it. If all municipal policy must be determined in advance by the legislature, then the terms ‘local government,’ ‘local control’ and ‘self determination’ are empty slogans. From the emphasized portion of Paragraph 36, Article II of the city charter (Enumerated powers not exclusive), quoted above, the conclusion is drawn that the City has those powers, in addition to those that are spelled out in the charter, which, under the constitution the legislature could enumerate specifically. The problem thus must eventually evolve to whether or not fluoridation is a proper and legitimate subject of legislation. The answer to such a question necessarily requires a conclusion of law based on the facts in each individual case. In any case where legislation invoking the police power is enacted, the deprivations and infringement of rights and preferences resulting to the individual must stand the test of substantive due process. Such legislation cannot be arbitrary or oppressive and the laudable objectives in the public interest should be such as to justify the transgression on individual rights and interest. Further, the means contrived to achieve these objectives must reasonably appear to accomplish them. Assuming legislation to be in the public interest, when it runs counter to the interest of the individual, that of the individual must give way absent a determination that the individual is being arbitrarily or unreasonably imposed upon. See generally, Hill v. State, 1944, 155 Fla. 245, 19 So.2d 857, reversed 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782, rehearing denied 326 U.S. 804, 66 S.Ct. 11, 90 L.Ed. 489, Egan v. City of Miami, 1938, 130 Fla. 465, 178 So. 132. Although some inferences to the contrary can be drawn from the opinion written by the chancellor, he did not expressly pass on the question of whether the fluoridation of the City's water system was a proper exercise of the police power. Therefore, the question of the reasonableness vel non of the ordinance in question is not before us and we must assume that it meets the substantive due process test. The only question decided below was whether or not the City of Fort Pierce has legislative authority to fluoridate is water system.    We hold that it does under the broad powers expressly conferred upon it in Article II, paragraphs 34 and 36 of its charter. The recent case of Wilson v. City of Council Bluffs, Iowa 1961, 110 N.W.2d 569, is illustrative of how the question of fluoridation has been treated in other jurisdictions. In that case, a group of taxpayers brought a class action to enjoin the enforcement of an ordinance providing for flouridation of a municipal water supply. Under the pleadings and a stipulation of fact, the trial court determined that but two legal questions were before it. The first of these questions was the statutory authority of the City to enact the ordinance in question. The trial court held that the City had no authority, express or implied, to enact the ordinance providing for fluoridation. On appeal, the finding of no authority was reversed. The facts and propositions of law in the Iowa case are substantially similar to those with which we are dealing in the instant case. The instant case being one of first impression in Florida, we therefore adopt the following observations and conclusions of the Iowa Supreme Court, insofar as they are applicable, in support of our conclusions hereinbefore reached. That Court, beginning at 110 N.W.2d 571, stated: ‘IV. There can be no question under this record and the stipulation but that the city acted, in good faith and after due deliberation, under its, at least supposed, power in Sections 366.1 and 368.2, above set forth. More specifically, the ordinance itself shows it as deemed to be a health measure enacted under that part of Section 366.1 which is as follows: ‘* * * and such as shall seem necessary and proper to provide for the safety, preserve the health * * * of * * * the inhabitants thereof * * *.’ (Italics ours.) It is a ‘police power’ enactment. “Police power' is a general term containing many ramifications and has never been pin-pointed as to its exact meaning.   City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322.   No one contends that the matter of the public health is not a proper subject of the police power or that such power has not been specifically delegated to cities and towns coextensive with their corporate limits.   Cecil v. Toenjes, 210 Iowa 407, 228 N.W. 874. The trial court recognizes such facts but holds the addition of fluorides to the public water supply is not an authorized attribute thereof. It bases this holding primarily upon the stipulation that the only purpose of adding fluorides is on the theory that it will prevent dental caries in children; and that dental caries is neither a contagious nor an infectious disease. ‘The trial court concedes the right of a city to enact health regulations such as are intended to overcome contagious or infectious diseases on the theory that it is for the benefit of the community as a whole rather than those who are actually affected therewith.   Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. There is nothing in the cited case prohibitive of ‘aiding a segment of the whole’ rather than ‘aiding the whole’, if the aiding is in fact a health measure, nor have we been cited any such a holding. See City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322. It is clear that the city considered it to be a health measure. Under the stipulation no claim is made that the city acted hastily or arbitrarily in enacting the ordinance, nor is there any issue as to whether it is or is not beneficial or detrimental as a health adjunct. The merits of fluoridation are not in issue, only the authority or the lack of authority in the city to enact such an ordinance. We hold it has such authority, not in specific words but necessarily implied under Sections 366.1 and 368.2, Code 1958, I.C.A. See Annotation 43 A.L.R.2d 453, 459 and authorities therein cited.  While appellees argue an invasion of personal liberties guaranteed by the State and Federal Constitutions, no such issue is raised by the pleadings; was not before the trial court and will not be considered here.   In re Estate of Lundgren, 250 Iowa 1233, 98 N.W.2d 839.' In Kraus v. City of Cleveland, 1955, 163 Ohio St. 510, 127 N.E.2d 609, the Supreme Court of Ohio held that the introduction of fluoride into a municipal water supply did not infringe constitutional liberties and that the prevention and control of dental caries, a common disease of mankind, is a proper subject, in relation to public health, for legislation enacted pursuant to the police power vested in municipalities by general law and the state constitution. The Court, in its opinion, stated at 127 N.E.2d 611-613: ‘Clearly neither an overriding public necessity or emergency nor infectious or contagious diseases are the criteria which authorize the exercise of the police power in relation to public health. ‘That dental caries is a disease is not questioned, and its prevalence is well recognized, as is the fact that the health of the teeth bears a direct relationship to general physical health. In sustaining a similar fluoridation statute, the court in Dowell v. City of Tulsa, Okl., 273 P.2d 859, 863, stated: “The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice.' ‘Thus the fact that dental caries is neither infectious nor contagious does not remove it from the authority of a municipality to attempt its control by fluoridation of the water supply. ‘It is argued that the same result might be accomplished by private dental care, and, since there is an alternative to public regulation, the police power may not be invoked. Although it is admitted that private care would be as effective, the record shows that there are not sufficient private dental facilities to perform the task. Under our modern existence the law must change and expand with mechanical and scientific progress. What did not concern public health yesterday, because of an inability of science to cope with the problem at hand, may very well today become a matter of public health due to scientific achievement and progress. The use of fluoridation to prevent dental caries is an excellent example of this proposition. Science has discovered a method whereby dental caries may be diminished. The prevalence and danger of such caries are well known and the only practicable application of such scientific knowledge is by treating drinking water with fluoride. Thus the problem of dental caries has of necessity become one of public health. ‘Nor does the fact that the fluoride, instead of killing germs, builds up a resistance to the disease have any effect on the validity of fluoridation legislation. The court in Dowell v. City of Tulsa, supra, 273 P.2d 863, disposed of this question, in the following language: “Plaintiffs concede, as they must, that municipalities may chlorinate their water supply, Commonwealth v. Town of Hudson, 315 Mass. 335, 52 N.E.2d 566; McQuillin Municipal Corporations (3d Ed.), Vol. 7, Sec. 24.265 and though they contend, under one proposition, that a city's treatment of its water supply with fluorides is the unlicensed practice of medicine, dentistry and pharmacy under our Statutes, they here argue that such treatment must be distinguished from treatment with chlorides, because the latter will kill germs, purify water and accordingly aid in the prevention and spread of disease, whereas fluorides will not. We think that if the putting of chlorides in public water supplies will in fact promote the public health, the distinction sought to be drawn by plaintiffs is immaterial. To us it seems ridiculous and of no consequence in considering the public health phase of the case that the substance to be added to the water may be classed as a mineral rather than a drug, antiseptic or germ killer; just as it is of little, if any, consequence whether fluoridation accomplishes its beneficial result to the public health by killing germs in the water, or by hardening the teeth or building up immunity in them to the bacteria that causes caries or tooth decay. If the latter, there can be no distinction on principle between it and compulsory vaccination or inoculation, which, for many years, has been well-established as a valid exercise of police power.' ‘Although it is true that the actual active effect of fluoridation is confined to that period of a person's life while the teeth are developing, such benefits extend on into adult life and fluoridation legislation is not such class legislation as to invalidate it. ‘It is clear from the record that the fluoridation of water for the prevention of dental caries has progressed far beyond the experimental period and has now become an established method. The facts that there are still differences of opinion as to its value and effect by a number of persons and that there are certain questions unanswered in relation to fluoridation do not make it an experiment. There are dissenters to many established and proved scientific practices which are accepted today. Dissent to scientific method does not constitute such method an experiment, and plaintiff's contention that fluoridation constitutes experimentation is without foundation.’ In sum, the cases from other jurisdictions which have passed on the question of fluoridation have rather uniformly held that a city may lawfully fluoridate its water supply. See 3 Yokley, Municipal Corporations, § 500, p. 200 (1958); Id. Vol. 1, § 64, p. 134; Ryne, Municipal Law 499 (1957); Annot., 143 A.L.R.2d 453 (1955). For further enlightening case treatment, see also Readey v. St Louis County Water Company, Mo.1961, 352 S.W.2d 622; Dowell v. Tulsa, Okla.1954, 273 P.2d 859, 43 A.L.R.2d 445; Kaul v. City of Chehalis, 1954, 45 Wash.2d 616, 277 P.2d 352; Chapman v. City of Shreveport, 1954, 225 La. 859, 74 So.2d 142. We hold that the lower court erred in ruling, as a matter of law, that the City of Fort Pierce was without legislative authority to fluoridate its water system. In his final decree the chancellor, in commenting on the fact that each side had filed a motion for summary decree, stated in effect that the granting of relator's motion necessarily amounted to a denial of the motion filed by respondent but without consideration as to whether respondent's motion was well founded procedurally. The summary final decree in favor of relator is hereby reversed with directions to the chancellor to consider and expressly rule upon respondent's motion for summary decree. Reversed. SMITH, J., and LOVE, WM. K., Associate Judge, concur.

+/- Illinois Pure Water Committee, Inc. v. Director of Public Health

Illinois, Due Process Violations, State police power, Violation of Fundamental Liberties

• Plaintiff
  Illinois Pure Water Committee, Inc.
• Defendant
  Director of Public Health
• State
  Illinois
• Other Parties
  -
• Case Tags
  - Due Process Violations

  - State police power

  - Violation of Fundamental Liberties
• Citation
  104 Ill.2d 243; 83 Ill. Dec. 568; 470 N.E.2d 988 (Ill. 1984)
• Year
  1984-00-00T00:00:00
• Court Name
  Supreme Court of Illinois
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Goldenhersh
• Opinion Text
  GOLDENHERSH, Justice: Defendants, the Director of the Department of Public Health of the State of Illinois, the Director of the Environmental Protection Agency of the State of Illinois, and the Alton Water Company, appealed (87 Ill.2d R. 302(a)) from the judgment of the circuit court of Madison County holding unconstitutional section 7a of “An Act to provide for safeguarding the public health by vesting certain measures of control and supervision in the Department of Public Health over public water supplies in the State” (Ill.Rev.Stat.1981, ch. 111 1/2 , par. 121g1). The court enjoined the Department of Public Health and the Environmental Protection Agency from enforcing the statute, and enjoined Alton Water Company from fluoridating its public water supply. We allowed defendants' motion to stay enforcement of the judgment pending appeal. Section 7a provides: “In order to protect the dental health of all citizens, especially children, the Department shall promulgate rules to provide for the addition of fluoride to public water supplies by the owners or official custodians thereof. Such rules shall provide for the addition of the fluoride to the water supplies so as to maintain a fluoride content of not less than 0.9 milligram per liter nor more than 1.2 milligrams per liter.” Ill.Rev.Stat.1981, ch. 111 1/2 , par. 121g1. This action was commenced on August 1, 1968, requesting that the Department of Public Health be enjoined from enforcing the fluoridation statute and that Alton Water Company be prevented from introducing fluorides into its system. The complaint alleged that fluoride in public drinking water is dangerous to health and that its use did not prevent dental caries (tooth decay). After several dismissals and reinstatements the complaint was dismissed for failure to state a cause of action. Plaintiffs appealed, and the appellate court, holding that the complaint stated a cause of action, reversed. ( Illinois Pure Water Committee, Inc. v. Yoder (1972), 6 Ill.App.3d 659, 286 N.E.2d 155.) In 1975 the plaintiffs joined the Illinois Environmental Protection Agency as a party defendant. Plaintiffs' seventh amended complaint contained three counts, but only count I survived the trial. Count II, alleging a class action, was dismissed for failure to meet the requirements set forth in section 57.2 of the Civil Practice Act (Ill.Rev.Stat.1981, ch. 110, par. 57.2). Count III, which concerned a plaintiff who alleged that fluoridation denied him freedom of religion under the first and fourteenth amendments to the United States Constitution and article I of the Illinois Constitution of 1970 was also dismissed. In the surviving count (count I), plaintiffs sought a declaratory judgment that section 7(a) was an unreasonable exercise of the police power and unconstitutional. Plaintiffs also sought an order enjoining Alton Water Company from introducing fluoride into the public water supply and enjoining the Department of Public Health and the Environmental Protection Agency from enforcing the statute. Plaintiffs contended that compliance with the statute denied them their right under article XI of the 1970 Illinois Constitution to a healthful environment, denied them their right under article I, section 12, of the 1970 Illinois Constitution to a remedy for all wrongs, and denied them, without due process of law under the fifth amendment to the United States Constitution, and article I, section 2 of the 1970 Illinois Constitution, their right to health and life. The record is voluminous. The circuit court heard testimony from 11 witnesses and examined 151 exhibits. In its order, the court reviewed the testimony and concluded that “The evidence breaks down in four (4) basic groups: Allergy and Intolerance, Chromosome Study Findings, Other Chemical and Biochemical Characteristics and Epidemiological Findings.” It held that section 7a was unconstitutional as an unreasonable exercise of police power in violation of article I, section 2, and “in violation of the terms and spirit of Article XI sections 1 and 2” of the Constitution of 1970. With respect to allergy and intolerance, Dr. George Waldbott, called by plaintiffs, described the symptoms of fluoride poisoning. He described several cases of patients diagnosed as having reactions intolerant to fluoride, whose symptoms disappeared when they stopped drinking fluoridated water. He described a study he had conducted in Annapolis, Maryland, following an accidental spill into the public water system of fluoride at a level greatly in excess of the one-part-per-million rate utilized in most fluoridation operations. He asserted that his findings in the study confirmed a connection between fluoride intoxication and drinking water. On cross-examination Dr. Waldbott admitted that his patients' symptoms could have been psychosomatic. He admitted that his interviews with his patients were not “double-blind” studies; that is, his patients knew that they had been drinking fluoridated water. He also admitted that he had no formal training in research techniques and that allergic reactions to fluoride are quite rare. In the area of chromosome-study findings, the plaintiffs offered the testimony of Dr. Aly Mohammed, a professor of biochemistry at the University of Missouri at Kansas City. He testified that his experiments showed a chromosomal aberration rate for mice, in bone marrow and spermatocyte cells, at various dosages of fluorides and at various times during his study. He concluded that sodium fluoride can cause chromosomal changes in mice even at concentrations as low as one part per million in drinking water. He stated that fluoride could be considered a mutagen, many of which are carcinogenic, and thus fluoride could be a carcinogen. Dr. John Yiamouyiannis testified for plaintiffs and discussed other chemical and biochemical characteristics of fluoride. He stated that fluoride inhibits those enzymes which are responsible for the repair of damaged DNA molecules. He explained that this characteristic might make fluoride itself a carcinogen or that fluoride might give a selection advantage to existing cancer cells over normal cells. Concerning epidemiological findings, Dr. Dean Burk, a cytochemist formerly employed by the National Cancer Institute, and Dr. Yiamouyiannis testified as to the findings of their study which showed an increase in cancer deaths following the introduction of fluoridation in certain cities. They studied the cancer death rates of the 10 largest cities in the United States that fluoridated their water supplies during the period from 1952 to 1956, using as a control group the 10 largest cities that remained nonfluoridated up to at least 1969. Dr. Yiamouyiannis explained that differences in the age, sex, or race of the populations could not have accounted for the difference in the cancer death rates. In cross-examination it was admitted that neither Dr. Burk nor Dr. Yiamouyiannis had any formal training in the fields of epidemiology or statistics; that both were experts in other fields; and that this epidemiological study was their first. Dr. Burk admitted that he had an antifluoride stance before he undertook this study. Likewise, Dr. Yiamouyiannis acknowledged that he was the science director of the National Health Federation, and that group had hired him to be a fluoride fighter. Dr. Yiamouyiannis also admitted that he was paid by the Illinois Pure Water Committee to testify in this case and that this group is adamantly opposed to artificial fluoridation. The trial court noted that “Dr. Yiamouyiannis not only testified as an expert on behalf of plaintiffs, but also that he was present every day at the trial and seated at plaintiffs' counsels' [sic ] table where he appeared to be giving advice and directing strategy to some degree. The conclusion was that Drs. Burk and Yiamouyiannis could hardly be termed ‘disinterested’ scientists.” Defendants called Dr. Marilyn Lantz, Assistant Professor of Dentistry at the Dental School of Southern Illinois University. In addition to her degree of Doctor of Dental Medicine, she holds the degree of Ph.D in biochemistry. She disputed the findings to which Drs. Waldbott and Mohammed testified. Dr. Charles E. Bennett, employed by the Illinois Department of Health, who holds the degree of Ph.D in ecology, criticized the methods used by Drs. Burk and Yiamouyiannis in their study and pointed out that the statistics differed from those compiled by the U.S. Department of Health, Education and Welfare. He stated that the statistics showed that the difference in the cancer-death rates between nonfluoridated and fluoridated cities was insignificant. Dr. William Sly, a physician and professor of Medicine, Genetics and Pediatrics at Washington University School of Medicine, called by defendants, pointed out defects in the exhibits upon which Dr. Mohammed based his conclusions, and errors in the conclusions which Dr. Mohammed drew from them. Defendants contend that the statute providing for mandatory fluoridation of the public water supply is a reasonable exercise of the police power. They argue that enforcement of the statute may not be enjoined merely on the showing that it is debatable whether requiring fluoridation is a valid public health measure. Plaintiffs contend that the usual standards applicable to business, social and economic legislation do not apply here. They argue that fundamental rights, namely the right to life and health, have been placed in jeopardy without due process of law, and the validity of the statute can be upheld only if it is shown that there is a compelling State interest which requires it. Furthermore, they contend, the statute must be so narrowly drawn as to express only the legitimate State interests at stake. In Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 198 N.E.2d 326, the plaintiff taxpayers sought to enjoin the fluoridation of the defendant city's water supply. Plaintiffs contended that fluoridation infringed upon fundamental liberties protected by constitutional guarantees of due process of law. The court said: “...settled and certain is the concept that a police measure, to be beyond the pale of constitutional infirmity, must bear a reasonable relation to the public health or other purpose sought to be served, the means being reasonably necessary and suitable for the accomplishment of such purpose, ( Strub v. Village of Deerfield, 19 Ill.2d 401 [167 N.E.2d 178]; Vissering Mercantile Co. v. Annunzio, 1 Ill.2d 108 [115 N.E.2d 306]; Lawton v. Steele, 152 U.S. 133 [14 S.Ct. 499], 38 L.Ed. 385,) and the principle that courts will not interfere with legislation falling within the orbit of a municipality's police power unless there is a palpably arbitrary or unfair exercise of the power. ( City of Chicago v. R. & X. Restaurant, 369 Ill. 65 [15 N.E.2d 725]; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384 [29 N.E.2d 495].)” ( Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 509, 198 N.E.2d 326.) The court found that artificial fluoridation of water was reasonably related to the public health, and that the program adopted by Chicago (similar to the one in question here) was necessary and suitable for the protection of public health. ( 30 Ill.2d 504, 516, 198 N.E.2d 326.) The court held that the plaintiffs had failed to sustain their burden of proving that the resolution requiring fluoridation was unreasonable, noting that “the wisdom, necessity and expediency of police regulations are no concern of the courts, but are matters primarily for the legislative body of the municipality, and courts are without power to interfere merely because they believe a different regulation might have been wiser or better. City of Chicago v. Waters, 363 Ill. 125 [1 N.E.2d 396]; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384 [29 N.E.2d 495],” Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 515-16, 198 N.E.2d 326. Here, as in Schuringa, we find that plaintiffs have not sustained their burden of showing that the fluoridation statute is so unreasonable as to be invalid. We note the comment contained in the circuit court order that, “In view of the plaintiffs' evidence, even though it has long been recognized that artificial fluoridation of public water supplies helps fight tooth decay, a risk exists of serious health hazards.” At most, plaintiffs have shown that there may be some risk of a higher incidence of cancer and, to a lesser degree, other diseases and conditions. The extent of this risk, however, is uncertain. In discussing the evidence, the circuit court noted that “the debate has been lively and continuous and no one can reasonably argue that important health, safety or environmental interests lie on only one side of the debate.” We construe the circuit court's comment to mean that plaintiffs have shown, not that the risk was so great that fluoridation was unreasonable, but that the question was shown to be debatable. Under these circumstances plaintiffs have failed to show an unreasonable exercise of the police power. We note that many courts, in the interest of public health, have upheld fluoridation as a proper exercise of the State's police power. Commonwealth v. City of Lebanon (1978), 482 Pa. 66, 73 n. 9, 393 A.2d 381, 384 n. 9 (see cases cited in appendix to decision). Plaintiffs contend that because fluoridation imposes upon a fundamental right guaranteed to them by the United States Constitution, strict scrutiny of the statute is required. This contention, however, has been rejected (Bellassai v. McAvoy (N.D.Ohio June 1, 1981), No. C80-376A, aff'd 703 F.2d 558 (6th Cir. May 24, 1982), cert. denied (1982), 459 U.S. 971, 103 S.Ct. 301, 74 L.Ed.2d 282), and we agree. See also Kraus v. City of Cleveland (C.P.Cuyahoga County 1953), 55 Ohio Op. 6, 116 N.E.2d 779, aff'd (1955), 163 Ohio St. 559, 127 N.E.2d 609, appeal dismissed (1956), 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463. Plaintiffs contend, too, that because the 1970 Illinois Constitution guarantees them the right to a healthful environment (Ill. Const.1970, art. XI, secs. 1, 2), strict scrutiny of the statute is required. Defendants concede that these provisions give standing to individuals to bring actions for damages to the environment where previous common law doctrine restricted standing in such cases to public officials, but they argue that these provisions have no effect upon the level of scrutiny to be applied to the statute. Plaintiffs cite no authority for the proposition that sections 1 and 2 of article XI create a “fundamental” right to a healthful environment, and do not explain why we should subject statutes affecting the environment to a higher level of scrutiny. In the absence of more persuasive reasoning, we decline to do so. On this record, we conclude that the evidence shows, at most, the existence of a debate upon the dangers and benefits of fluoridation. While the circuit court was correct in stating that “to carry the burden of proof in this case the plaintiffs' evidence need not be conclusive that fluoride will cause adverse health effects,” we cannot say that the evidence here is sufficient to declare that the fluoridation statute is an unreasonable exercise of the police power. “At best, however, the evidence with respect thereto presents only a debatable question where there is room for difference of opinion, and...it is enough to say it is an area in which the legislative judgment must prevail.” Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 516, 198 N.E.2d 326. For the foregoing reasons, the judgment of the circuit court of Madison County is reversed. Judgment reversed.

+/- Illinois Pure Water Committee, Inc. v. Yoder

Illinois, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, State police power

• Plaintiff
  Illinois Pure Water Committee, Inc.
• Defendant
  Dr. Franklin Yoder, Director of Department of Public Health
• State
  Illinois
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations

  - State police power
• Citation
  6 Ill. App.3d 659; 286 N.E.2d 155 (Ill. App. Ct. 1972)
• Year
  1972-00-00T00:00:00
• Court Name
  Appellate Court of Illinois, Fifth District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Moran GJ
• Opinion Text
  GEORGE J. MORAN, Presiding Justice. This action for injunctive and declaratory relief was brought against the defendant, Dr. Franklin Yoder, Director of the Illinois Department of Public Health and the Alton Water Company. The defendant filed a motion to strike and dismiss the complaint and the lower court, upon consideration of the pleadings, granted defendant's motion and ruled that the complaint failed to state a cause of action. An appeal was taken from the order. The plaintiffs are the Illinois Pure Water Committee, Inc., Ruby N. Hale, individually and as an officer of the corporation plaintiff, J. O. Bear, mayor and chief executive officer of the Village of Pesotum, Illinois, and George Edward Hiscott, IV, a Christian Scientist and resident of Highland Park, Illinois. The plaintiffs brought the action individually and as respresentatives of all citizens of the State of Illinois and all users of public water supplies in the state. The plaintiffs sought the following relief: (1) A temporary injunction pending the outcome of the litigation; (2) a declaration that Chapter 111 1/2, Section 121g1 which provides for compulsory fluoridation of water supplies, is unconstitutional, or in the alternative; (3) a declaration that Dr. Yoder and his department have failed to adopt rules and regulations in accordance with statutory mandate; (4) a declaration that the defendants have usurped legislative function by adopting rules which do not conform to the statutory mandate; and (5) after a hearing on the cause a permanent injunction restraining defendants from (1) introducing fluorine into the water supplies and (2) enforcing or complying with the provisions of Chapter 111 1/2, Section 121g1. Motions to dismiss or strike a pleading admit facts well pleaded, but not conclusions of law or conclusions of facts unsupported by allegations of specific facts upon which such conclusions rest and when constitutional issues are involved, facts relied upon to rebut the presumption of constitutionality must be specifically set forth. Pierce v. Carpentier, 20 Ill.2d 526, 169 N.E.2d 747; Heyman v. Mahin, 49 Ill.2d 284, 275 N.E.2d 421. In amended Count I the plaintiffs allege the following: 1. That fluorine is being injected into the water system pursuant to Chapter 111 1/2, Sec. 121, and it is a poisonous, noxious and deleterious element; 2. That the defendant has not promulgated any rules nor provided for any facilities which will assure all of the citizens of the State of Illinois that poisonous or noxious substances, dangerous to the health of the citizens will not be introduced into the water supply of this State-Section 121(g)(1) requires all public supplier of water in this State to introduce the element ‘fluorine’ into the water supply of this State under conditions which render the consumption of public water supply by the citizens of this State, potentially hazardous and dangerous to the lives, health and welfare of the citizens consuming said water; 3. That there are no provisions for trained technicians who have ability to watch the system; 4. That there are no safe tests to regulate the level of fluorine and testing on a monthly basis is inadequate. 5. That the compulsory introduction of fluorides into the water supplies of this state is so hazardous by reason of its poisonous nature to the human body, that the level of concentration must be held to less than 1.2 milligrams per liter under the provisions of Chapter 111 1/2, Section (g1), but neither said statute nor the regulations of the Department of Public Health attempt to take into consideration the environmental exposure of citizens of this state to fluorides from sources other than the levels provided to be maintained in the water supplies hereof and by reason thereof, citizens of this state will be forced to submit their bodies to hazardous and dangerous levels of fluorides, if the water supplies of the State are polluted by the introduction of this noxious substance purportedly under the provisions of said statute and the regulations of the Department of Public Health. 6. That scientific knowledge has greatly expanded since 1964. (In this year the Illinois Supreme Court in Shuringa v. City of Chicago, 30 Ill.2d 501, (504) 198 N.E.2d 326 (1964) ruled that fluoridation was not unhealthy and was a proper exercise of the police power of the municipality) which evidences that fluorides are harmful and injurious. As a result of this the plaintiffs contend that (1) the statute is unconstitutional because it denies plaintiffs due process of law and places their lives and health in jeopardy without due process of law by forcing the plaintiffs to consume the tainted water; (2) the statute is so vague and uncertain and lacks requisite safeguards as to render it unconstitutional; (3) that the statute is an unconstitutional delegation of authority. The merits of the case may prove the well pleaded portions of these contentions to be false, but this case was decided on the pleadings and one must assume these facts as true. Making such an assumption, one must conclude that the plaintiffs did state a cause of action and it was error to dismiss their complaint. Plaintiff Bear, as mayor, alleges only that the fluoridation requirement would necessitate great investments that would be financially ruinous to his village. There are no allegations of specific facts alleged which support this claim. The motion to strike and dismiss pointed out that in such capacity he has failed to allege his authority in his official capacity to join his village in this action. Therefore as to plaintiff Bear as mayor, the action was properly dismissed, and paragraph eight of amended Count I should be stricken. In Count II of the amended complaint the plaintiff George Edward Hiscott IV alleged that he is a member of the Christian Science Church and that the compulsory introduction of fluorides into the water supplies forces him to subject himself to therapeutic treatment by the uses of medicine in direct contradiction to the tenets of his faith. He further alleged that this prohibits him and others of his faith from the free exercise of his religion. This question has not been determined in this jurisdiction and if this case had been decided on the merits, the court might well find that fluoridation is not medication as courts in other jurisdictions have. (See Graybeal v. McNevin, 439 S.W.2d 323 (Ky.Ct.App.1969) and the compilation of cases therein.) But this question was decided on the pleadings and assuming the facts are true, then the plaintiff has stated a cause of action. Plaintiffs, Illinois Pure Water Committee, Inc., Ruby N. Hale, George Edward Hiscott IV and J. O. Bear individually, did allege sufficient facts to state a cause of action and the order of the lower court dismissing their complaint is reversed. Plaintiff J. O. Bear as mayor did not allege facts sufficient to state a cause of action and the order of the lower court as to him in that capacity is affirmed. Affirmed in part and reversed in part. EBERSPACHER, J., concurs. JONES, Justice (dissenting): I must respectfully dissent from the majority opinion. The plaintiffs are a committee, organized in corporate form, which claims as its concern water quality throughout the State of Illinois, an individual customer of the defendant Alton Water Company, J. O. Bear, who claims to sue as an individual and as ‘Mayor’ of the Village of Pesotum, and George Edward Hiscott, IV, a resident of Highland Park, in Cook County, and a member of the Christian Science Church. All of the plaintiffs have commenced an action against Dr. Franklin Yoder, Director of the Department of Public Health of the State of Illinois, and all except Hiscott have brought an action against the Alton Water Company. It is not clear what action J. O. Bear, individually, or as Mayor of Pesotum, claims against the Alton Water Company but it appears that all of the plaintiffs claim some representative capacity except Ruby N. Hale, who, at least in part, is supplied water by the Alton Water Company. No one of these persons or plaintiffs are individually affected by fluoridation of water supply unless it would be Ruby N. Hale, and with respect to her, no special allegations of immediate personal effect upon her health are made. In substance, the allegations of all of the plaintiffs are based upon their general concern for the health and welfare of residents of the State of Illinois. None of the plaintiffs have any special standing other than what has been set forth above. Apparently leave was given the plaintiff Hiscott to intervene in order to assert that his religious rights are involved. Mr. Hiscott's position is indeed a special one in that he claims that the statute of the State of Illinois violates his constitutional right of freedom of religion, in that it violates the tenets of his faith as practiced by him as an individual. He does not allege that the Christian Science faith is religiously opposed to the use of medicine and pharmaceutical compounds, but apparently that is his own personal religion. All of the plaintiffs ask for a temporary and permanent injunction against the fluoridation of public water supplies in the State and the declaration of a statute governing fluoridation unconstitutional or, alternately, to enjoin the enforcement of the statute until the Director of the Department of Public Health and the Department of Public Health have adopted rules and regulations in conformity with the mandate of the statute. The complaint also asks an injunction against the Department of Public Health, which is not made a party to the proceeding. Motions to dismiss were filed by the Director of the Department of Public Health and by the Alton Water Company. As a part of the Director's motion an exhibit was attached setting forth certain rules which were adopted on January 27, 1969 following the complaint, which was filed on August 1, 1968, after which the plaintiffs filed an amendment to the amended complaint alleging that the defendants ‘intend’ to introduce into the public water supply of citizens of the State, fluorine, which is ‘poisonous, noxious and deleterious,’ that scientific knowledge has been greatly expanded since 1964 which evidences that fluorides in the quantities being introduced into public water supplies are harmful and injurious; that the present method of fluoridation fails to appreciate variations in fluorine concentrations, as same depends on temperature and variations in fluorine ingestion in that individuals consume more water in hot weather than in cold, and said variations produce dangerous concentrations of fluorine. I would affirm the action of the trial judge in granting the motion to dismiss. The plaintiffs, after two amendments, have not asked for further right to amend and the appeal is taken strictly and solely from the order of the trial court dismissing the amended complaint, upon the finding that the complaint fails to state a cause of action upon which the relief sought ‘should be granted.’ I understand that the trial court has considered that in taking the allegations of the plaintiffs' complaint as confessed where they are well pleaded he has determined that this is not a case in which plaintiffs are entitled to injunctive relief. In the traditions of the law it is not every case, even of alleged unconstitutionality, where an injunction will be issued, particularly against state officers in the performance of a public duty. To issue the injunction sought in this case would have the effect of denying all of the citizens of this State fluoridation of public water supplies. The legislature of our State has determined that fluoridation should be permitted, and this determination has withstood lengthy and thoroughgoing legal attack in which all of the points raised in the plaintiffs' complaint, as amended, were raised, except those raised by the plaintiff Hiscott. An attempt by the other plaintiffs to raise a question of deprival of religious freedom is not accompanied by any allegation of fact which puts this matter in issue as to them. I am persuaded that all of the points pertaining to constitutionality of fluoridation have been raised and decided unfavorably to the plaintiffs in Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964) and other cases. The allegation that scientific knowledge has greatly expanded since 1964 is the baldest sort of conclusion. It is common knowledge that scientific tests and information are constantly being accumulated and with respect to any matter it could be said that scientific knowledge has greatly expanded since 1964. That such scientific knowledge ‘evidences that fluorides in the quantities being introduced into public water supplies are harmful and injurious' is totally conclusionary. It does not say in what quantities the plaintiffs claim that fluorides are being introduced into public water supplies nor does it speak to any methodology that may be involved. It does not allege any particular scientific finding which has changed or revealed previous scientific knowledge to be erroneous and unreliable, and it does not say harmful and injurious to whom and on what account. It is abundantly apparent that certain scientists believed that fluorides, under certain circumstances, were harmful and injurious to the health of persons ingesting them in water. The passage of the legislation considered in the Schuringa case itself did not resolve this scientific controversy. It simply made a choice based on what was determined to be the better view. To say that on the suit of one private citizen, who is directly affected by one water company, that it is necessary for the Director of Public Health to enter into lengthy litigation based upon such a conclusion as is set forth in the plaintiffs' complaint does not seem legitimate or in accordance with logic. Any citizen of this State could make a similar allegation one day after the previous case so that the matter of fluoridation would be under litigation until the end of time. I do not contend, of course, that further scientific consideration of the propriety of fluoridation should be foreclosed. Some future revelation may disprove the currently accepted thought on the matter. The process is not unknown in the field of public health. My point is that the plaintiffs' complaint is silent as to any fresh scientific discovery that bears on the question. After all, this is not litigation between private persons. The entire concern of the plaintiffs is that there is a possibility that some person or persons in this State will be injuried if presently contemplated steps are carried out. It has been an equitable rule from the earliest days that the power to grant injunctive relief is never exercised to allay mere apprehension of injury, or against something merely feared as liable to occur at some indefinite time in the future. ‘It must appear to the satisfaction of the court that the apprehension is well grounded, and that there is a reasonable probability that a real injury, for which there is no adequate remedy at law, will occur if the injunction is not granted. ...The court ought not to interfere, however, where the injury apprehended is of a character to justify conflicting opinions as to whether it will in fact ever be realized, or where nothing more than a mere opportunity to do wrong is disclosed.’ 42 American Jurisprudence 2d, Injunctions, Section 31. Similarly, ‘As a general rule, equity does not undertake the revision or supervision of governmental action lawfully exercised through the legislative, or executive or administrative, departments of the government. It will not interfere by injunction with the duties of any department of the government except under special circumstances and when necessary to the protection of property or other rights against irreparable injury.’ 42 American Jurisprudence 2d, Injunctions, Section 175. Further at page 943, ‘Where a public officer essays to exercise the jurisdiction conferred upon him, his errors, although subject to subsequent correction, cannot be enjoined as an arbitrary exercise of his authority. Particularly will courts hesitate to interfere by injunction where the acts complained of are essential to the health and comfort of the people at large.’ It should also be noted that the statutory scheme involved provided for hearings with respect to the safety of public water supply when the health of water customers is or may become endangered, under the terms of ch. 111 1/2, sec. 121K, Ill.Rev.Stat.1967. Such a request could have been made in this particular instance, but there was none. The only semi-factual allegation contained in the complaint with respect to the direct deficiencies in the present plan for fluoridation is that the proper officials have failed to take into consideration the environmental exposure of citizens of this State to fluorides from sources other than the levels provided to be maintained in the public water supplies. Clearly, if fluorides were found to be present in a water supply because of naturally occurring conditions, and, as a result of the mechanical addition of fluoride as provided by the statute and rules, a dangerous or deleterious concentration of fluoride was created, then this could specifically be presented to the Director with the request that he consider whether fluorine should not be reduced under the particular circumstances. There would be no necessity of enjoining the application of fluorides throughout the State. It seems to me that one would be wholly unjustified in assuming that a majority of a quorum of the legislature which enacted the legislation, the Governor who signed the legislation into law, and the Director of Public Health are in some sort of a conspiracy to poison the citizens of the State while their backs are turned. I can see no reason for assuming, as the plaintiffs do, that the Director of Public Health would not respond at once if there was some reason for believing that fluorides were about to injure the health of any persons in this State. The complaints of the plaintiffs would, it seems to me, best be directed to the legislature again, rather than directed to the courts who do not have an exclusive corner upon truth. It is not claimed that the Director is acting beyond the legislative mandate and that there is a lack of power. The basic question raised is the wiseness of the legislative enactment and of the effectuating rules as they now stand. It was originally contended by the plaintiffs that the Director had failed to establish proper implementation of the statute by adoption of rules. From the attachment made to the motion to dismiss filed by the Director it appears that such rules have been adopted. Therefore, this particular point has become moot. If any one particular rule exposed the public to danger this could be alleged, together with factual circumstances which would make it applicable, and a cause of action for a legal and, if necessary, equitable action, stated. I have already eliminated any basis for considering the constitutional claims with respect to violation of freedom of religion on the part of all of the plaintiffs except Hiscott. Hiscott's complaint is only against the defendant Yoder and, therefore, should not be used as a basis for sustaining a right of action against the Alton Water Company. Hiscott is only an intervenor and under the rules applicable to intervention where his claim is not based upon a common question of law he is not entitled to intervene. Section 26.1 of the Civil Practive Act (Ill.Rev.Stat., ch. 110, sec. 26.1). Further, an intervenor does not have the right to raise new issues. Chapter 110, section 26.1(6) (Ill.Rev.Stat., ch. 110, sec. 26.1(6)). Therefore, the intervenor's claims cannot be the basis for this action. With respect to claims of loss of freedom of religion it seems apparent that claims of religious right which conflict with the general or common health and good must yield to the common health and good. One can readily visualize a religious belief which would oppose a central government or any practive having to do with public health or, as is contended here, is opposed to any ‘use of...pharmaceutical compounds.’ It is obvious that no introduction of pharmaceuticals into the public water supply can meet the requirements of this religious belief. Under such contention treatment of public water supplies becomes an impossibility. It seems to me that this particular plaintiff may have full religious freedom only if he does not make use of a public water supply. His objection to consuming treated water from the public supply can easily be met by his use of untreated water from readily available private sources. In the same manner consumption of foodstuffs from ordinary sources of the public food supplies are avoided by those whose religious beliefs permit the consumption of only those foodstuffs prepared by persons possessing particular religious qualifications. Even if it be conceded (which I do not) that plaintiff Hiscott has standing to raise his point, I would still uphold the trial court in its dismissal of the Hiscott portion of the complaint. It is unnecessary to have an evidentiary hearing on the issue in order to resolve it. In the posture it is presented it is purely a question of law. Simply stated, the issue raised by plaintiff Hiscott is whether it is the law in Illinois that fluoridation of a public water supply deprives plaintiff of his constitutionally guaranteed freedom of religion. Manifestly it does not. It was so determined in Graybeal v. McNeven, 439 S.W.2d 323 (Ky.Ct. of Appeals, 1969) and in fourteen other states (as cited in the Graybeal case). While it is true that these cases are not binding on Illinois courts they nevertheless foretell the determination here. Talty v. Schoenholz, 323 Ill. 232, 154 N.E. 139; Illinois Law & Practice, Courts, Sec. 84. In short, the legitimate contentions of the plaintiffs can only be carried out by the abolition of fluoridation or by the assumption that either the Director of the Department of Public Health or those persons charged with the processing of water will behave unlawfully or so as to expose the public to poisoning. No tribunal can rule out the possibility that someone, somewhere might not be exposed to fluorine in unhealthy concentrations. The best that can be done is to establish a policy of permissible concentrations and then adopt rules intended to carry out this plan. It appears on the face of the matter that such has been done. As was quoted in Sutton v. Findlay Cemetery Ass'n, 270 Ill. 11, 110 N.E. 315, ‘Relief by injunction is so severe in its consequences that it is not to be granted in such a case except when the right to it is clearly and conclusively made out.’ In this way, the trial court, being confronted with the question of balancing the public health and safety, as defined in a statute and statutory regulations, against the claim of constitutional invasions, is placed in the position of weighing right against right. Where the party against whom the action is brought is a public officer acting within the framework of the statutory plan, which has been previously tested for its constitutionality, and the rights sought to be protected are alleged as conclusions, the damage or injury described appears relatively improbable of occurrence, and the interests of the parties plaintiff do not involve major invasions but are only those held by any member of the public, the complaint does not state a cause of action nor evidence plaintiffs' right to injunctive relief. Therefore, under the allegations of the complaint here I would affirm that the complaint does not set up circumstances under which the use of injunctive power is clearly justified. The point involved is not only one of pleading, it is also one of the balance of constitutional rights. As was said in an earlier case from Madison County, Illinois, Spalding v. Granite City, 415 Ill. 274, 113 N.E.2d 567: ‘The constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law, and that no State shall deny to any person within its jurisdiction the equal protection of the laws, were not intended to limit the subjects upon which the police power of the State may lawfully be asserted in matters of health protection any more than in any other connection. It has been almost universally held in this country that the constitutional guaranties, including the prohibition of deprivation of property without due process, must yield to the statutes and ordinances designed to promote the public health as a part of the police powers of the State. ( People ex rel. Baker v. Strautz, 386 Ill. 360, 54 N.E.2d 441; People v. Anderson, 355 Ill. 289, 189 N.E. 338; City of Evanston v. Wazau, 364 Ill. 198, 4 N.E.2d 78.)’ Further, in The People ex rel. Baker v. Strautz, 386 Ill. 360, 54 N.E.2d 441, our Supreme Court said: “Generally speaking, what laws or regulations are necessary to protect public health and secure public comfort is a legislative question, and appropriate measures intended and calculated to accomplish these ends are not subject to judicial review. The exercise of the police power is a matter resting in the discretion of the Legislature or the board or tribunal to which the power is delegated, and the courts will not interfere with the exercise of this power except where the regulations adopted for the protection of the public health are arbitrary, oppressive and unreasonable. The court has nothing to do with the wisdom or expedience of the measures adopted. People v. Weiner, 271 Ill. 74, 110 N.E. 870, L.R.A.1916C, 775, Ann.Cas.1917C, 1065; State v. Morse, 84 Vt. 387, 80 A. 189, 34 L.R.A.,N.S., 190, Ann.Cas.1913B, 218; State (ex rel. McBride) v. Superior Court, 103 Wash. 409, 174 P. 973.' It has almost universally been held in this country that constitutional guaranties must yield to the enforcement of the statutes and ordinances designed to promote the public health as a part of the police powers of the State.'

+/- Schuringa v. City of Chicago

Illinois, Injunction, Due Process Violations, State police power

• Plaintiff
  Alice Schuringa
• Defendant
  City of Chicago
• State
  Illinois
• Other Parties
  -
• Case Tags
  - Injunction

  - Due Process Violations

  - State police power
• Citation

  30 Ill. 2d 504; 198 N.E.2d 326 (Ill. 1964)

• Year
  1964-01-01T00:00:00
• Court Name
  Supreme Court of Illinois
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Daily
• Opinion Text
  DAILY, Justice. This suit, brought in the superior court of Cook County against the city of Chicago and certain of its officials, is a taxpayers' action to enjoin defendants from fluoridating the city's water supply. Because constitutional questions are involved, plaintiffs appeal directly to this court for review of a decree dismissing their complaint for want of equity. Upon leave granted, the Chicago Dental Society has filed a brief as amicus curiae in support of the decree. The events leading to the action had their beginning on October 31, 1951, when a special committee of the city council was appointed to study water fluoridation from the point of view of public health. Public hearings were held as the result of which the committee concluded that fluoridation of water served to prevent dental caries, or tooth decay, and that it was in no way physically harmful, and recommended that fluorides be introduced into the city's water supply. Upon the basis of such study and recommendation, as well as an opinion of the corporation counsel that a fluoridation program would not violate constitutional or other legal rights, the council passed a resolution on June 16, 1954, declaring the fluoridation of the water supply to be in the interest of the public health and further providing, in part: ‘...hat steps for the introduction of fluoride in a concentration adequate for safety and in accordance with the regulations prescribed by the Illinois Department of Health be undertaken by the City of Chicago through its Department of Water and Sewers with the cooperation of the Chicago Board of Health by January 1, 1955.’ Thereafter, the program and its manner of execution and administration were approved by the Illinois Department of Health and it was set into operation on May 1, 1956. It appears that the city water supply, taken from Lake Michigan, has a natural fluoride content ranging from approximately .04 to .15 parts to a million parts of water. Under the program fluoride is added at strategic control points in quantities sufficient to maintain in the entire city system an optimum fluoride level of 1.0 part per million parts of water. There is no question but that the city uses the most advanced, safe and sanitary methods to inject the fluorido into the supply, and it also appears that constant tests to determine fluoride content are performed both by the city and the State. Shortly after the program went into effect, the plaintiffs, suing as taxpayers and users of the city's water system, brought this suit for injunctive relief. One plaintiff is a dentist in general practice, two are housewives and the fourth, Walter Olson, is a practicing member of a religious sect which rejects the use of material medicine and relies upon spiritual means alone for healing disease. The cause was referred to a master in chancery to hear the evidence. After prolonged hearings and upon consideration of a voluminous record, the master made three basic findings of fact: (1) that fluoridation reduces dental caries by sixty per cent in children up to fourteen years of age; (2) that fluoridation of one part per million parts of water will not cause mottled teeth; and (3) that fluoridation to such extent will not cause systemic physical harm to the population as a whole. On the basis of such findings, as well as his conclusions that no legal rights were violated, the master recommended that plaintiffs' complaint be dismissed for want of equity. After exceptions to the master's report had been considered and overruled, such a decree was entered. This appeal has followed. Essentially, plaintiffs' contentions are that the master's findings of fact are either unsupported by the evidence or against the manifest weight thereof, that the legislative action in question is an unreasonable, arbitrary and unwarranted exercise of the police power, and that it infringes upon fundamental liberties protected by constitutional guarantees of due process of law. As to the plaintiff Olson it was contended below and in the brief filed in this court, that the fluoridation program was compulsory medication which violated the right to religious freedom guaranteed him by the first and fourteenth amendments to the Federal constitution. However, the latter issue, no stranger to the halls of justice in the setting here raised, (See: Dowell v. City of Tulsa, (Okla.1954,) 273 P.2d 859, 864, 43 A.L.R.2d 445, certiorari denied 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; Readey v. St. Louis County Water Co. (Mo.1961,) 352 S.W.2d 622, 628,) has become moot and is no longer an issue in the appeal, under the circumstance that the plaintiff Olson has voluntarily withdrawn and obtained a dismissal of the appeal as it relates to him. It is axiomatic that this, court, unless the public interest demands it, will not consider abstract or moot questions, (cf. People ex rel. Lawrence v. Village of Oak Park, 356 Ill. 154, 190 N.E. 286; National Jockey Club v. Illinois Racing Comm., 364 Ill. 630, 5 N.E.2d 224,) and, moreover, the remaining plaintiffs are not injuriously affected by the operation of the legislation on such ground. Cf. Klein v. Dept. of Registration and Education, 412 Ill. 75, 87, 105 N.E.2d 758; City of Chicago v. Rhine, 363 Ill. 619, 626, 2 N.E.2d 905, 105 A.L.R. 1045. The police power of the State is a basic attribute of sovereignty which exists without any special grant or reservation in the constitution, (Chicago Junction Railway Co. v. Illinois Commerce Comm., 412 Ill. 579, 107 N.E.2d 758; Berry v. City of Chicago, 320 Ill. 536, 151 N.E. 581,) and we may begin our consideration of the issues here raised with the statement of two elementary and undeniable principles. First, that the police power may be validly exercised in order to protect the public health, ( City of West Frankfort v. Fullop, 6 Ill.2d 609, 129 N.E.2d 682; People ex rel. Kerner v. Huls, 355 Ill. 412, 189 N.E. 346,) and that the State of Illinois, as it may lawfully do, has delegated to its municipalities the police power to protect the public health both generally (Ill.Rev.Stat.1963, chap. 24, par. 11-20-5), and specifically with respect to water systems. (Ill.Rev.Stat.1963, chap. 24, par. 11-139-8(2); see also: Gundling v. City of Chicago, 176 Ill. 340, 52 N.E. 44, 48 L.R.A. 230.) Equally settled and certain is the concept that a police measure, to be beyond the pale of constitutional infirmity, must bear a reasonable relation to the public health or other purpose sought to be served, the means being reasonably necessary and suitable for the accomplishment of such purpose, ( Strub v. Village of Deerfield, 19 Ill.2d 401, 167 N.E.2d 178, 83 A.L.R.2d 795; Vissering Mercantile Co. v. Annunzio, 1 Ill.2d 108, 115 N.E.2d 306, 39 A.L.R.2d 728; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385,) and the principle that courts will not interfere with legislation falling within the orbit of a municipality's police power unless there is a palpably arbitrary or unfair exercise of the power. ( City of Chicago v. R. & X. Restaurant, 369 Ill. 65, 15 N.E.2d 725, 117 A.L.R. 1313; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495.) The first issues thus confronting us are whether the fluoridation of water is so related to the public health as to constitute it a proper exercise of the police power, and whether fluoridation is reasonably necessary and suitable for the protection of the public health. And while the matter is one of first impression in this jurisdiction, it is a question which has been the subject of much litigation in our time. In this country, on the occasions where the matter has been subjected to judicial scrutiny, there has been unanimous accord that the fluoridation of water by one part of fluoride to a million parts of water is a reasonable and proper exercise of the police power in the interest of the public health, and that it is not subject to constitutional infirmities thus far conceived. (See: Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, certiorari denied 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, certiorari denied 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Dowell v. City of Tulsa, (Okla.1954,) 273 P.2d 859, 43 A.L.R.2d 445, certiorari denied 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; de Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, certiorari denied 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242; Readey v. St. Louis County Water Co. (Mo. 1961), 352 S.W.2d 622; Baer v. City of Bend, 206 Or. 221, 292 P.2d 134; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; City Commission of City of Fort Pierce v. State ex rel. Altenhoff, (Fla.App. 1962,) 143 So.2d 879. Cf. Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569.) On the other hand, we are told in plaintiffs' brief that the highest courts of Canada and Sweden have ruled against fluoridation, the former apparently concluding that such a program was beyond the statutory authority of municipalities, (Municipality of Metropolitan Toronto v. Village of Forest Hill, (1957) 9 D.L.R.2d 113,) and the latter apparently concluding, among other things, that there were possibilities of risk and disadvantage to health. (Association for Promotion of Health v. Town of Norrokopping, (Sweden, 1961.) The High Court of Dublin, Ireland, to the contrary, shares the American view to date that fluoridation of public waters is neither physically harmful nor legally improper. Ryan v. Attorney General, (1963.) On approaching the factual issue of whether the fluoridation of drinking water by one part per million is reasonably related to and suitable for the protection of the public health, it may be said to be uncontradicted that dental caries, or tooth decay, presents a continuing and unsolved problem of general health on a national scale, and that it is a disease from which no community, level of society or age group is immune. Fluorides, in varying proportions, exist naturally in the water supplies of many areas and at a time in history we take to be around the early 1930's, it was discovered that dental experience was significantly different in such areas. Generally speaking, those differences were a lower percentage of tooth decay, and in some areas, an incidence of mottled teeth, or chronic endemic fluorosis. The result of these discoveries was extensive scientific study, research, testing and experimentation which ultimately laid the basis for the program of artificially fluoridating public drinking waters. Reduced to their simplest terms, the general scientific conclusions reached were: that the ingestion of fluoridated waters results in a hardening of tooth enamel which makes for greater resistance to tooth decay; that the beneficial effects develop in the human body from birth through the ages of 12 to 14 years, being the period when the dentine and enamel of permanent teeth are being formed; that the protection acquired in the formative stages carries over into adult life; that the ingestion of fluorides in moderate amounts has no harmful effects on the human body; and that seriously mottled teeth occur only where excessive amounts of fluorides are ingested. Based upon these findings, and with the endorsement of various scientists, dental associations, health and medical groups, and governmental agencies, (e. g. the United States Department of Health and in our own jurisdiction the Illinois Department of Health,) many cities, starting in the early 1950's, began fluoridating public water supplies as a health measure. As could be expected, however, artificial fluoridation has not been entirely free from sincere and conscientious objection on the part of some scientific and medical men, and proposals to pursue such a program have been expressly rejected in some communities. In the present case plaintiffs introduced evidence, largely through the medium of expert opinion, to the effect that the ingestion of fluorides has no appreciable effect upon the reduction of dental caries, or at least a doubtful and as yet undetermined effect; that it merely delays and postpones tooth decay rather than preventing it; and that the whole problem of tooth decay, as well as its solution, is a matter of diet and nutrition in which fluorides are neither necessary nor a factor. Defendants' expert witnesses, for the most part men with long and extensive experience in the actual research and testing which has gone into the scientific effort to determine the relationship between the fluoride content of water and dental caries, testified exactly to the contrary. According to their opinions fluoridation has and does result in a direct reduction of dental caries among children, and by fluoridating Chicago's water supply at a level of one part per million decay will be reduced in the permanent teeth of children by as much an 50 to 60% after a period of 10 years. Fluoride is a toxic substance, which is not an essential element of the human body, and when introduced into the system by whatever means is in part absorbed and accumulated in bones and body tissues, as well as in the teeth. While conceding that the susceptibilities of the particular individual and the amounts of fluoride involved are factors, plaintiffs' experts were of the opinion that one of the long range effects of fluoridating public drinking water could be the development of chronic fluoride poisoning in a substantial number of citizens. Such a condition, they stated, would interfere with certain natural body processes as its primary effect, and as possible secondary effects could cause nausea, vomiting, constipation, diarrhea, changes in the hair, skin and nails, skin eruptions, abnormal bones and kideny stones. Additionally, they testified that damage would result to the kidneys, liver and other vital organs; that the nervous system would be directly and harmfully affected; that the spine would be affected; that loss of muscle power and altered reflexes would occur; and that the poisoning would interfere with reproduction, decrease fertility, decrease the mother's milk supply, increase still births and stunt growth. The classified diabetics, people susceptible to allergies, arthritics and women during pregnancy and menstrual periods as groups particularly sensitive to any intake of fluoride. One of the plaintiffs, a practicing dentist who examined only 16 to 18 young patients a year, testified that since the commencement of fluoridation of water in Chicago he had observed gum damage in the mouths of children. This was flatly contradicted by witnesses for defendants who examine thousands of children each year. Based upon tests with animals, upon statistics relative to fluoride poisoning, upon tests and studies of the retention and excretion rate of fluoride in the human body, upon medical experience and upon a series of autopsies performed upon bodies of persons living where the water supply had a natural fluoride content of 2.5 parts per million parts of water, defendants' experts testified in essence that the lifetime consumption of water fluoridated by one part per million would have no harmful or adverse effects upon the human body, and were of the opinion that water fluoridated to such an extent could be safely ingested without cumulative toxic effect. More specifically, one defense witness testified that the ingestion of fluoride in such quantity and in such manner could not possibly have harmful effects upon bones, the kidneys, the heart or tissues of the body. According to another witness, only a small fraction of fluorides ingested is retained in the body, the greater portion being excreted naturally through the kidneys and sweat glands, and whenever the concentration of fluoride in the blood tends to rise the mechanisms which carry fluoride out of the blood also tend to increase their activity and to maintain a balance, unless overwhelmed by the sudden intake of large amounts of fluoride. In this connection, the witness stated that for the ingestion of fluorides to become dangerous a person would have to ingest at one time in the neighborhood of 1000 to 2000 times the amount that he could normally ingest in a day by drinking water fluoridated by one part per million. On the subject of retention by the human body, a witness for plaintiffs testified there are variations from individual to individual, some retaining more than others, and it was his opinion that children who would retain the whole intake of fluoride from Chicago's water would be susceptible to ill effects as time progressed. Over defendants' objection, the same witness was permitted to testify to an uncompleted experiment he was conducting by injecting fluoride in a concentration of 6.8 parts per million, (for in excess of the optimum level maintained by Chicago,) into a group of 30 persons, 20 of whom were already afflicted with fluorosis and 10 of whom were ‘not suspected of fluorosis.’ According to his preliminary findings and report, the persons suffering from fluorosis excreted an average of 25.6% of the fluoride administered, while the others eliminated an average of 57.1%. There was a similar division of evidence and opinion on the issue of whether fluoridation by one part per million would result in widespread chronic endemic fluorosis, or mottled enamel. This condition, which has its beginning from the effect of fluoride on the enamel-forming cells of the tooth bud, does not effect the tooth structurally or functionally but presents largely a problem of cosmetics or esthetics. Its incidence follows no fixed pattern, individual differences and other variables again apparently playing a part, and it may range from mild to severe cases and varying degrees in between. In its mildest form, detectable only by the trained eye, the tooth appears bleached or chalky white in its entirety or in spots. Later, in the progression to a severe case, the enamel tends to become pitted and stained yellow, brown or almost black. Also, it appears that, for the most part, the condition ordinarily occurs on surfaces which are not apparent from outside the mouth. Generally, it was the testimony of defendants' experts that in order for mottled teeth to occur the intake of fluoride would have to be excessive, one witness stating the concentration would have to be above three parts per million; that no disfiguring or severe mottling would occur where there was a concentration of only one part per million; that instances of dental fluorosis had been few and far between in Chicago and other communities having a comparable program; and that a mottled tooth was preferable to a decayed tooth from the point of view of general body health. For the plaintiffs, an expert testified that 17% of the children drinking artificially fluoridated water from birth until they are old enough to have permanently erupted teeth will show some degree of mottled enamel, and a showing was made of statistical studies revealing the incidence of mottling, or suspected mottling, in communities where the natural fluoride content of their water supplies ranged from .2 to 1.2 parts per million parts of water. The statistician, however, who happened to be one of the expert witnesses for defendants, classified the cases of mottling as ‘mild’ or ‘very mild’ and, while we entertain some doubt as to the validity or consistency of his conclusion, testified in this cause that the statistical experience of other communities in this respect could not be projected to the city of Chicago. We do not agree that the master's findings of fact are either against the manifest weight of the evidence, or in some instances without evidentiary support, as plaintiffs contend. A presumption of validity attaches to municipal enactments and regulations adopted under the police power and the burden of proving to the contrary is upon him who asserts the invalidity. ( Keig Stevens Baking Co. v. City of Savanna, 380 Ill. 303, 44 N.E.2d 23; Stearns v. City of Chicago, 368 Ill. 112, 13 N.E.2d 63, 114 A.L.R. 1507.) And while, as we have noted, such legislative action is generally subject to judicial review to determine whether it is related to and reasonably necessary and suitable for the protection of the public health, safety, welfare or morals, courts will not disturb a police regulation where there is room for a difference of opinion, but in such case the legislative judgment will prevail. ( McCray v. City of Chicago, 292 Ill. 60, 126 N.E. 557; Dunlap v. City of Woodstock, 405 Ill. 410, 91 N.E.2d 434.) Furthermore, the wisdom, necessity and expediency of police regulations are no concern of the courts, but are matters primarily for the legislative body of the municipality, and courts are without power to interfere merely because they believe a different regulation might have been wiser or better. City of Chicago v. Waters, 363 Ill. 125, 1 N.E.2d 396; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495. From all of the evidence in this record, as well as the scientific, professional and legal authorities which have been brought before us, there appears to be extraordinary accord that fluorides act to prevent and reduce tooth decay, and that artificial fluoridation to the extent of one part per million parts of water will not, either presently or cumulatively, result in harmful systemic effects. Apart from the extensive scientific research which led to these conclusions, equally impressive are the painstaking legislative inquiries at Federal, State and local levels which have preceded the endorsement and adoption of fluoridation programs. As we see it, the closest factual issue arises over the question whether artificial fluoridation, to the extent here involved, will in fact produce what could be described as harmful effects in the matter of mottled teeth. At best, however, the evidence with respect thereto presents only a debatable question where there is room for difference of opinion, and while it is our belief the proof is more susceptible to a conclusion that severe and disfiguring endemic dental fluorosis will not result from artificial fluoridation to the extent practiced here, it is enough to say it is an area in which the legislative judgment must prevail. We conclude that the artificial fluoridation of water is reasonably related to the public health, and that the program adopted by Chicago is necessary and suitable for the protection of public health. Departing from considerations directly related to bodily health, plaintiffs also contend that the Chicago program is arbitrary and unreasonable because it is wasteful and because it is being administered in a ‘haphazard’ manner. We do not find that either point is well taken. The claim of haphazard administration is founded upon charts of daily tests which show that the fluoride content does not at all times measure at precisely one part per million parts of water, but fluctuates in varying degrees slightly above or slightly below that figure. However, further proof shows that the absolute perfection for which plaintiffs contend is not possible to achieve, that the city tries and usually does maintain the proportion of fluoride so there will be .95 parts per million parts of water, and that the amounts of fluoride ingested in those instances where the content slightly exceeds one part per million will not have present or cumulative harmful effects. We would add, too, it appears that the methods, tests and controls being employed to insure safety meet the highest standards. The claim of a wasteful program arises from the fact that the program has had a capital outlay of roughly $500,000 and operational costs of about $350,000 a year, and from the circumstances that Chicago has but one system of pipes to distribute its water supply with the result that only a small fraction of the total fluoridated supply is actually ingested by the 6 to 14 age group it is intended to benefit. This, the plaintiffs urge, is a needless waste of public funds particularly in view of the alternate methods by which fluorides could be administered to children, as for example: by topical application, by pills dissolved in water, and by the use of fluoridated milk, mouthwash or toothpaste. There is, however, proof in the record that such alternative methods would not be as safe, economical and effective as the fluoridated water program, that they would not effectively accomplish the widespread public purpose of the program, that the only practical method of employing the beneficial effects of fluoride is by treating drinking water, and that the public expense and apparent waste of a part of the fluoridated water supply is more than offset by the beneficial results to be attained. Taking into account all of the circumstances, particularly the purpose of benefitting the entire population, we cannot say that the program is unreasonable or arbitrary on such ground. Cf. Readey v. St. Louis County Water Co. (Mo.1961,) 352 S.W.2d 622, 632; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, 612. Finally, plaintiffs assert that the program is an improper exercise of the police power because tooth decay is not a communicable or epidemic disease; because only a small segment of the population, the city's children, are benefited; and because its subjects all users to mass medication in violation of the fundamental and inalienable right of each individual to determine whether or not they wish to be so treated. These constitutional claims have both their source and their unanimous rejection in the decisions of our sister States, heretofore cited, which have treated upon the problem and we see no useful purpose in a detailed analysis or repetition of the grounds for rejection. Suffice it to say that those well-reasoned precedents, with which we are in accord: (1) sustain the right of municipalities to adopt reasonable measures to improve or protect the public health, even though communicable or epidemic diseases are not involved; (2) hold that the benefits of fluoridation which carry over into adulthood absolve such programs of the charge of being class legislation; and (3) conclude that fluoridation programs, even if considered to be medication in the true sense of the word, are so necessarily and reasonably related to the common good that the rights of the individual must give way. Cf. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. Two collateral issues remain to be considered. First, the contention of plaintiffs that the exercise of the police power here is invalid because it was accomplished by resolution rather than by ordinance; and second, the contention of defendants on cross appeal that the trial court erred in apportioning half of the master's fees and charges to the city of Chicago. We do not find, however, that the first issue was ever raised or passed upon in the trial court, with the result that it is not properly before us for review and will not be considered. ( Pickus v. Board of Education, 9 Ill.2d 599, 138 N.E.2d 532; Zehender & Factor, Inc. v. Murphy, 386 Ill. 258, 53 N.E.2d 944.) As to the second, it is axiomatic that the assessment and apportionment of fees and costs rest in the sound discretion of the trial court, ( McFail v. Braden, 19 Ill.2d 108, 166 N.E.2d 46; Jones v. Felix, 372 Ill. 262, 23 N.E.2d 706;) and we perceive no abuse of discretion in this case. While the judicial view of artificial fluoridation has since become crystallized and fixed along discernible lines, the complaint filed in this proceeding, which has been unduly prolonged, reflects generally upon a time when the constitutionality of such programs was uncertain and when the bona fides of plaintiffs' action could not seriously be contested. The decree of the superior court of Cook County was correct and is therefor affirmed. Decree affirmed.

+/- Graybeal v. McNevin

Kentucky, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations

• Plaintiff
  M.E. Graybeal et al.
• Defendant
  Christopher McNevin
• State
  Kentucky
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations
• Citation
  439 S.W.2d 323 (Ky. Ct. Ap. 1969)
• Year
  1969-00-00T00:00:00
• Court Name
  Court of Appeals of Kentucky
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Hill EP
• Opinion Text
  EDWARD P. HILL, Judge. The judgment from which this appeal is prosecuted enjoins the fluoridation of the water system in Somerset, Kentucky, and adjoining area. We reverse the judgment. The questions herein presented have not heretofore been presented or decided by this court, although fluoridation of public water supplies has been in operation in Newburgh, New York, and Grand Rapids, Michigan, since 1945. Maysville, Greensburg, and Louisville in 1951 were the first Kentucky cities to fluoridize their water supplies. This suit was filed by appellee, Christopher B. McNevin, a doctor of chiropractic in Somerset, against M. G. Graybeal and Kentucky Water Service Company. Later the Kentucky State Board of Health was permitted to intervene. In May 1966, the State Board of Health, acting pursuant to KRS 211.090(1)(d) and 211.180, adopted an amendment to Regulation C-NEG-2, Fluoridation of Public Water Supplies, by which cities of the first four classes are permitted to ‘adjust deficient waters to an optimum fluoride content for the protection of the dental health of the people served by the supply.’ The regulation provided that approval by the Department of Health was made contingent upon provision by the supplier of fluoridation insuring adequate control and supervision and safe operation and maintenance. Requirements as to equipment, facilities, and service were rigidly prescribed, covering reliable feeding equipment and the rate of feed, protection of operators, separate storage of the fluoride chemical, laboratory facilities, testing and sampling and the submission of samples to the department. Other safety provisions were embodied in the regulation. Memoranda were issued to mayors and water plant superintendents, including those of Somerset, advising them that the water systems of those cities in which fluoridation was not installed within six months would be classified as ‘provisional’ in lieu of the ‘approved’ rating existing before the adoption of the regulation, which according to appellee amounted to the approval of fluoridation and a downgrading of the water system of those not complying with the regulation. The regulation fixed the ‘optimum fluoride content’ of public water supplies to be achieved by the regulation to be one-part fluoride per one-million parts of water. The Somerset water system, built in 1957, included a separate room and some facilities for fluoridation in anticipation of future use. On January 23, 1967, the city council of Somerset adopted a resolution requesting appellant Kentucky Water Service Company to ‘install as soon as possible’ the necessary equipment to introduce fluoride into the city water system. This company has been the supplier of public water in Somerset since 1957. Appellee questions the validity of the regulation referred to above by charging that the regulation (1) is in violation of KRS 315.020, regulating the dispensing of drugs; (2) violates his ‘right to freedom of religion’; (3) violates his rights under section one of the Fourteenth Amendment to the Constitution of the United States; (4) is ‘arbitrary and in violation of section two of the Constitution of Kentucky.’ He further asserts that he had no opportunity to be heard and we denied due process; and that the proposed action by the city will do incalculable harm to his health, to the health of his family, and to other consumers. After a lengthy trial by the court without a jury, the trial court fully agreed with plaintiff and granted the permanent injunctive relief sought. The State Board of Health and the Kentucky Water Service (hereinafter Water Service) have appealed. Fluoridation had been commenced February 10, 1967, but was discontinued by the injunction herein on April 7, 1967. By Chapter 211 of KRS the legislature has wisely recognized and declared that the public health is an ‘essential function’ of the government of this Commonwealth. KRS 211.005. ‘The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice.’ See Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445 and KRS 211.180. The State Board of Health is empowered to ‘adopt rules and regulations.’ KRS 211.090(1)(d). Among the police powers of government, the power to promote and safeguard the public health ranks at the top. If the right of an individual runs afoul of the exercise of this power, the right of the individual must yield. The State Board of Health is composed of ten members, including the Commissioner of Health. One member must be a registered pharmacist, one a licensed dentist, one a licensed osteopath, and the remaining six members shall be ‘licensed medical physicians.’ It is a regulation of this board in the field of fluoridation, a medical-scientific field, that appellee McNevin petitions the court, composed of men of law, not medicine or science, to set aside and hold for naught. The general rule in regard to judicial review of rules and regulations of administrative agencies is thus stated in 42 Am.Jur., Public Administrative Law, s 209: ‘In general, in the absence of valid statutory provisions or other factors affecting the scope and extent of judicial review, administrative determinations will not be interfered with by the courts unless, but will be interfered with where, the determination is beyond the power which could constitutionally be vested in or exercised by an administrative authority; the determination is without or in excess of the statutory powers and jurisdiction of the administrative authority, the determination is an exercise of power so arbitrary or unreasonable as virtually to transcend the authority conferred, or is otherwise an abuse of discretion, or is in disregard of the fundamental rules of due process of law, as required by constitutional or statutory directions...made... .’ This general rule of judicial review may not apply with equal force to a regulation by an agency composed of specialists in an area in which the courts must acknowledge a limited understanding. Speaking in this vein, it was written in Hutchinson vo City of Valdosta, 227 U.S. 303, at page 307, 33 S.Ct. 290, at page 292, 57 L.Ed. 520 that: ‘It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health (sewer control).’ (Emphasis added) See also 2 Am.Jur.2d Administrative Law, s 633, from which we quote the following: ‘Perhaps the most significant factor limiting review by the courts of action of administrative agencies generally, although undoubtedly variable in degrees appropriate to particular agencies, is the scope of the power which has been reposed in the administrative agency by statute and the informed and expert judgment of the agency based upon its accumulated experience in the matters with which the statute is concerned. Courts often advert to the expertness, special competence, specialized knowledge, or experience of the administrative agency which fortifies the judgment of the agency... .’ As the issues were presented in the trial court, the power of that court was limited to a determination of whether the regulation in question was arbitrary or in violation of appellee's constitutional rights in the particular respects pointed out by appellee. On the issue of arbitrariness, the burden was on the plaintiff to show that the regulation had no reasonable basis in fact or had no reasonable relation to the protection of the public health. The consitutional question was one of law. Probably the true test of arbitrariness would depend on the evidence the board had before it when it adopted the resolution. But the parties went beyond this test and proceeded to offer evidence in circuit court, so we consider the case as practiced. We must look to the facts in this record and the facts before the board when it adopted the requlation to determine whether the finding of the trial court of arbitrariness is ‘clearly erroneous.’ CR 52.01. Necessarily this will be a lengthy process due to the importance we attach to the qualification of the witnesses. We first discuss appellants' witnesses and their evidence. Dr. Russell E. Teague has been Commissioner of Health in Kentucky since 1956, and is a member of the State Board of Health. He has been with the State Department of Health since 1930 except for a one-year leave to earn a master's degree in public health and epidemiology at Johns Hopkins. He was president of the American Association of State and Territorial Health Commissioners in 1967. Dr. Teague testified that of Kentucky's 3,000,000 population the number served by public water supplies is 1,800,000, and out of this number some 1,200,000, or 64 percent, drink water containing fluoride; that extensive studies and tests were made preceding the use of fluoridation in this state. The first test showed dental defects in 90 percent of the school children. After 10 years' use of fluoride, these tests showed a 90-percent reduction in dental defects in school children; that recent tests in Louisville, Maysville, and Ashland showed similar results; that significant benefits also accrue even where availability of fluoride is deferred to later years, and these benefits continue into and through old age; that there is substantial evidence that controlled fluoridation produces stronger bone structure, beneficial to older people. Dr. Teague testified that modern fluoride equipment is safe and presents no health problem and that proper fluoridation ‘does not in any sense produce harm to the health of the people.’ Nick G. Johnson, Director, Sanitary Engineering Program, Division of Environmental Health, State Department of Health, is responsible for enforcement of public water supply regulatory measures. He has a bachelor's degree in civil engineering from the University of Louisville, and a master's degree in sanitary engineering from the University of Michigan. He has been with the Department of Health for 20 years. He testified that all requirements and specifications of the regulation were fully met, both as to equipment and management personnel. Dr. M. A. Shepherd is the Regional Medical Director, Central Region (embracing 20 counties), State Department of Health. He is a physician with 12 years' experience in this work with headquarters in Somerset. He practiced medicine there before his association with the Department of Health. He stated that there was a great demand by the citizens of Somerset for fluoridation. He said: ‘As a public health physician certainly it has been my duty to research the literature in the field of public health and I have read extensively in the literature etc., there has been no documented evidence of any danger or any damage done from using fluorided public water. ...Every national health organization in the United States that speaks with authority on the benefits and safety of fluoridation has adopted policies favorable to the meansure. ...They...(include) the American Dental Association, American Medical Association, American Association of Public Health Dentists, Association of State and Territorial Dental Directors, Association of State and Territorial Health Officers, National Research Council, U.S. Public Health Service, American Association for the Advancement of Science, American Academy of Pediatrics, Commission on Chronic Illness, Inter-Association Committee on Health, American Society of Denistry for Children, American Public Health Association, American Academy of Dental Medicine, Canadian Dental Association, Canadian Medical Association, Canadian Public Health Association, International Dental Federation, American Pharmaceutical Association, National Congress of Parents and Teachers, American Federation of Labor and Congress of Industrial Organizations, American Legion, U.S. Junior Chamber of Commerce.’ Dr. E. D. Gernert has the D.M.D. and M.P.H. degrees. He is professor of community dentistry, University of Louisville, and was Director of Dental Health, State Department of Health, until 1967. Dr. Gernet testified he has closely followed the development of fluoridation since 1945 and studied the various tests and research on the subject; that he participated in various studies himself; that he and his associates ‘accumulated base line statistics on the condition of children's mouths and...took a mortality and morbidity rating on these communities' (Maysville, Greensburg, and Louisville) and that they followed these studies periodically; that they ‘found that when the children had full benefits of fluoridation from birth on there was a 60% reduction in tooth decay.’ That there was ‘no evidence of any impairment to health in these children from the study of the morbidity and mortality rates.’ Dr. Gernert further stated: ‘Long before 1945 when Newburgh, New York, was fluoridated, we were certain there was no detriment to health from fluoride in the diet or water, and the question at that time was whether we could actually put the fluoride in and control it without too much expense and too much difficulty. Of course, the Newburgh studies and the Grand Rapids studies, and others assured us that this could be done. Extensive studies in Newburgh, New York, health study of the general health of the patient, blood studies, bone studies, X-ray studies and everything else were conducted during this procedure or method of fluoridation, so that long before 1951 when we advocated fluoridation for communities in Kentucky, in my opinion there was no question as to the safety of the procedure, and this has been borne out by sixteen years of experience in fluoridation in community water supplies in this state.’ He also stated that fluoridation process does not constitute the dispensing of drugs or medicine; that fluoridation is not a medication, it is a ‘nutrient which produces stronger teeth and bones'; that fluoridation is ‘one of the great discoveries of our time’; and that it ‘is safe.’ A. B. Coxwell, D.M.D., is executive secretary of the Kentucky Dental Association and has practiced dentistry for 20 years. He testified that the House of Delegates of the Kentucky Dental Association passed a resolution ‘demanding that the State Board of Health take action to see that the water system of the State of Kentucky be adequately fluoridated’; that ‘every known accredited organization in the world has approved the fluoridation of water supplies for the prevention of dental caries'; that he had never seen ‘any evidence of any harm done to any one’ due to fluoridation. Dr. Pat H. Lyddan, a pedodontist, with a D.D.S. degree, has served as president of the Kentucky Dental Association, and as an instructor in children's dentistry at the University of Louisville for 22 years. Dr. Lyddan gave this answer to a question as to his experience: ‘After the water was fluoridated in Louisville, within two or three years after the water was fluoridated, we began to see in our practice and this was not only true in our practice and this was not only well, I will get to that in a moment, the nature of my practice changed remarkably. Up until that time we were fighting a losing battle just to be able to restore all the decaying teeth, and in a period of about three years our practice changed to one where we were able to do more preventive dentistry, or what we call interceptive dentistry or preventive dentistry and to educate the parents, and also the patients to try to prevent tooth decay, due to the fact that we had this 60% reduction in decay, because of fluoridation of our local water supply. Also in addition the American Society of Dentistry for Children made a study of pedodontics all over the country, and in areas where the water was fluoridated, the result bore out the statement that I made, that all of us who practice in fluoridated areas, that our practice changed from 80 or 90 percent restorative dentistry, or trying to restore and fill the decayed teeth, to something like 60% of our practice became more or less a maintenance and preventive type of practice.’ When asked as to whether he knew of any harm due to fluoridation, he said: ‘No, I have not. In addition during the war I lived in a community in Texas where the water contained from 2 1/2 to 3 1/3 parts fluoride, naturally, and in addition to not having very much cavities, the general health of all the people in this community was excellent.’ Dr. Alvin L. Morris has the D.D.S. and Ph.D. degrees and has been Dean of the University of Kentucky College of Dentistry since 1961. He gave this answer as to the effect of fluoridation: ‘It is the responsibility of the Dean to serve as the major administrative officer of the academic institution, also to engage in instruction and some research. ... The evidence is overwhelming that water containing one part per million of fluoride will result in the reduction of new cavities developing in children to the extent of approximately 60 per cent. During my past experience in academic life I have had the privilege of serving as a colleague for three years with Dr. Harold Hodge, and Dr. Frank Smith, of the University of Rochester. These gentlemen have been responsible for doing the major research relative to the benefits of fluoride on biologic tissues. Their research, which was taking place during the time I was working with them revealed unequivocally that there would be no detrimental or harmful effects to the health of anyone consuming a water supply containing one part per million. Their research has been regarded as the key work, and the earliest work for establishing this fact on an experimental basis. Since that time, the experience with some 63 million Americans who have been and are drinking public water supplies with fluoride added to these amounts has completely substantiated their research.’ Dr. D. L. Gambrall, D.M.D., M.P.H., is Acting Director, Dental Health Program of the State Department of Health. His M.P.H. degree is from the University of Michigan. He stated: ‘During my first year with the State Health Department I was in the clinical program. In this program we provided care to children throughout the state, indigent children, mostly. In many areas I worked on children who did not have the benefit of fluoridated water. The prevalence of caries was immense. In other areas we did get to work on children who had had fluoridated water, and had received fluoride for their entire lives, and there was, you would note immediately a tremendous reduction in dental decay in the range of 60 per cent or better.’ W. L. Williams had been with the Louisville Water Company for 20 years. He was superintendent of the purification plant and has a bachelor's degree in chemistry and a master's degree in bacteriology. He had been an instructor on these subjects in high schools and at the University of Louisville Medical College for 19 years. When asked about the corrosive effects of fluoride on water pipes, Mr. Williams replied: ‘It is generally known that fluoride causes no corrosion at all.’ He stated that over one-half million people are served by the Louisville Water System, and in all the thousands of complaints by water consumers ‘none of them had anything to do with fluoride.’ F. J. Maier is a consulting engineer for Pan-American Health Organization, with 33 years' experience in sanitary engineering,^FN1 part of which period he was in charge of a laboratory in Bethesda, Maryland, relative to the problems associated with fluoride in water. He was asked this question and gave the following answer: FN1. This experience was with the U.S. Public Health Service. ‘Q.5 Mr. Maier, during the time you headed up the fluoridation program of the United States Public Health Service, did you learn of any ill effects on any person throughout the United States from having consumed fluoridated water that was properly administered, that is, proper amounts? ‘A. We have no single instance in the United States, or anywhere in the world where fluoridation is practiced that this has occurred.’ He also stated he never in all his years of experience had heard of fluoride causing corrosion in water pipes. He gave testimony that the equipment proposed at Somerset was standard, safe equipment. There was other testimony by other disinterested, qualified witnesses for appellants, and we have given only the high points in the testimony of the witnesses to whom we have just referred. We turn now to the evidence offered by appellee in opposition to fluoridation. Appellee, Dr. McNevin, a local chiropractor, testified that sodium fluoride is a virulent poison, a fact which is admitted by the appellants; that when fluoridation was commenced he became alarmed for the safety of himself and his family; and that the consumption of fluoridated water would be injurious to them. Dr. Ray McPike, a Louisville chiropractor, testified that fluoride does not treat water, but instead treats people and introduced a number of exhibits, over the appellants' objection, indicating the continued consumption of fluoride would be harmful to children. George Whatley Massey, a graduate of Ohio State University, a student at Georgia Institute of Technology, and an instrumentation engineer of Knoxville, Tennessee, testified that ingestion of anything over 1.25 PPM is likely to be toxic and that this is the ‘safe’ amount claimed by the U.S. Public Health Service; that fluoride is corrosive in pipes as shown by experience in the cities of Pittsburgh, Miami, Concord, New Hampshire, and Andover, Massachusetts; that in Pittsburgh it was necessary to add 3 PPM at the water plant to get the recommended 1 PPM at the tap; that the surplus fluoride concentrated and remained in water pipes up to 8,000 PPM in Concord and that 400 PPM is a lethal dose; that evidence from the Grand Rapids, Philadelphia, and Evanston, Illinois, experience indicated that children drinking fluoridated water do not get fewer cavities but only an approximate three-year delay; that the safety factor of the ingestion of fluoride is 0; that fluoride concentrates of 6,000 PPM were found in 16-inch water mains, and of 2,500 PPM in a 3/4-inch house water line in fluoridated San Francisco, and that in Concord, New Hampshire, where no fluoride had been added to the water supply for two weeks it was found the water still had a concentration of 2.8 PPM. Cecil Petard, M.D., of Knoxville, Tennessee, a practicing physician for 16 years, a member of the American Medical Association and of the Association of American Physicians and Surgeons, testified that the American Medical Association is not prepared to state that ‘no harm will be done to any person by water fluoridation’ and has not carried out any research, either long-term or short-term, regarding the possibility of any side effects; that the AMA does not guarantee the safety of fluoridated water; that a 1963 article published in the American Journal of Diseases of Children stated it is unnecessary and unwise to add fluoride to drinking water for the reasons, among others, that the dosage is highly variable and inaccurate and that older children and adults need not and should not be dosed with the drug; that he has two patients who have been harmed and suffered illness from drinking fluoridated water from a public water supply; that the Association of American Physicians and Surgeons, Inc. in San Francisco on April 12, 1958, adopted a resolution condemning the addition of any substance to public water supplies for the purpose of affecting the bodies or mental functions of consumers; that there is evidence to indicate that fluoridation increased the death rate in Grand Rapids over the area outside the city, and unfluoridated Knoxville, Tennessee, has a death rate lower than the state average; that fluoridation increases the incident of mongoloid births to an alarming degree. Dr. Petard further testified there is considerable disagreement among the doctors of Knoxville over the desirability of fluoridation as a health meansure, and that he as a physician was not in favor of adding fluoride to public drinking water because he would rather wait until better evidence is in, an opinion in which he is apparently joined by the United States Veterans Administration and opposed by the United States Public Health Service. Dr. Petard also testified that very few dentists in Knoxville prescribed fluoride for the teeth of patients. Mr. J. V. Adams of New Albany, Indiana, with a bachelor's degree in chemistry, a master's degree in public health from the University of Michigan, a director's degree in health and safety from Indiana University, and who is now working on a doctorate degree, testified that sodium fluoride is a poison, originally used as a rat and roach killer, and that continued ingestion of fluoride over a period of time would accumulate in the human body; that his experiments indicated that certain foods contain high concentration of fluoride and that it is the highest and strongest chemical; that it concentrates and accumulates in water pipes and in the body; that people ingest it in varying quantities by eating, breathing, and drinking water, and that it is the highest form of poison, is not a nutrient and has no food value; that the United States Public Health Service recommended the addition of iodine to the publice water supplies several years ago, then changed their position when they discovered it was producing certain systematic disorders-especially goiter; that fluoride cannot be controlled and that it affects the blood cells and nuclear cells in the human body. It is apparent that appellee's witnesses had had no applicable experience with fluoridation. They testified, for the most part, from information in newspapers and pamphlets, one of which was published by the Pure Water Association of Fresno, California. A large part of appellee's evidence is based on hearsay. See Kentucky Public Service Co. v. Topmiller, 204 Ky. 196, 263 S.W. 706 (1924); and 32 C.J.S. Evidence s 717. After considering the experience and qualification of appellants' witnesses and the lack of experience and qualification of appellee's witnesses, and the studies, tests, experiences, and recommendations of practically all the people and organizations into whose care the health of this nation has been entrusted, we conclude plaintiff failed in his burden to prove the resolution was arbitrary and that the finding of the trial court is clearly erroneous. Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761 (1935); and City of Louisville v. Thompson, Ky., 339 S.W.2d 869 (1960). In Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), the Supreme Court said writing on a kindred question of appellate review: ‘If there is any such power in judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when... a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ (Emphasis added.) Although this court has not had occasion to determine the legality of fluoridation, at least fourteen states have done so. See De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, cer. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1953); Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445, cer. den. 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1954); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, app. dis. 348 U.S. 892, 75, S.Ct. 216, 99 L.Ed. 701 (1954); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, app. dis. 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1955); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Readey v. St. Louis Country Water Co., Mo., 352 S.W.2d 622 (1961); City Commission of City of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879 (Ct.App.Fla.1962); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Paduano v. City of New York, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966); Attaya v. Town of Gonzales, 192 So.2d 188 (Ct.App.La., 1966); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959); and Wilson v. City of Mountlake Terrace, 69 Wash.2d 148, 417 P.2d 632 (1966). In De Aryan, Dowell, Chapman and Kraus, supra, the Supreme Court either denied certiorari or dismissed the appeal. We find no merit in appellee's contention that fluoridation of public water supplies violates his rights under the first section of the Founteenth Amendment to the Constitution of the United States or section two of the Constitution of Kentucky or KRS 315.020. See Dowell v. City of Tulsa, supra. During a period of over 20 years fluoridation has come through the experimental stage with flying colors. True, there have been critics of the system, and it had borne the blame for many defective water systems, many of which resulted from other causes. Any endeavor of such magnitude as fluoridation may encounter some imperfections due to human or mechanical error, but the benefits so far outweight the disadvantages the endeavor is justified. Nearly every great medical and scientific discovery has fought the battle of ‘trial and error’ and has been opposed by the skeptics and the incredulous. But progress demands that research persist unhampered by the courts. The judgment is reversed with directions to dissolve the injunction and dismiss the complaint. All concur.

+/- Attaya v. Town of Gonzales

Louisiana, Due Process Violations, Injunction, Unlicensed Practice of Medicine/Compulsory Medication

• Plaintiff
  Henry E. Attaya, et al.
• Defendant
  Town of Gonzales, et al.
• State
  Louisiana
• Other Parties
  -
• Case Tags
  - Due Process Violations

  - Injunction

  - Unlicensed Practice of Medicine/Compulsory Medication
• Citation

  192 So. 2d 188 (La. Ct. App. 1966)

• Year
  1966-01-01T00:00:00
• Court Name
  Court of Appeal of Louisiana, First Circuit
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Landry E
• Opinion Text
  EDWARD P. HILL, Judge. The judgment from which this appeal is prosecuted enjoins the fluoridation of the water system in Somerset, Kentucky, and adjoining area. We reverse the judgment. The questions herein presented have not heretofore been presented or decided by this court, although fluoridation of public water supplies has been in operation in Newburgh, New York, and Grand Rapids, Michigan, since 1945. Maysville, Greensburg, and Louisville in 1951 were the first Kentucky cities to fluoridize their water supplies. This suit was filed by appellee, Christopher B. McNevin, a doctor of chiropractic in Somerset, against M. G. Graybeal and Kentucky Water Service Company. Later the Kentucky State Board of Health was permitted to intervene. In May 1966, the State Board of Health, acting pursuant to KRS 211.090(1)(d) and 211.180, adopted an amendment to Regulation C-NEG-2, Fluoridation of Public Water Supplies, by which cities of the first four classes are permitted to ‘adjust deficient waters to an optimum fluoride content for the protection of the dental health of the people served by the supply.’ The regulation provided that approval by the Department of Health was made contingent upon provision by the supplier of fluoridation insuring adequate control and supervision and safe operation and maintenance. Requirements as to equipment, facilities, and service were rigidly prescribed, covering reliable feeding equipment and the rate of feed, protection of operators, separate storage of the fluoride chemical, laboratory facilities, testing and sampling and the submission of samples to the department. Other safety provisions were embodied in the regulation. Memoranda were issued to mayors and water plant superintendents, including those of Somerset, advising them that the water systems of those cities in which fluoridation was not installed within six months would be classified as ‘provisional’ in lieu of the ‘approved’ rating existing before the adoption of the regulation, which according to appellee amounted to the approval of fluoridation and a downgrading of the water system of those not complying with the regulation. The regulation fixed the ‘optimum fluoride content’ of public water supplies to be achieved by the regulation to be one-part fluoride per one-million parts of water. The Somerset water system, built in 1957, included a separate room and some facilities for fluoridation in anticipation of future use. On January 23, 1967, the city council of Somerset adopted a resolution requesting appellant Kentucky Water Service Company to ‘install as soon as possible’ the necessary equipment to introduce fluoride into the city water system. This company has been the supplier of public water in Somerset since 1957. Appellee questions the validity of the regulation referred to above by charging that the regulation (1) is in violation of KRS 315.020, regulating the dispensing of drugs; (2) violates his ‘right to freedom of religion’; (3) violates his rights under section one of the Fourteenth Amendment to the Constitution of the United States; (4) is ‘arbitrary and in violation of section two of the Constitution of Kentucky.’ He further asserts that he had no opportunity to be heard and we denied due process; and that the proposed action by the city will do incalculable harm to his health, to the health of his family, and to other consumers. After a lengthy trial by the court without a jury, the trial court fully agreed with plaintiff and granted the permanent injunctive relief sought. The State Board of Health and the Kentucky Water Service (hereinafter Water Service) have appealed. Fluoridation had been commenced February 10, 1967, but was discontinued by the injunction herein on April 7, 1967. By Chapter 211 of KRS the legislature has wisely recognized and declared that the public health is an ‘essential function’ of the government of this Commonwealth. KRS 211.005. ‘The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice.’ See Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445 and KRS 211.180. The State Board of Health is empowered to ‘adopt rules and regulations.’ KRS 211.090(1)(d). Among the police powers of government, the power to promote and safeguard the public health ranks at the top. If the right of an individual runs afoul of the exercise of this power, the right of the individual must yield. The State Board of Health is composed of ten members, including the Commissioner of Health. One member must be a registered pharmacist, one a licensed dentist, one a licensed osteopath, and the remaining six members shall be ‘licensed medical physicians.’ It is a regulation of this board in the field of fluoridation, a medical-scientific field, that appellee McNevin petitions the court, composed of men of law, not medicine or science, to set aside and hold for naught. The general rule in regard to judicial review of rules and regulations of administrative agencies is thus stated in 42 Am.Jur., Public Administrative Law, s 209: ‘In general, in the absence of valid statutory provisions or other factors affecting the scope and extent of judicial review, administrative determinations will not be interfered with by the courts unless, but will be interfered with where, the determination is beyond the power which could constitutionally be vested in or exercised by an administrative authority; the determination is without or in excess of the statutory powers and jurisdiction of the administrative authority, the determination is an exercise of power so arbitrary or unreasonable as virtually to transcend the authority conferred, or is otherwise an abuse of discretion, or is in disregard of the fundamental rules of due process of law, as required by constitutional or statutory directions...made... .’ This general rule of judicial review may not apply with equal force to a regulation by an agency composed of specialists in an area in which the courts must acknowledge a limited understanding. Speaking in this vein, it was written in Hutchinson vo City of Valdosta, 227 U.S. 303, at page 307, 33 S.Ct. 290, at page 292, 57 L.Ed. 520 that: ‘It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health (sewer control).’ (Emphasis added) See also 2 Am.Jur.2d Administrative Law, s 633, from which we quote the following: ‘Perhaps the most significant factor limiting review by the courts of action of administrative agencies generally, although undoubtedly variable in degrees appropriate to particular agencies, is the scope of the power which has been reposed in the administrative agency by statute and the informed and expert judgment of the agency based upon its accumulated experience in the matters with which the statute is concerned. Courts often advert to the expertness, special competence, specialized knowledge, or experience of the administrative agency which fortifies the judgment of the agency... .’ As the issues were presented in the trial court, the power of that court was limited to a determination of whether the regulation in question was arbitrary or in violation of appellee's constitutional rights in the particular respects pointed out by appellee. On the issue of arbitrariness, the burden was on the plaintiff to show that the regulation had no reasonable basis in fact or had no reasonable relation to the protection of the public health. The consitutional question was one of law. Probably the true test of arbitrariness would depend on the evidence the board had before it when it adopted the resolution. But the parties went beyond this test and proceeded to offer evidence in circuit court, so we consider the case as practiced. We must look to the facts in this record and the facts before the board when it adopted the requlation to determine whether the finding of the trial court of arbitrariness is ‘clearly erroneous.’ CR 52.01. Necessarily this will be a lengthy process due to the importance we attach to the qualification of the witnesses. We first discuss appellants' witnesses and their evidence. Dr. Russell E. Teague has been Commissioner of Health in Kentucky since 1956, and is a member of the State Board of Health. He has been with the State Department of Health since 1930 except for a one-year leave to earn a master's degree in public health and epidemiology at Johns Hopkins. He was president of the American Association of State and Territorial Health Commissioners in 1967. Dr. Teague testified that of Kentucky's 3,000,000 population the number served by public water supplies is 1,800,000, and out of this number some 1,200,000, or 64 percent, drink water containing fluoride; that extensive studies and tests were made preceding the use of fluoridation in this state. The first test showed dental defects in 90 percent of the school children. After 10 years' use of fluoride, these tests showed a 90-percent reduction in dental defects in school children; that recent tests in Louisville, Maysville, and Ashland showed similar results; that significant benefits also accrue even where availability of fluoride is deferred to later years, and these benefits continue into and through old age; that there is substantial evidence that controlled fluoridation produces stronger bone structure, beneficial to older people. Dr. Teague testified that modern fluoride equipment is safe and presents no health problem and that proper fluoridation ‘does not in any sense produce harm to the health of the people.’ Nick G. Johnson, Director, Sanitary Engineering Program, Division of Environmental Health, State Department of Health, is responsible for enforcement of public water supply regulatory measures. He has a bachelor's degree in civil engineering from the University of Louisville, and a master's degree in sanitary engineering from the University of Michigan. He has been with the Department of Health for 20 years. He testified that all requirements and specifications of the regulation were fully met, both as to equipment and management personnel. Dr. M. A. Shepherd is the Regional Medical Director, Central Region (embracing 20 counties), State Department of Health. He is a physician with 12 years' experience in this work with headquarters in Somerset. He practiced medicine there before his association with the Department of Health. He stated that there was a great demand by the citizens of Somerset for fluoridation. He said: ‘As a public health physician certainly it has been my duty to research the literature in the field of public health and I have read extensively in the literature etc., there has been no documented evidence of any danger or any damage done from using fluorided public water. ...Every national health organization in the United States that speaks with authority on the benefits and safety of fluoridation has adopted policies favorable to the meansure. ...They...(include) the American Dental Association, American Medical Association, American Association of Public Health Dentists, Association of State and Territorial Dental Directors, Association of State and Territorial Health Officers, National Research Council, U.S. Public Health Service, American Association for the Advancement of Science, American Academy of Pediatrics, Commission on Chronic Illness, Inter-Association Committee on Health, American Society of Denistry for Children, American Public Health Association, American Academy of Dental Medicine, Canadian Dental Association, Canadian Medical Association, Canadian Public Health Association, International Dental Federation, American Pharmaceutical Association, National Congress of Parents and Teachers, American Federation of Labor and Congress of Industrial Organizations, American Legion, U.S. Junior Chamber of Commerce.’ Dr. E. D. Gernert has the D.M.D. and M.P.H. degrees. He is professor of community dentistry, University of Louisville, and was Director of Dental Health, State Department of Health, until 1967. Dr. Gernet testified he has closely followed the development of fluoridation since 1945 and studied the various tests and research on the subject; that he participated in various studies himself; that he and his associates ‘accumulated base line statistics on the condition of children's mouths and...took a mortality and morbidity rating on these communities' (Maysville, Greensburg, and Louisville) and that they followed these studies periodically; that they ‘found that when the children had full benefits of fluoridation from birth on there was a 60% reduction in tooth decay.’ That there was ‘no evidence of any impairment to health in these children from the study of the morbidity and mortality rates.’ Dr. Gernert further stated: ‘Long before 1945 when Newburgh, New York, was fluoridated, we were certain there was no detriment to health from fluoride in the diet or water, and the question at that time was whether we could actually put the fluoride in and control it without too much expense and too much difficulty. Of course, the Newburgh studies and the Grand Rapids studies, and others assured us that this could be done. Extensive studies in Newburgh, New York, health study of the general health of the patient, blood studies, bone studies, X-ray studies and everything else were conducted during this procedure or method of fluoridation, so that long before 1951 when we advocated fluoridation for communities in Kentucky, in my opinion there was no question as to the safety of the procedure, and this has been borne out by sixteen years of experience in fluoridation in community water supplies in this state.’ He also stated that fluoridation process does not constitute the dispensing of drugs or medicine; that fluoridation is not a medication, it is a ‘nutrient which produces stronger teeth and bones'; that fluoridation is ‘one of the great discoveries of our time’; and that it ‘is safe.’ A. B. Coxwell, D.M.D., is executive secretary of the Kentucky Dental Association and has practiced dentistry for 20 years. He testified that the House of Delegates of the Kentucky Dental Association passed a resolution ‘demanding that the State Board of Health take action to see that the water system of the State of Kentucky be adequately fluoridated’; that ‘every known accredited organization in the world has approved the fluoridation of water supplies for the prevention of dental caries'; that he had never seen ‘any evidence of any harm done to any one’ due to fluoridation. Dr. Pat H. Lyddan, a pedodontist, with a D.D.S. degree, has served as president of the Kentucky Dental Association, and as an instructor in children's dentistry at the University of Louisville for 22 years. Dr. Lyddan gave this answer to a question as to his experience: ‘After the water was fluoridated in Louisville, within two or three years after the water was fluoridated, we began to see in our practice and this was not only true in our practice and this was not only well, I will get to that in a moment, the nature of my practice changed remarkably. Up until that time we were fighting a losing battle just to be able to restore all the decaying teeth, and in a period of about three years our practice changed to one where we were able to do more preventive dentistry, or what we call interceptive dentistry or preventive dentistry and to educate the parents, and also the patients to try to prevent tooth decay, due to the fact that we had this 60% reduction in decay, because of fluoridation of our local water supply. Also in addition the American Society of Dentistry for Children made a study of pedodontics all over the country, and in areas where the water was fluoridated, the result bore out the statement that I made, that all of us who practice in fluoridated areas, that our practice changed from 80 or 90 percent restorative dentistry, or trying to restore and fill the decayed teeth, to something like 60% of our practice became more or less a maintenance and preventive type of practice.’ When asked as to whether he knew of any harm due to fluoridation, he said: ‘No, I have not. In addition during the war I lived in a community in Texas where the water contained from 2 1/2 to 3 1/3 parts fluoride, naturally, and in addition to not having very much cavities, the general health of all the people in this community was excellent.’ Dr. Alvin L. Morris has the D.D.S. and Ph.D. degrees and has been Dean of the University of Kentucky College of Dentistry since 1961. He gave this answer as to the effect of fluoridation: ‘It is the responsibility of the Dean to serve as the major administrative officer of the academic institution, also to engage in instruction and some research. ... The evidence is overwhelming that water containing one part per million of fluoride will result in the reduction of new cavities developing in children to the extent of approximately 60 per cent. During my past experience in academic life I have had the privilege of serving as a colleague for three years with Dr. Harold Hodge, and Dr. Frank Smith, of the University of Rochester. These gentlemen have been responsible for doing the major research relative to the benefits of fluoride on biologic tissues. Their research, which was taking place during the time I was working with them revealed unequivocally that there would be no detrimental or harmful effects to the health of anyone consuming a water supply containing one part per million. Their research has been regarded as the key work, and the earliest work for establishing this fact on an experimental basis. Since that time, the experience with some 63 million Americans who have been and are drinking public water supplies with fluoride added to these amounts has completely substantiated their research.’ Dr. D. L. Gambrall, D.M.D., M.P.H., is Acting Director, Dental Health Program of the State Department of Health. His M.P.H. degree is from the University of Michigan. He stated: ‘During my first year with the State Health Department I was in the clinical program. In this program we provided care to children throughout the state, indigent children, mostly. In many areas I worked on children who did not have the benefit of fluoridated water. The prevalence of caries was immense. In other areas we did get to work on children who had had fluoridated water, and had received fluoride for their entire lives, and there was, you would note immediately a tremendous reduction in dental decay in the range of 60 per cent or better.’ W. L. Williams had been with the Louisville Water Company for 20 years. He was superintendent of the purification plant and has a bachelor's degree in chemistry and a master's degree in bacteriology. He had been an instructor on these subjects in high schools and at the University of Louisville Medical College for 19 years. When asked about the corrosive effects of fluoride on water pipes, Mr. Williams replied: ‘It is generally known that fluoride causes no corrosion at all.’ He stated that over one-half million people are served by the Louisville Water System, and in all the thousands of complaints by water consumers ‘none of them had anything to do with fluoride.’ F. J. Maier is a consulting engineer for Pan-American Health Organization, with 33 years' experience in sanitary engineering,^FN1 part of which period he was in charge of a laboratory in Bethesda, Maryland, relative to the problems associated with fluoride in water. He was asked this question and gave the following answer: FN1. This experience was with the U.S. Public Health Service. ‘Q.5 Mr. Maier, during the time you headed up the fluoridation program of the United States Public Health Service, did you learn of any ill effects on any person throughout the United States from having consumed fluoridated water that was properly administered, that is, proper amounts? ‘A. We have no single instance in the United States, or anywhere in the world where fluoridation is practiced that this has occurred.’ He also stated he never in all his years of experience had heard of fluoride causing corrosion in water pipes. He gave testimony that the equipment proposed at Somerset was standard, safe equipment. There was other testimony by other disinterested, qualified witnesses for appellants, and we have given only the high points in the testimony of the witnesses to whom we have just referred. We turn now to the evidence offered by appellee in opposition to fluoridation. Appellee, Dr. McNevin, a local chiropractor, testified that sodium fluoride is a virulent poison, a fact which is admitted by the appellants; that when fluoridation was commenced he became alarmed for the safety of himself and his family; and that the consumption of fluoridated water would be injurious to them. Dr. Ray McPike, a Louisville chiropractor, testified that fluoride does not treat water, but instead treats people and introduced a number of exhibits, over the appellants' objection, indicating the continued consumption of fluoride would be harmful to children. George Whatley Massey, a graduate of Ohio State University, a student at Georgia Institute of Technology, and an instrumentation engineer of Knoxville, Tennessee, testified that ingestion of anything over 1.25 PPM is likely to be toxic and that this is the ‘safe’ amount claimed by the U.S. Public Health Service; that fluoride is corrosive in pipes as shown by experience in the cities of Pittsburgh, Miami, Concord, New Hampshire, and Andover, Massachusetts; that in Pittsburgh it was necessary to add 3 PPM at the water plant to get the recommended 1 PPM at the tap; that the surplus fluoride concentrated and remained in water pipes up to 8,000 PPM in Concord and that 400 PPM is a lethal dose; that evidence from the Grand Rapids, Philadelphia, and Evanston, Illinois, experience indicated that children drinking fluoridated water do not get fewer cavities but only an approximate three-year delay; that the safety factor of the ingestion of fluoride is 0; that fluoride concentrates of 6,000 PPM were found in 16-inch water mains, and of 2,500 PPM in a 3/4-inch house water line in fluoridated San Francisco, and that in Concord, New Hampshire, where no fluoride had been added to the water supply for two weeks it was found the water still had a concentration of 2.8 PPM. Cecil Petard, M.D., of Knoxville, Tennessee, a practicing physician for 16 years, a member of the American Medical Association and of the Association of American Physicians and Surgeons, testified that the American Medical Association is not prepared to state that ‘no harm will be done to any person by water fluoridation’ and has not carried out any research, either long-term or short-term, regarding the possibility of any side effects; that the AMA does not guarantee the safety of fluoridated water; that a 1963 article published in the American Journal of Diseases of Children stated it is unnecessary and unwise to add fluoride to drinking water for the reasons, among others, that the dosage is highly variable and inaccurate and that older children and adults need not and should not be dosed with the drug; that he has two patients who have been harmed and suffered illness from drinking fluoridated water from a public water supply; that the Association of American Physicians and Surgeons, Inc. in San Francisco on April 12, 1958, adopted a resolution condemning the addition of any substance to public water supplies for the purpose of affecting the bodies or mental functions of consumers; that there is evidence to indicate that fluoridation increased the death rate in Grand Rapids over the area outside the city, and unfluoridated Knoxville, Tennessee, has a death rate lower than the state average; that fluoridation increases the incident of mongoloid births to an alarming degree. Dr. Petard further testified there is considerable disagreement among the doctors of Knoxville over the desirability of fluoridation as a health meansure, and that he as a physician was not in favor of adding fluoride to public drinking water because he would rather wait until better evidence is in, an opinion in which he is apparently joined by the United States Veterans Administration and opposed by the United States Public Health Service. Dr. Petard also testified that very few dentists in Knoxville prescribed fluoride for the teeth of patients. Mr. J. V. Adams of New Albany, Indiana, with a bachelor's degree in chemistry, a master's degree in public health from the University of Michigan, a director's degree in health and safety from Indiana University, and who is now working on a doctorate degree, testified that sodium fluoride is a poison, originally used as a rat and roach killer, and that continued ingestion of fluoride over a period of time would accumulate in the human body; that his experiments indicated that certain foods contain high concentration of fluoride and that it is the highest and strongest chemical; that it concentrates and accumulates in water pipes and in the body; that people ingest it in varying quantities by eating, breathing, and drinking water, and that it is the highest form of poison, is not a nutrient and has no food value; that the United States Public Health Service recommended the addition of iodine to the publice water supplies several years ago, then changed their position when they discovered it was producing certain systematic disorders-especially goiter; that fluoride cannot be controlled and that it affects the blood cells and nuclear cells in the human body. It is apparent that appellee's witnesses had had no applicable experience with fluoridation. They testified, for the most part, from information in newspapers and pamphlets, one of which was published by the Pure Water Association of Fresno, California. A large part of appellee's evidence is based on hearsay. See Kentucky Public Service Co. v. Topmiller, 204 Ky. 196, 263 S.W. 706 (1924); and 32 C.J.S. Evidence s 717. After considering the experience and qualification of appellants' witnesses and the lack of experience and qualification of appellee's witnesses, and the studies, tests, experiences, and recommendations of practically all the people and organizations into whose care the health of this nation has been entrusted, we conclude plaintiff failed in his burden to prove the resolution was arbitrary and that the finding of the trial court is clearly erroneous. Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761 (1935); and City of Louisville v. Thompson, Ky., 339 S.W.2d 869 (1960). In Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), the Supreme Court said writing on a kindred question of appellate review: ‘If there is any such power in judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when... a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ (Emphasis added.) Although this court has not had occasion to determine the legality of fluoridation, at least fourteen states have done so. See De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, cer. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1953); Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445, cer. den. 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1954); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, app. dis. 348 U.S. 892, 75, S.Ct. 216, 99 L.Ed. 701 (1954); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, app. dis. 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1955); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Readey v. St. Louis Country Water Co., Mo., 352 S.W.2d 622 (1961); City Commission of City of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879 (Ct.App.Fla.1962); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Paduano v. City of New York, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966); Attaya v. Town of Gonzales, 192 So.2d 188 (Ct.App.La., 1966); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959); and Wilson v. City of Mountlake Terrace, 69 Wash.2d 148, 417 P.2d 632 (1966). In De Aryan, Dowell, Chapman and Kraus, supra, the Supreme Court either denied certiorari or dismissed the appeal. We find no merit in appellee's contention that fluoridation of public water supplies violates his rights under the first section of the Founteenth Amendment to the Constitution of the United States or section two of the Constitution of Kentucky or KRS 315.020. See Dowell v. City of Tulsa, supra. During a period of over 20 years fluoridation has come through the experimental stage with flying colors. True, there have been critics of the system, and it had borne the blame for many defective water systems, many of which resulted from other causes. Any endeavor of such magnitude as fluoridation may encounter some imperfections due to human or mechanical error, but the benefits so far outweight the disadvantages the endeavor is justified. Nearly every great medical and scientific discovery has fought the battle of ‘trial and error’ and has been opposed by the skeptics and the incredulous. But progress demands that research persist unhampered by the courts. The judgment is reversed with directions to dissolve the injunction and dismiss the complaint. All concur.

+/- Board of Health of North Adams v. Mayor of North Adams

Massachusetts, Due Process Violations

• Plaintiff
  Board of Health of North Adams
• Defendant
  Mayor of North Adams
• State
  Massachusetts
• Other Parties
  -
• Case Tags
  - Due Process Violations
• Citation
  368 Mass. 554; 334 N.E.2d 34 (Mass. 1975)
• Year
  1975-00-00T00:00:00
• Court Name
  Supreme Judicial Court of Massachusetts
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Kaplan
• Opinion Text
  KAPLAN, Justice. The board of health of North Adams (board) sought by the present action to require the mayor and city council of North Adams to make available funds to study, and later to accomplish, the fluoridation of the city's water supply in accordance with the board's order issued on the recommendation of the State Department of Public Health. On a bill for declaratory relief, the case was submitted to the Superior Court as a case stated, and the board prevailed. At the same time the Superior Court dismissed the board's companion bill in equity, on the same case stated, as being unnecessary. The defendants appealed from the decree against them, and the board filed a pro forma appeal from the dismissal. The matters were consolidated and we allowed direct appellate review pursuant to G.L. c. 211A, s 10(A). In their attack on the judgment, the defendants argue (1) that the board's order was defective because it did not comply with the requirements of G.L. c. 111, s 8C, the basic statute governing water fluoridation in this State; (2) that the wording of the question put in a referendum held under the statute, following issuance of the board's order, was misleading and thereby deprived voters of due process; and (3) that in any event the board of health cannot compel the city council to appropriate funds. We first summarize the background and purport of G.L. c. 111, s 8C. Until 1958, there was no general State statute governing fluoridation. The usual language of the acts passed by the General Court to enable cities and towns to provide for the supply of water to their inhabitants gave the localities sufficient authority to fluoridate if the State Department of Public Health approved. See Rep.A.G., Pub.Doc. No. 12, 1953, pp. 33-34. In 1958, a restriction was imposed. By St.1958, c. 254, codified at G.L. c. 40, s 41B, no locality could fluoridate unless ‘the will of the voters . . . is first ascertained.’ That will could be ascertained by action of the local board of water commissioners placing on the ballor the question, ‘Shall the public water supply for domestic use in (this city) (this town) . . . be fluoridated?’ The public vote, however, was purely advisory. See Scott v. Election Commrs. of Newton, 346 Mass. 388, 391, 193 N.E.2d 262 (1963). By St.1962, c. 485, s 1, amending G.L. c. 40, s 41B, the advisory public vote above mentioned could only be taken if a petition requesting the vote was signed by five per cent of the voters of the locality. (The same legislation added s 41C, permitting a similar advisory ascertainment of the public will as to the discontinuance of fluoridation on petition by five per cent of the voters.) The requirement of the petition appears to have had the effect of reducing sharply the rate of adoptions of fluoridation by localities.^FN1 FN1. See the brief submitted in the present case by the Massachusetts Dental Society, as amicus curiae, at pp. 20-21. Resolves 1966, c. 66, reflected dissatisfaction with the condition of dental health in the Commonwealth and established a special study commission. The report of the commission (1968 House Doc. No. 3902) ^FN2 strongly supported fluoridation of water as a means of reducing the incidence of tooth decay. The report specifically recommended ‘(t)hat sections 41B and 41C of chapter 40 of the General Laws be repealed and that instead water fluoridation be instituted at the discretion and recommendation of the State Commissioner of Public Health with the concurrence of the local board of health.’ Id. at 22. The draft bill submitted by the commission to carry out this proposal stated: ‘If the commissioner determines that the fluoride content of the public water supply . . . in any city, town or district is not at optimum level for sound dental health, he shall so notify the local boards of health . . .. Each such board of health . . . shall, if it considers doing so in the best interests of the inhabitants . . . order the upward adjustment of the fluoride content . . ..’ FN2. Report of the Special Commission on the Condition of Dental Health and of Measures to Eliminate Dental Decay Including Fluorition of Community Water Supplies. This draft bill was the basis of the legislation enacted, St.1968, c. 548, codified at G.L. c. 111, s 8C. Two material additions to the draft appeared in s 8C. First, fluoridation was not to occur where two or more localities were supplied from the same source if independent treatment of the water supply of one locality was not possible and ‘the majority of the boards of health representing such cities and towns have voted not to accept . . . (the State commissioner's) recommendation.’ Second, a procedure was provided for countermanding the order of the board of health by means of a popular vote. An order did not become effective until publication in a local newspaper, and opponents of fluoridation had ninety days following the publication to collect the signatures of ten per cent of the registered voters on a petition requesting that there be placed on the ballot at the next regular city or town election the question, ‘Shall the fluoridation of the public water supply for domestic use in (this city) (this town) be continued?’ If a majority voted no, fluoridation was to be discontinued. (By the same legislation, G.L. c. 40, ss 41B-41C, were repealed. ^FN3 FN3. The text of G.L. c. 111, s 8C, as then adopted was: ‘The department in taking cognizance of the dental health of the people in the commonwealth shall recommend such methods as in its opinion are advisable to reduce of limit prevalence of dental caries and other dental diseases and defects. If the commissioner determines that the fluoride content of the public water supply for domestic use in any city, town or district is not at optimum level for sound dental health, he shall so notify the local board of health . . .. Such board of health . . . shall, if it considers doing so in the best interest of the inhabitants of the city, town or district . . . order the upward adjustment of the flouride content . . .. No such order shall be effective until it has been published in a newspaper having a general circulation in such city or town. ‘The provisions of this section shall not apply if two or more cities or towns are supplied water from the same source, if such supply to each city or town cannot be treated independently and if the majority of the boards of health representing such cities and towns have voted not to accept such recommendation; provided, however, that any such city or town desiring the adjust upward the fluoride content of . . . (its) water . . . may comply with the order . . . if it does not interfere with the water supply of said other cities or towns. ‘In any city, town or district where the board of health has ordered the upward adjustment of the fluoride content of the water supply under the provisions of this section, upon petition of ten per cent of the registered voters . . . within ninety days of the publication of such order, the following question shall be placed upon the official ballot to be used at the next regular city election or for the election of town officers at the next annual town meeting:-‘Shall the fluoridation of the public water supply for domestic use in (this city) (this town) be continued?’, or in such district the following question shall be placed before the next annual meeting of the inhabitants of the district:-‘Shall the fluoridation of the public water supply for domestic use in this district be continued?’ If the majority of votes . . . is in the negative the flouridation of the water supply . . . shall be discontinued.' For the effect of an amendment made by St.1971, c. 1024, see n. 6 below. It was under s 8C, as just described, that the present case arose. On January 2, 1969, the State deputy commissioner of public health, Ernest M. Cook, sent a letter to the North Adams board of health, informing the board that ‘analysis of your public water supply . . . shows the fluoride content to be substantially below the optimum level for sound dental health.’ The board made no immediate response but on July 15, 1971, it approved unanimously an order ‘to augment the fluoride content of the city's water supply to the optimum of 1.0 parts/million recommended by the State Department of Health.’ Seven days later, a notice was published in the North Adams Transcript stating that ‘(t)he Board of Health of North Adams, after making sufficient inquiry into the matter, considers an upward adjustment of the fluoride content of the water supplies . . . to be in the best interest of the inhabitants of the city. Accordingly, it is hereby ordered that an upward adjustment to the optimum level . . . be made . . ..’ Opponents of fluoridation, following the procedure of s 8C, collected within the statutory period the signatures of ten per cent of the registered voters. The statutory question, ‘Shall the fluoridation of the public water supply for domestic use in the City of North Adams be continued?’, was therefore voted on at the November 2, 1971, city election. A majority voted yes. On February 17, 1972, the board asked the mayor to place $2,500 in its budget for a study by a consulting firm of the equipment and procedures needed to fluoridate the water. On March 28, 1972, the mayor complied in presenting a supplemental budget to the city council. The council, however, refused to appropriate the funds. After a second request and refusal by the city council, the board of health commenced the present actions. 1. (a) The defendants say that the notice published in the local newspaper was bad because it differed from the board's order: the order had mentioned the specific fluoride level to be reached, but the notice did not. We think the statutory statement that the ‘order’ be ‘published’ does not require word for word identity. The notice contains the essentials of the board's order and only an expert in fluoridation would be interested in or understand the significance of the precise flouride concentration to be attained. The purpose of the publication was achieved in giving a notice sufficient to stimulate the opposition to collet signatures and present a petition. (b) The defendants note that North Adams by agreement with Williamstown and Clarksburg provides water to about 228 service connections in the former locality and about fifty-two in the latter (the total of 280 was a very minor fraction of the connections served in North Adams), yet neither the Williamstown nor Clarksburg board of health was notified of the action of the North Adams board or agreed to it. Passing over the fact that no objection to fluoridation from Williamstown or Clarksburg users or the respective boards of health appears in the record, we think the statutory expression ‘if two or more cities or towns are supplied water from the same source’ does not apply to the present case; it refers to a case where two localities share a common supply, not to a case where, by agreement, one locality undertakes to provide water from its own supply as an accommodation to a limited number of users in adjoining communities. Here the water supply was that of North Adams, and the use by Williamstown and Clarksburg residents was incidental.^FN4 FN4. In its January, 1969, letter informing the North Adams board of health that the water supply contained too little fluoride, the State Department of Public Health told the board that, in the opinion of its general counsel, ‘(w) ith reference to the arrangement whereby certain premises in Williamstown and Clarksburg are served from your city public water system . . . fluoridation of your water supply is not contingent upon any affirmative action by the Towns of Williamstown and Clarksburg.’ 2. The defendants argue, next, that the form of the question put before the voters, as specified by s 8C, namely, ‘Shall the fluoridation of the public water supply for domestic use in the City of North Adams be continued?’, suggested that physical fluoridation had already begun at the time of the vote, which was not the case; therefore, say the defendants, the voters must have been so far misled as to be deprived of due process. We would agree that the Legislature's wording of the question as applied to the particular case was not as felicitous as it might have been, but we do not think the statute prescribing the question can be struck down as unconstitutional. In response to the question, those in favor of fluoridation would vote yes, and those opposed, no. ^FN5 The question quite properly assumes that when, after the State department has made the necessary recommendation, the board of health promulgates an order, a program of fluoridation has been launched, and the dispute is as to its continuance. Section 8C (as in effect on November 2, 1971) treats the board's order as ‘effective’ on publication, but subject to later discontinuance if a petition should eventuate and the popular vote should turn out to be negative. ^FN6 FN5. In resolving the question whether, and how, to count ballots not marked by voters in accordance with instructions, so that the intent of the voter is unclear, we have said that ‘if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, in the light of the generally known conditions attendant upon the lection, effect must be given to that intent and the vote counted in accordance therewith . . ..’ O'Brien v. Election Commrs. of Boston, 257 Mass. 332, 338, 153 N.E. 553, 556 (1926). FN6. The situation is substantially changed as a result of an amendment to G.L. c. 111, s 8C, by St.1971, c. 1024. This amendment (aside from two changes immaterial for present purposes) delays the nominal effectiveness date of the board order until ninety days after the required publication, and further provides that if a petition for an election is filed within that time, the board order does not become effective until after a favorable vote in the election. The purpose of the amendment, in the words of a message from the Governor returning it without signature for a minor change, ‘is to insure that the vote is taken before the fluoridation may occur.’ 1971 House Doc.No.6418. Despite this change, no revision was made by the amendment in the wording of the question to be presented to the voters. The amendment also left unchanged the language about ‘discontinuance’ of fluoridation if the vote was negative. These were oversights. In the circumstances, we think the legislative purpose as expressed in the current G.L. c. 111, s 8C, will best be served if in the future voters in a s 8C election are asked, ‘Shall (this city) (this town) fluoridate its public water supply for domestic use?’ This wording is substantially that ordered in Selectmen of Greenfield v. Davoren, No. 13,896, Super.Ct., Franklin County, Massachusetts, October 2, 1974, in an action by a town board of selectmen seeking a change in the statutory wording for an election to be held in November, 1974. We add that this is not a case where a question or proposition has been prepared in an ad hoc manner and its sufficiency is tested against the command or standard of a statute or constitutional provision calling for the vote. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 69 N.E.2d 115 (1946); Tiberio v. Methuen, 364 Mass. --,^FNa 307 N.E.2d 302 (1974) (both upholding wording); Sears v. Treasurer & Recr. Gen., 327 Mass. 310, 98 N.E.2d 621 (1951) (holding wording bad). ^FN7 Here the wording of the question was prescribed by statute and the attack on the question is an attack on the statute on constitutional grounds. Added to the natural reluctance of courts to upset popular elections after the event, there is in the present case the presumption of constitutionality. Pinnick v. Cleary, 360 Mass. 1, 14, 271 N.E.2d 592 (1971). Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 412, 280 N.E.2d 406 (1972). Commonwealth v. Henry's Drywall Co., Inc., -- Mass. --, --,^FNb 320 N.E.2d 911 (1974). ^FN8 FNa. Mass.Adv.Sh. (1974) 117. FN7. Nor is this case like Mayor of Gloucester v. City Clerk of Gloucester, 327 Mass. 460, 464, 99 N.E.2d 452 (1951), in which this court held bad the wording of an election question on whether Gloucester should adopt a Plan E government. There the challenged wording was flatly in error in describing the election of the city council and school committee as being by proportional representation. FNb. Mass.Adv.Sh. (1974) 2377, 2380. FN8. There is also the problem, which we may overlook for present purposes, whether the mayor and city council have standing to raise the issue of the possible deprivation of the voters' due process rights. See Ashwander v. Tennessee Valley Authy., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Mullholland v. State Racing Commn., 295 Mass. 286, 292, 3 N.E.2d 773 (1936); Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387, 392, 182 N.E.2d 595 (1962); Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423 (1974). While it is hard to match cases, we note that in Scott v. Election Commrs. of Newton, 346 Mass. 388, 193 N.E.2d 262 (1963), we found nothing improper in the collection of signatures on a petition, and the filing of the petition asking to put on the ballot under old G.L. c. 40, s 41C, the question, ‘Shall the fluoridation of the public water supply for domestic use in this city be discontinued?’, where no physical fluoridation had yet occurred when the signatures were collected, though the city had approved and was proceeding with a fluoridation program. Analogy can also be found in Gray v. Taylor, 227 U.S. 51, 33 S.Ct. 199, 57 L.Ed. 413 (1913) (Holmes, J.), where a vote was held on whether to change a county seat from one town to another, but the prescribed statutory form of ballot was ‘For County Seat,’ with a space for the writer to indicate his choice of town. The election was held valid although the ballot failed to indicate that one of the towns was already the county seat. Aside from finding that the omission was not misleading, the court said flatly that ‘it is enough that the statute was followed.’ 227 U.S. at 58, 33 S.Ct. at 202. See also Wycoff v. County Commrs. of the County of Logan, Kansas, 189 Kan. 557, 370 P.2d 138 (1962). 3. It is contended, finally, that the board of health has no power to compel the city council to appropriate money: North Adams has a Plan A government, legislative power, including the power to appropriate funds, being vested in the city council pursuant to G.L. c. 43, s 50. The defendants point further to G.L. c. 44, s 31, providing that ‘(n)o department . . . of any city or town, except Boston, shall incur a liability in excess of the appropriation made for the use of such department, each item recommended by the mayor and voted by the council in cities . . . being considered as a separate appropriation.’ General Laws c. 111, s 8C, can be reconciled with these laws. The Commonwealth has power to order a municipality to pay out funds for public purposes. Thus in Commonwealth v. Hudson, 315 Mass. 335, 52 N.E.2d 566 (1943), we enforced St.1942, c. 8, which provided that ‘(i)f the department of public health determines that, during the existence of the present state of war, it is necessary for a city, town, district or water company maintaining a water supply to provide equipment for such supply . . . for the protection of the public health, said department may order such city, town, district or company to provide such equipment . . ..’ The department, acting under that statute, had ordered Hudson to chlorinate its water supply, but the town meeting had voted not to authorize the commissioners of public works to install the necessary equipment. On a bill in equity brought by the Commonwealth, this court found that the State department had authority to issue its order under the statute, and that the town was not privileged to ignore the order. We enforced the order by directing the town to provide the necessary equipment at the town's expense. We wrote that the town was not in a position ‘to defy . . . the Commonwealth, or to attempt to nullify legislative mandates,’ 315 Mass. at 345, 52 N.E.2d at 573, and accordingly rejected the town's contention, ‘which . . . (was) without precedent in our experience . . . that the power to appropriate money . . . is vested exclusively in the voters at town meeting . . .; that they have a right to act according to their untrammeled judgment, and may refuse to appropriate money even to discharge adjudicated duties or obligations of the town; that the Commonwealth and its courts are powerless unless the voters . . . in town meeting give their approval.’ 315 Mass. at 343-344, 52 N.E.2d at 572. See Horrigan v. Mayor of Pittsfield, 298 Mass. 492, 499, 11 N.E.2d 585, 590 (1937) (‘In the performance of public functions . . . (municipalities) may be required . . . to assume new liabilities without their consent’); Attorney Gen. v. Board of Pub. Welfare of Northampton, 313 Mass. 675, 683-684, 48 N.E.2d 689 (1943) (writ of mandamus issued on petition of Attorney General requiring city to comply with decision of State department of public welfare and render adequate welfare aid to specified individual); Ford v. Retirement Bd. of Lawrence, 315 Mass. 492, 494, 53 N.E.2d 81, 82 (1944) (‘The Legislature may prescribe the terms and conditions of pensions . . . (of firemen, and) place the burden of paying them on cities and towns . . ..’); Director of Div. of Water Pollution Control v. Uxbridge, 361 Mass. 589, 281 N.E.2d 585 (1972) (enforcing division order to town to construct sewerage treatment facility). The question in each case is thus whether the State enactment is fairly to be read as intending to require municipal outlay. If it is, the arrangement of municipal functions under the city charter or in the town government can have no effect on the result. Further, nothing in the Home Rule Amendment (art. 89 of the Amendments to the Constitution of the Commonwealth) stands in the way, as long as the statute falls within the power reserved to the General Court under s 8 of the Amendment ‘to act in relation to cities and towns . . . by general laws which apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two . . ..’ See Director of Div. of Water Pollution Control v. Uxbridge, supra (Massachusetts Clean Waters Act, G.L. c. 21, ss 26-53, is a ‘general law’ under which the State division may order the town to construct a sewer treatment facility); see also Board of Appeals of Hanover v. Housing Appeals Comm. in the Dept. of Community Affairs, 363 Mass. 339, 359-360, 294 N.E.2d 393 (1973). Nor does G.L. c. 44, s 31, present an obstacle. This provides an important central municipal control on irresponsible spending by departments of local governments, but its function is not to bar local spending that is required by a valid State program. Section 31 regularly has been harmonized with other legislation, as in Lynn Redevelopment Authy. v. Lynn, 360 Mass. 503, 275 N.E.2d 491 (1971), where we read the State urban renewal law as overcoming s 31 to the extent of allowing the city to make contracts for an urban renewal project although there was not at the time an appropriation of the sum necessary to fund the project. ^FN9 FN9. See also Callahan v. Woburn, 306 Mass. 265, 28 N.E.2d 9 (1940); Ring v. Woburn, 311 Mass. 679, 43 N.E.2d 8 (1942); Hayes v. Brockton, 313 Mass. 641, 48 N.E.2d 683 (1943); Watt v. Chelmsford, 328 Mass. 430, 104 N.E.2d 419 (1952) (G.L. c. 71, governing schools, prevails over s 31 and school committee may bind municipality to pay teacher salaries and other costs despite the lack of a prior appropriation). Cf. Salisbury Water Supply Co. v. Salisbury, 341 Mass. 42, 167 N.E.2d 320 (1960) (s 31 does not prohibit a town department from contracting for services extending beyond a single year, despite the lack of appropriations to cover subsequent years, since otherwise it would be very difficult to contract for, e.g., water service). Thus the problems posed as to the effect of the general lodging of the power of appropriation in the city council of North Adams under Plan A, and as to the effect of G.L. c. 44, s 31, reduce to the task of discerning whether it is part of the intent of G.L. c. 111, s 8C, that the fluoridation program shall not be defeated by local refusal to loosen the purse strings. An examination of the complex of statutes governing water supply in the Commonwealth suggests that actions by municipalities are by and large checked by the State, and that the State can exercise affirmative control in many circumstances. See G.L. c. 40, s 38, 39B; G.L. c. 111, ss 5, 5G, 17. More directly to the point, as we have indicated, s 8C accords with the scheme of the bill proposed by the special commission in 1968 that ‘water fluoridation be instituted at the discretion and recommendation of the State Commissioner of Public Health with the concurrence of the local board of health.’ The statute thus placed primary authority for the initiation of fluoridation in the hands of the State department. Moreover, it provides that the local board of health, acting on State recommendation, can ‘order’ fluoridation. The word ‘order’ would be inappropriate if it did not comprehend the power to compel appropriation. Without such a power, the board of health could do no more than request the mayor and council to fluoridate a water supply and this, we think, would be a good deal less than the statute intended. ^FN10 It is significant that whereas the statute makes explicit provision for the public cancelling of a program of fluoridation by means of a referendum vote, no similar power was vested in the local legislative body-the mayor and council. In sum, we read the statute as disclosing the necessary State purpose. FN10. We do not suggest that, should a board of health request an appropriation that is far in excess of the amount reasonably necessary for the purpose of fluoridation, the mayor and city council could not substitute a lower, adequate figure. There is no suggestion in the present case that the board's request was excessive. The thought about State ‘purpose’ or ‘intent’ can be expressed in other ways. We can say that the General Court may, when necessary or convenient, delegate a particular job or function to a local body, ^FN11 the local body becoming for the purpose an ‘agent’ of the State. We held in Breault v. Auburn, 303 Mass. 424, 427-428, 22 N.E.2d 46, 48 (1939), that G.L. c. 111, s 27, giving local boards of health authority to employ necessary personnel, precluded interference by the town meeting in a board decision to discharge an individual. We said that ‘(i)n their conduct with relation to the contract of employment of the plaintiff . . . the members of the board were exercising powers conferred upon them by the Legislature and were . . . not (acting) as agents of the town.’ Accord, Gibney v. Mayor of Fall River, 306 Mass. 561, 29 N.E.2d 133 (1940). ^FN12 Similarly, the board of health of North Adams may be regarded as a State agent with derivative power to compel funding by the city council for the particular purpose of fluoridation. FN11. See Police Commr. of Boston v. Boston, 239 Mass. 401, 407, 132 N.E. 181 (1921) (St.1906, c. 291, delegates to police commissioner the power of deciding on the land necessary for police accommodations in Boston); Bradley v. Zoning Adjustment Bd. of Boston, 255 Mass. 160, 171, 150 N.E. 892 (1926) (St.1924, c. 488, s 20, delegates to board of zoning adjustment of Boston power to change boundaries of zoning districts established by Legislature); Rayco Inv. Corp. v. Selectmen of Raynham, 368 Mass. 385, 331 N.E.2d 910 (1975) (Mass.Adv.Sh. (1975) 2375) (G.L. c. 140, s 32B, delegates to local boards of health the power to make rules and regulations to aid in enforcement of mobile home park licensing provisions). See also G.L. c. 111, s 160, permitting the State department of public health to delegate to local boards of health the power to grant and withhold permits required by State department rules for the prevention of pollution. FN12. See Malden v. MacCormac, 318 Mass. 729, 64 N.E.2d 103 (1945) (board of health acting under power granted to it by G.L. c. 111, ss 31A, 31B, to control local garbage collection is not acting as an agent of the municipality for purposes of determining municipal liability in tort). 4. The Superior Court, acting on the bill for declaratory relief, entered a decree which may be read as somewhat exceeding a declaration and amounting to an order to the city council to provide the necessary funds. In an ordinary case between private parties this might be entirely proper as merely anticipating an application for ‘further relief’ by the party who secured the declaration. See G.L. c. 231A, s 5. But ‘(w)e commonly assume that municipalities and public officers will do their duty when disputed questions have been finally adjudicated.’ Commonwealth v. Hudson, 315 Mass. 335, 343, 52 N.E.2d 566, 572 (1943). Accordingly, the decree on the bill for declaratory relief will be modified so as simply to declare the rights between the parties. The decree of dismissal of the companion equity bill will be affirmed. So ordered. QUIRICO, Justice (dissenting). I am unable to agree with the conclusion in point 3 of the court's opinion to the effect that the board of health of the city of North Adams has the power to compel the mayor and city council to appropriate the funds necessary to carry out the board's decision to fluoridate the city's water supply. This decision is tantamount to a holding that as to fluoridation the board is not subject to the fundamental provision of the municipal finance law (G.L. c. 44, s 31, as amended through St.1969, c. 505, s 7) that ‘(no) department financed by municipal revenue, or in whole or in part by taxation, of any city or town, except Boston, shall incur a liability in excess of the appropriation made for the use of such department . . . except in cases of extreme emergency involving the health or safety of persons or property, and then only by a vote in a city of two thirds of the members of the city council, and in a town by a majority vote of all the selectmen.’ The court's decision in this case does not rest on any claimed emergency. It is unquestionable that the Legislature has the power to authorize the State Department of Public Health to compel municipalities to fluoridate their public water supplies. It is equally unquestionable that if the Legislature gave the department that authority and the department exercised it against a municipality, the order could not be thwarted by the municipality's failure or refusal to appropriate the funds necessary therefor. That was decided by this court in Commonwealth v. Hudson, 315 Mass. 335, 52 N.E.2d 566 (1943), where the department, acting under express authority granted to it by St.1942, c. 8, ordered the town of Hudson to provide treatment equipment for chlorinating its water supply. That statute authorized the department to enter such an order directly against a municipality, leaving the latter no choice or discretion in the matter. By contrast, the statute relating to fluoridation (G.L. c. 111, s 8C, inserted by St. 1968, c. 548, s 1, and amended by St.1971, c. 1024, ss 1, 2) limits the power of the department to the making of recommendations of ‘such methods as in its opinion are advisable to reduce or limit the prevalence of dental caries and other dental diseases and defects,’ and to notifying a municipality that ‘the fluoride content of . . . (its public water supply for domestic use) is not an optimum level for sound dental health.’ However, the statute gives to the local board of health, and not to the department, the power of ultimate decision whether to fluoridate the water supply. In my opinion there is nothing in the statute which should be construed to exempt the local board's exercise of that power from the provision of G.L. c. 44, s 31, which prohibits each ‘department financed by municipal revenue, or in whole or in part by taxation, of any city or town . . . (from incurring) a liability in excess of the appropriation made for the use of such department.’ I do not believe that the fact that G.L. c. 111, s 8C, authorizes a local board of health to exercise its power thereunder by the issuance of an ‘order’ that the water supply be fluoridated is of any material significance on the applicability of the prohibition contained in G.L. c. 44, s 31. The word ‘order’ is often used to identify or indicate the means by which municipal boards, commissions or officers exercise the powers vested in them by statute, but the use of that word or title has never been held to authorize an expenditure of public funds in excess of the limitations imposed by G.L. c. 44, s 31. The court's opinion in this case gives to a municipal board of health desiring to order the fluoridation of the public water supply substantially the same degree of fiscal autonomy which has long been enjoyed by school committees is submitting their annual budget requests. The school committees' autonomy is based on the express command of G.L. c. 71, s 34, as appearing in St.1939, c. 294, that ‘(e)very city and town shall annually provide an amount of money sufficient for the support of the public schools as required by this chapter.’ By contrast, the statute relating to fluoridation, G.L. c. 111, s 8C, contains no express statutory command to municipalities to provide the funds therefor when requested by boards of health, and, in my opinion, the statute should not be interpreted as including an implied command to that effect. Decatur v. Auditor of Peabody, 251 Mass. 82, 88-89, 146 N.E. 360 (1925).

+/- Minnesota State Board of Health v. City of Brainerd

Minnesota, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, Right to privacy, State police power

• Plaintiff
  Minnesota Board of Health
• Defendant
  City of Brainerd
• State
  Minnesota
• Other Parties
  Dr. Warren R. Lawson, Mayor of Brainerd, City Council of Brainerd, Water and Light Board
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations

  - Right to privacy

  - State police power
• Citation
  308 Minn. 24; 241 N.W.2d 624 (Minn. 1976)
• Year
  1976-00-00T00:00:00
• Court Name
  Supreme Court of Minnesota
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Laughlin M
• Opinion Text
  MacLAUGHLIN, Justice. The issue on this appeal is whether the appellant city of Brainerd must fluoridate its municipal water supply in compliance with Minn.St. 144.145. The trial court rejected appellants' arguments that the statute is unconstitutional and issued a peremptory writ of mandamus commanding Brainerd to comply with the law. We affirm. In 1967, the Minnesota Legislature enacted what is commonly referred to as the Minnesota Fluoridation Law, Minn.St. 144.145. The statute required that prior to January 1, 1970,- ‘...the person, firm, corporation, or municipality having jurisdiction over a municipal water supply, whether publicly or privately owned or operated, shall control the quantities of fluoride in the water so as to maintain a fluoride content prescribed by the state board of health.’ In 1969, the Minnesota State Board of Health adopted regulations which require that the fluoride content of municipal water supplies be maintained at an average concentration of 1.2 milligrams per liter. Minn.Reg.1969 MHD 112(b) (now Minn.Reg. MHD 138). In 1972, Minnesotans Opposed to Forced Fluoridation (MOFF), a private nonprofit corporation, sought an injunction against enforcement of the fluoridation statute in the city of Brainerd. The city of Brainerd and the Minnesota State Board of Health were named as defendants. In that action the trial court found the fluoridation law to be a valid exercise of legislative authority which did not violate the constitutional rights of the citizens of the state nor constitute pollution within the meaning of the Environmental Rights Act. The court therefore denied the injunction and no appeal was taken. After this decision, the Minnesota State Board of Health attempted to persuade Brainerd to fluoridate its water. During this time the city of Brainerd held a special referendum which resulted in a vote of 1,863 to 199 against fluoridation and a vote of 1,697 to 325 in favor of holding a ‘convention of the people’ to ‘deliberate on the constitutionality of forced fluoridation.’ The total membership of the ‘convention of the people’ was the mayor, members of the city council, and members of the water and light board of the city of Brainerd. On July 5, 1974, this convention declared s 144.145 and Minn.Reg.1969 MHD 112(b) to be an unconstitutional invasion of individual rights. On September 5, 1974, the State Board of Health filed a petition for a writ of mandamus after a previous petition was dismissed for insufficient pleading. Appellants answered the petition, and respondent moved for judgment on the pleadings. On December 5, 1974, the trial court issued a peremptory writ of mandamus. In its memorandum the trial court concluded that appellants were barred by the judgment in the MOFF proceeding from relitigating the validity of the fluoridation law. The trial court further found that the fluoridation law was not nullified by the Brainerd convention, that the city was not entitled to an administrative hearing prior to fluoridation, and that mandamus was the proper remedy to compel Brainerd to comply with the law. The city of Brainerd and its officials appeal this decision. 1. The major issue raised on this appeal is whether the Minnesota Fluoridation Law is constitutional. However, respondent first questions whether the city of Brainerd may properly raise such a challenge. Respondent contends that Brainerd is barred under the doctrine of res judicata from bringing this action since Brainerd was a party in MOFF v. City of Brainerd and Minnesota State Board of Health, in which the constitutionality of the fluoridation law was upheld. In that case, MOFF sought an injunction against the fluoridation of Brainerd's water supply naming the city of Brainerd as one of the defendants in the action. The trial court denied the injunction, and no appeal was taken. In the current action, the State Board of Health seeks a writ of mandamus to compel the city of Brainerd to fluoridate its water supply pursuant to the statute and regulation. The trial court concluded that Brainerd may not now oppose the fluoridation since it had the ‘opportunity and incentive’ to voice any objection it had in the MOFF proceedings; and even though it failed to do so, it is nevertheless bound by that judgment. We have observed that res judicata- ‘...operates as an absolute bar to a subsequent suit on the same cause of action, concluding the parties and their privies not only as to every matter that was litigated but also as to any other claim or defense which might have been litigated.‘ Howe v. Nelson, 271 Minn. 296, 301, 135 N.W.2d 687, 691 (1965). This rule is based upon ‘considerations of public policy which demand an end to litigation where a party has had a full, free, and untrammeled opportunity to present facts pertinent to a decisive issue.‘ Lustik v. Rankila, 269 Minn. 515, 520, 131 N.W.2d 741, 745 (1964). Although it is a close question, we conclude that Brainerd did not have such an opportunity. It must be remembered that Brainerd was merely a nominal party in the first action and appeared solely in its capacity as proprietor of the water supply. Since the first trial, the referendum by the people of Brainerd has activated the city's duty to affirmatively represent the will of its citizens. Had the referendum occurred prior to the time of the first action, Brainerd would certainly have actively taken part in support of MOFF's position for an injunction against compulsory fluoridation of its water supply. While the question is not free from doubt, we have decided, because of the obvious public purpose to be served by a decision of this case on its merits, that Brainerd is not barred by the doctrine of res judicata.^FN1 FN1. Respondent also asserts that appellants' challenge is barred by the doctrine of estoppel by inconsistent position. However, the doctrine of estoppel by inconsistent position does not apply to the facts of this case. The rule prohibiting the shifting of position ‘rests largely upon the principle that it results in prejudice to the party who acquiesces in the position first taken.‘ Friend v. Friend, 158 Minn. 31, 38, 196 N.W. 814, 817 (1924). See, also, Behrens v. Kruse, 121 Minn. 90, 98, 140 N.W. 339, 342 (1913). In addition, allowing a party to shift position may also mislead the court. Friend v. Friend, supra. As this court concluded in Moquist v. Chapel, 62 Minn. 258, 260, 64 N.W. 567, 568 (1895), '(h)aving submitted his case upon one theory of the law and facts, a party cannot complain if it is correctly decided according to that theory, or be afterwards heard to say, if some other theory had been presented, it should have been decided differently.’ Thus, the doctrine is primarily concerned with ensuring fair trial tactics within a single litigation. In any case, respondent has not even attempted to show how it has been led to change its position for the worse by any act of appellants or how the court has been misled. In sum, the doctrine of estoppel by inconsistent position is simply not applicable to the instant case. 2. Respondent also argues that appellant city of Brainerd, as a public body acting through public officials, is without standing to challenge the constitutionality of the fluoridation statute. In State ex rel. Clinton Falls Nursery Co. v. County of Steele, 181 Minn. 427, 430, 232 N.W. 737, 738 (1930), we stated: ‘...The better doctrine supported by the weight of authority is that (a public) official so charged with the performance of a ministerial duty will not be allowed to question the constitutionality of such a law. ... Officials acting ministerially are not clothed with judicial authority. To permit them to refuse to perform their duty on the ground that the commanding law is unconstitutional would be a dangerous practice in that they who have only ministerial duties would be raising questions affecting the rights of third persons while they themselves would have no direct interest in the question and could not in any event be made responsible.’ However, we added ( 181 Minn. 431, 232 N.W. 738): ‘There is found among the authorities a well recognized exception to the foregoing rule when the rights of the state or the public interest are involved.’ See, also, Elwell v. County of Hennepin, 301 Minn. 63, 221 N.W.2d 538 (1974). In Commr. of Taxation v. Crow Wing County, 275 Minn. 9, 13, 144 N.W.2d 717, 719 (1966), we recognized a second exception: ‘...In our view the interest required to give standing to a political subdivision must be one predicated upon some adverse effect upon the governmental unit.’ See, also, Village of Burnsville v. Onischuk, 301 Minn. 137, 222 N.W.2d 523 (1974). We hold that the city of Brainerd has standing to challenge the constitutionality of the fluoridation law under either of the above two exceptions. First, the question of fluoridating the drinking water of Brainerd involves a question of substantial public interest to the people of Brainerd. In view of Brainerd's overall responsibility for providing safe and satisfactory water to its citizens, it is proper that the city have standing to challenge the statute in the public interest. Second, it is alleged by Brainerd that the fluoridation statute has a specific adverse effect upon the city of Brainerd in that it threatens to destroy the city's water filtration system. Thus, Brainerd, in its capacity as proprietor of the water supply, has a very specific and concrete interest in challenging the validity of the statute. Finally, it must be remembered that the standing doctrine is primarily designed to guarantee that there is a sufficient case or controversy between the parties so that the issue is properly and competently presented to the court. It is clear that appellants have vigorously and competently presented the issue to this court. Consequently, ‘(a)t this stage of the litigation it would be a great disservice to the public to decline jurisdiction because the (appellants') standing is somewhat doubtful.‘ Village of Burnsville v. Onischuk, 301 Minn. 137, 143, 222 N.W.2d 523, 527. 3. Before considering appellants' arguments concerning the constitutionality of fluoridation, it is important to understand the factual background of fluoridation. For this purpose we quote at length from the trial court's memorandum in MOFF v. City of Brainerd and Minnesota State Board of Health: ‘Fluoride, the substance in question, is the ion of the element fluorine. It is never found in nature in an isolated form but always in association with other elements, most commonly with calcium. Fluoride is found in all minerals, rocks and soil; it is present in all foods and water consumed by human beings. The addition of fluoride to drinking water, at least in the amounts here contemplated, affects neither the color nor the taste of the water. Fluoride, in common with many other substances such as oxygen, ordinary table salt, vitamin A and vitamin B is toxic when ingested in relatively large amounts. The natural drinking waters of this country vary in fluoride content from a barely discernible trace up to about 15 milligrams per liter or, as it is otherwise expressed, up to about 15 parts per million (ppm). ... ‘In an effort to determine the cause of mottled enamel observed on the teeth of children and adults in certain communities, studies were begun about 70 years ago which ultimately established that an excessive amount of natural fluoride in the drinking water consumed by the residents of said communities caused such mottling, thereafter described as dental fluorosis. During the course of these studies it was observed that these mottled teeth, while cosmetically undesirable in some instances, were otherwise sound and were less susceptible to decay. Without detailing the various studies made, it can be said that by 1945 there was good cause to believe that the addition of fluoride in an amount varying from 1 to 1.5 ppm to water supplies being consumed by children would serve to reduce the incidence of dental decay in said children without serious cosmetic effects by reason of dental fluorosis. Beginning in 1945 and continuing to date municipalities and states have been acting to fluoridate municipal water supplies by the addition of fluoride in amounts up to 1.5 ppm. The studies which were begun in the 1930's to determine the effect of fluoride on teeth have continued to date and have established beyond any serious question that persons who use waters containing 1.0 to 1.5 ppm of fluoride, either naturally or artificially, from infancy to the age of 10 or 12 years have significantly fewer dental caries in their permanent teeth and without dental fluorosis to an unacceptable degree. ‘This widespread acceptance of fluoridation as an effective means to prevent dental caries has led to the controlled fluoridation of the water supplies in over 4,800 communities in the United States and these communities include most of the large cities in the nation. There are presently about 100 million people in this country consuming water having a fluoride content between .7 ppm and 1.5 ppm. In Minnesota over 90% Of the more than 650 communities having a municipal water supply have fluoridated the same. ...A substantial majority of the citizens of this state presently drink fluoridated water and most of this majority have been doing so for more than 15 years. ‘Fluoridation of public water supplies has been advocated or recommended by more than forty national professional and scientific organizations including the American Medical Association, American Dental Association, American Institute of Nutrition, American Association for the Advancement of Science, American Association of Dental Schools, American Cancer Society and many others of like standing and repute. Fluoridation now has and for many years has had the enthusiastic endorsement and support of the U.S. Public Health Service.’ At least in part because of this endorsement by the scientific community, the Minnesota Legislature enacted Minn.St. 144.145 requiring the fluoridation of all public water supplies. Appellants argue, though, that fluoridation presents a serious health hazard and calls to our attention certain scientific studies which indicate the dangers of fluoridation. However, it is not this court's function, at least in the absence of overwhelming evidence to the contrary, to second-guess the scientific accuracy of a legislative determination of fact. Nor is it within our province to determine the wisdom of or necessity for a legislative enactment. As we said in Beck v. Groe, 245 Minn. 28, 40, 70 N.W.2d 886, 895 (1955): ‘The legislature is in the first instance the judge of what is necessary for the public welfare. The earnest conflict of serious opinion does not suffice to bring it within the range of judicial cognizance. Courts cannot pass on the soundness or expediency of theories embodied in statutes enacted in the exercise of the police power for the social benefit of the citizen and the public welfare. The control, regulation, and restrictions to be imposed, to attain, so far as may be, results consistent with the public welfare, are purely of legislative cognizance. The legislative determination of the control to be applied is final, except when so arbitrary as to be violative of the constitutional rights of the citizen.’ In enacting the fluoridation law, the legislature relied on the overwhelming weight of scientific opinion that fluoridation afforded a safe and effective means of reducing dental caries. We cannot say that this legislative determination is so clearly erroneous as to be arbitrary and violative of due process. State v. Edwards, 287 Minn. 83, 87, 177 N.W.2d 40, 43 (1970). In fact, the state courts have been unanimous in holding fluoridation to be a proper exercise of the state's police power. See, Graybeal v. McNevin, 439 S.W.2d 323 (Ky.1969); Opinion of the Justices, 243 A.2d 716 (Del.1968); Attaya v. Town of Gonzales, 192 So.2d 188 (Ct.App.La.1966); Paduano v. City of New York, 45 Misc.2d 718, 257 N.Y.S.2d 531, affirmed, 24 App.Div.2d 437, 260 N.Y.S.2d 831 (1965), affirmed, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966), certiorari denied, 385 U.S. 1026, 87 S.Ct. 754, 17 L.Ed.2d 674 (1967); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Wilson v. City of Mountlake Terrace, 69 Wash.2d 148, 417 P.2d 632 (1966); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964), certiorari denied, 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558 (1965); Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964); City Commission of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879 (Ct.App.Fla.1962), appeal dismissed, 154 So.2d 208 (Ct.App.Fla.1963); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Readey v. St. Louis County Water Co. 352 S.W.2d 622 (Mo.1961), appeal dismissed, 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47 (1962); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959), appeal dismissed, 361 U.S. 10, 80 S.Ct. 71, 4 L.Ed.2d 51 (1959); Teeter v. Municipal City of LaPorte, 236 Ind. 146, 139 N.E.2d 158 (1956); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609 (1955), appeal dismissed, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956); Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1955); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (1954), appeal dismissed, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954); De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (1953), certiorari denied, 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1954); Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okl.1954), certiorari denied, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955). Therefore, for purposes of this decision, we must accept as factual the legislative determination that fluoride is a safe and effective means of reducing dental caries. Appellants proceed to argue, however, that ‘the question is not whether fluoridation may be good, but whether the people have a constitutional prerogative to refuse.’ (Italics omitted.) Appellants contend that there is such a prerogative which derives from the constitutional right of privacy. ^FN2 FN2. Appellants also argue that Brainerd itself has a constitutional right to community privacy. Appellants, however, have not cited for us any authority to support the proposition that a community has a constitutional right of privacy. Whatever privacy rights Brainerd has in this matter must derive from the individual constitutional rights of its citizens. While the constitution does not explicitly mention any right of privacy, the United States Supreme Court has recognized, in varying contexts, a constitutional right of personal privacy. This right of privacy has been found in the First Amendment ( Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542, 549 (1969)); in the Fourth and Fifth Amendments ( Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 898 (1968); Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576, 581 (1967); and Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)); in the penumbras of the Bill of Rights ( Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510, 514 (1965)); in the Ninth Amendment, ( Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510, 516 (Goldberg, J., concurring)); and in the concept of liberty guaranteed by the Fourteenth Amendment ( Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923)). In Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176 (1973), the Supreme Court concluded: ‘... These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,‘ Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy.’ At the core of the privacy decisions, in our judgment, is the concept of personal autonomy-the notion that the constitution reserves to the individual, free of governmental intrusion, certain fundamental personal decisions about how he or she will conduct his or her life. See, Price v. Sheppard, Minn., 239 N.W.2d 905, filed February 20, 1976. Thus, in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349, 362 (1972), the Supreme Court held that the right of privacy protects an individual's right ‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child’; and, in Roe v. Wade, supra, the court held that the right of privacy protects an individual's right to decide ‘whether or not to terminate her pregnancy.‘ 410 U.S. 153, 93 S.Ct. 727, 35 L.Ed.2d 177. While the United States Supreme Court has never so held, the right of personal privacy could also extend to protect an individual's decision regarding what he will or will not ingest into his body. Indeed, this concept of bodily integrity is rooted in common law. As the Supreme Court stated in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, 737 (1891): ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ Whether one's right to bodily integrity is designated a right of personal privacy or not, though, does not alter our conclusion that the right, like other constitutional rights, in not absolute. As the Supreme Court held in Roe v. Wade (410 U.S. 154, 93 S.Ct. 727, 35 L.Ed.2d 177): ‘We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.’ And in specific reference to an individual's right of bodily integrity, the court stated in Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448, 453 (1957): ‘As against the right of an individual that his person be held inviolable ... must be set the interests of society... .’ Thus, in Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908, 918 (1966), a case involving a governmental intrusion into an individual's body for blood to be analyzed for alcohol content, the Supreme Court concluded that the constitution does not protect an individual ‘against all intrusions' but only ‘against intrusions which are not justified in the circumstances, or which are made in an improper manner.’ Therefore, to properly determine the constitutionality of fluoridation, we must consider (1) the importance of the state's purpose for requiring fluoridation; (2) the nature and magnitude of the effect of forced fluoridation on the individual; (3) whether the state's purpose justifies the intrusion of forced fluoridation; and (4) whether the means adopted by the state to accomplish its purpose is proper and reasonable. It seems clear that the state has a substantial interest in fluoridating the public drinking water to prevent tooth decay. ‘Although not a contagious disease, dental caries, or tooth decay, presently constitutes one of the most challenging health problems in the United States. By the time they reach adulthood, some ninety-nine percent of the American population has had some experience with dental caries. Half of the population over fifty-five have no natural teeth at all. Compounding this problem of dental health is the great shortage of dentists, dental hygienists, and dental assistants. It has been estimated that approximately one-third of the population sees a dentist annually, and eighteen percent has never seen a dentist. A billion dental manhours would have been required in 1962 just to handle the then current backlog of dental problems. The dental manpower currently available cannot physically provide for more than half of the existing dental needs.’ Farrer, Fluoridation: Compulsory Medication of Municipal Water Supplies? 5 Urban Lawyer 504. ^FN3 FN3. See, also, Clark & Sophy, Fluoridation: The Courts and the Opposition, 13 Wayne L.Rev. 338 (1966). Aside from this enormous drain on health facilities, the state has a direct interest in maintaining public health. The health of one's children^FN4 is not exclusively a personal or individual concern. The Supreme Court of Louisiana stated: FN4. Fluoridation has its most beneficial effect upon individuals who have consumed fluoridated water from infancy to the age of 10 or 12 years. See, the excerpt from the trial court's memorandum in MOFF v. City of Brainerd and Minnesota State Board of Health, quoted above. ‘The health of the children of a community is of vital interest and of great importance to all the inhabitants of the community. Their health and physical well-being is of great concern to all the people, and any legislation to retard or to reduce disease in their midst cannot and should not be opposed on the ground that it has no reasonable relation to the general health and welfare.’ Chapman v. City of Shreveport, 225 La. 859, 870, 74 So.2d 142, 145, appeal dismissed, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954). We next consider the nature and magnitude of the effect of fluoridation on the individual. While forced fluoridation does intrude on an individual's decision whether or not to ingest fluoride, the impact of this intrusion on an individual's life is negligible. This becomes particularly evident when compared to the impact involved in the Supreme Court's privacy decisions such as in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, where the state's intrusion had the impact of depriving the individual of his or her freedom to decide whether or not to have children. While forced fluoridation does, to a limited extent, infringe upon an individual's freedom to decide whether he will or will not ingest fluoride, such an infringement, absent any significant adverse consequences to the individual, cannot be accorded substantial weight. The difficulty with according weight to such a prerogative in a case of this type is that if fully recognized it would confer upon the individual the prerogative to refuse to allow the government to chlorinate the water or to take similar actions which it has determined to be in the best interests of public health. Such an unbalanced allocation of decisionmaking authority is unacceptable. In Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 727, 35 L.Ed.2d 147, 177, the Supreme Court indicated that it has consistently ‘refused to recognize an unlimited right (to do with one's body as one pleases).’ Appellants contend that the intrusion is not justified based on Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), in which the United States Supreme Court upheld compulsory vaccination in the face of a threatened smallpox epidemic as a valid exercise of police power. Appellants insist that compulsory medication, that is, intrusion into an individual's bodily integrity, was allowed in Jacobson only because of the great danger to the public welfare posed by the contagious disease of smallpox. We note, however, that the court in Jacobson, quoting Crowley v. Christensen, 137 U.S. 86, 89, 11 S.Ct. 13, 15, 34 L.Ed. 620, 621 (1890), stated the governing principle in broad terms ( 197 U.S. 26, 25 S.Ct. 361, 49 L.Ed. 650): “...The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” Upon balancing the substantial public health benefit of fluoridation against its innocuous effect on the individual, we have concluded that fluoridation is a justified intrusion into an individual's bodily integrity. As the Illinois Supreme Court stated in Schuringa v. City of Chicago, 30 Ill.2d 504, 518, 198 N.E.2d 326, 334 (1964): ‘...(F)luoridation programs, even if considered to be medication in the true sense of the word, are so necessarily and reasonably related to the common good that the rights of the individual must give way.’ Finally, we must determine whether the means of achieving the state's purpose is proper and reasonable. After careful consideration, we have concluded that the means adopted by the state to accomplish its purpose in the instant case is not particularly offensive or unusual. Although the actual consumption of water is, in a sense, a private and personal act, the preparation and treatment of that water is a common and accepted public function. In fact, there are numerous governmental regulations controlling the ingredients in the food we eat. Such quality-control measures are inherent in a technologically advanced society and do not ordinarily affront a person's sensibilities. The public health of all the state's citizens, involving as it does a social condition, is a distinctly legislative concern. The Minnesota Legislature has determined that the health, welfare, and safety of the public is best served by providing fluoride through the public drinking water. While we have great respect for the strong and sincerely held opinion of many of the citizens of Brainerd, ^FN5 we reiterate that it is not this court's function, absent a clear violation of constitutional rights, to reconsider the wisdom or necessity of a legislative decision. Therefore, after careful consideration, we find the Minnesota Fluoridation Law, Minn.St. 144.145, to be constitutional. FN5. While we agree that Brainerd's ‘constitutional convention’ was an eloquent way for the people of Brainerd to express their feelings on the subject of fluoridation, we do not recognize the resolutions of that convention as binding authority on the constitutionality of the fluoridation law. Authority to determine the constitutionality of laws resides in the judiciary. As the United States Supreme Court recently stated in United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039, 1061 (1974): ‘... Many decisions of this Court...have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch. 137, 2 L.Ed. 60 (1803), that ‘(i)t is emphatically the province and duty of the judicial department to say what the law is.“ This is an indispensable feature of our constitutional system. To the extent that appellants' claim urges that final authority to interpret the law does not reside with the courts, it must be rejected. ’...To yield to such a claim would be to enthrone official lawlessness and lawlessness if not checked is the precursor of anarchy.‘ Cooper v. Aaron, 358 U.S. 1, 22, 78 S.Ct. 1401, 1412, 3 L.Ed.2d 19, 20 (1958). Appellant city finally argues that it is entitled to an administrative due process hearing before it can be required to fluoridate its water supply. The purpose of such a hearing would be to determine the effect of fluoridation on Brainerd's water filtration system. Appellant has alleged that fluoridation would upset the delicate chemical balance of its unique filtration system and cause a dangerous accumulation of sludge in the city's pipes. However, the fact that fluoridation would require the city of Brainerd to incur expense in remedying, or even replacing, its present filtration system does not afford it a constitutional right to a due process hearing. As a governmental subdivision, the city of Brainerd is not a ‘person’ for purposes of the due process clause and therefore has no constitutional right to a due process hearing before being deprived of property. Independent School Dist. No. 581 v. Mattheis, 275 Minn. 383, 147 N.W.2d 374 (1966); see, also Waters v. Putnam, 289 Minn. 165, 183 N.W.2d 545 (1971). This is because a ‘municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the state for conducting the affairs of government, and as such it is subject to the control of the legislature. ‘ Williams v. Eggleston, 170 U.S. 304, 310, 18 S.Ct. 617, 619, 42 L.Ed. 1047, 1049 (1898). The order of the trial court is affirmed. YETKA, Justice (dissenting). I dissent. To me it is essential to bear in mind that, unlike the vaccination cases, we are not asked to decide the constitutionality of a law which Directly imposes fluoridation on an unwilling individual. Rather, Minn.St. 144.145 does so only Indirectly by requiring municipalities to fluoridate their water supplies for the purpose of making available publicly-funded fluoride treatment. Presumably those opposed to fluoridation are free to obtain nonfluoridated water from other sources, however impractical and unlikely that may be. Moreover, the law, by its terms falls short of reaching a large number of our population who draw their water from private wells. Undoubtedly were the law otherwise, e.g., compulsory periodic dental application of fluoride for all children, the decision reached by the majority would have been arrived at with greater difficulty. Equally important, in my judgment, is the distinction between the chlorination of a public water supply and fluoridation. The purpose of the former is to ensure the safety of a water supply for public consumption; the purpose of the latter is to treat individual dental health problems. The majority concedes that a substantial constitutional right is involved, but that the state's intrusion or infringement upon that right is justified when its interest is balanced against that of the individual. It was my understanding in Price v. Sheppard, minn., 239 N.W.2d 905 (1976), cited in the majority opinion, that even if the state's intrusion is justified, it is not unlimited. In addition ‘(i)t must appear that the means utilized to serve the state's interest are necessary and reasonable, or, in other words, in light of alternative means the least intrusive.’ Minn., 239 N.W.2d 910. I assume this is also what the majority has in mind in assessing the reasonableness of the means chosen by the legislature in enacting Minn.St. 144.145. Contrary to the conclusion of the majority, it seems to me that in the city of Brainerd, where an overwhelming majority of those participating in a voter referendum indicated their opposition to fluoridation, less intrusive means could and should have been utilized. In fact, the infringement of the rights of the majority could have been avoided altogether. The state's purpose was to make available publicly-funded fluoride treatment, not to impose it directly on individuals. It chose what it obviously considered to be the most efficient means. But it could have achieved that same purpose by compelling the city to furnish fluorine tablets or dental application to those who wished it, without infringing on the rights of the majority. Moreover, it is my understanding from the record that Brainerd is willing to provide fluoride in such an alternative fashion to those who wish it. Moreover, it must be remembered that while fluoridating a water supply may be an efficient means of achieving the state's purpose, it is apparently not the most economical method in Brainerd. Carl Zapffe, Ph. D., a scientist specializing in chemistry, physics and metallurgical engineering, averred in an affidavit that there was a ‘strong likelihood’ that the ‘complicated and delicate chemical balance’ in the Brainerd water filtration system ‘due to the excessive presence of manganese and iron oxides dissolved in the natural water’ could be destroyed by the addition of fluoride in the amounts proposed by the state. There has also been some evidence presented in the case that fluorine might be a carcinogen. I must say that the evidence presented was very weak and could have been more decisive in this case, but this court ought to take judicial notice of the fact that scientists are finding every day that additives, chemical and otherwise, of all sorts are seriously suspect in the rising rate of cancer in the United States. When there is not a showing of a great overriding state interest and fluorine is readily available for those who want it by other means, why shouldn't the wishes and the rights of the local citizens, whether individually or as a group, be respected and be paramount? There must be a point at which state action must yield to the asserted rights of the individual. I believe that this point has clearly been reached in this case. Central to our notion of democracy is the respect for the rights and wishes of the majority. Here the infringement of the majority's rights can be avoided without defeating the legislative purpose of the Minnesota Fluoridation Law. For these reasons I must respectfully dissent. OTIS, J., took no part in the consideration or decision of this case.

+/- Readey v. St. Louis County Water Co.

Missouri, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, State police power, First Amendment, Petitions Initiatives & Re-votes

• Plaintiff
  Readey, et al.
• Defendant
  St. Louis County Water Company, et al.
• State
  Missouri
• Other Parties
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• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations

  - State police power

  - First Amendment

  - Petitions Initiatives & Re-votes
• Citation
  352 S.W.2d 622 (Mo. 1961)
• Year
  1961-00-00T00:00:00
• Court Name
  Supreme Court of Missouri Division 1
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  COIL, Commissioner. In June 1959 the St. Louis County Council enacted an ordinance which directed the St. Louis County Water Company to introduce a sufficient quantity of the fluoride ion into the water it furnished county consumers to maintain throughout the distribution system a fluoride concentration of approximately one part fluoride per million gallons of water, and which directed the Water Company to make certain tests and keep certain records, and which directed the county health commissioner to make periodic reports to the council on the fluoridation of the water supply and to arrange for surveys and research into the beneficial effect of the program. Respondents are eight resident taxpayers of St. Louis County and are consumers of water distributed by the Water Company, some of whom resided in various municipalities within the county. They brought an action against the Water Company, the then members of the county council, the county clerk, and the acting county health commissioner, to enjoin the enforcement of the ordinance for the averred reason that it was invalid in that it violated stated provisions of the federal and Missouri Constitutions and provisions of specified state laws. At the close of respondents' evidence the trial chancellor sustained Water Company's motion to dismiss and there has been no appeal from the ensuing judgment of dismissal. At the close of all the evidence the trial chancellor enjoined the remaining defendants below from enforcing the ordinance for the stated reason that it was void in that it violated provisions of the state and federal constitutions in the respects to be hereinafter noted. Those defendants have appealed and contend that the trial court erred for the reason that the ordinance is a valid exercise of the county council's police power to promote the public health. Respondents here seek to support the trial court's ruling for the stated reasons that the ordinance is unconstitutional in that it violates the Fourteenth Amendment to the Constitution of the United States and Article I, Section 10 of the Missouri Constitution, V.A.M.S., in that it unduly infringes their and other county residents' freedom of choice in matters relating to bodily care and health by compelling them to drink fluoridated water against their wills; that the ordinance violates the First Amendment to the Constitution of the United States in that it subjects Christian Scientists living in St. Louis County to forced medication contrary to their religious beliefs; that the ordinance violates Article VI, Section 18(c) of the Constitution of Missouri in that it applies to the entire county, including the county municipalities, and therefore its enactment was beyond the power of the county council; and that the enforcement of the ordinance would violate Missouri statutes relating to the adulteration and misbranding of nonalcoholic drinks. Inasmuch as the validity of the contention that the ordinance violates Article VI, Section 18(c) of the Missouri Constitution depends on the question whether the council had the power and authority to have enacted any ordinance purporting to deal with matters relating to the public health of persons residing within county municipalities, and inasmuch as an affirmance of the trial court's ruling on that question would be dispositive of the case, we shall first consider that contention. The ordinance in question contemplates, and its enforcement would involve, the addition of a quantity of the fluoride ion to all of the water leaving Water Company's purification plant and such water is sold to consumer residents of St. Louis County who live both within and without incorporated areas of the county, and the water so furnished is, for all practical purposes, the only water available to county residents. Article VI, Sections 18 through 20, 1945 Missouri Constitution, authorizes special charters for the government of certain counties and authorizes the inclusion of specified provisions in those charters. Section 18(c) is: ‘The charter may provide for the vesting and exercise of legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the county outside incorporated cities; and it may provide, or authorize its governing body to provide, the terms upon which the county shall perform any of the services and functions of any municipality, or political subdivision in the county, except school districts, when accepted by vote of a majority of the qualified electors voting thereon in the municipality or subdivision, which acceptance may be revoked by like vote.’ 2 V.A.M.S. Pursuant to that constitutional authorization, St. Louis County's Home Rule Charter provided in Article III, Section 22(20) that the council should have the power by ordinance ‘To exercise legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the County outside incorporated cities, and on such other subjects as may hereafter be authorized by the Constitution or by law, provided that, until superseded by ordinances of the Council, the laws pertaining to said matters shall continue to be valid and effective.’ And Section 22(19) provided that the council should have power by ordinance ‘To provide the terms upon which the County shall perform any of the services and functions of any municipality or political subdivision in the County, except school districts, when accepted by a vote of a majority of the qualified electors voting thereon in such municipality or subdivision, which acceptance may be revoked by a like vote; and to cooperate and contract with the municipalities or political subdivisions in the County as otherwise authorized by this charter and by law.’ It was the opinion of the trial chancellor and it is the contention of respondents here that the ordinance in question violates the constitutional and charter provisions above set forth for the reason that the county council's power to enact public health ordinances was limited to the enactment of ordinances affecting only those areas outside incorporated cities. It is apparent that respondents' position is correct if the council's power in the premises is derived solely from Article VI, Section 18(c) of the Constitution and Article III, Section 22(20) of the County Charter. The fact is, however, that the county council's power in certain matters, including the enactment of ordinances which tend to enhance the public health, is not limited to the power conferred by Article VI, Section 18(c) of the Constitution and set forth in Article III, Section 22(20) of the County Charter. On the contrary, St. Louis County may also exercise the powers pertaining to the public health validly conferred by the state upon counties of the first class. Article IV, Section 37 of the Missouri Constitution declares that ‘The health and general welfare of the people are matters of primary public concern’ and the general assembly shall establish a department of public health and welfare and may grant power with respect thereto counties, cities, or other political subdivisions of the state. The legislature, as directed, established a department of public health and welfare and, among others, enacted Section 192.300 RSMo 1959 and 12 V.A.M.S., which provides in part: ‘The county courts of the several counties of class one are hereby empowered and permitted to make and promulgate such rules, regulations or ordinances as will tend to enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases into such county; provided such rules, regulations and ordinances shall not be in conflict with any rules or regulations authorized and made by the division of health in accordance with this chapter.’ Article I, Section 2 of the County Charter provides: ‘The County shall have all the powers now or hereafter vested by the Constitution and laws of Missouri in county courts, county offices, counties of the first class, counties having the population or assessed valuation of taxable property of St. Louis County, Missouri, and counties of any other class in which St. Louis County may hereafter be includable, and all the powers provided in this Charter, and all other powers that are necessarily implied under the powers so granted.’ It appears, therefore, that by virtue of the constitutional, statutory, and charter provisions last above set forth, the county council was and is authorized to enact ordinances tending to enhance the health of all the residents of St. Louis County, irrespective of whether they also reside within a municipality. See State ex rel. Shepley v. Gamble, Mo., 280 S.W.2d 656. Assuming, then, for the present that the ordinance in question is one which was intended to and which does tend to enhance the public health, a question we shall later discuss, we hold that the county council had the authority and the power to enact such an ordinance applicable county-wide and, consequently, that the ordinance does not violate Article VI, Section 18(c) of the Missouri Constitution or Article III, Section 22(20) of the St. Louis County Charter. It should be here noted that there is no claim or contention that in enacting the ordinance the county council acted arbitrarily or without sufficient investigation or upon insufficient knowledge; nor is there any contention that there was any procedural irregularity with respect to the enactment of the ordinance in question. Even though there is no showing in the present record as to what information the council had upon which it based the exercise of its legislative power in enacting the ordinance, in the absence of any contention as to insufficiency of information and in the absence of any claim of procedural irregularity, we should and do assume that the council had the information and knowledge which the evidence in the present record affords. As we have heretofore indicated, there is no dispute about the fact that, generally speaking, a resident of St. Louis County, whether within or without a municipality, must use water supplied by the Water Company (although the evidence does show that the City of Kirkwood, a municipality within the county, had been fluoridating its water for a period of two years prior to the trial, but the record does not show whether Kirkwood's water is from some other source or whether that city further treats water which it purchases from the Water Company). Further, there is no dispute about the fact that the Water Company obtains the water it supplies from the Missouri River and that such water as it is taken from the river contains an average of .5 part of the fluoride ion per million gallons of water and that such fluoride content is not removed from the water but remains in it and, thus, that the Water Company, irrespective of the ordinance, furnishes water fluoridated to the level of one-half part fluoride to each one million gallons of water; so that the effect of the ordinance is to require the Water Company only to supplement the existing concentration of fluoride by adding one-half part per million gallons in order that there will be a total of one part fluoride per million gallons of water. It appears also that there is no dispute about the facts that the fluoride ion in water acts upon the individual who drinks the water rather than upon the water as such as a purifying agent and, consequently, the ordinance requirement for an additional amount of the fluoride ion is for the purpose of affecting the dental health of each individual who consumes the fluoridated water; and that dental caries or tooth decay is not a contagious or communicable disease and cannot produce an epidemic. Respondents adduced evidence, including the opinions of apparently well-qualified experts, tending to establish the proposition that the ingestion of water containing any fluoride is harmful to the individual consuming it and that water containing one part fluoride to a million gallons of water is harmful in many ways. That evidence tended to show that ten to forty per cent of children between the ages of 5 and 13 who consume water fluoridated one part to a million will have disfigured teeth, including mottled or discolored enamel; that older people consuming such water will suffer from gastrointestinal disturbances including nausea, vomiting, constipation, and diarrhea; that they will also sustain damage to the liver and kidneys and, under some circumstances, to other vital organs such as the aorta, and suffer abnormalities in bone growth and bone structure; that pregnant women consuming such water will sustain injury and bear children whose teeth will show later damage; that certain people, as a result of drinking such water, develop arthritic changes in the lower spine, neuromuscular changes in the arms and legs, partial palsy of the arms and legs, abnormal reflexes, severe headaches, and extreme weakness. Respondents' evidence tended to show further that fluorine is not an essential element of the human body and that all chemicals bearing the fluoride ion are insidious poisons and are cumulative in the human body; that due to the fact that different people drink different amounts of water and the same person consumes different amounts of water depending upon the time of year and for other reasons, it is difficult if not impossible to control the amount of the fluoride ion ingested by a particular individual when a specified amount is introduced into a public water supply; and that there are methods other than the addition of the fluoride ion to the public water supply by which fluorine may be applied to the teeth, such as an application by a dentist directly on the teeth or by fluoridating an individual user's water supply by dissolving tablets therein. Appellants adduced evidence, including the opinions of apparently well-qualified experts, tending to establish the proposition that fluoridation of water as proposed by the ordinance in question would result in harm to no one but, on the contrary, would be highly beneficial to the residents of St. Louis County in that it would reduce dental decay in children up to 14 years of age by as much as sixty-five per cent by means of hardening the enamel on their teeth, and that this same reduction in decay would accrue to older age groups provided the members of those groups had drunk the fluoridated water from birth. Appellants' evidence substantially supported the conclusions: that there is phenomenal agreement among professional and scientific groups in the United States and in the world that fluoridation of public water supplies in the amount provided by the ordinance in question is of great significance in terms of general health, in producing a dental caries resistant enamel on teeth; that ‘Dental decay is recognized as man's most wide-spread chronic disease. Few persons escape. No social stratum or age group is immune. A decayed tooth never heals by itself, by prescription or by advice. About 97,000,000 people in the United States have decayed teeth requiring treatment’; that fluoridation of water is safe, practicable, not unduly expensive as a health measure, and is efficacious. Appellants' evidence tended to show further that the harmful effects suggested by plaintiffs' evidence would not occur and the testimony of one of appellants' witnesses was that he practiced dentistry in Kirkwood (a municipality in St. Louis County) where the water supply had been fluoridated since January 1, 1958, and that he had observed no harmful effects; that dental fluorosis or mottling of the enamel on teeth occurs to an appreciable extent only when there is an excessive amount of fluoride in the water, that is, in excess of two parts fluoride per million gallons of water. The evidence also established that fluoridation of public water supplies to the extent provided in the ordinance had been endorsed by the St. Louis Dental Association, the Missouri State Dental Association, the American Dental Association, the American College of Dentists, the Missouri Public Health Association, the American Public Health Association, the Missouri State Department of Health, the United States Department of Health, Education and Welfare, the St. Louis Medical Society, the Missouri State Medical Association, the American Medical Association, and the St. Louis County Health Department; that there are twenty-five communities in Missouri now fluoridating their water supplies to approximately one part per million; that at trial time there were 1,134,000 people in Missouri drinking artificially fluoridated water to the extent of one part per million gallons, and there were 109,000 people drinking naturally fluoridated water in various amounts; for example, in Columbia, Missouri, the natural fluoride content is 1.32 parts fluoride per million gallons of water; that Army, Navy, and Air Force installations where children are in residence furnish fluoridated water. Appellants' evidence tended to show further that water fluoridated as the ordinance required is nonpoisonous; that toxicity will occur only at concentrations 20 to 50 times as great as that proposed by the ordinance; that while applying fluorine directly to the teeth is satisfactory for each individual who receives the treatment, it is not a practical method because there are not enough dentists to effectively accomplish the task; that dental decay occurs at a rate six per cent faster than available dentists can repair it; that fluoridation in the manner proposed is not mass medication but is, in effect, prevention rather than treatment; that chlorine is added to water to cut down bacterial contamination in order to reduce the occurrence of infectious disease, such as typhoid fever, and fluoride is added to prevent or deter the progress of a widespread dental disorder and thereby preserve the dental health of the people who consume the fluoridated water. It is apparent from the foregoing résumé of the evidence that the question whether over-all harm or over-all benefit will result to individuals who consume water containing the fluoride ion in a concentration of one part fluoride to one million gallons of water is highly controversial and that there is substantial evidence to support a conclusion either way. Our province, in the first instance, is to determine whether the ordinance in question bears a reasonable relation to public health and is thereby fairly referable to the county's police power. It appears to us that decisive of that determination is the fact that the record contains substantial evidence from which the county council reasonably could have found and concluded that dental decay is a widespread and serious disease affecting the dental health of all the people of St. Louis County; that a requirement that the fluoride content of water consumed by St. Louis County residents be supplemented up to one part per million gallons would effectively and extensively decrease tooth decay, particularly in children, but with benefit to all; and that such a method would constitute a safe, practicable, relatively inexpensive, and efficacious public health measure. We have no doubt, therefore, that the ordinance does bear a reasonable relation to public health and that its provisions are designed to and reasonably will tend to enhance the public health and, therefore, that the action of the St. Louis County Council, in enacting the ordinance in question, was an exercise of the power conferred by Section 192.300, supra. We next consider whether the ordinance unduly invades or infringes rights guaranteed by the state and federal constitutions. Respondents contend that the ordinance is unconstitutional because it prohibits certain county residents from practicing their religious beliefs. That question is not before us for decision for the reasons which follow. There was no averment by plaintiffs in any pleading claiming any such violation, either directly or by inference. There was no averment that they or any of them are members or represent any members of a religious body or those who hold particular beliefs or practice their beliefs in a particular manner. Nor was there any such contention throughout the trial. There was no evidence offered or adduced pertaining to the tenets or practices of any particular religious body or group of people, nor was there evidence that members of any particular religious body resided in St. Louis County. There was no finding of fact or conclusion of law with respect to the contention now made and thus, of course, no part of the judgment was based upon any such finding or conclusion. After the present appeal was pending in this court, leave was granted an attorney of the Missouri Bar to file a brief herein as amicus curiae, on the averred ground that the case was one which affected the interest and welfare of all the people of Missouri, including those residing in large metropolitan areas. The brief of amicus curiae contends, and that contention is specifically adopted by and included by reference as part of respondents' brief, that the ordinance in question is unconstitutional because it subjects Christian Scientists in St. Louis County to forced medication against their religious beliefs and thereby deprives them of their constitutional right under the First Amendment to the United States Constitution. It is suggested by inference that we may take judicial notice of the fact that it is a religious belief of Christian Scientists that no material applications for relief of disease should be employed. But if, in the public interest, we should wish to resolve the question posed in amicus' brief, even though the constitutional question was not raised below nor preserved for appellate review, and even if we should take judicial notice that the belief suggested by counsel is a religious belief of Christian Scientists, still we should not know whether, nor could we assume that, it would violate that belief for one to consume water which theretofore had contained one-half part fluoride, simply because another one-half part had been added. Furthermore, if we should assume that the fluoride ion in water constitutes medication as to the individual and if we should further assume that the ingestion of that medication violates a religious belief of any county resident, then it must follow that forced medication now exists and that the enforcement of the ordinance in question would not change the situation in that respect. Be that as it may, however, the fact is that we may not on this record decide whether anyone's religious beliefs or anyone's freedom to practice his religious beliefs would be unduly and unlawfully infringed by the enforcement of the ordinance. Respondents and amicus curiae state their specific contention with respect to the claimed violation of the Fourteenth Amendment to the United States Constitution and of Section 10 of Article I of the Missouri Constitution in this manner: The ordinance is unconstitutional and void because it deprives plaintiffs and other residents of St. Louis County of their liberty in that it denies them freedom of choice in matters relating to bodily care and health by compelling them to drink water containing ‘the poisonous drug fluoride ion’ against their wills when not justified by ‘pressure of great dangers' to the public health. Inasmuch as there is before us no question involving the violation of respondents' or others' freedom to believe and practice the tenets of their religious beliefs or involving the violation of any other First Amendment right, it is apparent that in so far as the federal constitution is concerned we are here dealing with the due process clause of the Fourteenth Amendment as applied ‘for its own sake’ and not with the due process clause as an instrument for transmitting any specific prohibition of the First Amendment. That is to say, we are not here dealing with a freedom which has been said to occupy a ‘preferred place ... in our scheme,’ i. e., those ‘freedoms secured by the First Amendment.’ West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 87 L.Ed. 1628; Thomas v. Collins, 323 U.S. 516, 529, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430. Respondents point out that the ‘word ‘liberty’ contained in that amendment [Fourteenth] embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties as well.' (Bracketed insert ours.) Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660. They concede that their freedom to choose whether to consume water containing the fluoride ion as a preventative to deter the decay of an individual's teeth is subject to regulation by law but contend that one's constitutionally protected freedom may be lawfully infringed only when such is necessary to insure the equal enjoyment of the same right or freedom by others or ‘under the pressures of great dangers.’ They rely upon language contained in the memorandum opinion of the trial chancellor who, in turn, stated those ‘tests' on the authority of Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. In that case the court upheld the validity of a state compulsory vaccination law. It is true that the court at one place in its opinion quoted this from another case ( 197 U.S. 26, 27, 25 S.Ct. 361): “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.” And at another place in the opinion ( 197 U.S. 29, 25 S.Ct. 362) the court, in pointing out that it was ‘the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few,’ pointed out further that to conserve the safety of members of society, ‘the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.’ But the court in the Jacobson case in the course of its opinion also said: ‘If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution. ... ‘Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution.’ 197 U.S. 31, 25 S.Ct. 363. In our view the Jacobson case does not support the proposition that individual freedom of choice pertaining to a matter affecting the public health, such as the freedom of choice here asserted, may be validly restricted or infringed only where the restraint imposed is necessary in order to insure equal enjoyment of the same freedom by others or under the ‘pressure of great dangers'; nor does that case stand for the proposition that only when necessary to protect the individual as well as the members of the general public from the danger of a communicable or contagious disease may a legislative body validly enact an ordinance interfering with the freedom of choice of the individual as to a matter affecting the public health. The United States Supreme Court has made it clear that even in cases involving First Amendment prohibitions which occupy an exalted and preferred position in our scheme of things it will not indiscriminately apply the ‘clear and present danger’ test stated in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470. That court adopted the interpretation of that phrase suggested by Chief Judge Learned Hand. In Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 868, 95 L.Ed. 1137, the court, speaking of the phrase ‘clear and present danger,’ said: ‘Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' [United States v. Dennis, 2 Cir.] 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.' And see Baer v. City of Bend, 206 Ore. 221, 292 P.2d 134, 139, 140, where the Oregon Supreme Court in a well-reasoned opinion held that the effect of the fluoridation of a public water supply did not infringe the consumer's constitutional guarantee of religious liberty. It seems to us that the language of the court in West Coast Hotel Company v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, is apropos in determining whether the due process clause of the Fourteenth Amendment has been violated under the facts here. There the court, in dealing with the question whether there had been a deprivation of freedom to contract by the enactment of a minimum wage regulation for women, said at page 391: ‘What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.’ (Our italics.) Missouri cases hold that Article I, Section 10 of our Constitution (‘That no person shall be deprived of life, liberty or property without due process of law’) is not violated by an ordinance which, as we have held the one in question to be, is fairly referable to the police power of the enacting body and which is shown to have been enacted for the protection and enhancement of the public health and general welfare of the inhabitants of the area in question, unless its provisions are unreasonable and the burden is upon the one asserting the ordinance's invalidity to overcome the legal presumption of validity which attends the ordinance. Passler v. Johnson, Mo., 304 S.W.2d 903, 908. Respondents' evidence tended to show that the ingestion of any amount of fluoride ion is harmful, that consuming water which contains any amount of the fluoride ion constitutes medication, and that there is no difference between the fluoride ion existing in the Missouri River water as it is now distributed by the Water Company and the inorganic fluoride ion which would be placed in the water under the ordinance requirement. Thus it is clear that this freedom of choice which respondents assert is not the freedom to choose not to ingest any fluoride (they say, medication) because they are now consuming and apparently, irrespective of the ordinance, will continue to drink water containing one-half part fluoride to each million gallons. Thus, the freedom of which respondents speak can be only the freedom to choose not to ingest more fluoride (more medication) than they are now consuming by drinking water which contains an additional one-half part fluoride to each million gallons of water. It is true that respondents' evidence tended to show that the greater the amount of fluoride in the water the greater the harm to the individual consuming it, so admittedly, from respondents' standpoint, there is involved some ‘freedom of choice’ but it is of the nature indicated. We are not concerned with the expediency of the ordinance or with the wisdom of the council's action in enacting it. We again recognize that we are bound by the council's reasonable determination that the measure will result in benefit to each individual consumer and not in harm. We have held herein that the ordinance does bear a reasonable relation to public health and, based upon the council's conclusions, does tend to enhance the health of the residents of the county. Consequently, it appears that for us to hold the ordinance in question is in ‘palpable conflict’ with the state or federal constitution we would need to find and rule that, although, as we have held, the ordinance bears a reasonable relation to public health and its enforcement would enhance, the public health, nevertheless, the type and extent of the benefit accruing to each individual (prevention of dental decay) are such that each individual must be completely free to determine for himself whether he will accept the asserted benefit bestowed through the fluoridation of the public water supply, else his freedom of choice is unreasonably infringed. We correctly may not so hold. On the contrary, it seems to us that the reasonably expectable and valuable benefit which the council determined would accrue to the community as a whole justifies the resulting infringement of the individual's freedom of choice. (We note, parenthetically, that we have assumed throughout that the enforcement of the ordinance would ‘compel’ respondents and other residents to consume the fluoride ion. That is because we recognize that there is a very real compulsion for many from a practical standpoint when the only apparent ways to avoid drinking public water and thus to avoid consuming the additional fluoride probably are, for many, prohibitively expensive or unduly burdensome. The fact remains, however, that in considering the matter of undue or unreasonable infringement; it is well to recognize that the ordinance does not specifically require any individual water consumer to do anything.) We are supported in our conclusion as to the ordinance by the opinions from each of eight appellate courts which have considered the questions involved in the fluoridation of public water supplies. It is true that there are distinguishing features in those cases. In some were fact stipulations which eliminated certain questions. In one of them, the Iowa case, the sole question was the power of a city to enact such an ordinance. On the whole, however, the opinions in the following cases are authority for the conclusion we have reached: Baer v. City of Bend, supra; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609; Dowell v. City of Tulsa, Okla., 273 P.2d 859, 43 A.L.R.2d 445; De Aryan v. Butler, Cal.App., 260 P.2d 98; Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242; Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142; Wilson v. City of Council Bluffs, Iowa, 110 N.W.2d 569. Taking into account and consideration the relevant facts and circumstances as we see them, we are of the view that we may not confidently say that the enforcement of the ordinance in question would result in an undue or unreasonable infringement of respondents' protected freedom of choice under the due process clause of either the state or federal constitution. Respondents contend also that the fact that their evidence indicated that there were other and, in their opinion, better ways to apply the fluoride ion to the teeth obviated the necessity for the fluoridation of the public water supply and thereby caused the ordinance to ‘broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. While, as we have pointed out heretofore, respondents did adduce evidence that fluorine could be applied to the teeth either topically or by dissolving tablets in individual water supplies, there was other evidence from which the council reasonably could have reached the conclusion that such methods would not effectively accomplish the purpose of the ordinance, that is, to benefit all by partially freeing each from the ravages of dental decay. It is suggested also that the ordinance benefits only a particular class, i. e., children up to 14 years, and it is contended that the ordinance is unconstitutional for that reason. While it is true the ordinance in question must be in the interest of the public generally as distinguished from the interest of a particular class, the evidence was such as justified the council in determining that the consumption of fluoridated water would benefit people of all ages. There was direct testimony to that effect and, of course, it is apparent that children become adults. Clearly, the council was justified in finding that the ordinance was in the interest of the county's entire population and not solely in the interest of a particular class. Respondents contend further that the ordinance is in conflict with and violates Sections 196.125-196.145 RSMo 1959, and V.A.M.S. The cited sections define a nonalcoholic drink and then provide that such nonalcoholic drinks shall not be adulterated or misbranded and prescribe a penalty for any violation. Respondents contend that water is a nonalcoholic drink and, inasmuch as Section 196.135, supra, provides that a nonalcoholic drink is adulterated when it contains any fluorides or fluorine compounds, the sections in question would be violated by the enforcement of an ordinance requiring the addition of a fluoride to water. We are of the view that respondents' contention in that respect is untenable. Section 196.125, 12 V.A.M.S., defines a nonalcoholic drink in these words: ‘the term ‘nonalcoholic drink,’ as used herein, shall include carbonated beverages of all flavors, sarsaparilla, ginger ale, soda water of all flavors, lemonade, orangeade, root beer, grape juice, and all other nonintoxicating drinks.' It is clear enough to us that the legislature did not intend to include water within the expression ‘all other nonintoxicating drinks.’ Clearly we think the legislature intended by that language to include other drinks popularly referred to as ‘soft drinks' which were not specifically named but which were of the general kind and nature as those listed. We so hold. See Dowell v. City of Tulsa, supra, 273 P.2d 859, 864; Froncek v. Milwaukee, supra, 269 Wis. 276, 69 N.W.2d 243, 250, 251. We are of the opinion that the ordinance in question is not invalid for any of the reasons urged, and it follows that the judgment is reversed and the case remanded with directions to enter a judgment in accordance with the views herein stated. HOLMAN and HOUSER, CC., concur. PER CURIAM. The foregoing opinion by COLL, C., is adopted as the opinion of the court. All concur.

+/- Baer v. City of Bend

Oregon, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, State police power, First Amendment

• Plaintiff
  Baer
• Defendant
  City of Bend
• State
  Oregon
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations

  - State police power

  - First Amendment
• Citation
  206 Ore. 221; 292 P.2d 134 (Or. 1956)
• Year
  1956-00-00T00:00:00
• Court Name
  Supreme Court of Oregon
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  LUSK, Justice. The city of Bend maintains and operates a water system for supplying water to its inhabitants. In February, 1952, the mayor and city commissioners adopted an ordinance or resolution providing for the introduction of inorganic fluoride chemicals into the water supply. The plaintiff, a citizen, elector, taxpayer, resident and water-user of the city of Bend, for himself and all others similarly situated, commenced this suit against the city and its officials to enjoin the proposed action. The defendants demurred to the second amended complaint. The court sustained the demurrer and, the plaintiff refusing to plead further, a decree of dismissal was entered from which this appeal is taken. The main contentions of the plaintiff are that the legislation is unconstitutional because, if carried into effect, it will deprive the plaintiff of liberty in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, and will encroach upon the freedom of religion secured by the First Amendment against abridgment by the United States and similarly secured to all persons by the Fourteenth Amendment against abridgment by a state. Schneider v. New, Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155. The plaintiff also invokes the equivalent guarantees of freedom of religion in the Bill of Rights, Art. I, §§ 2, 3 and 4, of the Constitution of Oregon. See City of Portland v. Thornton, 174 Or. 508, 512, 149 P.2d 972, certiorari denied 323 U.S. 770, 65 S.Ct. 123, 89 L.Ed. 616. From the allegations of the complaint, aided by the express concessions of counsel for the plaintiff at the oral argument, it appears that fluorides are introduced into a community's drinking water, when needed, for the purpose of ‘reducing dental caries,’ that is, decay of the teeth, among children. It is used in the proportion of one part fluoride to one million parts water, and among children up to the age of 12 or 14 years it effects a reduction of dental decay by some 60 to 65 per cent. Although there is no direct benefit to adults, it is not alleged, not is it contended, that the consumption of water so treated is harmful to them or anyone else. The concessions of counsel for the plaintiff to which we have referred only harmonize with scientific findings reflected in the opinions of the courts which have been called upon to consider constitutional challenges to similar legislation. According to the opinion in Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (appeal dismissed for want of a substantial federal question, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701, ‘By November 6, 1951, more than 840 communities, with a total population of 15,578,300, were using water supplies which had been artificially fluoridated in concentrations from 0.7 to 1.5 parts per million.’ As stated by the Supreme Court of Ohio in Kraus v. Cleveland, 163 Ohio St. 559, 564, 127 N.E.2d 609, 612, ‘Science has discovered a method whereby dental caries may be diminished’ and again ‘It is clear from the record that the fluoridation of water for the prevention of dental caries has progressed far beyond the experimental period and has now become an established method.’ 163 Ohio St. at page 566, 127 N.E.2d at page 613. See Public Health Service Bulletin No. 62 (1951); Fluoridation of Municipal Water Supply, Report No. 140 (1952), National Institute of Municipal Law Officers; Henry A. Dietz, Fluoridation and Domestic Water Supplies in California, IV The Hastings Law Journal, p. 1; Kraus v. City of Cleveland, Ohio Com.Pl., 116 N.E.2d 779, 790-794, per Artl, J. The legislation in question was adopted by the city in the exercise of its police power granted by a provision of its charter which authorizes it ‘to make ordinances, by-laws, and regulations... not repugnant to the laws of the state of Oregon or of the United States, that shall be deemed necessary to secure the peace, health and general welfare of the city and its inhabitants.’ Charter of the city of Bend, ch VII, art. B, § 1. These powers the municipality derives from the state, and ‘According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.’ Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 361, 49 L.Ed. 643. See, also, State v. Muller, 48 Or. 252, 255, 85 P. 855, 120 Am.St.Rep. 805, affirmed 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551; Foeller v. Housing Authority of Portland, 198 Or. 205, 236, 237, 256 P.2d 752; Daniels v. City of Portland, 124 Or. 677, 265 P. 790, 59 A.L.R. 512. As the Supreme Court of Massachusetts said in sustaining legislation providing for the introduction of chlorine into a community's water supply, ‘The preservation of the health and physical safety of the people is a purpose of prime importance in the exercise of the police power.’ Commonwealth v. Town of Hudson, 315 Mass. 335, 52 N.E.2d 566, 570. All this is expressly conceded by plaintiff, who says in his reply brief, ‘We concede that the general dental health of the citizens is a proper field for the exercise of State authority.’ This and other concessions of plaintiff regarding the beneficial effects of the addition of fluoride to the water supply of the city as a means of reducing the ‘serious and widespread disease’ Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242, 246, of dental caries among children is all the answer that need be given to the claim that the regulation has no real, rational and substantial relation to the public health and the general welfare. See Jacobson v. Commonwealth, supra, 197 U.S. at page 31, 25 S.Ct. 358; State v. Muller, supra, 48 Or. at page 255, 85 P. 855; Stettler v. O'Hara, 69 Or. 519, 530, 139 P. 743, L.R.A.1917C, 944, affirmed 243 U.S. 629, 37 S.Ct. 475, 61 L.Ed. 937; Commonwealth v. Town of Hudson, supra. Whether, as plaintiff suggests, there are ‘more rational methods for reducing dental caries,’ is a legislative, not a judicial question, as is sufficiently shown by the cases just cited. And, as for judicial authority upon the precise question now before us, every court of last resort in the country which has had occasion to consider the subject has sustained similar legislation as a valid exercise of the police power. Dowell v. City of Tulsa, Okl., 273 P.2d 859, 43 A.L.R.2d 445, certiorari denied 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, hearing denied by Supreme Court of California, certiorari denied 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Chapman v. City of Shreveport, supra; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Kraus v. City of Cleveland, supra, 163 Ohio St. at page 559, 127 N.E.2d 609; Froncek v. City of Milwaukee, supra. The liberties of the citizen which the plaintiff asserts are threatened with invasion are religious liberty (apparently, although it is not explicitly stated, because fluoridation of the water supply involves enforced medication against the conscientious religious convictions of those adhering to certain religious sects); and the personal liberties of parents to guard the health of their children, and of individuals to determine for themselves whether they shall submit to medication thus furnished by the city. It is also alleged that the legislation is discriminatory because it will benefit only children and not adults. The complete answer, though not the only one, to the last contention is that the children of today are the adult citizens of tomorrow, and a measure reasonably calculated to prevent the spread of disease among children and improve their health cannot be said to be without benefit to the entire community. Chapman v. City of Shreveport, supra, 225 La. at page 870, 74 So.2d 142; Dowell v. City of Tulsa, supra, 273 P.2d at page 863; and see State v. Muller, supra, 48 Or. at page 258, 85 P. 855. Upon the general subject of the liberties protected by the Constitution it should be first observed that they are not held absolutely but only subject to reasonable restraints imposed for the general welfare. As Mr. Justice Harlan said in speaking for the court in Jacobson v. Com. of Massachusetts, supra: ‘... But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.’ See, also, Chicago, B. & Q. R. Co. v. McQuire, 219 U.S. 549, 565, 31 S.Ct. 259, 55 L.Ed. 328; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330. As stated by Chief Justice Hughes in West Coast Hotel Company v. Parrish, supra, where the court upheld the legislation of Washington providing for the establishment of minimum wages for women and minors as a health measure: ‘...Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.’ 300 U.S. at page 391, 57 S.Ct. 581. See in this connection State v. Bunting, 71 Or. 259, 139 P. 731, L.R.A.1917C, 1162, affirmed sub nom. Bunting v. Oregon, 243 U.S. 426, 37 S.Ct. 435, 61 L.Ed. 830, Ann.Cas.1918A, 1043. In the Jacobson case the court recognized that there is ‘a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government,-especially of any free government existing under a written constitution, to interfere with the exercise of that will.’ 197 U.S. at page 29, 25 S.Ct. at page 362. Nevertheless, the court held that a compulsory vaccination law of Massachusetts was constitutional, and sustained a conviction of violation of the statute by one asserting its invalidity. That was a much more drastic statute than the measure we are here dealing with because it subjected to prosecution anyone who refused to submit his person to the injection of vaccine. Likewise, statutes or ordinances excluding children from public schools who had not been vaccinated have been, with but few exceptions, uniformly sustained. Zucht v. King, 260 U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194; Hartman v. May, 168 Miss. 477, 151 So. 737, 93 A.L.R. 1408, and annotation, 93 A.L.R. 1413, 1414; Sadlock v. Board of Education, 137 N.J.L. 85, 58 A.2d 218. It cannot be successfully contended that the exercise of the police power for the protection of the public health-and this is a question of the public health-is restricted to situations of overriding public necessity or emergency or infectious or contagious diseases, for, as the Supreme Court of Ohio said in Kraus v. City of Cleveland, supra, 163 Ohio St. at page 562, 127 N.E.2d at page 611, ‘laws relating to child labor, minimum wages for women and minors and maximum hours for women and minors have all been upheld on the basis of the police power in relation to public health. Regulations relating to control of venereal disease, blood tests for marriage licenses, sterilization, pasteurization of milk, chlorination of water and vaccination have all been held valid as based on police power exercised in regard to public health.’ It is true that the specific guarantee of freedom of religion in the First Amendment and incorporated into the Fourteenth holds a preferred place by comparison with the liberties protected by the Due Process Clause of the Fourteenth Amendment when the latter is applied ‘for its own sake.’ West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, 147 A.L.R. 674. See, also, Schneider v. New Jersey, supra, 308 U.S. at page 161, 60 S.Ct. 146; Thomas v. Collins, 323 U.S. 516, 529, 65 S.Ct. 315, 322, 89 L.Ed. 430. But it is not true, as counsel for the plaintiff asserts, that when First Amendment liberties are involved the presumption is one of unconstitutionality. All that has ever been held is that in such a case there is no presumption either way. ‘Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.’ Thomas v. Collins, supra. It has never been held, said Mr. Justice Belt, speaking for this court in City of Portland v. Thornton, supra, 174 Or. at page 513, 149 P.2d 974, that ‘the practice of religion is beyond reasonable limitation.’ As stated by the Supreme Court of Appeals of Virginia in Rice v. Commonwealth, 188 Va. 224, 234, 49 S.E.2d 342, 347, 3 A.L.R.2d 1392, ‘The individual cannot be permitted, on religious grounds, to be the judge of his duty to obey the regulatory laws enacted by the State in the interests of the public welfare. The mere fact that such a claim of immunity is asserted because of religious convictions is not sufficient to establish its constitutional validity.’ In that case the Virginia court sustained, as have other courts, a statute which required parents, guardians, and others having control of young children, to send them to school, notwithstanding religious convictions of the dissenters. See West Virginia State Board of Education v. Barnette, supra, 319 U.S. at page 631, 63 S.Ct. 1178; Commonwealth v. Beiler, 168 Pa.Super. 462, 79 A.2d 134. So, it is held that it is no defense to a charge of violation of a statute denouncing polygamy as a crime that the accused conscientiously believed as a tenet of his church that it was the duty of male members of the church, circumstances permitting, to practice polygamy, Reynolds v. United States, 98 U.S. 145, 161-167, 25 L.Ed. 244; that a state university which requires its students to take and complete a course in military science and tactics may, without offending against the First Amendment, exclude members of a church who refused to take such course because to do so would violate a tenet of their faith with reference to making war, Hamilton v. Regents of the University of Southern California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343; that a provision of a state labor law making it a penal offense for a parent or guardian or other person having custody of minor children under a certain age to permit them to sell newspapers, magazines or periodicals in any street or public place, is immune to challenge by a member of Jehovah's Witnesses based upon her belief in the scriptural injunction to preach the gospel-the periodicals sold by the child in the particular case being ‘The Watchtower’ and ‘Consolation,’ magazines put out by Jehovah's Witnesses for the propagation of their faith, Prince v. Masschusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; City of Portland v. Thornton, supra; that a conviction of a parent for refusing, in violation of a statute, to furnish needed medical attendance to his minor child should be sustained notwithstanding the religious scruples of the parent on that score, People v. Pierson, 176 N.Y. 201, 68 N.E. 243, 98 Am.St.Rep. 666, 63 L.R.A. 187; that where a parent refused her consent to a necessary blood transfusion for his infant child because of religious convictions against the use of blood for that purpose a court might, without transcending constitutional limitations, appoint a guardian for the child and authorize the guardian to consent to such transfusion, People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132, certiorari denied 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642; and that the board of regents of a university might deny registration of an applicant therefor who refused to comply with a requirement of the board that all students have an X-ray examination of the chest for the purpose of discovering possible tubercular infection, the basis of such refusal being that to submit to such an examination would violate the tenets of the applicant's church, State ex rel. Holcomb v. Armstrong, 39 Wash.2d 860, 239 P.2d 545. The plaintiff relies on Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446; Pierce v. Society of Sisters of the Holy Names, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468; and West Virginia State Board of Education v. Barnette, supra. Meyer v. Nebraska involved the constitutionality of a statute of Nebraska which forbade the teaching in any school, public, private or parochial, of any subject except in English, and also forbade the teaching of any other language as a language until the pupil had attained and successfully passed the eighth grade. Violation of this statute was made a penal offense. In Pierce v. Society of Sisters of the Holy Names the challenged statute, adopted by the people of Oregon under the initiative, required parents and others having control of children between the ages of 8 and 16 years to send them to the public schools. Violation of the statute was punishable by fine or imprisonment in jail or both. In the Barnette case the question was whether a state board of education, acting pursuant to a statute of Indiana, could constitutionally compel a school child to participate in the salute to the flag. The objectors were members of the sect known as Jehovah's Witnesses. They claimed that the regulation conflicted with a tenet of their religion based on scripture which forbade them to make unto themselves or bow down to or serve any ‘graven image.’ They considered that the flag was an image within this command. For their refusal to salute the flag children of this faith were expelled from school and threatened with sentence to reformatories maintained for criminally inclined juveniles and their parents were prosecuted or threatened with prosecution for causing delinquency. All these measures were condemned as invasions of the liberties of the citizen. The so-called ‘German language’ law of Nebraska and the Oregon compulsory public school attendance law were found to have their roots in a political theory that was repugnant to American principles of liberty. In the Nebraska case [262 U.S. 390, 43 S.Ct. 628], the court, after a reference to the Spartan system of assembling all males at seven into barracks and entrusting their education to official guardians, denounced the statute as ‘arbitrary and without reasonable relation to any end within the competency of the state.’ In the Oregon case the court said: ‘...The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ Pierce v. Society of Sisters, etc., 268 U.S. at page 535, 45 S.Ct. at page 573. And so, as stated in Prince v. Massachusetts, supra, the court ‘sustained the parent's authority to provide religious with secular schooling, and the child's right to receive it, as against the state's requirement of attendance at public schools.’ 321 U.S. at page 166, 64 S.Ct. at page 442. In the ‘flag salute’ case the court said that ‘the flag salute is a form of utterance’, West Virginia State Bd. of Education v. Barnette, 319 U.S. at page 632, 63 S.Ct. at page 1182, and that the court was ‘dealing with a compulsion of students to declare a belief.’ 319 U.S. at page 631, 63 S.Ct. at page 1182. The action of the local authorities, therefore, was declared to invade ‘the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.’ 319 U.S. at page 642, 63 S.Ct. at page 1187. The famous ‘clear and present danger’ test announced by Mr. Justice Holmes in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, as applicable to legislative restriction of free speech, has either been misunderstood (as we prefer to think) or it was modified by Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (the case of the communist conspiracy), where, after a lengthy discussion and careful analysis of the decisions touching the question, Chief Justice Vinson said: ‘Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘In each case (courts) must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' [ United States v. Dennis, 2 Cir.], 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.' 341 U.S. at page 510, 71 S.Ct. at page 868. Incorporation of the First Amendment into the Fourteenth has not rendered the states and their political subdivisions impotent to enact reasonable laws for the protection of the public health. We think that the fluoridation measure of the city of Bend passes the test of reasonableness. It is not designed to pour the children of the community into a common mould, of the state's own fashioning, in order to achieve an illusory unity. It does not compel expression of belief in a creed repugnant to the religous convictions of the members of any church. It involves far less of interference with legitimate parental authority than the regulations sustained in Prince v. Massachusetts and City of Portland v. Thornton. The ‘clear and present danger’ in those cases was the injury to the health and morals of young children which could be expected to result from permitting them to sell papers on the public streets; in this case it is a children's disease of serious proportions. It is to be borne in mind that ‘Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.’ Reynolds v. United States, supra, 98 U.S. at page 166. Mr. Justice Cardozo, in his concurring opinion in Hamilton v. Regents of the University of Southern California, supra, in which Justices Brandeis and Stone joined, called attention to the fact that exemption from military service had been usually granted in this country to conscientious objectors as an act of grace and was frequently coupled with a condition that they supply the Army with a substitute or with the money necessary to hire one. ‘Never in our history’, he wrote, ‘has the notion been accepted, or even, it is believed, advanced, that acts thus indirectly related to service in the camp or field are so tied to the practice of religion as to be exempt, in law or in morals, from regulation by the state.’ 293 U.S. at page 267, 55 S.Ct. at page 206. Quite as indirect is the relationship between the measure before us and so-called enforced medication and the practice of religion. The argument respecting enforced medication has been in some cases coupled with a claim that fluoridation of a community's water supply amounts to the practice of medicine or dentistry by a municipality. Such a claim is found in the plaintiff's complaint, though at the argument it was expressly withdrawn by plaintiff's counsel. Upon this subject we agree with what the Oklahoma court said in Dowell v. City of Tulsa, supra: ‘...in the contemplated water fluoridation, the City of Tulsa is no more practicing medicine or dentistry or manufacturing, preparing, compounding or selling a drug, than a mother would be who furnishes her children a well-balanced diet, including foods containing vitamin D and calcium to harden bones and prevent rickets, or lean meat and milk to prevent pellagra. No one would contend that this is practicing medicine or administering drugs.’ 273 P.2d at page 864. We see no difference from a constitutional standpoint between introducing chlorine into a water supply to remove impurities and thereby safeguard the public health, and introducing fluorides to reduce the incidence of dental decay among children and thereby promote the public health and general welfare. Yet today chlorination seems to be accepted by everyone as a matter of course. We conclude that the objections to the proposed action of the city of Bend, while undoubtedly advanced in good faith, are, in the light of constitutional principles, tenuous; that the measure bears only remotely, if at all, upon the religious practices of any individual or the authority of parents to rear their children and prepare them for citizenship; that it was adopted for the accomplishment of an end, concededly legitimate, by means which it would be extravagant to pronounce unreasonable or arbitrary. It is, therefore, a valid exercise of the city's police power. The only other contention of the plaintiff which we are required to notice is that fluoridation of the city's water supply will constitute a violation of the contractual rights of approximately 600 suburban water users living in water districts with which the city has entered into contracts to furnish pure, potable and palatable water. We think that it is sufficient to say of this contention that the present plaintiff has no standing to raise it. The decree of the circuit court is affirmed without costs to any of the parties.

+/- Hall v. Bates

South Carolina, Due Process Violations, State police power, Unnecessary Unsafe & Wasteful

• Plaintiff
  Carlton Hall
• Defendant
  Lester Bates, William H. Tuller, William C. Ouzts, R.E.L. Freeman, Hyman Rubin, City Council of the City of Columbia, Cary Burnett
• State
  South Carolina
• Other Parties
  -
• Case Tags
  - Due Process Violations

  - State police power

  - Unnecessary Unsafe & Wasteful
• Citation
  247 S.C. 511; 148 S.E.2d 345 (S.C. 1966)
• Year
  1966-00-00T00:00:00
• Court Name
  Supreme Court of South Carolina
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  BUSSEY, Justice. In this action plaintiff-appellant sought an injunction against the City of Columbia to prevent the fluoridation of its water supply. The appeal is from an order of the circuit court refusing the injunction and dismissing the complaint. The record shows that since 1950 thirty municipalities in South Carolina have added fluorides to their respective municipal water supplies. In addition, the water supplies of twenty-five municipalities in this state have natural fluoride content of 0.7, or more, parts per million. The South Carolina State Board of Health, pursuant to statutory authority, on September 21, 1959 adopted and filed in the Office of the Secretary of State a rule regulating the addition of fluoride in any form to public and semi-public water supplies in this state. Such rule is contained in the 1962 Code of Laws, Vol. 17, 311. The question of adding fluorides to the water supply of the City of Columbia, in order to improve the dental health of its citizens by reducing the incidence of decay, has been under consideration by said city since 1951. In February, 1965, Columbia City Council held a public hearing on the matter and heard arguments pro and con as to whether such fluoridation should be undertaken. Following this hearing, City Council concluded that its water supply should be fluoridated and instructed the city manager to proceed to take the necessary steps to implement that decision. This injunction proceeding followed. The plaintiff resides at a location outside the City of Columbia, but is also the owner of a residence within the city. Both residences are in the service area of the water system of the city. Plaintiff suffers from a severe arthritic condition and contends that the addition of fluorides to the public water supply is harmful to his person and that the action of the city in fluoridating its water supply is an invasion of his constitutional rights. Rather voluminous testimony was received by lower court. The plaintiff offered expert testimony tending to prove that fluoridation would not be beneficial to anyone and would, in fact, be harmful to many people, including the plaintiff. Evidence on behalf of the defendants is to the effect that the action taken by City Council was approved and urged by, among others, the City Board of Health, the Richland County Board of Health, the South Carolina State Board of Health, the Columbia Medical Society, the Richland County Dental Society, the Central South Carolina Dental Society, and the South Carolina Dental Society. While professional opinion thereabout is not unanimous, we think the record here fairly reflects that the vast majority of medical, dental and scientific opinion, after years of research and study, is to the effect that the fluoridation of public water supplies, properly accomplished, is of tremendous benefit in the prevention of caries and that such is not harmful to anyone. The principal benefit from such fluoridation is to children during their formative years. The record also fairly reflects, we think, that while fluoridation can be provided for such children by other means, as a practical and economic matter the only way that the rank and file of children can consistently be provided with the benefit of fluoridation is through the water supply. While there are, of course, some sharp conflicts in the evidence, we will not here deal further with the evidence because there are findings of fact by the circuit judge, which are not only fully supported by the evidence, but unchallenged on appeal. The circuit court found, inter alia, ‘that placing fluoride in the water supply in the City of Columbia is not, in fact, harmful to the health of the citizens, but is, in fact, beneficial to the health of the citizens of the city; that fluorides will not be harmful to the plaintiff despite plaintiff's testimony and apparent fears.’ While the plaintiff's exceptions are several, the only questions stated and argued in his brief are constitutional questions. He contends (1) that fluoridation unduly infringes upon his individual liberty in contravention of the due process clause of Article I, Section 5, of the South Carolina Constitution, and the similar clause in the Fourteenth Amendment to the Federal Constitution; and (2) that fluoridation violates the equal protection clauses of the cited constitutional provisions. Except for the alleged unconstitutionality of the action of the defendants, the plaintiff does not challenge the power of the city to take the action which it did. While the brief of plaintiff states two constitutional questions, he frankly admits that his principal legal contention is that the action of City Council deprives him of ‘liberty without due process of law’, in violation of his constitutional rights. In fact, his argument of the second question in his brief is largely a continuation of his argument of the first stated question. In brief, the plaintiff's contention is that he will be compelled to drink the fluoridated water because there is no other practical source of supply; that such fluoridated water is not beneficial to him, and that he is deprived of his liberty to decide of his own free will whether fluorides would be advantageous or disadvantageous to his own personal health. It possibly should be noted that the plaintiff does not contend that he has no other source of water supply, but merely that the city system is his only practical source of supply. He apparently concedes that if caries were contagious, the action of City Council would be within constitutional limits, but strenuously urges that regardless of how beneficial the prevention of caries might be to the health of people in general, the city has no right to deprive him of his liberty to decide to drink water which is not fluoridated in the absence of a serious danger of contagion. While this court has not had previous occasion to consider any question arising out of the fluoridation of a public water supply, the courts of our sister states have had occasion to consider attacks upon fluoridation made on almost every conceivable ground, including all of the arguments advanced by plaintiff here. The entire weight of authority in the United States is against the several contentions and arguments of the plaintiff. A fairly recent fluoridation case is that of Schuringa et al. v. City of Chicago, (1964), 30 Ill.2d 504, 198 N.E.2d 326, cert. den. 85 S.Ct. 655, 379 U.S. 964, 13 L.Ed.2d 558. The opinion therein would rather indicate that even more voluminous testimony was taken in the trial of that case than in the instant case. We quote from the decision the following pertinent language: ‘The first issues thus confronting us are whether the fluoridation of water is so related to the public health as to constitute it a proper exercise of the police power, and whether fluoridation is reasonably necessary and suitable for the protection of the public health. ‘And while the matter is one of first impression in this jurisdiction, it is a question which has been the subject of much litigation in our time. In this country, on the occasions where the matter has been subjected to judicial scrutiny, there has been unanimous accord that the fluoridation of water by one part of fluoride to a million parts of water is a reasonable and proper exercise of the police power in the interest of the public health, and that it is not subject to constitutional infirmities thus far conceived. (See: Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, certiorari denied, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, certiorari denied 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Dowell v. City of Tulsa (Okla.1954,) 273 P.2d 859, 43 A.L.R.2d 445, certiorari denied 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; de Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, certiorari denied 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242; Readey v. St. Louis County Water Co., (Mo.1961), 352 S.W.2d 622; Baer v. City of Bend, 206 Or. 221, 292 P.2d 134; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; City Commission of City of Fort Pierce v. State ex rel. Altenhoff, (Fla.App.1962,) 143 So.2d 879. Cf. Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569.)’ The plaintiffs in that case advanced, among others, the same arguments advanced by the plaintiff in the instant case. With respect to such we quote further from the opinion, ‘Finally, plaintiffs assert that the program is an improper exercise of the police power because tooth decay is not a communicable or epidemic disease; because only a small segment of the population, the city's children, are benefited; and because it(s) subjects all users to mass medication in violation of the fundamental and inalienable right of each individual to determine whether or not they wish to be so treated. These constitutional claims have both their source and their unanimous rejection in the decisions of our sister States, heretofore cited, which have treated upon the problem and we see no useful purpose in a detailed analysis or repetition of the grounds for rejection. Suffice it to say that those well-reasoned precedents, with which we are in accord: (1) sustain the right of municipalities to adopt reasonable measures to improve or protect the public health, even though communicable or epidemic diseases are not involved: (2) hold that the benefits of fluoridation which carry over into adulthood absolve such programs of the charge of being class legislation; and (3) conclude that fluoridation programs, even if considered to be medication in the true sense of the word, are so necessarily and reasonably related to the common good that the rights of the individual must give way.’ We deem it unnecessary to review here each of the authorities cited by the Illinois court, or to cite any additional authorities. Collectively, those cases, as well as other authorities in this country, completely support the conclusions reached by the Illinois court. Plaintiff cites no case in point which holds contrary to the foregoing, and it is at least worthy of note that the United States Supreme Court has repeatedly denied certiorari in these fluoride cases for lack of a substantial federal question. In addition to the complete weight of authority from other states in the Union against plaintiff's position in the instant case, we find nothing in any of the prior decisions of this court which would lend support to plaintiff's contentions. Previous decisions of this court have recognized that an ordinance or regulation of a municipality under its police powers may be so unreasonable as to violate constitutional privileges and that it is within the province of this court to determine whether such ordinance or regulation is so unreasonable. City of Columbia v. Alexander, 125 S.C. 530, 119 S.E. 241, 32 A.L.R. 746; Ward et al. v. Town of Darlington, 183 S.C. 263, 190 S.E. 826. In the last cited case the court said, however, ‘It must be borne in mind that in the exercise of its powers to preserve and protect the health of the inhabitants of the municipality, the range of the exercise of the powers of the council is much wider than in its relation to other maters.’ Plaintiff places strong reliance on the decision of this court in the case of Kirk v. Board of Health of City of Aiken, 83 S.C. 372, 65 S.E. 387, 23 L.R.A., N.S., 1188, wherein this court said, ‘It is always implied that the power conferred to interfere with these personal rights is limited by public necessity. From this it follows that boards of health may not deprive any person of his property or his liberty, unless the deprivation be made to appear, by due inquiry, to be reasonably necessary to the public health;... ‘In passing upon such regulations and proceedings, the courts consider, first, whether interference with personal liberty or property was reasonably necessary to the public health, and, second, if the means used and the extent of the interference were reasonably necessary for the accomplishment of the purpose to be attained.’ We see no support for plaintiff's position in the foregoing language, quoted and relied upon by him. To the contrary, in the instant factual situation, we think the stated principles support the position of the defendants. Even if we do not take judicial notice thereof, as other courts have done, the record shows that dental health is of great importance to the general health of people. The defendants, after due inquiry, determined the action taken to be reasonably necessary to the public health. The evidence shows that the benefits of fluoridation carry over into adulthood, and that eventually, with the passage of time, the entire population using the Columbia water supply will be benefited thereby. The record also reflects that the only practical method of fully achieving the beneficial effects of fluoride is to put the same into the water system. Unchallenged on this appeal is a finding of fact that the consumption of fluoridated water will not be harmful to the plaintiff. Plaintiff apparently sincerely believes otherwise, and it is no doubt true that the public water supply of the City of Columbia is his only practical source of supply in that such is more economical and convenient to him. But, the extent of any interference with the personal rights of the plaintiff is, at most, minimal when compared with the ultimate benefits to the citizens in general. Under these circumstances and on the record before us, we conclude that the action taken by the City of Columbia was reasonably necessary to the public health, and that the means used and the extent of any interference with the rights of the plaintiff were reasonably necessary to the accomplishment of the purpose sought to be attained. Such action was a legitimate exercise of the police power vested in it, and not unconstitutional on either of the grounds urged by the plaintiff. The judgment of the circuit court is, accordingly, Affirmed. MOSS, Acting C.J., and LEWIS and BRAILSFORD, JJ., concur. LEGGE, Acting J., dissents. LEGGE, Acting Justice (dissenting). As stated in Gasque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36, and again in McCoy v. Town of York, 193 S.C. 390, 8 S.E.2d 905: ‘To be valid as a legislative exercise of police power, the legislation must be clearly demanded for the public safety, health, peace, morals or general welfare.’ At most, the record in the present case shows that in the opinion of many experts fluoridation of the public water supply is not harmful and is beneficial in reducing the incidence of dental cavities in young children. That, I think, falls short of a showing of such necessity in the interest of an endangered public health as is required by the constitutional test just mentioned. For this reason I respectfully dissent.

+/- Kaul v. City of Chehalis

Washington, Abuse of Municipal Authority, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, State police power, First Amendment

• Plaintiff
  Arthur A. Kaul
• Defendant
  City of Chehalis et al.
• State
  Washington
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations

  - State police power

  - First Amendment
• Citation
  45 Wn.2d 616; 277 P.2d 352 (Wash. 1954)
• Year
  1954-00-00T00:00:00
• Court Name
  Supreme Court of Washington
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Weaver J
• Opinion Text
  WEAVER, Justice. Appellant challenges the validity of ordinance No. 653-A adopted June 25, 1951, by the city commissioner of the city of Chehalis. The ordinance provides: ‘That a source of fluoridation approved by the State Department of Health be added to the water supply of the City of Chehalis under the rules and regulations of the Washington State Board of Health, such addition to be administered in a manner approved by the State Director of Public Health.’ Appeal is taken from a judgment dismissing appellant's suit to enjoin the respondent city from fluoridating the city water supply pursuant to the above ordinance. Appellant does not question the findings of fact entered by the trial court. The facts found, therefore, become ‘the established facts in the case.’ Rule on Appeal 43, 34A Wash.2d 47, as amended, effective January 2, 1953. In his memorandum opinion, the trial judge said: ‘The questions to be determined by this court are purely legal and constitutional questions, and will be dealt with only from the standpoint. It is of no consequence or importance whether I personally approve or disapprove of fluoridation.’ With this we agree. Our discussion of the case will likewise be limited. Appellant is a taxpayer and a registered voter. He has lived in Chehalis for fourteen years. For the past eight years, he has lived in a rented house which is connected to the municipal water system. He has paid for the use of all water billed to him. Acting in its proprietary capacity, Russell v. City of Grandview, 1951, 39 Wash.2d 551, 553, 236 P.2d 1061, the city owns and operates a municipal water system, originating eighteen miles southeast of the city. It furnishes water to the residents of Chehalis and to nonresidents living along the supply line. If the water is fluoridated, it will be necessary for appellant and all other users ‘to use it for domestic purposes including drinking, because there is no other practical source of supply.’ The trial court found: ‘VI. That although fluoride is a deadly poison used commercially for the extermination of rats and other vermin, the addition to the municipal water supply of Chehalis of a source of fluoride ion, such as sodium silico fluoride, in the proporation of one part per million will not amount to a contamination and the water will continue to be wholesome. That chlorine is added to water to affect either bacteria or plant life in the water, while fluoride has no effect upon the water or upon the plant life in the water but remains free in the water and is artificially added solely for the effect it has on the individual drinking the water. (Italics ours.) ‘VII. That dental caries, commonly referred to as tooth decay, is a very common disease of mankind. That tooth decay is neither infectious or contagious. That the addition of fluoride to the Chehalis water supply is intended solely for use in prevention of tooth decay primarily in children up to 14 years of age, and particularly between the ages of 6 and 14 and will prevent some tooth decay in some children.’ The trial court entered judgment dismissing the action with prejudice. Seven assignments of error are directed to the conclusions of law; one is directed to entry of judgment. Did the city council exceed its authority when it adopted ordinance No. 653-A providing for fluoridation of the water? Article XI, § 11, of the state constitution provides: ‘Police and Sanitary Regulations. Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.’ The trial court found that Chehalis is ‘operating under the Commission Form of Government pursuant to RCW Chapter 35.17.’ Therefore, Chehalis is governed by the statutes applicable to cities of the second class. Rem.Rev.Stat. §§ 9093, 9100, cf. RCW 35.17.030. Laws of 1907, chapter 241, § 29, Rem.Rev.Stat. § 9034, cf. RCW 35.23.440, provides: ‘The city council of such city shall have power and authority:... ‘24. Water Supply: To adopt, enter into and carry out means for securing a supply of water for the use of such city or its inhabitants, .... ‘27. Health Board: To establish a board of health; to prevent the introduction and spread of disease;... . ‘56. To provide for the general welfare.’ (Italics ours in text.) Note that the statute authorizes the city ‘to prevent the introduction and spread of disease’ as contrasted to the charter powers of the city of Shreveport ‘to prevent the introduction and spread of contagious diseases.’ We will refer to this later when discussing Chapman v. City of Shreveport (1954), No. 116282, First District Court, Caddo Parish, Louisiana. Laws of 1909, chapter 249, § 290, 291, Rem.Rev.Stat. §§ 2542, 2543, cf. RCW 70.54.010, 70.54.020 and Laws of 1899, chapter 70, Rem.Rev.Stat. §§ 9473, 9475, 9476, 9477, cf. RCW 35.88.010-35.88.020, RCW 35.88.050-35.88.070, contain numerous provisions, both penal and otherwise, designed to insure the purity of water supplies. Dental caries is neither infectious nor contagious. This, however, does not detract from the fact that it is a common disease of mankind. As such, its prevention and extermination come within the police power of the state. In State v. Boren, 1950, 36 Wash.2d 522, 525, 219 P.2d 566, 568, 20 A.L.R.2d 798, this court said: ‘The state, under its police power, has the right, and it is its duty, to protect its people in their health and general welfare. The very existence of government, as well as the security of the social order, depends upon this right. This is especially true as to the health of the people, which affects every man, woman and child within the state.’ Laws of 1901, chapter 116, § 1, cf. Rem.Rev.Stat. § 6001, RCW 43.20.050, gives the Washington state board of health broad powers and duties for the ‘preservation of the life and health of the people of this state.’ By regulation of the state board of health, ‘No water shall be provided or rendered available for use to the public for drinking or domestic use which is of unsatisfactory sanitary quality and is not approved by the State Department of Health.’ Part 2, Book V, Rules and Regulations of the State Board of Health, § 7. We note that the same regulation (§ 7, subsection 4.21) provides that: ‘The presence of ...fluoride in excess of 1.5 p.p.m. [parts per million]...shall constitute grounds for rejection of the supply.’ January 25, 1950, the state board of health adopted section 19 of the rules identified supra. It was in force when the ordinance in question was passed. It provides: ‘Sec. 19. Fluoridation of Public Water Supplies. An owner [which by definition includes a city] may participate in a program of fluoridation (the regulated application of a fluoride as sodium fluoride) of the public water supply, providing the produres are followed as outlined herein: ...’ (This rule was amended July 25, 1952, but its purpose was not changed.) We find nothing in the ordinance which is in conflict ‘with general laws' or which detracts from the constitutional and statutory grants to the city to make and enforce local police, sanitary, and other regulations. Nor do we agree that the fluoridation is ultra vires simply because the police power is exercised through a municipal agency operated by the city in its proprietary capacity. Since the city acted in the exercise of its police power for the protection of public health to ‘prevent the introduction and spread of [this] disease’ among its citizens, the subject matter of this exercise of power, and its expediency, are beyond judicial control, except as they may violate some constitutional right guaranteed to appellant. Dowell v. City of Tulsa, Okl., 1954, 273 P.2d 859 (fluoridation of water). We fail to see, however, where any right of appellant, guaranteed by the constitution, has been invaded. The instant situation is vastly different from one where appellant is required to take affirmative action and is subject to punishment for failure to act. The ordinance under consideration does not compel him to do anything; it subjects him to no penalty. Liberty implies absence of arbitrary restraint. It does not necessarily imply immunity from reasonable regulations imposed in the interest of the community. In some sections of the country, fluoride appears as a natural element in water. When it appears naturally in proportions not deleterious to health, would it be contended that the city could be forced to remove it? The trial court's finding is unchallenged that: ‘...The addition to the municipal water supply of Chehalis of a source of fluoride ion, such as sodium silico fluoride, in the proportion of one part per million will not amount to a contamination and the water will continue to be wholesome.’ (Italics ours.) It is the duty of the city to furnish appellant with wholesome water, free from contamination. The court found that the city will continue to furnish wholesome water. This fulfills the city's obligation to appellant and violates none of his constitution rights. This conclusion finds support in De Aryan v. Butler, 1953, 119 Cal.App.2d 674, 260 P.2d 98; Dowell v. City of Tulsa, Okl., 1954, 273 P.2d 859, and Kraus v. City of Cleveland, Ohio Com.Pl.1953, 116 N.E.2d 779, affirmed Ohio App.1954, 121 N.E.2d 311. Subsequent to the cited opinion of the De Aryan case, supra, it became final when the supreme court of California denied a petition for a hearing. June 7, 1954, the United State supreme court denied certiorari. 347 U.S. 1012, 74 S.Ct. 863. The California appellate court, in holding constitutional an ordinance providing for the fluoridation of a public water supply, said [ 119 Cal.App.2d 674, 260 P.2d 103]: ‘The United States Supreme Court, in establishing and clarifying the Constitutional right of religious and other freedoms, has distinguished between the direct compulsions imposed upon individuals, with penalties for violations, and those which are indirect or reasonably incidental to a furnished service or facility. Hamilton v. Regents of University of California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213.’ The supreme court of Oklahoma, in holding constitutional an ordinance for the fluoridation of water, said: ‘...we think the weight of well-reasoned modern precedent sustains the right of municipalities to adopt such reasonable and undiscriminating measures to improve their water supplies as are necessary to protect and improve the public health, even though no epidemic is imminent and no contagious disease or virus is directly involved. [Citing authorities.] Where such necessity is established, the Courts, especially in recent years, have adopted a liberal view of the health measures promulgated and sought to be enforced.’ Dowell v. City of Tulsa, Okl., 1954, 273 P.2d 859, 862. It would extend this opinion unduly to analyze in detail each of the cases cited by appellant. It is sufficient to point out that they fall into two categories, neither one of which changes the opinion already expressed. The first contains those cases where the courts have held it a valid exercise of the police power, for the protection of public health, to prevent the introduction or spread of contagious or communicable diseases. Jacobson v. Massachusetts, 1904, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765 (compulsory adult vaccination with penalty for refusal) and Blue v. Beach, 155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64, 80 Am.St.Rep. 195 (compulsory vaccination of children as a condition to entering or remaining in public school) are illustrative of appellant's first category of authorities. In the main, the cases are based upon the theory of ‘the pressure of great danger.’ From the cases of this type, appellant argues, that since the instant case involves a noncontagious disease, which does not present a grave and immediate danger to the public, an extension of the police power to the situation results in an invasion of his constitutional rights. This conclusion depends upon a refinement we are unwilling to make. Protection of public health includes protection from the introduction or spread of both contagious and noncontagious diseases. There is a direct and significant relationship between dental health and general bodily health of individuals. We find nothing in this jurisdiction which limits the police power, exercised in the realm of public health, solely to the control of contagious diseases, as distinguished from noncontagious diseases. Further, under the police power, a health regulation may be an effective public measure, without the existence of some immediate public necessity. State ex rel. Bolling v. Superior Court, 1943, 16 Wash.2d 373, 133 P.2d 803 (compulsory flag salute held unconstitutional); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (compulsory flag salute unconstitutional); and Pierce v. Society of Sisters of Holy Name of Jesus and Mary, (Pierce v. Hill Military Academy), 1925, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (compulsory attendance of all children at public schools held unconstitutional) illustrate the second class of cases upon which appellant relies. They are distinguishable from the instant case; they involve statutes requiring affirmative action by the individual, with a penalty for refusal to act. Such is not the instant case. It is unfortunate that the case of Chapman v. City of Shreveport, (1954) No. 116282, First District Court, Caddo Parish, Louisiana, is unreported. On casual examination, it would appear to support a conclusion contrary to the one we have reached. In it, the trial judge said: ‘The basic and, to our mind, the decisive issue in this case, is plaintiffs' contention that the City Council has no delegated authority to fluoridate the City water supply.’ After pointing out that the only specific reference to disease in the city charter is contained in the following language: ‘To make regulations not in conflict with the laws of the state, for the maintenance of cleanliness and sanitary conditions within the city, and to prevent the introduction and spread of contagious diseases; ...’ (Italics ours.) the trial court concluded that the city council had no delegated authority to fluoridate the water. The balance of the opinion, to our minds, is dictum not necessary to the decision in the case. The trial judge subtly adopts the arguments of the scientific opponents of fluoridation. Although the relevancy of that question is denied on the one hand, it is nurtured on the other. That there are two sides to this question (with which we cannot concern ourselves), appears in considerable detail in the opinion of Judge Artl in Kraus v. City of Cleveland, Ohio Com.Pl., 116 N.E.2d 779, at page 790, under the heading, ‘Review Of The Evidence As To The Efficacy And Safety Of The Fluoridation Program.’ This decision of the court of common pleas of Ohio is a well-considered opinion, holding constitutional ordinances providing for the fluoridation of the Cleveland water supply. On appeal, the Kraus case was affirmed in 1954, 121 N.E.2d 311; the Chapman case, supra, was reversed in 1954, 225 La. 859, 74 So.2d 142. Finally, neither the alliterative term ‘compulsory mass medication’ nor reference to the fluoridated water as a ‘concoction’ describes the situation before us; nor does the possible opprobrium, which may flow from their use, overcome the police power. We are convinced by the reasoning of the Kraus, Dowell, Chapman and De Aryan cases, supra. The trial court did not err in concluding that the ordinance was a valid exercise of the police power and violated no constitutional rights guaranteed to appellant. Appellant's remaining assignments of error are directed to the trial court's conclusions: (1) that whether ordinance No. 653-A properly specified an emergency is immaterial since no referendum petitions were presented to the city clerk within thirty days after the ordinance was passed; (2) that the city is not engaged in selling drugs, practicing medicine, dentistry, or pharmacy as defined by statute; and (3) that the appropriation of funds under the ordinance to effect its purpose was valid under applicable state law. We have considered these assignments of error. It would add nothing to discuss them in detail. They are not well taken. The judgment is affirmed. MALLERY, SCHWELLENBACH, FINLEY and OLSON, JJ., concur. HILL, Justice (dissenting). I repeat, for ready reference, findings of fact VI and VII: ‘VI. That although fluoride is a deadly poison used commercially for the extermination of rats and other vermin, the addition to the municipal water supply of Chehalis of a source of fluoride ion, such as sodium silico fluoride, in the proportion of one part per million will not amount to a contamination and the water will continue to be wholesome. That chlorine is added to water to affect either bacteria or plant life in the water, while fluoride has no effect upon the water or upon the plant life in the water but remains free in the water and is artificially added solely for the effect it has on the individual drinking the water. ‘VII. That dental caries, commonly referred to as tooth decay, is a very common disease of mankind. That tooth decay is neither infectious or contagious. That the addition of fluoride to the Chehalis water supply is intended solely for use in prevention of tooth dacay primarily in children up to 14 years of age, and particularly between the ages of 6 and 14 and will prevent some tooth decay in some children.’ Fluoridation has been and continues to be a highly controversial issue; however, in the absence of any assignment of error to finding No. VI, we must accept, for the purposes of this case, the finding that fluoridation such as here contemplated ‘will not amount to a contamination and the water will continue to be wholesome.’ Nor is it any concern of ours, in this case, whether the city of Chehalis would be liable for the consequences of contamination of the water supply if the fears and misgivings of the appellant's experts should prove something less than groundless. The principal contention raised by the appellant is that the ordinance deprives him of ‘liberty ...without due process of law,’ in violation of the constitution of the United States, amendment 14, and of the constitution of the state of Washington, Art. I, § 3. What, then, is the liberty of which appellant is deprived? It is argued that the ordinance does not compel him to do anything; it subjects him to no penalty; and the city's obligation to appellant is fulfilled by the furnishing of water which is wholesome and free from contamination. The deprivation of liberty involved in the enactment of the ordinance in question stems from the following facts: (1) That appellant will be compelled to drink the water because there is no other practical source of supply (finding of fact No. V); (2) That fluoridation has no effect upon the water or the plant life in the water, but fluorides are added solely for the effect they have on the individual who drinks the water (finding of fact No. VI); (3) That the addition of fluorides is intended solely for use in the prevention of tooth decay, primarily in children up to fourteen years of age (finding of fact No. VII); (4) That fluorides are readily available by prescription for topical application to teeth and for use in milk, water, and salts (no finding on this point, but testimony to that effect is undisputed). We are not here concerned with any question as to appellant's right to be furnished wholesome water, or with any other rights which he might have in connection with the city's duty to furnish water. The significant circumstances are that the ordinance is designed solely for the purpose of effecting the application of fluorine to the teeth of the residents of Chehalis in order to minimize tooth decay in some children. The use of the city water system as a means of accomplishing this purpose means that the aforesaid ‘treatment’ becomes compulsory for any person who has to rely upon the city water supply as his source of drinking water. Thus the liberty of which appellant is deprived is the right to decide of his own free will whether he desires to apply fluorine to his teeth for the purpose of preventing tooth decay, based upon his own opinion as to whether it would be advantageous or disadvantageous to his personal health-a matter, incidentally, on which there is marked and bitter divergence of opinion within the medical and dental professions. It must be conceded that this is a personal liberty which falls within the constitutional protection of due process. In Mott on Due Process of Law 590, § 236, it is stated: ‘There seems to be a deep-seated conviction in the Anglo-Saxon mind that a certain independence of action is valuable for social and political progress, and this can only be sacrificed when social considerations make it imperative to do so. Since it arose out of this conviction, due process has always been a social guarantee. It has always stood for the proposition that freedom of action as well as private property has a social value as well as an individual. It is, consequently, very closely related to the doctrines of natural law and inalienable rights.’ In Interests of Personality, 28 Harv, L.Rev. 343, 356 (1915), Professor Roscoe Pound classifies the interests in the physical person that are entitled to recognition and enforcement by the state: ‘Secondly and closely related [to immunity from bodily injury] is the preservation and furtherance of bodily health. Third and hardly less important is immunity of the will from coercion, freedom of choice, and judgment as to what one will do.’ The question of fluoridation involves a combination of these two elements, namely, ‘freedom of choice’ as to measures to be adopted for ‘the preservation and furtherance of bodily health.’ What, then, is respondent city's justification for this encroachment on personal liberty? The ordinance is sought to be upheld as a valid exercise of the city's police power as authorized by the state constitution, Art. XI, § 11, and as delegated by RCW 35.23.440(27). The precise issue involved in this case is succinctly stated in a comment in 3 Hastings L. Journal 123, 129 (1952): ‘Correlative with the rights of police power in the state are inherent individual rights. The Constitution secures to each individual the right to life and liberty. The state cannot infringe upon nor deprive an individual of these rights. These rights, too, must be reasonably exercised. They are not absolute rights. Rather they are subject to reasonable restraint-‘liberty regulated by law.’ An exercise of police power depriving an individual of any of these rights must conform to due process. To answer what is due process, we look back to our definition of police power. It is a reasonable and unarbitrary restraint or deprivation brought about to accomplish a legitimate public purpose. In the case of fluoridation, the asserted right of the state is protecting and promoting the public health against dental caries. The right of the individual is the right to liberty.' In Freund on Police Power 116, § 123, it is said: ‘Measures directly affecting the person in his bodily liberty or integrity, represent the most incisive exercise of the police power. Only the emergency of present danger therefore can justify quarantine, isolation or removal to hospital and compulsory treatment, and it is at least doubtful whether vaccination can be made compulsory apart from such necessity.’ In the same text, p. 133, § 143, it is pointed out that one of the tests to be applied to a proposed health regulation is the question: Is it possible to secure the object sought without impairing essential rights and principles? Applying that test question to the present case, the answer must be in the affirmative because it appears in the record, and is nowhere denied, that anyone who wants or needs fluorine can secure fluorides on prescription for topical application or to be taken into the system with milk, water, salt, or in other ways. The supreme court of the United States laid down a test of the validity of compulsory health regulations which invade bodily liberty (vaccination) in Jacobson v. Massachusetts, 1904, 197 U.S. 11, 25 S.Ct. 358, 361, 49 L.Ed. 643. Mr. Justice Harlan, in the course of the opinion, used the following quotation from Crowley v. Christensen, 1890, 137 U.S. 86, 89, 11 S.Ct. 13, 34 L.Ed. 620; “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law” (Italics mine); and later said: ‘There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government,-especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.’ (Italics mine.) The proposed infringement of the individual's constitutional right of freedom of choice in matters relating to his own bodily care and health certainly is not justified by ‘conditions essential to the equal enjoyment of the same right by others,’ suggested as the basis for the restriction of individual freedom in Jacobson v. Massachusetts, supra. Nor is it justified by ‘pressure of great dangers' to the public health. While dental caries may be termed a ‘disease’ which is prevalent in the teeth of almost everyone, it is not contagious or communicable in any way. Dental caries in no way endangers the public health in the sense that its existence in the teeth of one individual might adversely affect the personal health of any other individual. To thus extend the concept of ‘public health’ would open the door to compulsory mass medication or preventive treatment for any disease, solely on the ground that it is for the individual's own good, without regard to his inherent right to determine such matters for himself. We are in accord with the language of Judge Galloway in the very recent case of Chapman v. City of Shreveport, No. 116,282, First Dist. Court, Caddo Parish, La. (1954): ‘Under the facts of this case as we understand and have stated them, it is our opinion that fluoridating the City water supply bears no reasonable relation to the public health. ... ‘We advert to the scientific evidence concerning the nature and cause of dental caries, or tooth decay. It is not contagious and cannot be transmitted from one person to another. No person or segment of the population having that condition can, on that account, have any adverse effect on the health, dental or otherwise, of the general public or any member or segment thereof. We repeat, in our opinion this is not a matter of the public health. It is strictly within the realm of individual and personal dental health and hygiene within which each person should be free to choose his course for himself and those for whom he is responsible in the family relation. To this field the just powers of the government do not extend.’ Nothing that was said by the supreme court of Louisiana in reversing Judge Galloway, Chapman v. City of Shreveport, 1954, 225 La. 859, 74 So.2d 142, has changed my opinion as to the soundness of the statement I have just quoted. Respondent city and its expert witnesses protest against the use of the phrase ‘compulsory mass medication.’ It would seem, in Shakespearean phraseology, that they ‘protest too much.’ They concede that fluoridation has no effect upon the water and they urge it solely for the effect it has upon the individual who drinks the water. But they say it is not medication because it does not cure anything; it is intended merely to prevent dental caries. Medication, in lay understanding, includes prophylaxis or preventive measures when applied to the individual. We hear much of preventive medicine. ‘The practice of medicine ...consists of the use of drugs or medicinal preparations in or upon human beings... .’ RCW 18.71.010. The Federal Food, Drug, and Cosmetic Act defines the term ‘drugs' as ‘... articles intended for use in the diagnosis, cuse, mitigation, treatment, or prevention of disease in man ... .’ (Italics mine.) 21 U.S.C.A. § 321(g). I do not believe that respondent city would seriously contend that the prescribing of drugs for preventive purposes does not constitute practicing medicine. If, however, it is the position of respondent city and its experts that, while giving a preventive prescription is practicing medicine, the prescription, when filled, is not medicine and, when used, is not medication, they are dealing in refinements which escape the lay mind and which are not reflected in current terminology. The foray into semantics by each of respondent city's experts, all of whom deplore the use of the phrase referred to, and even the statement in the majority opinion that that phrase does not describe ‘the situation before us,’ fail to convince me that “compulsory mass medication” is not an accurate and concise expression of both the purpose and the effect of fluoridation. The majority cites cases approving fluoridation, each making a plausible case for it. They all say, in effect, as the majority says here: ‘We fail to see, however, where any right of appellant, guaranteed by the constitution, has been invaded.’ It would, of course, be easier to see if the ordinance under question required every resident of Chehalis (or even every child under fourteen years of age resident therein) to present himself or herself for topical application of fluorides by public health authorities. On the showing here, it would not even be contended that such an ordinance would be constitutional; yet the instant case is no whit different. What the residents of Chehalis could not be compelled to do one by one, it is now sought to compel them to do en masse; a treatment to which they individually could not be compelled to submit is here sought to be applied by more subtle but no less compulsory means. This smacks more of the police state than of the police power. We were meticulously careful, in the recent case of State ex rel. Holcomb v. Armstrong, 1952, 39 Wash.2d 860, 239 P.2d 545, 547, to make it clear that no specific treatment was prescribed by the regulation there in question. In that case, on the basis of the existence of a clear and present danger, we upheld the right of the regents of the state university to require all students to have chest X-ray examinations for the purpose of discovering possible tubercular infection. We said that the ‘primary concern is not for the possibly infected student, but is for those jeopardized by contact with such an individual.’ Up to now, the basis for the restriction of the liberty of the individual has been that he would not be permitted to jeopardize the health or safety of others. It has been generally stated that the state, under its police power, has the right and duty to protect the health and welfare of its people; that the legislature (or municipality to which exercise of the police power has been delegated) is vested with a wide discretion, not only to determine what the public interest requires, but also to determine what measures are necessary to protect that interest; and that the inquiry of this court is limited to determining whether the object of the statute is one for which the police power may legitimately be invoked and, if so, whether the act bears a reasonable and substantial relation to the object sought to be attained. State ex rel. McBride v. Superior Court, 1918, 103 Wash. 409, 174 P. 973; McDermott v. State, 1938, 197 Wash. 79, 84 P.2d 372; State v. Sears, 1940, 4 Wash.2d 200, 103 P.2d 337; State v. Boren, 1950, 36 Wash.2d 522, 219 P.2d 566, 20 A.L.R.2d 798. It is urged that inasmuch as the protection of dental health is an object for which the police power may legitimately be invoked, and fluoridation reasonably tends to promote that object, the limits of judicial inquiry are thereby satisfied. With this I cannot agree, at least in so far as the proposed regulation attempts to achieve such an object by compulsory treatment and consequent invasion of bodily liberty. I do not mean to infer that the protection of dental health can never under any circumstances be a proper subject of the exercise of the police power. There is a great difference between saying, as we did in State v. Boren, supra, that the state has a right to control who shall practice dentistry because the state has a duty to people who choose to go to dentists to protect them from incompetents and charlatans, and saying that people can be compelled to have their teeth treated whether they need treatment or want it, which is what the respondent city is attempting to do here. In short, I think that prevention of dental caries by compulsory treatment of the teeth does not fall within the scope of protection of the public dental health for which the police power may be invoked. If fluorine is indeed the key to dental health and the application of fluorides is readily available to all who desire it, then education and persuasion, not compulsion, seem to be called for. Compulsion is justified on occasion for the protection of the public when dealing with contagious disease, but when we search for the ‘pressure of great dangers' in the instant case, it simply is not there. The ordinance providing for fluoridation is unconstitutional on the ground that it is an unwarranted and unjustified invasion of the liberty guaranteed the appellant by the United States constitution, amendment 14, and by our state constitution, Art. I, § 3. No reference has been made to the first amendment of the United States constitution. Appellant apparently has no religious scruples against fluoridation or, if he has, he does not urge them. He does argue, however, that there is no distinction between the ‘pressure of great dangers' test laid down in Jacobson v. Massachusetts, supra (a fourteenth amendment case) and the ‘clear and present danger’ test first laid down in Schenck v. United States, 1919, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (a first amendment case), which test we recently recognized and applied in State ex rel. Holcomb v. Armstrong, supra. If appellant's contention be limited to a situation like the present, I can agree. However, the supreme court of the United States has pointed out on several occasions that there is a distinction, and that the rights guaranteed by the first amendment rest upon a firmer, or at least a broader, foundation than does the liberty protected by the fourteenth amendment. West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; Thomas v. Collins, 1944, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. The former are concrete, the latter abstract, hence more vague and difficult of definition. However, since the liberty with which we are concerned is neither vague nor uncertain, this distinction is a matter of no concern in the present case except to indicate that an equally strong, if not a stronger, case could have been made by a proper party plaintiff for the unconstitutionality of the ordinance in question as a violation of the first amendment of the United States constitution. I dissent. The judgment should be reversed. HAMLEY, Justice. I concur. DONWORTH, Justice (dissenting). The issue in this case is whether the individual citizen is to be allowed to decide for himself what medicine he will or will not take, or whether the city council (or commissioners) and the state board of health are to decide this question for him and force the dosage down his throat by mixing it in the municipal water supply. For the reasons stated by Judge Hill in his dissenting opinion, I am convinced that the ordinance of the city of Chehalis deprives appellant of the liberty guaranteed him by the provisions of the Federal and state constitutions referred to therein. It has been suggested that the proposed introduction of fluoride ion (such as sodium silico fluoride) into the municipal water supply in the proportion of one part per million is such a trivial matter that no one should be seriously concerned about it. On the contrary, it seems to me that the principle involved is of far-reaching consequence because, if the city council (or commissioners) may legally inject any such medicine into the water, they have the right to put into it any medicinal agent from patent medicines to antibiotics (so-called ‘wonder’ drugs) which they may from time to time determine to be beneficial to the public health. The practical result is no different than if the municipal authorities forcibly compelled the water consumer to take a daily dosage of such medicine from a spoon because he must either consume it or cease to drink water from the municipal water system. By so doing the municipal authorities, instead of the individual citizen, arrogate to themselves the sole right to decide what medicine is good for the health of the water consumers and thereby the municipal water system becomes a direct conduit for the transportation of medicine from the apothecary's pestle to the patient without the latter's consent. Thus will the people be deprived of a very important part of their constitutional liberty under our republican form of government, and the police state will be substituted for the police power of the state. I desire now to call attention to an additional reason which supports the conclusion reached by Judge Hill. The city of Chehalis is operating a municipal utility in its proprietary capacity pursuant to statutory authority to maintain, conduct, and operate waterworks for the purpose of furnishing its inhabitants with an ample supply of water for all uses and purposes with full power to regulate and control the use, distribution and price thereof. Rem.Supp.1947, § 9488 cf. RCW 80.40.010. Russell v. City of Grandviwe, 39 Wash.2d 551, 236 P.2d 1061, and cases cited. It will be noted that the city has authority only to furnish its inhabitants with an ample supply of water. Fluoride is not water and has no effect upon either bacteria or plant life in the water (Finding VI) and is intended solely for the prevention of tooth decay primarily in young children (Finding VII). It is not used to make the water itself more healthful or to prevent its contamination by bacteria or other noxious matter. It is to be used solely for medicinal purposes and, when mixed with water, the resulting mixture is a medicine. The exercise of the city's police power to protect the health of its inhabitants is a governmental function. Hutton v. Martin, 41 Wash.2d 780, 252 P.2d 581. But a city may not under the guise of exercising its police power arrogate to itself in its proprietary capacity the right to forcibly distribute medicine to its inhabitants through its municipal water system. Its statutory authority is to furnish water. It is in the same position as a private corporation operating a waterworks. Russell v. City of Grandview, supra. The fact that that municipal corporation is exercising two functions (one governmental and the other proprietary) does not change the situation nor increase its statutory authority to operate a waterworks so as to purvey medicine to its customers. To illustrate, could a municipality operating a municipal transit system refuse to permit a person to become a passenger unless he produced a certificate that he has submitted to the topical application of fluorides? Could such a person be denied service by a municipal light and power system or by a municipal garbage collector except upon such conditions? Assuming that a city under its police power may under proper circumstances compel the inhabitants to submit to certain treatment for the prevention of disease, such city has no authority in its proprietary capacity to perform any act not expressly or by necessary implication authorized by the statutes granting it the right to engage in a particular municipal business. Here the act of the city in furnishing its inhabitants with medicine instead of water (which is the only beverage which the legislature has empowered it to furnish) is ultra vires and the ordinance purporting to authorize such action is void. See Woodward v. City of Seattle, 140 Wash. 83, 248 P. 73, where this same municipal utilities statute was construed and the legislative grant of power to operate electric and ‘other railways' was held not to include the operation of motor busses by the city. The majority opinion states that the ordinance is not in conflict ‘with general laws' under Art. XI, § 11, of the state constitution delegating to municipalities a portion of the state's police power concerning matters of health. This view may be correct, but that fact does not make up for the lack of authority in the city in its proprietary capacity to furnish medicine instead of water only. It is further stated in the majority opinion that no constitutional right of the inhabitants is invaded because the ordinance does not compel them to do anything and that no penalty is attached for refraining to drink the water with the medicine in it. No suggestion is made as to which beverage the inhabitants should drink in lieu of this concoction. Here the city's water system is the sole source of drinking water which is necessary to sustain life. The penalty for not drinking the medicine is to compel the unwilling customer of the municipal water system to buy some bottled beverage or move to another city where only water is pumped through the water mains. Either alternative is as serious a penalty as a fine or imprisonment imposed by a police court. The inhabitants of Chehalis have bought and paid for a municipal water system for the purpose of obtaining the ample supply of water which the legislature authorized, and those who do not wish to have medicine purveyed to them in their water are entitled to receive exactly what the legislature intended them to have, to wit, water. For the additional reason that Ordinance No. 653-A of the city of Chehalis is ultra vires and void because of the city's lack of authority to sell medicine in the manner proposed, as well as for the reasons stated in Judge Hill's opinion, I am of the opinion that the judgment should be reversed and the proposed fluoridation enjoined. HILL, Justice. I concur. HAMLEY, Justice (dissenting). I fully agree with the dissenting views expressed by Judges Hill and Donworth. Judge Hill's presentation of the constitutional question seems to me unanswerable. That Judge Donworth's extensive discussion of the ultra vires question is equally unanswerable is pretty well indicated by the fact that, on that important point, the majority opinion has only this to say: ‘...Nor do we agree that the fluoridation is ultra vires simply because the police power is exercised through a municipal agency operated by the city in its proprietary capacity.’ The majority opinion appears to be based upon alternative theories, each of which seems to me unsound. The first of these is that no invasion of constitutional rights is involved because ‘the ordinance under consideration does not compel him [appellant] to do anything; it subjects him to no penalty. ...’ On this ground, the majority distinguishes State ex rel. Bolling v. Superior Court, 16 Wash.2d 373, 133 P.2d 803 (compulsory flag salute); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (compulsory flag salute); and Pierce v. Society of Sisters of Holy Name of Jesus and Mary (Pierce v. Hill Military Academy), 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (compulsory attendance at public schools). In my opinion, this argument will not bear objective analysis. An employed homeowner in Chehalis must consume fluorides added to the water supply, or surrender constitutionally protected property rights in home and employment, and move away (unless, of course, someone wants to suggest the quibble that such a person can buy bottled spring water. There are many who feel, as I do, that this penalty for refusing to consume fluorides is more severe than the nominal jail sentences and fines usually meted out for violation of an ordinance. Can the state or one of its subdivisions of government circumvent constitutional controls by devising a regulation which is practically incapable of avoidance, thereby making it unnecessary to prescribe a criminal penalty? If so, the area of governmental action thus released from constitutional fetters will be limited only by the ingenuity of man. If not, I do not see how this ordinance can stand. The alternative theory upon which the majority opinion seems to be based seeks not to disclaim compulsion, but to defend it. The two cases cited in this section of the majority opinion sanctioned compulsory vaccination to protect against a contagious disease. The majority infers that the result would have been the same had the compulsion related to a noncontagious disease. This alternative theory appears to follow this process of reasoning: The protection of public health is a valid exercise of the police power; the protection of public health includes protection from the introduction or spread of both contagious and noncontagious diseases; therefore, it is immaterial that the disease of dental caries is noncontagious rather than contagious. In this process of reasoning, the majority, I believe, overlooks a very important limitation upon the exercise of the police power, which is that, whether the police power is being exercised for the protection of public health or for any other reason, it may not extend to the point of impairing a constitutionally guaranteed personal right, unless justified by ‘conditions essential to the equal enjoyment of the same right by others', Crowley v. Christensen, 137 U.S. 86, 89, 11 S.Ct. 13, 15, 34 L.Ed. 620, or by ‘pressure of great dangers', Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 362, 49 L.Ed. 643. It is because of this limitation on the exercise of the police power that the courts have drawn a distinction between contagious and noncontagious diseases. Jacobson v. Massachusetts, supra; Blue v. Beach, 155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64, 80 Am.St.Rep. 195. Where it is shown that, because of the contagious nature of a disease, a serious threat to public health is presented, the tests referred to above, for determining whether the exercise of the police power can extend to the impairment of personal rights, have been met. By necessary inference, where it is shown that a disease is not contagious, these tests have not been met, and the indicated limitation upon the exercise of the police power applies. The fact that dental caries is not a contagious disease is therefore material, since it is thereby established that the limitation on the exercise of the police power applies in this case. Any other view would, it seems to me, be an admission that the courts have been fooling all of this time when they have said that it is a valid exercise of the police power to interfere with constitutionally guaranteed personal liberties, where necessary to prevent the introduction or spread of contagious or communicable diseases. The principle being established by the majority opinion, even more than the specific deprivation of personal liberty here accomplished, warrants deep concern. The case before us deals with what some will regard as a relatively minor aspect of dental health. But the principle announced is not so limited. It would be equally applicable if fluoridation (or iodination) was being relied upon to counteract goiter or any other noncontagious bodily malady. What future proposals may be made to treat noncontagious diseases by adding ingredients to our water supply, or food, or air, only time will tell. When that day arrives, those who treasure their personal liberty will look in vain for a constitutional safeguard. The answer will be: ‘You gave the constitution away in the Kaul case.’ There is no contention in the instant case that the fluorides program represents the majority opinion of the citizens of Chehalis. No referendum vote was taken. Considering the results of referendum votes taken elsewhere, it is, to say the least, doubtful if such a program would meet with the approval of the people of Chehalis. At the November 2, 1954, elections, nine of the eleven American communities which voted on the proposition turned it down. Among these nine cities were Atlantic City, New Jersey; Salem, Oregon; Greensboro, North Carolina; and Fremont, Nebraska. The proposition was approved in Palo Alto, California, and Mountain Home, Arkansas. It may be that the voting citizens of our country have been influenced by a disquieting concern for their liberties which has so far failed to stir the judiciary. But even were it to be assumed that the majority of the citizens of Chehalis approve of this move, that would not condone an impairment of constitutional rights. The constitutional guarantees are to protect the rights of the minority-not the majority. The majority does not need protection, because it does not do anything it does not want to do. The question which I asked in may dissent in State ex rel. Holcomb v. Armstrong, 39 Wash.2d 860, 873, 239 P.2d 545, 553, now becomes more urgent than ever: ‘Can we ...withstand the insidious erosion [of our basic liberties] produced by a multiplicity of little instances where, as here, a guaranteed right is set aside because it interferes with what is said to be good for us?’ HILL and DONWORTH, JJ., and GRADY, C. J., concur.

+/- Safe Water Association, Inc. v. City of Fond Du Lac

Wisconsin, Due Process Violations, Right to privacy, State police power

• Plaintiff
  Safe Water Association, Inc.
• Defendant
  City of Fond Du Lac
• State
  Wisconsin
• Other Parties
  -
• Case Tags
  - Due Process Violations

  - Right to privacy

  - State police power
• Citation
  184 Wis. 2d 365; 516 N.W.2d 13 (Wis. Ct. App. 1994)
• Year
  1994-00-00T00:00:00
• Court Name
  Court of Appeals of Wisconsin
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Anderson PJ
• Opinion Text
  ANDERSON, Presiding Judge. Safe Water Association, Inc. appeals from the grant of summary judgment to the City of Fond du Lac (City). Safe Water's complaint attempted to temporarily and permanently enjoin the City from fluoridating water pursuant to an ordinance passed by the Fond du Lac City Council (council). On appeal, Safe Water raises three issues: (1) the stay of discovery until after resolution of the City's summary judgment motion constituted prejudicial error, (2) the ordinance was not a valid exercise of the City's police powers, and (3) the ordinance violates the constitutional right to privacy. We hold that Safe Water waived the discovery issue by filing a competing motion for summary judgment, the City had a reasonable basis for passing the ordinance under its police powers, and the case of Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955), defeats Safe Water's right to privacy claim. In 1950, the council passed an ordinance which authorized the fluoridation of the City's water supply. From 1950 to 1970, the City used sodium fluoride as the fluoridation agent. Since that time, the City has used hydrofluosilicic acid. Both compounds are approved by the Wisconsin Department of Natural Resources (DNR) for use in the fluoridation of drinking water. See WIS.ADM.CODE § NR 811.46. The hydrofluosilicic acid used by the City conforms with standards established in the DNR regulations. See id. The 1950 ordinance authorized the addition of fluorine to the water supply. It did not authorize the addition of hydrofluosilicic acid or sodium fluoride. Apparently in response to this oversight, the City conducted public hearings in 1992 on an amendment of the ordinance to allow the addition of “fluoride” to the water supply “in a manner prescribed by the Department of Natural Resources.” See FOND DU LAC, WIS., MUNICIPAL CODE OF ORDINANCES § 7.39 (1992). The council received information both in favor of and opposing the City's fluoridation program. The president of Safe Water, Richard Matthew, presented several articles and studies opposing fluoridation. His view was that sodium fluoride and hydrofluosilicic acid were toxic compounds which have not been sufficiently tested. Matthew contended that fluoridation of water needlessly exposed adults and children alike to uncontrolled dosages. He argued that the general decrease in dental caries in communities with fluoridated drinking water was due to better oral hygiene, not the addition of fluoride. Finally, he proposed that if the council would decide that fluoridation should continue, a better alternative would be to distribute fluoride tablets. In that way, the citizens could decide on an individual basis whether they wanted fluoride and they could control dosages. Dr. Henry Smialek, D.D.S., also appeared before the council. He cited to his experience as a dentist and additional articles and studies in his opposition of water fluoridation. Dr. Warren LeMay, the oral health consultant for the Wisconsin Bureau of Public Health, Division of Health, appeared before the council in favor of the program. He presented his opinion, based upon experience and familiarity with scientific research, that fluoridation of drinking water is beneficial to both children and adults. LeMay described a number of studies, reports and position papers that support fluoridation. He related that over seventy health organizations and agencies endorse the fluoridation of drinking water. He also presented the council with information regarding fluoridation's health benefits, potential risks, safety, effectiveness and cost benefits. He recounted the experience of Antigo, Wisconsin which discontinued fluoridation but reinstated it after dental caries increased significantly. The council also heard several other health professionals who supported fluoridation, including dentists in the Fond du Lac area, the president of the Fond du Lac County Dental Society and the director of the Fond du Lac County Public Health Nursing Service. After the hearings, the council voted unanimously to adopt the amended ordinance for water fluoridation. Safe Water filed suit in the trial court against the City requesting a permanent injunction to prevent the City from fluoridating the water supply. The amended complaint alleged seven “causes of action”: (1) the ordinance lacked a rational basis, (2) the council did not properly consider the amended ordinance before adoption, (3) fluoridation of water was not substantially related to the objective of reducing dental caries, (4) fluoridation causes serious injuries to consumers, (5) fluoride consumption already exceeds the optimum levels sought by the fluoridation program, (6) there is no substantial basis for concluding that the benefits of fluoridation outweigh its risks, and (7) fluoridation violates the right of privacy guaranteed by the United States Constitution. Both parties moved for summary judgment. The court granted the City's motion and Safe Water appeals. The first issue which Safe Water raises is whether the trial court's order prohibiting further discovery pending consideration of the City's summary judgment motion constituted prejudicial error. While discovery was being conducted, the City moved for a protective order concerning portions of the discovery. In support of its motion, the City stated that it would be moving for summary judgment and that the requested discovery was not relevant to the dispositive issue-whether the City had a rational basis for the fluoridation ordinance. Safe Water responded by moving to compel discovery. At the hearing on the motions, the court stated: [T]he court will grant the proviso protective order with leave granted to [Safe Water] to seek relief therefrom to answer the [City's] motion for summary judgment. In essence, the court is going to be freezing the pleadings as they are now, which means if the court denies the City's motion for summary judgment, the court can again address the plaintiff's motion for compelling discovery. And I think this is the way to go, because under the court's prior decision and ruling, I feel the City has to come forward and show the reasonableness of their action with a rational legislative basis. [Emphasis added.] Safe Water argues on appeal that had the City been forced to answer all admissions, the court “might well have granted summary judgment to [Safe Water], or at least set the suit for trial. The City wrongly resisted discovery, and had it been forced to comply the summary judgment motions might have been viewed very differently by the court.” We conclude that Safe Water abandoned this issue when it filed a competing motion for summary judgment. Safe Water never requested the trial court to allow discovery to respond to the City's summary judgment motion, even though the trial court specifically allowed for this possibility. An appellate court will generally not review an issue raised for the first time on appeal. Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145 (1980). Safe Water's motion for summary judgment carried with it the explicit assertion that Safe Water is satisfied that the facts are undisputed and that on those facts it is entitled to judgment as a matter of law. See Powalka v. State Mut. Life Assurance Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972). Accordingly, Safe Water cannot complain that it needed additional discovery. We now turn to the substance of the appeal: whether the trial court properly granted summary judgment to the City. On review, we are required to follow the same standard as the trial court. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Summary judgment should be granted when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Section 802.08(2), STATS. The methodology for summary judgment was comprehensively set forth by the supreme court in Green Spring Farms, 136 Wis.2d at 314-15, 401 N.W.2d at 820, and we follow that methodology here. When deciding a motion for summary judgment, the court relies upon the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits of both parties to determine if there is no genuine issue as to any material facts. See § 802.08(2), STATS. Safe Water argues that the trial court erred by considering the affidavit of LeMay. It argues that expert opinions are not properly considered at summary judgment. We agree-the general rule is that an affidavit supporting or opposing a motion for summary judgment is usually insufficient if it sets forth only opinion. See Dean Medical Center v. Frye, 149 Wis.2d 727, 732, 439 N.W.2d 633, 635 (Ct.App.1989). However, in our de novo review of whether the City's summary judgment motion should be granted, LeMay's affidavit does relate evidentiary facts. It is a summary of the facts and documents that he provided to the council. This information was considered by the council before passing the fluoridation ordinance. Therefore, we will look to this affidavit not for LeMay's opinion on the benefits of fluoride, but as an indication of the information available to the council when it passed the ordinance. The first six “causes of action” of Safe Water's complaint can be boiled down to the following allegation: The City's adoption of the fluoridation ordinance was an impermissible exercise of police power which violates due process. The individual “causes of action” merely list different arguments to support this allegation. When the exercise of the police power is challenged on due process grounds, the test is whether the chosen means are reasonably and rationally related to the objective of the enactment. Kahn v. McCormack, 99 Wis.2d 382, 385, 299 N.W.2d 279, 281 (Ct.App.1980). If the enactment is reasonably and rationally related to the objective and the objective is a real and proper one, the exercise of the police power is valid. Id. Legislative actions are presumed to be constitutional, and those challenging a statute must prove unconstitutionality beyond a reasonable doubt. Id. at 386, 299 N.W.2d at 281. Under these tests, the presumption is not overcome unless the challenger proves that no reasonable basis exists for the exercise of the police power. Id. It is not disputed that the council's objective of promoting the public health and good is a real and proper one. Our focus thus turns to whether the ordinance is reasonably and rationally related to the objective. The court may not reweigh the facts found by the legislative body; the court's focus is limited to determining whether any of the information available provides a reasonable basis for the enactment. See State v. Hermann, 164 Wis.2d 269, 281, 474 N.W.2d 906, 911 (Ct.App.1991). Safe Water's arguments do not focus upon all of the information presented to the council and whether any could support the enactment of the ordinance. Instead, Safe Water concentrates only upon the materials and testimony which support its position that hydrofluosilicic acid is a danger to the community. Clearly, there were testimonials and studies presented at the hearing on both sides of the issue. Just as clearly, the council acted with the objective of furthering the health and welfare of the community. The council properly exercised its power as a legislative body to weigh the competing information and had a reasonable basis to conclude that fluoridation of the water would benefit the health of the community. Safe Water's final cause of action alleges that fluoridation of water violates the constitutional right to privacy. This identical claim was resolved against the challengers in Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955). Safe Water argues that in the time since Froncek was decided, the landscape of the right to privacy has been drastically changed by the United States Supreme Court's decisions of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Although not mentioned explicitly in the Constitution, the United States Supreme Court has recognized that “liberty,” protected by the Due Process Clause, is a right of personal privacy, or a guarantee of certain areas or zones of privacy. Carey v. Population Servs. Int'l, 431 U.S. 678, 684, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977). The right of personal privacy encompasses the interest in independently making certain kinds of important decisions. Id. However, the right of privacy is a narrow right. Weber v. City of Cedarburg, 129 Wis.2d 57, 72, 384 N.W.2d 333, 341 (1986). Furthermore, like other constitutional rights, it is not absolute and is subject to some limitations. See Roe, 410 U.S. at 154, 93 S.Ct. at 727. In Froncek, 269 Wis. at 289, 69 N.W.2d at 250, the court did not expressly address whether the rights alleged were rights of privacy entitled to protection by the United States Constitution. However, it did hold that any invasion of these rights was not “unreasonable.” Id. Safe Water fails to demonstrate how Roe and Griswold would render fluoridation of water any less reasonable today than it was in 1955, when Froncek was decided. Roe and Griswold related to a completely different aspect of the right to privacy-the freedom to make reproductive decisions. We fail to see how their discussions of impermissible invasions of this aspect have any bearing on the issue before us today. Thus, we conclude that Froncek is still good law and requires summary judgment to be granted on this final cause of action in Safe Water's complaint. Judgment affirmed.

+/- Pure Water Committee v. Mayor and City Council of Cumberland

Maryland, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations

• Plaintiff
  Pure Water Committee
• Defendant
  Mayor and City Council of Cumberland
• State
  Maryland
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations
• Citation
  2003 U.S. Dist. LEXIS 15830 (D. Md. 2003)
• Year
  2003-00-00T00:00:00
• Court Name
  United States District Court, Maryland
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  OPINION BY: J. Frederick Motz MEMORANDUM Pure Water Committee of Western Maryland, Inc. ("Pure Water"), William Frederick White, Lou Hedrick, Arch Baker, and Carolyn Robinette have brought suit under 42 U.S.C. § 1983 against the Mayor and City Council of Cumberland, Maryland, the Mayor and City Council of Frostburg, Maryland, the Evitts Creek Water Company, Inc. ("Evitts Creek"), the Laval Sanitary Commission, Inc., and the County Commissioners of Allegany County, Maryland. Plaintiffs allege that defendants deprived them of their rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution, as well as their rights under Article I of the Maryland Constitution, when defendants introduced fluoride into public water supplies. The Mayor and City Council of Cumberland, the Mayor and City Council of Frostburg, and Evitts Creek have moved for summary judgment. Because plaintiffs lack standing, I will grant defendants' motion.^FN1 FN1 The Laval Sanitary Commission and the County Commissioners of Allegany County have not moved for summary judgment. Because plaintiffs lack standing, however, I will sua sponte grant summary judgment in favor of these defendants as well. I. A. During the late 1930s and early 1940s, scientists discovered that tooth decay was less prevalent in areas where the water supply contained a greater concentration of fluoride. (Letter from Newbrun to Getty of 5/2/03, Frostburg Ex. 3, at 6.) Researchers have subsequently shown that individuals who continually consume fluoridated water lose fewer teeth and have fewer decayed, missing, and filled teeth. (Id. at 6-7.) As a result of this research, communities across the United States and around the world have added fluoride to their water supplies. (Id. at 8.) Moreover, every United States Surgeon General for the past forty years has endorsed water fluoridation. (Id. at 18.) There are, nonetheless, opponents to water fluoridation. Fluoridation opponents contend that fluoridation causes tooth discoloration, delayed tooth eruption, the premature onset of puberty, brain damage, cancer, and increases the risk of hip fracture. (Id. at 9-16.) Various studies, however, have cast serious doubt on these claims. (See id.) Moreover, plaintiffs have stipulated in this action that the addition of fluoride into the water systems of the City of Cumberland and the City of Frostburg will cause them no physical harm. (Stipulation, Frostburg Ex. 6, P4.) B. The City of Frostburg ("Frostburg") owns the Piney Dam Reservoir in Garrett County. Frostburg draws water from the reservoir to a water filtration plant in Allegany County. After the water is treated at the filtration plant, it is distributed to Frostburg residents. (Fulghum Aff., Frostburg Ex. 2, P4.) Frostburg also provides water to: (1) the Allegany County Commissioners, who in turn provide water to a number of small towns in Allegany County; (2) small towns on Georges Creek; and (3) individuals living on Big Savage Mountain. (Id. P5.) Frostburg's lawmaking authority is vested in a city council, which consists of the Mayor and four council members. Frostburg, Md., City Charter, art. III, § 301. In June 2000, Mayor John M. Babacus was reelected. Four new council members were also elected. The four new council members all supported water fluoridation as part of their campaigns. On July 5, 2000, the new city council unanimously agreed to fluoridate the Frostburg water supply. (Fulghum Aff., Frostburg Ex. 2, P6.) After consulting with an outside engineering firm, Frostburg began fluoridating its water supply. (Id. P7.) The City of Cumberland ("Cumberland") owns and operates a water treatment plant in Bedford County, Pennsylvania. ^FN2 Cumberland provides water from this plant to its residents. Cumberland also provides water to residents of Allegany County, Maryland, Bedford County, Pennsylvania, and Mineral County, West Virginia. (Cumberland's Mem. at 2.) The land on which the water treatment plant is located is owned by Evitts Creek. (Id.) FN2 Cumberland has provided no affidavits or deposition testimony supporting its motion for summary judgment. Because plaintiffs do not dispute Cumberland's factual contentions, however, I will accept the statement of facts in Cumberland's motion for summary judgment as true for purposes of deciding this summary judgment motion. In May 2000, Cumberland held a referendum election, which resulted in the repeal of a city charter provision prohibiting water fluoridation. ^FN3 (Id. at 5-6.) After litigation in Maryland state courts challenging the referendum election failed, ^FN4 Cumberland began fluoridating its water supply. (Id. at 8.) FN3 Water fluoridation has a contentious political history in Cumberland. In March 1963, the city council adopted a charter provision prohibiting water fluoridation. The charter provision was approved in a special election in May 1963. (Cumberland's Mem. at 6.) In August 1988, the mayor and city council approved a charter amendment repealing this provision. The charter amendment was narrowly approved by the citizens of Cumberland. (Id.) In 1990, fluoride opponents staged a successful petition drive to again include a charter provision prohibiting water fluoridation. On May 15, 1990, a charter provision prohibiting fluoridation was approved in a general election. (Id. at 6-7.) FN4 The majority of signatures supporting the petition to repeal the charter provision prohibiting fluoridation were submitted on postcards. The postcards had been distributed by the Allegany/Garrett Dental Society to Cumberland's registered voters. (Cumberland's Mem. at 7.) In March 2000, fluoride opponents, including Pure Water, filed suit in state court seeking: (1) an injunction against action on the petition, and (2) a declaratory judgment that the postcards were not a proper form of petition. (Id.) The state circuit court granted Cumberland's motion to dismiss, and the fluoride opponents appealed to the Court of Special Appeals of Maryland. While the appeal was pending, the referendum election was held and the provision prohibiting fluoridation was repealed. As a result, the Court of Special Appeals dismissed the fluoride opponents' appeal as moot. (Id. at 8.) Pure Water is a Maryland corporation. (Am. Compl. P1.) The individual plaintiffs in this case are residents of Maryland, Pennsylvania, and West Virginia, who receive water from either Cumberland or Frostburg. (Id. PP2-6, 27.) Plaintiffs, however, are not residents of either Cumberland or Frostburg. (Id. P27.) Plaintiffs filed suit in August 2001. Their amended complaint alleges that Cumberland and Frostburg's enactment of resolutions to fluoridate municipal water supplies violates their constitutional rights. (Id. P38.) II. The requirement that a plaintiff have standing is based upon the idea of separation of powers. Allen v. Wright, 468 U.S. 737, 752, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). See generally 1 Laurence H. Tribe, American Constitutional Law § 3-14 (3d ed. 2000). That is, the doctrine of standing is "founded in concern about the proper--and properly limited--role of the courts in a democratic society." Wright, 468 U.S. at 750 (quoting Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975)); see also Friends for Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 319 (4th Cir. 2002). Thus, a standing inquiry is "especially rigorous" when reaching the merits of the dispute would force a court to determine whether the actions of other government branches are constitutional. Raines v. Byrd, 521 U.S. 811, 819-20, 138 L. Ed. 2d 849, 117 S. Ct. 2312 (1997). To establish standing, a plaintiff must show: (1) an injury in fact; (2) the injury is traceable to the conduct of the defendant; and (3) the injury will likely be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 145 L. Ed. 2d 610, 120 S. Ct. 693 (2000); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000). ^FN5 To show an injury in fact--the only disputed element here--a plaintiff must show "an invasion of a legally protected interest which is concrete and particularized, as well as actual or imminent." Gaston Copper, 204 F.3d at 154. In other words, a plaintiff must demonstrate, "regardless of the actual existence of a claimed injury or its subjective importance, an individuated harm impacting specifically upon him in a concrete manner." 1 Tribe, supra, § 3-16, at 400. Plaintiffs attempt to prove two injuries here. Neither satisfies the injury in fact requirement. FN5 Defendants do not explicitly challenge Pure Water's standing. However, an association has standing to sue on behalf of its members only when: (1) its members have standing to sue in their own right; (2) the interests at stake are germane to the organization's purpose; and (3) neither the claim made nor relief requested requires individual members to participate in the suit. Laidlaw, 528 U.S. at 181; Stasko, 282 F.3d at 320. As a result, implicit in defendants' argument that plaintiffs lack standing because they cannot show an injury in fact is the contention that Pure Water's individual members lack standing. Thus, Pure Water's standing to sue also turns on the resolution of whether the individual plaintiffs in this case have standing. A. Plaintiffs first contend that they have been medicated without their informed consent in violation of their due process rights under the Fourteenth Amendment. ^FN6 (Pl.'s Opp'n at 4.) They rely on the proposition that individuals have a "constitutionally protected liberty interest in refusing unwanted medical treatment." Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 278, 111 L. Ed. 2d 224, 110 S. Ct. 2841 (1990). I will assume that reasonable scientists could disagree about whether fluoride is a drug for some purposes. ^FN7 FN6 Plaintiffs also allege violations of: (1) their due process rights under the Fifth Amendment; (2) equal protection of the laws under the Fourteenth Amendment; and (3) their right to privacy under the Fourth Amendment. (Am. Compl. P38.) They have, however, failed to allege or establish any facts that implicate any of these constitutional provisions. FN7 The only evidence plaintiffs have introduced to support the contention that fluoridation amounts to medication is an excerpt from the deposition testimony of Dr. David Kennedy, D.D.S. In his deposition, Dr. Kennedy opined that because the Food and Drug Administration considers fluoride a drug when it is used to prevent disease, fluoride in public water supplies is a medication. (See Kennedy Dep., Frostburg's Reply Ex. 1, at 30; see also Pl.'s Opp'n at 2-3.) To counter plaintiff's contention, defendants have offered the opinion of Dr. Ernest Newbrun, a Professor Emeritus of Oral Biology and Periodontology at the University of California San Francisco. Dr. Newbrun believes that fluoridation is not medication; rather, it "is analogous to the fortification of bread and cereals with vitamins and iron, milk with Vitamin D, fruit juices with Vitamin C, to prevent nutritional deficiencies and the addition of iodine to table salt to prevent goiter." (Letter from Newbrun to Getty of 5/2/03, Frostburg Ex. 3, at 16.) Water fluoridation, however, is entirely different from the type of invasive and highly personalized medical treatments involved in the cases in which the Supreme Court has recognized a liberty interest in freedom from unwanted medical treatment. See Sell v. United States, 156 L. Ed. 2d 197, 539 U.S. 166, 123 S. Ct. 2174 (2003) (forced administration of antipsychotic drugs on criminal defendant); Riggins v. Nevada, 504 U.S. 127, 118 L. Ed. 2d 479, 112 S. Ct. 1810 (1992) (same); Cruzan, 497 U.S. at 261 (use of life sustaining medical treatment for an individual unable to decline the treatment); see also Jacobson v. Massachusetts, 197 U.S. 11, 49 L. Ed. 643, 25 S. Ct. 358 (1905) (mandatory smallpox vaccination). Moreover, at least in the cases involving the forced administration of anti-psychotic drugs--upon which plaintiffs principally rely--a major concern of the Court has been the potentially adverse side effects of the drugs. See Riggins, 504 U.S. at 134; Washington v. Harper, 494 U.S. 210, 229-30, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990). Here, as noted above, plaintiffs have stipulated that they will suffer no physical injury from ingesting fluoridated water. (Stipulation, Frostburg Ex. 6, P4.) It is not at all clear, therefore, that plaintiffs have a liberty interest in being free from unwanted water fluoridation. Even if plaintiffs do have such a liberty interest, they have failed to show that it has been infringed here. Quite simply, plaintiffs have failed to show that they are being forced to consume fluoridated water. Plaintiffs still have the choice to avoid drinking the fluoridated water--there are a number of ways, such as purchasing bottled water, to avoid drinking publicly supplied water. Accordingly, plaintiffs have failed to show that they will suffer an invasion of a legally protected interest that impacts specifically upon them in a concrete manner. As a result, plaintiffs lack standing to challenge defendants' actions. B. Plaintiffs also contend that they have been subjected to fluoride without having the right to vote in violation of the Fourteenth Amendment to the United States Constitution. ^FN8 (Pl.'s Opp'n at 4.) Apparently, plaintiffs contend that they have been disenfranchised because: (1) they were not allowed to vote in the Cumberland referendum election or the Frostburg city council election; and (2) the results of these elections had a direct impact upon plaintiffs because the elections resulted in the fluoridation of plaintiffs' drinking water. (See id.) Plaintiffs have again failed to show an injury in fact because they do not have a right to vote in either Cumberland or Frostburg. FN8 Plaintiffs also allege that their rights under Article I of the Maryland Constitution have been violated. Article I, however, does not guarantee individuals the right to vote in municipal elections. See Md. Const. art. I, § 1; Hill v. Mayor and Town Council of Colmar Manor, 210 Md. 46, 50, 122 A.2d 462, 464 (1956). A municipal corporation has the power to limit participation in its elections based on residency, even when that municipality engages in actions that affect ineligible voters. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68-70, 58 L. Ed. 2d 292, 99 S. Ct. 383 (1978). ^FN9 Both Cumberland and Frostburg limit voter participation to city residents. Cumberland, Md., City Charter, § 162; Frostburg, Md., City Charter, art. VI, § 601. Plaintiffs have introduced no evidence showing that they are residents of either Cumberland or Frostburg. As a result, they have no right to participate in Cumberland or Frostburg elections, and their inability to vote in the elections relevant to this case does not amount to an injury sufficient to confer standing. FN9 In City of Tuscaloosa, residents of Holt, a small town outside Tuscaloosa, Alabama, challenged the constitutionality of Alabama statutes that subjected Holt's citizens to Tuscaloosa's police and sanitary regulations, criminal court jurisdiction, and licensing power without giving Holt citizens the right to vote in Tuscaloosa elections. 439 U.S. at 61-62. The plaintiffs claimed these statutes violated their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. at 62-63. The Court disagreed: "Our cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders." Id. at 68-69. Although certain municipal acts may have a significant impact on individuals living outside the municipality, "no one would suggest that nonresidents likely to be affected by this sort of municipal action have a constitutional right to participate in the political processes bringing it about." Id. at 69. A separate order is being entered herewith. Date: September 4, 2003 J. Frederick Motz United States District Judge ORDER For the reasons stated in the accompanying memorandum, it is, this 4th day of September 2003, ORDERED that 1. Defendants' motions for summary judgment (Docket ## 27, 30) are granted; 2. Judgment is entered in favor of all defendants; and 3. This case is closed.

+/- Thompson v. Bexar County Elections

Texas, Unlicensed Practice of Medicine/Compulsory Medication, Due Process Violations, Violation of Fundamental Liberties, Petitions Initiatives & Re-votes

• Plaintiff
  Thompson
• Defendant
  Bexar County Elections
• State
  Texas
• Other Parties
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• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Due Process Violations

  - Violation of Fundamental Liberties

  - Petitions Initiatives & Re-votes
• Citation
  2002 WL 1492276 (W.D. Texas 2002)
• Year
  2002-00-00T00:00:00
• Court Name
  United States District Court for the Western District of Texas
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION GARCIA, J. On this date came on to be considered the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on February 27, 2002 (Dkt. No. 21). Any party who desires to object to a Magistrate Judge's findings and recommendations must serve and file his written objections within ten days after being served with a copy of the findings and recommendation. 28 U.S.C. § 636(b)(1). According to the records of the Court, the parties have been served with a copy of the Memorandum and Recommendation, and no objections have been filed. Because no party has objected to the Magistrate Judge's Memorandum and Recommendation, the Court need not conduct a de novo review. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”). The Court has reviewed the Memorandum and Recommendation and finds it to be neither clearly erroneous nor contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.),cert. denied, 492 U.S. 918 (1989). It is therefore ORDERED that the Memorandum and Recommendation of the United States Magistrate Judge filed in this cause on February 27, 2002 be and is hereby ACCEPTED in its entirety, pursuant to 28 U .S.C. § 636(b)(1); It is further ORDERED that the Motion for Summary Judgment of Defendants City of San Antonio and Norma Rodriguez (Dkt. No. 15) is hereby GRANTED, and Plaintiffs' federal claims are DISMISSED with prejudice. The Court declines to exercise supplemental jurisdiction over Plaintiffs' state claims, and all remaining state claims are REMANDED to the 131st Judicial District Court of Bexar County, Texas .^FN1Defendants' request for attorneys' fees is DENIED without prejudice to reurging same in state court. FN1. Because the Court has already dismissed all claims against Bexar County Elections and Gerry Rickhoff (Dkt. No. 19), the case may be remanded immediately. MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE NOWAK, Magistrate J. I. Introduction Pro se plaintiffs, Nathan Thompson and Karen Bennett, bring this lawsuit to challenge the special election held on November 7, 2000 in which City of San Antonio residents were asked to vote on the Fluoride measure, Ordinance 92255. ^FN1 Plaintiffs argue that several election irregularities materially tainted the special election results; and for that reason, the court should declare the election void pursuant to TEX. ELEC.CODE § 221.012.^FN2 In addition, plaintiffs contend that the Fluoride measure, Ordinance 92255, adopted by the City Council on August 3, 2000 was an unconstitutional exercise of the City's police powers. Pending before me are the motion for summary judgment filed by the defendants, the City of San Antonio and City Clerk, Norma Rodriguez, and plaintiffs' response to the same.^FN3 FN1. Docket Entry 1, Plaintiffs' Original Petition. FN2. Besides requesting “costs and expenses,” plaintiffs do not seek a monetary damage award. Docket Entry 1, Plaintiffs' Original Petition, at ¶ XII. FN3. Docket Entry 15 (Defendants' summary judgment motion), Docket Entry 16, (Appendix A, Summary Judgment Exhibits to Defendants' motion) and Docket Entry 17 (Plaintiffs' Summary Judgment Response). For the reasons set forth fully below, it is my recommendation that defendants' motion for summary judgment should be GRANTED, albeit, for different reasons than those advanced by defendants. While defendants correctly point out that plaintiffs cannot establish a due process or equal protection challenge to the special election on the Fluoride measure under the United States Constitution, defendants also ask this court to address the substantive merits of plaintiffs' state law claims involving purported violations of the Texas Election Code as well as common law causes of action. It is my opinion that upon dismissal of plaintiffs' federal constitutional claims, that the District Court should abstain from exercising supplemental jurisdiction over plaintiffs' pendent state law claims. It is well-settled that federal courts should abstain from resolving unsettled questions of state law which involve the state's own political process.^FN4 The interests of comity between the state and federal systems demand that plaintiffs' claims be resolved in a Texas court. Accordingly, it is my recommendation that the District Court enter an Order DISMISSINGthose claims from the instant suit and REMANDING them to state court for adjudication. FN4. See Burford v. Sun Oil Co., 319 U.S. 315, 332-33 (1943); and Kelly v. Macon-Bibb County Board of Elections, 608 F.Supp. 1036, 1039 (M.D.Ga.1985). II. Statement of the Case On November 7, 2000, the City of San Antonio held a special election asking its residents to vote on the fluoridation of the City's drinking water. The specific language of the Fluoride measure, Ordinance 92255, approved by City Council and presented to the voters was: AN ORDINANCE DIRECTING THE DIRECT SUPPLIERS OF DRINKING WATER THROUGH PIPING SYSTEMS SERVING PROPERTIES WITHIN THE CITY OF SAN ANTONIO TO FLUORIDATE ALL WATER SUPPLIES WITHIN THEIR DISTRIBUTION SYSTEMS; AND ADOPTING A PROVISION MAKING THIS ORDINANCE EFFECTIVE ONLY IF APPROVED BY THE ELECTORS AT AN ELECTION TO BE HELD ON TUESDAY, NOVEMBER 7, 2000.^FN5 FN5. Docket Entry 16, at Exhibits 1 and 15. The election resulted in 154,221 votes for and 138,645 votes against fluoridation of the City's drinking water.^FN6 Based on these results, the City certified the Fluoride measure as having passed by a margin of 15,576 votes.^FN7 Plaintiffs contend that the special election results should be voided or nullified due to certain election irregularities which took place in violation of several provisions of the Texas Election Code, to wit: (1) the voting precincts for the City's special election were not properly established, pursuant toTEX. ELEC.CODE § 42.062; (2) non-residents of the City of San Antonio, who lived in voting precincts that also contained City residents (“split” precincts), were permitted to vote on the Fluoride issue; (3) non-residents of the City of San Antonio, in precincts wholly outside the City, were permitted to vote on the Fluoride measure; and (4) City of San Antonio residents were prevented from voting in Precinct # 4163.^FN8The plaintiffs argue that these irregularities materially affected the outcome of the special election, resulting in over 40,000 “under votes.” ^FN9 According to plaintiffs, although these election “irregularities and election code violations were brought to their attention, the City of San Antonio and Norma Rodriguez [have] yet to do anything to change or make it right, the illegal election [sic].” ^FN10 FN6. Id. at Exhibit 5. FN7. Id. FN8. Docket Entry 1, Plaintiffs' Original Petition, at ¶¶ V-VII; and Docket Entry 17. FN9. Docket Entry 17, at ¶ 5 and Exhibit 4. In this case, the term “undervotes” refers to those ballots in which the voter did not choose to vote for or against the Fluoride measure. It should be noted that while plaintiffs originally sought a recount of the cast votes, they have withdrawn that request from the relief requested in this suit. Docket Entry 16, Exhibit 6, plaintiffs' response to defendants' requests for admissions, No. 33, and second requests for admissions, deemed admitted by failure to answer. FN10. Docket Entry 17, at ¶ 2. In addition, the plaintiffs allege that fluoridating the City's drinking water is unconstitutional because it constitutes forced mass medication of a population (particularly on the minority who voted against fluoridation). ^FN11 Further, plaintiffs contend that the City breached a duty of good faith and fair dealing imposed by its contract with the voters by misrepresenting the benefits and risks of fluoridation.^FN12 FN11. Docket Entry 1, Plaintiffs' Original Petition, at ¶¶ VIII-X. FN12. Docket Entry 1, Plaintiffs' Original Petition, at ¶ XI; and Docket Entry 17, at ¶ 2. Plaintiffs originally filed the instant lawsuit on December 12, 2000, in the 131st Judicial District Court of Bexar County, Texas, and the case was styled: Nathan Thompson and Karen Bennett vs. City of San Antonio and Norma Rodriguez, and in her official capacities as City Clerk of the City of San Antonio, Texas, a Municipal Corporation, Civil Action No.2000-CI-17651. On December 28, 2000, defendants removed the case to federal court, pursuant to 28 U.S.C. §§ 1331 and 1441(b), on the ground that plaintiffs purportedly allege “violations of the constitution and federal statutes.” ^FN13 Once in federal court, plaintiffs' lawsuit was consolidated with another lawsuit filed by plaintiffs against the Bexar County Elections and Gerry Rickhoff, County Clerk, which also dealt with challenges to the special election on the Fluoride measure.^FN14 FN13. Docket Entry 1, Petition for Removal, at ¶¶ II-III. FN14. Docket Entry 7. The District Court, on September 28, 200, dismissed plaintiffs' claims against these defendants based primarily because these were not proper parties to be sued under Texas law. Docket Entries 18 & 19. On August 21, 2001, the defendants, the City of San Antonio and City Clerk Norma Rodriguez, moved for summary judgment with respect to all of plaintiffs' pleaded causes of action.^FN15 Specifically, they argue: (1) the plaintiffs have failed to establish by clear and convincing evidence that the alleged election irregularities, even if true (which the City strongly disputes), materially affected the outcome of the special election, and as such, the court need not void the same; (2) the Fluoride measure, Ordinance 92255, adopted by the City Council was a constitutional exercise of the City's police powers to protect the health, safety and welfare of its residents; and the plaintiffs have failed to show how the ordinance was arbitrary, unreasonable and a clear abuse of those powers; (3) and plaintiffs have failed to establish the viability of their state law claims against them; and even assuming that Texas law recognizes such claims, sovereign immunity nevertheless shields defendants from liability with respect to such claims.^FN16 In addition, defendants seek an award of reasonable attorneys' fees pursuant to TEX. CIV. PRAC. & REM.CODE § 37.009, in the amount of $7,890.00.^FN17 FN15. Docket Entry 15. FN16. Id. at ¶¶ 5-25. FN17. Id. at ¶ 12; and Docket Entry 16, Exhibits 11 & 16. Plaintiffs failed to address defendants' request for an award of attorneys' fees. While not directly addressing the federal constitutional violations purportedly raised in their original petition, plaintiffs' three-page response to defendants' summary judgment motion merely argues that the case is not apt for summary judgment disposition, because it “involve[s] more than just a few straight forward issues as well as witnesses.” ^FN18 Plaintiffs then discussed the merits of their state law claims by arguing that they “will show with clear and convincing evidence, the election did not follow the election code, thereby making it an illegal election and the true outcome of an illegal election can only be an illegal election, therefore making it void.” ^FN19 FN18. Docket Entry 17, at ¶ 1. FN19. Id. at ¶ 6. While plaintiffs disagree with the defendants' interpretation of some of the summary judgment evidence of record, they failed to provide any affidavit and/or deposition testimony of an eligible voter who was disenfranchised due to the alleged election irregularities made the bases of this suit. Further, and as argued by defendants, even if the court were to subtract the purported “illegal” votes as alleged by plaintiffs from the election results, the margin in favor of fluoridation, while reduced, has not shifted. Docket Entry 15, at ¶¶ 5-12. Moreover, it should be noted that, although not briefed by defendants, I have significant concerns with respect to the standing of at least one of the pro se plaintiffs, who is a resident of Converse, Texas (clearly outside the City limits).^FN20 Nevertheless, I will assume, for purposes of ruling on the merits of defendants' motion, that both plaintiffs have standing to bring this action. FN20. Docket Entry 15, at fn. 14; and Docket Entry 16, at Exhibit 17. After having reviewed the summary judgment record, the legal arguments made by both parties and the applicable statutory and case authority, it is my opinion that plaintiffs have failed to meet their burden of establishing a cognizable federal constitutional violation and that their purported federal claim should be dismissed as a matter of law. Because no federal question jurisdiction exists, the Court should decline to exercise supplemental jurisdiction over plaintiffs' state law claims and should enter an Order remanding the same to state court. I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.^FN21 FN21. Docket Entry 5. III. Issue Presented Whether plaintiffs have presented a valid federal constitutional challenge to the Fluoride measure and the City's November 7, 2000 special election? IV. Summary Judgment Standard Federal Rule of Civil Procedure 56(b) provides that a defending party may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor. Summary judgment shall be rendered if the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.^FN22 A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.^FN23 The party opposing a motion must present affirmative evidence to defeat a properly supported motion for summary judgment.^FN24 An adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial; if he does not so respond, summary judgment, if appropriate, shall be entered against him.^FN25 FN22. FED. R. CIV. P. 56(c). FN23. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). FN24. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). FN25. FED. R. CIV. P. 56(e). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.^FN26 The dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.^FN27 All of the evidence and inferences drawn from that evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. FN26. Anderson, 477 U.S. at 247-248. FN27. Id. V. Analysis A. Plaintiffs' Federal Constitutional Challenges to the Fluoride Measure 1. Did the Defendants Act Arbitrarily, Unreasonably or With a Clear Abuse of Power? Plaintiffs' purported federal constitutional claims are stated in Paragraph X of their Original Petition, where they assert that: The Constitution and state and Federal Statutes were violated in that there is no basis in law for a majority of voters to medicate any minority in the absence of a public issue of safety. In other words, a vote as to elective or prophylactic medication of drinking water is unreasonable and unconstitutional as a matter of law.^FN28 FN28. Docket Entry 1. This is all that plaintiffs have pleaded as a federal cause of action. No specific federal statute or provisions of the United States Constitution are mentioned. Further, plaintiffs' three-page summary judgment response is silent as to the bases and/or scope of their federal claims. I will nevertheless discuss whether a fundamental constitutional right is involved in this lawsuit, and then I will proceed to address whether plaintiffs' pleaded paragraph is sufficient to establish a viable due process and/or equal protection challenge under the XIV Amendment to the United States Constitution. According to Texas law, the City Council, the legislative body of the City, has both “the authority and responsibility to determine, as a matter of fact, whether injecting fluoride into the City's water supply is an act in furtherance of the public's health, safety, and welfare.” ^FN29 The City Council must first decide the necessity and reasonableness of the ordinance. ^FN30 A court will not substitute its discretion for that of the governing body of a city.^FN31 Although reasonable minds may differ as to whether a particular ordinance is an act in furtherance of the public's health, safety, and welfare, this is not evidence that the City clearly abused its discretion. ^FN32 FN29. See City of Houston v. Johnny Frank's Auto Parts Co., 480 S.W.2d 774 (Tex.Civ.App.Houston [14th Dist.] 1972, writ ref'd n.r.e.). It should be noted that fluoridation of the City's drinking water has not yet occurred. FN30. See Safe Water Foundation of Texas, et al. v. City of Houston, 661 S.W.2d 190, 191-92 (Tex.Civ.App.Houston [1st Dist.] 1983, writ ref'd n.r.e.), appeal dism'd for want of a substantial federal question, 469 U.S. 801 (1984). FN31. See City of Abilene v. Woodlock, 282 S.W.2d 736 (Tex.Civ.App.Eastland 1955, writ ref'd),cert. denied, 351 U.S. 925 (1956); and Safer Water Foundation of Texas, 661 S.W.2d at 192. FN32. Id. See also City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex.), cert. denied, 459 U.S. 1087 (1982) (“If reasonable minds could differ as to whether the ordinance has a substantial relationship to the protection of the general health, safety, or welfare of the public, and if the evidence reveals a fact issue in this respect, the ordinance must be upheld.”). A municipal ordinance is presumed to be valid, and the party attacking it on constitutional grounds bears an “extraordinary burden” to prove that it is invalid.^FN33 “When a city government passes an ordinance that is final and conclusive, it cannot be revised by the courts unless the passing of the ordinance was arbitrary, unreasonable, and a clear abuse of power.” ^FN34 FN33. See Trail Enterprises, Inc. v. City of Houston, 957 S.W.2d 625, 635 (Tex.App.-Houston [14th Dist.], rev. denied 1997), cert. denied, 525 U.S. 1070 (1999). FN34. Safe Water Foundation of Texas, 661 S.W.2d at 192; Trail Enterprises, Inc., 957 S.W.2d at 634-35. See also Comeau, 633 S.W.2d at 792 (“Courts have no authority to interfere unless the ordinance is unreasonable and arbitrary-a clear abuse of discretion.”). In the instant case, there is no evidence establishing that the San Antonio City Council abused its discretion when it ordered a special election on the issue of fluoridation. The City Council placed the ordinance calling for the election on its agenda, properly noticed the meeting and opened the floor to public comment. Indeed, the summary judgment record reflects that the City Council heard comment and evidence, both pro and con, from interested citizens concerning the effects of fluoridation of the City's water supply.^FN35 After comment, the City Council passed a resolution requiring fluoridation, subject to the approval of the City's voters expressed through a special election on the issue.^FN36 Passing the ordinance was a valid exercise of the City's mandate to promote the health, welfare and safety of its citizens, and was not an abuse of discretion.^FN37 In Safe Water Foundation of Texas v. City of Houston, the only Texas appellate case to discuss this issue, the court held that a city's decision to fluoridate its water supply under circumstances similar to those at issue in this case was neither arbitrary, capricious nor unreasonable.^FN38Plaintiffs have offered no evidence that comment or materials were presented to the City Council establishing that the risks associated with fluoridation are unreasonable; at most, the matters presented to City Council by the fluoride opponents may suggest that the issue is debatable.^FN39 This, however, does not undermine the reasonableness of the City Council's decision to adopt the Fluoride measure as a means of protecting the general welfare of its constituents. Accordingly, the Fluoride measure and the special election were a valid constitutional exercise of the City's police powers. There is simply no proof by the plaintiffs that the City Council, in passing the Fluoride measure and authorizing the special election, acted in a manner that was arbitrary, unreasonable, and a clear abuse of power. FN35. Docket Entry 16, Exhibits 14 and 18. FN36. Id. at Exhibits 1, 14 and 15. FN37. The City of San Antonio has the power to establish acts and ordinances as needed for the welfare, health, safety and convenience of its inhabitants. San Antonio City Charter, Art. I, § 3, ¶ 1. According to the City Charter, the City has the power to adopt and enforce all necessary police, health and sanitary regulations. San Antonio City Charter, Art. I, § 3, ¶ 13(19). SeeDocket Entry 15, at fn.10. FN38. Safe Water Foundation of Texas, 661 S.W.2d at 192. FN39. See Illinois Pure Water Committee, Inc. v. Director of Public Health, 104 Ill.2d 243, 251, 470 N.E.2d 988, 992 (Ill.1984). 2. Did Defendants Violate a Fundamental Federal Constitutional Right? Regarding plaintiffs' contention that fluoridation of the City's drinking water constitutes a violation of the United States Constitution, the Texas appellate court decision in Safe Water is again instructive. In that case, the court relied on four cases from other states in which certiorari was denied by the United States Supreme Court, and concluded that because the Supreme Court had consistently declined to recognize the existence of a fundamental constitutional right implicated by the addition of fluoride into the City's water supply, the plaintiffs had no viable grounds to challenge the constitutionality of fluoridation.^FN40 Further, as quoted by defendants in their motion, the New Jersey Supreme Court, in Young v. Board of Health of Borough of Somerville,^FN41 made the following poignant statement on the issue: FN40. Safe Water Foundation of Texas, 661 S.W.2d at 192-93 (citing to: Paduano v. City of New York, 45 Misc.2d 718, 257 N.Y .S.2d 531 (N.Y.Sup.1965), aff'd, 24 A.D.2d 437, 260 N.Y.S.2d 831(N.Y.A.D.1965), aff'd 17 N.Y.2d 875, 218 N.E.2d 339, 271 N.Y .S.2d 305 (N.Y.1966), cert. denied, 385 U.S. 1026 (1967); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (Ill.1964), cert. denied, 379 U.S. 964 (1965); DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (Cal.App. 4 Dist.1953), cert. denied, 347 U.S. 1012 (1954); and Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okla.1954), cert. denied, 348 U.S. 912 (1955)). It should be noted that the United States Supreme Court dismissed the appeal in Safe Water on the grounds that no substantial federal question was presented. 469 U.S. at 801. FN41. 61 N.J. 76, 293 A.2d 164 (N.J.1972). Although no harmful results from fluoridation have clearly been proven and it has no effect upon the color, taste or odor of water and despite the health benefits that are clearly derived, proposals to fluoridate drinking water have encountered extraordinary opposition and antagonism. The generative forces of this hostility are not easily identified but have found expression in a variety of arguments. It is contended, variously, that there is a lack of statutory authority for the municipal action; that even if adequate statutory authority can be inferred, fluoridation is an abusive exercise of police power and as such is constitutionally offensive; that it prohibits the free exercise of religion by imposing medication upon those who would resist it; and that it otherwise constitutes a deprivation of personal liberties. The courts throughout the nation have been virtually unanimous in resisting these as well as other arguments, and in upholding fluoridation of drinking water as a valid public health measure whenever a challenge has been presented. [ ... ] The unanimity of appellate state court holdings is matched only by the frequency and persistent regularity with which the United States Supreme Court has declined review.^FN42 FN42. 61 N.J. at 78, 293 A.2d at 165. See also Docket Entry 15, at fn.12. Accordingly, to the extent that plaintiffs argue that the City's Flouride measure enabling the special election violates a fundamental right protected by the United States Constitution, that claim should be dismissed because it lacks merit under the case authority cited above. Similarly, plaintiffs have failed to state a federal claim premised on a “right to vote” theory. Plaintiffs may have attempted to state a claim that their fundamental right to vote was violated when the City passed a resolution enabling a special election which excluded non-City residents who were served by the San Antonio Water System, the agency in charge of fluoridating the City's drinking water. Assuming that plaintiffs have standing to assert this claim, nothing in the language of the United States Constitution commands direct democracy, and I am aware of no authority supporting this argument. ^FN43 In fact, every decision of which I am aware has held that regulations on the power of initiatives, referendums or resolutions are stated-created rights and are therefore not guaranteed by the United States Constitution.^FN44 “Where a state provides for an expression of direct democracy, such as by initiative or referendum, it does so as a matter of legislative grace; the right to participate in such a process is not fundamental to our Constitution.” ^FN45 The City Council in this case acted well within its constitutionally permissible authority in passing a resolution to refer the issue of fluoridation to the political processes and granting City residents the option to vote on the issue through a special election. “Where no clear threat to constitutional rights is presented, courts should be reluctant to reverse the wishes of the people or their representatives, especially when effective political checks exist to gauge the popular will.” ^FN46 FN43. The right to vote in a general election, i.e., the right to participate in representativegovernment, is a fundamental constitutional right that may not be abridged absent a compelling state interest. Kramer v. Union Free School District No. 15, 395 U.S. 621, 626 (1969). A referendum, however, is considered a form of direct democracy. The United States Constitution insures a representative form of government, not a direct democracy. See LAWRENCE TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 13-17 at 773 (1978) (“There is, after all, no absolute constitutional requirement that a change be instituted by a political unit whenever a majority of the people in the unit favor it ...”). FN44. See Kelly, 608 F.Supp. at 1038 (allowing the petition for a public referendum be signed only by individuals who were both registered to vote and did vote in the last general election does not contravene the Equal Protection Clause of the United States Constitution, as local referendums, unlike general elections for a representative form of government, are not constitutionally compelled); Save Palisades Fruitlands v. Todd, No. 00-1423, 2002 WL 192095, at (10th Cir. Feb. 7, 2002) (voters of county who were prevented from introducing land use proposal on ballot as county-wide initiative by virtue of county's classification as statutory, rather than home rule, under Colorado rule, were not denied fundamental rights to free speech or to vote, as would warrant strict scrutiny of statute granting initiative power to voters of home rule counties, under Equal Protection clause of the Fourteenth Amendment; and power of initiative was not fundamental right, since United States Constitution did not command direct democracy); and Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir.1993) (citingMeyer v. Grant, 486 U.S. 414, 424 (1988)). FN45. See Kelly, 608 F.Supp. at 1038 & fn.1. FN46. Alkire v. Cashman, 350 F.Supp. 360, 365 (S.D.Ohio 1972) (upholding constitutionality of Ohio statute requiring all public water works systems serving 5,000 or more persons to fluoridate their water), cert. denied, 414 U.S. 858 (1973). Furthermore, under Texas statutory law, a city is entitled to enact health, safety and welfare ordinances that benefit both city residents and non-residents within a city's extra-territorial jurisdiction.^FN47 Persons in the extra-territorial jurisdiction are not ordinarily entitled to vote in such municipal affairs.^FN48 Accordingly, plaintiffs' constitutional rights were not violated by the City's valid exercise of its municipal function when it authorized the fluoridation election. FN47. See TEX. LOC. GOV.CODE § 42.001 et seq. See also Holt Civil Club v. City of Tuscalosa,439 U.S. 60 (1978); and Quick v. City of Austin, 7 S.W.3d 109 (Tex.1998). FN48. TEX. LOC. GOV.CODE § 42.904. 3. Did Defendants Violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution? To the extent plaintiffs' complaint states a violation of a federally recognized equal protection claim, it similarly fails. Because no suspect classification is at issue in this case ( i.e., race or national origin) warranting strict scrutiny or even intermediate review (used in cases where gender-based classifications are at issue), I must analyze plaintiffs' equal protection claim under a rational basis test.^FN49 To pass equal protection scrutiny under a rational basis review, an ordinance's classification must be rationally related to a legitimate state interest. ^FN50 The City asserts that its Fluoride measure calling a special election is a legitimate exercise of its police power.^FN51 Reasonable regulations to promote the health, safety, and the general welfare of its people are a valid exercise of a City's police power.^FN52 Because the plaintiffs have not presented any summary judgment evidence or case authority disputing the City's authority to call such an election, this court should find that the City's Fluoride measure is a valid exercise of the City's police power as a matter of law. This ruling would indeed comport with the overwhelming majority of decisions from other states which have uniformly upheld fluoridation measures as a valid exercise of the states' police powers. ^FN53 Further, courts have also consistently found that Fluoride measures, such as the one at issue in this case, are not defective from the standpoint of due process of law.^FN54 FN49. See Trail Enterprises, 957 S.W.2d at 634. FN50. Id. FN51. Docket Entry 15, at ¶ 21 (citing Illinois Pure Water Committee, 104 Ill.2d at 251, 470 N.E.2d at 992 (rejecting contention that fluoridation imposes upon fundamental right guaranteed by the United States Constitution and that strict scrutiny should be applied to statute enabling fluoridation); and Beck v. City Council of Beverly Hills, 30 Cal.App.3d 112, 115, 106 Cal.Rptr. 163, 165-66 (Cal.App. 2 Dist.1973) (“[F]luoridation of water is a reasonable and proper exercise of the police power in the interest of public health. The matter is no longer an open question.”)). FN52. See Trail Enterprises, 957 S.W.2d at 635. FN53. See DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (Cal.App. 4 Dist.1953), cert. denied 347 U.S. 1012 (1954); City Commission of City of Fort Pierce v. State ex. rel. Altenhoff,143 So.2d 879 (Fla.App. 2 Dist.1962); Kraus v. City of Cleveland, 121 N.E.2d 311, 76 Ohio L. Abs. 214 (Ohio App. 8 Dist.1954), aff'd, 163 Ohio St. 559, 57 Ohio Op. 1, 127 N.E.2d 609 (Ohio 1955), appeal dism'd for want of a substantial federal question, 351 U.S. 935 (1956); Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okla.1954), cert. denied, 348 U.S. 912 (1955);Opinion of the Justices, 243 A.2d 716 (Del.1968); Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (Wash.1954); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (Wis.1955);Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (Ill.1964) (A city council's decision to fluoridate water by one part of fluoride to a million parts of water is a reasonable and proper exercise of the police power in the interest of public health, and the resolution is not subject to constitutional infirmities), cert. denied, 379 U.S. 964 (1965); and Wilson v. City of Council Bluffs,253 Iowa 162, 110 N.W.2d 569 (Iowa 1961) (A city may enact an ordinance providing for the fluoridation of water to prevent dental decay in children, based on its implied power under statutes permitting it to enact ordinances for the preservation of the health of its inhabitants, and the enactment does not violate statutes dealing with the sale and distribution of poison). FN54. See DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (Cal.App. 4 Dist.1953); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (La.1954), appeal dism'd for want of a substantial federal question, 348 U.S. 892 (1954); and Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okla.1954), cert. denied, 348 U.S. 912 (1955); Crawford et. al. v. City of Detroit et. al., 389 F.2d 1001 (6th Cir.1968); Readey v. St. Louis County Water Co., 352 S.W.2d 622 (Mo.1961), cert. denied, 371 U.S. 8 (1962); Miller v. Evansville, 247 Ind. 563, 219 N.E.2d 900 (Ind.1966); Baer v. Bend, 206 Or. 221, 292 P.2d 134 (Or.1956); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (Wash.1959), appeal dism'd for want of a substantial federal question, 361 U.S. 10 (1959); and Alkire v. Chapman, 350 F.Supp. 360 (S.D.Ohio 1972), cert. denied, 414 U.S. 858 (1973). For these reasons, it is my recommendation that defendants' motion for summary judgment with respect to plaintiffs' federal constitutional claims should be GRANTED as plaintiffs have failed to allege a violation of a constitutional right protected by the United States Constitution. B. Plaintiffs' Pendent State Claims In this removed action, defendants request this federal district court to resolve the claims brought by plaintiffs by interpreting Texas statutory law, such as the Texas Election Code, and state tort law, apart from any federal question jurisdiction. This court should decline to do so. The exercise of pendent jurisdiction is always discretionary.^FN55 As articulated by the United States Supreme Court in United Mine Workers of America v. Gibbs, ^FN56 the doctrine of pendent or supplemental jurisdiction is a doctrine of flexibility, designed to allow “courts to deal with cases involving pendent claims in the manner that most sensibly accommodates a range of concerns and values.” ^FN57 Accordingly, the United States Supreme Court has indicated that the exercise of the district courts' discretion should involve “considerations of judicial economy, convenience and fairness to litigants” and “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties.” ^FN58 FN55. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966); Evans v. City of Dallas, 861 F.2d 846 (5th Cir.1988); and Laird v. Board of Trustees of Institutions of Higher Learning of State of Mississippi, 721 F.2d 529 (5th Cir.1983); and city of Chicago v. International College of Surgeons, 522 U.S. 156 (1997) (citations omitted). FN56. 383 U.S. 715, 726 (1966). FN57. Id. at 726-27. See also Carnegie-Mellon University v.. Cohill, 484 U.S. 343, 350 (1988)(discussing pendent claims removed to federal court). FN58. Cohill, 484 U.S. at 357; and City of Chicago, 522 U.S. at 169-70. The supplemental jurisdiction statute codifies these principles. After establishing that supplemental jurisdiction encompasses “other claims” in the same case or controversy as a claim within the district courts' original jurisdiction, 28 U.S.C. § 1367(a), the statute confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts may refuse its exercise: (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if- (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.^FN59 FN59. 28 U.S.C. § 1367(c). In this regard, the United States Supreme Court in City of Chicago v. International College of Surgeonsheld that federal courts may decline to exercise jurisdiction over supplemental state law claims“[d]epending on a host of factors ... including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims.” ^FN60 The statute thereby reflects the understanding that, when deciding whether to exercise supplemental jurisdiction, “ ‘a federal court should consider and weigh in each case, and at every state of the litigation, the values of judicial economy, convenience, fairness, and comity.” ’ ^FN61 FN60. 522 U.S. at 172-74 (Emphasis added). FN61. Id. at 533 (quoting Cohill, 484 U.S. at 350). In this case, three important factors govern this court's exercise of discretion. First, the federal constitutional claims, which support pendent jurisdiction over the state law claims, should be dismissed as a matter of law. Under these circumstances, the pendent claims should be dismissed as well. ^FN62 Secondly, federal courts should abstain from resolving novel or complex issues of state law which involve the state's own political process. ^FN63 And thirdly, it is evident that plaintiffs' state law claims, asserting violations of the Texas Election Code and other common law cause of action sounding in tort, substantially predominate over the purported federal claims over which this court has original jurisdiction.^FN64 Further, the interests of comity between the state and federal systems demand that plaintiffs' claims be resolved in a Texas court. Accordingly, plaintiffs' pendent state law claims should be dismissed. Considering that plaintiffs originally filed this lawsuit in state court, the court should enter an Order remanding plaintiffs' state law claims to that forum, pursuant to 28 U.S.C. § 1447(c). FN62. Gibbs, 383 U.S. at 726; and 28 U.S.C. § 1367(c)(3). FN63. See Burford, 319 U.S. at 332-33 (1943); Kelly, 608 F.Supp. at 1039; and 28 U.S.C. § 1367(c)(1). FN64. 28 U.S.C. § 1367(c)(2). VI. Recommendation For the reasons outlined above, I recommend that defendants' motion for summary judgment (Docket Entry 15) be GRANTED. Because plaintiffs have failed to establish a cognizable federal constitutional claim, this court lacks subject-matter jurisdiction to hear this case. If the District Court agrees with this recommendation by dismissing all claims over which it has original or federal question jurisdiction, it should decline to exercise supplemental jurisdiction over plaintiffs' pendent state law claims, pursuant to 28 U.S.C. § 1367(c)(1-4). In that regard, I further recommend that plaintiffs' pendent state law claims be REMANDEDto state court, pursuant to 28 U.S.C. § 1447(c). Since defendants' request for an award of attorneys' fees is included under its discussion seeking summary judgment on plaintiffs' alleged claims of election irregularities in violation of the Texas Election Code (Docket Entry 15, at ¶ 12), claims from which this court should abstain from ruling on the merits, defendants' request for attorneys' fees should be DENIED. VII. Instructions For Service And Notice of Right to Object/Appeal The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court.^FN65 Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. ^FN66 FN65. See Thomas v. Arn, 474 U.S. 140, 149-152 (1985). FN66. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir.1996).