+/- All Case Law (108)

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.

+/- Beck v. City Council of Beverly Hills

California, Unlicensed Practice of Medicine/Compulsory Medication, State police power

• Plaintiff
  Hermine Beck
• Defendant
  City Council of Beverly Hills
• State
  California
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - State police power
• Citation
  30 Cal. App. 3d 112; 106 Cal. Rptr. 163 (Cal. Ct. App. 1972)
• Year
  1972-00-00T00:00:00
• Court Name
  Court of Appeal of California, Second Appellate District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  40140
• Opinion Judges
  Compton J, Roth PJ, Herndon J
• Opinion Text
  COMPTON, J. Plaintiffs who are residents of the City of Beverly Hills by this action seek to enjoin the city council and various city officials from proceeding to fluoridate the municipal water supply. The case reaches us on an appeal by the plaintiffs from a judgment of dismissal entered following the sustaining of a demurrer without leave to amend the second amended complaint. On July 21, 1970, the Beverly Hills City Council adopted Resolution No. 70-R-4147 authorizing the addition of fluoride to the city's water supply. The resolution noted that the California State Board of Public Health had adopted the policy of approving controlled fluoridation of community water supplies as a valuable public health measure in reducing the occurrence of dental caries. Following recitation of the demonstrated effectiveness and safety of fluoridation during the past quarter century in the United States, the council resolved to add fluoride to their water supply by authorizing the water department “... to apply to the State Board of Public Health for an amendment to the water permit of the City of Beverly Hills to allow the addition of fluoride to the water supply of the City of Beverly Hills in order to maintain in the City's water distribution system the optimum fluoride content designated in the amended permit and in the event said permit is so amended, to acquire and construct the necessary facilities ....” Throughout their unsuccessful attempts (sic) survive a demurrer, plaintiffs have variously alleged that the city council abused its discretion because (1) federal and state government has preempted the field, (2) the city council failed to permit adequate opportunity for the opposition to be heard, (3) the city water supply already contains the optimum effective fluoride dosage, and (4) fluoridation of a public water supply violates the California Pharmacy Law and the Federal Food, Drug and Cosmetic Law. Narrowed to its most concise and basic elements the complaint in essence alleges that the city council's procedure in adopting the resolution was improper and that fluoride, because it is a poison, may not be introduced into a public water supply without a prescription. The Lawfulness of Fluoridation (1) With respect to the claimed violation of state law in the fluoridation of a public water supply plaintiff points to the fact that fluorides have been listed under the Schedule of Poisons contained in section 4160, subdivision (c) of the Business and Professions Code. According to section 4161 such poisons must not be sold or furnished unless a poison or caution label is affixed, nor can they be sold to a person under 18 years of age (§ 4164). Wholesalers who sell to an “... established legitimate user in the chemical and technical arts” are exempt from the regulation (§ 4170). The act does not apply to sales on prescription (§ 4173). “Fluorides intended, designed or recommended for internal use, or including directions for internal use, may be sold only on prescription, provided however that this regulation shall not apply to soluble fluorides labeled and sold in compliance with the provisions of Article 7, Chapter 9 of the Business and Professions Code.” (Cal. Admin. Code, tit. 16, § 1748.1, Cal. Py rmacy Rules and Regulations.) Of course, the foregoing regulate the sale and distribution of Fluorides in their basic state and prior to their dilution. Those provisions do not regulate the sale or distribution of water. Plaintiff does not allege that acquisition of fluoride by the city has been or will be other than in compliance with the state law. The same can be said of the federal law. ( Froncek v. City of Milwaukee, 269 Wis. 276 [69 N.W.2d 242]; see also 17 Fed.Reg. 6732 (July 23, 1952).) On the other hand Health and Safety Code, division 5, part 1, chapter 7, contains an extensive scheme for regulation of the distribution of water, which scheme gives to the State Board of Public Health the responsibility of insuring the purity and potability of water furnished for domestic use. This responsibility is discharged through a system of permits and inspections and by enforcement of Health and Safety Code section 4031 which provides: “It is unlawful for any person to furnish or supply to a user water used or intended to be used for human consumption or for domestic purposes which is impure, unwholesome, unpotable, polluted, or dangerous to health.” Chemicals, which in their concentrated or basic state may be poisonous, are often introduced into water for the purpose of purification. Plaintiffs have not alleged any facts indicating that the city or the State Board of Health have permitted or intend to permit the distribution of water which is impure or dangerous to the public health. The resolution itself directs that a permit be obtained from the State Board of Public Health before any steps are taken to fluoridate the water. We cannot presume that the board will act improperly or fail to perform its duty to insure that the condition of the water, as ultimately distributed, is one of purity and potability. It appears that fluoridation of the water is not essential to its purification but is intended as a therapeutic measure. While the statutory regulation of the quality of water furnished for human consumption is aimed at objectives of safety and potability rather than medication for therapeutic ends, it does not follow that the former precludes the congruent purpose of combating disease. (Hughes v. City of Lincoln, 232 Cal.App.2d 741 [ 43 Cal.Rptr. 306].) Courts through 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. (42 Ops.Cal.Atty.Gen. 243; deAryan v. Butler, 119 Cal.App.2d 674 [ 260 P.2d 98]; Kraus v. Cleveland, 76 Ohio L.Abs. 214 [55 Ohio Ops. 36, 121 N.E.2d 311]; Kaul v. Chehalis, 45 Wn.2d 616 [277 P.2d 353]; Froncek v. City of Milwaukee, supra; Dowell v. Tulsa (Okla.) 273 P.2d 859 [43 A.L.R.2d 445].) The matter is no longer an open question. (2) Plaintiffs complain that the resolution was brought to life through an abuse of governmental discretion in the enactment process. They complain that because of a delay in reaching its decision the council which passed the resolution had a different composition from that which held hearings on the issue. This, the plaintiffs contend, is tantamount to no hearing at all. There is, however, no requirement that a public hearing be held prior to enactment of such a resolution. Any such irregularity, if it be one, cannot amount to an abuse of legislative discretion sufficient to warrant judicial intrusion. ( Monarch Cablevision, Inc. v. City Council, 239 Cal.App.2d 206 [ 48 Cal.Rptr. 550]; Franchise Tax Board v. Superior Court, 36 Cal.2d 538 [225 P.2d 905].) The judgment is affirmed. Roth, P. J., and Herndon, J., concurred.

+/- 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 of Watsonville v. State Department of Health Services

California, Petitions Initiatives & Re-votes, Preemption, Push for FDA Approval

• Plaintiff
  City of Watsonville
• Defendant
  State Department of Health Services
• State
  California
• Other Parties
  -
• Case Tags
  - Petitions Initiatives & Re-votes

  - Preemption

  - Push for FDA Approval
• Citation
  133 Cal. App. 6th 875 (Cal. Ct. App. 2005)
• Year
  2005-00-00T00:00:00
• Court Name
  Court of Appeals of California, Sixth Appellate District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  H028111
• Opinion Judges
  Premo J, Rushing PJ, Elia J concurring
• Opinion Text
  PREMO, J. In November 2002, the voters of the City of Watsonville (City) passed a ballot initiative known as Measure S. Measure S prohibits introduction of any substance into City's water supply unless the substance conforms to listed requirements. We hold that to the extent Measure S applies to fluoridation it is preempted by state law. I. FACTUAL AND PROCEDURAL BACKGROUND^FN1 FN1. We take our factual summary from the agreed set of facts upon which the matter was tried. In the fall of 2002, City was poised to begin a water fluoridation project when City's voters passed Measure S and halted City's fluoridation efforts. Measure S prohibits introducing any substance into City's drinking water (other than substances used to make the water safe to drink) unless, among other things, the United States Food and Drug Administration (FDA) has approved the substance for safety and effectiveness.^FN2 Since the FDA does not regulate additives to public water supplies and has never specifically approved the use of fluoride as an additive to public water supplies, Measure S effectively prohibits fluoridation. There is no question that the initiative was designed for that purpose. FN2. Measure S was enacted as Ordinance No. 1151-02 and added to the Watsonville Municipal Code as section 6-3.443, effective December 6, 2002. The measure provides in full as follows: “In order to ensure that the public water of Watsonville is safe to drink, it shall be unlawful and a public nuisance for any person, agent, or any public or private water system, to add any product, substance, or chemical to the public water supply for the purpose of treating or affecting the physical or mental functions of the body of any person, rather than to make water safe or potable, unless the substance meets the following criteria: [¶] 1) The substance must have been specifically approved by the U.S. Food and Drug Administration for safety and effectiveness with a margin of safety that is protective for all adverse health and cosmetic effects at all ranges of unrestricted consumption. [¶] 2) The substance, at Maximum Use Levels, must contain no contaminants at concentrations that exceed U.S. Maximum Contaminant Level Goals or California Public Health Goals, whichever is more protective. [¶] If any provision of this act or the application thereof to any person or circumstance is held invalid, that invalidity may not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.” City had begun its fluoridation project as required by Health and Safety Code sections 116410 and 116415.^FN3 Section 116410 requires fluoridation of public water systems having at least 10,000 service connections and authorizes the California Department of Health Services (DHS) to adopt regulations to implement that requirement. (§ 116410, subd. (a); Cal.Code Regs., tit. 22, § 64433.) Section 116415 provides that a public water system is not required to fluoridate if sufficient funding is not available from an outside source. (§ 116415, subd. (a)(1)(A).) Outside sources may include federal block grants or donations from private foundations. (§ 116415, subd. (e).) Outside sources do not include a system's ratepayers or local taxpayers. (§ 116415, subd. (a)(1)(A).) ^FN4 FN3. All further statutory references are to the Health and Safety Code. FN4. The full text of sections 116409 through 116415 is set forth in the appendix. City's water system meets the size requirements of section 116410 and funding had been offered by an outside source-the California Dental Association Foundation, but since the newly passed voter initiative prohibited fluoridation, City ceased work on the project and terminated the funding agreement. DHS issued an order directing City to fluoridate as required by section 116410. Because City could not comply with the DHS order without violating Measure S, City filed the instant action. City's complaint sought declaratory and injunctive relief. City requested a declaration that Measure S “is valid and enforceable and does not conflict with State law, and is not preempted” and that City could legally prohibit the fluoridation of its public water supply. The requested injunction was to “[p]ermanently enjoin [DHS], from enforcing its Compliance Order.” The California Dental Association Foundation and the California Dental Association, both of which have worked to promote fluoridation throughout the state, successfully sought leave to intervene. The trial court concluded that Measure S was preempted by state law and that City was not exempt from its requirements. City has timely appealed. II. DISCUSSION A. Issue and Standard of Review The only issue before us is whether Measure S is preempted by state law.^FN5 This is a pure question of law subject to de novo review. (Gonzales v. City of San Jose (2004) 125 Cal.App.4th 1127, 1133, 23 Cal.Rptr.3d 178.) FN5. We granted permission for amicus, Nick Bulaich, a Watsonville resident, to file a brief in support of City. Amicus contends that Measure S does not prohibit fluoridation while the parties to this appeal agree that the purpose and effect of Measure S is to prohibit the fluoridation of City's water supply. Amicus also makes a number of factual contentions in support of his argument that City is exempt from or otherwise should not be compelled to comply with the state's fluoridation requirements for reasons other than the prohibition contained in Measure S. However, City's only argument on appeal is that Measure S is enforceable because it is not preempted by state law. The rule is that an appellate court considers only those questions properly raised by the appealing parties. (California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1274-1275, 36 Cal.Rptr.2d 404 and cases cited therein.) Accordingly, we decline to consider issues raised by amicus that have not been raised by City. B. Preemption Analysis City is a charter city. As such, City may “make and enforce all ordinances and regulations in respect to municipal affairs” subject only to restrictions and limitations provided in its charter. (Cal. Const., art. XI, § 5, subd. (a).) City ordinances and regulations pertaining to municipal affairs supersede all inconsistent laws. (Ibid.) However, a state law regulating a matter of statewide concern preempts a conflicting local ordinance or regulation if the state law is reasonably related to the resolution of the statewide concern and is narrowly tailored to limit incursion into legitimate municipal interests. (Johnson v. Bradley (1992) 4 Cal.4th 389, 404, 14 Cal.Rptr.2d 470, 841 P.2d 990.) This is so even where the local measure involves a traditionally municipal affair. Where the subject of the local law implicates a municipal affair and poses a genuine conflict with state law, “the question of statewide concern is the bedrock inquiry through which the conflict between state and local interests is adjusted.” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 17, 283 Cal.Rptr. 569, 812 P.2d 916 (Cal.Fed.).) If the subject of the state law does not qualify as a statewide concern, then the conflicting charter city measure is beyond the reach of the state law. (Ibid.) “If, however, the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution, then the conflicting charter city measure ceases to be a ‘municipal affair’ pro tanto and the Legislature is not prohibited by article XI, section 5 [subdivision] (a), from addressing the statewide dimension by its own tailored enactments.” (Ibid.) C. Measure S Actually Conflicts with State Law We begin the analysis by determining whether there is an actual conflict between Measure S and the state statute. If there is no true conflict, “a choice between the conclusions ‘municipal affair’ and ‘statewide concern’ is not required.” (Cal. Fed., supra, 54 Cal.3d at p. 16, 283 Cal.Rptr. 569, 812 P.2d 916.) There is a conflict between a state law and a local ordinance if the ordinance duplicates or contradicts the state law, or if the ordinance enters an area fully occupied by general law, either expressly or by implication. (American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251, 23 Cal.Rptr.3d 453, 104 P.3d 813.) There is an actual conflict in this case because state law fully occupies the area of fluoridation of public water systems having more than 10,000 hookups. The Legislature's express intent to fully occupy the area appears in section 116409: “It is the intent of the Legislature in enacting this article to preempt local government regulations, ordinances, and initiatives that prohibit or restrict the fluoridation of drinking water by public water systems with 10,000 or more service connections ....” (§ 116409, subd. (b).) The Legislature added section 116409 to the Health and Safety Code in 2004 as part of Senate Bill 96. (Stats.2004, ch. 727 (S.B. 96), § 2.) Senate Bill 96 was introduced in response to local initiatives like Measure S that were designed to curtail fluoridation. (Sen. Floor Analysis, Sen. Bill No. 96 (2003-2004 Reg. Sess.) August 30, 2004, p. 4 (Sen.Analysis).) City argues that since section 116409 had not been enacted at the time judgment was entered in this case, it is inapplicable to our review. We disagree. It is well established that review of a judgment for injunctive relief is governed by the law in effect at the time the appellate court renders its decision. (Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 14, 30 Cal.Rptr.3d 30, 113 P.3d 1062.) Even though, as City points out, this case involves declaratory relief as well as an injunction, given the nature of the declaration requested, it is appropriate to apply the current law. The reason a reviewing court applies current rather than former law when reviewing an injunctive decree is because injunctive relief operates in the future. (See 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, § 399, p. 324 & cases cited; see also 9 Witkin, Cal. Procedure, supra, Appeal, § 332, p. 373.) It would be an idle gesture to affirm an injunctive decree because it was correct when rendered, “with full knowledge that it is incorrect under existing law, and with full knowledge that, under existing law, the decree as rendered settles nothing so far as the future rights of these parties are concerned.” (Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 527, 45 P.2d 972.) It does not matter whether the Legislature intended the new law to be retroactive. The reviewing court is interested in the law's prospective effect since that is when the decree under review will operate. In our view, the same reasoning applies to a judicial declaration that has purely prospective effect. A declaratory judgment is to “ ‘serve some practical end in quieting or stabilizing an uncertain or disputed jural relation.’ ” (Columbia Pictures Corp. v. DeToth (1945) 26 Cal.2d 753, 760, 161 P.2d 217.) When resolution of the uncertainty at issue does not affect vested rights and operates only with respect to the future rights and duties of the parties, we apply the law in effect at the time of review because that is the law under which the judicial declaration will have effect. Furthermore, since the Legislature enacted section 116409 having in mind the very dispute we are reviewing, we should apply the new law if it is otherwise appropriate to do so. (Cf. Texas Co. v. Brown (1922) 258 U.S. 466, 473-474, 42 S.Ct. 375, 66 L.Ed. 721.) It would certainly be an idle act to measure City's ordinance against former state law when the question is whether City may legally enforce its ordinance now and in the future. Resolution of that question will not affect any vested rights. Thus, the appropriate way to determine whether Measure S conflicts with the state law is to examine the law as it currently exists. Notwithstanding the Legislature's express intent to preempt local fluoridation ordinances, City argues that there is no actual conflict. City contends that there are insufficient funds available to pay for a fluoridation system, which means that section 116410 does not require City to fluoridate, which, in turn, means that City may lawfully enforce Measure S and prohibit fluoridation. Therefore, according to City, there is no actual conflict and Measure S is not preempted. In the same vein, City argues that it is not yet required to fluoridate because it is not at the top of the fluoridation priority list set forth in the regulations.^FN6 City's argument is beside the point. There is an actual conflict between Measure S and the state law because Measure S purports to regulate an area that is fully occupied by express provisions of the state law. That is, since Measure S purports to regulate fluoridation, it conflicts with the state law regardless of whether or not City is presently exempt from the fluoridation requirements of section 116410. FN6. California Code of Regulations, title 22, section 64434 states: “Public water systems with 10,000 service connections or more that are not fluoridating as of July 1, 1996, shall install fluoridation systems and initiate fluoridation according to the order established in Table 64434-A, as the water systems receive funds from sources identified by the Department, pursuant to Health and Safety Code section 116415.” The 2004 amendments to section 116410 (Stats.2004, ch. 727 (S.B. 96), § 3) clarify that the purpose of the referenced table “is not to mandate the order in which public water systems receiving funding from private sources must fluoridate their water. Available funds may be offered to any system on the schedule.” (§ 116410, subd. (c).) City also contends that the Legislature has not fully occupied the field of fluoridation because the state law does not encompass the numerous public water systems that have fewer than 10,000 hookups. This argument, too, misses the mark. The Legislature has chosen to define the field as fluoridation of public water systems having 10,000 service connections or more. Pursuant to settled preemption analysis, any local attempt to regulate within the field that the Legislature has expressly occupied in full actually conflicts with the state law. Since Measure S would affect the fluoridation of a public water system having more than 10,000 service connections, Measure S conflicts with the state law. D. Fluoridation of Public Water Systems Is a Statewide Concern When there is a true conflict between a charter city measure and a state statute, the next question is whether the subject of the conflicting laws is one of statewide concern. (Johnson v. Bradley, supra, 4 Cal.4th at p. 404, 14 Cal.Rptr.2d 470, 841 P.2d 990.) In this case, the Legislature has declared: “Promotion of the public health of Californians of all ages by protection and maintenance of dental health through the fluoridation of drinking water is a paramount issue of statewide concern.” (§ 116409, subd. (a).) Section 116410, subdivision (a) reiterates that concern where it states that qualifying public water systems must be fluoridated “in order to promote the public health of Californians of all ages through the protection and maintenance of dental health, a paramount issue of statewide concern.” Although we give these pronouncements great weight, they are not controlling. (Domar Electric, Inc. v. City of Los Angeles (1995) 41 Cal.App.4th 810, 821-822, 48 Cal.Rptr.2d 822.) “[T]he hinge of the decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns.” (Cal. Fed., supra, 54 Cal.3d at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.) Fluoride is introduced into the water supply for the purpose of preventing tooth decay. (Beck v. City Council of Beverly Hills (1973) 30 Cal.App.3d 112, 113, 106 Cal.Rptr. 163.) “Courts through 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.” (Id. at p. 115, 106 Cal.Rptr. 163.) Although the Beck court stated over 30 years ago that the matter “is no longer an open question” (ibid.), fluoridation battles such as this one continue to erupt. The two primary issues involved in these disputes are the concerns of public health and water quality. (Sen. Analysis, supra, at pp. 4-5.) Public health and water quality are matters of statewide concern. (Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 108, 223 Cal.Rptr. 609; Lewis Food Co. v. State of California (1952) 110 Cal.App.2d 759, 762, 243 P.2d 802; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 30-31, 61 Cal.Rptr. 618.) Of course, City has a vital interest in the health and safety of its inhabitants and in the quality of the water they drink and, therefore, both concerns may be deemed municipal affairs. We are convinced, however, that the state's extramunicipal concerns tip the scales in favor of statewide regulation of water fluoridation. One factor that makes fluoridation a matter of statewide concern is the need for uniform standards for water quality. The introduction of any substance, including fluoride, into the public drinking water necessarily implicates the quality of the water. Indeed, the California Safe Drinking Water Act (§ 116270 et seq.) defines “contaminant” as “any physical, chemical, biological, or radiological substance or matter in water.” (§ 116275, subd. (a).) DHS is the agency responsible for the quality of the public drinking water supply. (§ 116270, subd. (g).) Pursuant to its legislative mandate, DHS has developed comprehensive drinking water standards, which include standards for fluoride. (Cal.Code Regs., tit. 22, §§ 64431-64432.) As the appellate court stated in Paredes v. County of Fresno (1988) 203 Cal.App.3d 1, 10, 249 Cal.Rptr. 593 (Paredes ): “[T]he Legislature has assigned to the DHS the duty to set standards regarding unhealthy levels of contaminants in drinking water. Local decisions on the same subject, varying from county to county, cannot be justified.” Paredes recognized that in People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 486, 204 Cal.Rptr. 897, 683 P.2d 1150, the Supreme Court permitted local regulation of aerial spraying of herbicides because differences such as the location of schools, dwellings, hospitals, and recreational areas required local flexibility. Paredes distinguished that holding, noting: “In contrast, the degree of permissible levels of water contaminants depends upon scientific expertise and judgment which, difficult as that may be to resolve, applies generally to all users of water statewide.... [T]he Legislature has dictated that statewide standards be set, and thus made it clear local health officers are to be concerned with enforcing, not creating, such standards.” (Paredes, supra, 203 Cal.App.3d at pp. 10-11, 249 Cal.Rptr. 593.) The reasoning of Paredes is directly applicable in this case. Setting permissible levels for fluoride in the drinking water is no different than setting standards for any other substance in the water. It requires scientific expertise that applies generally to all users and does not require local flexibility. The only purely local issue of which we are aware is the possible existence of naturally occurring fluoride. Section 116410, subdivision (a), however, expressly excludes from its scope any water system having natural fluoride in excess of specified levels. On the other hand, citizens throughout the state are entitled to the assurance that the water they receive conforms to all current public health standards. A patchwork of inconsistent local measures cannot provide that assurance. Another issue that makes fluoridation of the drinking water supply a statewide concern is the cost of healthcare. The Legislature has declared that one of the purposes of section 116410 is to “decrease the burden the Medi-Cal and the Denti-Cal programs place upon the state's limited funds.” (§ 116409, subd. (c).) This is, unquestionably, a statewide issue. Indeed, the stated purpose of the sponsor of the legislation was to “prevent a major economic health problem in California-tooth decay.... [¶] Tooth decay affects 90 percent of our population and it's estimated that it will cost our state Denti-Cal program approximately $800 million this year. Of this amount, nearly half will be spent treating dental disease that can be prevented.” (Sen. Health Com., Statement by Assem. Speier, sponsor of Assem. Bill. No. 733 (1995-1996 Reg. Sess.).) In view of these circumstances and concerns and the Legislature's express findings, we conclude that fluoridation of the state's public water systems for the purpose of improving the dental health of the state's citizens is a matter of statewide concern. E. State Law Is Reasonably Related and Narrowly Tailored to the Statewide Concern We now consider whether the state law is reasonably related to the identified statewide concern and narrowly tailored to avoid infringing legitimate municipal affairs. City implicitly concedes the reasonableness of the relationship because its argument is directed solely to the final question, whether the state's requirements are narrowly tailored. City argues that the state law is not narrowly tailored to the state's interest in improving the dental health of children since fluoridated water will affect all users. City also argues that there are “other, less intrusive means” of improving dental health, such as programs for topical fluoride and dental disease prevention programs in schools. These arguments are unavailing. First, the Legislature has clarified that the state's interest is in the dental health of all Californians, not just children. (§ 116410, subd. (a).) Second, in articulating the test for preemption the Supreme Court was concerned with ensuring that a state law does not infringe legitimate municipal interests other than that which the state law purports to regulate as a statewide interest. (Johnson v. Bradley, supra, 4 Cal.4th at p. 404, 14 Cal.Rptr.2d 470, 841 P.2d 990.) City's arguments, therefore, do not bear upon the question before us. Although the state law unquestionably interferes with City's interest in regulating fluoride in its water supply, as we have explained, regulating fluoridation is a statewide concern that overrides City's municipal interest in the subject. It is immaterial that there may be redundancies or overlap among state laws so long as the state law in question does not infringe City's other municipal interests. The only other municipal interest City cites is the possibility that third parties could “usurp authority over a city's local affairs.” City is referring here to the provision in section 116415, subdivision (e)(2) that requires DHS to seek funding for implementation of fluoridation programs from various sources, including private foundations such as the California Dental Association Foundation. City complains that private funding sources may impose terms and conditions within their funding agreements that would dictate the manner in which City could operate its fluoridation program. The problem, as City sees it, is that third parties might have their own financial interests in mind so that a funding offer could require the use of a specific industry source for fluoride, which, according to City, could result in “over-inflated costs,” or the “use of inferior products which could jeopardize the quality of the local water supply.” City's concerns are speculative and unrealistic. Standards for water quality are set by the state and enforced locally. (§ 116270 et seq.; Paredes, supra, 203 Cal.App.3d at p. 11, 249 Cal.Rptr. 593.) Fluoridation costs are determined by the water system subject to review by DHS. (§§ 116410, subds.(a), (d), 116415, subds. (a)(1)(C), (g).) The state law provision that allows for third-party funding merely facilitates funding of a mandated fluoridation project while leaving control of cost and quality issues to the appropriate local and state agencies. In short, the state's water fluoridation law (§ 116409 et seq.) affects only the statewide interest of promoting public health by protecting and maintaining dental health while insuring the quality of the state's drinking water. It has no significant effect on other legitimate municipal affairs. III. CONCLUSION To the extent Measure S affects fluoridation of City's public water system, it is preempted by sections 116409 et seq. and is, therefore, void and without effect. IV. DISPOSITION The judgment is affirmed. WE CONCUR: RUSHING, P.J., and ELIA, J. APPENDIX Health and Safety Code section 116409: The Legislature finds and declares all of the following: (a) Promotion of the public health of Californians of all ages by protection and maintenance of dental health through the fluoridation of drinking water is a paramount issue of statewide concern. (b) It is the intent of the Legislature in enacting this article to preempt local government regulations, ordinances, and initiatives that prohibit or restrict the fluoridation of drinking water by public water systems with 10,000 or more service connections, without regard to whether the public water system might otherwise be exempt from Section 116410 or the requirements of this section, pursuant to Section 116415. (c) It is further the intent of the Legislature in establishing this article to decrease the burden the Medi-Cal and the Denti-Cal programs place upon the state's limited funds. Health and Safety Code section 116410: (a) Each public water system with at least 10,000 service connections and with a natural level of fluorides that is less than the minimum established in the regulations adopted pursuant to this section shall be fluoridated in order to promote the public health of Californians of all ages through the protection and maintenance of dental health, a paramount issue of statewide concern. The department shall adopt regulations pursuant to Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code, requiring the fluoridation of public water systems. By July 1, 1996, and at 10-year intervals thereafter, each public water system with at least 10,000 service connections shall provide to the department an estimate of the total capital costs to install fluoridation treatment. The regulations adopted by the department shall take effect on January 1, 1997. Capital costs estimates are no longer required after installation of the fluoridation treatment equipment. (b) The regulations shall include, but not be limited to, the following: (1) Minimum and maximum permissible concentrations of fluoride to be maintained by fluoridation of public water systems. (2) The requirements and procedures for maintaining proper concentrations of fluoride, including equipment, testing, recordkeeping, and reporting. (3) Requirements for the addition of fluorides to public water systems in which the natural level of fluorides is less than the minimum level established in the regulations. (4) A schedule for the fluoridation of public water systems with at least 10,000 service connections, based on the lowest capital cost per connection for each system. (c) The purpose of the schedule established pursuant to paragraph (4) of subdivision (b) is not to mandate the order in which public water systems receiving funding from private sources must fluoridate their water. Available funds may be offered to any system on the schedule. (d) The estimates provided to the department pursuant to subdivision (a) of this section and subdivision (g) of Section 116415 of the total capital and associated costs and noncapital operation and maintenance costs related to fluoridation treatments and the similar estimates provided to those sources offering to provide the funds set forth in paragraph (1) of subdivision (a) of Section 116415 shall be reasonable, as determined by the department. A registered civil engineer recognized or employed by the department who is familiar with the design, construction, operation, and maintenance of fluoridations systems shall determine for the department whether the costs are reasonable. (e) As used in this section and Section 116415, “costs” means only those costs that require an actual expenditure of funds or resources, and do not include costs that are intangible or speculative, including, but not limited to, opportunity or indemnification costs. (f) Any public water system with multiple water sources, when funding is not received to fluoridate all sources, is exempt from maintaining otherwise required fluoridations levels in areas receiving any nonfluoridated water. The exemption shall be in effect only until the public water system receives funding to fluoridate the entire water system and the treatment facilities are installed and operational. Health and Safety Code section 116415: (a)(1) A public water system is not required to fluoridate pursuant to Section 116410, or the regulations adopted thereunder by the department, in any of the following situations: (A) If the public water system is listed on the schedule to implement a fluoridation program pursuant to paragraph (4) of subdivision (b) of Section 116410 and funds are not offered pursuant to a binding contractual offer to the public water system sufficient to pay the capital and associated costs from any outside source. As used in this section, “outside source” means a source other than the system's ratepayers, shareholders, local taxpayers, bondholders, or any fees or charges levied by the water system. (B) If the public water system has been offered pursuant to a binding contractual offer the capital and associated funds necessary for fluoridation as set forth in subparagraph (A) and has completed the installation of a fluoridation system, however, in any given fiscal year (July 1-June 30, inclusive) funding is not available to the public water system sufficient to pay the noncapital operation and maintenance costs described in subdivision (g) from any outside source other than the system's ratepayers, shareholders, local taxpayers, bondholders, or any fees or charges levied by the water system. A binding contractual offer to provide funds for 12 months, without regard to fiscal year, of noncapital operation and maintenance costs shall render a water system unqualified for an exemption under this subparagraph for that year. (C) If the funding provided by an outside source for capital and associated costs is depleted prior to completion of the installation of a fluoridation system and funds sufficient to complete the installation have not been offered pursuant to a binding contractual offer to the public water system by an outside source. In the event of a disagreement between the public water system and an outside funding source about the reasonableness of additional capital and associated costs, in order to qualify for an exemption under this subparagraph the costs overruns must be found to be reasonable by a registered civil engineer recognized or employed by the department who is familiar with the design, construction, operation, and maintenance of fluoridation systems. (2) Each year the department shall prepare and distribute a list of those water systems that do not qualify for exemption under this section from the fluoridation requirements of Section 116410. This list shall include water systems that have been offered, have received, or are expected to receive, sufficient funding for capital and associated costs so as to not qualify for exemption under subparagraph (A) of paragraph (1), and have either (A) been offered or have received, or anticipate receiving, sufficient noncapital maintenance and operation funding pursuant to subdivision (g), or (B) have not yet completed the installation of a fluoridation system, so that they do not qualify for exemption under subparagraph (B) of paragraph (1). (3) Any water system that has been offered pursuant to a binding contractual offer the funds necessary for fluoridation as set forth in subparagraph (A) of paragraph (1), and is not included in the list pursuant to paragraph (2), may elect to exercise the option not to fluoridate during the following fiscal year pursuant to subparagraph (B) of paragraph (1) by so notifying the department by certified mail on or before June 1. (4) The permit issued by the department for a public water system that is scheduled to implement fluoridation pursuant to paragraph (4) of subdivision (b) of Section 116410 shall specify whether it is required to fluoridate pursuant to Section 116410, or whether it has been granted an exemption pursuant to either subparagraph (A) or subparagraph (B) of paragraph (1). (b) The department shall enforce Section 116410 and this section, and all regulations adopted pursuant to these sections, unless delegated pursuant to a local primary agreement. (c) If the owner or operator of any public water system subject to Section 116410 fails, or refuses, to comply with any regulations adopted pursuant to Section 116410, or any order of the department implementing these regulations, the Attorney General shall, upon the request of the department, institute mandamus proceedings, or other appropriate proceedings, in order to compel compliance with the order, rule, or regulation. This remedy shall be in addition to all other authorized remedies or sanctions. (d) Neither this section nor Section 116410 shall supersede subdivision (b) of Section 116410. (e) The department shall seek all sources of funding for enforcement of the standards and capital cost requirements established pursuant to this section and Section 116410, including, but not limited to, all of the following: (1) Federal block grants. (2) Donations from private foundations. Expenditures from governmental sources shall be subject to specific appropriation by the Legislature for these purposes. (f) A public water system with less than 10,000 service connections may elect to comply with the standards, compliance requirements, and regulations for fluoridation established pursuant to this section and Section 116410. (g) Costs, other than capital costs, incurred in complying with this section and Section 116410, including regulations adopted pursuant to those sections, may be paid from federal grants, or donations from private foundations, for these purposes. Each public water system that will incur costs, other than capitalization costs, as a result of compliance with this section and Section 116410, shall provide an estimate to the department of the anticipated total annual operations and maintenance costs related to fluoridation treatment by January 1 of each year. (h) A public water system subject to the jurisdiction of the Public Utilities Commission shall be entitled to recover from its customers all of its capital and associated costs, and all of its operation and maintenance expenses associated with compliance with this section and Section 116410. The Public Utilities Commission shall approve rate increases for an owner or operator of a public water system that is subject to its jurisdiction within 45 days of the filing of an application or an advice letter, in accordance with the commission's requirements, showing in reasonable detail the amount of additional revenue required to recover the foregoing capital and associated costs, and operation and maintenance expenses.

+/- DeAryan v. Butler

California, Abuse of Municipal Authority, State police power

• Plaintiff
  C. Leon DeAryan
• Defendant
  John D. Butler as Mayor of the City of San Diego
• State
  California
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - State police power
• Citation
  119 Cal. App. 2d 674; 260 P.2d 98 (Cal. Dist. Ct. App. 1953)
• Year
  1953-00-00T00:00:00
• Court Name
  Court of Appeal of California, Fourth Appellate District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  4527
• Opinion Judges
  Griffin J, Barnard PJ, Mussell J
• Opinion Text
  GRIFFIN, Justice. Plaintiff and appellant individually, as taxpayer and elector, and in a claimed representative capacity, filed an action to enjoin the Mayor, City Council, and other City officials from adding a fluoride compound, in an amount sufficient to maintain one part of fluoride per one million parts of water to the water furnished to the consumers of water in the City of San Diego. The action arose out of the adoption of a resolution of the City Council on October 30, 1951, as pleaded in the petition, reciting in part that: ‘Whereas, the San Diego County Medical Society, the San Diego County Dental Society, the Board of Directors and the Health Division of the Community Walfare Council, the Health Division of the Ninth District Congress of Parents and Teachers, and the Public Health Commission of The City of San Diego have recommended to this Council that it will be directly in the interests of the health of the people of The City of San Diego to furnish to water consumers in said City water which has been treated by adding to its contents fluorides, and that this Council should endorse the principle of artificial fluoridation with respect to the supplying of water to the people of The City of San Diego; and ‘Whereas, this Council is of the opinion that such recommendation should be followed, and that it will be in the interests of the public health and the dental health of the residents of San Diego and the water consumers of said City to treat the water served to consumers within said City by adding to it an approved fluoride compound * * *; Now, Therefore, ‘Be It Resolved * * * ‘That the City Manager be, and he is hereby authorized and directed to apply to the State Board of Health for an amendment of the water permit of said City to allow said City’ so to do. A temporary restraining order was issued. At the hearing it was stipulated that such a resolution, as worded, was adopted after receiving testimony ‘that the fluoridation of water will primarily act as a caries-preventive on children up to about the age of twelve years, and that said Resolution * * * was adopted by the Council primarily in the interest of the public health of said children up to about the twelfth year of age; * * * that pursuant to said Resolution * * * City Manager * * * did apply for and receive from the State of California Department of Public Health, pursuant to sections 4011-4038, inclusive, of the California Health and Safety Code, a permit to add fluoride compounds to all the water being served in The City of San Diego.’ Thereafter, plaintiff offered certain exhibits and reports in evidence and produced certain witnesses who testified generally concerning the artificial fluoridation of water intended for human consumption, and as to its probable beneficial or detrimental effects in so using it. The Sanitary Engineer for the City Water Department (appearing in his individual capacity) testified that although he was not qualified to testify as to the actual biochemistry of fluorides in the human body, he did know there were ‘two sides' to the question as to the detrimental or beneficial effect of fluoridation of water for human consumption. This study was based on such reports as those of the National Research Council, Division of Medical Sciences, pertaining to the Ad Hoc Committee on Fluoridation of Water Supplies, which commission was headed by Dr. Kenneth S. Maxcy, of Johns Hopkins University. He pointed out from the conclusions of that report, with which he said he agreed, that ‘The upper level of safety has been reached in the northern part of the United States in domestic water supplies containing approximately 1.0 to 1.5 p. p. m. fluorine, in the southern part of the country approximately 0.7 p. p. m.’; and that in his opinion the city of San Diego, ‘climatically would be in the lowest tolerance group in the United States'; that of its 375,000 inhabitants now being served by the City Water Department, about 25 per cent are of the age of 12 years or under; that the cost of the equipment and to run the contemplated program provided in the ordinance for the first six months would be $35,000, and in the subsequent years this would cost about $35,000 per year; that only about one-half of one per cent of the public water supply output is used for cooking and drinking; that if one starts out with one part per million concentration and boils one-half of it away he will end up with two parts per million, and if he boils another one-half away he will end up with four parts per million; that in such cases, although not necessarily dangerous ‘could possibly’, or would probably, cause parents of children some concern and ‘perhaps involve the City’, and that ‘moderate fluorosis is a probability’. Another witness testified that he operated a health food store and had studied nutrition for over twenty years; that he had studied pamphlets prepared by universities, doctors and chemists on the subject, and that they state that ‘sodium fluoride, such as used in our drinking water, is a toxic and poisonous chemical’, and that fluoridation of water harms the human system more than it helps it. Another witness, a graduate of West Coast Chiropractic College, testified he made a study of chemistry there; that he agreed with Taber's Cyclopedic Medical Dictionary defining sodium fluoride, as being a manufactured product, a ‘White crystalline power, saline in taste * * * Action and Uses: Epilepsy, tuberculosis, and malaria * * * Commercially, in etching glassware, for eradication of rats, insects, ants, and other pests, or as a food preservative’; that in his opinion it would not help in building up children's teeth; that when it came in contact with the stomach juices it would turn into hydrochloric acid, a substance used to etch glass; and that in his opinion it would, as to a certain class of people, have a cumulative effect and would injure organs of the human body. He admitted that current surveys made by the U. S. Public Health Service indicate a great difference of opinion as to the cumulative effect on the organs and as to what concentrations are necessary to produce the effects above noted; that a San Diego County Medical Society bulletin indicates that more than 140 cities have adopted fluoridation of water supplies; that it states that the councils are unaware of any evidence that fluoridation of water supplies, up to a concentration of one part per million, would lead to structural damage in the bones; that the only difficulty so far revealed is the possible increase in the mottling of the teeth enamel, but the use of it is safe. He did not agree in toto with them. He stated that he heard some of the arguments, pro and con, at a hearing before the City Council on the advisability of adopting the plan, but did not participate in the arguments. Several dissertations by so-called experts on the subject, which involved tests claimed to have been made, were admitted in evidence, which reports resulted in the conclusion that sodium fluoride has a cumulative effect on the human body, and is harmful to anyone's teeth, regardless of his age, and that the fluorine content of the water supply should never be more than one-half part per million. These opinions were published in 1945, 1946, and 1949. Petitioner offered in evidence a copy of a proposed bill to the State Legislature which in substance specifically authorized public and private utilities to treat water intended for public consumption and to introduce into it fluorine, if done under a permit in connection therewith. It also provided for exemption to municipalities, etc. for any damage that might result therefrom. A resolution of the Southern California Water Works was received in evidence, without objection. It recites generally that it had made a painstaking investigation of the subject and that it was not ‘convinced’ that the medical benefits or detriments, the legal responsibility of the distributors, and the economic aspects of such treatment have been sufficiently explored to warrant the general and unrestricted application of fluorine to domestic supplies. It was agreed at the trial that the reports here in evidence were a part of the matters submitted and considered by the city council at the time of the hearing before it. Some of these reports contained the opinions and resolutions of the board of directors of the American Water Works Association, adopted at a convention in Illinois in 1949, covering fluoridation of public water supplies. It is to the effect that ‘in communities where strong public demand has been developed, and the procedure has the full approval of the local medical and dental societies, the local and state health authorities, and others responsible for the communal health, water departments or companies may properly participate in a program of fluoridation of public water supplies'; that ‘The water works man is not in a technical position to recommend fluoridation. Such recommendations are the prerogative of the dental, medical and public health groups. The association has stated, however, that the water works industry is willing and ready to follow through when the proper authorities recommend or approve the treatment.’ The recommendations of the board of directors of the San Diego County Dental Society, in evidence, show that it went ‘on record approving fluoridation of the ‘communal water supplies' in the San Diego water system after consultation with a three-man committee from the San Diego County Medical Society was recommended one part per million of floride.’ A similar letter from the counsel of San Diego County Medical Society was received in evidence. The testimony of other witnesses was to the effect that mass fluoridation of a water system would be dangerous to health; that it might be conceded that use of fluoride can cause a decrease in the existence of dental caries, although there are ‘responsible authorities' on each side of the question. After presentation of this summarized evidence defendant's motion for a nonsuit was granted. Plaintiff appealed from an order based thereon. It is contended on this appeal that the trial court erred in granting a nonsuit when the evidence presented by petitioner, under the pleadings, presented a prima facie case for relief. In disposing of the question we must first look to plaintiff's petition in which he alleges the claimed grounds for the issuance of the injunction. They are first, that the resolution pleaded ‘exceeds the authority granted the city council’ by its charter and the ‘Health and Safety Code.’ Sections 100 and 101 of that code have made the State Board of Public Health a part of the Department of Public Health, and it has power to formulate policies affecting public health, and to adopt, promulgate, repeal and amend rules and regulations consistent with law for the protection of the public health. Its membership must be composed of six licensed and practicing physicians of this state and one licensed and practicing dentist. The Director of Public Health must be fully qualified in this field. Sections 101 and 107. Sections 4011 and 4011.5 thereof prohibit any person from furnishing water for domestic purposes without first applying for and receiving a permit so to do from the State Board of Public Health, and provide for the modification of, addition to, or change in the source of supply or method of treatment of water for domestic purposes. Section 4021 then allows the Board to determine whether the water thus distributed is ‘pure, wholesome, and potable and does not endanger the lives or health of human beings', and when it so determines it shall grant such a permit. Such a permit was issued in the instant case. It therefore is apparent that the legislature has delegated to the State Board of Public Health the duty and powers necessary to control and regulate the purity, potability and wholesomeness of public waters in this state. The legislature is possessed of the entire police power of the State, except as its power is limited by the provisions of the Constitution and other laws applicable thereto. Such police power is an indispensable prerogative of sover-eignty and may not be legally limited even though at times its operation may seem harsh, so long as it is not unreasonable and arbitrarily invoked and applied. Justesen's Food Stores, Inc., v. City of Tulare, 12 Cal.2d 324, 329, 84 P.2d 140. Section 4031 thereof makes it unlawful for any person to furnish or supply to a user water used or intended to be used for human consumption or for domestic purposes which is impure, unwholesome, unpotable, polluted, or dangerous to health. The standards set by this section are the same as those set forth in section 4021. These are only statutory regulations as to the quality of water to be furnished to consumers in this state, and the State Board of Public Health has made a finding that the water to be furnished under the fluoridation program does comply with these statutory standards. It therefore appears that the City Council did not exceed the authority granted it under the Health and Safety Code. It is within the authority of a city to adopt regulations designed to promote the health and welfare of the people. Sections 6 and 11, Article XI, Constitution of California; Boyd v. City of Sierra Madre, 41 Cal.App. 520, 183 P. 230; Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479. Section 1 of the City Charter of San Diego grants authority to the City of San Diego to exercise such municipal powers as are authorized to be granted to municipal corporations by the Constitution and laws of this State. See Section 11, Art. XI, Constitution of California. We therefore conclude that the addition of fluoride to the water supply, as directed by resolution of the City Council, was a valid exercise of the police power of the City of San Diego, so long as it was not unreasonable or an abuse of discretion so to do. Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 30 S.Ct. 301, 54 L.Ed. 515; Roussey v. City of Burlingame, 100 Cal.App.2d 321, 223 P.2d 517. The determination by the legislative body that a particular regulation is necessary for the protection or preservation of health is conclusive on the courts except only to the limitation that it must be a reasonable determination, not an abuse of discretion, and must not infringe rights secured by the Constitution. Powell v. Commonwealth of Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; In re Lowenthal, 92 Cal.App. 200, 267 P. 886. It is to be noted that there is no allegation in the petition that the City Council of the City of San Diego abused its discretion, or that the determination made by it was unreasonable. Accordingly, the evidence to which petitioner points may not be considered in determining this fact. Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752. The only possible question remaining is whether or not the fluoridation of the water supply, under the evidence produced, was a plain, palpable invasion of the rights secured by fundamental law. In this connection it is alleged that the ‘Resolution introduces the thin end of the wedge of Socialized Medicine in violation of the Tenth Amendment to the U. S. Constitution, which reserves to the people the immunity of person’; that the ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ The argument in this connection is that this State, through its legislature, has declared its policy in reference to matters of religious objection to medical treatment, citing Section 21003 of the Health and Safety Code; First Amendment to the Constitution of the United States; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; and Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; that the State, through its legislature, has only permitted fluoridation of privately sold waters, Section 26470.5 Health and Safety Code, leaving to the consumers a choice which is denied them by the instant resolution; that in refusing to pass the proffered legislation above mentioned, the legislature has, in effect, refused such fluoridation as a public policy; that the consumers contracted for a particular water, and the substitute here made breaches that contract; that petitioner's independent right to life and liberty secured by the Fourteenth Amendment to the United States Constitution has been violated, citing Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A.,N.S., 923; and that accordingly, even under a general grant of power, a municipality cannot adopt ordinances which are unconstitutional or inconsistent with the public policy of the state, as declared in its legislation, citing 5 McQuillin, Municipal Corporations, p. 100, Sec. 15.21; 7 McQuillin, Municipal Corporations, p. 51, Sec. 24.222; 6 McQuillin, Municipal Corporations, p. 126, Sec. 20.51; Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. It does not clearly appear from the evidence produced that the ordinance is a plain, palpable invasion of the rights secured to petitioner by the fundamental law, nor does it appear that it violates any policy or laws of the State of California or that by reason of the facts established the ordinance is in the respects indicated unconstitutional. The matter was one within the sound discretion of the City Council. Failure of the legislature to pass any particular measure is not conclusive evidence of its policy on the subject especially where, as here, the bill as proposed contained a provision granting immunity from liability in case of damage suits arising from the addition of fluoridation to water supplies. By the granting of the authority to the State Board of Health to issue a permit under the conditions stated, the legislature has delegated to that board the duty to determine whether the water to be used is pure, wholesome and not dangerous to life and health and its authority cannot, in this proceeding, be questioned. 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. It is true, as pointed out by appellant, that a motion for a nonsuit assumes as true every fact which the evidence, and presumptions fairly deducible therefrom, tend to prove, and on such motion the evidence must be taken most strongly against the defendant, and constradictory evidence must be disregarded. Since the petition does not allege and the facts established do not show that the City Council acted arbitrarily or abused its discretion, the court could acquire no jurisdiction to substitute its discretion for that of the determining body. It here affirmatively appears that a hearing was had before the City Council and practically all of the contentions here made as to the advisability of fluoridation of the City waters, was considered by that body, and it made the determination indicated by the resolution. Since the City Council had jurisdiction to act and make such a determination, and such determination being neither unreasonable nor an abuse of discretion, the trial court properly determined that it was unauthorized to review the advisability of such determination by the City Council, and an order for an injunction predicated on such a ground could not be sustained. Upon the showing made before the City Council it might well have determined that it was not advisable to fluoridate the City waters. However, this was a matter for the determination by that body and the court's judgment could not be substituted for that of the City Council. The City Council still retains the right to abandon the project if, at any time, it may so determine. Likewise, a remedy by petition to that body for the repeal of the resolution or submission of the matter of its repeal to the electorate is provided. Section 23, Charter of the City of San Diego, Stats.1931, p. 2838, at p. 2858, as amended, Stats. 1941, Chap. 78, p. 3429, at p. 3434. Order affirmed. BARNARD, P. J., and MUSSELL, J., concur. Hearing denied; EDMONDS, J., dissenting.

+/- Hughes v. City of Lincoln

California, Abuse of Municipal Authority, State police power, Petitions Initiatives & Re-votes

• Plaintiff
  D Beverly Hughes
• Defendant
  City of Lincoln
• State
  California
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - State police power

  - Petitions Initiatives & Re-votes
• Citation
  232 Cal. App. 2d 741; 43 Cal. Rptr. 306 (Cal. Ct. App. 1965)
• Year
  1965-00-00T00:00:00
• Court Name
  Court of Appeal of California, Third Appellate District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  10927
• Opinion Judges
  Friedman J, Pierce PJ, Van Dyke J concurred
• Opinion Text
  FRIEDMAN, J. On July 10, 1962, the City Council of the City of Lincoln adopted a resolution directing fluoridation of the municipal water supply, subject to the approval of the State Board of Public Health. A group of electors circulated a petition proposing an initiative ordinance to prohibit addition of fluorides to the city's public water supply. On September 15, 1963, the city clerk submitted the petition to the council with a certificate showing that it was signed by more than 15 per cent of the municipal voters. When a proposed initiative ordinance bearing that percentage of signatures is presented to the city council, the law requires it either to adopt the ordinance or immediately call a special election for its submission to the voters. (Elec. Code, § 4011.) The Lincoln city council refused to take either step. Several electors then filed this mandate action to force the city council to submit the proposed ordinance to election. After a hearing the lower court issued a peremptory writ and the city appeals. Essentially, the city's position may be described as follows: An ordinance proposed by initiative must be one that the city council could itself enact; the Legislature has adopted a comprehensive scheme entrusting control of domestic water supplies to the State Department of Public Health, as a result of which a municipal decision to fluoridate becomes an administrative rather than legislative act, hence not subject to the initiative power of the municipal electors. We reject this position. The courts have evolved various tests for ascertaining the scope of the initiative and referendum powers in their application to counties and cities. These powers apply to county and city measures which are legislative in character. ( Johnston v. City of Claremont, 49 Cal.2d 826, 834 [ 323 P.2d 71]; Hopping v. Council of City of Richmond, 170 Cal. 605, 611 [ 150 P. 977]; Reagan v. City of Sausalito, 210 Cal.App.2d 618, 621 [ 26 Cal.Rptr. 775]; Martin v. Smith, 184 Cal.App.2d 571, 575 [ 7 Cal.Rptr. 725].) They do not extend to executive or administrative actions of the local legislative body. ( Simpson v. Hite, 36 Cal.2d 125, 129 [ 222 P.2d 225]; Housing Authority v. Superior Court, 35 Cal.2d 550, 558 [ 219 P.2d 457]; Chase v. Kalber, 28 Cal.App. 561, 568, et seq. [ 153 P. 397].) The vague legislative-administrative dichotomy has been crystallized to some extent in the oft-quoted formulation in McKevitt v. City of Sacramento, 55 Cal.App. 117, 124 [ 203 P. 132]: “Acts constituting a declaration of public purpose, and making provision for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative power. Acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence.” ( Reagan v. City of Sausalito, supra, 210 Cal.App.2d at pp. 621-622; Fletcher v. Porter, 203 Cal.App.2d 313, 321 [ 21 Cal.Rptr. 452]; Martin v. Smith, supra, 184 Cal.App.2d at p. 575; see also 5 McQuillin on Municipal Corporations (3d ed.) pp. 255-256; Comment, Limitations on Initiative and Referendum, 3 Stan.L.Rev. 497, 502-504.) A second test is superimposed upon the first when the local proposal deals with a subject affected by state policy and state law. If the subject is one of statewide concern in which the Legislature has delegated decision-making power, not to the local electors, but to the local council or board as the state's designated agent for local implementation of state policy, the action receives an “administrative” characterization, hence is outside the scope of the initiative and referendum. ( Simpson v. Hite, supra, 36 Cal.2d at p. 131; Riedman v. Brison, 217 Cal. 383, 387-388 [ 18 P.2d 947]; Mervynne v. Acker, 189 Cal.App.2d 558, 562, 565 [ 11 Cal.Rptr. 340]; Alexander v. Mitchell, 119 Cal.App.2d 816, 826 [ 260 P.2d 261].) “When the sole basis for a determination is whether a certain 'contingent effect' exists to warrant local application of state legislation, the exercise of that narrow authority is an administrative act and not a legislative one.” ( Housing Authority v. Superior Court, supra, 35 Cal.2d at p. 558; Andrews v. City of San Bernardino, 175 Cal.App.2d 459, 462 [ 346 P.2d 457].) On the other hand, the matter may be one of local rather than statewide concern. In that case a local decision which is intrinsically legislative retains that character even in the presence of a state law authorizing or setting limits on the particular field of action. ( Reagan v. City of Sausalito, supra, 210 Cal.App.2d at pp. 625-628; Fletcher v. Porter, supra, 203 Cal.App.2d at pp. 318-319; Mefford v. City of Tulare, 102 Cal.App.2d 919, 923-924 [ 228 P.2d 847].) If the proposal is an exercise of police power directly delegated to counties and cities by article XI, section 11, of the State Constitution, then it is likely to constitute an act of legislation rather than administration. (See Dwyer v. City Council of City of Berkeley, 200 Cal. 505, 511-512 [ 253 P. 932].) A third test has been formulated to delineate scope of the initiative power, as distinguished from the referendum: It is well recognized that “an ordinance proposed by the electors of a county or of a city in this state under the initiative law must constitute such legislation as the legislative body of such county or city has the power to enact under the law granting, defining and limiting the power of such body.” ( Hurst v. City of Burlingame, 207 Cal. 134, 140 [ 277 P. 308], and quoted in Blotter v. Farrell, 42 Cal.2d 804, 810 [ 270 P.2d 481].) The operation of public water systems by chartered cities has been characterized as a “municipal affair” rather than a matter of statewide concern. ( City of South Pasadena v. Pasadena Land etc. Co., 152 Cal. 579, 593-594 [ 93 P. 490]; Mefford v. City of Tulare, supra, 102 Cal.App.2d at p. 924.) Nonchartered cities such as Lincoln are authorized by state law to acquire and operate domestic water supply facilities. The authorizing statutes (Gov. Code, §§ 38730, 38742) are very general and evince no intent to exclude local autonomy in the administration of municipal water systems. In California, as in other states, the action of city councils directing fluoridation of municipal water supplies is regarded as an exercise of the local police power. ( DeAryan v. Butler, 119 Cal.App.2d 674, 681-682 [ 260 P.2d 98], cert. den. 347 U.S. 1012 [74 S.Ct. 863, 98 L.Ed. 1135]; Schuringa v. City of Chicago, 30 Ill.2d 504 [198 N.E.2d 326]; Wilson v. City of Council Bluffs, 253 Iowa 162 [110 N.W.2d 569]; Readey v. St. Louis County Water Co. (Mo.) 352 S.W.2d 622; see Note 43 A.L.R.2d 453; Dietz, Fluoridation and Domestic Water Supplies in California, 4 Hast.L.J. 1; Nichols, Freedom of Religion and the Water Supply, 32 So.Cal.L.Rev. 158; Notes, 12 Am.U.L.Rev. 97; 38 Notre Dame Law. 71; 24 Md.L.Rev. 353.) In recent years fluoridation of public water supplies as a means of reducing the incidence of dental caries among children has been the subject of widespread and heated controversy. Strenuously advocated by the dental and medical experts, it is widely opposed upon a variety of religious, political and scientific grounds. The debate has been heavily annotated and we need not restate easily available references. Many are collected in Dietz, op. cit., and in 38 Notre Dame Lawyer 71, et seq. The traditional goals of water treatment are purity and potability. Fluoridation-aside from claims of merit or demerit-seeks a different goal, medication of public water supplies for a therapeutic purpose. In meeting its responsibility for local health and safety, a city legislative body may decide that the traditional, accepted goals of water treatment are enough. Alternatively, it may decide to fluoridate, thus aiming for the relatively new and relatively controversial goal of preventive dental therapy. In a real sense, such a decision is one “constituting a declaration of public purpose, and making provision for ways and means of its accomplishment ....” ( McKevitt v. City of Sacramento, supra, 55 Cal.App. at p. 124.) Intrinsically therefore, as well as in its police power origin, the decision to fluoridate is legislative rather than administrative. This view was adopted by the Supreme Court of Missouri in State ex rel. Whittington v. Strahm (Mo.) 374 S.W.2d 127. There the court upheld a referendum against a municipal ordinance clothed as a routine appropriation for the purchase of fluoridation equipment for the city water plant. Noting that the addition of fluoride went beyond the established policy of adding chemicals for purification, the court held that the decision to fluoridate was legislative. (See also discussion in 43 A.L.R.2d at pp. 453-454.) Contrary to the position taken by the city of Lincoln, the statutory scheme empowering the State Board of Public Health to approve or disapprove methods of water treatment does not transmute the city council into an administrative agent of state policy. The Health and Safety Code requires municipal and other suppliers of water for domestic purposes to secure permits from the state board. (§ 4011.) Methods of water treatment pursuant to an existing permit may not be changed without application for and receipt of an amended permit. (§ 4011.5.) Permit applications must be accompanied by plans and specifications showing all the sanitary and health conditions affecting the system. (§ 4012.) If the state board determines, it may require an applicant or permit holder to make changes necessary to ensure that the water shall be “pure, wholesome, and potable.” (§§ 4016-4019.) Upon finding that the water is pure, wholesome and potable, the board shall grant a permit. (§ 4021.) A permit may be rejected or suspended if the board finds that the permittee is supplying impure, unpotable or health- endangering water. (§ 4022.) It is unlawful to furnish water for human consumption or domestic purposes which is impure, unwholesome, unpotable, polluted or dangerous to health. (§ 4031.) These statutes, constituting the only statutory regulation of the quality of water for human consumption, are aimed at the objectives of safety and potability. ( DeAryan v. Butler, supra, 119 Cal.App.2d at p. 681.) Essentially, they cast the state board in the role of a censor upon local decisions. Within the relatively wide latitude permitted by health and potability standards, proposals for treatment or changes in treatment originate with the municipal water supplier, not with the state. Section 4021, in mandatory terms, requires that a permit be granted if the board makes a finding of purity and potability, demonstrating a design to promote rather than destroy local autonomy over treatment methods up to the point where purity and potability are threatened. This statutory plan does not incorporate any standard dealing with the fortification of water for therapeutic purposes. To be sure, the addition of fluoride to public water, or the cessation of fluoridation under an existing permit, may be accomplished only with permission of the state board. This permission, however, does not turn on the protection of dental health. If the state board finds that the initiation of fluoride treatment will not affect the purity, potability or safety of the water, section 4021 demands that a permit be issued. If the board finds that cessation of fluoride treatment will not make the water impure, unpotable or dangerous, it must permit cessation. This scheme of statutory regulation does not express any state policy, one way or the other, on fluoridation as a therapeutic measure. Instead, it is focused on the orthodox “pre-fluoridation” goals of water treatment. Thus, in deciding whether or not to fluoridate, a city council acts as the legislative exponent of local policy, not as the administrative instrumentality of state policy. The scheme of state legislation does not affect the intrinsically legislative character of a decision for or against fluoridation of municipal water supplies. On December 4, 1963, the State Board of Public Health issued an amended permit to the city of Lincoln for a program of water treatment including fluoridation. We take judicial notice of that action. (Code Civ. Proc., § 1875, subd. 3.) The proposed initiative ordinance would prohibit the method of treatment now allowed by the state permit. State law, however, prevents modification of the city's treatment method without a further amendment of its permit. (Health & Saf. Code, § 4011.5.) Adverting to the pronouncement that an initiative ordinance must constitute such legislation as the council itself has power to pass, the city now urges that the city council would not have power to decree cessation of fluoridation without a state permit, ergo the voters possess no greater power. The argument comes close to an assertion that a council decision to fluoridate, once implemented, may not be reversed by the very council which made it. As we have held, the proposed initiative ordinance would operate in an area of local concern only partially occupied by state law. (Cf. In re Lane, 58 Cal.2d 99 [ 22 Cal.Rptr. 857, 372 P.2d 897].) It may be enforced, of course, only if it is “not in conflict with general laws.” (Cal. Const., art. XI, § 11; Simpson v. City of Los Angeles, 40 Cal.2d 271, 278 [ 253 P.2d 464].) The fallacy of the city's argument is its assumption of a nonexistent conflict. If adopted by the electors, the initiative ordinance will receive an interpretation which confers validity rather than one which results in nullity. (Civ. Code, § 3541; Brooks v. Stewart, 97 Cal.App.2d 385, 390 [ 218 P.2d 56]; 6 McQuillin on Municipal Corporations (3d ed.) pp. 122-123.) Unless such a construction will defeat its apparent purpose, it is to be construed in harmony with applicable provisions of state law. (6 McQuillin, op. cit., p. 101.) Upon adoption of the ordinance the state permit law would become one of its implicit conditions, contemplating the city's application to the State Board of Public Health for an amended permit and termination of fluoridation upon issuance of a permit approving termination. Judgment affirmed. Pierce, P. J., and Van Dyke, J., ^FN* concurred. FN* Retired Presiding Justice of the District Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

+/- Hartwell Corp. v. Ventura County

California, Preemption, Abuse of Municipal Authority

• Plaintiff
  Hartwell Corporation
• Defendant
  The Superior Court of Ventura County
• State
  California
• Other Parties
  Kristin Santamaria
• Case Tags
  - Preemption

  - Abuse of Municipal Authority
• Citation
  27 Cal. 4th 256; 38 P.3d 1098 (Cal. S.Ct. 2002)
• Year
  2002-00-00T00:00:00
• Court Name
  Supreme Court of California
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  S082782
• Opinion Judges
  Chin J, George CJ, Kennard, Baxter, Brown, Moreno JJ, concurring. Concurring opinion by Kline J
• Opinion Text
  CHIN, J. Plaintiffs, residents of the San Gabriel Valley in Southern California, filed lawsuits in superior court, alleging, inter alia, that certain water companies provided them unsafe drinking water causing death, personal injury, and property damage. Public Utilities Code section 1759, ^FN1 however, precludes superior court jurisdiction to review any order or decision of the California Public Utilities Commission (PUC) or to interfere with the PUC in the performance of its official duties. We granted review in this case to determine whether section 1759 bars the superior court actions. As explained below, we conclude that the PUC's regulation of water quality and safety does not preempt damage claims alleging violations of federal and state drinking water standards against the water providers subject to PUC regulation, but that the remaining claims against those water providers are preempted. We further conclude that the causes of action against those defendants not subject to PUC regulation are not barred. FN1. Unless stated otherwise, all statutory references are to the Public Utilities Code. PROCEDURAL HISTORY A. Superior Court Actions 1. Adler, Celi and Boswell Actions Three groups of plaintiffs, Jeff Adler and over 100 coplaintiffs, Loretta Celi and about 20 other plaintiffs, and Christine Boswell and 13 other plaintiffs, each filed separate actions for damages in the Los Angeles County Superior Court. The Adler complaint named as defendants Southern California Water Company, California American Water Company, and eight corporate parties that are not water providers or regulated by the PUC (hereafter referred to as industrial defendants). The Celi complaint named as defendants San Gabriel Valley Water Company and the same eight industrial defendants. The Boswell complaint named as defendants Suburban Water Systems, Southwest Water Company, Covina Irrigating Company, California Domestic Water Company, and the same industrial defendants named in the Adler and Celi complaints. Southern California Water Company, California American Water Company, San Gabriel Valley Water Company, Suburban Water Systems, and Southwest Water Company are water providers subject to PUC regulation (hereafter referred to as regulated utilities). Covina Irrigating Company and California Domestic Water Company are public water districts and mutual water companies not subject to PUC regulation (hereafter referred to as nonregulated water providers). The complaints sought damages based on causes of action for negligence, strict liability, trespass, public and private nuisance, and fraudulent concealment. Some plaintiffs also sued for wrongful death. These causes of action were based on the following allegations: that defendant water companies had provided the contaminated well water to plaintiffs, longtime residents of the San Gabriel Valley, over a period of years; that the water contaminants included trichloroethylene, perchloroethene, carbon tetrachloride, and perchlorates; and that as a result, plaintiffs suffered physical and mental pain and suffering, including fear of cancer, and property damage. The complaints further alleged that the industrial defendants disposed of toxic substances in the ground. 2. Santamaria Action Kristin Santamaria and some 300 coplaintiffs filed a separate action in Los Angeles County against many of the same defendants. The complaint named additional industrial defendants, as well as nonregulated water providers Valley County Water District and San Gabriel County Municipal Water District. In addition to the same causes of action contained in the Adler, Boswell and Celi complaints, the Santamaria complaint alleged conspiracy, battery, and nine causes of action for unfair business practices based on the same kinds of conduct and toxic substances in the drinking water as alleged in the other lawsuits. The Santamaria plaintiffs prayed for damages, as well as injunctions against disposing toxic materials, supplying contaminated water, and engaging in unlawful business practices. They also sought medical monitoring, a constructive trust against defendants' property to pay for plaintiffs' injuries, and an order compelling defendants to disgorge profits and restore money acquired through unlawful business practices. The court changed the venue of the Santamaria action to Ventura County on motion of several defendants. B. PUC Investigation In response to the lawsuits filed against the regulated water utilities, the PUC filed an order instituting an investigation on March 12, 1998. (Cal.P.U.C. Order Instituting Investigation No. 98-03-013 (Mar. 12, 1998) [1998 Cal.P.U.C. Lexis 73].) Concerned that the complaints “raise public concerns over the safety of the drinking water supplies of these utilities,” (id., 1998 Cal.P.U.C. Lexis 73 at p. 2) the PUC instituted “a full-scale investigation” (id., 1998 Cal.P.U.C. Lexis 73 at p. 3) to determine (1) whether current drinking water standards adequately protect the public health and safety; (2) whether the regulated water utilities have complied with those standards; (3) what remedies should apply for noncompliance with safe drinking water standards; and (4) whether the occurrence of temporary excursions of contaminant levels above regulatory thresholds are acceptable “taking into consideration economic, technological, and public health and safety issues, and compliance with Public Utilities Code Section 770.” (Cal.P.U.C. Order No. 98-03-013, supra, 1998 Cal.P.U.C. Lexis 73 at p. 10.) The PUC limited its investigation to the operations and practices of the named defendant public utilities and all other class A and class B public utility water companies,^FN2 which collectively serve over 90 percent of all public utility water customers in California. (Cal.P.U.C. Order No. 98-03-013, supra, 1998 Cal.P.U.C. Lexis 73 at p. 4.) FN2. Class A utilities are those with more than 10,000 service connections. Class B utilities have more than 2,000 connections. (Cal.P.U.C. Final Opinion Resolving Substantive Water Quality Issues (Nov. 2, 2000) Dec. No. 00-11-014 [2000 Cal.P.U.C. Lexis 722, 1, fn. 1].) Plaintiffs in all four actions intervened in the PUC's investigation. They moved to dismiss or limit the investigation, on the ground the PUC lacked subject matter jurisdiction over the quality of drinking water service provided by regulated utilities. On June 10, 1999, the PUC issued an interim opinion denying plaintiffs' motion. (Cal.P.U.C. Interim Opinion Denying Motions Challenging Jurisdiction To Conduct Investigation 98-03-013 (June 10, 1999) Dec. No. 99-06-054 [1999 Cal.P.U.C. Lexis 312].) Rejecting plaintiffs' jurisdictional argument, the PUC found that it possessed authority to regulate the quality of the service and the drinking water that the water utilities provide, that it had exercised such authority for decades, and that it continued to do so. It determined that its jurisdictional decision was final and thus subject to rehearing and appellate review. On September 16, 1999, the PUC denied plaintiffs' application for rehearing. (Cal.P.U.C. Order Modifying Decision 99-06-054 For Purposes of Clarification and Denying Rehearing (Sept. 16, 1999) Dec. No. 99-09-073 [1999 Cal.P.U.C. Lexis 594].) Plaintiffs did not seek review of the PUC's jurisdictional decision in this court under section 1756.^FN3 FN3. Plaintiffs withdrew as interveners after the PUC's denial of the motion to dismiss. (Cal.P.U.C. Final Opinion Resolving Motions to Compel Discovery and Motions to Withdraw From Proceeding (Nov. 21, 2000) Dec. No. 00-11-036.) The regulated water utilities, the California Department of Health Services (DHS), the water division staff of the PUC, and some of the industrial defendants in the lawsuits participated in the investigation. After 31 months of investigation and study, the PUC issued its “Final Opinion Resolving Substantive Water Quality Issues” on November 2, 2000. (Cal.P.U.C. Final Opinion Resolving Substantive Water Quality Issues, supra, Dec. No. 00-11-014 [2000 Cal.P.U.C. Lexis 722].) The PUC concluded that existing DHS drinking water quality standards adequately protect the public health and safety and that, over the past 25 years, the regulated utilities, including defendants in these lawsuits, had provided water that was “ ‘in no way harmful or dangerous to health’ ” and had satisfactorily complied with DHS drinking water quality requirements. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 39.) It also gave notice of its intention to initiate a future investigation or rulemaking proceeding to investigate specific water quality issues. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 777 at pp. 71, 73-74.) ^FN4 FN4. The Court of Appeal granted judicial notice of all proceedings before the PUC, including PUC Decision No. 99-06-054. However, the PUC's modification order and denial of rehearing, its final opinion resolving motions to compel discovery and to withdraw from proceeding, and its final opinion resolving the substantive water quality issues occurred after the filing of the Court of Appeal opinion. The regulated water providers request that we take judicial notice of the modification order and denial of rehearing and the final opinion resolving motions to compel discovery and to withdraw from proceedings. Several of the industrial defendants join the regulated water providers in requesting that we take judicial notice of the PUC's final opinion in its investigation. Because the subsequent PUC proceedings are a continuation of the PUC's investigation into water quality safety issues, we grant those requests. (Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 143-144, 39 Cal.Rptr. 332.) C. Superior Court and Court of Appeal Rulings In the meantime, in response to PUC Order No. 98-03-013 instituting an investigation of water quality safety, defendants in the four superior court actions sought dismissal on the ground that the litigation was barred by section 1759. In the alternative, certain defendants requested stays of the court proceedings pending the PUC's investigation. On June 24, 1998, the superior court in the Adler, Celi, and Boswell actions stayed all proceedings until the completion of the PUC's investigation. On August 27, 1998, the Ventura County Superior Court in the Santamaria action sustained the regulated utilities' demurrers without leave to amend, but overruled the demurrers of the nonregulated water providers and the industrial defendants and denied their motions for a stay of proceedings. The court later accepted a stipulation that the proceedings be stayed pending review by the Court of Appeal. Eight petitions for writs of mandate were filed in the Court of Appeal. The Adler, Celi, and Boswell plaintiffs and the regulated utility defendants filed petitions challenging the stay orders of the Los Angeles County Superior Court. In the Santamaria action, the nonregulated water providers and the industrial defendants filed petitions challenging Ventura County Superior Court's overruling of the demurrers and denial of the motions for a stay, while the plaintiffs appealed the order granting the demurrer of the regulated utility defendants. The Court of Appeal issued orders to show cause on the petitions and consolidated the appeal with the proceedings on all of the writs. On September 1, 1999, the Court of Appeal ruled that the PUC's statutory authority over water quality and its exercise of jurisdiction in addressing water quality issues preempted the four actions against the regulated utilities, but did not preempt the actions against the nonregulated water providers and the industrial defendants. Accordingly, it ruled that the Los Angeles County Superior Court in the Adler, Celi, and Boswell actions erred (1) in staying the proceedings instead of ruling on the merits of the preemption issue; (2) in failing to sustain the demurrers and grant the summary judgment motion of the regulated utilities; and (3) in failing to overrule the demurrers and deny the judgment on the pleadings of the nonregulated water providers and industrial defendants. It further upheld the Ventura County Superior Court's rulings in the Santamaria action in all respects. We granted the petitions for review filed by the Santamaria plaintiffs, and by the nonregulated water providers and the industrial defendants in all four lawsuits.^FN5 FN5. The Adler, Boswell, and Celi plaintiffs did not seek review. DISCUSSION “ ‘The [PUC] is a state agency of constitutional origin with far-reaching duties, functions and powers. (Cal. Const., art. XII, §§ 1-6.) The Constitution confers broad authority on the [PUC] to regulate utilities, including the power to fix rates, establish rules, hold various types of hearings, award reparation, and establish its own procedures. (Id., §§ 2, 4, 6.)’ ” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 914-915, 55 Cal.Rptr.2d 724, 920 P.2d 669 (Covalt).) In addition to those powers expressly conferred on the PUC, the California Constitution confers broad authority on the Legislature to regulate public utilities and to delegate regulatory functions to the PUC. (Cal. Const., art. XII, §§ 3, 5.) Consistent with these constitutional mandates, the Legislature has granted the PUC comprehensive jurisdiction to regulate the operation and safety of public utilities. (§§ 701, 761, 768, 770, subd. (a).) Section 701 authorizes the PUC to “supervise and regulate every public utility in the State and [to] do all things ... which are necessary and convenient in the exercise of such power and jurisdiction.” Section 702 commands every public utility to obey the PUC's orders, decisions, directions, or rules “in any way relating to or affecting its business as a public utility....” The California Constitution also confers plenary power on the Legislature to “establish the manner and scope of review of commission action in a court of record....” (Cal. Const., art. XII, § 5.) In the exercise of that power, the Legislature has chosen to limit the jurisdiction of judicial review of the PUC's decisions. Section 1759, subdivision (a), provides that: “No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court.” Defendants, which include the regulated and nonregulated water providers and the industrial defendants, contend that section 1759 precludes plaintiffs' actions in superior court. In response, plaintiffs argue that section 1759 is inapplicable and that section 2106 permits their lawsuit against the regulated utilities. Section 2106 provides in pertinent part: “Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, or any law of this State, or any other order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom.... An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.” In Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 114 Cal.Rptr. 753, 523 P.2d 1161 (Waters ), we concluded that “in order to resolve the potential conflict between sections 1759 and 2106, the latter section must be construed as limited to those situations in which an award of damages would not hinder or frustrate the [PUC's] declared supervisory and regulatory policies.” (Id. at p. 4, 114 Cal.Rptr. 753, 523 P.2d 1161.) There, the plaintiffs sued a telephone company in superior court for failing to furnish adequate telephone service. We noted that the PUC, in approving rates charged, had relied on a policy it adopted of limiting liability of telephone utilities for acts of ordinary negligence to a specified credit allowance as set forth in approved tariff schedules. We held that section 1759 barred the superior court action because damage awards would conflict with the PUC's policies and interfere with its regulation of telephone utilities. We again addressed the relationship between sections 1759 and 2106 in Covalt, supra, 13 Cal.4th 893, 55 Cal.Rptr.2d 724, 920 P.2d 669, in which the issue was whether section 1759 barred a superior court action for nuisance and property damage allegedly caused by electric and magnetic fields (EMF's) from power lines owned and operated by a public utility. (Covalt, supra, at p. 903, 55 Cal.Rptr.2d 724, 920 P.2d 669.) In applying section 1759, we used a three-part test: (1) whether the PUC had the authority to adopt a regulatory policy on whether EMF's are a public health risk and what steps the utilities should take, if any, to minimize the risk; (2) whether the PUC had exercised that authority; and (3) whether the superior court action would hinder or interfere with the PUC's exercise of regulatory authority with respect to EMF's. (Covalt, supra, at pp. 923, 926, 935, 55 Cal.Rptr.2d 724, 920 P.2d 669.) We found preemption after answering all three questions in the affirmative. Plaintiffs argue that Covalt 's three prongs have not been met in this case. They argue that the PUC lacks the authority to regulate water quality, that it has never exercised that authority until its recent investigation on water quality, and that the complaints in the lawsuits would not interfere with the PUC's exercise of regulatory authority. We reject plaintiffs' first two arguments, but agree that some of the damage claims would not interfere with any ongoing PUC regulatory program. A. Section 1759 Bars the Injunctive Relief Claims and Some of the Damage Claims Against the Regulated Water Providers 1. Background Information Since the enactment of the Public Utilities Act in 1911 (Stats.1911, Ex.Sess.1911, ch. 14, § 1, p. 18), the PUC has regulated public utility water companies. (See In re Application Southern California Mountain W. Co. (1912) 1 Cal.P.U.C. 841.) From 1912 to 1956, the PUC exercised its public health and safety authority over public utility water service on a case-by-case basis; it examined water quality issues and, where necessary, required water utilities to take specific actions to ensure safe drinking water and authorized rate recovery for the associated costs. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 30, fn. 18, 38.) On its own motion in 1955, the PUC initiated a comprehensive investigation to establish “uniform service standards and service rules applicable to all privately-owned, public utility water companies in the State of California.” (Re Adoption of Service Standards and Service Rules for Water Utilities (1956) 55 Cal.P.U.C. 56.) The proceeding resulted in the adoption of general order No. 103, which established uniform standards of water quality service for regulated utilities, including specific requirements for the source of water, operation of the water supply system, and water testing requirements. (Ibid.) General order No. 103, which has been amended during the intervening years, presently provides that “ ‘[a]ny utility serving water for human consumption or for domestic uses shall provide water that is wholesome, potable, in no way harmful or dangerous to health and, insofar as practicable, free from objectionable odors, taste, color, and turbidity.’ ” (Cited by Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 39-40.) It requires each utility to comply with the water quality standards of the DHS and the United States Environmental Protection Agency (EPA) and states that compliance with DHS regulations constitutes compliance with the PUC's rules, “ ‘except as otherwise ordered by the commission.’ ” ^FN6 (Id., 1999 Cal.P.U.C. Lexis 312 at p. 40.) FN6. Although general order No. 103 has been amended during the intervening years, the policy of requiring wholesome, potable, and healthful water and of adopting the DHS health standards has remained the same since its inception. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 39-40.) Until 1974, the PUC's authority to determine the appropriate standards for the water quality and service provided by public utility water systems was limited only by the statutory requirement that such standards be “just and reasonable” and “adequate and serviceable.” (§ 770; Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 44.) However, in 1974, Congress enacted the federal Safe Drinking Water Act (federal SDWA) (42 U.S.C. § 300f et seq.), which prohibits states from enacting drinking water laws less stringent than those established by the EPA. (42 U.S.C. § 300g.) “Congress occupied the field of public drinking water regulation with its enactment of the [federal] SDWA. ‘The purpose of the [federal SDWA] is to assure that water supply systems serving the public meet minimum national standards for protection of public health.’ [Citation.] With minor exceptions, the SDWA applies ‘to each public water system in each State.’ 42 U.S.C. § 300g.... [A]lthough the primary responsibility for enforcement remains with the States, the Administrator is empowered to enforce State compliance. Id. §§ 300g-2, 300g-3.” (Mattoon v. City of Pittsfield (1st Cir.1992) 980 F.2d 1, 4.) Accordingly, the federal SDWA grants states primary authority to implement the provisions of the federal standards and allows states to set stricter water quality standards than those of the federal government. (42 U.S.C. § 300g-2(a); see 42 U.S.C. § 300g-1(b).) Although the federal SDWA preempts federal common law nuisance actions (Mattoon v. City of Pittsfield, supra, 980 F.2d at p. 4), state common law is not preempted. (United States v. Hooker Chemical & Plastics Corp. (W.D.N.Y.1985) 607 F.Supp. 1052, 1055, fn. 3.) In 1976, the Legislature enacted the state Safe Drinking Water Act (state SDWA). (Stats.1976, ch. 1087, § 2.5, pp. 4918-4929, adding Health & Saf.Code, former § 4010 et seq., currently codified at Health & Saf.Code, § 116275 et seq.) When the Legislature enacted the state SDWA, it assumed the primary authority to administer the federal act. The state SDWA, administered by the DHS, 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. (Health & Saf.Code, §§ 116270, subd. (f), 116325.) The Court of Appeal below described the state SDWA. “ Paredes v. County of Fresno (1988) 203 Cal.App.3d 1 [249 Cal.Rptr. 593] (Paredes ) described in some detail the California SDWA, in addressing the regulation of water contaminated with DBCP, a toxic substance not specifically in issue in our case. ‘The California Legislature has declared water delivered by public water systems in this state should be at all times pure, wholesome, and potable. It has adopted procedures to be followed in an effort to accomplish this objective in [Health and Safety Code] sections 4010.1 through 4039.5. ( [Health & Saf.Code,] § 4010.) These sections [which have since been amended and moved to Health and Safety Code sections 116275 through 117130 (Stats.1995, ch. 415, § 6)] describe the permit process for the operation of a public water system ( [Health & Saf.Code,] art. 1, §§ 4011-4022), the regulation of the quality of the water supply of a public water system ( [id.,] art. 2, §§ 4023.5-4030.7), violations ( [id.,] art. 3, § 4031), remedies ( [id.,] art. 4, §§ 4032-4036.5), judicial review ( [id.,] art. 4.5, § 4037), and applicable crimes and penalties ( [id.,] art. 5, §§ 4037.5-4039.5). “ ‘Any person who operates a public water system must: comply with primary and secondary drinking water standards; ensure the system will not be subject to backflow under normal operating conditions; and provide a reliable and adequate supply of pure, wholesome, healthful, and potable water. ( [Health & Saf.Code,] § 4017.) Primary drinking water standards specify maximum levels of contaminants, which, in the judgment of the DHS director, may have an adverse effect on the health of persons. ( [Id.,] § 4010.1, subd. (b)(1).) Secondary drinking water standards specify maximum contaminant levels which, in the judgment of the director, are necessary to protect public welfare. Secondary drinking water standards may apply to any drinking water contaminant which may: (1) adversely affect the odor or appearance of such water and cause a substantial number of persons served by the public water system to discontinue its use; or (2) otherwise adversely affect the public welfare. ( [Id.,] § 4010.1, subd. (b)(2).) Maximum contaminant level means the maximum permissible level of a contaminant in water. ( [Id.,] § 4010.1, subd. (c).) “ ‘The regulations establishing primary and secondary drinking water standards for public water systems are contained in title 22 of California Code of Regulations, section 64401 et seq. (Cal.Code Regs., tit. 22, § 64401, subd. (a).) Those drinking water standards are based upon the national interim primary and secondary drinking water regulations contained in the Code of Federal Regulations.’ (Paredes, supra, 203 Cal.App.3d at p. 5, 249 Cal.Rptr. 593, fn. omitted.) “In California, when a contaminant is discovered for which there is no primary or secondary standard, the DHS develops an ‘action level’ for it. In the early 1980's, the Legislature adopted a program for detecting and monitoring organic chemical contaminants for which mandatory levels did not exist. Legislation authorized the DHS to require monitoring for these unregulated chemicals and notification of the public when action levels were exceeded. DHS implemented the legislation by adopting guidelines for responding when action levels were exceeded. (Paredes, supra, 203 Cal.App.3d at pp. 6-7, 249 Cal.Rptr. 593.) “Although the Legislature moved the Safe Drinking Water Act to Health and Safety Code section 116275 et seq. during a statutory reorganization in 1995 (Stats.1995, ch. 415, § 6 ...) and amended it in subsequent years (Stats.1996, ch. 755, §§ 1-12 ...; Stats.1997, ch. 734, §§ 1-15 ...), the general regulatory scheme described in Paredes has remained intact.” 2. The PUC Has Authority to Enforce Water Quality and Limited Authority to Adopt Water Quality Standards for Regulated Utilities Plaintiffs argue that the DHS and the EPA have exclusive authority to set standards and enforce laws related to the state and federal SDWA's and that the regulation of water quality is the function of the DHS, not the PUC. Plaintiffs are correct that the Legislature has vested in DHS primary responsibility for the administration of the safe drinking water laws. (Health & Saf.Code, § 116325.) However, they are incorrect in asserting that the PUC has no authority to set and enforce drinking water standards when regulating water providers. The Legislature has vested the PUC with general and specific powers to ensure the health, safety, and availability of the public's drinking water. Article X, section 5 of the California Constitution states: “The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law.” Article XII, section 3 of the California Constitution provides that “Private corporations and persons that own, operate, control, or manage a line, plant, or system for ... the production, generation, transmission, or furnishing of ... water ... directly or indirectly to or for the public ... are public utilities subject to control by the Legislature.” Such public utilities are thereby subject to regulation by the PUC. (Cal. Const, art. XII, § 5; Pub. Util.Code, §§ 701, 761, 770, 2701.) In regulating utilities, the PUC is authorized to “do all things ... which are necessary and convenient in the exercise of [its] power and jurisdiction” (§ 701) and required to ensure that the service and equipment of any public utility protect the public health and safety. (§§ 451,^FN7 768. ^FN8) Drinking water quality affects health and safety and is therefore within the PUC's regulatory jurisdiction over public utility water companies to ensure that public health and safety are protected. (§§ 451, 739.8, subd. (a), 761, 768, 770, subd. (b); see Citizens Utilities Co. v. Superior Court (1976) 56 Cal.App.3d 399, 408, 128 Cal.Rptr. 582.) FN7. Section 451 provides in pertinent part: “Every public utility shall furnish and maintain such adequate, efficient, just, and reasonable service, instrumentalities, equipment, and facilities ... as are necessary to promote the safety, health, comfort, and convenience of its patrons ... and the public.” FN8. Section 768 provides in pertinent part: “The commission may, after a hearing, require every public utility to construct, maintain, and operate its line, plant, system, equipment, apparatus, tracks, and premises in a manner so as to promote and safeguard the health and safety of its ... customers, and the public.... The commission may establish uniform or other standards of construction and equipment, and require the performance of any other act which the health or safety of its ... customers, or the public may demand....” The PUC's most obvious regulatory authority includes the regulation of rates: “Access to an adequate supply of healthful water is a basic necessity of human life, and shall be made available to all residents of California at an affordable cost.” (§ 739.8, subd. (a).) In addition, section 770 addresses water quality regulation and provides in pertinent part: “The commission may after hearing: [¶] ... [¶] (b) Ascertain and fix adequate and serviceable standards for the measurement of ... quality ... or other condition pertaining to the supply of the product, commodity, or service furnished or rendered by any such public utility. No standard of the commission applicable to any water corporation shall be inconsistent with the regulations and standards of the State Department of Health pursuant to Chapter 4 (commencing with Section 116275) of Part 12 of Division 104 of the Health and Safety Code.” In 1974, when Congress first passed the federal SDWA, the Legislature amended section 770, subdivision (b), to include the following proscription: “No standard of the commission relating to water quality, however, shall be applicable to any water corporation which is required to comply with the regulations and standards of the State Department of Health pursuant to Chapter 7 (commencing with Section 4010) of Part 1 of Division 5 of the Health and Safety Code.” (Stats.1974, ch. 229, § 1, p. 434.) In 1976, the Legislature again amended subdivision (b) to eliminate the proscription and instead to provide that: “No standard of the commission applicable to any water corporation shall be inconsistent with the regulations and standards of the State Department of Health pursuant to Chapter 7 (commencing with Section 4010) of Part 1 of Division 5 of the Health and Safety Code.” (Stats.1976, ch. 1087, § 4, p. 4929, italics added; see Stats.1976, ch. 1037, § 3, p. 4648.) Thus, the present statute gives the PUC authority to develop and apply standards for the quality of the product or service provided by regulated water companies as long as they are not “inconsistent” with the regulations and standards of DHS.^FN9 FN9. In its final opinion on water quality, the PUC ordered a subsequent investigation and/or rulemaking proceeding, which will consider (1) whether DHS's action levels, which DHS categorizes as nonmandatory and nonenforceable levels, should be mandatory for regulated utilities, and (2) whether the utilities complied with general order No. 103 standards in existence before the adoption by DHS of maximum contaminant levels and action levels. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at pp. 20, 65, 73-74.) A PUC rule requiring regulated water utilities to meet DHS action levels would not be inconsistent with mandatory DHS water quality standards. Indeed, during the investigation, the DHS suggested that the PUC require utility compliance with the DHS action levels and customer notification when DHS action levels are exceeded. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at p. 37.) Nevertheless, whether the PUC has independent authority to set water quality standards is not dispositive. The PUC has constitutional and statutory authority and responsibilities to ensure that the regulated water utilities provide service (e.g., water) that protects the public health and safety. (§§ 701, 451, 768.) While the water quality standards may be the product of DHS study and expertise, they are the PUC standards as well. The Legislature, by mandating that the PUC standards cannot be “inconsistent” with DHS water quality standards, has established that the DHS safety standards are the minimum standards for the PUC to use in performing its regulatory function of ensuring compliance with safety standards. Since 1956, the PUC's supervisory policy, as embodied in general order No. 103, has required public utilities to comply with the water quality standards of the relevant state and federal health agencies, “ ‘except as otherwise ordered by the Commission.’ ” (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 40.) In implementing that policy, the PUC can require prescribed water quality corrective actions, both in rate and complaint cases affecting particular utilities and in industrywide investigations such as the 1998-2000 investigation into water quality. (Pub. Util. Code, §§ 1701-1702, 2101; Health & Saf.Code, § 116465; Ford v. Pacific Gas & Electric Co. (1997) 60 Cal.App.4th 696, 707, 70 Cal.Rptr.2d 359; see also Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 907, 160 Cal.Rptr. 124, 603 P.2d 41.) It can enforce its orders and decisions by suit (Pub.Util.Code, § 2101), by mandamus or injunction (id., §§ 2102-2103), by actions to recover penalties (id., §§ 2104, 2107), and by contempt proceedings (id., § 2113). Thus, the PUC has the authority to adopt a policy on water quality and to take the appropriate actions, if any, to ensure water safety. 3. The PUC Has Undertaken the Ongoing Regulation of Drinking Water Quality As stated above, the PUC exercised its public health and safety authority over public utility water service on a case-by-case basis from 1912 to 1956 and adopted general order No. 103 in 1956. The PUC and DHS confirmed their partnership on water quality issues in a joint memorandum of understanding in 1987, which was updated in 1996. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 28, fn. 16.) It acknowledged “their joint goal to ensure that California water companies regulated by PUC are economically maintaining safe and reliable water supplies.” (Id., 1999 Cal.P.U.C. Lexis 312 at p. 111.) The memorandum defined DHS's responsibility for identifying contaminants and the improvements necessary to provide safe water supplies, and for initiating enforcement actions under the state SDWA; the PUC retained responsibility for approving rate changes to finance improvements, for informing customers, and for monitoring non-SDWA water quality requirements. The two agencies agreed to work together and share information. (Id., 1999 Cal.P.U.C. Lexis 312 at pp. 104-120.) In exercising its regulatory authority over water quality, the PUC has decided what constitutes adequate compliance with applicable water quality standards, whether any increased water treatment is justified in light of its impact on ratepayers, and what marginal increases in safety may be gained. (See, e.g., California-American Water Co. (1986) 20 Cal.P.U.C.2d 596 [PUC refused to authorize water utility to install water quality treatment facility, and instead ordered it to evaluate other, less costly alternatives]; San Gabriel Valley Water Co. (1998) Cal.P.U.C. Dec. No. 98-08-034 [1998 Cal.P.U.C. Lexis 575], 1998 WL 1813233 [PUC approved water utility's request for additional water quality treatment facilities, rejecting ratepayers' argument that new treatment plant should be allowed only when prescribed maximum contaminant levels exceed DHS standards].) The Court of Appeal below noted other actions by the PUC with respect to the quality of drinking water provided by public utilities: “In 1983, it adopted a service improvement policy, requiring water utilities to identify the most cost-effective alternatives for dealing with water service problems, including contamination. In 1986, it issued guidelines for water quality improvement projects. In 1990, it issued a risk and return report, addressing the development of drinking water quality standards, new testing procedures, and application of drinking water standards to large and small water utilities. In 1994, it issued a decision concluding that drinking water quality standards would require investment of $50 million to $200 million in water treatment facilities over the next several years. In 1996, it authorized water utilities to establish accounts to record and recover expenses incurred in complying with EPA drinking water regulations and paying DHS testing and regulatory fees. In addition, the commission issued a series of individual rate decisions analyzing health standards and individual communities' abilities to absorb the costs of varying treatment levels.” The PUC itself has stated: “[T]he Commission's cost setting and regulating role is inextricably bound to the quality of water provided by the regulated utilities.” (Cal.P.U.C. Dec. No. 99-09-073, supra, 1999 Cal.P.U.C. Lexis 594 at p. 9.) “Most often, authorization for corrective or preventative water quality measures occurs in a rate case.” (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 31.) In reviewing a water utility's rate increase application, the PUC must review the reasonableness of the utility's proposed investment, its compliance with health department regulations, its implementation of previous PUC decisions affecting water quality, and its compliance with general order No. 103. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 31-32.) Thus, in setting rates at affordable levels, the PUC must balance the quality and cost of water services. In its final opinion, the PUC explained the basis for its concurrent jurisdiction with the DHS over water quality safety: “A jurisdictional structure that preserves the authority of both DHS and the [PUC] over the quality of water provided to residents and businesses by private water companies is consistent with the original intent of the 1911 Act giving the [PUC] authority over water issues. It remains crucial to the effective regulation of public utilities. The expertise of the [PUC], however, has always centered around the creation of financial and regulatory incentives that foster and support socially desired behavior from firms that operate in a marketplace characterized by limited competition. Thus, it is clearly reasonable that the Legislature continue to marshal the expertise of the [PUC] as well as the health-science expertise of DHS to support a public interest as critical as the quality of drinking water.” (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at pp. 17-18.) As shown by the DHS's participation in the PUC's recent water quality investigation, the PUC and the DHS continue to work together to ensure that public water utilities provide safe and healthy water. Plaintiffs argue that their lawsuits should not be preempted because the PUC has deferred to the DHS to set and enforce water quality standards, has no expertise in water quality issues, and has focused on ratemaking. Our decision in Covalt leads us to a different estimation of PUC's regulatory involvement. In Covalt, notwithstanding the PUC's deference to the DHS's expertise on health issues, we concluded that the PUC had preemptively exercised its authority to adopt a policy on powerline EMF's. (Covalt, supra, 13 Cal.4th at pp. 926-934, 946-947, 55 Cal.Rptr.2d 724, 920 P.2d 669.) The circumstances in that case involved a PUC investigation into the health effects of EMF emissions. The PUC had issued an interim opinion and order that summarized what had occurred during the investigation up to that point and the recommendations for further studies. In the interim opinion and order, the PUC recognized the DHS's expertise and concurrent jurisdiction in establishing EMF policy. (Re Potential Health Effects of Electric and Magnetic Fields of Utility Facilities (1993) 52 Cal.P.U.C.2d 1, 8, 14-15, 1993 WL 561942.) We noted that, for the investigation, the PUC had asked DHS to assess the scientific evidence concerning the potential dangers of EMF's and had relied on the DHS witness in developing a policy on the potential health risks of EMF's from utility facilities. (Id. at p. 8, 1993 WL 561942; Covalt, supra, 13 Cal.4th at p. 930, 55 Cal.Rptr.2d 724, 920 P.2d 669.) In determining the need for further research and education programs, the PUC found that the DHS was the “appropriate agency” “to inform [it] as to the type of public health risk, if any, connected to EMF exposure and utility property or operations” and “to define the research needed to determine whether there is a clear cause and effect relationship between EMF from utility property and public health.” (Re Potential Health Effects of Electric and Magnetic Fields of Utility Facilities, supra, 52 Cal.P.U.C.2d at pp. 27-28, 1993 WL 561942.) Accordingly, DHS was designated as the EMF education and research program manager. (Id. at pp. 15, 21, 30, 1993 WL 561942.) Its duties included implementing and coordinating statewide research and education programs, defining the needed research, developing educational information for distribution to utility customers, monitoring the quality of research and education, and providing an annual research report to PUC. (Id. at pp. 16, 22-23, 26, 28-30, 1993 WL 561942; see also Covalt, supra, 13 Cal.4th at pp. 932-933, 55 Cal.Rptr.2d 724, 920 P.2d 669.) It is true that the PUC's primary involvement with water quality has been in the context of ratemaking, determining which water quality improvements to authorize or mandate and their costs, and the necessary rate increases. However, in making those decisions, the PUC had to consider, as it did in Covalt, the health and safety of the service provided by the regulated utilities. Accordingly, we find that the PUC has exercised and continues to exercise its jurisdiction to regulate drinking water quality. 4. Some of Plaintiffs' Actions Would Interfere with the PUC's General Supervisory and Regulatory Policies, While Others Would Not Under the third prong of Covalt, superior court lawsuits against public utilities are barred by section 1759 “not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would ‘reverse, correct, or annul’ that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would ‘hinder’ or ‘frustrate’ or ‘interfere with’ or ‘obstruct’ that policy.” (Covalt, supra, 13 Cal.4th at p. 918, 55 Cal.Rptr.2d 724, 920 P.2d 669.) “ ‘The PUC has exclusive jurisdiction over the regulation and control of utilities, and once it has assumed jurisdiction, it cannot be hampered, interfered with, or second-guessed by a concurrent superior court action addressing the same issue.’ ” (Id. at p. 918, fn. 20, 55 Cal.Rptr.2d 724, 920 P.2d 669, italics omitted; see, e.g., Waters, supra, 12 Cal.3d at pp. 10-12, 114 Cal.Rptr. 753, 523 P.2d 1161 [damage action for negligence in providing telephone service conflicted with PUC-approved tariff limiting telephone customer to credit allowance for improper service].) In short, an award of damages is barred by section 1759 if it would be contrary to a policy adopted by the PUC and would interfere with its regulation of public utilities. (Waters, supra, 12 Cal.3d at pp. 4, 11, 114 Cal.Rptr. 753, 523 P.2d 1161.) On the other hand, superior courts are not precluded from acting in aid of, rather than in derogation of, the PUC's jurisdiction. (Vila v. Tahoe Southside Water Utility (1965) 233 Cal.App.2d 469, 43 Cal.Rptr. 654.) Thus, a court has jurisdiction to enforce a water utility's legal obligation to comply with PUC standards and policies and to award damages for violations. (See, e.g., id. at pp. 479-480, 43 Cal.Rptr. 654 [office building owner permitted to seek damages for water utility's failure to provide single water service connection to multiple-tenant building as required by unambiguous tariff approved by the PUC].) “When the bar raised against a private damages action has been a ruling of the commission on a single matter such as its approval of a tariff or a merger, the courts have tended to hold that the action would not ‘hinder’ a ‘policy’ of the commission within the meaning of Waters and hence may proceed. But when the relief sought would have interfered with a broad and continuing supervisory or regulatory program of the commission, the courts have found such a hindrance and barred the action under section 1759.” (Covalt, supra, 13 Cal.4th at pp. 918-919, 55 Cal.Rptr.2d 724, 920 P.2d 669.) a. Damages Plaintiffs alleged water contamination without regard to whether the water met drinking water standards (e.g., injury from “the toxic contamination of drinking water, with chemicals, including, but not limited to,” three chemicals with established maximum contaminant levels). They also alleged water contamination that exceeded and violated federal and state drinking water standards. In essence, plaintiffs challenged both the adequacy of the standards and compliance with those standards. The first challenge, to the adequacy of the standards, is barred. An award of damages on the theory that the public utilities provided unhealthy water, even if that water actually met DHS and PUC standards, would interfere with a “broad and continuing supervisory or regulatory program” of the PUC. (See Covalt, supra, 13 Cal.4th at pp. 918-919, 55 Cal.Rptr.2d 724, 920 P.2d 669.) In order to perform its regulatory functions, such as ratemaking, the PUC must have certain water quality benchmarks. For example, in determining whether to approve a rate increase, the PUC must consider whether a regulated water utility's existing revenues are adequate to finance any water treatment facility that may be needed. Whether a treatment facility is needed, and, if so, the expense thereof, cannot be determined except with reference to an applicable water quality standard. General order No. 103, promulgated by the PUC in 1956, formally adopted the DHS water quality standards as its own. Thus, the DHS standards serve as those benchmarks. A superior court determination of the inadequacy of a DHS water quality standard applied by the PUC would not only call DHS regulation into question, it would also undermine the propriety of a PUC ratemaking determination. Moreover, the DHS standards have been used by the PUC in its regulatory proceedings for many years as an integral part of its broad and continuing program or policy of regulating water utilities. As part of that regulatory program, the PUC has provided a safe harbor for public utilities if they comply with the DHS standards. An award of damages on the theory that the public utilities provided unhealthy water, even if the water met DHS standards, “would plainly undermine the commission's policy by holding the utility liable for not doing what the commission has repeatedly determined that it and all similarly situated utilities were not required to do.” (Covalt, supra, 13 Cal.4th at p. 950, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Thus, such damage actions are barred. On the other hand, damage claims based on the theory that the water failed to meet federal and state drinking water standards are not preempted by section 1759. A jury award based on a finding that a public water utility violated DHS standards would not interfere with the PUC regulatory policy requiring water utility compliance with those standards. We recognize that in PUC Decision No. 00-11-014, the final opinion on water quality, the PUC made a retrospective finding that the regulated water utilities investigated, including the regulated defendants in this case, had substantially complied with DHS drinking water standards for the past 25 years. However, that factual finding was not part of an identifiable “broad and continuing supervisory or regulatory program of the commission” (Covalt, supra, 13 Cal.4th at p. 919, 55 Cal.Rptr.2d 724, 920 P.2d 669), related to such routine PUC proceedings as ratemaking (see Citizens Utilities Co. v. Superior Court, supra, 56 Cal.App.3d 399, 128 Cal.Rptr. 582) or approval of water quality treatment facilities. Nor was that finding part of a broad and continuing program to regulate public utility water quality, a point the PUC itself implicitly recognized during its investigation when it stated: “This investigation is an inquiry into the safety of the drinking water supplied by Commission regulated water utilities. This is an information gathering process. This is not a rulemaking proceeding, although the information gathered here may result in our instituting a rulemaking proceeding to develop new operating practices for regulated water utilities to better ensure the health and safety of water service. This is also not an enforcement proceeding, although the information accumulated here regarding the compliance of regulated water utilities with the safe drinking water laws may result in our instituting formal enforcement investigations of individual water utilities where justified.” (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at pp. 48-49, fn. omitted.) Although a PUC factual finding of past compliance or noncompliance may be part of a future remedial program, a lawsuit for damages based on past violations of water quality standards would not interfere with such a prospective regulatory program. As noted, the PUC can redress violations of the law or its orders by suit (§ 2101), by mandamus or injunction (§§ 2102-2103), by actions to recover penalties (§§ 2104, 2107), and by contempt proceedings (§ 2113), but these remedies are essentially prospective in nature. They are designed to stop the utilities from engaging in current and ongoing violations and do not redress injuries for past wrongs. (See Vila v. Tahoe Southside Water Utility, supra, 233 Cal.App.2d at p. 479, 43 Cal.Rptr. 654 [the PUC has no authority to award damages].) Here, plaintiffs alleged injuries caused by water that failed to meet state and federal drinking water standards “for many years.” Because the PUC cannot provide for such relief for past violations, those damage actions would not interfere with the PUC in implementing its supervisory and regulatory policies to prevent future harm. The regulated and nonregulated defendants argue that an award of damages against the regulated water utility defendants for providing harmful or unhealthy water, would directly “contravene” a specific order or decision of the PUC, as stated in Covalt. (Covalt, supra, 13 Cal.4th at p. 918, 55 Cal.Rptr.2d 724, 920 P.2d 669.) However, the Covalt language regarding the contravention of an order was simply a reference to the statutory language in subdivision (a) of section 1759 that “No court of this state, except the Supreme Court and the court of appeal ... shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission....” (Covalt, supra, at p. 918, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Although a jury award supported by a finding that a public water utility violated DHS and PUC standards would be contrary to a single PUC decision, it would not hinder or frustrate the PUC's declared supervisory and regulatory policies, for the reasons discussed earlier. Under the provisions of section 1759, it would also not constitute a direct review, reversal, correction, or annulment of the decision itself. Accordingly, such a jury verdict would not be barred by the statute. b. Injunctive Relief In addition to alleging damages, the Santamaria plaintiffs asked for injunctive relief for current water quality violations. However, a court injunction issued after a jury finding of DHS standards violations would “interfere with the commission in the performance of its official duties....” (§ 1759.) As part of its water quality investigation, the PUC determined, not only whether the regulated water utilities had complied with drinking water standards for the past 25 years, but also whether they were currently complying with existing water quality regulation. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at pp. 5, 105-108.) In PUC Decision No. 00-11-014, the final opinion on water quality, the PUC found that the regulated utility defendants in this case were in compliance with DHS regulations and that “no further inquiry or evidentiary hearings” were required regarding compliance. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at p. 6.) Based on that factual finding, the PUC impliedly determined it need not take any remedial action against those regulated utilities. A court injunction, predicated on a contrary finding of utility noncompliance, would clearly conflict with the PUC's decision and interfere with its regulatory functions in determining the need to establish prospective remedial programs. In contrast, even if a jury award of damages on a finding of past violations would conflict with the PUC's factual finding of no past violations, the jurisdictional role of the PUC would not be affected. Under the regulatory framework at issue, here, the PUC's role is to ensure present and future compliance.^FN10 FN10. Plaintiffs claim that PUC jurisdiction cannot preempt the private right of actions established by Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986; Health & Saf.Code, § 25249.5 et seq.) or the state SDWA, and that citizen enforcement is an essential part of the regulatory scheme. However, plaintiffs do not qualify as citizen enforcers of water quality standards under Proposition 65. Private enforcement under Proposition 65 supplements agency enforcement only if the Attorney General or other appropriate prosecutor has failed to act diligently against an alleged violator and notice of the alleged violation has been given to the appropriate prosecutor. (Health & Saf.Code, § 25249.7; see also 42 U.S.C. § 300j-8(b) [similar procedural requirements required for federal citizen enforcement proceedings].) The private enforcer may not seek damages, but may only obtain injunctive relief and statutory penalties. (Health & Saf.Code, § 25249.7, subds. (a), (b), (d).) Apart from failing to meet the procedural prerequisites, plaintiffs' damage claims clearly disqualify them as citizen enforcers. Moreover, preemption of private injunctive relief claims would not affect the enforcement provisions of either the state SDWA or Proposition 65. The state SDWA can be enforced by the DHS (Health & Saf.Code, §§ 116325, 116500, 116660) or the Attorney General (Code Civ. Proc., § 803; Citizens Utilities Co. v. Superior Court, supra, 56 Cal.App.3d at pp. 403-407, 128 Cal.Rptr. 582), but there is no mandate for citizen enforcement actions under the state SDWA. Also, most, if not all, public water utilities are exempted from the coverage of Proposition 65. (Health & Saf.Code, §§ 25249.5, 25249.6, 25249.11, subd. (b), 116275, subd. (h).) In summary, plaintiffs' damage claims, alleging water contamination irrespective of whether drinking water standards were met, and their injunctive relief claims, are preempted by section 1759.^FN11 On the other hand, plaintiffs' damage claims alleging water contamination that violated and exceeded federal and state drinking water standards are authorized under section 2106.^FN12 FN11. The regulated water providers argue that, because plaintiffs who intervened in the PUC's water quality investigation failed to appeal the PUC's jurisdictional finding, they are collaterally estopped from challenging its conclusion that it has jurisdiction over the quality of water supplied by the regulated utilities. The PUC found that it possesses authority and has exercised its authority to regulate the quality of the service and the drinking water that the water utilities provide. The PUC expressly refused to decide the third Covalt prong: whether the lawsuits in this case interfered with its water quality investigation. (Cal.P.U.C. Dec. No. 99-06-054, supra, 1999 Cal.P.U.C. Lexis 312 at p. 65, fn. 37.) Because we agree that the PUC has jurisdiction and has exercised its jurisdiction over the water quality supplied by the regulated utilities, we need not address the collateral estoppel claim. FN12. Plaintiffs request that we take judicial notice of what appear to be Internet articles found on a DHS Web site. These articles indicate, as of January 3, 2001, that chromium VI is an unregulated chemical that required monitoring. Plaintiffs seek judicial notice of those articles as proof that their allegations raise no conflict with PUC policy because neither the PUC nor DHS has set water quality standards that govern chromium VI, an “unregulated chemical.” The regulated utilities and the industrial defendants oppose the motion for judicial notice. We deny plaintiffs' request. As stated by the industrial defendants, the articles contain unauthenticated statements with no indication of author, custodian, date of creation, purpose, reliability, or veracity. Also, the articles do not appear to be relevant because the complaint did not specifically allege plaintiffs had been exposed to chromium VI and no evidence regarding this chemical had been presented to the trial court. B. Section 1759 Does Not Bar the Superior Court Actions Against Defendants Not Regulated by the PUC Advocating an “issue oriented analysis,” the nonregulated water providers and the industrial defendants claim that, as with the regulated water providers, the superior court actions against them are preempted. Their claim is based on the following arguments: (1) the statutory language of section 1759 does not make any distinction between utility and nonutility parties to a lawsuit; (2) our opinion in Covalt affirms that preemption of court proceedings applies to issues or subject matter before the PUC, not just to actions against regulated companies, if “an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission”; and (3) the issues in the superior court actions and the PUC investigation involve the safety of the very same water supply. Thus, it is argued, a jury award of damages against a nonregulated defendant, based on a determination that the water is unhealthy, would conflict with the PUC's conclusion that the water is safe and would undermine its drinking water policy. Plaintiffs in the four lawsuits dispute that all of the water alleged to be contaminated is identical to the water provided by the regulated water providers. They claim that the liability of the nonregulated water providers and the industrial defendants are not “derivative” of the water supplied by the regulated water providers. They assert that: (1) although the nonregulated water providers sold wholesale water to some of the regulated water purveyors, they also supplied water to nonregulated water purveyors that may have supplied water to plaintiffs; and (2) the alleged contamination of the groundwater by the industrial defendants also contaminated the groundwater used and supplied by nonregulated water purveyors. Plaintiffs argue, therefore, that the water and the issues are not the same. In rejecting the preemption argument advanced by the nonregulated water providers and the industrial defendants, the Court of Appeal below stated: “Section 1759 provides that no trial level court may ‘review, reverse, correct, or annul’ or ‘enjoin, restrain, or interfere with’ the PUC in its performance of its duties. By no stretch of language or logic does this mean that trial courts may not decide issues between parties not subject to PUC regulation simply because the same or similar issues are pending before the PUC or because the PUC regulates the same subject matter in its supervision over public utilities.” (Fn. omitted.) We agree. First, although section 1759 does not expressly restrict preemption to claims involving regulated water utilities, it cannot be construed in isolation; rather, it must be viewed in context with “ ‘ “ the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” ’ ” (People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 Cal.Rptr.2d 610, 939 P.2d 1310; County of Sacramento v. Workers' Comp. Appeals Bd. (1999) 69 Cal.App.4th 726, 733, 81 Cal.Rptr.2d 780.) The California Constitution authorizes the PUC to establish rules only for utilities. (Cal. Const., art. XII, § 6.) The powers granted to the PUC by the Legislature must be “cognate and germane to the regulation of public utilities....” (Morel v. Railroad Commission (1938) 11 Cal.2d 488, 492, 81 P.2d 144.) The Legislature specified the PUC's regulatory powers over public utilities in the Public Utilities Code, of which section 1759 is a part. Under section 1759, a superior court cannot “enjoin, restrain, or interfere with the [PUC] in the performance of its official duties....” (Italics added.) Thus, when read in context with the entire regulatory scheme, section 1759 must be read to bar superior court jurisdiction that interferes with the PUC's performance of its regulatory duties, duties which by constitutional mandate apply only to regulated utilities. Although a superior court jury may return findings on water safety issues that would conflict with those decided by the PUC on the same or similar issues, neither the nonregulated water providers nor the industrial defendants adequately explain how such conflicting findings, relating to them, would interfere with the PUC's official regulatory duties. Second, the nonregulated defendants fail to cite case law to support their view that the jurisdictional bar of section 1759 applies to nonregulated parties. Instead, they rely on isolated statements in cases referring to the preemptive effect of issues or cases pending before the PUC. They argue that those cases do not expressly confine their preemption language to actions against regulated parties. (See, e.g., Covalt, supra, 13 Cal.4th at p. 944, 55 Cal.Rptr.2d 724, 920 P.2d 669[“[t]he question is therefore whether section 1759 applies to this case” (italics added)]; id. at p. 918, fn. 20, 55 Cal.Rptr.2d 724, 920 P.2d 669 [“ ‘once [the PUC] has assumed jurisdiction, it cannot be hampered, interfered with, or second-guessed by a concurrent superior court action addressing the same issue’ ” (italics added, original italics omitted)]; Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 681, 187 Cal.Rptr. 219 [same].) Because those cases involved only regulated utilities, the references to the preemptive effect of “issues” or “cases” pending before the PUC must be read in context with the facts of the case, i.e., as barring only actions brought in trial courts against regulated utilities. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689 [“Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered”].) Indeed, in Covalt, supra, 13 Cal.4th 893, 55 Cal.Rptr.2d 724, 920 P.2d 669, and Waters, supra, 12 Cal.3d 1, 114 Cal.Rptr. 753, 523 P.2d 1161, we sought to reconcile sections 1759 and 2106. Section 2106, by its terms, applies only to a “public utility” and does not authorize lawsuits against nonregulated entioties. Therefore, the rationale expressed in both cases applies only to bar superior court jurisdiction over lawsuits otherwise authorized by section 2106, i.e., cases against regulated utilities. Third, the regulatory scheme contained in the Public Utilities Code is rooted in the recognition that business enterprises “affected with a public interest” are subject to government regulation under the state's police power. (See Munn v. Illinois (1876) 94 U.S. (4 Otto) 113, 125-130, 24 L.Ed. 77; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 476, 156 Cal.Rptr. 14, 595 P.2d 592.) Endowed by the state with a legally enforceable monopoly and authorized by the state to charge rates that guarantee it a reasonable rate of return (Gay Law Students Assn. v. Pacific Tel. & Tel. Co., supra, 24 Cal.3d 458, 476, 156 Cal.Rptr. 14, 595 P.2d 592), a public utility, in turn, must comply with the comprehensive regulation of its rates, services, and facilities as specified in the Public Utilities Code. (See Pacific Gas & Elec. v. Energy Resources Comm'n (1983) 461 U.S. 190, 205, 103 S.Ct. 1713, 75 L.Ed.2d 752; Sidak & Spulber, Deregulatory Takings and Breach of the Regulatory Contract (1996) 71 N.Y.U. L.Rev. 851, 907.) Thus, “ ‘a public utility, being strictly regulated in all operations with considerable curtailment of its rights and privileges, shall likewise be regulated and limited as to its liabilities. In consideration of its being peculiarly the subject of state control, “its liability is and should be defined and limited.” [Citation.]’ ” (Waters, supra, 12 Cal.3d at p. 7, 114 Cal.Rptr. 753, 523 P.2d 1161; see also Los Angeles Cellular Telephone Co. v. Superior Court (1998) 65 Cal.App.4th 1013, 1018, 76 Cal.Rptr.2d 894 [“As our courts have long recognized, it is an equitable trade-off-the power to regulate rates and to set them below the amount an unregulated provider might otherwise charge requires a concomitant limitation on liability”].) Finally, unlike the regulated water providers, the PUC has no jurisdiction to hear complaints or claims against any nonregulated entities. If claims against nonregulated entities were preempted by section 1759, they could not be heard in any forum. The Court of Appeal below correctly noted that, “the nonregulated defendants do not invite us to find that the PUC has de facto authority to regulate their conduct. Some seem to be claiming only a tangential benefit from PUC regulation-a stay or preemption of actions against them-unencumbered by the burdens of PUC regulation.” We conclude that section 1759 does not preempt these lawsuits in superior court against the nonregulated water providers and the industrial defendants.^FN13 FN13. The nonregulated water providers and the industrial defendants argue that, in the alternative, the Court of Appeal should have ordered the trial courts to stay the actions under the doctrine of primary jurisdiction, pending resolution of the PUC's water quality investigation. Because the PUC issued its final opinion in that investigation after the filing of the briefs, we need not address that claim. In the final opinion on water quality, the PUC noticed its intention to initiate a future limited investigation into whether utilities complied with the PUC standards prior to the establishment of DHS standards. (Cal.P.U.C. Dec. No. 00-11-014, supra, 2000 Cal.P.U.C. Lexis 722 at pp. 16-17.) In their supplemental briefs, the industrial defendants urge us to order a stay as to claims for damages caused by water provided before the adoption of DHS standards, pending completion of the future PUC investigation. We decline to do so for obvious reasons. That claim was never made to the superior court or Court of Appeal and can be decided more appropriately by the superior court. CONCLUSION In the four actions, the damage claims alleging violations of federal and state drinking water standards against the regulated utilities are not preempted. Thus, we reverse the judgment of the Court of Appeal insofar as it found preemption as to those claims. Regarding the remaining claims against the regulated water utilities, we affirm the judgment of the Court of Appeal. We further affirm the judgment of the Court of Appeal insofar as it held that the causes of action against the nonregulated water providers and industrial defendants are not preempted. We remand the case to that court for further proceedings consistent with this opinion. WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, BROWN and MORENO, JJ. Concurring Opinion by KLINE, J.^FN** FN** Presiding Justice of the Court of Appeal, First Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. I concur and write separately to explain why I believe regulation of water quality is among the “official duties” of the Public Utilities Commission (PUC or commission). (Pub.Util.Code, § 1759.) .^FN1 Some of my reasons go beyond those described by the majority and relate more specifically to the commission's authority to promulgate water quality standards stricter than those of the California Department of Health Services (DHS), an issue central to the jurisdictional dispute. FN1. All statutory references are to the Public Utilities Code unless otherwise indicated. Plaintiffs in these actions maintain that the 1976 amendment to section 770-which eliminated the prohibition on the PUC applying its water quality standards to regulated utilities and provided instead that any such standards it may apply shall not be “inconsistent” with DHS standards-means that PUC water quality standards may not differ in any way from those promulgated by DHS, which would bar the commission from imposing standards higher than those of DHS. Plaintiffs' construction of the amendment renders it meaningless. If, as plaintiffs argue, the amendment means the PUC cannot apply its own standards, but only those of DHS, the amendment would have no different effect than the language it replaced, and the Legislature would have performed an idle act. Given the context in which the Legislature acted, the only sensible interpretation is that “inconsistent” means less rigorous, so that the purpose of the amendment to section 770 is analogous to that of the federal Safe Drinking Water Act (42 U.S.C. § 300f et seq.) (federal SDWA), which prohibits the states from enacting water quality standards less stringent than those established by the federal government, but permits them to impose more stringent requirements. (42 U.S.C. § 300g.) Because, as the majority says, the Legislature established only that DHS water quality standards are “the minimum standards for the PUC to use in performing its regulatory function” (maj. opn., ante, at p. 887, 38 P.3d at p. 1109, italics added), the commission is free to subject regulated water utilities to stricter standards than are imposed by DHS. The title of the PUC investigation in this case .^FN2 reflects the commission's concern that the DHS standards it now applies may not adequately protect the public; and the PUC made clear during the proceedings that it was considering the promulgation of higher standards. As the commission stated, “we do not intend to reduce MCLs [maximum contaminant levels], Action Levels or similar standards which are terms of art in the lexicon of [Safe Drinking Water Act] law and regulation. Drinking water standards, including established MCLs, are minimum water quality requirements and we cannot and shall not tamper with those requirements. We do not intend to duplicate the processes employed by DHS and [the federal Environmental Protection Agency] to develop those standards. We do intend to employ the knowledge of these agencies as we pursue this investigation. The evidence adduced in this proceeding may support the development of additional operating practices for regulated utilities. If so, we would expect that such new rules either will fill an identifiable void, if any there is, in the DHS regulatory scheme or will be practices stricter than those of DHS and/or they will be practices particularly suited to the regulation of investor-owned water utilities. In any event, before we can determine what actions, if any, might better promote safe drinking water service by regulated water utilities, we must have a clear understanding of the safety status of existing regulation. Therefore, we need to receive evidence on the questions posed in the OII [Order Instituting Investigation].” ^FN3 (Cal.P.U.C. Interim Opinion Denying Motions Challenging Jurisdiction to Conduct Investigation 09-03-013 (June 10, 1999) Dec. No. 99-06-054 [1999 Cal. P.U.C. Lexis 312 at pp. 73-74], italics added. (Interim PUC Opinion).) As the majority has noted, in its final opinion on water quality the PUC ordered a subsequent investigation and/or rulemaking proceeding to consider, among other things, whether DHS's “ action levels,” which are neither mandatory nor enforceable, should be mandatory for regulated utilities. (Maj. opn. ante, at p. 887, fn. 9, 38 P.3d at p. 1109, fn. 9.) Such a PUC rule would impose water quality standards higher than those imposed by DHS. FN2. “Investigation on the Commission's own motion into whether existing standards and policies of the Commission regarding drinking water quality adequately protect the public health and safety with respect to contaminants such as Volatile Organic Compounds, Perchlorate, MTBEs, and whether those standards and policies are being uniformly complied with by Commission regulated utilities.” (Cal. P.U.C. Order Instituting Investigation No. 98-03-013 (March 12, 1998) [1998 Cal. P.U.C. Lexis 73].) FN3. These statements appear to represent a substantial policy change for the PUC, as the commission has heretofore consistently and rather summarily rebuffed consumer complaints that the DHS standards it applies are inadequate. For example when, in 1966, the PUC was asked to order “optimum” fluoridation of drinking water, the commission held: “With respect to the purity and safety of drinking water, the Commission will not question the findings and recommendations of the California Department of Health, which is charged with such responsibility.” (City of San Jose v. San Jose Water District (1966) 66 Cal.P.U.C. 694, 698.) Similarly, in 1972, the PUC again rejected complaints concerning the quality of a purveyor's water: “The State Board of Public Health [DHS] has the authority ... to suspend or revoke a utility's water permit at any time if it determines that the water is or may become unpure or unwholesome. Under [the Health and Safety Code], and in accordance with General Order 103, it is not appropriate for the Commission to determine this question. Petitioners should direct their allegations on this question to the [DHS].” (Washington Water & Light Co. (1972) 73 Cal.P.U.C. 284, 303; see also Pool v. Mokelumne River Power & Water Co. (1918) 15 C.R.C. 38, 39 [“[t]he question of the healthful quality of the water is one to be passed on by the State Board of Health.”].) The substance of the PUC proceedings demonstrates that the commission is discharging its responsibility under section 761 to inquire whether the “practices” of or “service[s]” provided by defendant regulated water utilities are “unsafe,” and, if so, to fix the problem by “prescrib[ing] rules for the performance of any service or the furnishing of any commodity ... supplied by any public utility.” In short, the PUC inquiry into the adequacy of DHS standards, and any higher standards it may impose, are or would be in the performance of its “official duties” (§ 1759) to protect the public health and safety. Significantly, DHS, which actively participated in the commission proceedings, never suggested that the PUC's expressed interest in whether it needed to exercise its authority to subject regulated water utilities to water quality standards higher than those of DHS would, if acted upon, offend the federal SDWA or the state Safe Drinking Water Act (Health & Saf.Code, § 116275 et seq.) (state SDWA), and the DHS expressed no other objection to PUC assertion of authority to impose water quality standards higher than its own. On the contrary, DHS explained why it might be appropriate for the PUC to subject the almost 200 water utilities it regulates to higher standards than does DHS. According to DHS, “ ‘the increase in population growth and demand for drinking water throughout the state has diminished the options utilities have to reserve and select high quality sources of drinking water. The impact of groundwater contamination from industrial and agricultural practices has been significant in some areas of the state. Public water systems are no longer able to forego the use of contaminated drinking water sources, including those associated with Superfund sites, since that water may be needed to meet increased demand.’ ” (Interim PUC Opinion, supra, 199 Cal. P.U.C. Lexis 312 at p. 76.) Moreover, as DHS specifically acknowledged, “[t]here are some contaminants that were known to exist in drinking water sources but were never regulated.” (Ibid., italics added.) DHS's conduct in the PUC proceeding demonstrates that it does not believe the state SDWA (or the memorandum of understanding DHS originally entered into with the PUC in 1987) would prevent the PUC from imposing water quality standards higher than its own, or that such standards, including those pertaining to contaminants for which there now are no enforceable DHS standards, would be “inconsistent” with DHS standards. As the primary agency charged with implementing the state SDWA, DHS's view is entitled to judicial respect. The questions whether an administrative agency properly applies legislative standards and acts within authority conferred by the Legislature are, of course, ultimately decided by the courts (Quackenbush v. Mission Ins. Co. (1996) 46 Cal.App.4th 458, 466, 54 Cal.Rptr.2d 112), but an administrative agency's “interpretation of a statute it routinely enforces is entitled to great weight and will be accepted unless its application of legislative intent is clearly unauthorized or erroneous.” (American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1027, 56 Cal.Rptr.2d 109, 920 P.2d 1314, citing Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 109, 172 Cal.Rptr. 194, 624 P.2d 244.) Neither does PUC's General Order 103 bar the PUC from imposing higher water quality standards in the future. While at present this order only requires compliance with federal and state water quality standards, the phrase “except as otherwise ordered by the Commission,” must be interpreted as reserving the right to impose the higher standards the commission is allowed to impose under section 770. In any event, as the PUC had the authority to adopt General Order 103, so too does it retain power to repeal or amend it so that it is consistent with the imposition of PUC water quality standards higher than those promulgated by DHS. For the foregoing reasons, as well as those set forth by Justice Chin for the majority, I agree that the PUC has independent regulatory authority to promulgate water quality standards applicable to the water utilities it regulates and that such standards may be the same as or stricter (but not less strict) than those promulgated by DHS under the state SDWA. There may be circumstances in which a superior court award of damages for injuries sustained by the provision of water standards or other rules applied by the PUC might interfere with the PUC's performance of its “official duties,” and therefore violate section 1759, ^FN4 but, as the majority has explained, they are not presented by this case. FN4. For example, under section 735 the PUC has authority to receive and rule on claims for damages resulting from the violation of any of the provisions of sections 494 (relating to common carrier rates and fares) or 532 (relating to the rates, tolls, rentals and other charges imposed by public utilities), even though a suit seeking such damages could alternatively be instituted “in any court of competent jurisdiction.” Section 1759 would clearly bar a superior court from entertaining a claim for damages for violation of section 494 or section 532 that had previously been submitted to and rejected by the commission.

+/- 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.

+/- Quiles v. City of Boynton Beach

Florida, Unlicensed Practice of Medicine/Compulsory Medication, Right to privacy, State police power

• Plaintiff
  Jesus F. Quiles
• Defendant
  City of Boynton Beach
• State
  Florida
• Other Parties
  Gerald Broening
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Right to privacy

  - State police power
• Citation
  802 So.2d 397 (Fla. Dist. Ct. App. 2001)
• Year
  2001-00-00T00:00:00
• Court Name
  Court of Appeals of Florida, Fourth District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Gross
• Opinion Text
  GROSS, J. Jesus F. Quiles appeals from a final order granting the City of Boynton Beach's motion to dismiss with prejudice his claim seeking declaratory and injunctive relief. Quiles alleges that by voting to add fluoride to its potable water supply, the city violated his right to refuse medical treatment under the United States and Florida Constitutions, thereby exceeding its authority to enact such a measure. We affirm and write to address the constitutional issue. On January 26, 2000, the Boynton Beach City Commission held a public meeting to consider the merits of fluoridating its water supply, and to hear input from residents and other qualified individuals on the issue of fluoridation. After taking testimony, reviewing documents, and posing questions to the supporters and opponents of fluoridation in attendance, the commission voted unanimously to fluoridate its water supply. On August 11, 2000, Quiles filed suit against the city and its mayor alleging that the fluoridation measure violated his constitutional rights under the state and federal constitutions, and seeking declaratory and injunctive relief to stop the city from fluoridating its water supply. On September 5, 2000, the city filed a motion to dismiss the complaint for failure to state a cause of action. The trial court ruled that the city had the authority to add fluoride to its water supply, and that doing so did not implicate Quiles's right to refuse medical treatment under Article I, Section 23 of the Florida Constitution. The Florida Constitution, as well as Florida law enacted pursuant to it, gives municipalities broad “governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services” and to “exercise any power for municipal purposes.” Art. VIII, § 2(b), Fla. Const.; § 166.021, Fla. Stat. (2000). In defining the scope of a “municipal purpose,” Florida courts have long held that “[i]t is the duty of public authorities in municipalities to protect the safety, the health and the general welfare of the citizens” and that “[t]his duty involves sanitary and health regulations.” Garvin v. Baker, 59 So.2d 360, 364 (Fla.1952). Such proper municipal health regulations include the regulation of a municipality's waterworks. See State v. Tampa Waterworks Co., 56 Fla. 858, 47 So. 358 (1908). Ordinances regulating municipal water treatment “are not expressly or by fair implication limited to the establishment of a municipal plant.” Id. at 361. In fact, adding fluoride to the water supply of a municipality has been specifically upheld as a valid exercise of a municipality's police power. See City Comm'n of Fort Pierce v. State ex rel. Altenhoff, 143 So.2d 879, 888-89 (Fla. 2d DCA 1962). Quiles does not argue that the city is without authority to run its own water treatment facility or regulate its own water supply. Nor does he object to the city adding chlorine to its water supply. Quiles objects only to the fluoridation of the water because he believes that fluoride has no real health benefits and that it is not necessary to make the water potable or fight serious disease; it is added to water merely as a prophylactic measure to fight tooth decay. He argues, therefore, that to add fluoride to the water supply is beyond the city's police power, and courts should apply the highest standard of judicial review, strict scrutiny, to such a decision. Quiles contends that drinking fluoridated water can cause a host of adverse health effects. Because of these adverse health effects, Quiles chooses not to ingest fluoride. Being forced to consume fluoride through the city's water supply, Quiles asserts, amounts to “compulsory medication” that violates his right to privacy set forth in Article I, Section 23 of the Florida Constitution. In arguing this position, Quiles relies on Singletary v. Costello, 665 So.2d 1099 (Fla. 4th DCA 1996). In Singletary, this court stated that a competent person has the constitutional right to choose or refuse medical treatment and that right extends to all relevant decisions concerning one's health. Courts overwhelmingly have held that a person may refuse or remove artificial life support, whether supplying oxygen by a mechanical respirator or supplying food and water through a feeding tube. Id. at 1104 (quoting In re Guardianship of Browning, 568 So.2d 4, 11-12 (Fla.1990)). The right identified by this court in Singletary is not qualified “on the basis of the denomination of a medical procedure as major or minor, ordinary or extraordinary, life-prolonging, life-sustaining, or otherwise.” Id. (quoting Browning, 568 So.2d at 11 n. 6). Quiles argues that this court should extend the holding of Singletary to require a compelling state interest in order for the city to fluoridate its water. In doing so, Quiles equates the fluoridation of city water to the complusory medical treatment at issue in Browning and Singletary. This case is distinguishable from Singletary and Browning. The introduction of fluoride into the city's water is not a “medical procedure,” as contemplated by either this court in Singletary or the supreme court. Browning, 568 So.2d at 11 n. 6. Importantly, the city proposes to fluoridate the water before it enters each household in the city; it is not seeking to introduce the mineral directly into Quiles's bloodstream. Therefore, the city's fluoridation of its water stops with Quiles's water faucet. The city is not compelling him to drink it. He is free to filter it, boil it, distill it, mix it with purifying spirits, or purchase bottled drinking water. His freedom to choose not to ingest fluoride remains intact. The cases upon which Quiles relies 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. Browning, 568 So.2d at 11. They involve highly invasive procedures where the state sought to override a person's freedom to choose. This is a far cry from the action taken by the city in this case. Quiles argues that the city's power should be limited to protecting the health of its citizens, and not merely improving it by preventing certain conditions. We agree with the second district's analysis in Altenhoff: [T]here is, in logic, a valid factual distinction between preserving health on one hand and improving it on the other.... 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 power to legislate in the public interest on the state or local level. 143 So.2d at 888 (emphasis in original). As long as a municipality is acting within its legal and constitutional limitations, it is not the duty of the courts to judge the wisdom of a municipality when adopting health measures, whether those measures act to protect or improve the health of its citizens. We agree with the second district in Altenhoff, and hold that the City of Boynton Beach has home rule authority to fluoridate its water, and that the decision to do so is neither an arbitrary nor unreasonable imposition on the constitutional rights of its residents. 143 So.2d at 888; see, e.g., Young v. Bd. of Health of Somerville, 61 N.J. 76, 293 A.2d 164, 165 (1972) ( “courts throughout the nation have been virtually unanimous in ... upholding fluoridation of drinking water as a valid public health measure whenever a challenge has been presented”); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326, 333-34 (1964) (holding that a municipality has the power to fluoridate its water which is “reasonably related to the common good” and not “unreasonable or arbitrary”); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, 613 (1955) (rejecting the arguments that fluoridation is an infringement on individual rights and is mass medication). The trial court's dismissal of the plaintiff's complaint is affirmed. GUNTHER and WARNER, JJ., 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.

+/- Teeter v. City of LaPorte

Indiana, Unlicensed Practice of Medicine/Compulsory Medication

• Plaintiff
  Teeter, et al.
• Defendant
  Municipal City of LaPorte, et al.
• State
  Indiana
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication
• Citation
  236 Ind. 146; 139 N.E.2d 158 (Ind. 1956)
• Year
  1956-00-00T00:00:00
• Court Name
  Supreme Court of Indiana
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Emmert JA
• Opinion Text
  EMMERT, Justice. This is an appeal from a judgment for appellees upon failure of appellants to plead over after a demurrer had been sustained to an amended complaint for injunction. The amended complaint sought to enjoin appellees, defendants in the trial court, from adding fluorides to the water supplied by the municipal waterworks, to declare void Section 27 of Ordinance 948 enacted by the Common Council of the City of LaPorte in March, 1951. The questioned section reads as follows: ‘The Municipal waterwords of the City is hereby authorized to add Fluorides to the water for the purpose of reducing dental caries. And the Board of Public Works and Safety of the City is hereby authorized to purchase from the revenues of the waterworks the necessary Fluorides to be added, as well as any equipment to properly add such Fluorides to the water distributed by the municipal waterworks.’ There was no motion filed by the defendants to make the amended complaint more specific,^FN1 and when such a complaint is tested by demurrer all intendments are taken in favor of the pleading. 1 Lowe's Work's Ind. Practice § 14.39, p. 565; Rochester Bridge Co. v. McNeill, 1919, 188 Ind. 432, 439, 122 N.E. 662; Domestic Block Coal Co. v. De Armey, 1913, 179 Ind. 592, 100 N.E. 675, 102 N.E. 99; Vandalia Coal Co. v. Coakley, 1915, 184 Ind. 661, 111 N.E. 426; Lincoln Operating Co. v. Gillis, 1953, 232 Ind. 551, 558, 114 N.E.2d 873. See also State ex rel. Tittle v. Covington Community Consolidated Schools, 1951, 229 Ind. 208, 214, 96 N.E.2d 334. FN1. There was no motion filed to make the amended complaint more specific under § 2-1005, Burns' 1946 Replacement. There was a motion filed to require the plaintiffs to show by what authority the action was brought on behalf of a certain religious organization and on behalf of the LaPorte Committee Opposed to Fluoridation. The amended complaint omitted all reference to the religious organization. The amended complaint attempted to plead a class action under § 2-220, Burns' 1946 Replacement, by alleging: ‘1. That these plaintiffs are all citizens of the United States of America and the State of Indiana, residing in LaPorte, Indiana, and bring this action to assert their said rights of citizenship on behalf of themselves and for all others of the class of such citizens residing in LaPorte, Indiana, and entitled to assert their rights of citizenship. ‘2. That plaintiffs are all resident taxpayers of the Municipal City of LaPorte, Indiana, and bring this action on behalf of themselves in their capacity as said taxpayers and on behalf of all others of said class residing in said City of LaPorte, Indiana. ‘3. That plaintiffs are all users of water supplied by the City Water Works, a utility operated by the Municipal City of LaPorte, Indiana, and bring this action in their capacity of said water users and on behalf of all persons in said class residing in said City and using such water supplied by such public utility. ‘4. That certain of the plaintiffs are opposed to the enforced use of medicinal properties and ingredients on religious scruples. ‘5. That all of the plaintiffs are members of an association known as the LaPorte Committee Opposed to Fluoridation representing an organization of approximately 3,000 persons, all residents of the City of LaPorte, Indiana, who are opposing and have expressed their opposition to the use of Fluorides in the water supplied by the Municipal City of LaPorte through its said Public Water Works, and they being this action in their capacity as members of such committee and organization and on behalf of the entire membership of such organization.’ It is not necessary to summarize all the facts and contentions asserted by the complaint, but among other averments it alleged: ‘27. That the toxic qualities of fluorines affect the health and physical condition of different persons in various manners, some being peculiarly allergic to same, and to require the entire population of said city to ingest them, particularly when artificially and mechanically added, would have a cululative [cumulative] toxic effect, particularly upon the aged, the ill, and those suffering from chronic physical ailments, particularly cancer.’ It also alleged violation of the constitutional rights, as set out in the note. ^FN2 FN2. ‘33. That said ordinance violates Amendment I to the Constitution of the United States in that it prohibits the free exercise of religious scruples, by such persons who on account of such scruples are opposed to medication. ‘34. That it violates Amendment XIV to the Constitution of the United States in that it abridges the privilege and immunities of citizens of the United States and deprives them of certain liberties, in that it becomes an enforced method of taking drugs and giving same to their children, in water and food, whereas each individual should have the right to determine what to drink and eat without dictation from others, whether they be individuals or municipalities. ‘35. That on account of its restriction to freedom of the individual, it is in violation of the Indiana Bill of Rights.’ The first cause of the demurrer was on the ground there were several causes of action improperly joined. Section 2-1009, Burns' 1946 Replacement, provides, ‘No judgment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of action.’ The preceding section requires the court, upon sustaining a demurrer for misjoinder of causes of action, to note the misjoinder on the order-book, and cause separate actions to be separately docketed. Since there is no order-book entry showing this, we must presume the demurrer was not sustained for misjoinder of causes. The second ground of the demurrer was for failure to state facts sufficient to constitute a cause of action. We do not deem it necessary to consider all the reasons and arguments cited in the memorandum to the demurrer in support of this ground. There is nothing in the memorandum whereby we would be authorized to hold that rhetorical paragraph 27 of the amended complaint is untrue as a matter of law. We do judicially know many cases have decided that fluoridation of public water supply is a reasonable exercise of the police power. Baer v. City of Bend, 1956, 206 Or. 221, 292 P.2d 134; Kraus v. City of Cleveland, 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; Froncek v. City of Milwaukee, 1955, 269 Wis. 276, 69 N.W.2d 242; Dowell v. City of Tulsa, Okl.1954, 273 P.2d 859, certiorari denied 1955, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; 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, appeal dismissed 1954, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701; De Aryn v. Butler, 1953, 119 Cal.App.2d 674, 260 P.2d 98, certiorari denied 1954, 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135. Only one of these cases was an appeal from a judgment on a demurrer, and there were admissions made by counsel in an oral argument and it does not appear the complaint alleged fluoridation had toxic effects. ^FN3 FN3. ‘Although there is no direct benefit to adults, it is not alleged, nor 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.’ Baer v. City of Bend, 1956, 206 Or. 221, 223, 224, 292 P.2d 134, 135. We have been cited to numerous scientific articles by appellants and appellees, but under the present state of scientific experience and opinion we do not feel we are in a position to hold conclusively as a matter of law fluoridation will not have cumulative toxic effects. If it does, such will be a matter of proof by the plaintiffs in the trial court when the issues are tried there. If there should be conflicting evidence on this issue the trial court is in a position to weigh it, and we are not. It is not necessary to decide the constitutional issues at this stage of the proceeding, since anything we might decide now would be without proof first had in the trial court. Judgment reversed with instructions to overrule the demurrer and for further proceedings consistent with this opinion. ACHOR, C. J., and ARTERBURN, BOBBITT and LANDIS, JJ., concur.

+/- Wilson v. City of Council Bluffs

Iowa, Abuse of Municipal Authority, State police power

• Plaintiff
  C.L. Wilson
• Defendant
  City of Council Bluffs
• State
  Iowa
• Other Parties
  Resident taxpayers and users of the public water supply of City of Council Bluffs
• Case Tags
  - Abuse of Municipal Authority

  - State police power
• Citation
  253 Iowa 162; 110 N.W.2d 569 (Iowa 1961)
• Year
  1961-00-00T00:00:00
• Court Name
  Supreme Court of Iowa
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Hays J
• Opinion Text
  HAYS, Justice. This is a class action wherein plaintiffs, as residents and taxpayers of the City of Council Bluffs, Iowa, seek to enjoin the enforcement by said City of an ordinance, known in the record as Ordinance No. 3575, providing for flouridation of water furnished to residents of said city through its municipal water works. Such relief was granted by the trial court. Ordinance No. 3575, after setting forth at some length a list of national, state and local medical, dental and health associations and boards which have endorsed the use of fluorides in water as a health measure, provides: Section I. ‘That fluoride shall be introduced into the public water supplies of the city of Council Bluffs, Iowa in such concentration as is recommended by the Iowa State Department of Health; provided, however, that fluoridation equipment and the installation and operation thereof shall at all times be subject to the inspection, rules, regulations and direction of said Department of Health...’ A pre-trial stipulation provided: (1) No issue is raised as to plaintiff's authority to maintain the action. (2) It is conceded that the fluoride to be added to the water will not purify the water or make it more potable and that it is not being added for that purpose. (3) No issue is raised as to whether or not the city council was duly advised upon the question of whether or not the adding of fluoride to the water will be beneficial or detrimental to the users. (4) No issue is raised as to whether or not the fluoride will prevent dental caries, or whether or not the city acted arbitrarily or abused its discretion in making its determination in that respect. (5) No claim is made that the fluoride will make the water less potable or less pure. (6) This stipulation permits urging that the addition of fluoride by the City violates Chap. 205, Code 1958, I.C.A. (7) No issue is raised concerning the amount of fluoride the city intends to add to the water or that it exceeds the amount recommended for the purpose of accomplishing the reduction of dental caries. Under the pleadings and in the light of above mentioned stipulation, but two legal questions were before the trial court for determination: (1) Statutory authority of the City to enact said Ordinance; and (2) Violation of Chapter 205, Code 1958, I.C.A. The trial court held the City had no statutory authority, express or implied, to enact the ordinance, but that, assuming such authority, the ordinance did not violate Chap. 205. Appellant assigns error in the holding of no authority. Appellees urge in support of the decree, error as to the holding relative to Chap. 205, Code 1958, I.C.A. I. The law is clear and well established in this State that municipalities have only those powers, expressly given them by the legislature, those which arise from fair implication and those necessary to carry out powers expressly or impliedly granted. Also, such grants of power are strictly construed against the authority claimed, and in case of reasonable doubt must be denied. Dotson v. City of Ames, 251 Iowa 467, 101 N.W.2d 711, and authorities therein cited. The law is equally well established that where a general statute, if standing alone, would include the same matter as a special statute and thus conflict with it, the special statute will be considered an exception to the general statute whether it was adopted before or after the general statute. Gade v. City of Waverly, 251 Iowa 473, 101 N.W.2d 525, and cited authorities. II. Four sections of the code appear to be pertinent to the issue of authority to enact the Ordinance in question. Section 366.1. ‘Municipal corporations shall have power to make and publish, from time to time, ordinances, not inconsistent with the laws of the state, for carrying into effect or discharging the powers and duties conferred by this title, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof, and to enforce obedience to such ordinances by fine not exceeding one hundred dollars, or by imprisonment not exceeding thirty days.’ Section 368.2, provides in part: ‘Cities and towns are bodies politic and corporate, ...and shall have the general powers and privileges granted, and such others as are incidental to municipal corporations..., not inconsistent with the statutes of the state, for the protection of their property and inhabitants, and the preservation of peace and good order therein,... .’ Section 397.1, ‘Cities and towns may purchase. Cities and towns shall have the power to purchase, establish, erect, maintain, and operate within or without their corporate limits... waterworks,..., with all the necessary reservoirs, mains, filters, streams, trenches, pipes, drains, poles, wires, burners, machinery, apparatus, and other requisites of said works or plants, and lease or sell the same’. Section 397.26 Jurisdiction of City. ‘For the purpose of maintaining and protecting such works or plants from injury, and protecting the water of such waterworks from pollution, the jurisdiction of such city or town shall extend over the territory occupied by such works, and all reservoirs, mains, filters, streams...and other requisites of said works or plants used in or necessary for the construction, maintenance, and operation of the same, and over the stream or source from which the water is taken for five miles above the point from which it is taken.’ III. The trial court held there was nothing in Section 397.1 or Section 397.26 in any way authorizing fluoridation. We agree. We might also add that nowhere in the briefs and arguments do we find any contention of express authority. The trial court also held, in effect, these two statutes were special ones in relation to water supplies as against the general powers of municipal corporations. We do not agree with this premise. True they are special statutes dealing with one phase of water supplies, but that phase deals entirely with the power of the city to own and operate such a business or utility. It deals only with the physical aspects, of such a utility and has nothing to do with the manner in which it is operated or the type, character or ingredients of the product produced and sold other than, perhaps, that it be water. Neither 397.1 nor 397.26 conflicts with 366.1 or 368.2. Such cases as Mason City v. City of Zerble, 250 Iowa 102, 93 N.W.2d 94; Gade v. City of Waverly, 251 Iowa 473, 101 N.W.2d 525, supra; Shelby County Myrtle Memorial Hospital v. Harrison County, 249 Iowa 146, 96 N.W.2d 104; Leighton Supply Co. v. City Council of Fort Dodge, 228 Iowa 995, 292 N.W. 848, are not in point. 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 hoalth...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. V. Appellees contend in support of the decree that the court erred in holding that the ordinance was not in violation of Chapter 205, Code 1958, I.C.A., and hence void. This may be done without a cross appeal. Brandt v. Schucha, 250 Iowa 679, 96 N.W.2d 179. Chapter 205 deals with the sale and distribution of poisons. Section 205.5 specifically prohibits any person except a licensed pharmacist from selling at retail any of the poisons listed therein. Included in this list is sodium fluoride. It may be assumed that sodium silicofluoride, the ingredient the city proposes to inject into the water, is included in the fluoride prohibition. The record shows that the fluoride concentration of the water, after the injection thereof, is 1.2 parts to one million p. p. m., which is in accord with the rules and regulations of the State Department of Health of Iowa. It also appears that much of the water in Iowa has, in its natural state, a fluoride concentrate equal to or in excess of that involved here. It is also stipulated that no claim is made that the fluoride will poison the water or that it will make it less pure or potable. It is clear that the purpose of Section 205.5 is to regulate and restrict the retail sale of poisons as such. Conceding that the City of Council Bluffs is engaged in the sale at retail of water, the fact that such water may have a concentrate of fluoride of 1.2 to one million p. p. m., either naturally or due to action by the city, cannot under any reasonable theory be held to be a sale at retail of fluoride within the meaning of Section 205.5. Nicotine is also included in the prohibition found in said Section yet we doubt that any one would seriously contend that the sale of a package of cigarettes, we take judicial notice of the fact that cigarettes contain nicotine, was a sale of nicotine within the meaning of such statute. We can see no difference in the sale of water which contains fluoride as set forth in this record. The trial court was clearly correct. For the reasons above stated the decree of the trial court should be and is reversed and plaintiffs' petition dismissed. Reversed. All Justices concur.

+/- 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.

+/- Chapman v. City of Shreveport

Louisiana, Injunction, State police power

• Plaintiff
  Chapman
• Defendant
  City of Shreveport
• State
  Louisiana
• Other Parties
  -
• Case Tags
  - Injunction

  - State police power
• Citation

  225 La. 859; 74 So. 2d 142 (La. 1954)

• Year
  1954-01-01T00:00:00
• Court Name
  Supreme Court of Louisiana
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Hawthorne
• Opinion Text
  HAWTHORNE, Justice. This is an appeal by the City of Shreveport from a judgment enjoining it from fluoridating the municipal water supply. The City of Shreveport owns and operates its own municipal waterworks plant and other facilities for the sale and distribution of water for consumption and other uses of the inhabitants of that city. On October 16, 1953, the Shreveport city council adopted a resolution authorizing the commissioner of public utilities to proceed with the advertising and calling for bids for the necessary equipment to fluoridate the city water supply in accordance with the best plans now available and to receive these bids on or before October 27. The initial amount which the city proposes to spend in order to fluoridate the water supply is shown by the record to be in excess of $10,000 and the annual operating expense approximately $21,000. The plaintiffs, as residents, citizens, taxpayers, and purchasers of water from the city, instituted this suit seeking a preliminary writ of injunction to prevent the proposed fluoridation of the public water supply and the expenditure of these public funds for such purpose. After trial in the lower court a preliminary injuncation issued enjoining, restraining, and prohibiting the City of Shreveport from proceeding further to fluoridate the water supply of that city. From that judgment the city was granted a devolutive appeal to this court. As we appreciate and understand the trial judge's written opinion, he granted a preliminary injunction in the instant case because in his opinion the charter of the City of Shreveport delegated no authority, express or implied, to the city to fluoridate its water supply, and the city did not have this power or right under its police power in the domain of public health. In the course of his reasons for judgment he recognized the well settled principle of law that a municipal authority may take any action it may determine to be necessary and expedient under its police power in the domain of public health, provided the purpose and object of such action bears a reasonable relation to the public health and provided the means employed is not arbitrary, unreasonable, oppressive, or violative of the constitutional guarantees of the citizens. He concluded, however, that under the facts of the instant case the fluoridation of the city water supply bears no reasonable relation to the public health or that it is not a matter of public health but is strictly within the realm of private dental health and hygiene, in which each person should be free to choose his course for himself and those for whom he is responsible in the family relationship. For the primary purpose of reducing tooth decay in children 12 years of age and under, the City of Shreveport proposes to add to the water furnished by it for the use and consumption of the citizens sodium fluoride in the proportion of one part per million. In furtherance of this purpose the resolution authorizing the calling for bids for the necessary equipment for fluoridation was adopted by the city council at the request of the Council of Dental Health of the Louisiana State Dental Society, the Council of Dental Health of the Fourth District Dental Association, the Shreveport Medical Society, and the City Board of Health of Shreveport, all of which advocated and approved the fluoridation of the city's water supply. The relationship between the fluoride content of water supplies and dental caries has been the subject for some years of extensive scienctific study, research, and experiments, and as a result of this research the court in the instant case has the benefit of facts ascertained, studies made, and opinions formed by many leading and prominent American dentists, physiciants, surgeous, scientists, health and dental associations and organizations, whose statements have been filed in evidence, on the advisability of the fluoridation of water for human consumption. In sum, these statements disclose the following pertinent facts: Dental caries, or tooth decay, is a pandemic disease, affecting most of our population both adults and children. Fluorides in varying proportions from less than one to 14 parts per million exist naturally in the water supplies of many regions of this country, and it has been demonstrated by studies made in many sections throughout the United States that in communities where the water supply contains no fluoride tooth decay among children is approximately three times greater than it is among children living in communities where the water supply contains one part of fluoride per million parts of water or more. In these studies other factors of diet and other mineral components of water were considred, but it was found that only the fluoride content of the water consumed bore direct relationship to consistent protection from dental caries. This preventive effect of fluorides on tooth decay was found to be most efficient during the period when the dentine and enamel of the permanent dentition are being formed, which is the period from birth to about the twelfth year, but it was shown that the protection afforded against dental caries in this formative period continues well into adult life, even into the middle 30's and 40's. Studies were made of the effect on tooth decay when fluorides were artificially added to municipal water supplies, and it was found that the fluorides artificially added had the same preventive effect on caries as did the fluorides naturally existing in water. By November 6, 1953, 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. By 1951, after five or six years of the fluoridation of the water supplies in certain cities, studies and examinations were made of the teeth of school children in these cities (and also, for comparison, of those of the children in cities where the water supply contained no fluorides), and the finding reported was that there has been a reduction of from 50 per cent to 65 per cent of decay in permanent teeth in children in the cities where fluorides had been added artificially to the water. As a result of these studies and experiments the United States Public Health Service, the National Institute of Health, the American Dental Association, and numerous other national organizations recommended the fluoridation of municipal water supplies as a desirable and effective health measure. The City of Shreveport proposes to use the recommended concentration of one part per million, and this concentration has not been reported to produce any adverse physiological effect. Vital statistics and reports of physicians from communities where water containing one part per million or over is consumed have shown uniformly no undesirable effects on birth or death rates or on invalids, elderly or sick individuals, or any other persons. The addition of fluorides to the water supply does not affect the color, odor, or taste of the water. The same kind of procedure which has long been used to feed chlorine and other chemicals into the water supply is used to introduce fluorides into the water, and there is no question that fluorides can thus be added to the water without danger of physical over-feeding or any mechanical breakdown which would produce a toxic effect. The charter of the city of Shreveport, which was written under the authority of a 1948 amendment to Article 14, § 37, of the Constitution and approved by a vote of the citizens of that community in 1950, confers upon that city the power to adopt such measures as are necessary in the opinion of the council to promote the general welfare of the inhabitants of that city in Section 2.01 of the charter: ‘General Powers. The City of Shreveport shall have and may exercise all the powers, rights, and privileges and immunities which are now or may hereafter be or could be conferred upon cities of its population class by the constitution and general laws of the state; all powers, rights, privileges and immunities heretofore conferred on said city by any special act and not inconsistent with this plan of government; and all other powers pertinent to the government of the city the exercise of which is not expressly prohibited by the constitution of the state and which, in the opinion of the council, are necessary or desirable to promote the general welfare of the city and the safety, health, peace, good order, commfort, convenience and morals of its inhabitants, as fully and completely as though such powers were specifically enumerated in this plan of government, and no enumeration of particular powers in this plan or government shall be taken to be exclusive but shall be held to be in addition to this general grant of power.’ (Italics ours.) Accordingly, if fluoridation of the water supply bears any reasonable relation to the public health, it can be undertaken by the city under the express provisions of this section of its charter. Moreover, it is well settled that courts will not interfere with the legislative authority in the exercise of its police power unless it is plain and palpable that such action has no real or substantive relation to the public health or safety or general welfare. City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503; City of Shreveport v. Bayse, 166 La. 689, 117 So. 775. There also exists a presumption that an ordinance adopted under the police power of the state is valid, and the burden of proving the contrary is on him who asserts the invalidity or nullity. City of New Orleans v. Beck, 139 La. 595, 71 So. 883, L.R.A.1918A, 120; Ward v. Leche, 189 La. 113, 179 So. 52; State v. Saia, 212 La. 868, 33 So.2d 665; State v. Rones, 223 La. 839, 67 So.2d 99. Although the immediate purpose of the proposed fluoridation is to retard and decrease the disease of dental caries in young children, the protection thus given will continue well into adult life. Not only will the proposed fluoridation retard and reduce this disease in the generation of children presently in Shreveport, but its effect will continue into their adult life, and consequently the proposed measure will ultimately be beneficial to all the residents of the city. 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 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. Children of today are adult citizens of tomorrow, upon whose shoulders will fall the responsibilities and duties of maintaining our government and society. Any legislation, therefore, which will better equip them, by retarding or reducing the prevalence of disease, is of great importance and beneficial to all citizens. In our opinion the legislation does bear a reasonable relation to public health. The appellees insist, and the district judge concluded, that fluoridation of the water to prevent tooth decay is not a matter of public health, but a matter of private health and hygiene. The evidence in this record refutes overwhelmingly this conclusion. Dental caries is one of the most serious health problems in the City of Shreveport, and in the nation as well. The fact that it is not a communicable disease and one that can cause an epidemic does not detract from its seriousness as affecting the health and well-being of the community. The plan for fluoridation, therefore, bears a reasonable relation to the general welfare and the general health of the community, and is a valid exercise of the power conferred by Section 2.01 of the charter if it is not arbitrary or unreasonable. The appellees contend that fluoridation of the water supply is arbitrary and unreasonable because it may cause serious ill effects to the adult, aged, and ill; that it is arbitrary to fluoridate the water until clinical tests have proved that these serious effects will not result. The appellees have failed completely to prove that fluoridation would be harmful to the aged and ill. There is expert opinion of respectable medical authority that fluorides added to water will have no more harmful effect than fluorides naturally appearing in water, and that in those places where fluorides natually appear no ill effects have been experienced by the aged or ill of the population. In those places where tests have been conducted no ill effects have been shown. It cannot be said, then, that the City of Shreveport is acting arbitrarily from this poing of view. Appellees contend that it is arbitrary and unreasonable to compel a person to submit to the taking of preventive medicine except for the purpose of controlling the spread of contagious or infectious diseases. Their argument is not entirely appropriate to the instant case. In the first place there is no direct compulsion on anyone to drink the water. The compulsion at most is an indirect one, but it cannot be questioned, of course, that the fluoridation is undertaken with the view that the citizens or a large majority of them will receive its benefits by drinking the public water. The witnesses from the dental profession considered that the addition of fluoride to the water was not medicating it in the generally accepted sense, but was adding to it one of the mineral properties found naturally in water in some sections of the country. Appellees next argue that it is unreasonable to fluoridate the water when it will reduce the incidence of disease only among a limited class. A health measure is not necessarily arbitrary because it affects primarily one class. It may, even so, be in the interest of the public generally. Ultimately, of course, the fluoridation wil benefit the whole population because the retarding of decay extends into adult life of the child who has had the benefit of water containing fluorides. It has long been recognized that a police measure is not objectionable because it does not extend to all classes. In Zucht v. King, 260 U.S. 174, 43 S.Ct. 24, 25, 67 L.Ed. 194, it was said: ‘...A long line of decisions by this court [has]...settled that in the exercise of the police power reasonable classification may be freely applied, and that regulation is not violative of the equal protection clause merely because it is not all-embracing. ...’ See also West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; Sturges & Burn Manufacturing Co. v. Beauchamp, 231 U.S. 320, 34 S.Ct. 60, 58 L.Ed. 245. There is no merit in appellees' argument that, if the city charter grants to the city council of Shreveport authority to fluoridate its water supply, such action to that extent is a violation of the Fourteenth Amendment of the United States Constitution. The Fourteenth Amendment does not deprive a state or its subdivisions of the right to preserve order or to protect the health of the people under its police power, and in the exercise of its power the legislative branch may interfere with and impair the individual liberty of the citizens in a manner and to an extent reasonably necessary for the public interest, and the courts will not interfere except where the measures invade fundamental rights or are arbitrary, oppressive, or unreasonable. This is not a proper case for judicial interference. See Cooley on Constitutional Law (4th ed.), p. 289; 2 Cooley's Constitutional Limitations (8th ed.), pp. 1223 et seq.; Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; State v. McCormick, 142 La. 580, 77 So. 288, L.R.A.1918C, 262. For the reasons assigned, the judgment of the district court is reversed and set aside, and plaintiffs' suit is dismissed at their costs. FOURNET, C. J., and MOISE, J., not participating.

+/- 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).

+/- Gorman v. City of New Bedford

Massachusetts, Injunction

• Plaintiff
  Ruth Gorman
• Defendant
  City of New Bedford
• State
  Massachusetts
• Other Parties
  Citizens of New Bedford, Massachusetts Dental Society
• Case Tags
  - Injunction
• Citation

  383 Mass. 57; 417 N.E.2d 433 (Mass. 1981)

• Year
  1981-01-01T00:00:00
• Court Name
  Supreme Judicial Court of Massachusetts
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Wilkins JJ
• Opinion Text
  WILKINS, Justice. In accord with the requirements of the Home Rule Amendment, art. 2 of the Amendments to the Massachusetts Constitution, as appearing in art. 89 of the Amendments, the city of New Bedford sought and obtained legislative authorization to conduct a vote at its 1979 municipal election on the question whether the city's water supply should continue to be fluoridated. St.1979, c. 243, as amended by St.1979, c. 447. The plaintiffs challenge the lawfulness of the legislation, claiming that the Home Rule Amendment invalidates that special authorization. We see no valid basis for this contention, nor any support for the plaintiffs' other constitutional challenges to the special legislation. Thus, having transferred the plaintiffs' appeal here on our own motion, we affirm that portion of the judgment that declared the special legislation constitutional. The case was presented on a stipulation of facts, material portions of which we summarize. The individual plaintiffs are taxpayers and inhabitants of New Bedford who support fluoridation in New Bedford. The plaintiff Massachusetts Dental Society, which represents more than 85% of the dentists licensed to practice dentistry in the Commonwealth, supports the fluoridation of public water supplies. In November, 1973, the voters of New Bedford voted (17,515 to 13,813) to approve the fluoridation of the city's public water supply. See G.L. c. 111, s 8C. Implementation of fluoridation was delayed by construction of a new water purifying station. Fluoridation began in New Bedford in 1978. In 1979, in response to petitions from the city, the Legislature passed two acts which collectively authorized New Bedford to place on the city's 1979 official ballot the question whether the fluoridation of the public water supply for domestic use in the city should be continued. St.1979, c. 243 and c. 447.^FN2 FN2. Chapter 243 of the Acts of 1979 authorized a vote in New Bedford on the 1980 State ballot, as follows: “Notwithstanding the provisions of section eight C of chapter one hundred and eleven of the General Laws, the state secretary shall place on the official ballot of the city of New Bedford at the next state biennial election to be held in the year nineteen hundred and eighty the following question: ‘Shall the fluoridation of the public water supply for domestic use in the city of New Bedford be continued?’ If the majority of votes in answer to said question is in the negative, the water supply of said city shall not be fluoridated.” The second act (St.1979, c. 447), approved about two months later, moved the vote up to the 1979 municipal election. It reads as follows: “Chapter 243 of the acts of 1979 is hereby amended by striking out the first sentence and inserting in place thereof the following sentence: The city of New Bedford shall place on the official ballot to be used for the election of city officers in said city at the municipal election to be held in the current year the following question: ‘Shall the fluoridation of the public water supply for domestic use in the city of New Bedford be continued?’ ” This action was commenced in October, 1979, seeking a declaration that the special legislation was unconstitutional and also seeking an injunction against placing the fluoridation question on the 1979 ballot. The injunction request was denied in the form sought, but the city has been enjoined from discontinuing the fluoridation of the public water supply pending the final determination of this action. In the municipal election of November, 1979, the vote was against continued fluoridation (20,181 to 9,912). In December, 1979, the Attorney General was authorized to intervene as a defendant. 1. The plaintiffs' principal argument is that the legislation authorizing New Bedford to conduct a plebiscite on the issue of fluoridation is barred by the Home Rule Amendment. The contention is that the relevant statutes are not special acts relating to local matters, authorized by the Home Rule Amendment, but rather are amendments to the General Laws with Statewide application that may not properly be enacted in response to New Bedford's requests. It is improbable that a constitutional amendment strengthening local control of various matters would contain a new and insidious restriction against the Legislature's authorizing particular action desired by a municipality. Thus, as to the case before us, it seems most unlikely in a practical sense, and just wrong in a theoretical sense, that the Home Rule Amendment would limit the city and the State from agreeing on legislative action authorizing a local plebiscite on fluoridation. A review of the provisions of the Home Rule Amendment shows nothing that restricts the Legislature, on petition of a municipality, from exempting the municipality from the provisions of a General Law. If, as the plaintiffs argue, the two legislative acts were not special laws requiring local initiation but rather were amendments to the General Laws, a point with which we do not agree, the Home Rule Amendment would have no applicability at all to this case. If there is a constitutional problem with enacting a requested special law exempting a municipality from the provisions of a General Law, it lies elsewhere than in the Home Rule Amendment. We, therefore, turn to the plaintiffs' other challenges to the validity of the legislation authorizing New Bedford to conduct a vote on fluoridation. 2. We reject the argument that the special legislation concerning fluoridation in New Bedford violates art. 20 of the Declaration of Rights of the Constitution of the Commonwealth. Article 20 states in effect that only the Legislature may suspend the laws and then only by express suspension. By the special acts, the Legislature explicitly authorized the voters of New Bedford to vote on the fluoridation of the city's water supply. Therefore, assuming that, by giving the New Bedford voters a choice, the special legislation vicariously authorized the suspension of the laws concerning fluoridation, the fact remains that it was the Legislature that authorized the “suspension” and hence no violation of art. 20 is presented in this case. See Commissioner of Pub. Health v. The Bessie M. Burke Memorial Hosp., 366 Mass. 734, 741, 323 N.E.2d 309 (1975). The granting of a local option to accept or reject the provisions of a General Law is not a violation of art. 20 in the absence of a showing that the distinction among municipalities was unreasonable. Opinion of the Justices, 286 Mass. 611, 618-619, 191 N.E. 33 (1934). 3. We also find no merit in the plaintiffs' claim that there was a violation of art. 10 of the Declaration of Rights of the Constitution of the Commonwealth. They contend that it is improper to exempt identifiable individuals from the requirements of the General Laws concerning fluoridation, citing Commissioner of Pub. Health v. The Bessie M. Burke Memorial Hosp., supra 366 Mass. at 742, 743, 323 N.E.2d 309, Paddock v. Brookline, 347 Mass. 230, 232, 197 N.E.2d 321 (1964), and Holden v. James, 11 Mass. 396, 405 (1815). We pass by the point whether on this record the plaintiffs have any standing to assert this art. 10 argument on their own behalf or on behalf of others. The contention that the special acts concerning New Bedford unfairly provided some individual benefit or disadvantage not otherwise found in the applicable General Laws is unwarranted. There is no general, Statewide mandate that public water supplies be fluoridated. Section 8C of G.L. c. 111 provides for the fluoridation of public water supplies for domestic use upon the order of a local board of health, but preserves the right of the voters to negate the order at the next municipal election if 10% of the registered voters petition for a local plebiscite. See Board of Health of N. Adams v. Mayor of N. Adams, 368 Mass. 554, 556-558, 334 N.E.2d 34 (1975). If there is a negative vote, the municipality may not fluoridate its water supply for at least two years from the date of the negative vote. The special legislation in this case simply gave New Bedford's voters another chance to vote against fluoridating the public water supply. The effect of this limited legislation hardly constitutes the unfair granting of an individual benefit or the denying to an individual of rights generally available to others, and thus does not present any serious question of special legislation in violation of art. 10. The special acts are not shown to do injury to the constitutionally protected interest of any individual. See Commissioner of Pub. Health v. The Bessie M. Burke Memorial Hosp., supra at 744, 334 N.E.2d 34. ^FN3 FN3. The question is not presented for our determination whether the fluoridation of public water supplies is desirable or undesirable. Certainly, there is no case made, or attempted to be made, that a person is entitled to the fluoridation of his or her drinking water as a matter of constitutional right. 4. We affirm the judge's determination expressed in the judgment that the 1979 special acts were constitutional. The judgment also stated that “the complaint and preliminary injunction are hereby dismissed.” Because the parties are entitled to a declaration of their rights, the complaint should not have been dismissed. We vacate that portion of the judgment that is quoted above. Judgment shall be entered declaring the special acts to be constitutional and dissolving the preliminary injunction. So ordered.

+/- Jacobson v. Massachusetts

Massachusetts, State police power

• Plaintiff
  Jacobson
• Defendant
  Massachusetts
• State
  Massachusetts
• Other Parties
  -
• Case Tags
  - State police power
• Citation
  197 U.S. 11 (U.S. 1905)
• Year
  1905-00-00T00:00:00
• Court Name
  Supreme Court of the United States
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  Mr. Justice Harlan delivered the opinion of the court: This case involves the validity, under the Constitution of the United States, of certain provisions in the statutes of Massachusetts relating to vaccination. The Revised Laws of that commonwealth, chap. 75, § 137, provide that ‘the board of health of a city or town, if, in its opinion, it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants thereof, and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit $5.’ An exception is made in favor of ‘children who present a certificate, signed by a registered physician, that they are unfit subjects for vaccination.’ § 139. Proceeding under the above statutes, the board of health of the city of Cambridge, Massachusetts, on the 27th day of February, 1902, adopted the following regulation: ‘Whereas, smallpox has been prevalent to some extent in the city of Cambridge, and still continues to increase; and whereas, it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated; and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants habitants of the city who have not been successfully vaccinated since March 1st, 1897, be vaccinated or revaccinated.’ Subsequently, the board adopted an additional regulation empowering a named physician to enforce the vaccination of persons as directed by the board at its special meeting of February 27th. The above regulations being in force, the plaintiff in error, Jacobson, was proceeded against by a criminal complaint in one of the inferior courts of Massachusetts. The complaint charged that on the 17th day of July, 1902, the board of health of Cambridge, being of the opinion that it was necessary for the public health and safety, required the vaccination and revaccination of all the inhabitants thereof who had not been successfully vaccinated since the 1st day of March, 1897, and provided them with the means of free vaccination; and that the defendant, being over twenty-one years of age and not under guardianship, refused and neglected to comply with such requirement. The defendant, having been arraigned, pleaded not guilty. The government put in evidence the above regulations adopted by the board of health, and made proof tending to show that its chairman informed the defendant that, by refusing to be vaccinated, he would incur the penalty provided by the statute, and would be prosecuted therefor; that he offered to vaccinate the defendant without expense to him; and that the offer was declined, and defendant refused to be vaccinated. The prosecution having introduced no other evidence, the defendant made numerous offers of proof. But the trial court ruled that each and all of the facts offered to be proved by the defendant were immaterial, and excluded all proof of them. The defendant, standing upon his offers of proof, and introducing no evidence, asked numerous instructions to the jury, among which were the following: That § 137 of chapter 75 of the Revised Laws of Massachusetts was in derogation of the rights secured to the defendant by the preamble to the Constitution of the United States, and tended to subvert and defeat the purposes of the Constitution as declared in its preamble; That the section referred to was in derogation of the rights secured to the defendant by the 14th Amendment of the Constitution of the United States, and especially of the clauses of that amendment providing that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; and That said section was opposed to the spirit of the Constitution. Each of defendant's prayers for instructions was rejected, and he duly excepted. The defendant requested the court, but the court refused, to instruct the jury to return a verdict of not guilty. And the court instructed structed the jury, in substance, that, if they believed the evidence introduced by the commonwealth, and were satisfied beyond a reasonable doubt that the defendant was guilty of the offense charged in the complaint, they would be warranted in finding a verdict of guilty. A verdict of guilty was thereupon returned. The case was then continued for the opinion of the supreme judicial court of Massachusetts. Santa Fé Pacific Railroad Company, the exceptions, sustained the action of the trial court, and thereafter, pursuant to the verdict of the jury, he was sentenced by the court to pay a fine of $5. And the court ordered that he stand committed until the fine was paid. We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question (§ 137, chap. 75) is in derogation of rights secured by the preamble of the Constitution of the United States. Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States, unless, apart from the preamble, it be found in some express delegation of power, or in some power to be properly implied therefrom. 1 Story, Const. § 462. We also pass without discussion the suggestion that the above section of the statute is opposed to the spirit of the Constitution. Undoubtedly, as observed by Chief Justice Marshall, speaking for the court in Sturges v. Crowninshield, 4 Wheat. 122, 202, 4 L. ed. 529, 550, ‘the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from its words.’ We have no need in this case to go beyond the plain, obvious meaning of the words in those provisions of the Constitution which, it is contended, must control our decision. What, according to the judgment of the state court, are the scope and effect of the statute? What results were intended to be accomplished by it? These questions must be answered. The supreme judicial court of Massachusetts said in the present case: ‘Let us consider the offer of evidence which was made by the defendant Jacobson. The ninth of the propositions which he offered to prove, as to what vaccination consists of, is nothing more than a fact of common knowledge, upon which the statute is founded, and proof of it was unnecessary and immaterial. The thirteenth and fourteenth involved matters depending upon his personal opinion, which could not be taken as correct, or given effect, merely because he made it a ground of refusal to comply with the requirement. Moreover, his views could not affect the validity of the statute, nor entitle him to be excepted from its provisions. Com. v. Connolly, 163 Mass. 539, 40 N. E. 862; Com. v. Has, 122 Mass. 40; Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244; Reg. v. Downes, 13 Cox, C. C. 111. The other eleven propositions all relate to alleged injurious or dangerous effects of vaccination. The defendant ‘offered to prove and show be competent evidence’ these socalled facts. Each of them, in its nature, is such that it cannot be stated as a truth, otherwise than as a matter of opinion. The only ‘competent evidence’ that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions. It would not have been competent to introduce the medical history of individual cases. Assuming that medical experts could have been found who would have testified in support of these propositions, and that it had become the duty of the judge, in accordance with the law as stated in Com. v. Anthes, 5 Gray, 185, to instruct the jury as to whether or not the statute is constitutional, he would have been obliged to consider the evidence in connection with facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute. He would have considered this testimony of experts in connection with the facts that for nearly a century most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even in a conceivable case without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive; and that not only the medical profession and the people generally have for a long time entertained these opinions, but legislatures and courts have acted upon them with general unanimity. If the defendant had been permitted to introduce such expert testimony as he had in support of these several propositions, it could not have changed the result. It would not have justified the court in holding that the legislature had transcended its power in enacting this statute on their judgment of what the welfare of the people demands.' Com. v. Jacobson, 183 Mass. 242, 66 N. E. 719. While the mere rejection of defendant's offers of proof does not strictly present a Federal question, we may properly regard the exclusion of evidence upon the ground of its incompetency or immateriality under the statute as showing what, in the opinion of the state court, are the scope and meaning of the statute. Taking the above observations of the state court as indicating the scope of the statute,-and such is our duty. Leffingwell v. Warren, 2 Black, 599, 603, 17 L. ed. 261. 262; Morley v. Lake Shore & M. S. R. Co. 146 U. S. 162, 167, 36 L. ed. 925, 928, 13 Sup. Ct. Rep. 54; Tullis v. Lake Erie & W. R. Co. 175 U. S. 348, 44 L. ed. 192, 20 Sup. Ct. Rep. 136; W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 466, 45 L. ed. 619, 625, 21 Sup. Ct. Rep. 423,-we assume, for the purposes of the present inquiry, that its provisions require, at least as a general rule, that adults not under the guardianship and remaining within the limits of the city of Cambridge must submit to the regulation adopted by the board of health. Is the statute, so construed, therefore, inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the state? The authority of the state to enact this statute is to be referred to what is commonly called the police power,-a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained frained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. 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. Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 470, 24 L. ed. 527, 530; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 661, 29 L. ed. 516, 520, 6 Sup. Ct. Rep. 252; Lawson v. Stecle, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499. It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the general government of any power it possesses under the Constitution, or with any right which that instrument gives or secures. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L. ed. 23, 73; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 626, 42 L. ed. 878, 882, 18 Sup. Ct. Rep. 488. We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted by the state court. The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. 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. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’ Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 471, 24 L. ed. 527, 530; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 628, 629, 42 L. ed. 878-883, 18 Sup. Ct. Rep. 488; Thorpe v. Rutland & B. R. Co. 27 Vt. 148, 62 Am. Dec. 625. In Crowley v. Christensen, 137 U. S. 86, 89, 34 L. ed. 620, 621, 11 Sup. Ct. Rep. 13, we said: ‘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.’ In the Constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good,’ and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.’ The good and welfare of the commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Com. v. Alger, 7 Cush. 84. Applying these principles to the present case, it is to be observed that the legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the board of health, that was necessary for the public health or the public safety. The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual, nor an unreasonable or arbitrary, requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation,-and nothing is asserted or appears in the record to the contrary,-if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 301, 45 L. ed. 194, 201, 21 Sup. Ct. Rep. 115; 1 Dill. Mun. Corp. 4th ed. §§ 319-325, and authorities in notes; Freurid, Police Power, §§ 63 et seq. In Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 471-473, 24 L. ed. 527, 530, 531, this court recognized the right of a state to pass sanitary laws, laws for the protection of life, liberty, health, or property within its limits, laws to prevent persons and animals suffering under contagious or infectious diseases, or convicts, from coming within its borders. But, as the laws there involved went beyond the necessity of the case, and, under the guise of exerting a police power, invaded the domain of Federal authority, and violated rights secured by the Constitution, this court deemed it to be its duty to hold such laws invalid. If the mode adopted by the commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient, or objectionable to some,-if nothing more could be reasonably affirmed of the statute in question,-the answer is 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. 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. An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person ‘to live and work where he will’ ( Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427); and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one's body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger. It is said, however, that the statute, as interpreted by the state court, although making an exception in favor of children certified by a registered physician to be unfit subjects for vaccination, makes no exception in case of adults in like condition. But this cannot be deemed a denial of the equal protection of the laws to adults; for the statute is applicable equally to all in like condition, and there are obviously reasons why regulations may be appropriate for adults which could not be safely applied to persons of tender years. Looking at the propositions embodied in the defendant's rejected offers of proof, it is clear that they are more formidable by their number than by their inherent value. Those offers in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority. We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best-known, way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? 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. Mugler v. Kansas, 123 U. S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Minnesota v. Barber, 136 U. S. 313, 320, 34 L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862; Atkin v. Kansas, 191 U. S. 207, 223, 48 L. ed. 148, 158, 24 Sup. Ct. Rep. 124. Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the state to that end has no real or substantial relation to the protection of the public health and the public safety. Such an assertion would not be consistent with the experience of this and other countries whose authorities have dealt with the disease of smallpox.^FN1 And the principle of vaccination as a means to prevent the spread of smallpox has been enforced in many states by statutes making the vaccination of children a condition of their right to enter or remain in public schools. Blue v. Beach, 155 Ind. 121, 50 L. R. A. 64, 80 Am. St. Rep. 195, 56 N. E. 89; Morris v. Columbus, 102 Ga. 792, 42 L. R. A. 175, 66 Am. St. Rep. 243, 30 S. E. 850; State v. Hay, 126 N. C. 999, 49 L. R. A. 588, 78 Am. St. Rep. 691, 35 S. E. 459; Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; Bissell v. Davison, 65 Conn. 183, 29 L. R. A. 251, 32 Atl. 348; Hazen v. Strong, 2 Vt. 427; Duffield v. Williamsport School District, 162 Pa. 476, 25 L. R. A. 152, 29 Atl. 742. FN1 ‘State-supported facilities for vaccination began in England in 1808 with the National Vaccine Establishment. In 1840 vaccination fees were made payable out of the rates. The first compulsory act was passed in 1853, the guardians of the poor being intrusted with the carrying out of the law; in 1854 the public vacinations under one year of age were 408,824 as against an average of 180,960 for several years before. In 1867 a new act was passed, rather to remove some technical difficulties than to enlarge the scope of the former act; and in 1871 the act was passed which compelled the boards of guardians to appoint vaccination officers. The guardians also appoint a public vaccinator, who must be duly qualified to practise medicine, and whose duty it is to vaccinate (for a fee of one shilling and sixpence) any child resident within his district brought to him for that purpose, to examine the same a week after, to give a certificate, and to certify to the vaccination officer the fact of vaccination or of insusceptibility. . . . Vaccination was made compulsory in Bavarla in 1807, and subsequently in the following countries: Denmark (1810), Sweden (1814), Württemberg, Hesse, and other German states (1818), Prussia (1835), Roumania (1874), Hungary (1876), and Servia (1881). It is compulsory by cantonal law in 10 out of the 22 Swiss cantons; an attempt to pass a Federal compulsory law was defeated by a plebiscite in 1881. In the following countries there is no compulsory law, but governmental facilities and compulsion on various classes more or less directly under governmental control, such as soldiers, state employees, apprentices, school pupils, etc.: France, Italy, Spain, Portugal, Belgium. Norway, Austria, Turkey. . . . Vaccination has been compulsory in South Australia since 1872, in Victoria since 1874, and in Western Australia since 1878. In Tasmania a compulsory act was passed in 1882. In New South Wales there is no compulsion, but free facilities for vaccination. Compulsion was adopted at Calcutta in 1880, and since then at 80 other towns of Bengal, at Madras in 1884, and at Bombay and elsewhere in the presidency a few years earlier. Revaccination was made compulsory in Denmark in 1871, and in Roumania in 1874; in Holland it was enacted for all school pupils in 1872. The various laws and administrative orders which had been for many years in force as to vaccination and revaccination in the several German states were consolidated in an imperial statute of 1874.’ 24 Encyclopaedia Britannica (1894), Vaccination. ‘In 1857 the British Parliament received answers from 552 physicians to questions which were asked them in reference to the utility of vaccination, and only two of these spoke against it. Nothing proves this utility more clearly than the statistics obtained. Especially instructive are those which Flinzer compiled respecting the epidemic in Chemnitz which prevailed in 1870-71. At this time in the town there were 64,255 inhabitants, of whom 53,891, or 83.87 per cent, were vaccinated, 5,712, or 8.89 per cent were unvaccinated, and 4,652, or 7.24 per cent, had had the smallpox before. Of those vaccinated 953, or 1.77 per cent, became affected with smallpox, and of the uninocculated 2,643, or 46.3 per cent, had the disease. In the vaccinated the mortality from the disease was 0.73 per cent, and in the unprotected it was 9.16 per cent. In general, the danger of infection is six times as great, and the mortality 68 times as great, in the unvaccinated, as in the vaccinated. Statistics derived from the civil population are in general not so instructive as those derived from armies, where vaccination is usually more carefully performed, and where statistics can be more accurately collected. During the Franco-German war (1870-71) there was in France a widespread epidemic of smallpox, but the German army lost during the campaign only 450 cases, or 58 men to the 100,000; in the French army, however, where vaccination was not carefully carried out, the number of deaths from smallpox was 23,400.’ , Johnson's Universal Cyclopaedia (1897), Vaccination. ‘The degree of protection afforded by vaccination thus became a question of great interest. Its extreme value was easily demonstrated by statistical researches. In England, in the last half of the eighteenth century, out of every 1,000 deaths, 96 occurred from smallpox; in the first half of the present century, out of every 1,000 deaths, but 35 were caused by that disease. The amount of mortality in a country by smallpox seems to bear a fixed relation to the extent to which vaccination is carried out In all England and Wales, for some years previous to 1853, the proportional mortality by smallpox was 21.9 to 1,000 deaths from all causes; in London it was but 16 to 1,000; in Ireland, where vaccination was much less general, it was 49 to 1,000, while in Connaught it was 60 to 1,000. On the other hand, in a number of European countries where vaccination was more or less compulsory, the proportionate number of deaths from smallpox about the same time varied from 2 per 1,000 of all causes in Bohemia, Lombardy, Venice, and Sweden, to 8.33 per 1,000 in Saxony. Although in many instances persons who had been vaccinated were attacked with smallpox in a more or less modified form, it was noticed that the persons so attacked had been commonly vaccinated many years previously. 16 American Cyclopedia, Vaccination (1883). ‘Dr Buchanan, the medical officer of the London Government Board, reported [1881] as the result of statistics that the smallpox death rate among adult persons vaccinated was 90 to a million; whereas among those unvaccinated it was 3,350 to a million; whereas among vaccinated children under five years of age, 42 1/2 per million; whereas among unvaccinated children of the same age it was 5,950 per million.’ Hardway, Essentials of Vaccination (1882). The same author reports that, among other conclusions reached by the Académie de Médicine of France, was one that, ‘without vaccination, hygienic measures (isolation, disinfection, etc.) are of themselves insufficient for preservation from smallpox.’ Ibid. The Belgian Academy of Medicine appointed a committee to make an exhaustive examination of the whole subject, and among the conclusions reported by them were: 1. ‘Without vaccination, hygienic measures and means, whether public or private, are powerless in preserving mankind from smallpox. . . . 3. Vaccination is always an inoffensive operation when practised with proper care on healthy subjects. . . . 4. It is highly desirable, in the interests of the health and lives of our countrymen, that vaccination should be rendered compulsory.’ Edwards, Vaccination (1882.) The English Royal Commission, appointed with Lord Herschell, the Lord Chancellor of England, at its head, to inquire, among other things, as to the effect of vaccination in reducing the prevalence of, and mortality from, smallpox, reported, after several years of investigation: ‘We think that it diminishes the liability to be attacked by the disease; that it modifies the character of the disease and renders it less fatal,-of a milder and less severe type; that the protection it affords against attacks of the disease is greatest during the years immediately succeeding the operation of vaccination.’ The latest case upon the subject of which we are aware is Viemester v. White, decided very recently by the court of appeals of New York. That case involved the validity of a statute excluding from the public schools all children who had not been vacinated. One contention was that the statute and the regulation adopted in exercise of its provisions was inconsistent with the rights, privileges, and liberties of the citizen. The contention was overruled, the court saying, among other things: ‘Smallpox is known of all to be a dangerous and contagious disease. If vaccination strongly tends to prevent the transmission or spread of this disease, it logically follows that children may be refused admission to the public schools until they have been vaccinated. The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm, with no good. It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our state, and in most civilized nations for generations. It is generally accepted in theory, and generally applied in practice, both by the voluntary action of the people, and in obedience to the command of law. Nearly every state in the Union has statutes to encourage, or directly or indirectly to require, vaccination; and this is true of most nations of Europe. . . . A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts.. . . The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a Republican form of government. While we do not decide, and cannot decide, that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the state, and, with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.’ 179 N. Y. 235, 72 N. E. 97. Since, then, vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was-perhaps, or possibly-not the best either for children or adults. Did the offers of proof made by the defendant present a case which entitled him, while remaining in Cambridge, to claim exemption from the operation of the statute and of the regulation adopted by the board of health? We have already said that his rejected offers, in the main, only set forth the theory of those who had no faith in vaccination as a means of preventing the spread of smallpox, or who thought that vaccination, without benefiting the public, put in peril the health of the person vaccinated. But there were some offers which it is contended embodied distinct facts that might properly have been considered. Let us see how this is. The defendant offered to prove that vaccination ‘quite often’ caused serious and permanent injury to the health of the person vaccinated; that the operation ‘occasionally’ resulted in death; that it was ‘impossible’ to tell ‘in any particular case’ what the results of vaccination would be, or whether it would injure the health or result in death; that ‘quite often’ one's blood is in a certain condition of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which to determine ‘with any degree of certainty’ whether one's blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is ‘quite often’ impure and dangerous to be used, but whether impure or not cannot be ascertained by any known practical test; that the defendant refused to submit to vaccination for the reason that he had, ‘when a child,’ been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination, not only in the case of his son, but in the cases of others. These offers, in effect, invited the court and jury to go over the whole ground gone over by the legislature when it enacted the statute in question. The legislature assumed that some children, by reason of their condition at the time, might not be fit subjects of vaccination; and it is suggested-and we will not say without reason-that such is the case with some adults. But the defendant did not offer to prove that, by reason of his then condition, he was in fact not a fit subject of vaccination at the time he was informed of the requirement of the regulation adopted by the board of health. It is entirely consistent with his offer of proof that, after reaching full age, he had become, so far as medical skill could discover, and when informed of the regulation of the board of health was, a fit subject of vaccination, and that the vaccine matter to be used in his case was such as any medical practitioner of good standing would regard as proper to be used. The matured opinions of medical men everywhere, and the experience of mankind, as all must know, negative the suggestion that it is not possible in any case to determine whether vaccination is safe. Was defendant exempted from the operation of the statute simply because of his dread of the same evil results experienced by him when a child, and which he had observed in the cases of his son and other children? Could he reasonably claim such an exemption because ‘quite often,’ or ‘occasionally,’ injury had resulted from vaccination, or because it was impossible, in the opinion of some, by any practical test, to determine with absolute certainty whether a particular person could be safely vaccinated? It seems to the court that an affirmative answer to these questions would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease. Such an answer would mean that compulsory vaccination could not, in any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox, and however deep and universal was the belief of the community and of its medical advisers that a system of general vaccination was vital to the safety of all. We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the state. If such be the privilege of a minority, then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population. We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the state. While this court should guard with firmness every right appertaining to life, liberty, or property as secured to the individual by the supreme law of the land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect. They are matters that do not ordinarily concern the national government. So far as they can be reached by any government, they depend, primarily, upon such action as the state, in its wisdom, may take; and we do not perceive that this legislation has invaded any right secured by the Federal Constitution. Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe-perhaps to repeat a thought already sufficiently expressed, namely-that the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the administration of the law. It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. ‘All laws,’ this court has said, ‘should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.’ United States v. Kirby, 7 Wall. 482, 19 L. ed. 278; Lau Ow Bew v. United States, 144 U. S. 47, 58, 36 L. ed. 340, 344, 12 Sup. Ct. Rep. 517. Until otherwise informed by the highest court of Massachusetts, we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination, or that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death. No such case is here presented. It is the cause of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease. We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error. The judgment of the court below must be affirmed. It is so ordered. Mr. Justice Brewer and Mr. Justice Peckham dissent.

+/- Scott v. Board of Election Commissioners of Newton

Massachusetts

• Plaintiff
  Wellington F. Scott
• Defendant
  Board of Election Commissioners of Newton
• State
  Massachusetts
• Other Parties
  Harold M. Band
• Case Tags
  -
• Citation
  346 Mass. 388; 193 N.E.2d 262 (Mass. 1963)
• Year
  1963-00-00T00:00:00
• Court Name
  Supreme Judicial Court Massachusetts
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Wilkins CJ
• Opinion Text
  WILKINS, Chief Justice. These two cases are directed against the ascertainment of the will of the voters of the city of Newton as to the discontinuance of fluoridation of the public water supply for domestic use. The first case is a petition for a writ of mandamus by five citizens and residents of the city to command the respondent board of election commissioners to refrain from placing upon the ballot at a municipal election to be held on November 5, 1963, the question prescribed by G.L. c. 40, § 41C, inserted by St.1962, c. 485, § 1. ^FN1 The second case is a petition by not less than ten taxable inhabitants of the city to restrain the respondent board from incurring any obligations or expending any moneys for checking or certifying the signatures on a petition of registered voters seeking to have the question placed upon the official ballot, from printing the question on the ballot, from giving notice of the question to the voters, and from paying for the counting of the votes. G.L. (Ter.Ed.) c. 40, § 53. FN1. § 41C. ‘Upon petition of five per cent of the registered voters of a city... in which the public water supply for domestic use is being floridated by such city...the following question shall be placed upon the official ballot to be used at the next regular municipal election... :-‘Shall the fluoridation of the public water supply for domestic use in (this city)... be discontinued?’... If a majority of the votes in answer to said question is in the affirmative, it shall be deemed and taken to be the will of the voters...that fluoridation of the public water supply for domestic use shall be discontinued, and if a majority of said votes is in the negative, it shall be deemed and taken to be the will of said voters that such supply shall continue to be fluoridated.' The cases were heard upon similar statements of agreed facts meeting the requirements of a case stated. The judge decided in favor of the respondent board. In the first case the judge entered an ‘order for final judgment,’ which provided ‘that final judgment be entered for the respondents dismissing the petition without costs and with prejudice.’ The petitioners appealed. In the second case a ‘final decree’ was entered in which the judge stated, ‘I find and declare that the respondents, as members of the Board of Election Commissioners of the City of Newton, have acted in accordance with G.L. c. 40, § 41C, in preparing to place upon the ballot at the next municipal election the question set out in said section.’ The petitioners filed a claim of appeal ‘from the final decree dismissing the petition.’ In November, 1961, at a municipal election a majority of the voters of Newton voted in the affirmative on the question, ‘Shall the public water supply for domestic use in this city be fluoridated?‘ Thereafter the board of aldermen appropriated about $180,000, and installation of equipment commenced in February, 1963. Because of unavoidable delays the installation did not become complete and none of the public water supply actually contained fluorine until September 12, 1963, on which date the water from one of the three pumping stations of the city contained fluorine. The water commissioner stated that the water supply for the entire city would contain fluorine by October 1. The respondent board determined that September 10 should be the last day for filing petitions to place upon the official ballot to be used at the election on November 5 the question, ‘Shall the fluoridation of the public water supply for domestic use in this city be discontinued?‘ Between August 30 and September 10 petitions purporting to be signed by approximately 5,000 voters were filed with the respondent board, which by September 10 had certified as correct approximately 2,800, which is more than five per cent of the registered voters plus one fifth thereof. The last practicable date for arranging for printing ballots was October 5. Accordingly, the question will be on the ballot. At most, the only relief now open would be to enjoin the count and tabulation of the votes. The core of the argument of the petitioners is that the authorization for the vote upon a petition by registered voters is limited to a city ‘in which the public water supply for domestic use is being fluoridated by such city.’ G.L. c. 40, § 41C. It is argued that when the signatures were obtained, which was not later than September 10, there ws no actual fluoridation. That the fluoridation must be taken to have been completed by October 1, more than a month before the election, is said to be unimportant. We are unable to perceive in the language of the act the legislative intent contended for. We think that the right to seek an expression of the will of the voters has not been limited to a situation where there had been at least one day's fluoridation when the signatures were collected or the petitions filed. The petitioners refer to St. 1962, c. 485, § 2, which provides that G.L. c. 40, § 41B, inserted by § 1 of c. 485, ‘shall not be construed to prohibit the fluoridation of a public water supply for domestic use by a city...in which, upon the effective date of this act, such water supply is being fluoridated or in which, in accordance with the provisions of section forty-one B of chapter forty of the General Laws, as in effect prior to said effective date, it has been voted to fluoridate such supply.’ We do not observe an intent to draw a fundamental distinction between ‘water supply is being fluoridated’ and ‘it has been voted to fluoridate such supply.’ There surely is no distinction of significant application to the question before us. For whatever it may be worth, it may be noted that the ascertainment of the will of the voters is informative only. The actual determination whether there shall be fluoridation is in the sole power of the appropriate municipal officers. What heed they might give to a purely advisory vote is beside the point. This is the opinion of a majority of the court. The rulings of the court below were correct. In the first case judgment is to be entered dismissing the petition. In the second case the decree is affirmed. So ordered.

+/- Miller v. City of Evansville

Indiana

• Plaintiff
  Miller et al.
• Defendant
  City of Evansville et al.
• State
  Indiana
• Other Parties
  -
• Case Tags
  -
• Citation
  247 Ind. 563; 219 N.E.2d 900 (Ind. 1966)
• Year
  1966-00-00T00:00:00
• Court Name
  Supreme Court of Indiana
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Jackson JM
• Opinion Text
  JACKSON, Judge. This is an appeal from the denial of an injunction sought by appellants in a taxpayer's action for the purpose of restraining defendants-appellees from placing in the water supply of the City of Evansville, Indiana, fluorides which appellants contend would produce irreparable injury and would further be a violation of their constitutional rights as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and the Bill of Rights of the Constitution of the State of Indiana. The issues were formed by the complaint in twenty-eight rhetorical paragraphs, the supplemental complaint and the answers to the original and supplemental complaints. Appellants' Assignment of Errors is the single specification that ‘(t)he Court erred in overruling appellant's Motion for a New Trial.’ The evidence of the witnesses produced at the trial, pro and con, is quite voluminous and in the opinion of the writer need not be set out, or even commented on at length as there is a diversity of opinion as to the necessity or efficacy of the proposed fluoridation. The proponents urging the medical desirability thereof in the treatment of dental caries in that portion of the populace between the ages of six and twelve; the opponents thereof urging the deleterious effect of such treatment on the aged and ill, the violation of constitutional rights and religious freedom. The parties have, by stipulation, fixed boundaries and limitations we need not exceed. Such stipulation contained the following paragraph: ‘There is not now nor has there ever been a city ordinance in the City of Evansville, duly enacted by the Common Council of the City of Evansville, authorizing or directing the City of Evansville, or the defendants, Glen L. Ogle, Sr., Karl Hahus, Arthur P. Walling and Arthur R. Lastwood (sic), who are the Trustees constituting the Board of Trustees of the Evansville, Indiana Waterworks Department to fluoride the drinking water in the City of Evansville.’ The status relative to the general powers of cities and towns that are applicable to the case at bar are as follows: ‘Authority or power-How made effectual.-Wherever there is a grant of authority or power conferred by any section or sections of this act upon any officer or board of any city or town, and no method is provided herein for the exercise of such authority or power, and a method for the exercise of such authority or power is necessary to be provided by law to make such grant of authority or power effectual, and a method for the exercise of such or similar authority or power is provided by any other section or sections of this act, or by any other law of this state applicable to the exercise of the authority so granted, then such other section or sections, or other law, so far as the same provide a method for the exercise of such authority or power herein conferred, may be followed as fully as if incorporated in and made a part of the provisions of this act granting such authority or power. And wherever there is a grant or authority or power conferred by this act, and no method is provided by this act or by any other general law, as herein referred to, for the exercise of such authority or power, the common council of any city or the board of trustees of any town may, by ordinance, provide such method.’ Acts 1905, ch. 129, s 270, p. 219, s 48-501, Burns' 1963 Replacement. ‘Legislative authority.-The legislative authority of every city shall be vested in a common council.’ Acts 1905, ch. 129, s 47, p. 219, s 48-1401, Burns' 1963 Replacement. ‘Legislative power-Appropriations.-The common council of every city shall have power to pass all ordinances, orders, resolutions and motions for the government of such city, for the control of its property and finances and for the appropriation of money. ...’ Acts 1905, ch. 129, s 52, p. 219, s 48-1406, Burns' 1963 Replacement. ‘General power of council.-The common council of every city shall have power to enact ordinances for the following purposes: ‘Ninth. To authorize the cleansing and purification of water and water courses by the board of public works, or other designated authority; to prevent encroachment of injury to the banks of streams, or the casting into the same of offal, dead animals, logs, rubbish, dirt or impure liquids. For the purpose of this clause, jurisdiction is hereby conferred upon cities for ten (10) miles from the corporate limits thereof. ‘Eighteenth. To regulate and require reports and records of births and deaths, and to make such requirements as may be deemed necessary to prevent the spread of contagious or infectious diseases; and to make all regulations that may be deemed expedient for the promotion of health and the suppression of disease.’ Acts 1905, ch. 129, s 53, p. 219, s 48-1407, Burns' 1963 Replacement. It is quite clear and beyond question that the powers and duties devolving upon municipalities pursuant to the appropriate statutes provide for the exercise of the police powers necessary for the development, operation and continued functioning of the municipality. In the case at bar only the common council of the City of Evansville, Indiana, possessed the power, under appropriate proceedings, to enact the ordinance or ordinances providing for the fluoridation of the city water provided by appellee city. The stipulation entered into shows conclusively that the common council of the City of Evansville has not exercised this power and consequently no authority exists by which fluoridation can be instituted. This cause is reversed and remanded with instructions to sustain appellants' Motion for New Trial and for further proceedings not inconsistent with this opinion. MYERS, J., concurs. ARTERBURN, J., concurs in result. RAKESTRAW, C.J., and ACHOR, J., not participating.

+/- Hattie v. Thomas

Ohio

• Plaintiff
  Mary A. Hattie, et al.
• Defendant
  Lee M. Thomas, Administrator of the Environmental Protection Agency
• State
  Ohio
• Other Parties
  -
• Case Tags
  -
• Citation
  22 ERC (BNA) 1728 (N.D. Ohio 1985)
• Year
  1985-00-00T00:00:00
• Court Name
  United States District Court for the Northern District of Ohio, Eastern Division
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Bell SH
• Opinion Text
  SAM H. BELL, UNITED STATES DISTRICT JUDGE On January 15, 1985, the plaintiffs filed the above-entitled action against the Administrator of the Environmental Protection Agency (hereinafter EPA). The plaintiffs are six residents of Canton, Ohio who are seeking to have the EPA bring an action against the State of Ohio to stop the fluoridation of the Canton municipal water supply. Jurisdiction of this court is alleged under the Safe Drinking Water Act of 1974, 42 U.S.C. § 300f, et seq., and the court's mandamus jurisdiction pursuant to 28 U.S.C. § 1361. Presently before the court is a motion to dismiss or in the alternative motion for summary judgment filed by EPA on March 15, 1985. The EPA asserts that the court lacks subject matter jurisdiction over this action and that the complaint fails to state a claim upon which relief can be granted. For purposes of reviewing this motion to dismiss all of the material allegations of fact contained in the plaintiff's complaint are to be taken by the court as admitted. Worth v. Seldin, 422 U.S. 490 (1975); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Gardner v. Torlet Goods Ass'n, 387 U.S. 167, 172 (1967). A summary of the material facts construed in this manner follows. In March, 1984, the City of Canton began to add fluoride to the public water supply in order to maintain the fluoride level of not less than .8 milligrams or more than 1.3 milligrams per liter of water. This fluoridation was mandated by the State of Ohio pursuant to O.R.C. § 6109.20 which states as follows: § 6109.20 [Fluoride to be added to public water system.] If the natural fluoride content of supplied water of a public water system is less than eight-tenths milligrams per liter of water, fluoride shall be added to such water to maintain fluoride content of not less than eight-tenths milligrams per liter of water nor more than one and three-tenths milligrams per litter of water begining: (A) On or before Januaary 1, 1971, for a public water system supplying water to twenty thousand or more persons; (B) On or before January 1, 1972, for a public water system supplying water to five thousand or more persons, but less than twenty thousand persons. It is undisputed that the City of Canton public water system serves a sufficient number of persons to come under the requirements of this statute. Further, there is no allegation that the City of Canton is maintaining a fluoride content different than the levels set forth in O.R.C. § 6109.20. On July 3, 1984, the plaintiffs wrote to the EPA and claimed that the State of Ohio and the City of Canton had violated the Safe Drinking Water Act of 1974 by placing fluoride in the Canton public water supply. The plaintiffs asserted that the mandatory addition of fluoride to the public water supply would create a hazard to the future health and well being of the residents served by the Canton water supply. The EPA responded on August 27, 1984 and informed the plaintiffs that the State of Ohio and the City of Canton did not violate federal law by requiring mandatory fluoridation. Thereafter, the EPA took no action to enjoin the fluoridation of the Canton water supply. Federal district courts created under article III of the United States Constitution are courts of limited subject mater jurisdiction. Hagans v. Lavine, 415 U.S. 538 (1974). A federal court's jurisdiction is derived from the Constitution, but Congress is empowered to decide the extent of original subject matter jurisdiction that is to be conferred upon the district courts. Id. As a result of this limitation, any action taken by a district court is only entitled to enforcement if the court has jurisdiction over the subject matter. In light of the limitations placed on a district court's jurisdiction, when a court considers a motion to dismiss raising several grounds for dismissal, the first issue which must be addressed is whether subject matter jurisdiction is proper. Consideration of any other alleged grounds for dismissal would be improper until the court has determined that jurisdiction is present in the action. Tuck v. Pan American Health Organization, 668 F.2d 547 (D.C. Cir. 1981); Memphis Am. Fed. of Tchrs., L. 2032 v. Board of Ed., 534 F.2d 699 (6th Cir. 1976). The burden of proving that subject matter jurisdiction is present in the district court is upon the party asserting jurisdiction, which in this action would be the plaintiffs. McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936). The plaintiffs state in their complaint and in their brief in opposition to the E.P.A.'s motion, that subject matter jurisdiction over their claims has been conferred on this court by the express authorization of Congress. The plaintiffs assert that jurisdiction is proper pursuant to the Safe Drinking Water Act of 1974, 42 U.S.C. § 300j-8(a), which provides in part as follows: (a) Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf - (1) against any person (including (A) the United States, and (B) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any requirement prescribed by or under this subchapter, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this subchapter which is not discretionary with the Administrator. (Emphasis added.) This statute expressly authorizes subject matter jurisdiction in the federal district courts over suits against the Administrator of the Environmental Protection Agency when there is an alleged failure of the EPA to perform an act or duty which is non-discretionary. Thus, before this court may exert subject matter jurisdiction over this action, it must be found that the EPA has a mandatory duty to enjoin the State of Ohio and the City of Canton from fluoridating the water or has failed to perform some non-discretionary act or duty. Under the Safe Drinking Water Act of 1974 the EPA is required to establish national primary drinking water regulations which "specifies contaminants which, in the judgment of the Administrator, may have any adverse effect on the health of persons." 42 U.S.C. § 300F(1)(B). This authority is vested solely in the EPA and is set forth as follows: (a)(1)The Administrator shall publish proposed national interim primary drinking water regulations within 90 days after December 16, 1974. Within 180 days after December 16, 1974, he shall promulgate such regulations which such modifications as he deems appropriate. Regulatoins under this paragraph may be amended from time to time. (2) National interim primary drinking water regulations promulgated under paragraph (1) shall protect health to the extent feasible, using technology, treatment techniques, and other mens, which the Administrator determines are generally available (taking costs into consideration) on December 16, 1974. (3) The interim primary regulations first promulgated under paragraph (1) shall take effect eighteen months after the date of their promulgation. 42 U.S.C. § 300g-1(a). Pursuant to this rule-making authority granted by Congress, a primary interim regulation was promulgated on December 24, 1975 involving the "maximum contaminant level" of fluoride in a public water system. 40 Fed. Reg. 59570. A "maximum contaminant level" is defined in the Act as "the maximum permissible level of a contaminant in water which is delivered to any user of a public water system." 42 U.S.C. § 300F(2). The primary interim regulation promulgated on December 24, 1975 established that the maximum contaminant level for fluoride was from 1.4 to 2.4 milligrams per liter. This regulation involving the maximum contaminant level for fluoride has been specifically deemed to be within the discretion of the EPA and has been upheld on appeal. Environmental Defense Fund, Inc. v. Costle. 578 F.2d 337, 346 (D.C. Cir. 1978). Thereafter, the primary interim regulation for fluoride was amended by the EPA to state that the "optimum levels" for the reduction of tooth decay would be a fluoride level of .7 to 1.4 milligrams per liter of water. 40 Fed. Reg. 59570. The plaintiffs do not challenge the authority of the EPA to set primary interim regulations nor do they dispute the propriety of the EPA's determination of the maximum contaminant level or optimum level for fluoride. Once regulations involving the maximum contaminant level for fluoride were enacted by the EPA, a state could obtain primary enforcement responsibility for public water systems by adopting drinking water regulations that conform to these regulations. The Safe Drinking Water Act expressly provides that a state may obtain primary responsibility under the following conditions. (a) For purposes of this subchapter, a State has primary enforcement responsibility for public water systems during any period for which the Administrator determines . . . that such State - (1) has adopted drinking water regulations which (A) in the case of the period beginning on the date the national interim primary drinking water regulations are promulgated under section 300g-1 of this title and ending on the date such regulations take effect are no less stringent than such regulations, and (B) in the case of the period after such effective date are no less stringent than the interim and revised national primary drinking water regulations in effect under such section; (Emphasis added.) 42 U.S.C. § 300g-1(a)(1). In this action it is undisputed that the State of Ohio has enacted such regulations and has primary enforcement responsibility for the public water systems within the state. Whenever the EPA discovers that a state which has primary enforcement responsibility for its public water systems "does not comply with any national primary drinking water regulation in effect under section 300g-1 of this title . . . he, [the Administrator] shall so notify the State and provide such advise and technical assistance to such State and public water system as may be appropriate to bring the system into compliance with such regulation or requirement by the earliest feasible time." 42 U.S.C. § 300g-3(a)(1)(A). The plaintiffs assert that this statute creates a mandatory, non-discriminatory duty with the EPA to notify the state of non-conformance whenever a state regulation violates a primary drinking water regulation. The plaintiffs further assert that the EPA was required to notify the State of Ohio of a violation of the primary drinking regulations because of the alleged improper mandatory fluoridation of the Canton public water system. Thus, the salient issues before this court in determining subject matter jurisdiction are whether the EPA had a mandatory duty to notify the State of Ohio in this setting and whether Ohio's statute requiring mandatory fluoridation of the public water supplies violates the Safe Drinking Water Act or any regulation promulgated thereunder by the EPA. The mandatory duty to notify the State of Ohio of non-compliance alleged by the plaintiffs on the part of the EPA is based upon the language found in 42 U.S.C. § 300g-3(a)(1)(A) set forth above. However, a complete reading of the statute shows that the EPA "may bring a civil action in the appropriate United States district court to require compliance with a national primary drinking water regulation." (Emphasis added.). 42 U.S.C. § 300g-3(b). This language in the statute clearly vests absolute prosecutorial discretion in the EPA on when to seek compliance with any maximum contaminant level promulgated by regulation. Thus, Congress has expressly stated that enforcement of the regulations promulgated by the EPA shall be an action that is discretionary and would not be subject to an action brought pursuant to 42 U.S.C. § 300j-8(a). Hence, the plaintiffs cannot rely upon the Safe Drinking Water Act to confer subject matter jurisdiction in this court. In addition to the plaintiffs failure as a matter of law to allege a violation by the EPA of some non-discretionary duty or act, the Ohio statute in question does not violate the Safe Drinking Water Act or any regulation promulgated thereunder by the EPA. Although the Safe Drinking Water Act does not require mandatory fluoridation of the nation's public water supplies, there is nothing in the Act which prevents the various states from enacting mandatory fluoridation of the public water supplies within the jurisdiction of the state. The sole restriction placed upon the various states is that any regulation enacted cannot be "less stringent than" the primary drinking water regulations promulgated by the EPA. 42 U.S.C. § 300g-1(a)(1). In this action, the State of Ohio has enacted a mandatory fluoridation statute which does not violate federal law. The Ohio state legislature has determined that the fluoride levels in the public water supplies in the state may not be less than .8 milligrams or more than 1.3 milligrams per liter of water. This mandatory fluoride level set by the State of Ohio is not less stringent than the maximum contaminant level established by the EPA; therefore the statute does not as a matter of law violate the Safe Drinking Water Act. The plaintiffs have also claimed that subject matter jurisdiction is proper under the court's mandamus jurisdiction under 28 U.S.C. § 1361. However, mandamus is an extraordinary remedy and may only issue to compel a federal officer to perform a non-discretionary action. Associated Businesses of Franklin v. Warren, 522 F.Supp. 115 (S.D. Ohio 1981). Since the court has previously found that the actions set forth in the complaint are within the prosecutorial discretion of the EPA and that no violation as a matter of law of the Safe Drinking Water Act was alleged, there is no basis for mandamus jurisdiction. Also before the court is a motion to intervene filed by the State of Ohio. The state asserts that since its statute is being questioned it should have been named as a defendant in this action. However, for the reasons set forth above, this motion is now rendered moot. Accordingly, the EPA motion to dismiss is hereby granted and this case is dismissed. IT IS SO ORDERED.

+/- Natural Resources Defense Council, Inc. v. EPA

District of Columbia

• Plaintiff
  Natural Resources Defense Council, Inc.
• Defendant
  Environmental Protection Agency and EPA Administrator Lee M. Thomas
• State
  District of Columbia
• Other Parties
  South Carolina Department of Health and Environmental Control
• Case Tags
  -
• Citation
  812 F.2d 721; 259 U.S. App. D.C. 5 (D.C. Cir. 1987)
• Year
  1987-00-00T00:00:00
• Court Name
  United States Court of Appeals District of Columbia Circuit
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Ginsburg RB, Bork, Buckley
• Opinion Text
  PER CURIAM: Natural Resources Defense Council (NRDC) and South Carolina Department of Health and Environmental Control (DHEC) challenge an Environmental Protection Agency (EPA) rule, effective December 16, 1985, establishing a recommended maximum contaminant level (RMCL) under the Safe Drinking Water Act (SDWA) for fluoride in drinking water. EPA set the level at 4 mg fluoride per liter. NRDC contends that the agency shirked its statutory responsibility by failing to adopt a lower maximum level; DHEC claims that EPA should have set no RMCL at all, or a higher one. We have reviewed the record and find that EPA reasonably interpreted the statute, responsibly evaluated the sometimes conflicting evidence in an extensive record, provided rational explanations for its determinations, and responded adequately to the arguments petitioners now repeat before the court. We therefore uphold EPA's rule as within the bounds of the agency's permissible discretion. The SDWA, 42 U.S.C. §§ 300f to 300j-9, directs the EPA to prescribe both primary and secondary maximum levels for contaminants in public drinking water systems. Primary regulations specify federally enforceable maximum levels (MCLs) for “contaminants which, in the judgment of the Administrator, may have any adverse effect on the health of persons.” 42 U.S.C. § 300(f)(B). Secondary regulations (SMCLs), which are enforceable only in the discretion of the states, specify “maximum contaminant levels which, in the judgment of the Administrator, are requisite to protect the public welfare.” 42 U.S.C. § 300f(2). The Act initially directed EPA to promulgate national drinking water standards in stages. Pursuant to this scheme, EPA first adopted interim primary regulations. See Environmental Defense Fund, Inc. v. Costle, 578 F.2d 337 (D.C.Cir.1978). Revised primary regulations, to replace the interim standards, were then developed in two steps: (1) recommended maximum contaminant levels (RMCLs), followed by (2) maximum contaminant levels (MCLs). Based on studies arranged with the National Academy of Sciences (NAS), and as required by the Act, EPA endeavored to set RMCLs at levels at which “no known or anticipated adverse effects on the health of persons occur and which allow[ ] an adequate margin of safety.” 42 U.S.C. § 300g-1(b)(1)(B). RMCLs, as the qualification “recommended” implies, are non-enforceable health goals; RMCLs are set without taking feasibility into account. MCLs are the federally enforceable standards. They must be set “as close to the [RMCLs] ... as is feasible” using the best means “generally available (taking cost into consideration).” 42 U.S.C. § 300g-1(b)(3). ^FN1 EPA proposed an MCL for fluoride, as well as an SMCL, the same day it published its final RMCL rule. FN1. In June 1986, Congress amended the SDWA, eliminating the distinction between interim and revised primary regulations. Safe Drinking Water Act Amendments of 1986, Pub.L. No. 99-939, 100 Stat. 642 (1986). NRDC attacks the RMCL for fluoride on three main fronts. First, NRDC contends that the RMCL is not low enough even to prevent crippling skeletal fluorosis, the adverse health risk EPA identified. NRDC tendered a series of calculations purporting to show that, at an RMCL of 4 mg/L, a large number of people will consume more than the amount of fluoride that EPA believes can cause crippling fluorosis. EPA convincingly explained, however, that NRDC's calculations are suspect. We note, for example, that NRDC used a daily drinking water consumption figure derived from a chart containing a clear caveat that the calculation NRDC attempted would produce an overestimate. See Attachment F to NRDC Brief. NRDC claims that the RMCL will not adequately protect particularly susceptible individuals, such as those who drink larger than average quantities of water. EPA intelligibly explained the process through which it determined that the RMCL will protect even sensitive subgroups of the population with an adequate margin of safety. Final Rule, Joint Appendix (J.A.) Tab A, 50 FED.REG. 47142, 47144 (1985). Substantial evidence in the record supports that determination. Although a significant number of people in the United States have long been exposed to levels above 4 mg/L, only two cases of crippling fluorosis related to drinking water have ever been documented in this country. Id. at 47144, 47147, 47151-52. Both victims had disorders that caused them to drink excessively, and both drank large quantities of tea, a beverage notably high in fluoride content. EPA reasonably concluded that the SDWA does not “require[ ] protection by national regulation of persons who, through unusual [dietary] practices, may put themselves at risk.” Id. at 47148. NRDC's second main attack targets EPA's conclusion that dental fluorosis does not qualify as an adverse health effect under the SDWA, but is rather a cosmetic effect that would adversely affect public welfare. This conclusion placed dental fluorosis in the domain of secondary, not primary, regulation. The interim standard did account for dental fluorosis as an adverse health effect, id. at 47142, and NRDC characterizes the changed categorization as dramatic and unexplained. EPA had set the interim standard at the maximum specified by the existing Public Health Service guideline; at that initial stage, the agency essayed no independent investigation or firm judgment on the issue. Indeed, in reviewing the interim regulation on fluoride, this court questioned whether the “cosmetically undesirable mottling of the tooth enamel that results from excessive fluoride” could “be regarded as an ‘adverse effect on health’ within the meaning of the [SDWA].” Environmental Defense Fund, 578 F.2d at 347 & n. 35. EPA decided to define adverse health effects as those resulting in functional impairment. The agency then determined that dental fluorosis, although manifested by unattractive staining and pitting, did not appear to cause loss of function or mortal injury to the teeth. Thus finding the evidence inadequate to conclude that dental fluorosis is an adverse health effect, EPA did not consider the prevention of that condition in setting the RMCL. The appropriate classification of dental fluorosis was extensively discussed in the rulemaking, and EPA explained its decision. See Responses to Generic Issues, J.A. Tab D at 5-6; Final Rule, J.A. Tab A, 50 FED.REG. at 47143-44. NRDC asserts that many scientific experts consider dental fluorosis an adverse effect on health. Acknowledging that this aspect of the rulemaking had been controversial, id. at 47143, EPA essentially demurred to NRDC's point. Experts can describe what dental fluorosis does to the body; whether that constitutes an adverse effect on health under the SDWA, however, is a question of statutory interpretation. The statute does not define “adverse effect on health,” and NRDC does not seriously contest the reasonableness of defining that phrase to mean some functional impairment. The pivotal question, therefore, is whether EPA reasonably concluded that dental fluorosis does not significantly impair the functioning of body or mind. NRDC features a psychiatric panel's report concerning potential psychological effects of dental fluorosis. EPA reasonably concluded, however, that the possible problems identified by the expert panel, such as loss of self-confidence and dissatisfaction with personal appearance, were not significant enough to rank under the Act as health rather than welfare effects. Final Rule, J.A. Tab A, 50 FED.REG. at 47144. Finally, NRDC assails as arbitrary EPA's failure to take into account numerous other health risks that may be connected with fluoride. NRDC cites studies purporting to find a link between fluoride and a host of health problems. Under the SDWA, however, the RMCL is to be set with reference to known or anticipated adverse health effects, not merely possible effects. 42 U.S.C. § 300g-1(b)(1)(B). EPA reviewed and responded to the studies in fair detail and gave reasoned explanations for finding that they did not convincingly establish a cognizable connection between fluoride in drinking water and the various health risks posited. See Final Rule, J.A. Tab A, 50 FED.REG. at 47152; Drinking Water Criteria Document, J.A. Tab C; Summary of Comments and Responses, J.A. Tab D. Some of the studies, we note, were not conducted in living organisms, used extremely high dosages of fluoride never found naturally in drinking water, or did not follow established scientific methods. EPA, when it evaluated the studies cited by NRDC, also properly considered compelling contrary evidence. NRDC, in essence, asks the court to substitute that organization's judgment for EPA's. We have no warrant to do so. Our review function is accomplished when we have inspected the agency's action, as we have here, to insure that the action has a rational basis, one that reasonably promotes the legislative design. DHEC, in stark contrast to NRDC, maintains that EPA should not have established any RMCL for fluoride because the two isolated cases of crippling skeletal fluorosis observed in the United States are insufficient evidence that fluoride in drinking water has any adverse effect on health. As EPA explained, however, the statute requires the agency to take account of adverse effects on health known or anticipated; SDWA does not confine the agency's ken to effects that have occurred widely in the United States. DHEC stresses that, in responding to NRDC's argument that crippling skeletal fluorosis is known to occur at 4 mg/L, EPA itself remarked on the limited usefulness of foreign studies of that condition. From this, DHEC concludes that the record affords inadequate support for describing crippling fluorosis as an anticipated effect. See DHEC Reply Brief at 4-6. EPA did say that the occurrence of crippling fluorosis at levels below 4 mg/L in India is not predictive of whether crippling fluorosis will occur at that level in the United States. Foreign studies remain probative, however, on the question whether fluoride in drinking water is a source from which one can anticipate incidents of crippling fluorosis. Further, numerous studies have documented crippling fluorosis from sources of fluoride other than drinking water. Response to Generic Issues, J.A. Tab D at 117-31. It was not irrational for EPA to determine that fluoride contained in drinking water could also produce this condition. The risk of crippling fluorosis from drinking water, DHEC urges, is so slight that, if any RMCL is tolerable, the necessary margin of safety should be negligible. DHEC proposes an RMCL of 8 mg/L, which is less than the 10 mg/L concentration that EPA believes may lead to crippling fluorosis. DHEC Reply Brief at 19. EPA rationally explained that the margin of safety provided by the RMCL of 4 mg/L may be needed to protect those who drink more than average amounts since the 10 mg/L level is based on an average drinking water consumption figure of 2 L per day. Final Rule, J.A. Tab A, 50 FED.REG. at 47147-48, 47151-52. EPA, in sum, made a permissible administrative judgment, and we must “avoid[ ] all temptation to direct the agency in a choice between rational alternatives.” Environmental Defense Fund, 578 F.2d at 339. For the reasons stated, the petitions for review are denied and the final rule at issue is affirmed. It is so ordered.

+/- New Haven Water Company v. City of New Haven

Connecticut, Abuse of Municipal Authority

• Plaintiff
  New Haven Water Company
• Defendant
  City of New Haven
• State
  Connecticut
• Other Parties
  Town of Hamden
• Case Tags
  - Abuse of Municipal Authority
• Citation
  152 Conn. 563; 210 A.2d 449 (Conn. 1965)
• Year
  1965-00-00T00:00:00
• Court Name
  Supreme Court of Connecticut
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  King
• Opinion Text
  KING, Chief Justice. These two cases were argued together and may be considered in one opinion. Each involves the power of a municipality to impose upon the plaintiff, by ordinance, the obligation of fluoridating the water supply furnished by the plaintiff to the inhabitants of that municipality. Judgment in favor of the plaintiff was rendered in each case, and each defendant has appealed. The plaintiff is, by statutory definition, a public service company. General Statutes § 16-1; Dwyer v. Public Utilities Commission, 147 Conn. 229, 230, 153 A.2d 742. It is privately owned ^FN1 and is engaged in the business of furnishing water for public and domestic use to eleven municipalities in the New Haven area, including each defendant. The plaintiff obtains water from sources in thirteen communities. It distributes this water through an integrated system so constructed as to supply, through the system as a whole, the total requirements of all of the municipalities served. Of those served, only the two defendant municipalities have enacted ordinances purporting to require fluoridation of the water supplied to their inhabitants. The material portions of each ordinance are substantially identical. The other municipalities served by the plaintiff have not adopted ordinances regarding fluoridation. The cost to the plaintiff of converting its distribution system to provide for the fluoridation of water supplied New Haven alone, without fluoridating the water furnished to the other municipalities served, would be approximately $4,500,000, while the cost of a similar conversion to supply Hamden alone would be approximately $1,589,000. On the other hand, the cost of converting the system to fluoridate the water furnished to all the municipalities served would be only $79,600. FN1. We are not here concerned with a water supply system owned and operated by a municipal corporation under special legislative authority. The court also found that ‘[t]he introduction of fluoride into the public water supply...will substantially and materially reduce cavities in the teeth of children under the age of sixteen ... and will benefit adults by increasing the density of the bones of the body, thus reducing the prevalence of osteoporosis in adults.’ The ordinances, which require the introduction of fluoride into the public water supply, thus were found to tend to promote the public health. Cases involving the validity of enactments providing for the fluoridation of a public water supply are collected in an annotation in 43 A.L.R.2d 453, 459. As a creature of the state, a municipality can exercise only such powers as are expressly granted it or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433; Ingham v. Brooks, 95 Conn. 317, 328, 111 A. 209; Crofut v. Danbury, 65 Conn. 294, 300, 32 A. 365. Each defendant bases its claim of authority to enact the ordinance in controversy on the Home Rule Act (General Statutes c. 99), which authorizes a municipality to ‘provide for the health of [its] inhabitants... and to do all things necessary or desirable to secure and promote the public health.'^FN2 General Statutes § 7-194, subdivision (44). The defendants claim that the ordinances are valid because, as found by the court, they require, in fluoridation, action promoting the public health. FN2. New Haven also makes a claim of authority to enact its ordinance under § 50(1) of the New Haven Charter (Rev. to Sept. 1952), which authorizes the enactment of ordinances ‘[t]o provide for the health of the city.’ Clearly, this provision adds nothing to the grant of power in the Home Rule Act, and consequently it need be given no separate consideration. In the determination of the adequacy of the municipal legislative authority conferred by the general grant of power relied upon by the defendants, it must not be overlooked that the particular ordinances in question are directed to the regulation of a public service company which is not only engaged in supplying water to at least eleven separate municipalities but which is subject to extensive regulation by the state through the public utilities commission, the state department of health, and otherwise. ^FN3 FN3. See, for instance, General Statutes §§ 16-1, 16-11, 16-23 (public utilities commission); General Statutes §§ 19-1, 19-13 and Conn. Public Health Code (Oct. 1961) Regs. 103(A)(e) and (g), 103(B)(b), 112, 118, 120, General Statutes §§ 25-32-25-37 (state department of health); General Statutes §§ 25-38, 25-39, 25-41, 25-43, 25-44 (state statutory control); General Statutes § 25-45 (specific delegation to municipalities of power to enact ordinance to protest reservoirs). The plaintiff claims that each ordinance is invalid because it is inconsistent with this overall state regulatory scheme. As early as 1895, this court observed that ‘[t]he proper regulation of railroads, in their course through different towns, is a matter which is necessarily of more than local concern.’ Cullen v. New York, N. H. & H. R. Co., 66 Conn. 211, 223, 33 A. 910, 911. ‘Neither the public nor the service corporation could tolerate as many standards and policies as there were towns, cities or boroughs through which they operated.’ Connecticut Co. v. City of New Haven, 103 Conn. 197, 211, 130 A. 169, 174. ‘[T]he same reasoning applies today with even greater emphasis to a public utility supplying a service which almost everyone in the state requires daily.’ Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 662, 103 A.2d 535, 542. In the absence, as here, of specific legislative authority to the contrary, it is the policy of this state to reserve to itself the control of public service corporations serving more than one community. Connecticut Co. v. City of New Haven, supra; Jennings v. Connecticut Light & Power Co., supra, 140 Conn. 663, 103 A.2d 535; Dwyer v. Public Utilities Commission, 147 Conn. 229, 232, 158 A.2d 742; cf. Conn. Dept. Regs, § 19-13-B81, effective February 9, 1965 (appearing in 26 Conn.L.J., No. 32, p. 24). The ordinances in question are in conflict with this policy, and the court was not in error in holding them invalid and in granting injunctive relief against their enforcement. ^FN4 FN4. The defendants seem to place great reliance on the case of Connecticut Theatrical Corporation v. New Britain, 147 Conn. 546, 548, 163 A.2d 548, which upheld the power of the city of New Britain to enact an ordinance requiring the attendance of a police officer during each performance at any moving picture theater within that city. The New Britain charter specifically empowered the enactment of ordinances ‘concerning the regulation of moving picture exhibitions.’ That case does not support or strengthen the defendants' position. There is no error in either case. In this opinion the other judges concurred.

+/- Environmental Defense Fund, Inc. v. Costle

District of Columbia

• Plaintiff
  Environmental Defense Fund, Inc.
• Defendant
  Douglas M. Costle, Administrator of the Environmental Protection Agency
• State
  District of Columbia
• Other Parties
  -
• Case Tags
  -
• Citation
  578 F.2d 337; 188 U.S. App.D.C. 95 (D.C. Cir. 1978)
• Year
  1978-00-00T00:00:00
• Court Name
  United States Court of Appeals District of Columbia Circuit
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Leventhal
• Opinion Text
  LEVENTHAL, Circuit Judge: This case calls on us to consider the duties of the Environmental Protection Agency (EPA) under the Safe Drinking Water Act ^FN1 passed on December 18, 1974. FN1. Pub. L. 93-523, 88 Stat. 1660 (codified at 42 U.S.C. ss 300f to 300j-9 (Supp.1977) ). I. INTRODUCTION In this statute, Congress responded to accumulating evidence that our drinking water contains unsafe levels of a large variety of contaminants. The Act requires the Environmental Protection Agency to promulgate regulations restricting the concentration of such substances in drinking water. The present action is brought by the Environmental Defense Fund (EDF), a non-profit organization concerned with environmental issues. EDF challenges the adequacy of interim regulations promulgated under the Act, urging that they fail to restrict levels of certain substances that may be harmful, and fail to require adequate monitoring of other substances. The EPA responds by stressing the poverty of clearcut information concerning the harmfulness of the substances in question, and the lack of a satisfactory method for determining their levels in drinking water. These considerations, argues the Agency, make it unfeasible to formulate more extensive regulations at the present time. The Agency's position is reinforced by the fact that the challenged regulations are interim; the statutory scheme provides for the development of more definitive regulations at a later time. The dispute poses for this court the difficult task of determining whether the agency has exceeded the bounds of its permissible discretion, in an area characterized by scientific and technological uncertainty. Where administrative judgment plays a key role, as is unquestionably the case here, this court must proceed with particular caution, avoiding all temptation to direct the agency in a choice between rational alternatives. At the same time, we must be cognizant of our duty to scrutinize with care the actions under challenge, to determine whether a rational basis for them may be discerned. Our responsibility is particularly weighty where, as here, serious issues of public health are involved on a potentially vast scale. II. THE STATUTORY SCHEME The Safe Drinking Water Act provides that the Administrator of the Environmental Protection Agency shall promulgate national drinking water standards in three phases. The first phase leads to the promulgation of “interim primary drinking water regulations” (interim regulations). These regulations set maximum contaminant levels (MCL) for substances that the Administrator finds may have an adverse effect on health, or, where that is not feasible, specify treatment techniques to reduce the level of the contaminant. ^FN2 They are intended to “protect health to the extent feasible, using technology, treatment techniques, and other means, which the Administrator determines are generally available (taking costs into consideration) on the date of enactment of this title.” ^FN3 Proposed interim primary drinking water regulations were to be published within 90 days after the passage of the Act. Final interim regulations were to be promulgated 180 days after passage of the Act. ^FN4 The interim regulations were to take effect eighteen months after the date of their promulgation. ^FN5 FN2. Sec. 1401(1)(B), (C), 42 U.S.C. s 300f(1)(B), (C). FN3. Sec. 1412(a)(2), 42 U.S.C. s 300g-1(a)(2). FN4. Final interim regulations were actually promulgated on Dec. 10, 1975. 40 F.R. 59566 (Dec. 24, 1975). FN5. I. e., in June, 1977. The second phase results in the promulgation of “revised national primary drinking water regulations” (revised regulations). These regulations also set MCL's or specify treatment techniques. ^FN6 They must be formulated to reduce contaminant levels as nearly as is feasible to levels at which no adverse effects on health occur. Feasibility is to be determined with reference to the best technology generally available, taking cost into consideration. FN6. Sec. 1401(1)(B), (C), 42 U.S.C. s 300f(1)(B), (C). To lay the groundwork for phase two, the Act directs the Administrator to enter into an appropriate arrangement with the National Academy of Sciences or another independent scientific organization to conduct a study to determine the existence of drinking water contaminants that may pose a health problem and, where possible, to establish safe maximum contaminant levels for these substances. A report of the results of this study is to be made to Congress within two years after passage of the Act and a summary of the report is to be published in the Federal Register. Within 90 days after publication of the report, the Administrator is required to formulate proposed revised national primary drinking water regulations, based on the findings contained in the report. Within 180 days after the date of the proposed revised regulations, the Administrator must promulgate revised regulations. These regulations are to take effect 18 months after promulgation. The third and final phase of regulation generates “national secondary drinking water regulations” (secondary regulations). The Administrator is required to publish proposed “national secondary drinking water regulations” within 270 days after the date of the Act's passage. Within 90 days after publication of such proposed regulations, he must promulgate secondary regulations. The Act does not specify when these regulations are to take effect. Regulations promulgated in all three phases may be amended. ^FN7 FN7. Sec. 1412(b)(4), (c), 42 U.S.C. s 300g-1(b)(4), (c). III. CHALLENGES TO THE INTERIM REGULATIONS Pursuant to statute, on March 14, 1975, the Administrator published proposed interim regulations for public comment. In the course of the proceedings, EDF challenged the adequacy of the proposed regulations. Subsequently, on December 10, 1975, the Administrator promulgated the interim regulations. In this appeal, EDF challenges four specific aspects of these regulations: 1) the failure to fully control organic contaminants in drinking water; 2) the adequacy of the MCL for fluoride; 3) the failure to regulate sodium and sulfates; 4) the adequacy of the monitoring required for cadmium and lead. It will be helpful to detail the nature of the dispute on each point. A. Regulation of Organics The interim regulations provide MCL's for only six organic contaminants ^FN8 out of the large number of such substances known to be present in drinking water. They do not specify treatment techniques for reducing organics. EDF argues that the legislative intent was that comprehensive regulation of organics should commence with the interim regulations. It points to accumulating evidence not only of the presence of large numbers of organic substances in drinking water, but of correlations between such contaminants and human health consequences, including cancer. It urges the need to set a limit on total organic content of drinking water, by adoption of some chemical measure which would serve as a surrogate for total organic content. FN8. 40 C.F.R. s 141.12. The contaminants covered are Endrin, Lindane, Methoxychlor, Toxaphene, 2, 4-D, and 2, 4, 5-TP. The EPA responds that the interim regulations were meant to be less comprehensive than the revised regulations and, more specifically, that Congress did not anticipate a comprehensive regulation of organics under the interim regulations. The EPA further stresses that the effects of long-term ingestion of organic contaminants in drinking water are not yet clear, making it difficult to set MCL's for these substances. In addition, argues the EPA, information on the efficacy and expense of available treatment techniques is incomplete. Thus, its decision to limit regulation of organics to six substances is presented as a legitimate exercise of agency discretion. B. Regulation of Inorganic Substances 1. Fluoride The MCL for fluoride specified by the interim regulations is based on the principle that drinking water may usefully contain sufficient fluoride to provide optimal protection against dental caries, but that the amount by which such levels are exceeded should be limited, so as to avoid undue side-effects primarily mottling of the teeth (fluorosis), a condition with only esthetic significance. The MCL established by the Administrator permits fluoride levels up to two times the optimal protective level. EDF argues that the permitted level is too high: the severity of fluorosis is proportional to fluoride concentrations; thus, permitting levels to greatly exceed the optimal therapeutic level violates the duty of the Administrator to formulate interim regulations that will protect health “to the extent feasible.” In response, the EPA cites authority to the effect that the levels in question do not pose a health hazard. ^FN9 The EPA views the matter as essentially one of line-drawing, in which it properly exercised reasonable discretion. FN9. EPA relies upon consultations with the Department of Health, Education and Welfare, and with the National Drinking Water Advisory Council. Brief for the Respondent at 35-38. 2. Sodium and Sulfates Neither of these substances is controlled under the interim regulations. ^FN10 The EDF argues that the health effects of these substances are well established ^FN11 and that regulation was mandated by the Act. FN10. In the Preamble to the interim regulations, as published in the Federal Register, the Agency does recommend that the states monitor sodium and sulfates, and notify consumers and physicians of these levels where appropriate. 40 F.R. 59567 (Dec. 24, 1976). FN11. Sodium intake is of concern to individuals on sodium-restrictive diets primarily those suffering from hypertension or congestive heart failure. Sulfates have a laxative effect on newcomers to a community whose water contains high sulfate levels. The EPA believes that the setting of MCL's for these substances would have been inappropriate, since individual response to their presence in drinking water varies over a broad continuum. While monitoring of these levels and notification of those concerned might be desirable, ^FN12EPA concluded that it lacked authority under the Act to require such programs. FN12. See footnote 11 supra. 3. Cadmium and Lead The interim regulations set MCL's for both of these substances. The parties do not dispute the fact that their presence in drinking water represents a potential danger to health. Rather, EDF focuses on the manner in which the levels of these contaminants in drinking water are to be monitored under the interim regulations. While levels are monitored at the tap ^FN13 (thus insuring that contributions from the distribution and plumbing systems will be reflected), samples are required to be tested only annually, ^FN14 and the size and distribution of sampling is not specified. EDF objects that more frequent sampling, of a specified size and distribution, is needed in order adequately to control the contributions of cadmium and lead from distribution sources, which vary widely in the extent to which they are responsible for these substances in drinking water. FN13. 40 C.F.R. s 141.2(c). FN14. 40 C.F.R. s 141.23. The EPA defends its monitoring requirements on the ground that, in its judgment, more extensive monitoring cannot be justified in light of the added expense. The agency points out that injurious effects from these substances result from long-term exposure, thus permitting correction of deviation from safe levels before harm to the public has resulted. The agency thus views its monitoring requirements as an appropriate exercise of its discretion. IV. THE INTENT OF THE LEGISLATURE This case involves conflicting contentions as to the nature of our present state of knowledge in the pertinent areas. We begin, however, by noting that the parties differ in their apprehension of legislative intent, and by making our own effort to discern the will of Congress. A. The Statutory Language The phased structure of the statutory scheme suggests that formulation of the regulations is intended to be progressive in nature, adapting to increasing knowledge and experience in the area. Yet the statutory language does not dispose of the general issue presented by petitioners: How comprehensive did Congress intend the interim regulations to be? The opening section of the Act defines the term “primary drinking water regulation” (which includes both interim and revised regulations) as a regulation “which specifies contaminants which . . . may have any adverse effect on the health of persons . . . .” ^FN15 Petitioner EDF, stressing the word “may,” ^FN16 urges that this language reflects a legislative intent that interim, as well as revised, regulations should cover all substances in drinking water that may adversely affect health. While there is room for argument, it is our view that the language is more naturally read as a definition which it purports to be than as a legislative command. FN15. Section 1401(1)(B), 42 U.S.C. s 300f(1)(B). FN16. Brief for Petitioner at 8. In another provision, s 1412(a)(2) of the Act states that interim primary regulations “shall protect health to the extent feasible, using technology, treatment techniques, and other means which the Administrator determines are generally available (taking costs into consideration) on the date of enactment of this Act (December 16, 1974).” ^FN17 Read by itself, this language can be taken as extremely comprehensive. We think, however, that the Congressional intent to avoid a requirement of broadest comprehensiveness is discernible when the above language is read alongside the statutory language concerning the (greater) comprehensiveness of revised regulations. Section 1412(b) of the Act requires the revised primary regulations to FN17. 42 U.S.C. s 300g-1(a)(2). specify a maximum contaminant level or require the use of treatment techniques for each contaminant for which a recommended maximum contaminant level is established or which is listed in a rule under paragraph (1)(B). The maximum contaminant level specified in a revised national primary drinking water regulation for a contaminant shall be as close to the recommended maximum contaminant level established under paragraph (1)(B) for such contaminant as is feasible. A required treatment technique for a contaminant for which a recommended maximum contaminant level has been established under paragraph (1) (B) shall reduce such contaminant to a level which is as close to the recommended contaminant level as is feasible. A required treatment technique for a contaminant which it listed under paragraph (1)(B) shall require treatment necessary in the Administrator's judgment to prevent known or anticipated adverse effects on the health of persons to the extent feasible. For purposes of this paragraph, the term “feasible” means feasible with the use of the best technology, treatment techniques, and other means, which the Administrator finds are generally available (taking cost into consideration). ^FN18 FN18. Section 1412(b)(3), 42 U.S.C. s 300g-1(b)(3). This provision in paragraph (3) of s 1412(b) must be read in conjunction with paragraph (1)(B) of that section, which requires the Administrator to establish recommended maximum contaminant levels for, or at least list, each contaminant which, in his judgment, ^FN19 may have any adverse effect on health. Hence the passage from paragraph (3) quoted above requires in turn that he specify a MCL, or a mandatory treatment technique, for each contaminant which may pose a threat to health. The statutory language is thus unambiguous (though perhaps labyrinthine) in its requirement that the revised regulations be fully comprehensive in scope. The language of section 1412(a) which seems universal when taken by itself is perceived on study to be silent as to scope of the interim regulations, and in contrast with the wording for revised regulations. There is more room for administrative discretion than first appears. FN19. Based on the report on the study conducted by the National Academy of Sciences. See 188 U.S.App.D.C. -- - --, 578 F.2d 340, supra. There is also a tightening between section 1412(a) and section 1412(b) as to substantive content. Both sections use the term “feasible,” and there is flexibility to consider costs. But section 1412(a) provides that the interim regulations shall protect health to the extent feasible using technology generally available on December 16, 1974, while section 1412(b) provides that the revised regulations shall use the best technology generally available. The text of the statute indicates that the regulations are to become progressively more comprehensive and demanding. The words used give some signals of intent. However, it is the history of the legislation that is more enlightening and reenforcing of what we glean initially from the words alone. B. The Legislative History Prior to the passage of the Safe Drinking Water Act, the only enforceable federal standards for drinking water were directed at communicable waterborne diseases. These were promulgated under the Public Health Service Act. ^FN20 Under that law, the Public Health Service published, in 1962, recommended i. e., nonenforceable guidelines for drinking water contaminants unrelated to communicable disease. ^FN21 FN20. 42 U.S.C. s 264 (1974). FN21. Public Health Service Drinking Water Standards, Department of Health, Education and Welfare, 1962. Congress passed the Safe Drinking Water Act in response to increasing indications of a serious threat to health from contaminants in our drinking water not related to communicable disease. The legislative history contains abundant evidence that Congress intended the rapid implementation of broad mandatory controls over impurities. The Report of the House Committee on Interstate and Foreign Commerce ^FN22 sets a general tone of urgency in stating that FN22. H.R.Rep. No. 93-1185, 92d Cong., 2d Sess. (1974); U.S.Code Cong. & Admin.News 1974, p. 6454. the lack of comprehensive cost, health effects, technological assessment, and monitoring data cannot justify any further delay in Congressional and administrative action. While it would be desirable to have complete health effects research, effective treatment technology, and accurate, inexpensive monitoring systems in operation prior to commencing a system of regulation, this is simply not possible. It is the . . . intent (of the Committee) that EPA, the States, and the public water systems begin now to maximize protection of the public health insofar as possible, and to continue and expand these efforts as new more accurate data, technology, and monitoring equipment become available. ^FN23 FN23. Id. at 8; U.S.Code Cong. & Admin.News 1974, p. 6461. Specifically, the House Report indicates that controls were not to be delayed pending the development of more refined data on health effects and more efficient detection and treatment technology. Primary regulations (i. e., both interim and revised) must specify contaminants which in the judgment of the Administrator may have an adverse effect on the health of persons when found in drinking water. The words used by the Committee were carefully chosen. Because of the essentially preventive purpose of the legislation, the vast number of contaminants which may need to be regulated, and the limited amount of knowledge presently available on the health effects of various contaminants in drinking water, the Committee did not intend to require conclusive proof that any contaminant will cause adverse health effects as a condition for regulation of a suspect contaminant. Rather, all that is required is that the Administrator make a reasoned and plausible judgment that a contaminant may have such an effect. ^FN24 FN24. Id. at 10; U.S.Code Cong. & Admin.News 1974, p. 6463 (emphasis in original). A further suggestion of the legislature's intent with regard to organic contaminants is seen in its expectation that the interim regulations “would be based largely on a review and updating of the United States Public Health Service drinking water standards” as conducted by the EPA Advisory Committee on the Revision and Application of the Drinking Water Standards in 1973. House Report at 17; U.S.Code Cong. & Admin.News 1974, p. 6470. Both the 1962 Public Health Service Drinking Water Standards and the 1973 recommendations of the EPA Advisory Committee on the Revision and Application of the Drinking Water STANDARDS INCLUDE A SURROGATE FOR TOTAL ORGANICS. V. EVALUATION OF THE CHALLENGED REGULATIONS IN LIGHT OF THE LEGISLATIVE INTENT We are persuaded that the legislature intended the EPA to undertake rapid and comprehensive measures in coping with the problem of unsafe drinking water. It seems particularly clear from the legislative history that Congress contemplated prompt regulation, whenever feasible, of every contaminant identified as possibly injurious to health. While the urgency of the legislature's plan is undeniable, a second aspect of its plan, of perhaps equal importance, is apparent. Regulation in this area, to proceed most efficiently, must remain attuned to our rapidly expanding knowledge and technology. The phased structure of the statutory scheme wisely reflects such an awareness. Heavy investment in measures of uncertain value may prove costly not only in financial terms but also, and more importantly, on a human scale. It would be simplistic to read the legislative will as mandating an undifferentiated and full-scale commitment of resources to programs based entirely on the present state of our knowledge. We do not understand petitioners to adopt such a position. The notion of attuning national efforts to the progressive development of our capabilities in this area has reverberations, we think, for the proper role of the judiciary in a dispute such as the one before us. In our response to the challenge directed against administrative action, we must be wary lest our interim adjudications hinder pursuit of the legislative goals. In circumstances such as confront us here, judicial efforts may be more profitably expended in assuring that future agency action will effectively promote the goals of the legislature than in fashioning remedies to “correct” earlier agency missteps. With these thoughts in mind, we proceed to examine the challenged regulations. A. Regulation of Organics As we have indicated above, we believe the legislature contemplated that the interim regulations would, where feasible, control every contaminant that may prove injurious to health. The failure of the challenged regulations to do so thus becomes suspect. In light of the clear language of the legislative history, the incomplete state of our knowledge regarding the health effects of certain contaminants and the imperfect nature of the available measurement and treatment techniques cannot serve as justification for delay in controlling contaminants that may be harmful. There is ample evidence establishing the fact that our drinking water is contaminated with a large variety of organic substances, of demonstrated carcinogenicity in animals.^FN25 Most of these substances are not controlled under the interim regulations. Methods of monitoring the total organic content of water are available ^FN26 and, while not perfect, they make possible the exercise of significant control over the drinking water content of a wide range of organic substances. The argument of the EPA that the use of such imperfect measures may lead to a false sense of security ^FN27 cannot be accepted in light of the clear language in the House Report requiring prompt action despite defects in our monitoring capabilities. Finally, there is material in the record before us to indicate that feasible methods for lowering the level of organic contaminants in drinking water may be available ^FN28 at a reasonable cost. ^FN29 This would of course be a matter for EPA determination in the first instance, but the EPA has not stated that its course has been based on a contrary assumption. FN25. An example of unusual current concern is chloroform. The National Organics Reconnaissance Survey, initiated by the EPA in 1974 to determine the extent to which organics were present in the nation's drinking water, revealed, inter alia, that chloroform was present in the drinking water of each of the 80 cities studied. Chloroform is carcinogenic in laboratory animals. Report on the Carginogenesis Bioassay of Chloroform, Division of Cancer Cause and Prevention, National Cancer Institute, Mar. 1, 1976. Chloroform is not controlled under the interim regulations. FN26. The carbon chloroform extract (CCE) test procedure, which was the recommended standard for organic chemicals under the 1962 Public Health Service Drinking Water Standards, measures the total level of organic substances in drinking water, without identifying the individual component substances. While it may not detect all organics, it has the practical advantage of obviating the need to measure each substance individually, while providing a gross measure of the total organic content of water. See Drinking Water Standards: Report of the EPA Advisory Committee on the Revision and Application of the Drinking Water Standards (1973). FN27. Brief for Respondent at 26. FN28. See Evaluation of Activated Carbon as a Drinking Water Treatment Unit Process, EPA, Mar. 3, 1975. FN29. See Draft Interim Treatment Guide for the Control of Chloroform and other Trihalomethanes, EPA Water Supply Research Division, April, 1976 at 28. While there is therefore serious question whether the EPA's failure to control total organics in the interim regulations has been responsive to the statute's provisions, we defer final resolution of this question. Considerations already identified suggest the wisdom of this course of action. During the pendency of this litigation, information bearing upon the problem of organic contaminants in drinking water has continued to accumulate. The National Academy of Sciences has submitted to Congress a report of its study of contaminants in drinking water, ^FN30 undertaken pursuant to section 1412(e) of the Act. ^FN31 The EPA has solicited views and data concerning the control of organic contaminants in drinking water, preparatory to considering amendment of the interim regulations. ^FN32 These are but two examples of potential new sources of data that may aid the agency in reformulating its present approach to contaminants so as to keep pace with scientific and technological developments. FN30. Drinking Water and Health, Report to Congress of Recommendations of the National Academy of Sciences (June 20, 1977), summarized in 42 F.R. 35764 (July 11, 1977). The report lists 20 organic substances found in drinking water that are known to have, or are suspected of having, carcinogenic properties in man or animals. 42 F.R. at 35776, Table 1. Of these, only two (Lindane and Endrin) are controlled under the interim regulations. The report stresses the applicability of findings in animal studies to man. Id. at 35776. FN31. 42 U.S.C. s 300g-1(e). FN32. Advance Notice of Proposed Rulemaking, 41 F.R. 28991 (July 14, 1976). Congress has authorized the appellate courts to adopt such procedure, including orders of remand and requirement of further proceedings, “as may be just under the circumstances.” ^FN33 In cases like this, the court of appellate jurisdiction has been given authority to review actions of agencies in order to assure adherence to legislative mandate and furtherance of the legislative will. In our view, it would not be consistent with sound procedure, and hence would not be just to all concerned in the circumstances, to insist on agency application of resources and effort to reconsideration or revision of the interim regulations, as if that were the only process before the agency. The statute itself delineates an ongoing process, and we are informed of the potential of agency revision of its interim regulations. The court cannot wear blinders in a litigation involving an ongoing administrative process, and its rulings and relief must take account of the world as it exists as of the time of the decree. FN33. Although 28 U.S.C. s 2106 in terms applies to review of court orders, it has been understood to identify a general principle of appellate review that is applicable to review of agency orders and regulations, particularly when applied so as to permit enlightenment as to agency reasoning without undue intrusiveness. See Greater Boston Television Corp. v. FCC, 149 U.S.App.D.C. 322, 331, 463 F.2d 268, 277 (1971); International Harvester v. Ruckelshaus, 155 U.S.App.D.C. 411, 445, 478 F.2d 615, 649 (1973); Natural Resources Defense Council v. Train, 166 U.S.App.D.C. 312, 334 & n.112, 510 F.2d 692, 714 & n.112 (1974). In furtherance of our function and responsibility, we remand the record with a request to EPA to report to this court within 60 days regarding significant changes that have occurred, since the promulgation of the interim regulations, in its assessment of the problem of controlling organic contaminants in drinking water, and to advise the court of its determinations as of the time of the report as to whether it plans to propose amended interim regulations in light of newly acquired data. B. Regulation of Inorganic Substances We find the dispute concerning the EPA's handling of inorganic contaminants susceptible of more definitive resolution at this time. This issue is not characterized by the extremely rapid scientific and technological development that give a special dimension to the problem of organics. Current knowledge of injurious effects is more well-developed and stable. The costs and efficacy of monitoring and treatment procedures are similarly more well established. The task of the agency here is largely one of line drawing. Agency expertise and judgment must be applied in determining the optimal balance between promotion of the public welfare and avoidance of unnecessary expense. We will not interfere so long as the agency strikes a balance that reasonable promotes the legislative purpose. Applying this standard we find that the challenged actions concerning the regulation of inorganic substances fall within the limits of discretion delegated to the agency under the Act, and reasonably promote the legislative intent. Our views may be summarized briefly. 1. Fluoride : The interim regulations permit fluoride levels to reach twice the optimal level for protection against dental caries. The EDF accepts that these levels may exceed the optimal therapeutic level, but argues that the MCL should be set at 1.5 times the optimal therapeutic level. ^FN34 The cosmetically undesirable mottling of the tooth enamel that results from excessive fluoride occurs in a severity proportional to the concentration of fluoride in the drinking water. ^FN35 Nevertheless, because of the expense of removing fluoride from drinking water in areas where it occurs naturally in high concentration, ^FN36 some determination must be made of the level beyond which it is not feasible to require a further reduction of fluoride. The parties both recognize that there has been considerable controversy as to what this level should be. ^FN37 No evidence has been introduced that demonstrates that the level chosen by the EPA for the interim regulations fails to protect the public health to the extent feasible. We must conclude that the balance struck by the agency is well within its discretion under the Act. FN34. EDF does not propose in its brief a specific MCL for fluoride, but in commenting on the proposed interim regulations it argued in favor of the 1.5 figure. Comments by the Environmental Defense Fund on the Environmental Protection Agency's Proposed Interim Primary Drinking Water Standards at 12-13 (May 1975). FN35. There is serious question as to whether mottling can be regarded as an “adverse effect on health” within the meaning of the Act. See, e. g., HEW letter of June 4, 1973, to EPA at 2. “We believe that in the context of discussing limits to avoid concentrations of substances that may be hazardous to health, dental fluorosis should not be termed harmful. The more severe dental fluorosis caused by highly excessive concentrations is described in the literature as unesthetic, cosmetically objectionable, or disfiguring, but is not described as hazardous to health.” (The letter is reproduced in Comments by the Environmental Defense Fund on the Environmental Protection Agency's Proposed Interim Primary Drinking Water Standards (hereinafter cited as EDF Comments), App.Tab E, Att. 5). FN36. Where fluoride is added to drinking water to achieve therapeutic levels, its concentration is, of course, more easily controlled. FN37. Brief for the Respondent at 32; EDF Comments at 12, App.Tab E. The 1962 Public Health Service Drinking Water Standards recommended limiting fluoride to two times the optimal therapeutic level. In 1967, the Preventive Practices Branch of the Division of Dental Health of the Public Health Service recommended to the EPA that the limit be reduced to 1.5 times the optimal therapeutic level. Letter of Aug. 22, 1967, from the Acting Director, Division of Dental Health (reproduced in EDF Comments, App.Tab E, Att. 1). In March 1975, HEW determined that the studies upon which the 1967 recommendation was based were inadequate, and recommended to the EPA a level of two times the optimal therapeutic level. Letter of Mar. 7, 1975, from the Director of the Office of Environmental Affairs of HEW (reproduced in EDF Comments, App.Tab J). 2. Sodium and sulfates : The EPA did not promulgate interim regulations covering sodium and sulfates. The record before us does not require, as a matter of law, that the agency find that these substances, in the concentrations found in drinking water, have a significant impact on the health of most individuals. As has already been noted, the response of those who are affected varies considerably from one individual to the next. The decision not to impose MCL's for sodium and sulfates comports with these considerations, and is consonant with the views of the EPA Advisory Committee on the Revision and Application of the Drinking Water Standards, and of the National Drinking Water Advisory Council. ^FN38 FN38. The EPA Advisory Committee recommended notification to physicians of sodium levels, but not the establishment of an MCL. 1973 EPA Advisory Committee Report at 26, App.Tab H. Concerning sulfates, the EPA Advisory Committee did recommend that a maximum level be established. Id. at 27 (referring to bad taste, and the “discomfort” caused by the laxative effect). The National Drinking Water Advisory Council recommended monitoring of sodium and sulfates, and public notification, but no MCL's. Letter of Aug. 14, 1975 from C. C. Johnson to Russell Train, App.Tab I. The EDF does not object to the EPA's failure to set MCL's for sodium and sulfates, but only to its failure to require monitoring of these substances and notice to customers when certain levels are exceeded. ^FN39 EDF finds authority for requiring such monitoring and notification in sections 1412(a)(2), ^FN40 1445(a), ^FN41 and 1450(a)(1) ^FN42 of the Act, the provisions of which are noted in the margin. FN39. “If public water utilities were required to monitor and notify users that excessive levels of sodium or sulfates were present in drinking water, the public notification requirements of the Act would be satisfied and that segment of the population which all parties agree are at risk could be protected while data is accumulated to support a maximum contaminant level adequate to protect the general population.” Brief for petitioner at 63. FN40. 42 U.S.C. s 300g-1(a)(2), which provides that the interim regulations “shall protect health to the extent feasible, using technology, treatment techniques, and other means . . . generally available . . . on the date of enactment of this title.” FN41. 42 U.S.C. s 300j-4(a), which provides that water suppliers “shall . . . conduct such monitoring, and provide such information as the Administrator may reasonably require . . . to assist him in establishing regulations under this title.” FN42. 42 U.S.C. s 300j-9(a)(1), which authorizes the Administrator “to prescribe such regulations as are necessary or appropriate to carry out his functions under this title.” Given the deference that the Supreme Court has proclaimed is due on the part of a court to the agency charged with putting a new statute in motion, ^FN43 we are in no position to say that the EPA has violated the statute by its failure to establish monitoring and notification requirements in the interim regulations. Section 1445(a) ^FN44 authorizes EPA to require water suppliers to monitor supplies for the purpose of aiding the Administrator in establishing regulations. It is for the EPA to consider, at least in the first instance, whether such monitoring may be established for the purpose of advice to the public, and whether in any event monitoring can be required in the absence of regulations specifying MCL's or treatment techniques, and whether any monitoring reports made to EPA must or should be available to the public, under the Freedom of Information Act or otherwise. An agency such as EPA is confronted with a host of complex and difficult questions all at one time; an attempt to tackle them holus-bolus may be unfeasible and counter-productive. Only where a statutory direction is clear is a court warranted in issuing a mandate directing it to take particular actions. FN43. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), Power Reactor Development Co. v. IUERMW, 367 U.S. 396, 408, 81 S.Ct. 1529, 6 L.Ed.2d 924 (1961). FN44. 42 U.S.C. s 300j-4. Section 1450(a)(1) ^FN45 constitutes a general authorization for the Administrator to promulgate regulations necessary to his functions under the Act. Such language invests the agency with a latitude that is considerable ^FN46 but not untrammeled. The matter of sodium and sulfates has not been swept aside. The study carried out by the National Academy of Sciences pursuant to section 1412(e) of the Act ^FN47 has addressed the matter, and the report of its findings ^FN48 may aid the agency in reevaluating its approach to these substances. The relief prayed by petitioners will not be granted. FN45. 42 U.S.C. s 300j-9. FN46. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Niagara Mohawk Power Corp. v. FPC, 126 U.S.App.D.C. 376, 381-82, 379 F.2d 153, 158-59 (1967). FN47. See note 31 supra. FN48. Summarized in 42 F.R. at 35772, 35774. 3. Lead and Cadmium: The interim regulations set MCL's for both of these substances. EDF challenges the standards set by the regulations for monitoring the levels of these substances. Monitoring is required once a year for community water systems using surface water, and once every three years for systems using ground water. There is no requirement as to the number of, and locations at which, samples are to be taken. EDF appears to press for more frequent sampling, and for express requirements concerning the number of samples and times and locations at which samples are to be taken, so as to assure detection of harmful levels that may be present in only part of a particular system, or at only certain times. As to frequency of sampling, the EPA stresses that the harmful effects of lead and cadmium in drinking water generally result from chronic exposure to the contaminants, ^FN49 a point with which the EDF appears to agree. ^FN50 EDF does not call our attention to any evidence that would indicate that the challenged sampling intervals are not sufficiently frequent to detect changes in contaminant levels before harm results. On this record, we cannot overturn the frequency established by the EPA as an abuse of discretion. FN49. Brief for the Respondent at 49-50. FN50. Brief for Petitioner at 65. We turn to the issue of the samples to be taken within a given water supply system, their number, frequency and locations. Corrosion of supply pipes and plumbing fixtures concededly constitutes a significant source of lead and cadmium in drinking water. ^FN51Consequently, levels of these substances may vary, even within the same water supply system, depending upon variations in the corrosiveness of the water at different times, in the periods of time during which water remains in the pipes, and in the age and composition of the pipes in different parts of the system. It is possible that an annual sampling of water at a single location in a water supply system may fail to detect such variations even for long periods of time. FN51. Brief for Petitioner at 65; Brief for the Respondent at 53. Section 1401(1)(D) of the Act ^FN52 states that primary drinking water regulations (i. e., interim and revised regulations), must contain “criteria and procedures to assure (compliance) with . . . maximum contaminant levels; including quality controls and testing procedures to insure compliance with such levels and to insure proper operation and maintenance of the system . . . .” It is plausible to put it that Congress contemplated monitoring that will detect variations within a system. FN52. 42 U.S.C. s 300f(1)(D). However, considerations of feasibility must be weighed in determining the extent to which intra-system variations are unacceptable under the Act. The House Report explains that “(m)onitoring should insure to the extent feasible the detection of a violation before such violation causes or contributes to any adverse health effect.” ^FN53 While it can be argued that all water supply systems should be required to sample widely within the system, at specified locations and frequencies, such an approach might unnecessarily burden those systems for which intra-system variation is not a problem. The House Report suggests that monitoring requirements were intended to be more finely tuned: FN53. House Report at 15; U.S.Code Cong. & Admin.News 1974 p. 6468. More frequent monitoring should be required by regulation for classes of systems facing local conditions which justify such increased monitoring. In prescribing regulations requiring more frequent monitoring or sampling than the minimum, the Administrator is expected to take into account, among other facts, the nature and type of the water source, historical data characterizing the water quality, anticipated variations in water quality, vulnerability of the source to accidental or deliberate contamination; the population at risk, the type of treatment provided, and the level of the contaminant which is generally found as it relates to the established limit. ^FN54 FN54. Id ; U.S.Code Cong. & Admin.News 1974, p. 6468. While this passage from the House Report speaks only of frequency of sampling, its approach seems equally applicable to other aspects of monitoring. The degree to which monitoring requirements can be tailored to detect local variations in contaminant levels depends upon the access of the EPA to information concerning such variations. The EPA maintains that it did not have detailed information of this sort available at the time of promulgation of the interim regulations. ^FN55 In an effort to obtain such data, it has encouraged the states to conduct sanitary surveys of water systems which would help to identify local drinking water problems. ^FN56 FN55. Brief for the Respondent at 52. FN56. 40 C.F.R. s 141.2(f) (1976). An agency has discretion in selecting the techniques appropriate for grappling with a problem and carrying out its functions. ^FN57 We cannot at this point say that EPA's approach to the formulation of monitoring regulations is without a rational basis. As data accumulate on local variations in lead and cadmium levels, the agency will be in a position to formulate a more refined approach to monitoring either by amending the interim regulations or by designing the revised and secondary regulations to reflect such local conditions. Should the agency fail to do so, we will have another case before us. FN57. See Mourning v. Family Publications Services, Inc., 411 U.S. 356, 371-72, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Philadelphia Television Broadcasting Co. v. F.C.C., 123 U.S.App.D.C. 298, 300, 359 F.2d 282, 284 (1966). Subsequent to the preparation of the foregoing, the EPA has initiated further regulation of organics in drinking water. Regulations proposed by the Agency on January 25, 1978, would limit the presence of trihalomethanes, including chloroform, to under 100 parts per billion in the drinking water of communities with a population of more than 75,000; and would require, in these communities, the application of a special purification technique filtration by granular activated carbon to the treatment plants of systems whose water sources are polluted. The presence of chloroform in drinking water has been of particular concern because of its demonstrated carcinogenicity in laboratory animals and widespread presence in municipal water systems. See note 25 supra. Insofar as the petition for review presents challenges as to inorganic contaminants, it is denied. As to the challenge to the regulation of organic contaminants, we remand the record for a report by the EPA, as set forth in this opinion. Affirmed. MacKINNON, Circuit Judge, concurring in part and dissenting in part: The majority opinion concludes with respect to organics : In furtherance of our function and responsibility, we remand the record with a request to EPA to report to this court within 60 days regarding significant changes that have occurred, since the promulgation of the interim regulations, in its assessment of the problem of controlling organic contaminants in drinking water, and to advise the court of its determinations as of the time of the report as to whether it plans to propose amended interim regulations in light of newly acquired data. 188 U.S.App.D.C. at --, 578 F.2d at 346. I concur in this part of the opinion. However, I dissent from the affirmance of the Agency's action with respect to lead and cadmium. The Agency defends its regulation by statistics that are based on source water, not on statistics gathered at the point of final distribution. It also relies on testimony that in my view is not sufficiently extensive, particularly in view of the fact that lead and cadmium pollution is admittedly caused by spotty factors, i. e., somewhat by the type of conduits used in various locations and the corrosiveness of the water. The contentions of the Fund, in this respect, seem to me to be logical; and since they are not answered by the Agency, I would remand those portions of the regulations for more extensive testing and reconsideration in the light thereof. With respect to the Agency's regulations on inorganic substances, I would uphold them, in the main, for the reasons outlined in the majority opinion, but I would not confine the study of fluoride to its dental effects when it is also suspect of causing some changes in bone density.

+/- Rogowski v. City of Detroit

Michigan, Unlicensed Practice of Medicine/Compulsory Medication, State police power

• Plaintiff
  Rogowski
• Defendant
  City of Detroit
• State
  Michigan
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - State police power
• Citation
  374 Mich. 408; 132 N.W.2d 16 (Mich. 1965)
• Year
  1965-00-00T00:00:00
• Court Name
  Supreme Court of Michigan
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Dethmers JK
• Opinion Text
  DETHMERS, Justice. Plaintiffs are residents of Detroit and users of water supplied by it. They brought this chancery action to enjoin defendant city, its common council, board of water commissioners, and board of health from enforcing a water fluoridation ordinance and to have it declared illegal and void. An order entered declaring this to be a class action, on behalf of all users of Detroit's public water supply who object to its fluoridation. The State Dental Assocation and Detroit Dental Society were permitted to intervene as parties defendant. Defendants moved for summary judgment in their favor. Their motion was granted, the court holding the ordinance to be valid. Plaintiffs appeal. The ordinance, as adopted by defendant city's common council, stated that it was adopted in furtherance of the city's policy, pursuant to its police power, to promote public health. It directed the defendant city board of water commissioners, in co-operation with the defendant city board of health, to institute fluoridation of the city's water supply. Plaintiffs' bill of complaint challenges the validity of the ordinance on the following grounds: (1) that the counsel is given no authority to enact it either by State statute or the city charter and that it is violative of the latter; (2) that it violates a statute forbidding wholesale treatment of children by health officers, other than to control epidemics of infectious or contagious diseases, without written consent of their parents; (3) that its adoption does not come within the reasonable exercise of the city's police power and thus is unconstitutional because (a) no preponderance of evidence can be produced to prove that fluoridation of water actually reduces tooth decay, as claimed by defendants, (b) fluoridation harms the teeth of a substantial number of children, (c) fluoridation will not benefit adults, but large numbers of them may be physically harmed thereby; (4) that the ordinance purports to benefit public health but the improvement would be very slight, if any, it has no real or emergency relation to public health, and it invades the private rights of persons to choose for themselves what medications they will take; (5) that it is an attempt to subject people to scientific and medical experimentation without their consent; (6) that it is wasteful and uneconomic; (7) that the purported object of the ordinance could be attained by other means not destructive of private rights. Defendants filed answer denying the plaintiffs' allegations, above noted, as being without legal or factual basis or termed them unenlightened opinions and conclusions. They alleged in their answer that the ordinance was adopted to promote public health and that as such it was a lawful exercise of the police power; that fluoridation reduces dental caries in children, a common and widespread disease; that the overwhelming weight of scientific, medical and dental opinion is that fluoridation of the public water supply reduces dental caries in children and benefits public health; and that this was the basis of the adoption of the ordinance, after the council had conducted hearings and heard evidence concerning the merits the demerits of fluoridation. The allegations of the complaint and of the answer conflict as to such merits and demerits. Defendants moved for summary judgment on the ground that plaintiffs' complaint raised no genuine issue of any material fact to be litigated, but presented only expressions of opinions and questions of law for court determination. In support of the motion, defendants filed statements of public officials, endorsements by State councils and departments of health, and affidavits of scientific and medical authorities setting forth and acknowledging that fluoridation of public water supplies is beneficial to public health, that several thousand cities in the United States are fluoridating public water supplies and that millions of Americans are drinking such water and receiving the health benefits therefrom. Included among them were the following: Statements by John F. Kennedy, president of the United States; statement by Anthony J. Celebrezze, secretary, department of health, education and welfare; statement by Arthur S. Flemming, secretary, department of health, education and welfare; statement by Dr. Luther L. Terry, surgeon general, public health service; statement by Robert F. Kennedy, attorney general of the United States; affidavit of Albert E. Heustis, M.D., Michigan State health commissioner; minutes of 12/19/51 meeting of State council of health; minutes of 10/15/52 meeting of State council of health; minutes of 10/7/53 meeting of State council of health; minutes of 10/27/59 meeting of State council of health; statement of policy re fluoridation of public water supplies, Michigan department of health, January, 1949; statement of policy re fluoridation of public water supplies, Michigan department of health, July, 1950; statement of policy re fluoridation of public water supplies, Michigan department of health, September, 1952; statement of policy re fluoridation of public water supplies, Michigan department of health, July, 1955; affidavit of Howard H. Mehaffey, D.D.S., in support of motion for summary judgment; affidavit of William Travis, D.D.S., in support of motion for summary judgment. In one of the said affidavits by a dentist, listed as public and private organizations that have endorsed fluoridation of public water supplies, are the following: public health service of the United States department of health, education and welfare, Michigan department of health, American Medical Association, American Dental Association, Michigan State Dental Association, Detroit District Dental Society, American Academy of Pediatrics, American Association of Public Health Dentists, American Public Health Association, Inter-Association Committee on Health (representing American Dental Association, American Hospital Association, American Medical Association, American Nurss Association, American Public Health Association and the American Public Welfare Association), Association of State and Territorial Dental Directors, Assocation of State and Territorial Health Officers, American Pharmaceutical Association, American School Health Association, and College of American Pathologists. In addition, it is a matter of fact, of which this Court may take judicial notice, that as of December 31, 1962, 43,750,878 people of 2,317 communities in the United States, including 12 of the 18 major cities, were drinking water containing supplemental fluoride. Of this total, 72 Michigan communities were supplying approximately 1,250,000 people with water containing a fluoride supplement. It does not appear that plaintiffs filed any affidavits, depositions, or other types of proofs in opposition to the materials supporting defendants' motion. Plaintiffs say, however, that they should have been permitted to produce proofs, on trial, to show that (1) fluoridation of the water supply constitutes experimentation upon and treatment of the bodies of water users; (2) the object of the ordinance could be secured without violation of their rights; and (3) that harm to their bodies may result from such fluoridation. All of these bear on whether there was a constitutional exercise of the police power. This, then, projects the question of the propriety of disposition of the case by summary judgment without according plaintiffs an opportunity of a trial at which to advance such proofs. Defendants' motion for summary judgment stated that it was planted on 1963 GCR 117.2(1) in that plaintiffs' complaint had failed to state a claim upon which relief could be granted, and, further, that plaintiffs' complaint attacked the constitutionality of the ordinance and the issues so raised presented only questions of law without raising any properly pleaded, genuine issue as to any material fact. The trial court's judgment stated that it was to be entered because of plaintiffs' failure to state a claim upon which relief could be granted. Plaintiffs say, however, that issues of fact about fluoridation were raised by the pleadings which entitled them to trial and determination thereof. In turn, defendants stress that what plaintiffs had to offer by way of testimony concerning fluoridation was not as to facts but opinions, expert and lay. In Whittenberg v. Carnegie, 328 Mich. 125, 42 N.W.2d 900, this Court said: ‘The mere existence of issues of fact is, however, no bar to entry of summary judgment for defendants, if, upon resolving all such issues in favor of plaintiffs, the defendants would still be entitled to a judgment as a matter of law. Jones v. Wayne Circuit Judge, 253 Mich. 515, 235 N.W. 238.’ In Davis v. Kramer Bros. Freight Lines, Inc., 373 Mich. 594, 130 N.W.2d 419, we said, in affirming a summary judgment: ‘We think appellants may have misconceived the issue; that disputed issues of fact arose by reason of certain claims of plaintiffs in undoubtedly true. The question, however, is whether those fact issues were material to the controlling legal principle and to the ground upon which summary judgment was granted.’ Our inquiry must go, then, to whether there was an issue at to material facts, not just immaterial facts or opinions, and whether acceptance as true of all that plaintiffs say they could have proved under their pleadings would have entitled them to the injunctive relief sought or would have left defendants entitled still to a judgment as a matter of law. Preliminary to ascertaining whether there was an issue as to facts which were material, the question of their materiality must be resolved by consideration of precisely what it is that must be decided in this case on the merits as to constitutionality of the ordinance. With respect to the chief controversy herein, whether the ordinance is a reasonable and lawful exercise of the police power and hence constitutional, it is fortunate, for our guidance, that the supreme court of the United States has spoken in Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643. In that case a statute of Massachusetts was involved making it a criminal offense for a person over 21 years of age and not under guardianship to refuse to comply with a city board of health requirement to be vaccinated for small pox at public expense. Defendant was on trial for refusing to comply, in violation of the statute. The prosecution contended itself with proof of the board's having required vaccination and having advised defendant thereof and defendant's noncompliance, but offered no other evidence. Defendant offered proofs purporting to show that vaccinations were injurious, had no relationship to public health and were not a scientifically accepted means of preventing smallpox. The trial court rejected defendant's offers of such proofs on the ground that they were immaterial. After conviction he appealed to the Massachusetts supreme judicial court, which affirmed, sustained the trial court's rulings on proffered proofs, and upheld the constitutionality of the statute and board action against the objections of the defendant, which were similar to those raised here. On appeal, the United States supreme court affirmed, quoting with approval from the opinion of the Massachusetts court, as follows: “The other eleven propositions all relate to alleged injurious or dangerous effects of vaccination. The defendant ‘offered to prove and show by competent evidence’ these so-called facts. Each of them, in its nature, is such that it cannot be stated as a truth, otherwise than as a matter of opinion. The only ‘competent evidence’ that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions. ...If the defendant had been permitted to introduce such expert testimony as he had in support of these several propositions, it could not have changed the result. It would not have justified the court in holding that the legislature had transcended its power in enacting this statute on their judgment of what the welfare of the people demands.” The United States supreme court went on to say, inter alia: ‘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. ...It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. ... ‘...The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. 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. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’ ‘...the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large, was arbitrary and not justified by the necessities of the case. ...An American citizen, arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person ‘to live and work where he will’ ( Allgeyer v. Louisiana, 165 U.S. 578, 41 L.Ed. 832, 17 Sup.Ct.Rep. 427); and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one's body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger. ... ‘Looking at the propositions embodied in the defendant's rejected offers of proof, it is clear that they are more formidable by their number than by their inherent value. Those offers in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judically knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority. We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain.’ The United State supreme court quoted from Viemeister v. White, 179 N.Y. 235, 72 N.E. 97, 70 L.R.A. 796, as follows: “It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease, and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our state, and in most civilized nations for generations. It is generally accepted in theory, and generally applied in practice, both by the voluntary action of the people, and in obedience to thecommand of law. Nearly every state in the Union has statutes to encourage, or directly or indirectly to require, vaccination; and this is true of most nations of Europe. ... “A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts. ... “The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a Republican form of government. While we do not decide, and cannot decide, that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the state, and, with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power.' 179 N.Y. 235, 72 N.W. 97.' The United States supreme court then said: ‘Since, then vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was-perhaps, or possibly-not the best either for children or adults. ... ‘We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative saction of the state. If such be the privilege of a minority, then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population. We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the state. While this court should guard with firmness every right appertaining to life, liberty, or property as secured to the individual by the supreme law of the lane, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect. They are matters that do not ordinarily concern the national government. So far as they can be reached by any government, they depend, primarily, upon such action as the state, in its wisdom, may take; and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.’ From the above language of the United States Supreme Court the rule clearly appears that the court may take judicial notice of the common knowledge or belief, as evidenced by the above listed public statements, affidavits and official actions, that fluoridation is benefical to prevent dental caries and so improve public health. Further, that proofs of the character which plaintiffs say they might have adduced on trial could not have changed the results because a difference of opinion, whether expert or lay, as to the merits or demerits of fluoridation with respect to public health presents a question for legislative, not judicial, determination. It follows that this case could be and was properly disposed of, as a question of law, by summary judgment. This follows, as well, from the above cited Michigan decisions because there was no issue of material or controlling facts, the so-called factual disputes actually being matters of opinion, relating to the efficacy or effects of fluoridation. Hence, they could not be decisive of whether the police power was properly exercised within constitutional limitations. The Jacobson Case fully answers plaintiffs' questions as to the constitutionality of the public health measure.^FN1 It is true that the smallpox disease involved in that case is infectious or contagious while dental caries is not. Plaintiffs cite no cases to the effect that element is essential to the power of the State to adopt and enforce regulations designed to protect or improve public health. We conceive of no sound reason for so holding. To the contrary are: Readey v. St. Louis County Water Co., Mo., 352 S.W.2d 622; Dowell v. City of Tulsa, Okl., 273 P.2d 859; Kraus v. Cleveland, 163 Ohio St. 559, 127 N.E.2d 609; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Froncek v. Milwaukee, 269 Wis. 276, 69 N.W.2d 242; Baer v. City of Bend, 206 Ore. 221, 292 P.2d 134. FN1 Readey v. St. Louis County Water Co., Mo., 352 S.W.2d 622 (certiorari denied 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47), contains citations of a number of cases in the several states upholding the constitutionality and validity of fluoridation measures. Plaintiffs do not cite any to the contrary and we find none. Michigan Constitution of 1908, art. 8, § 20, in effect when the ordinance was adopted and when judgment entered herein, empowered and directed the legislature to provide by general law for the incorporation of cities. Section 21 provided that cities shall have power to adopt charters and to pass ordinances relating to municipal concerns. The legislature by P.A.1909, No. 279, provided that each city charter shall provide for the public health. The people of Detroit adopted a charter under such authority. Title III, ch. 1, § 1, of the charter vests the legislative power of the city in a common council. Section 12 thereof provides that the permitted legislative powers include adoption of ordinances to promote public health and also to prescribe the duties of all city officers. Title IV, ch. 1, § 12, provides, that city officers shall have the duties prescribed by the council by ordinance. Title IV, ch. 12, § 1, provides for a board of water commissioners and section 7 thereof provides that it shall have duties to be exercised in accordance with city ordinances, including supplying the city with sufficient pure and wholesome water. We think, contrary to plaintiffs' contentions, that these constitutional, statutory and charter provisions constitute adequate authority for enactment of the ordinance in question by the council. It does not conflict with the charter requirement for furnishing pure and wholesome water. 56 Am.Jur., Waterworks, § 75, pp. 980, 981, and Commonwealth v. Towanda Water Works, 1 Monag. (Pa.) 500, 15 A. 440. Dowell v. City of Tulsa, supra, and Kaul v. Chehalis, supra, hold that fluoridation of the public water supply is not, as plaintiffs here contend, the practice of medicine or dentistry or treatment of children by health officers. We agree. Judgment affirmed. No costs, a public question being involved. KELLY, SOURIS, SMITH, O'HARA and ADAMS, JJ., concurred with DETHMERS, J. KAVANAGH, C. J., and BLACK, J., concurred in result. Mich. 1965 Rogowski v. City of Detroit 374 Mich. 408, 132 N.W.2d 16

+/- 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.

+/- State ex rel. Whittington v. Strahm

Missouri, Petitions Initiatives & Re-votes

• Plaintiff
  William H. Whittington, Gale E. Lord, William Paul Hunter, Jean McCone
• Defendant
  Margaret Strahm
• State
  Missouri
• Other Parties
  -
• Case Tags
  - Petitions Initiatives & Re-votes
• Citation
  374 S.W.2d 127 (Mo. 1963)
• Year
  1963-00-00T00:00:00
• Court Name
  Supreme Court of Missouri
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Holman J
• Opinion Text
  HOLMAN, Judge. Plaintiffs, as citizens, taxpayers, and electors of Kansas City, Missouri, filed this suit in an effort to obtain a writ of mandamus commanding defendant, City Clerk of Kansas City, to take certain action in regard to a referendum petition which had theretofore been filed with her. The trial court denied the relief sought. Upon appeal to the Kansas City Court of Appeals the judgment was reversed and cause remanded with directions to the trial court to issue its writ of mandamus as prayed. However, one of the judges dissented because he thought the opinion was in conflict with the decision of the St. Louis Court of Appeals in the case of Carson v. Oxenhandler, 334 S.W.2d 394, and upon his request, the cause was transferred to this court. State ex rel. Whittington v. Strahm, Mo.App., 366 S.W.2d 495. We will accordingly determine the case ‘the same as on original appeal.’ Article V, Section 10, Constitution of Missouri 1945, V.A.M.S. The facts were stipulated and hence are not in dispute. On June 2, 1961, an ordinance was introduced into the City Council of Kansas City which, omitting formal parts, reads as follows: ‘Whereas, the medical profession has determined that fluoridation of public water supplies is an effective and salutary aid in the care of teeth and prevention of decay and diseases thereof, and ‘Whereas, the Council of Kansas City deems it in the interest of the health and welfare of the citizens of Kansas City that they be provided with fluoridation of the city's water supply, ‘Now, therefore, be it ordained by the Council of Kansas City: ‘Section 1. That the Director of the water Department be and he is hereby authorized to make the necessary plans and preparations for the fluoridation of Kansas City's public water supply. Such plans and preparations shall include proper and rigid control of the amount of fluorine to be used and take into consideration the natural concentration of Fluorine of the Missouri River water in Kansas City. The plans and preparations shall be in accordance with approved standards used in other major metropolitan areas. ‘Section 2. The Director of the Water Department is authorized to negotiate a contract for a total sum of not more than $65,000 for the initial installation and equipment charge necessary for the fluoridation of said water supply, said contract to be submitted to this Council for approval. ‘Section 3. The Director of the Water Department is directed to include in the future budgets the sum of $50,000 per year to cover the cost of fluoridation of the water supply.’ That ordinance was assigned to a committee of the council and the committee held three different hearings thereon in July 1961, at each of which a large number of persons appeared, some of whom favored the ordinance and others opposed it. That ordinance was never reported out of the committee and remained pending until January 12, 1962, when it was ‘lost on a semiannual docket clearance.’ On September 22, 1961, a resolution was introduced into, and on the same date passed, by the city council, which contained the identical provisions as those in the ordinance heretofore set out. On March 9, 1962, the city council passed Ordinance No. 27271 which approved a contract dated March 5, 1962, between Kansas City and S. R. Brunn Construction Company for the purchase of fluoridation facilities by the Director of the Water Department at a cost of $46,510, which ordinance was the first ordinance passed by the city council which made possible the addition of fluorides to the municipal water supply of said city. Section 430 of the Kansas City Charter provides: ‘Any ordinance passed by the council, except emergency measures, shall be subject to referendum of the electors.’ The section further set out the procedure for seeking a referendum. Section 15 of the charter defines emergency measures as follows: ‘An emergency measure is any ordinance passed by the affirmative vote of six members of the council for the immediate preservation of the public peace, property, health, safety or morals, in which the emergency is set for [forth] and defined in a preamble thereto; any ordinance calling any election, or providing for the submission of any proposal to the people; any ordinance making an appropriation for the payment of principal or interest of the public debt, or for current expenses of the city government; any general appropriation ordinance; any ordinance relating to any public improvement to be paid for by special assessment.’ In compliance with the procedure specified in the charter there was filed with defendant, within the time provided, a referendum petition containing more than 18,000 names and addresses. Section 430 requires referendum petitions to contain signatures equal to 10% of the total vote cast for mayor at the preceding regular municipal election and it was stipulated that at the last election, which occurred in 1959, said total vote was 94,305; it was also stipulated that, upon the filing of said referendum petition, defendant refused to examine same and to certify as to its sufficienty and that she was instructed by the city council, by resolution, to take no further action on said referendum petition. The agreed statement also specified that at the time in question Kansas City was adding eight different compounds to its water supply, all of which were for the purpose of purifying, softening, improving the taste of, and regulating the acid-alkaline balance of the water; that the purpose of purchasing the equipment, as provided in the ordinance under consideration, is to add fluorides to the water supply for the medicinal purposes of hardening the teeth and preventing dental caries; that Missouri River water, from which all water for the system is taken, contains a quantity of natural fluorides, but additional fluorides have never before been added by Kansas City to its municipal water supply; that the fluoridation facilities to be acquired are permanent facilities and the fluoridation provided for under the foregoing ordinance will affect the water supplied to all persons who subscribe for water from the Kansas City municipal water system. It is the primary contention of plaintiffs, as disclosed by their pleadings and briefs, that the ordinance in question, not being an emergency measure, is referable under the charter provision. It is the position of defendant that under the provisions of the charter, only legislative ordinances are referable, and that Ordinance No. 27271 was an administrative and not a legislative ordinance and hence was not the proper subject of a referendum petition. The opinion of the Kansas City Court of Appeals pointed out that the charter provided that all ordinances were referable, except those specifically described in Section 15 of the charter, and held that the framers of the charter intended that any ordinance (except those specifically exempted) was subject to referendum regardless of whether it might be classified as legislative or administrative. The question has been briefed as to whether administrative ordinances are subject to referendum under the provisions of the Kansas City Charter. It is conceded that ordinances legislative in character (unless specifically exempted) are referable. We note in an annotation on the subject that ‘it is the general rule that initiative and referendum provisions are applicable only to acts which are legislative in character, and are not applicable to those dealing with administrative or executive matters.’ 122 A.L.R. 769. Reference has heretofore been made to the case of Carson v. Oxenhandler, in which it is said: ‘The rule that only acts legislative in their nature are subject to referendum is particularly applicable in the field of municipal corporations. The legislative body of a municipality, whether it be designated a city council, board of aldermen, or otherwise, is frequently called upon to act in an administrative as well as a legislative capacity by the passage of ordinances and resolutions. From an early date in the history of the right of referendum it has been recognized that to subject to referendum any ordinance adopted by a city council, whether administrative or legislative, could result in chaos and the bringing of the machinery of government to a halt. ...The general rule which had developed is stated in Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336, 338, as follows: ‘Although initiative and referendum provisions widely differ in their terminology, it is the general rule that they are applicable only to acts which are legislative in character, and not to those dealing with administrative or executive matters. ... .’' 334 S.W.2d 339. In Carson, the St. Louis Court of Appeals held that the provision of the St. Louis County Charter providing for referendum of ‘any ordinance’ should be construed as intending that only ordinances of a legislative nature should be the subject of referendum. The court then decided that the ordinance under consideration was legislative in character and thus subject to referendum. The portion of the opinion in Carson which construes the charter provision in regard to the question of its application to ordinances legislative or administrative is a most learned and informative discussion and no doubt is of great assistance to anyone interested in the subject. However, we regard it as dictum for the reason that the opinion held the ordinance under consideration to be legislative in character which, without question, was subject to referendum. In the case before us we do not consider it necessary or proper to construe the charter provision and determine whether administrative ordinances are subject to referendum thereunder. This for the reason that we have decided that the ordinance in question is legislative in nature, and it is conceded that an ordinance of that character is subject to referendum. Therefore, any construction of the charter provision would be dictum. ‘In reference to what constitutes legislative and what administrative action in connection with restriction of the power of initiative or referendum to legislative matters it has been said that action relating to subjects of permanent and general character are usually regarded as legislative, and those providing for subjects of temporary and special character are regarded as administrative....The test of what is a legislative and what an administrative proposition... has further been said to be whether the proposition is one to make new law or to execute law already in existence. Again, it has been said: ‘The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.’'. 5 McQuillan, Municipal Corporations, 3rd Ed., § 16.55, pp. 254-256. No case has been cited (and we have found none) which involves the same situation as the one before us. Missouri cases on the subject are Carson, supra, in which an ordinance authorizing the county to enter into a cooperation agreement with its Housing Authority was held legislative, and State ex rel. Wilkinson v. Edwards, 305 Mo. 431, 266 S.W. 127, wherein an ordinance authorizing the city counsellor to institute condemnation action to a acquire a bridge approach was also held to be legislative. We readily agree that the ordinance before us has the appearance, upon casual examination, of an administrative one. If, instead of fluoridation equipment, it had approved a contract for the purchase of a pump for routine use by the water department, we would unquestionably hold it to be administrative because, as a usual rule, ordinances providing for the purchase of equipment are administrative. However, we must not restrict ourselves to a casual examination of the ordinance but must look to its substance and determine the real purpose thereof and that which it will accomplish. If the first ordinance introduced had been passed we do not see how anyone could reasonably have contended that it would not have been legislative in character. This because it provided a new declaration of public policy for the permanent practice of fluoridation of the water furnished residents of the city and made provisions for the means of putting that policy into effect. If we are correct in the foregoing conclusion, that ordinance would have been subject to referendum. However, it was apparently abandoned in committee and instead a resolution containing the same provisions was introduced and adopted. We do not think that resolution had any lawful effect. In matters of that nature the council can only act by ordinance. See Charter Sections 1(61) and 2. It is significant that the defendant does not contend that it had any legal efficacy. And the resolution was not subject to referendum. Charter Section 430. Shortly thereafter the ordinance in question was adopted. It is stipulated that it ‘was the first ordinance passed by the City Council of Kansas City, Missouri, which made possible the addition of fluorides to the municipal water supply of said city.’ As stated, it appeared to be a routine ordinance for the purchase of equipment but, actually, it would accomplish much more. That ordinance legally inaugurated for the first time the practice of fluoridating the Kansas City water supply. It did so as effectively as could have been done if the first ordinance, so providing, had been enacted. We take judicial notice of the fact that the question of fluoridating the water supply has been a highly controversial one. If we should overlook the real substance of this ordinance and hold it to be administrative, the voters (assuming, but not deciding, that an administrative ordinance is not referable) would be denied the right to refer it simply because of the type of ordinance finally adopted. The maneuver within the council of abandoning the first ordinance and thereafter adopting the resolution and purchase ordinance may or may not have been conceived in order to preclude the right of referendum in regard to this matter, but, regardless of the intent, the result would have been the same. Defendant makes the contention that the ordinance under consideration is administrative rather than legislative because it is in accord with the long-established policy of Kansas City of adding medicinal compounds to the water supply in the interest of the public health. It is said that (1) chlorine is added for the ‘medicinal purpose to attack biologicals in the water’; and (2) aluminum sulphate and ferric sulphate are added for the ‘medicinal purposes to coagulate macroscopic matter in suspension in the water.’ We think the addition of fluorides goes beyond the policy established by the addition of the chemicals herefore specified. Those now being added are used for the purpose of their effect upon the water, i. e., making it pure and palatable, while the sole purpose of adding fluorides is for the therapeutic effect it will have upon the person drinking the water. This contention is ruled against defendant. For the reasons heretofore stated, we have concluded that Ordinance No. 27271 is legislative in character and effect and is therefore subject to referendum. The judgment is reversed and cause remanded with directions to the trial court to issue a peremptory writ of mandamus as prayed for in the petition. All concur.

+/- Stroupe v. Eller

North Carolina, Abuse of Municipal Authority, Petitions Initiatives & Re-votes

• Plaintiff
  Nell Stroupe, Frances K. McLaren, Pure Water Association
• Defendant
  Earl Eller, Frank Mulvaney, Clarence Morgan, Theodore Sumner, William Algary, Watler McRary, Ralph Morris, Weir, City Manager of Asheville, Asheville City Council, City of Asheville
• State
  North Carolina
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - Petitions Initiatives & Re-votes
• Citation
  262 N.C. 573; 138 S.E.2d 240 (N.C. 1964)
• Year
  1964-00-00T00:00:00
• Court Name
  Supreme Court of North Carolina
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Higgins J
• Opinion Text
  The plaintiffs instituted this civil action on November 22, 1963, for temporary and permanent orders restraining the defendants from enforcing an ordinance passed by the Asheville City Council directing the city manager to place fluorides in the water supply of the corporate defendant. The verified complaint upon which the plaintiffs base their demand for the orders alleges as the reasons therefor both the excessive costs and the harmful effects of fluoridation. The defendants filed a demurrer upon the ground the complaint fails to state a cause of action. The parties stipulated that in February, 1956, the Buncombe County Board of Health passed a resolution requesting the City Council to institute such orders as ‘may be required to fluoridate our public water supply’ and in order for the Council to have the benefit of an advisory vote, the Board of Commissioners of the County was requested to and did call a county-wide election on the question whether the City should introduce fluorides into the public drinking water supply. The vote was 2,479 for and 8,465 against fluoridation. ‘No further action was taken by the council and the public water supply was not fluoridated.' The parties stipulated: ‘7. That the question of the feasibility of placing flourides in a public water supply is highly controversial, many communities having allowed it, many communities having disallowed it, and many communities having taken same out of their water supply after having installed it, and representatives of the proponents and opponents having appeared formally before the City Council at various times over the last several years, both before and after the vote of 1956. ‘8. That the sole purpose of fluoridation of the city water supply is to reduce the dental caries (dental decay) in teeth of individuals from birth to the age of approximately fifteen years, together with any residual benefit to those persons throughout their life by consumption of fluoridated water. Dental caries, or tooth decay, is a prevalent and common disease or condition of residents generally in Asheville and Buncombe County. ‘9. It is contemplated that the fluoridation measures undertaken by the Asheville City Council, if carried out, would be under the control and governed by the procedure determined by the North Carolina State Board of Health as in such matters provided.' In August, 1963, the County Health Officer, the Buncombe County Dental and Medical Associations recommended the immediate fluoridation of the city's water supply. The Council, on September 12, 1963, by a 4 to 3 vote, adopted a resolution directing the city manager to fluoridate the water supply. The plaintiffs instituted this action and obtained a temporary order from Judge McLean restraining the defendants pending a hearing. At the hearing on March 4, 1964, Judge Fronberger overruled the demurrer and continued the restraining order to the final hearing. The defendants appealed. HIGGINS, Justice. According to the stipulations of the parties and the findings of the court, the advantages and disadvantages of fluoridating the city water supply are controversial. The question, therefore, becomes one of policy for the decision of the City Council rather than one of law for the courts. DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703; G.S. §§ 160-229 and 160-225; State ex rel. Whittington v. Strahm, 374 S.W.2d 127 (Mo.). ‘It is only where the ordinance is so unreasonable, oppressive and subversive of individual and property rights that it carries the inference of an attempted abuse rather than a legitimate exercise of power that the courts will interfere.’ 6 McQuillin, Municipal Corporations, § 20.04, p. 9 (3rd Ed. 1949). The plaintiffs contend the adverse vote in the county-wide election of 1956, although advisory, nevertheless should prevent the council from passing the resolution until the electors are given another opportunity to vote on the question. While the city charter was not introduced in evidence, yet the parties in their briefs and in the oral argument concede that it provides for a referendum election upon proper petition before any ordinance becomes effective; and in the event a majority vote for the repeal, the ordinance shall be recalled. The board allegations in the complaint are narrowed by the stipulations of the parties. In the absence of any charge of bad faith on the part of the city council or on the part of the health officer and the dental and medical associations at whose instance the council ordered fluoridation, we hold the complaint fails to allege a cause of action. At the same time we realize that difficulty and expense are involved in the changeover to fluoridation, and that upon petition for a referendum the resolution to fluoridate may be called. This being an equity proceeding, we remand the cause to the Superior Court of Buncombe County to be dismissed-but only after the opponents have had time to call for and obtain a referendum as provided in the City Charter. The recall election must be determined by the voters of the city. Those outside, notwithstanding their dependence on the city for their water supply, may not participate in any election to recall an ordinance of the City Council. After the opponents of fluoridation have had a reasonable time to petition for a referendum the Superior Court will dismiss this cause at the cost of the plaintiffs. This delay seems proper inasmuch as the Charter provides the petition may be filed ‘after the passage of any ordinance...and before it goes into effect.’ (emphasis added) Reversed and remanded with instructions to dismiss within a reasonable time after the mandate of this Court.

+/- Balke v. City of Manchester

New Hampshire, Improper Procedure, Petitions Initiatives & Re-votes

• Plaintiff
  June Balke
• Defendant
  City of Manchester
• State
  New Hampshire
• Other Parties
  -
• Case Tags
  - Improper Procedure

  - Petitions Initiatives & Re-votes
• Citation
  150 N.H. 69; 834 A.2d 306 (N.H. 2003)
• Year
  2003-00-00T00:00:00
• Court Name
  Supreme Court of New Hampshire
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Nadeau J
• Opinion Text
  NADEAU, J. The defendant, City of Manchester (city), appeals a decision by the Trial Court (Lynn, J.) that interprets RSA 485:14 (2001) to require approval by the voters of each municipality in which residents use water provided by the Manchester Water Works (MWW) before MWW can provide fluoridated water to any residents of the community. We affirm. The plaintiffs, residents of Manchester and five surrounding municipalities, filed a petition for declaratory judgment, injunctive relief and damages in the superior court, arguing that the city had violated RSA 485:14 by fluoridating its water supply prior to conducting public hearings and obtaining voter approval in other municipalities which MWW served. The plaintiffs' request for a preliminary injunction to stop the fluoridation of the water supply was denied. Both parties moved for summary judgment on the statutory violation claim, and each objected to the other's motion. The trial court granted the plaintiffs' motion for summary judgment, ruling that the city had violated RSA 485:14, and ordered the city to cease fluoridation by April 2004 unless a legislative remedy was enacted or the surrounding towns voted to approve the fluoridation. The city filed a timely motion for reconsideration, which was denied. This appeal followed. The trial court found the following facts. The MWW was established by a special act of the legislature in 1871 and has operated as a department of the city since that time. In addition to providing water service to residents and businesses in the city, MWW extended its water distribution system to include areas outside the city limits of Manchester sometime in the 1920s. At the present time, MWW has direct retail customers (i.e., residential or business properties that are connected to the MWW pipeline system) in the towns of Auburn, Bedford, Goffstown, Hooksett and Londonderry. MWW also has entered into wholesale water contracts with the Town of Derry, the Grasmere Water Precinct, the Central Hooksett Water Precinct and Pennichuck/Consumers New Hampshire Water Company. These wholesale customers in turn provide water service to retail customers in Bedford, Derry, Goffstown, Hooksett and Londonderry. Because an MWW “customer,” whether wholesale or retail, simply means a “connection” to its pipeline system, there is no easy way to correlate the number of customers with the actual number of consumers of MWW water. A “connection” may vary from a single family home to a duplex, a large apartment complex, or a commercial establishment. Despite this difficulty in correlating connections with consumers, the parties appear to have agreed at trial that MWW provides water service to over 99% of the residents of the city. The parties also agreed that the “connections” outside the city limits of Manchester account for between 20% and 30% of MWW's total connections. The parties disagreed as to the percentage of the population served by MWW in each of the satellite towns. Based upon demographic information and information supplied by the New Hampshire Department of Environmental Services (DES), the city estimated that these percentages range from a low of 4.7% for Auburn to a high of 44.1% for Derry. The plaintiffs, on the other hand, proffered an analysis prepared by an architect they retained as an expert, who opined that the percentages range from 8% for Auburn to 57% for Hooksett. Following a public hearing conducted by the city pursuant to RSA 485:14, a question was placed on Manchester's 1999 municipal election ballot asking the voters to decide whether the city's public water supply should be fluoridated. By a margin of 11,594 to 10,938, the vote was in favor of adding fluoride to the water supply. No similar public hearings or referendums were held in any of the other towns that are serviced by MWW, although MWW did notify officials of these towns of its plans to fluoridate the water. The city began adding hydrofluorisilic acid (HFS) to the water supply on December 19, 2000. In June 2000, the city obtained approval of its fluoridation plan, including the use of HFS, from DES pursuant to RSA 485:8 (2001). The sole question on review is one of statutory interpretation. The city argues that the trial court's interpretation of RSA 485:14 is inconsistent with the rules of statutory construction and the historical treatment of water companies in this State. In particular, the city argues that (a) the trial court failed to construe the plain language of RSA 485:14 and the referendum statutes incorporated therein as a whole, (b) the trial court's interpretation of RSA 485:14 conflicts with the statutory scheme and other legal principles, and (c) the trial court's interpretation of RSA 485:14 leads to absurd and unjust results. This court is the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. See In the Matter of Breault & Breault, 149 N.H. 359, 361, 821 A.2d 1118 (2003). We first examine the language of the statute, and, where possible, ascribe the plain and ordinary meanings to the words used. Id. When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. Id. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation. Id. RSA 485:14 provides: No fluorine shall be introduced into the water of any lake, pond, reservoir or stream tributary from which the domestic water supply is taken unless and until the municipality using said waters has held a public hearing as to the introduction of fluorine into the public water supply of said municipality, and the voters of such municipality have approved such action pursuant to RSA 44:16 or 52:23. We first address the argument that the plain language of RSA 485:14, read together with the referendum statutes incorporated therein, requires only that there be a referendum in the municipality that runs the water system. The city argues that the language requiring a referendum by the “municipality using said waters” is ambiguous, and contrasts that wording with other possible formulations that would have been clearer, such as “a municipality within which said waters are used.” We agree, however, with the trial court's interpretation of “municipality using said waters.” It would be illogical to read the statute to require a referendum vote only when a municipality as a municipality, rather than its residents, uses fluoridated water from MWW. We believe it obvious that the statute is concerned with the use of fluoridated water by individuals, not by municipalities as corporate entities. Reading the language in context, the use of the word “municipality” is to designate the municipality as the entity that would hold a referendum for approval of fluoridation of the public water supply: “No fluorine shall be introduced into the water ... until the municipality ... has held a public hearing ... and the voters of such municipality have approved such action.” RSA 485:14. The city argues that “ ‘[p]ublic water system’ is a term of art under the current statutory scheme,” a term used in the referendum before the voters under RSA 44:16: “Shall permission be granted to introduce fluorides into the public water system?” The trial court's interpretation, the city argues, means that MWW is the public water system of every municipality to which MWW provides water, and this contradicts RSA 38:24. We note, however, that RSA 485:14 does not use the term “public water system,” but rather the terms “public water supply” and “domestic water supply.” See RSA 485:14. As the other statutes within the statutory scheme make clear, the legislature knows how to use the term “public water system,” and we will not add words that the legislature has chosen not to include. See Breault, 149 N.H. at 361, 821 A.2d 1118. Furthermore, the use of the word “domestic” synonymously with the word “public” when referring to the water supply in RSA 485:14 strengthens our conclusion that the legislature intended to regulate waters used by private individuals within a municipality, not merely the use of water by a municipality as a public, governmental body. The city and the State argue that the plain language of the statute requires a referendum vote only by the municipality that owns and operates the water system, not every municipality in which a resident receives water from the water system. We disagree. The statute requires a public hearing in each “municipality using said waters,” not merely the municipality that introduced the fluorine into the water. RSA 485:14. Any municipality that has residents using water from MWW is a “municipality using said waters” within the meaning of RSA 485:14. Therefore, we agree with the trial court that “before a public water supply which is used within a municipality may be fluoridated[,] there must be a hearing and referendum in that municipality.” The city argues that the trial court's interpretation of RSA 485:14 leads to absurd and unjust results. Among other things, the city notes that a vote against fluoridation in one small municipality could prevent fluoridation of an entire water system, even if the other municipalities approved it, and that the failure to satisfy the prerequisites to referendum in any municipality would defeat fluoridation for all municipalities using the water system. Although those concerns are valid, these difficulties are the natural result of the statutory language adopted by the legislature. While the city's interpretation might avoid these concerns, it would cause other, equally troubling difficulties. For example, if only the municipality owning the water system were required to approve fluoridation, one small municipality owning a water system could hold a referendum on fluoridation among its voters, and then provide fluoridated water to numerous large municipalities without the residents of the large municipalities having a vote. Finally, the State argues that regulations and the overall statutory scheme place responsibility for the operation of the water system upon the municipality that operates the system, and “placing responsibility for the operation of the water system upon the municipality which operates the system is critical to the success of the statutory scheme.” Thus, the State argues, only the municipality that runs the water system should be required to approve fluoridation by referendum. As difficult as it may be for the city to comply with the statute as currently written, we are constrained by the clear and plain language of RSA 485:14. We will not rewrite the statute; that is the province of the legislature. The trial court's order, decided in June of 2002, did not require the city to “cease and desist from fluoridating the water supplied, directly or indirectly, to any properties located in the towns of Auburn, Bedford, Goffstown, Hooksett or Londonderry” until April 1, 2004, thereby allowing the legislature time to consider whether to amend RSA 485:14. We agree with this approach, and therefore affirm the order of the trial court, but extend the time for compliance to June 30, 2005. Finally, having reviewed the record regarding the city's remaining arguments, we conclude that they either have been waived or are without merit and warrant no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595 (1993). Affirmed. BROCK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

+/- Young v. Board of Health of Borough of Somerville

New Jersey, Abuse of Municipal Authority, Unlicensed Practice of Medicine/Compulsory Medication

• Plaintiff
  Raymond A. Young et al.
• Defendant
  The Board of Health of the Borough of Somerville, et al.
• State
  New Jersey
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - Unlicensed Practice of Medicine/Compulsory Medication
• Citation
  61 N.J. 76; 293 A.2d 164 (N.J. 1972)
• Year
  1972-00-00T00:00:00
• Court Name
  Supreme Court of New Jersey
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  MOUNTAIN, J. This case questions the validity of the proposed fluoridation of a public water supply, an issue which has apparently not hitherto come directly before the courts of this state. Between May and September, 1970, the Boards of Health of the Boroughs of Raritan and Somerville and of the Townships of Branchburg and Bridgewater, all in Somerset County, adopted resolutions requesting their common supplier of drinking water, Somerville Water Company, henceforth to supply water containing one part fluoride to each one million parts of water (1 p.p.m.). Plaintiffs, all of whom are taxpayers and residents of one or other of the affected municipalities, instituted this suit seeking injunctive relief against the proposed action and an adjudication that the resolutions were invalid. Upon the return day of the order to show cause why a preliminary injunction should not issue, plaintiffs moved for summary judgment. The motion was denied. By stipulation of counsel, and with the consent of the trial judge, it was agreed that the court's decision would be given the effect of a summary judgment in defendants' favor. Plaintiffs appealed to the Appellate Division and this Court certified the case upon its own motion. R. 2:12-1. Studies and experiments made over the past quarter century have established with considerable scientific certainty that in communities where public drinking water contains controlled amounts of fluoride, the incidence of dental caries (tooth decay) is dramatically less than in communities where the drinking water lacks this ingredient. Apparently fluoride in drinking water tends to harden tooth enamel, making teeth more resistant to decay. This beneficial effect is far more noticeable in children than in adults. With the addition, in 1967, of New York City's eight million residents, the number of persons drinking fluoridated water in the United States reached a total of sixty-five million. Clark & Sophy, Fluoridation: The Courts and the Opposition, 13 Wayne L.Rev. 338 (1967).^FN1 FN1. The same article lists over fifty wellknown national organizations that have adopted policies favorable to fluoridation. These include American Cancer Society, American Nurses Association, American Hospital Association, United States Department of Defense, American College of Dentists, American Pharmaceutical Association, American Dental Association, American Medical Association, American Public Health Association, United States Department of Health, Education and Welfare, Food and Drug Administration and the Public Health Service. Clark & Sophy, supra, at 342. Although no harmful results from fluoridation have been clearly 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. De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (1953), cert. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1954); Opinion of the Justices, 243 A.2d 716 (Del.1968); City Commission of City of Fort Pierce v. State ex rel. Alterhoff, 143 So.2d 879 (Fla.App.1962), app. dis. 154 So.2d 208 (1963); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964), cert. den. 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558 (1965); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Graybeal v. McNevin, 439 S.W.2d 323 (Ky.1969); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (1954), app. dis. 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954); Attaya v. Town of Gonzales, 192 So.2d 188 (La.App.1966); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W.2d 16 (1965); Readey v. St. Louis County Water Co., 352 S.W.2d 622 (Mo.1961), app. dis. and cert. den. 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47 (1962), reh. den. 371 U.S. 906, 83 S.Ct. 203, 9 L.Ed.2d 167 (1962); Paduano v. City of New York, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966), cert. den. 385 U.S. 1026, 87 S.Ct. 754, 17 L.Ed.2d 674 (1967); Stroupe v. Eller, 262 N.C. 573, 138 S.E.2d 240 (1964); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609 (1955), app. dis. 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956); Dowell v. City of Tulsa, 273 P.2d 859 (Okla.1954), cert. den. 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955); Baer v. City of Bend, 206 Or. 221, 292 P.2d 134 (1956); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966); Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1954); Birnel v. City of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959), app. dis. 361 U.S. 10, 80 S.Ct. 71, 4 L.Ed.2d 51 (1959), reh. den. 361 U.S. 904, 80 S.Ct. 204, 4 L.Ed.2d 159 (1959); Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242 (1955). 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. In the case before us it is initially urged that the local boards of health lacked authority to adopt the resolutions requesting fluoridation. We cannot agree. The Legislature allocated to the State Department of Health the responsibility of formulating ‘comprehensive policies for the promotion of public health and the prevention of disease within the State.’ N.J.S.A. 26:1A-37. Specifically this statute directed the Department to ‘encourage, direct and aid in co-ordinating local programs concerning control of preventable diseases in accordance with a unified State-wide plan . . .,’ to ‘administer or supervise a program of . . . child health services, encourage and aid in co-ordinating local programs concerning . . . infant hygiene’ and ‘administer or supervise a program of dental health, (and) encourage and aid in co-ordinating local programs concerning dental health.’ Additionally the State Commissioner of Health was specifically authorized to do the following: i. Cause studies to be made to determine whether the recognized public health activities of local health departments are being conducted and whether minimum standards of performance are being met in all municipalities of the State and for the purposes of this subsection, the commissioner shall recommend and the Public Health Council shall prescribe what are to be considered as ‘recognized public health activities' and ‘minimum standards of performance’; j. Require local boards of health to establish and maintain a program of recognized public health activities and to meet minimum standards of performance as prescribed by the Public Health Council in accordance with the provisions of subsection ‘i’ of this section. (N.J.S.A. 24:1A-15) We pause to emphasize the hierarchical effect of this statute. Within the rather wide area of its application it clearly places state authorities above local authorities. To the extent that recognized public health activities are defined and minimum standards for their performance established at the state level, these decisions are binding on local boards of health. Pursuant to this statute, the Public Health Council of the New Jersey State Department of Health prescribed certain Recognized Public Health Activities and Minimum Standards of Performance for Local Health Departments in New Jersey, to take effect April 1, 1961. These included, under the heading, Dental Health, the following: 50.2 Promote controlled adjustment of fluoride content of public water supplies to the optimum protective level of 1 p.p.m. In 1970 all of the functions, powers and duties theretofore exercised by the Department of Health and by the Commissioner of Health, having to do, Inter alia, with waters of this State and with potable water supplies were transferred to The Division of Environmental Quality and the Commissioner of the Department of Environmental Protection. N.J.S.A. 13:1D-7. The same enactment also provided that this transfer should not affect orders, rules or regulations theretofore adopted by the predecessor agency. N.J.S.A. 13:1D-15. Thus the quoted directive persists as an ongoing regulation of the Department of Environmental Protection. Effective October 1, 1967, the Department of Conservation and Economic Development, which at the time shared certain responsibilities with respect to water policy and supply, N.J.S.A. 13:1B-47 et seq., included in its promulgated Potable Water Standards, a statement that fluoride should be present in water intended for potable purposes in recommended concentration of not more than 1.5 p.p.m. and not less than 1 p.p.m. The Department of Conservation and Economic Development was, in 1970, reorganized to become the Department of Environmental Protection, N.J.S.A. 13:1D-1, and the same legislation mentioned above, N.J.S.A. 13:1D-15, gave to these Standards continuing vitality. It therefore seems abundantly clear that the local boards of health, in requesting the private utility that supplies drinking water to their municipalities to fluoridate at a concentration of 1 p.p.m., were merely implementing a policy that had been clearly announced by the arm of state government charged with overall responsibility in this area of public health. Where, as here, a policy decision in the field of public health has been taken at the state level, the proper function of local boards of health is undoubtedly to implement and carry out such decisions. We are therefore not faced with the question as to whether, absent any authoritative announcement of policy at the higher level, a local board of health could, on its own initiative, undertake to fluoridate the municipal supply of drinking water. We are mindful, however, of the broad grant of power to enact and amend health ordinances contained in N.J.S.A. 26:3-64, and as this court observed upon an earlier occasion, Local boards of health are governmental agencies created in every municipality under statutory mandate, N.J.S.A. 26:3-1, et seq., for the purpose of exercising locally the inherent police powers of the State respecting matters of public health. ( Bd. of Health of Tp. of Scotch Plains v. Pinto, 57 N.J. 212, 214, 271 A.2d 289, 290 (1970)) Although we need not decide the point, there would appear to be no impediment to appropriate local action, absent any mandate at the state level. Finally, it is argued that the defendant boards of health were bound to act by ordinance rather than by resolution. We see no merit to this contention. Viewing the local action as responsive to the policy pronouncement of the State, it was no more than a request and certainly not legislative in nature. Where a general rule or declaration of policy has already been made, its particular implementation by a board of health will normally take the form of a resolution. Courter v. Board of Health of City of Newark, 54 N.J.L. 325, 23 A. 949 (Sup.Ct.1892). The several resolutions did no more than request the water utility to go forward with a program that had already been approved, if not indeed directed, by higher authority. Clearly no ordinance was needed. The judgment of the trial court is affirmed. For affirmance: Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, SCHETTINO and MOUNTAIN-6. For reversal: None.

+/- Turner v. Barnhardt

New Mexico, Petitions Initiatives & Re-votes

• Plaintiff
  Harold L. Turner
• Defendant
  Charles E. Barnhart
• State
  New Mexico
• Other Parties
  New Mexico Citizens for Fluoridation
• Case Tags
  - Petitions Initiatives & Re-votes
• Citation
  83 N.M. 759; 497 P.2d 970 (N.M. 1972)
• Year
  1972-00-00T00:00:00
• Court Name
  Supreme Court of New Mexico
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  McManus
• Opinion Text
  McMANUS, Justice. This action was brought in the Bernalillo County District Court and involved a complaint asking for declaratory judgment and for an injunction enjoining the City of Albuquerque from proceeding to place fluoride in the water supply. The court granted summary judgment for the defendants, denying any relief to the plaintiffs who perfected this appeal. An ordinance of the City of Albuquerque, New Mexico, was adopted by the voters of that City on the 3rd day of November 1970. The question on which the voters cast their opinions read as follows: ‘Shall the proposed ordinance requiring fluoridation of the City water supply be adopted?’ Below the question were levers labeled ‘For’ and ‘Against’ for the choice of the voters. The first point appellants raise is that the court should not have granted summary judgment in favor of the defendant since the issues involved were genuine and material issues of fact. In open court, at the trial, we relate the following questions and answers: ‘MR. O'BRIEN: May I make a suggestion? ‘THE COURT: Now, if you can tell me, if you now take the position that people who voted in this case had no right to vote or people who did not vote and had a right to vote will change the result of the election, maybe we can go into it, but I understand your position- ‘MR. O'BRIEN: I can't make any such claim. ‘THE COURT: You don't take that position? ‘MR. O'BRIEN: No, your Honor, I can't. It could be so but I can't prove it. ‘THE COURT: Now, I still don't know what questions of fact you want to take any depositions on. ‘MR. O'BRIEN: The suggestion I was going to make to you, what I would like to do, is when I'm drawing this brief on the law to study it out and if I have not objection to points of fact, I'll say so right in my brief. ‘THE COURT: Now, I know you have a lot of objections to questions of law, but they're questions of law and you can answer that in your brief, period, and that's it. ‘MR. O'BRIEN: Let me put it this way. When we come in on the brief and discuss that at that time- ‘THE COURT: Now, I don't know that I'm going to need any further hearing after I get your brief. If I want another hearing, I will let you know; otherwise, I won't. ‘MR. O'BRIEN: The suggestion I was going to make is this, if at that time I'll find a question of fact I'll call it to the attention of the Court. ‘THE COURT: Right. Now, you don't know: ‘MR. O'BRIEN: Yes. Correct.’ The hearing terminated forthwith and no logical or legitimate questions of fact were presented to the court. Questions of fact were alleged for the first time on appeal by the appellants without benefit of presentation to the trial court. Inasmuch as the original attorney, Mr. O'Brien, passed away during the proceedings, there was an adequate period of time during which the plaintiffs could have Rule 20(1), Supreme Court Rules, s 21-2-1(20), issues. Appellants complain that the facsimile signature of the Albuquerque City Clerk was fatal to the cause of the City of Albuquerque. This issue was never raised in the court below and cannot now be raised here for the first time. See Rule i0(1), Supreme Court Rules, s 21-2-1(20), N.M.S.A.1953 Comp. (Repl. Vol. 3, 1968). There has been no showing by appellants that there were further fact questions subject to the decision of the trial Court. See Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 461 P.2d 415 (1969). Therein it was stated: ‘Mere argument or contention of existence of material issue of fact, as in the instant case, does not make it so. Wisehart v. Mountain States Telephone and Telegraph Co., 80 N.M. 251, 453 P.2d 771 (Ct.App.1969). The party opposing a motion for summary judgment cannot defeat the motion and require a trial by the bare contention that an issue of fact exists, but must show that evidence is available which would justify a trial of the issue. Aktiengesellschaft, Etc. v. Lawrence Walker Cotton Co., 60 N.M. 154, 288 P.2d 691 (1955); see Felt (for Use of United States) v. Ronson Art Metal Works, 107 F.Supp. 84 (D.C.Minn.1952); 3 Barron and Holtzoff, Federal Practice and Procedure, s 1235 at 141. Appellant failed in this important aspect.’ Appellants' Point II concerning the holding of a general election at the same time as a municipal election will not be considered because this point was not included in the praecipe as one of the points that the appellant intended to rely on for appeal. Rule 12(1), Supreme Court Rules (s 21-2-1(12)(1), N.M.S.A.1953 (Repl. Vol. 4, 1968)), reads as follows: ‘If the appellant or plaintiff in error does not specify or designate for inclusion in the transcript the complete record and all the proceedings and evidence in the cause, he shall include in his praecipe a concise statement of the points on which he intends to rely,... . ‘... ‘The review shall be limited to the points as stated, and such statement of points may be amended only in furtherance of justice and on terms and on special leave of the district court before the filing of the transcript and of the Supreme Court thereafter.’ (Emphasis supplied.) See, also, City of Hobbs v. Chesport, Ltd., 76 N.M. 609, 417 P.2d 210 (1966); Robinson v. Black, 73 N.M. 116, 385 P.2d 971 (1963). In their Point III, appellants claim error in that the full text of the ordinance was not placed on the ballot. In that regard, there are some points we will have to make clear. The major one is the language from s 14-13-18(B), N.M.S.A.1953 (Repl. Vol. 3, 1968), which the appellants quote in their brief. This statute refers to initiative measures which are measures promulgated by the people with amendment by the commission and voted on by the people. This election involved a referendum measure which is an ordinance passed by the commission and voted on by the people. The controlling statutory section is s 14-13-17(B), N.M.S.A.1953 (Repl. Vol. 3, 1968), which states: ‘The ballot shall contain the text of the ordinance or resolution in question.’ The appellants argue that text means the entire ordinance and failure to print the entire ordinance on the ballot amounts to an irregularity in the election that is substantial enough to void the election. The general rule toward election irregularities is: ‘Provisions reserving to the people the power of initiative and referendum are to be given a liberal construction to effectuate the policy thereby adopted.’ City Commission of Albuquerque v. State, 75 N.M. 438, 405 P.2d 924 (1965). In the City of Fargo v. Sathre, 76 N.D. 341, 36 N.W.2d 39 (1949), the North Dakota court, quoting from a very old Indiana case, stated: “All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void. ( Jones v. State, 153 Ind. 440, 55 N.E. 229, 233).' ‘... ‘The reason behind this rule is that the will of the people freely and intelligently expressed ought not to be defeated because of the mistake of an officer or of any technical fault.’ New Mexico recognizes that technicalities need not disturb the results. See, in particular, State ex rel. Palmer v. Miller, 74 N.M. 129, 391 P.2d 416 (1964), where this Court stated: ‘In addition, we accept as correct the statement that election laws should be liberally construed so as to accomplish their purpose and that technicalities should not be permitted to deprive voters of their franchise or render an election void.’ See, also, Roberts v. Cleveland, 48 N.M. 226, 146 P.2d 120 (1944), wherein this Court said: ‘...(T)he regulations imposed are not conditions upon compliance with which the right comes into being, but are regulations intended merely to regulate the exercise of the right in an orderly way.’ Roberts, supra, involved candidates and filing petitions and party affiliations but there is no reason to say that the general rule does not still apply to the case before us. The voters in this case did speak on the issue of fluoridation and with the amount of publicity that attended the election on this issue we cannot justify holding the election void because of the so-called irregularities and thus circumventing the will of the voters involved. This point is well stated in Truman v. Royer, 189 Cal.App.2d 240, 11 Cal.Rptr. 159 (1961): ‘Inasmuch as the power of referendum is one reserved to the people, and in order to protect the people in the exercise of this power, statutory and charter provisions dealing with such powers are always liberally construed in favor of the power.’ Not only does the law direct protection of the voter but our statutory language could be construed as requiring only a summary of the ordinance to be decided upon. Our statute states ‘the ballot shall contain the text’ while most mandatory statutes state ‘full text.’ The court in Opinion of the Justices, 309 Mass. 555, 34 N.E.2d 431 (1941) said: ‘The words ‘full text,’ as used in constitutional provisions, refer to the precise terms of a proposed measure and nothing more.' The use of the word ‘text’ alone, under the circumstances of this case, does not negate the fact that the voters were adequately protected, and we will not thwart the will of the people on the basis of a technicality. Point IV, concerning the use of voting machines, and Point V, regarding the printing of the ballot in English and Spanish, were not included in the praecipe and we will not consider these points on this appeal. See Rule 12(1), Supreme Court Rules, supra; City of Hobbs v. Chesport, Ltd., supra. The decision of the trial court is affirmed. It is so ordered. COMPTON, C.J., and OMAN, J., concur.

+/- Paduano v. City of New York

New York, Improper Procedure, Unlicensed Practice of Medicine/Compulsory Medication, State police power

• Plaintiff
  Dominick F. Paduano et al.
• Defendant
  City of New York et al.
• State
  New York
• Other Parties
  -
• Case Tags
  - Improper Procedure

  - Unlicensed Practice of Medicine/Compulsory Medication

  - State police power
• Citation
  45 Misc. 2d 718; 257 N.Y.S.2d 531 (N.Y. Sup. Ct. 1965)
• Year
  1965-00-00T00:00:00
• Court Name
  Supreme Court of New York
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Burst J
• Opinion Text
  JOSEPH A. BRUST, Justice. In this action wherein plaintiffs, as taxpayers, seek to enjoin pendente lite and permanently, the proposed program for the fluoridation of the municipal water supply of New York City, there are two applications before this Court, (1) plaintiffs' application for a temporary injunction, and (2) defendants' cross motion for an order dismissing the complaint. Plaintiffs assert numerous causes which may be placed into two main categories. They assert that there were procedural defects in the manner in which the fluoridation program was adopted; specifically concerning the manner of appropriating monies for the implementation of the program and the alleged failure to comply with State law which requires, in plaintiffs' view, a local law before fluoridation can be adopted by the City. The second category concerns, primarily, constitutionally based objections to the program, and assertions that in the present posture of scientific knowledge in this area, fluoridation would be not only improper but unconstitutional. The complaint sets forth three causes of action and in the second cause, which this Court will consider first, plaintiffs allege that the City may not lawfully expend funds for the proposed project because no local law has been passed authorizing such action. The fluoridation program proposed for this City was formally authorized by a new section 141.08, of the New York City Health Code enacted by the New York City Board of Health on April 7, 1964, which provides as follows: ‘Section 141.08 Fluoridation of public water supply ‘The public water supply of the city of New York shall be fluoridated in the following manner: ‘A fluoride compound shall be added which will provide in such water supply a concentration of approximately 1.0 part per million of the fluoride ion, provided, however, that the concentration of such ion shall not exceed 1.5 parts per million.’ This amendment was filed with the City Clerk of the City of New York on April 7, 1964 and took effect on that date in accordance with the provisions of Section 558 of the New York City Charter. The authority of the Board of Health to act in this general area is derived from Sections 555-558 of the New York City Charter. Section 558, subdivision a, provides that the New York City Health Code ‘shall have the force and effect of law.’ While the New York City Sanitary Code (the predecessor of the present City Health Code, which superseded the Sanitary Code as of October 1, 1959) was in effect, it was repeatedly declared that the Sanitary Code and amendments thereto, had the force of state law. Matter of Bakers Mut. Ins. Co. (Dept. of Health) 301 N.Y. 21, 27, 92 N.E.2d 49, 51 (1950). In Matter of Bakers Mut. Ins. Co. supra, in which the validity of an amendment to the New York City Sanitary Code was sustained, the Court of Appeals declared (p. 27, 92 N.E.2d p. 52): ‘The intent of the Legislature in providing for such a statutory scheme seems to us to have been simply this: The Sanitary Code of the City of New York is to have within that city the force and effect of State law while elsewhere in the State the [State] Sanitary Code and Public Health Law of the State are to be supreme. Cf. People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7.’ In Metropolitan Ass'n of Private Day Schools Inc. v. Baumgartner, 41 Misc.2d 560, p. 564, 245 N.Y.S.2d 733, p. 738, the court affirmed the same proposition as to the New York City Health Code, stating: ‘...the Health Code of the City of New York has the force and effect of state law within the city's boundaries. ( Matter of Bakers Mutual Insurance Co. [Dept. of Health], 301 N.Y. 21, 92 N.E.2d 49.)’ Subdivision b of Section 558 authorizes the Board of Health to add to, alter, or amend any part of the health code and to publish additional provisions ‘for the security of life and health in the city’, and Section 556, subdivision a, empowers the Health Department to ‘regulate all matters affecting health in the city’. The power of the Board to enact provisions for the furtherance and protection of health has long been established as a constitutional exercise of power (Metropolitan Board of Health v. Heister, 37 N.Y. 661; People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7; Matter of Conlon v. Marshall, 185 Misc. 638, 59 N.Y.S.2d 52 [Sup.Ct., Kings Co., 1945], affd. without opinion 271 App.Div. 972, 68 N.Y.S.2d 438 [Second Dept., 1947]; Quaker Oats Co. v. City of New York, 295 N.Y. 527, 538-539, 68 N.E.2d 593, 597, 598 [1946], affd. Hill Packing Co. v. City of New York, 331 U.S. 787, 67 S.Ct. 1314, 91 L.Ed. 1817). Article 17, Section 3, of the State Constitution, effective January 1, 1939, provides: ‘The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine.’ Concerning this provision, it is stated in the revised record of the 1938 Constitutional Convention, at page 2133, that it was to validate the police power as then ‘practiced in the State of New York’ and, when applied to public health, such police power is not merely the power to restrain and regulate the use of property, but is rather ‘a constructive program for the promotion of positive health’. In addition, the New York City Charter Revision Commission Report, dated August 17, 1936, indicates that the charter, effective January 1, 1938, is intended to confer ‘extraordinary’ and ‘plenary’ powers of legislators for the protection of health upon the Board of Health, and the Report further states at page 38: ‘The Board of Health exercises extraordinary police powers affecting the health of the City. By its power to adopt a Sanitary Code the Board has plenary powers of legislation.’ In Matter of Stracquadanio v. Department of Health, 285 N.Y. 93, 97, 32 N.E.2d 806, 808 the Court stated: ‘Clearly section 558 of the New York City Charter endows the Board of Health with a broad discretion in the selection of measures by which public health may be protected within the field of its jurisdiction.’ And, further, in People v. Blanchard, 288 N.Y. 145, 147, 42 N.E.2d 7, 8: ‘...[T]he main business of safeguarding the public health has always of necessity been done by local boards or officers through sanitary by-laws or ordinances which have been accorded the force of law. Metropolitan Board of Health v. Heister, 37 N.Y. 661, 670; Polinsky v. People, 73 N.Y. 65.’ Regardless of its validity, the fluoridation program is obviously directed towards the ‘security of the life and health’ of the citizens of New York City, and is an attempt to cope with the serious and growing public health problem of tooth decay and dental neglect, particularly among children. To hold otherwise would require a finding that fluoridation, regardless of its merits, is a measure which has no direct bearing on a public health problem. Adopting plaintiffs' substantive arguments at face value arguendo, the most that could be said is that there is a strong difference of opinion as to the value of fluoridation and that it may not be the best means of attacking the problem of tooth decay and dental neglect. However the problem still remains fundamentally one of health and is therefore within the jurisdiction of the New York City Department of Health. This Court finds that the aforementioned new Section 141.08 of the New York City Health Code offends no public policy of this State, contravenes no prevailing State statute or municipal ordinance and is not in excess of the Health Department's power (see Grossman v. Baumgartner, 40 Misc.2d 221, 242 N.Y.S.2d 910, revd. 22 A.D.2d 100, 254 N.Y.S.2d 335). Accordingly, the second cause of action is legally insufficient and must fall. The first cause of action is based on an attack upon the procedures used, and to be used to appropriate monies for the implementation of the fluoridation program. After public hearings duly held by the Board of Estimate of The City of New York and the Finance Committee of the Council of the City of New York, a proposal was adopted by the Council modifying the expense budget for 1963-1964 and authorizing the expenditures of funds from the expense budget for the acquisition and installation of the necessary equipment and facilities. Plaintiffs assert that this was illegal, claiming that the proper method of appropriating funds for this program should have been by an amendment to the City's capital budget, and that the City is without power to use expense budget monies for this particular purpose unless the capital budget is amended. It appears that the fluoridation equipment will be installed in existing City structures and that about 90 per cent of the appropriated sum, exclusive of engineering costs, will be expended for acquisition and installation of equipment. A project need not be handled through the capital budget and capital budget appropriation if it is intended that the costs of the project be met wholly out of the expense budget appropriation and not by any City borrowing. The entire history of the capital budget provisions of the City Charter, as they were amended from time to time, establishes beyond doubt, that the capital budget, as an appropriation document, is concerned solely with capital improvements provided by the device of borrowing and pledging the credit of the City, with the power in the Mayor of the City of New York to extend the limit of such borrowing by not more than 15 per cent above the sum appropriated in the capital budget. Section 225 of the City Charter provides: ‘No obligations of the city shall be issued or authorized for or on account of any capital project not included in a capital budget, or in excess of the maximum amount of obligations which may be issued on account of a project as fixed in such capital budget; and no amount may be expended on account of any capital project in excess of the amount appropriated therefor in a capital budget, except that the amount appropriated therefor may be increased by the mayor by not more than fifteen per centum thereof in order to meet any costs required to advance such project.’ What is prohibited by the Charter is the issuance of any evidence or certificate of obligation by a City borrowing monies to provide for a capital project unless such borrowing is provided by a capital budget appropriation. There has been no allegation by plaintiffs or proof that any bonds or other obligations of the City will be issued to obtain funds to finance the program herein. While allowance of capital expenditures through the device of inclusion in the expense budget may afford a method of circumvention of the procedures surrounding capital budget appropriations, this procedure is legally permissible and there is no basis presented for judicial interference in this area. Accordingly, the first cause of action is legally insufficient and must also fall. The third cause of action is based on plaintiffs' allegations and contentions (a) that other methods of reducing tooth decay are available; (b) that fluoridation is discriminatory in that it allegedly benefits children only; (c) that fluoridation unlawfully imposes medication on plaintiffs against their will; and finally, (d) that fluoridation ‘is or may be’ dangerous to health. Plaintiffs also contend, in an affidavit submitted herein by a non-party, that the religious freedom of certain groups in the community will be unconstitutionally impaired by fluoridation. However, no such allegation is set forth in the complaint and, accordingly, this issue is not properly before this court at this time. This court may only concern itself with the issues raised by the pleadings. ^FN1 FN1 It appears that the allegation of infringement of religious liberty has been determined adversely in other courts and that those determinations, in effect, were affirmed by the United States Supreme Court in its dismissal of the appeal in Kraus v. City of Cleveland, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463, reported below, 163 Ohio St. 559, 127 N.E.2d 609; see also, Dowell v. City of Tulsa, Okl., 273 P.2d 859, cert. den. 348 U.S. 912, 75 S.Ct. 293, 99 L.Ed. 715; De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, cert. den. 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Baer v. City of Bend, 206 Or. 221, 292 P.2d 134; Froncek v. City of Milwaukee, 269 Wis. 276, 69 N.W.2d 242. Plaintiffs allege, in effect, on the basis of these contentions, that the city's fluoridation program violates the privileges and immunities clause of the 14th Amendment to the Federal Constitution and also the New York State Constitution, Article I, Section 1, the equal protection clauses of both constitutions, and the due process clause of the 14th Amendment to the United States Constitution. Finally, plaintiffs also claim that the city's fluoridation program violates the New York City Public Health Law in that the city allegedly lacks the power to add any substance to its water supplies which is not related to prevention of waterborne disease or maintenance of the purity and potability of such water supplies. Both parties hereto have submitted a mass of documentary evidence attesting to the point of view advanced by each as to the beneficial or possibly detrimental nature of fluoridation. In the face of this mass of evidence, this Court will deem the defendants' cross motion as one for dismissal on the merits before answer, in the nature of summary judgment, pursuant to CPLR, Section 3211, subdivision (c). It has already been noted that the Board of Health has the power to, and did, act in legislative capacity under State legislative authority. It is not disputed that the matter of tooth decay and dental neglect among 500,000 of the City's children presents a growing public health problem. Public hearings were held on November 18th and 19th, 1963, by the New York City Board of Estimate and the Finance Committee of the City Council on the proposal to appropriate the funds required for the acquisition and installation of the necessary fluoridation equipment and facilities. The testimony and proofs taken at those hearings, comprising a record of approximately 900 pages, are before the court. The testimony is summarized in affidavits submitted to the court by highly qualified experts, researchers and engineers. The record discloses that 48,000,000 people in the United States and Canada have been consuming municipally fluoridated water for years without any substantial evidence of harm to health and that 7,000,000 additional people in this country have, for generations, consumed naturally fluoridated waters with a content similar to, or greater than, the one-part-per-million level contemplated for New York City also without any verified harm to health. Fluoridation as a public health practice has been exercised in the United States for almost twenty years. It is not disputed that dental caries affect a substantial percentage of our population, particularly the more disadvantaged who are not disposed or able to undertake programs of proper dental care. It is also clear that fluoridation is effective in combatting dental caries among the young, and its effects last through adulthood. Fluoridation of the water supply is also the most efficacious, probably the cheapest, and may be the only practical method of insuring the administration of this drug to the very young. Plaintiffs assert that other means are available whereby fluorides may be provided for those desirous of using them. But the question before this Court is solely whether the means proposed herein are lawful. The existence of other possible remedies is not relevant ( Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, United States v. Carolene Products Company, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234). In the Jacobson case, at page 35 of 197 U.S., at page 365 of 25 S.Ct., it was stated: ‘Since ...vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was-perhaps, or, possibly-not the best either for children or adults'. As to plaintiffs' claim that fluoridation is discriminatory for it benefits children only, all that need be said is, that in the usual course, children become adults and that fluoridation will, commencing with the date of its adoption, ultimately affect all. Plaintiffs lay special emphasis upon ‘individual liberty’ and the compulsive aspect of municipal fluoridation in shrinking this area. In support of this, plaintiffs quote from Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, p. 29, 25 S.Ct. 358, p. 363, wherein the Supreme Court held constitutional a regulation requiring vaccination, as follows: ‘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.’ However, this Court also stated: ‘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 to 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.’ The Court of Appeals of this State similarly upheld the propriety and constitutionality of a vaccination statute ( Matter of Viemeister v. White, 179 N.Y. 235 at p. 238, 72 N.E. 97 at p. 98, 70 L.R.A. 796), stating: ‘When the sole object and general tendency of legislation is to promote the public health, there is no invasion of the Constitution, even if the enforcement of the law interferes to some extent with liberty or property.’ It is true that the issues presented in the aforementioned Jacobson and Viemeister cases involved communicable infectious diseases and did not involve a disease such as dental caries, which admittedly is not a communicable infectious disease. At the worst, if unchecked, dental caries can cause a degeneration of the physical condition of the individual, but its effect upon society generally is, at its best, quite indirect. Nor do those cases which upheld the chlorination of municipal water supplies afford a compelling precedent. The addition of chlorine is effected to remove existing or threatened impurities in a water supply and to meet the obligation of the supplier, often imposed by statute, to supply pure water to its citizens. The addition of fluorides would serve a far different purpose-one completely unrelated to the purity of the water supply, and not aimed at combatting a threat to health posed by the state of the water supply prior to the addition of fluorides. Defendants contend that ‘The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense’ ( Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 42, 53 S.Ct. 431, 433, 77 L.Ed. 1015) and that ‘It is not for the courts to determine which scientific view is correct in ruling upon whether the police power has been properly exercised’ ( Chiropractic Ass'n of New York v. Hilleboe, 12 N.Y.2d 109, 114, 237 N.Y.S2d 289, 291, 187 N.E.2d 756, 757). The non-fluoridation cases heretofore cited all involved communicable diseases or the regulation or use of equipment which was dangerous to the public generally and, for the reasons above noted, are inapposite. As far as this court can determine, the highest courts of our State and of the United States have not yet decided whether a State, in the proper exercise of the police power, can force individuals to take medication in these non-contagious diseases which are not extremely debilitating to the individual concerned and which can be prevented by other readily available and inexpensive means. Some have argued that in so doing, the government is confusing expediency with obligation, and stepping out of a role of protector of the individual's rights, to one as arbiter of them. They assert that if this right of the State is upheld, it may equally interdict the use of tobacco, alcohol or rich foods, and introduce into the water supply aspirin to prevent headaches, or any other drug that may be developed in the future to prevent any type of disease, such as allergies, etc. It should be here noted that if the condition attacked were in the nature of an ‘adult’ disease, rather than, as in the instant case, one where the treatment, to be efficacious, must be given to the very young, different considerations would be present. However, the health of our children is a legitimate area of public and governmental concern, whether under the police power of the State, or in the exercise of the State's power to protect the general welfare. It is not shocking to realize that the State, acting in the interest of children, too young to be sui juris, may intervene in the parental area. This question has been presented to the highest courts of several other states and it has been universally held that fluoridation does not unconstitutionally invade the rights of the citizens. (See De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, cert. den. 347 U.S. 1012, 74 S.Ct. 863; Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, app. dismd. 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701; Kraus v. City of Cleveland, Ohio App., 121 N.E.2d 311, affd. 163 Ohio St. 559, 127 N.E.2d 609, app. dism d. 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Dowell v. Tulsa, 273 P.2d 859 [Okl.], cert. den. 348 U.S. 912, 75 S.Ct. 293; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819; Froncek v. Milwaukee, 269 Wis. 276, 69 N.E.2d 242; Baer v. Bend, 206 Or. 221, 292 P.2d 134; City Commission of Ft. Pierce v. State ex rel. Altenhoff, 143 So.2d 897 [Fla.]; Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569; Readey v. St. Louis County Water Co., 352 S.W.2d 622 [Mo.]). In only two cases have the courts voiced even qualified objections to the constitutionality of fluoridation. (see McGurren v. City of Fargo, 66 N.W.2d 207 [N.D.]; Teeter v. Municipal City of LaPorte, 236 Ind. 146, 139 N.E.2d 158.) In the latter case, the appellate court based its overruling of the sustaining of defendant's demurrer on the ground that ‘under the present state of scientific experience and opinion we do not feel we are in a position to hold conclusively as a matter of law fluoridation will not have cumulative toxic effects'. ( id. at 151, 139 N.E.2d at 161). However, see Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93, indicating that, in the field of health matters, ‘What is harmful or injurious is a matter for the legislature rather than the courts.’ ( Grossman v. Baumgartner, 22 A.D.2d 100, 101, 254 N.Y.S.2d 335, 337.) In the McGurren case, supra, the court held that it would not be unreasonable to find that fluoridation violated an implied contract between the city and its inhabitants that the city would furnish only pure water. Accordingly, except for the two last cited cases, the approach of the courts has been to uphold fluoridation if it could be found that fluoridation was a reasonable method of preventing a widespread detrimental health condition which the executive or legislative branches of the government believed desirable to treat. In effect, the courts have therefore generally held that their review of fluoridation measures are subject to the same limitations as to scope that exist in the customary review of administrative actions. It should also be noted at this point that the United States Supreme Court has either dismissed appeals or denied certiorari in cases which squarely presented as the primary or sole question for review the constitutionality of fluoridation of a water supply. In the following cases, the appeals were dismissed for want of substantial Federal question: Chapman v. City of Shreveport, supra; Birnel v. Town of Fircrest, supra; in the following cases, certiorari was denied: De Aryan v. Butler, supra; Dowell v. City of Tulsa, supra; Readey v. St. Louis County Water Co., supra; Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326, cert. den., 85 S.Ct. 655 (Jan. 18, 1965). While denials of certiorari do not constitute decisions on the merits, it is clear that the Supreme Court has repeatedly held that no substantial Federal questions are presented by objections to fluoridation. The question of the desirability of fluoridation is immaterial. In the face of the overwhelming precedents previously cited, and in accordance with general principles of stare decisis, this court sitting at Special Term, feels constrained to deny plaintiffs' application for a temporary injunction and to grant defendants' motion for a dismissal of the complaint. Until the scientific evidence as to the deleterious effects of fluoridation reaches beyond the purely speculative state now existing, decisional law mandates the holding that the controversy should remain within the realm of the legislative and executive branches of government. While the courts do not have a right to impose fluoridation upon anyone, judicial restraint requires us to adhere to the uniform decision holding that the executive and legislative branches of government do-at least until some proof is adduced that fluoridation has harmful side effects and therefore is not in the interests of the community. In so holding, the Court is aware that no truly applicable analogy exists in other areas of judicially approved government-mandated action. In other cases, where the citizenry is mandated to do something primarily for the benefit of the individual citizen and with at most an indirect effect on society generally, alternatives are usually provided for those members of the public who do not wish to submit themselves to such requirements. For example, the case of compulsory education with the alternative of sending a child to private school comes to mind. This Court is also aware that if such harmful effects become evident in the future, almost by definition, damage will have already befallen those forced to partake of fluoridated water by the action herein upheld. However, courts are traditionally, and with good cause, reluctant to act until the harm threatened becomes real, evident, and imminent. For the reasons above noted, the plaintiffs' motion for temporary injunction is denied, and defendants' cross motion to dismiss the complaint is granted.

+/- Hacker v. Common Council of City of Ithaca

New York, Abuse of Municipal Authority, Petitions Initiatives & Re-votes

• Plaintiff
  Andrew Hacker
• Defendant
  Common Council of the City of Ithaca et al.
• State
  New York
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - Petitions Initiatives & Re-votes
• Citation
  49 Misc. 2d 69; 266 N.Y.S.2d 927 (N.Y. Sup. Ct. 1966)
• Year
  1966-00-00T00:00:00
• Court Name
  Supreme Court of New York, Tompkins County
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Zeller HA
• Opinion Text
  HOWARD A. ZELLER, Justice. ‘Shall a proposed local law, to amend Sections 3-17 and 5-17 of the Ithaca City Charter, to prohibit the fluoridation of the water supplied by the City be approved?’ This proposal was approved by a majority of the qualified voters of the City at the general election of November 2, 1965. In this taxpayer's action plaintiff moves for summary judgment declaring this purported amendment of the City Charter invalid. There are no factual issues requiring a trial. This court may not concern itself with the merit or folly of fluoridation but only with the legal issue of whether or not the local law is a legally adopted charter amendment. Immaterial to this judicial decision is the fact that over 200 municipalities in this State do fluoridate their water supplies, that the State Department of Health does have the authority to grant municipalities permission to add fluorine compounds to drinking water supplies and that many scientific researchers believe such compounds are beneficial and not harmful. By resolutions adopted on October 7 and November 4, 1964, the Common Council of the City of Ithaca voted to fluoridate the City's water supply. Early in 1965, a petition signed by 10% of the qualified voters was transmitted to the Common Council in accordance with subd. 2 of section 37 of the Municipal Home Rule Law. It requested submission to the electorate of the following local law (matters italicized constituting the proposed additions to the Charter and matters in brackets the proposed omissions): ‘A LOCAL LAW to amend the Ithaca City Charter (New York Laws of 1908, Chapter 503), in relation to the fluoridation of the water supplied by the City of Ithaca Be IT ENACTED BY THE COMMON COUNCIL of the City of Ithaca as follows: Section 1. Sec. 3-7, of Article III., of the Ithaca City Charter, is hereby amended to read as follows: Sec. 3-7. General legislative powers. The legislative power of the city is vested in the common council, and it has power to enact and enforce any ordinance or resolution, not repugnant to the constitution or laws of this state, for any local purpose pertaining to the government of the city and the management of its business, the protection of the business and property interests of its citizens, the preservation of order, peace and health, and the safety and welfare of the city and the inhabitants thereof [;], except that it shall not enact or enforce any local law or ordinance or resolution for any purpose pertaining in any manner to the fluoridation of the water under the control of the city or of the water department of the city government; and it shall also have such powers of legislation, by ordinance or resolution, as are conferred upon it by this act (L.1908, Ch. 503), or any other provision of law affecting the city not inconsistent with this act (L.1908, Ch. 503), except such as are specially conferred by this act (L.1908, Ch. 503) upon any separate department or board of the city government. It shall have the management and control of the finances, and of all the property, real and personal, blonging to the city, except as otherwise provided by this act (L.1908, Ch. 503) or by any other provision of law not inconsistent therewith. The powers conferred by this section are not limited by the enumerated powers in the following section. (L.1908, Ch. 503, § 34) ‘Section 2. Sec. 5-17, of Article V., as amended, of the Ithaca City Charter, is hereby amended to read as follows: Sec. 5-7. Scope of authority of board of public works. The board of public works shall take charge and, subject to the limitations herein contained, have exclusive control of, the following departments of the city government, of the property belonging thereto, and to of the appropriations made therefore: (1) Water., except that it shall not in any manner fluoridate the water under the control of the water department of the city government. (2) Sewers and drains. (3) Streets and sidewalks. (4) Creeks and bridges. (5) Street lighting. (6) Parks. (7) Cemeteries. (8) Garbage. (9) Public buildings and propert, but not buildings or property for use of the fire department. (10) Such other departments as may be assigned to the board under the provisions of section one hundred and forty-five (5-43) of this act (L.1908, Ch. 503). (L.1908, Ch. 503, § 123; L.L.1951, No. 1, § 1; L. 1953, Ch. 878, § 127; L.L.1960, No. 2, § 1) Section 3. The resolutions of the common council of the City of Ithaca made on October 7, 1964, and November 4, 1964, approving the fluoridation of the city's water supply and directing the board of public works to implement said resolutions to provide for such fluoridation are hereby rescinded and repealed. Section 4. This Local Law shall take effect upon the filing thereof in the Office of the Secretary of State.' On April 7, 1965, the Common Council voted to submit the proposed local law to the voters at the following general election. Thereafter pursuant to subd. 6 of section 37 of the Municipal Home Rule Law another petition requesting the submission of the same proposed local law was filed. The City Clerk on June 8, 1965 requested the Election Commissioners to place on the ballot the proposal in the form heretofore quoted. ‘Direct legislation in cities must always rest on some constitutional or statutory grant of power. Government by representation is still the rule. Direct action by the people is the exception.’ (Matter of McCabe v. Voorhis, 243, N.Y. 401, 413, 153 N.E. 849, 851.) Defendants urge that the Municipal Home Rule Law (adopted by the Legislature and effective January 1, 1964) permitted the submission of the proposed local law to the electorate. Plaintiff claims principally that the Municipal Home Rule Law did not authorize the submission of this proposed local law to the electorate as it was not in truth a charter amendment but an attempt by the electorate to nullify resolutions of the Common Council and to legislate in a field within which the electorate is not authorized to assert control directly. Defendants cite Matter of Warden (Newburgh Police Dept.), 300 N.Y. 39, 88 N.E.2d 360 as the exact precedent for their position. Plaintiff claims that Matter of Astwood v. Cohen, 291 N.Y. 484, 53 N.E.2d 358 mandates a judicial declaration that the local law is a subterfuge and not a genuine charter amendment. Matter of Astwood was decided in 1943 by a 5 to 2 vote of the Court of Appeals. A petition had been filed with the City Clerk requesting submission to the electorate of New York City of a proposed local law providing for payment of a salary bonus to policemen and firemen. Noting that the City of New York operated under a short form city charter and an Administrative Code, the majority of the Court decided that the proposed local law would not amend the Charter but only change portions of the Administrative Code and found nothing in the City Home Rule Law (the predecessor to the Municipal Home Rule Law) which would permit direct action by the voters to change the Administrative Code. The majority of the Court of Appeals affirmed an order forbidding the Board of Elections to print the proposed local law on the election ballots. The dissenters stated that an amendment to a city charter could include ‘not only corrections or alterations of an antecedent text but also additions wholly alien thereto.’ (p. 491, 53 N.E.2d p. 361.) In 1949 a unanimous Court of Appeals decided Matter of Warden (Newburgh Police Dept.), 300 N.Y. 39, 88 N.E.2d 360. A petition had been filed with the Newburgh City Clerk requesting submission to the electors of a proposed local law which purportedly would alter the City Charter by adding a provising fixing minimum and annual salaries for members of the police department. A court proceeding was brought to prohibit the submission of the proposed local law to the voters on the grounds that (1) the proposed local law has no relation to any provision of the existing city charter and (2) the power to fix salaries is administrative rather than legislative and confined by the charter solely to the council of the city. The Supreme Court at Special Term dismissed these objections and the Appellate Division affirmed. The Court of Appeals also affirmed noting that the 1944 amendment to the City Home Rule Law (L.1944, Ch. 602) permitted such an amendment to the Newburgh Charter which contains many provisions respecting matters of assessments and local taxes, the operation and control of public works, the supply of water and the organization and regulation of the police and fire departments. The Court of Appeals distinguished Astwood on the ground that the City of New York Charter was a ‘short form’ charter and a ‘mere skeleton or framework of governmental structure’ unlike the Newburgh Charter. The 1944 amendment to the City Home Rule Law provided in section 2: ‘(5) the term ‘charter amendment’ means any change in an existing charter presented as such under authority of this chapter or any charter or state statute. A charter amendment may be of any extent and may deal with any number of subjects. ...' It further provided that a charter could be amended ‘however extensively’. The Court of Appeals in Matter of Warden stated that the 1944 amendment to the City Home Rule Law wiped out any distinction between a charter amendment relating to an administrative rather than a legislative power. It also questioned-but did not decide-whether the 1944 amendment would permit additions unrelated to existing provisions of a short from charter. (p. 43, 88 N.E.2d p. 362.) Matter of Warden when read with the Ithaca City Charter and the applicable sections of the Municipal Home Rule Law is persuasive authority for declaring the local law prohibiting fluoridation is in fact an amendment to the Ithaca City Charter and valid. The Municipal Home Rule Law, section 2 defines ‘Charter’ and ‘Charter Amendment’ as follows: ‘1. ‘Charter.’ A state statute or a local law which establishes or continues a specific county, city of village as a municipal corporation or body politic and includes the fundamental provisions defining, extending or limiting its corporate powers or affecting the framework of its government.' ‘2. ‘Charter amendment.’ A new charter or any change in an existing charter presented as such under authority of this chapter or any state statute or charter. A charter amendment may be of any extent and may deal with any number of subjects.' Section 37 of the Municipal Home Rule Law authorizes amending city charters ‘however extensively.’ Even prior to the 1944 amendment to the City Home Rule Law the Court of Appeals stated that it did not consider that amendments to city charters need be limited to those ‘which affect structure only.’ ( Matter of Astwood, supra, 291 N.Y. p. 488, 53 N.E.2d p. 359.) The Ithaca City Charter is not a ‘short form’ charter. For example it grants the Common Council authority to pay a cost of living bonus to employees during a war emergency (L.L.1943, No. 1; L.L.1950, No. 3); it details the duties of the fire marshal (L.1912, Ch. 139); it authorizes the mayor to appoint a police commissioner but prohibits the appointment of one who is interested in a saloon or hotel or concerned in the manufacture or sale of spirituous or malt liquors, ale or beer (L.1908, Ch. 503, sec. 21); it provides the common council shall hold regular meetings on the first Wednesday of each month (L.1908, Ch. 503, sec. 31); it fixes the fees to be charged on unpaid taxes (L.1908, Ch. 503, sec. 41; L.1921, Ch. 513, sec. 1); it sets forth the form of a summons to be used in a City Court civil action (L.1931, Ch. 415, sec. 25). The Charter vests the Common Council with the power to enact and enforce ordinances or resolutions ‘pertaining to...the preservation of order, peace and health, and the safety and welfare of the city and the inhabitants thereof.’ (L.1908, Ch. 503, sec. 34). In addition it confers on the common council the power to direct the location of slaughterhouses, to prevent the flying of kites having a tendency to endanger persons or frighten horses, to restrain the running at large of cattle, swine, goats and geese, to require suitable fire escapes, and to regulate or prohibit a variety of other matters. (L.1908, Ch. 503, sec. 35; L.1910, Ch. 455, sec. 2; L.1910, Ch. 462, sec. 1; L.1917, Ch. 425, sec. 1). Thus it is clear that the Ithaca City Charter is no ‘mere skeleton or framework of governmental structure’. The test enunciated in Astwood and applied in Warden is whether ‘the proposed law is in truth an amendment of the Charter or is so far unrelated to the Charter as to be an emendment only in name. ...’ ( Matter of Warden, supra, 300 N.Y. p. 42, 88 N.E.2d p. 361.) The amendment prohibiting fluoridation of the water supply relates to the power of the common council to regulate ‘health, and the safety and welfare of the city and the inhabitants thereof.’ It places a limitation on such power. It does meet the test of being in truth-and not in name only-an amendment to the detailed Charter of the City of Ithaca. Plaintiff's other objections relate at most to procedural or technical defects which are not of sufficient substance to invalidate the local law. Plaintiff's motion for summary judgment should be denied, Summary judgment dismissing the complaint upon the merits should be granted (CPLR 3212(b)).

+/- Village of Tully v. Harris

New York, Improper Procedure

• Plaintiff
  Village of Tully et al.
• Defendant
  William A. Harris, Onondaga County Commissioner of Health
• State
  New York
• Other Parties
  -
• Case Tags
  - Improper Procedure
• Citation
  119 A.D.2d 7; 504 N.Y.S.2d 591 (N.Y. App. Div. 1986)
• Year
  1986-00-00T00:00:00
• Court Name
  Supreme Court of New York, Appellate Division, Fourth Department
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Schnepp
• Opinion Text
  SCHNEPP, Justice. The appeal in this CPLR article 78 proceeding is from the judgment dismissing the petition which sought to annul the order of the Commissioner of Health of Onondaga County requiring fluoridation of the Village of Tully's public water supply. The Village of Baldwinsville received a similar order and was permitted to intervene in this proceeding as a copetitioner. The orders state that before adding fluoride compounds a public water “supplier must... make written application to and receive approval from the State Commissioner of Health” and direct that each village “take all necessary steps” to comply therewith. The Onondaga County Sanitary Code clothes the Commissioner of Health with the authority to require fluoridation in compliance with the New York State Sanitary Code which prescribes that fluoridation must be approved by the State Commissioner of Health (see, 10 NYCRR 5-1.24). The Villages claim that the provisions of the Onondaga County Charter, adopted by the County Board of Supervisors in 1961, which pertain to the creation and administration of the county health district and department of health (Onondaga County Charter, art. XVI), and the Sanitary Code, which was adopted by the County Legislature in 1968 pursuant to the Charter, are inconsistent with the Public Health Law and thereby null and void. Special Term held that the Onondaga County Charter and Sanitary Code are constitutionally valid and proper. We agree and so declare. In our view, the provisions of the Charter and Sanitary Code supersede the requirements of the Public Health Law. Guidelines for the establishment and organization of county and part-county health districts are found in title III of article 3 of the Public Health Law (§§ 340-357). Section 340(1) directs that “[t]he board of supervisors of any county, with the approval of the [State] commissioner shall have power to establish a county...health district and in such event shall appoint a board of health....” Section 343 provides that the board of health of a county “shall consist of seven members.” Section 347(1) provides that a county board of health “shall exercise all the powers and perform all duties of local boards of health as provided in this chapter” and may adopt rules, regulations, orders and directions “which shall not be inconsistent with the provisions of this chapter and the [State] sanitary code” and which “shall be known as the sanitary code of such district.” Section 347(1)(a) provides, however, for the filing of rules and regulations “adopted by a board of health or a county officer or body exercising the rule-making functions of a board of health” (emphasis supplied; added L.1974, ch. 199). Section 351 provides for the appointment of a “county health commissioner” who shall serve for a term of six years and “possess such qualifications for office as are prescribed in the sanitary code.” Prior to 1975, § 351 provided for the appointment of a county health commissioner by the board of health; however, since 1975 the statute has also provided for appointment by the county executive “in those counties where the county charter provides” (added L.1975, ch. 83). The Commissioner's powers and duties are described in § 352. Significantly, county health commissioners possess all the powers of local health officers and additional powers which may be delegated to the commissioner “with the approval of the county board of health, or the county manager or county executive in those counties having an optional or alternative form of county government ” (emphasis supplied; Public Health Law § 352[3] [a], [4] ). Onondaga County did not adhere strictly to these guidelines in the formation of the county health department and board of health, the appointment of and delegation of power to the county health commissioner, or the adoption of the sanitary code. Contrary to Public Health Law § 340, the county charter provides for a “health advisory board”, rather than a board of health. Consistent with the designation of the board as an advisory body, the charter assigns the various powers of a board of health as defined in the Public Health Law to the board of supervisors [now the County Legislature], the county executive and the county commissioner of health. Under the charter, the function of the health advisory board is to “advise on matters relating to the preservation and improvement of the public health” and, “subject to the approval of the commissioner”, to “recommend and submit to the board of supervisors for adoption” a county sanitary code “not inconsistent with the public health law or state sanitary code”. The charter delegates the power to appoint the commissioner of health to the county executive, establishes a term of four years for the office of commissioner, and assigns to the commissioner all the powers conferred or imposed by law upon county health commissioners or county boards of health (Onondaga County Charter, art. XVI). Pursuant to the charter, Onondaga County's sanitary code was adopted by the County Legislature. The code delegates to the commissioner of health “the authority to require and order that Fluorine Compounds be added to any or all the public water supply serving the County of Onondaga” (Onondaga County Sanitary Code, art. III, § B). The County's authority to supersede the provisions of the Public Health Law derives from the home rule provisions of the State Constitution (N.Y. Const., art. IX) and the County Charter Law (Municipal Home Rule Law, art. 4, part 1). The home rule provisions of the Constitution “evince a recognition that essentially local problems should be dealt with locally and that effective local self-government is the desired objective” ( Matter of Kelley v. McGee, 57 N.Y.2d 522, 535, 457 N.Y.S.2d 434, 443 N.E.2d 908). Article IX contains a “Bill of rights for local governments” which provides that counties “shall be empowered by general law...to adopt, amend or repeal alternative forms of county government” (N.Y.Const., art. IX, § 1 [h][1]). Municipal Home Rule Law § 33(4)(a) provides that a county shall have the power to adopt a county charter which may “assign executive or administrative functions, powers and duties to elective or appointive officers.” The Court of Appeals has stated that the history of these home rule provisions “demonstrates the evolution of county governments from their previous status as administrative arms of the State to their present status as more autonomous units of local government” and that “[t]he power granted to counties over the nature and functions of its local offices is a significant one, extending even to the power to abolish those offices under certain circumstances” ( Matter of Kelley v. McGee, supra, p. 536, 457 N.Y.S.2d 434, 443 N.E.2d 908). However, “[i]t is well established that the home rule provisions of article IX do not operate to restrict the Legislature in acting upon matters of State concern” ( Matter of Kelley v. McGee, supra, p. 538, 457 N.Y.S.2d 434, 443 N.E.2d 908) and that “[s]o long as there exists a substantial degree of State interest in the subject matter of the legislation, evidence of local concern is of no consequence” ( Matter of Radich v. Council of City of Lackawanna, 93 A.D.2d 559, 566, 462 N.Y.S.2d 928, affd. 61 N.Y.2d 652, 472 N.Y.S.2d 82, 460 N.E.2d 223). Thus, in any case arising under article IX the test for resolving conflicts between State legislation and charter law is whether the State enactment reflects “an appropriate level of State interest” ( Matter of Kelley v. McGee, supra, 57 N.Y.2d p. 540, 457 N.Y.S.2d 434, 443 N.E.2d 908) in a subject matter “of sufficient importance to the State generally to render it a proper subject of State legislation” ( Matter of Kelley v. McGee, supra, p. 538, 457 N.Y.S.2d 434, 443 N.E.2d 908) that it may not be superseded by inconsistent county charter law. Municipal Home Rule Law § 34 imposes express limitations on the powers of counties to adopt charters or charter law; however, the Public Health Law is not “included among the chapters [of the consolidated laws] which ‘charter’ counties are prohibited from superseding” ( Nydick v. Suffolk County Legislature, 81 Misc.2d 786, 790, 367 N.Y.S.2d 632, affd. 36 N.Y.2d 951, 373 N.Y.S.2d 554, 335 N.E.2d 858). Since “[t]he restrictions on the power to adopt charters...do not encompass a requirement of consistency with general law” ( Matter of Heimbach v. Mills, 67 A.D.2d 731, 732, 412 N.Y.S.2d 668), except through Municipal Home Rule Law § 34, it follows that county charter law may be superior to the provisions of the Public Health Law especially where, as here, the conflict concerns matters of administration and procedure. That public health and safety are matters of State-wide importance is beyond cavil (see, Matter of Kelley v. McGee, supra, 57 N.Y.2d p. 538, 457 N.Y.S.2d 434, 443 N.E.2d 908; Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705) and it is obvious that a local government should not be allowed to ignore substantive requirements of the Public Health Law and the State Sanitary Code intended to protect the health of all the citizens of the State. On the other hand, the administration of a county health district is a matter of local concern. The Public Health Law in its present form does not reflect a sufficient level of State interest in the subject to warrant the conclusion that the Legislature considers the organization and administration of county health districts a matter of State concern (see, e.g., Public Health Law § 347[1][a]; § 351; § 353[3][a], [4]). The Villages' additional claim that the Commissioner did not comply with the requirements of the State Environmental Quality Review Act (ECL, art. 8) is without merit. The effect of the Commissioner's orders is to require that application be made to the State for permission to add fluoride to the water. He cannot compel the addition of fluoride absent the approval of the State Commissioner, nor does he have any responsibility to choose a particular method for adding the compounds. Although the Commissioner's policy decision that fluoridation is in the best interest of village residents undoubtedly constitutes an “action” under SEQRA (see, 6 NYCRR 617.2[b][2], [3] ), it qualifies as “routine or continuing agency administration”, a Type II action (6 NYCRR 617.13[d][15] ) which does not require any procedure under SEQRA (6 NYCRR 617.13[a] ). Accordingly, the order dismissing the petition should be affirmed. Judgment unanimously affirmed without costs. CALLAHAN, J.P., and DOERR and BOOMER, JJ., concur.

+/- Yiamouyiannis v. Consumers Union of the United States

New York

• Plaintiff
  John Yiamouyiannis
• Defendant
  Consumers Union of the United States, Inc.
• State
  New York
• Other Parties
  -
• Case Tags
  -
• Citation
  619 F.2d 932 (2d Cir. 1980)
• Year
  1980-00-00T00:00:00
• Court Name
  United States Court of Appeals, Second Circuit
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  OAKES, Circuit Judge: This appeal in a diversity libel action is from a summary judgment for the defendant granted by the United States District Court for the Southern District of New York, Richard Owen, Judge. The plaintiff, John Yiamouyiannis, Ph.D., brought suit against Consumers Union of the United States, Inc. (Consumers Union) for libel said to have been contained in a two-part series of articles appearing in appellee's magazine, Consumer Reports, in July and August of 1978. The articles, entitled Fluoridation: The Cancer Scare and The Attack on Fluoridation Six Ways to Mislead the Public, as their titles imply, attacked as misleading and erroneous the claims made by certain individuals and organizations that fluoridation causes cancer, birth defects and other ills. Appellant claims that he was defamed, particularly in the scientific community, but also in the eyes “of his fellow countrymen to whom he has something important to say” and “whom he serves and must convince.” We affirm the judgment. Briefly stated, the underlying facts are these: Dr. Yiamouyiannis is and for many years has been an active opponent of the fluoridation of public water supplies, and since 1974 has been a paid employee of the National Health Federation, which is an organization that for over twenty years has been actively opposed to fluoridation. Dr. Yiamouyiannis has also authored over fifteen articles on fluoride and is a coeditor of a quarterly, Fluoride, published by the International Society for Fluoride Research. He appeared actively before the Subcommittee on Intergovernmental Relations and Human Resources of the House Committee on Governmental Operations on September 21 and October 12, 1977,^FN1 both to state his own views on the dangers of fluoridation and to refute the arguments of the National Cancer Institute (NCI) and various other organizations that have taken the position that fluoridation is not harmful and helps significantly in the prevention of dental caries. These other organizations include the National Academy of Sciences, the National Heart, Lung and Blood Institute, the American Medical Association, the American Cancer Society, and the American Dental Association. FN1. See The National Cancer Program (Part 2. Fluoridation of Public Drinking Water): Hearings Before the Subcomm. on Intergovernmental Relations and Human Resources of the House Comm. on Governmental Operations, 95th Cong., 1st Sess. (1977) (hereinafter “Hearings Record”). The Consumer Reports article was written by Joseph R. Botta, a senior editor on the magazine staff. Botta is a professional journalist who has been a scientific writer for fifteen years, having worked for the Shell Oil Company from 1959 to 1971, and for Consumers Union in the environmental and health areas since 1972. Botta became interested in the topic of the campaign against fluoridation after having read an article in the New England Journal of Medicine Walsh, Fluoride: Slow Diffusion of a Proved Preventive Measure, 296 New England J.Med. 1118 (1977) and an article in a leading British medical journal Doll & Kinlen, Fluoridation of Water and Cancer Mortality in the USA, Lancet, June 18, 1977, at 1300. But it was only when the House Subcommittee held hearings on the effects of fluoridation and its possible link to cancer that the decision to write and publish an article on the subject was made. Botta obtained a copy of the transcript of the hearings before the House Subcommittee and reviewed some standard medical reference works, which led him to the World Health Organization's 1970 report, Fluorides and Human Health, and to other studies on fluoridation. His conclusion from these studies, as stated in his affidavit, was that there was “no acceptable scientific evidence of any kind that the practice of fluoridating drinking water at appropriate levels had any deleterious effects whatever” (emphasis in original). In the course of Botta's research he also made reference to studies by the British Royal College of Physicians, by the Royal Statistical Society and by investigators at Oxford University. The Subcommittee hearings record contained a schedule, set out in the margin, of studies between 1954 and 1977 showing no association between cancer incidence or deaths and fluoride^FN2 Accordingly, Botta was led by “the overwhelming weight of scientific evidence” to have serious doubts as to the credibility to be accorded to Dr. Yiamouyiannis's work two unpublished versions of which, dating from July and December of 1975, were criticized by the National Cancer Institute. Hearings Record at 98-101, 110-113, 203-208. A more recent version of appellant's work, presented in England in May of 1977 and published in the magazine Fluoride, was incorporated in the hearings record. Id. at 18-40. FN2. Association with Year and institution Method flouride 1954: Division of Dental Public Cancer deaths in U.S. cities Health (USPHS) (N) None 1962: Ministry of Health, Great Cancer deaths in English Britain cities (N) Do. 1974: Medical Research Council Cancer deaths in English (G.B.), London School of cities (N) (reanalysis of Hygiene 1962 study) Do. 1975: Oxford University (England) Cancer incidence in English cities and rural areas (N) Do. Do. Cancer incidence in cities and rural areas of New York, Connecticut, Holland, and New Zealand (A) 1976: National Cancer Institute Cancer deaths in U.S. (U.S.) counties (N) Do. Do. Cancer deaths in U.S. counties (A) Do. Do. Cancer incidence in U.S. cities (A) Do. 1977: National Heart, Lung, and Cancer deaths in U.S. cities Blood Institute (U.S.) (A) Do. 1977: Center for Disease Control (USPHS) do. Do. 1976: Royal College of Physicians (England) Review (N & A) Do. 1977: National Academy of Sciences (U.S.) do. Do. Hearings Record at 101 (“Do.” means “ditto”). A brief review of the Consumer Reports articles is as follows: The first article, published in July 1978, relates how Dr. Yiamouyiannis's colleague, Dean Burk, Ph.D., an American biochemist, helped to kill a proposal before the Dutch Parliament to fluoridate water supplies, by virtue of a television interview in Holland in 1976 in which he told the audience that “fluoridation is a form of public mass murder.” The article discusses the defeat in Los Angeles and hundreds of other American communities of fluoridation proposals, and mentions the House Subcommittee hearings. What emerged from the testimony, the article says, was “an unmistakable sense that millions of Americans are being grossly misled about fluoridation. The article then describes the initial investigation in the 1930s and 1940s resulting in the conclusion that fluoridation helps prevent dental cavities, and also refers to the opposition that gradually developed. This opposition is now led by the National Health Federation, whose roots, the article says, ”run deep into the soil of medical quackery.“^FN3 The article goes on to say that in 1974, the NHF decided to ” ‘break the back’ “ of fluoridation efforts and ”hired Dr. Yiamouyiannis to do the job.“ It says that he was successful in influencing the debate in 1974 in Los Angeles, and that his July 1975 study with Dr. Burk (who is said to be a leading advocate of laetrile along with the NHF), ”failed (according to the NCI) to take into account widely recognized risk factors known to affect the death rate.“ It adds that a later December 1975 study was even more ” amateurish,“ according to an NCI official, and ignored ”the most fundamental factors involved in cancer mortality rates age, sex and race.“ The article reports that Drs. Burk and Yiamouyiannis were successful in Holland, but unsuccessful in England, and points out that ”independent investigations by seven of the leading medical and scientific organizations in the English-speaking world have unanimously refuted the National Health Federation's cancer claims.“ See note 2 supra. FN3. According to the article in 1963 the FDA released a report on the NHF that said in part: The stated purpose of the federation is to promote “freedom of choice” in health matters. This record shows that what this frequently means is freedom to promote medical nostrums and devices which violate the law. From its inception, the federation has been a front for promoters of unproved remedies, eccentric theories and quackery. The second article, published one month later, refers to other claims that fluoridation causes harm, yet nowhere mentions Dr. Yiamouyiannis, Dr. Burk, or the National Health Federation in refuting theories that fluoride is a poison, causes birth defects, is mutagenic, causes allergic reactions, causes cancer in animals, and contributes to heart disease. However, the article does state that “every type of misrepresentation known to Disraeli” has “been used to attack fluoridation,” referring to the “misleading information” that appears regularly in a paper called the National Fluoridation News, and also states that the “entire gamut of hokum” has recently been published in an issue of the Cancer Control Journal, a pro-laetrile magazine based in Los Angeles. The article concludes by saying that the “simple truth is that there is no ‘scientific controversy’ over the safety of fluoridation,” and that the “survival of this fake controversy represents, in CU's opinion, one of the major triumphs of quackery over science in our generation.” Appellant's unverified complaint in four counts, each seeking two million dollars in damages, complains of defamation mainly by innuendo. In essence, appellant reads the articles as saying that his work is “grossly and irresponsibly misleading” the American people; that fluoridation is absolutely and unquestionably safe; that appellant sold his scientific integrity and objectivity to contrive a deliberately false case against fluoridation; that appellant's work is incompetent “claptrap” and overlooks fundamental risk factors that elementary principles require; that appellant and Dr. Burk have insisted both in America and Europe that fluoridation is mass murder; and that they are men of no credibility or honor. All of this is said to be false and to have been published with the purpose of destroying the appellant's reputation with “willful or reckless disregard of the facts.” In moving for a summary judgment, appellee submitted Mr. Botta's affidavit as well as the House Subcommittee hearings. The affidavit set forth Botta's account of research, as above stated, which was undisputed, as well as his investigation of the background and qualifications of Drs. Yiamouyiannis and Burk and his consultations before publication, also undisputed. These consultations were with (1) the Consumers Union library staff, to determine the reliability of supporting references, (2) the technical department, (3) an in-house medical consultant, (4) an outside medical advisor, (5) a dental consultant, (6) a Ph.D. with experience in epidemiology and the safety of water supplies, (7) a psychiatrist who in connection with health fraud had investigated and written about the National Health Federation, (8) the head of the Environmental Studies Section of the Environmental Epidemiology Branch of NCI, and (9) a professor of biochemistry of the University of Minnesota, all of whom, after some suggested changes that were incorporated into the final version of the article, agreed that it was reliable and accurate. Dr. Yiamouyiannis's counteraffidavit takes particular issue with the statement in the first article that he and Dr. Burk had ignored the most fundamental risk factors age, sex and race and says that this related only to their 1975 preliminary studies, whereas their later works did take these into account. ^FN4 The counter-affidavit also says that data and procedures of NCI were shown in Congress to be flawed by critical errors and omissions and that it was this data that was copied in England, thereby showing “the political intrigue of the current cover-up of the fluoridation cancer link.” ^FN5 He goes on to say that the seven independent investigations alluded to in the Botta article did not address the most recent and comprehensive study by Dr. Burk and the affiant appearing in Fluoride magazine, so that his work had not been “refuted.” ^FN6 Other issues with regard to the scientific viability of the fluoridation controversy are detailed. FN4. The Hearings Record at 203-04 contains the following testimony, as to the later 1977 paper, from Dr. Robert N. Hoover, Head, Environmental Studies Section, Environmental Epidemiology Branch, Division of Cancer Cause and Prevention of the National Cancer Institute: Mr. Fountain. Dr. Newell, Mr. Goldhammer informs me that he asked NCI to review and to analyze a paper “Fluoridation and Cancer” written by Dr. Yiamouyiannis and Dr. Burk and published in the publication Fluoride. Has NCI done this? Dr. Newell. I will defer to Dr. Hoover. Dr. Hoover. Yes, I have, sir. Mr. Fountain. Would you give your expert assessment of the paper from your point of view? Dr. Hoover. The paper attempted to address some of the criticisms that have been directed at their earlier studies in that they had not controlled for age, sex and race, differences between the two areas. In the paper, they did not control for race and said they did not think they had to. They attempted to control for age by using very broad age categories. So, in essence, they did not address the criticisms and they did not control for race, and they did not adequately control for age. Therefore, I think the same criticisms that applied to the earlier works, such as inadequate control for differences between the two groups of cities, apply to their more recent effort. In fact, even the crudeness of the analysis that they have done contributes to our opinion that there is, in fact, no association. In general, there is a dictum in epidemiology. The crudest control is no control at all. That is using one age category. If you do a very crude control by splitting into several groups and you knock an association way down, it indicates to epidemiologists that maybe you need to achieve very fine control. That is, you need to take the controlling categories down to a finer level in order to see what happens to the association. FN5. The Hearings Record at 208 contains the following: Dr. Hoover. Dr. Yiamouyiannis has demeaned some fairly renowned scientists in Great Britain by saying that they put their names on our publications. That is clearly not true. If you read their materials, you will see that it is not true. They used different standards than we did and they used truly elegant analyses which went much beyond what we did in our instant reanalysis. They did use the same set of data, however, and, therefore, they had the 1.5 percent error we did. We transmitted that information to them and then called them to see if correction of this error changed their conclusions. I talked with Dr. Kinlen of Oxford on the phone, and I wish I could do the British accents for you, but Dr. Kinlen said, “Of course, it makes no difference at all.” Dr. D. J. Newell of the Royal Statistical Society said he had written me a letter but he did not call me because there was nothing urgent about it and the correction really made no difference in their conclusions either. So, I think you can rest assured that the conclusions reached by Oxford and by the Royal Statistical Society are as they were published. The error was not one of addition but of geography in that the NCI erroneously included all the deaths from Suffolk County (14,487) rather than the City of Boston (14,272). Id. at 81, 208. This made a difference of 1 1/2 -2%. Id. FN6. But see notes 4 and 5 supra. Judge Owen below granted the motion for summary judgment, concluding that appellant had failed to meet his burden, under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), of establishing, “by clear and convincing evidence, at least a genuine issue of fact as to whether the articles were published with ‘actual malice,’ ” i. e., knowledge of falsity or reckless disregard of the truth. To make this showing, appellant relied mainly on the theory that the article was directly contradicted by one of the principal sources relied on by the publisher, the House Subcommittee report itself. But the judge held that no serious showing was made that either the author or the editor of the article “had the slightest doubt as to (the article's) truth and accuracy.” Because of what it considered an absence of evidence of subjective awareness of probable falsity, see Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 n.6, 94 S.Ct. 2997, 3004, 41 L.Ed.2d 789 (1974) (citing St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968)), the court was compelled to award summary judgment. DISCUSSION The rule of New York Times Co. v. Sullivan, supra, 376 U.S. at 279-80, 84 S.Ct. at 725-726, is that, constitutionally, a public official cannot recover for a defamatory statement relating to his official conduct absent proof that the statement was made with “actual malice” as defined therein and subsequently in St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). This rule was expanded to cover “public figures,” at least on matters of public interest, in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Gertz v. Robert Welch, Inc., supra, 418 U.S. at 344-48, 94 S.Ct. at 3009-3011, however, the Court declined to accept what the late Harry Kalven referred to as the “invitation to follow a dialectic progression,” ^FN7 and refused to extend Sullivan to private individuals. In holding that an attorney representing the family of the victim in a police shooting was not a public figure, the Court, after noting that public officials and public figures have greater access to the channels of effective communication than private individuals, added that most public figures have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” Id. at 345, 94 S.Ct. at 3010. The Court described two ways in which people may be classified as “public figures”: FN7. Kalven, The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup.Ct.Rev. 191, 221. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Id. ^FN8 FN8. See Note, The Editorial Function and The Gertz Public Figure Standard, 87 Yale L.J. 1723, 1733 (1978) (describing two “branches” of Gertz rule). On this basis, Mrs. Firestone, the plaintiff in a contested Palm Beach divorce case that had allegations on both sides of adultery and was a cause celebre in Palm Beach if not in all of Florida, was held not to be a public figure. Time, Inc. v. Firestone, 424 U.S. 448, 453-55, 96 S.Ct. 958, 964-965, 47 L.Ed.2d 154 (1976). More recently, the Court held that a researcher of animal aggressive behavior, who had received federal funds for his research and received Senator Proxmire's “Golden Fleece Award,” was not a public figure. Hutchinson v. Proxmire, 443 U.S. 111, 133-136, 99 S.Ct. 2675, 2687-2688, 61 L.Ed.2d 411 (1979). The same is true of an individual who, in the late 1950s, was held guilty of contempt and given a suspended sentence with attendant publicity, for failure to appear before a grand jury investigating Soviet espionage. Wolston v. Reader's Digest Association, 443 U.S. 157, 162, 99 S.Ct. 2701, 2705, 61 L.Ed.2d 450 (1979). This person had in the interim returned to private life. In each case the Gertz formulation quoted above was relied upon for the result reached. Firestone, supra, 424 U.S. at 454-55, 96 S.Ct. at 965; Hutchinson, supra, 443 U.S. at 134, 99 S.Ct. at 2687; Wolston, supra, 443 U.S. at 164, 99 S.Ct. at 2706. Under that formulation, we have no doubt that appellant is a “public figure.” While he is not one of those occupying a position of persuasive power and influence so as to be deemed a public figure for all purposes, he clearly is a person who has “thrust” himself “to the forefront” of a particular public controversy that pertaining to fluoridation “in order to influence the resolution of the issues involved,” thereby in Gertz's words “invit(ing) attention and comment.” 418 U.S. at 345, 94 S.Ct. at 3009. Indeed, we do not understand appellant to dispute this; Judge Owen below stated that he was “an admitted public figure.” And appellant's brief on appeal does not claim otherwise, though no express concession is made. But if there were any doubt about it, appellant's own complaint and affidavits would resolve it. His complaint notes that he is “Science Director of the National Health Federation, an organization dedicated to the promotion of health freedoms throughout the United States.” Complaint P 1 (emphasis supplied). It states that his work has been made “a matter of public record” in a “scientific paper,” in the House Subcommittee Hearings, and in hearings before the Allegheny County Court of Common Pleas. ^FN9 Id. P 2. His affidavit states that he is a “recognized expert on the biological effects of fluoride,” “has authored over fifteen articles on fluoride,” and has “demonstrated to (Congressmen) that . . . the National Cancer Institute made . . . significant error(s).” Affidavit of Dr. Yiamouyiannis PP 1, 6. His statement pursuant to Local Rule 9(g) does not deny the following statements by appellee: that he “is and for many years has been an active and vociferous opponent of” fluoridation; that “since 1974, has been a paid employee of the National Health Federation, which has itself for over two decades been actively and vociferously opposed to fluoridation”; that he has produced studies obtaining broad distribution, including one in the City of Los Angeles, at a time when the voters of that city were to pass upon a water fluoridation referendum; that he has voluntarily sought and obtained the very widest publicity for himself and his views, in newspaper and magazine articles, radio and television broadcasts, public speeches, and other public forums; that he has testified at length as to his views, in various judicial proceedings, and in the Subcommittee hearings; and that he has maintained for the past five years that the reason for his discharge as an employee of the Chemical Abstracts Service was his notoriety as an opponent of fluoridation. FN9. Exhibit 13, attached to appellant's affidavit, is a brief submitted to the Court of Common Pleas of Allegheny County, Pennsylvania in Aitkenhead v. Borough of West View, 40 Pa.Cmwlth. 547, 397 A.2d 878, a case in which the court on the strength of the Burk-Yiamouyiannis study of 1977 preliminarily enjoined fluoridation under a permit granted by the state Department of Environmental Resources ten years before. In the light of the foregoing, appellant is clearly a public figure and the “actual malice” test of Sullivan therefore clearly applies. Appellant's principal claim on appeal is that the district court erred in granting summary judgment because it thought, erroneously, that in libel cases summary judgment “ ‘may well be the ”rule“ rather than the ”exception. “ ‘ ” District Court Opinion at 2 (quoting Oliver v. Village Voice, Inc., 417 F.Supp. 235, 237 (S.D.N.Y.1976), which in turn quoted Guitar v. Westinghouse Electric Corp., 396 F.Supp. 1042, 1053 (S.D.N.Y.1975), aff'd mem., 538 F.2d 309 (2d Cir. 1976)). While this view of the district court had considerable support in the case law at the time it was expressed, e. g., Treutler v. Meredith Corp., 455 F.2d 255, 257 n.1 (8th Cir. 1972); Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 34-35, 365 F.2d 965, 967-68 (D.C.Cir.1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967), footnotes in the recent Hutchinson and Wolston cases in the Supreme Court raise serious doubt as to the continued legal viability of the proposition, expressed in Keogh, that “(t)he threat of being put to the defense of a lawsuit . . . may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself.” Id. at 968. Footnote 9 of the Chief Justice's opinion in Hutchinson not only states “doubt” about the supposed “rule” (supporting summary judgment), but takes almost the opposite position: Considering the nuances of the issues raised here, we are constrained to express some doubt about the so-called “rule.” The proof of “actual malice” calls a defendant's state of mind into question, New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and does not readily lend itself to summary disposition. See 10 Wright & Miller, Federal Practice and Procedure s 2730, at 590-592. Cf. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). In the present posture of the case, however, the propriety of dealing with such complex issues by summary judgment is not before us. 443 U.S. at 120 n.9, 99 S.Ct. at 2680 n.9. Wolston refers to this footnote, but again does not reach the question. 443 U.S. at 161 n.3, 99 S.Ct. at 2704 n.3. And at least one appellate court has already said that “the same principles applicable to normal summary judgment motions are applicable to such motions when made in a public figure libel action.” Nader v. de Toledano, 408 A.2d 31, 50 (D.C.1979), cert. denied, -- U.S. --, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). Until more directly advised, we think that this neutral approach correctly states the rule as it is presently in force: neither grant nor denial of a motion for summary judgment is to be preferred. Defamation actions are, for procedural purposes, such as discovery, see Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), or for summary judgment, to be treated no differently from other actions; any “chilling effect” caused by the defense of a lawsuit itself, see Herbert v. Lando, 568 F.2d 974, 980 (2d Cir. 1977) (Kaufman, C. J., for the court), rev'd, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); id. at 993-94 (Oakes, J., concurring); Washington Post Co. v. Keogh, supra, 365 F.2d at 968, is simply to be disregarded, to have no force and effect. We must therefore now determine whether summary judgment was proper under this standard. Our job is made easier because both parties take the position that the evidence on actual malice has been fully marshalled. Since appellant does not seek or suggest the need of further discovery, the “state of mind” problem referred to in the Chief Justice's Hutchinson footnote is not present. But this does not mean that our preliminary analysis is at end. The rule of Sullivan, in addition to requiring a defamation plaintiff to prove “actual malice” in the case of public officials and public figures, requires that proof of actual malice be with “convincing clarity,” 376 U.S. at 285-86, 84 S.Ct. at 728-729, a standard which is “intermediate between the normal ‘preponderance of the evidence’ civil standard and the ‘beyond the reasonable doubt’ criminal standard,” Nader v. de Toledano, supra, 408 A.2d at 49. See also Gertz v. Robert Welch, Inc., supra, 418 U.S. at 342, 94 S.Ct. at 3008 (requiring “clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth”). Accepting this rule, there remains the question what standard the court should use in applying the law to the facts. In a case where the defendant has moved for summary judgment on the issue of actual malice and the plaintiff claims that there remain material factual disputes, the court decides the materiality of the disputed facts by accepting the plaintiff's version and applying the actual malice standard. This standard requires a clear and convincing showing, which may be by circumstantial evidence, of defendant's actual state of mind either subjective awareness of probable falsity or actual intent to publish falsely. Therefore, a judge in denying a defendant's summary judgment motion must conclude that, based on the evidence asserted in the plaintiff's affidavits, “a reasonable jury could find malice with convincing clarity.” Nader v. de Toledano, supra, 408 A.2d at 49 (emphasis in original); see Guam Federation of Teachers, Local 1581 v. Ysrael, 492 F.2d 438, 441 (9th Cir.), cert. denied, 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974). Under this standard we are convinced, as was Judge Owen below, that no reasonable jury could find with convincing clarity on the facts in this record that appellee, or its agents Botta and his editors and consultants, acted with actual malice in the Sullivan-St. Amant sense of that much-abused term. It is clear that appellee, through its agents, made a thorough investigation of the facts. Scientific writings and authorities in the field were consulted; authoritative scientific bodies speaking for substantial segments of the medical and scientific community were investigated. The unquestioned methodology of the preparation of the article exemplifies the very highest order of responsible journalism: the entire article was checked and rechecked across a spectrum of knowledge and, where necessary, changes were made in the interests of accuracy. Appellant's principal claim on appeal is that Botta's credibility is contested by circumstantial evidence. The House Subcommittee hearings, he argues, themselves show actual malice because they show (a) that “the reality of the fluoridation-cancer controversy among competent, learned, serious-minded scientists is beyond question,” (b) that “Plaintiff did adjust his crude data for age, race, and sex,” and (c) that he “is a prominent, well-recognized scientist in the area of fluoridation.” Appellant also argues that, after publication of the articles but before suit and before a licensed republication in the Journal of the California Dental Association in January 1979, he made available to Consumers Union the 51-page memorandum submitted in the Allegheny County case, mentioned earlier, note 9 supra. This “rebroadcast” of the libels, he contends, shows malice. Treating these points seriatim, even if in the opinion of some there is a real fluoridation-cancer controversy, this does not prove actual malice on the part of Consumers Union. Indeed, appellee's expressed “opinion” to the contrary, as such, is not defamatory at all, since false or even pernicious opinions are not actionable. Gertz v. Robert Welch, Inc., supra, 418 U.S. at 339-40, 94 S.Ct. at 3006-3007; Buckley v. Littell, 539 F.2d 882, 893-94 (2nd Cir. 1976), cert. denied 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977). It is only through innuendo that anything defamatory can be read into the statement that there is no “scientific controversy,” about fluoridation and cancer. We will accept for the purposes of this case appellant's argument that the statement contains an innuendo that appellant's studies and statements have been amateurish and not scientifically sound, are grossly misleading, and amount to “claptrap.” This innuendo casts doubt upon appellant's scientific competence and, we will assume, might be thought to raise a triable issue of fact as to whether appellant was defamed. But the House Subcommittee hearings do not on their face demonstrate that appellee was acting with reckless disregard of the facts, much less with knowledge of falsity. Dr. Yiamouyiannis and his colleague Dr. Burk have certain qualifications (though the former's claim to being an epidemiologist (Complaint P 1) is not substantiated by the list of his qualifications set forth at pages 194-96 and 579 of the Hearings Record). But the hearings give clear support for the proposition in the article that “independent investigations by seven of the leading medical and scientific organizations in the English-speaking world have unanimously refuted the National Health Federation's cancer claims.” See Hearings Record at 90-91, 100-01; note 2, supra. This evidence is sufficient to exonerate appellee on the issue of actual malice with respect to the general subject of appellant's professional competence. Even if, as appellant argues, these seven studies did not address appellant's later and more sophisticated July 1977 article, the hearings contain evidence that this study was seriously flawed as well. See note 4 supra. More specifically, with respect to appellant's two 1975 studies, the article stated that the first failed to take into account “widely recognized risk factors” ethnic, demographic and others ^FN10 and the second was said to be “even more amateurish” ignoring age, sex, and race. ^FN11 Appellant's affidavit makes much of these remarks. But appellant does not deny that his 1975 articles did not take these risk factors into account obviously there could be no actual malice if the statements were true. Moreover, his complaint that the Consumer Reports article did not address his subsequent 1977 article does not indicate either defamation or actual malice, especially since the later study was also suspect. ^FN12 FN10. This was substantiated by the Hearings Record at 110-11. FN11. This was substantiated by the Hearings Record at 111-13. FN12. The Hearings Record substantiates that it was. See note 4 supra. See also Hearings Record at 218 (letter from D. J. Newell to Dr. J. Yiamouyiannis, Oct. 27, 1977). In addition, the complaint argues that the Consumers Union article did not fairly show that the NCI had made a serious mathematical error, which, combined with a refusal to disclose certain procedures to appellant, amounted to a “cover-up of the fluoridation-cancer link.” (Aff. of Dr. Yiamouyiannis P 10). We find nothing, however, after perusal of the hearings record, that indicates that appellee's failure to discuss an NCI “cover-up” is defamatory of Dr. Yiamouyiannis, much less made with actual malice. The error was apparently minor, ^FN13 and the failure to disclose was merely described in Botta's article as “less sinister than some members of the British Parliament were later led to believe” a matter of opinion, fair for public comment. FN13. See notes 5 and 12 supra. Finally, we find nothing in the memorandum in the Allegheny County case, submitted to appellee after publication but before a republication, that is sufficient to show that appellee acted with actual malice. The argument in the memorandum itself is based principally on the studies of appellant and his NHF colleagues, and therefore is hardly sufficient to demonstrate that Botta or the others at Consumers Union who allowed the republication either knew that their criticisms of appellant were false, or were reckless concerning that question. In short, with respect to any portions of the alleged defamatory matter that are not already protected as statements of opinion, no showing has been made that they were published with actual malice, let alone a showing that achieves “convincing clarity”. The order granting summary judgment must therefore be affirmed. Judgment affirmed.

+/- Alkire v. Cashman

Ohio, State police power

• Plaintiff
  Jack Alkire
• Defendant
  Dr. John W. Cashman
• State
  Ohio
• Other Parties
  -
• Case Tags
  - State police power
• Citation
  350 F. Supp. 360 (S.D. Ohio 1972)
• Year
  1972-00-00T00:00:00
• Court Name
  United States District Court for the Southern District of Ohio, Eastern Division
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Rubin CB
• Opinion Text
  CARL B. RUBIN, District Judge. This matter is before the Court on plaintiffs' application for a temporary restraining order and on defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. See Rules 65(b) and 12(b)(1), (6), Fed.R.Civ.P. In their complaint herein, in which jurisdiction is predicated upon 28 U.S.C. § 1331, the plaintiffs' have challenged the constitutionality of Section 6111.13 O.R.C. (hereinafter the Act) and have requested the convening of a three-judge court, pursuant to 28 U.S.C. §§ 2281 et seq. for the purpose of declaring that provision void. The statute in question requires that all public waterworks systems in Ohio serving more than 20,000 persons, fluoridate their water supplies to a specified range of fluoride content, by January 1, 1971; and that systems serving between 5,000-20,000 persons perform this duty by January 1, 1972. Systems serving fewer than 5,000 persons are not required to fluoridate their water under the Act. The Columbus Municipal Waterworks (hereinafter the City) supplies more than 20,000 persons, including persons living in incorporated communities beyond the corporate limits of the city. It appears that the city has not yet complied with the state statute but intends to fluoridate its water supplies by November, 1972, pursuant to authorization conferred upon it by Columbus City Ordinances Nos. 1739-71 and 1162-72 (hereinafter the ordinances). Some confusion is present in the pleadings as to the city's motivation in fluoridating its water supplies. The plaintiffs assert that the municipal ordinances referred to above will merely implement the requirements imposed upon the city by the Act. They argue from this premise that what is really at issue at bar is a statute of statewide application which mandates fluoridation of municipal water systems and that this statute contains certain alleged constitutional infirmities. These statutory infirmities include alleged violations of plaintiffs' rights of privacy, due process and equal protection as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States; and of the rights of their respective communities to home rule, as provided for in Article XVIII, Section 7, of the Ohio Constitution. Plaintiffs further argue that the enactment of Section 6111.13 impaired the contractual obligations owing from the city to certain surrounding communities in Franklin County, Ohio, in violation of Article I, Section 10, of the United States Constitution. The defendants dispute plaintiffs' contentions that the city adopted the ordinances by way of implementing the Act. They note, in support of this position, that the city is out of time under the deadlines imposed by the statute; that the State has taken no steps to force compliance by the city; and further that the ordinances make no reference to the duties, if any, that are imposed by the state. Under this theory, the city argues that it has the right under federal and state law, and under the doctrine of home rule, to fluoridate its water supplies. The Court will consider the disparate contentions of this matter alternatively under both the plaintiffs' and defendants' theories of the case, beginning with the latter. If we assume that the ordinances were adopted pursuant to the general police powers of cities incorporated under the laws of Ohio, and in conformity with rules governing their respective political processes, then it is settled in this state that the fluoridation of a municipal water supply is a proper exercise of municipal police powers which does not violate either federal or state constitutional rights. See Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, 57 Ohio O. 1 (1955), appeal dismissed for want of a substantial federal question, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956). If, on the other hand, we were to accept plaintiffs' theory of the case, we are still of the opinion that the petition fails to raise a justiciable issue. Courts, both state and federal, have held with virtual unanimity that the fluoridation of public water systems does not violate the due process clause or constitutional rights incorporated by that clause of the Fourteenth Amendment to the United States Constitution. See Kraus v. City of Cleveland, supra, appeal dismissed for want of a substantial federal question, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956); Crawford v. City of Detroit, 389 F.2d 1001 (C.A.6, 1968); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (1956), appeal dismissed for want of a substantial federal question, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954); Readey v. St. Louis County Water Co., 352 S.W.2d 622 (Mo. 1961), appeal dismissed and cert. denied, 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47 (1962); Dowell v. City of Tulsa, 273 P.2d 859 (Okl.1954), cert. denied, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955); also see, Opinion of Justices, 243 A.2d 716 (Del.1968); Schuringa v. Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1966); Miller v. Evansville, 247 Ind. 563, 219 N.E.2d 900 (1966); Baer v. Bend, 206 Or. 221, 292 P.2d 134 (1956); Birnel v. Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959). In addition, the Supreme Court of Ohio has held, with specific reference to Section 6111.13, that the writ of prohibition will not lie against the mayor of a city who acts to fluoridate a municipal water supply pursuant to the command of that statute. See State ex rel. Lehmann v. Cmich, 23 Ohio St.2d 11, 52 Ohio O.2d 32, 260 N.E.2d 835 (1970). Plaintiffs present two additional questions which, to our knowledge, have not been raised in their precise terms in other actions similar to the present suit. Plaintiffs' first contention, that the act violates the Equal Protection Clause of the Fourteenth Amendment, requires little discussion. As noted earlier, Ohio with reference to the act in question, has chosen to classify differently public water systems serving fewer than five thousand persons from those serving more than that number of users. Plaintiffs contend that this legislation distinguishes unfairly between large and small water suppliers, is violative of Article II, Section 26, of the Ohio Constitution which requires that state laws of a general nature have a “uniform operation throughout the state”, and further violates the federal Equal Protection Clause. Considering first plaintiffs' state law contention, the Court notes that Article XVIII, Section 1, of the Ohio Constitution specifically classifies municipal corporations into villages, having fewer than 5,000 persons, and cities having 5,000 or more inhabitants. The statutory classification in this case is in conformity with and analogous to this constitutional provision, and in our view does not result in a non-uniform effect within the meaning of Ohio law. See Bucyrus v. State Dep't. of Health, 120 Ohio St. 426, 166 N.E. 370 (1929); State ex rel. Ramey v. Davis, 119 Ohio St. 596, 165 N.E. 298 (1929); State ex rel. Heffernan v. Serp, 125 Ohio St. 87, 180 N.E. 650 (1932). Nor do we think that a substantial question is raised under the Equal Protection Clause to the Fourteenth Amendment. The Equal Protection Clause does not prohibit a state from drawing distinctions between groups and legislating differently for the various groups so designated. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); Williams v. San Francisco Unified School District, 340 F.Supp. 438 (N.D.Cal.1972). However, “the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Heath v. Westerville Board of Education, 345 F.Supp. 501 (S.D.Ohio E.D. 1972). In light of the provision of the Ohio Constitution cited above, which differentiates, as a matter of state constitutional law between villages and cities, and on its face, we do not believe that the act creates arbitrary classifications within the meaning of the Equal Protection Clause. The Ohio General Assembly, at least arguably, created this classification so as to reach an optimum number of citizens, at the least possible cost, utilizing the greatest efficiencies of scale. The fact that the legislature chose, at this time, not to include within the reach of the act public water systems serving less than 5,000 users does not invalidate the act as a whole. There is no federal constitutional requirement that a state exercise its police powers, to the fullest extent, at any given time; nor that a state law, from the point of view of equal protection necessity, have a uniform application. Because the statutory classification is parallel to the state constitutional provision and does not affect “preferred” constitutional guarantees, we do not think the State need justify the enactment under the heavier burden of “compelling state interest.” See Shapiro v. Thompson, supra. For these reasons plaintiffs' foregoing contentions under the Equal Protection Clause are without merit. Finally, plaintiffs argue that the act in question infringes on the contractual rights of their respective communities, under the Obligation of Contracts Clause of the Federal Constitution. See Article I, Section 10, supra. This argument maintains first that the City of Columbus has a monopoly on the available water resources in regional water basins, and second, that at the time these Franklin County municipalities entered water supply contracts with the City of Columbus, its water did not contain a fluoride content. Plaintiffs therefore allege that the act, to the extent that it alters the second of these conditions without modifying their rights due to the first, violates their Article I, Section 10, rights. We have several problems with this argument. As a threshold matter, the court entertains substantial doubt as to whether the plaintiffs in this action have standing to raise this contention. While it is true as a general matter that the formal requirements of standing have been substantially relaxed as to federal taxpayers, see and compare Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) with Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); but see also Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), we are not at all persuaded that such relaxation inures to the benefit of plaintiffs. First, plaintiffs did not make nor were they direct parties to the contracts in question; rather, the various municipalities in which these plaintiffs live were parties to the contracts which are alleged to be infringed. Since this issue is one arising under contract, plaintiffs' relation to such contracts must be decided according to governing principles of Ohio law. See, Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Ohio law, plaintiffs stand, at best, as third party beneficiaries to the contracts between Columbus and their respective municipalities. But according to the law of the state, only creditor and donee beneficiaries can directly assert rights based upon a contract between two other parties. In the Court's view, plaintiffs at bar more resemble incidental beneficiaries under the contract in question than they do donee beneficiaries; compare Blunk v. Dennison Water Supply Co., 71 Ohio St. 250, 73 N.E. 210 (1905) with Visintine & Co. v. New York, C. & St. L. R. Co., 169 Ohio St. 505, 160 N.E.2d 311, 9 Ohio O.2d 4 (1959), and accordingly cannot assert a private cause of action based upon a contract between two public agencies. But even assuming arguendo that plaintiffs have standing to raise this claim, it is the Court's belief that political checks, contained within the act itself, were available to prevent impairment of contract, had plaintiffs asserted their rights in a timely fashion. Under the express terms of the statute, any citizen of those communities served by a public water system affected by the act, could have filed, within one hundred twenty (120) days of the effective date of the act, a referendum petition pursuant to Section 3501.38 O.R.C. Had such a petition obtained the requisite number of signatures, as required under Ohio law, the issue of whether that public water system would have to fluoridate its water would have been determined by a majority referendum vote. Under the statute a community which found fluoridation undesirable, and which filed a petition within one hundred twenty days of the effective date of the act, could have removed itself from the ambit of the act's coverage. This political check was not employed by plaintiffs and members of their class, or by their respective communities. Ordinarily constitutional rights are not subject to popular vote. The Ohio General Assembly could not, for example, delegate to the citizens of this state the option of abrogating, by binding referendum vote, the established First Amendment rights of an unpopular minority. See Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). However, here, where as we have noted earlier, no established federal constitutional rights are at issue, the General Assembly acted well within its constitutionally permissible scope in referring this surprisingly controversial issue to the political processes and by granting local communities an option of deciding fluoridation by referendum. Plaintiffs, having been granted the opportunity to avoid the impact of the statute, and having failed to avail themselves of that opportunity, cannot now be heard to argue that the act infringes upon their contractual rights. 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. See Reitman v. Mulkey, supra, 387 U.S. at 395-396, 87 S.Ct. 1627 (Harlan, J., dissenting); Lucas v. Forty-Fourth General Assembly, supra, 377 U.S. at 748-751, 754-759, 84 S.Ct. 1459 (Stewart, J., dissenting). We note, merely in passing, that contracts must be interpreted in light of evolving conceptions of public policy. A private contract for the sale of slaves, entered into several days before the adoption of the Thirteenth Amendment, or one for the delivery of alcoholic spirits, signed just before the ratification of the Eighteenth Amendment, would be interpreted as nullities in reference to subsequently decided but nonetheless overarching public policy goals. In situations similar to the hypotheticals posed above, courts have not perceived any violation of the obligation of contracts clause of the Constitution. See, City of El Paso v. Simmons, 379 U.S. 497, 506-510, 85 S.Ct. 577, 13 L.Ed.2d 446 (1964); Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1933); Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 77 L.Ed. 288 (1932); Ogden v. Saunders, 12 Wheat. 213, 291, 6 L.Ed. 606 (1827). We further note that no allegation has been made that the city herein specifically contracted not to inject fluoride to the other chemical substances which are now added, quite routinely, to the city's water supplies. In the absence of such a contractual provision, and for all of the other reasons stated above, we hold that plaintiffs' contractual rights, to the extent that plaintiffs have rights under these contracts, were not infringed by the act. Accordingly, we hold that no substantial federal constitutional question is presented and the convocation of a three-judge court is not mandated. See, In re Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Board of Regents of the University of Texas System v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972). We further hold that temporary injunctive relief is inappropriate and that the Court is without subject matter jurisdiction over the action. The views expressed in this Opinion shall supercede our oral opinion, rendered from the bench on September 29, 1972, granting defendants' motions to dismiss. In conformity with the written Order filed by the Court on October 5, 1972, and for the reasons set forth above, this action is hereby dismissed. It is so ordered.

+/- Board of Co. Comm. Ottawa County v. Marblehead

Ohio, State police power

• Plaintiff
  Board of County Commissioners of Ottawa County
• Defendant
  Village of Marblehead et al.
• State
  Ohio
• Other Parties
  -
• Case Tags
  - State police power
• Citation
  86 Ohio St. 3d 43; 711 N.E.2d 663 (Ohio 1999)
• Year
  1999-00-00T00:00:00
• Court Name
  Supreme Court of Ohio
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Cook J
• Opinion Text
  This case stems from a dispute between the Board of County Commissioners of Ottawa County (“the Board”) and the village of Marblehead (“Marblehead”), regarding which entity has the right to provide water service to residents of county land that was recently annexed by Marblehead. The dispute began when the Board's plan for a county-wide water supply system collided with Marblehead's plan to sell excess municipal water to residents within the disputed area before it was annexed. The Board sought to enjoin Marblehead from expanding its water service beyond its municipal boundaries. Because the Board's power to regulate sewer districts and Marblehead's authority to construct water service outside its municipal boundaries were of equal dignity, the trial court applied a balancing test to weigh the interests of the two entities and concluded that the Board had rights paramount to those of Marblehead. The Board obtained a declaratory judgment that Marblehead was without authority to extend water service into the disputed area. The court of appeals affirmed based upon the facts of the case. Within days of the court of appeals' decision, the residents within the disputed area filed their petition with the Board seeking annexation to Marblehead. Before responding to the petition, the Board passed several resolutions: (1) a resolution of necessity declaring its intention to provide water service to the residents within the disputed area as well as to other areas of the county; (2) a resolution approving detailed plans, specifications, estimates of cost, water rates and charges, and assessment policy; and (3) a resolution determining to proceed with the construction of water system improvements within the county. Thereafter, the Board declined to approve the pending petition for annexation. County property owners objected to the Board's resolutions regarding the water supply system and filed an appeal to the probate court. The probate court found that the county water supply system was necessary for the public health, convenience, and welfare; that the boundaries of the assessment district were reasonable; and that the tentative assessments were, for the most part, reasonable. The court of appeals affirmed. Meanwhile, the residents who filed the petition for annexation sought review of the Board's resolution declining to approve the petition at the court of common pleas. The common pleas court determined that the Board had acted arbitrarily and unreasonably in denying the annexation petition and accordingly reversed the Board's refusal to accept the annexation petition. After the annexation petition was accepted, Marblehead prepared its own plans to provide water service to the residents within the disputed area. The Board sought, through an action for declaratory judgment, a temporary restraining order, and preliminary and permanent injunctive relief, to enjoin Marblehead from extending its water supply system into the disputed area and from engaging in any conduct that would interfere with the Board's ability to issue bonds for improvements within the disputed area. The Board asked the trial court to declare that R.C. 6103.04 gives it continuing authority within the disputed area to complete the water supply system that was already approved and adopted at the time of annexation. Marblehead counterclaimed. Marblehead sought to enjoin the Board from constructing a water supply system within the disputed area without Marblehead's prior approval. Marblehead also sought a declaration that R.C. 6103.04 is unconstitutional because it conflicts with Section 4, Article XVIII of the Ohio Constitution, which Marblehead argued confers absolute authority on a municipality to construct and maintain a water supply system within its borders and to contract for water service for its residents. The trial court found that Marblehead has the exclusive right to provide water service within the disputed area, that R.C. 6103.01 et seq. is unconstitutional to the extent it interferes with Marblehead's exclusive right, and that the Board does not have the authority to construct a water supply system within Marblehead without Marblehead's approval. The court of appeals affirmed. The cause is now before this court upon the allowance of a discretionary appeal. COOK, J. Although Article XVIII of the Ohio Constitution grants municipalities the exclusive authority to provide their residents with utility services, a statute that limits the municipality's power is not unconstitutional if the purpose of the statute is an exercise of the state's police powers and is not a substantial infringement upon the municipality's authority. Because R.C. 6103.04 satisfies these requirements, it is not unconstitutional. The Ohio Constitution authorizes a municipality to provide water service to its residents to the exclusion of other providers. See Lucas v. Lucas Local School Dist. (1982), 2 Ohio St.3d 13, 2 OBR 501, 442 N.E.2d 449. Under Section 4, Article XVIII of the Ohio Constitution, “[a]ny municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility.” This constitutional provision is part of the municipal home-rule amendments that were proposed to remove “all legitimate questions as to the authority of municipalities to undertake and carry on essential municipal activities.” 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1913), at 1433. But, according to Marblehead, the statute at issue, R.C. 6103.04, permits a county sewer district to exercise jurisdiction for water-works purposes within the annexed territory of a municipality in violation of Section 4, Article XVIII of the Ohio Constitution. R.C. 6103.04 provides statutory authority to enable an established county sewer district to complete an existing county water service project when territory within the project area acquires municipality status through annexation during the pendency of the county project. R.C. 6103.04 provides: “Whenever any portion of a sewer district i...annexed to a municipal corporation, the area so...annexed shall remain under the jurisdiction of the board of county commissioners for water-works purposes until any water supply or water-works improvements for said area for which detailed plans have been prepared and the resolutions declaring the necessity thereof has [sic] been adopted by the board have been completed or until said board has abandoned such projects. Such...annexation of any part of a district shall not interfere with or render illegal any issue of bonds or certificate of indebtedness made by the board...to provide payment for the cost of construction and maintenance of any water improvements within such area, or with any assessments levied or to be levied upon the property within such area to provide for the payment of the cost of construction and maintenance.” R.C. 6103.04 appears to contravene the constitutional authority of a municipality to provide public utility service. And that right is not generally subject to statutory restriction. Lucas, 2 Ohio St.3d 13, 2 OBR 501, 442 N.E.2d 449; Columbus v. Pub. Util. Comm. (1979), 58 Ohio St.2d 427, 12 O.O.3d 361, 390 N.E.2d 1201. But a statute enacted to promote the health, safety, and welfare of the public can override the municipality's authority if the statute does not substantially interfere with the municipality's constitutionally granted power. See, e.g., Columbus v. Teater (1978), 53 Ohio St.2d 253, 260-261, 7 O.O.3d 410, 414, 374 N.E.2d 154, 159; Canton v. Whitman (1975), 44 Ohio St.2d 62, 68, 73 O.O.2d 285, 289, 337 N.E.2d 766, 771 (“An exercise of the police power necessarily occasions some interference with other rights, but that exercise is valid if it bears a real and substantial relationship to the public health, safety, morals or general welfare, and if it is not unreasonable or arbitrary.”). In determining that R.C. 6103.04 is constitutional, we proceed from the fundamental precept that Ohio statutes are entitled to a strong presumption of constitutionality and must, in questionable cases, be construed to be constitutional if possible. State ex rel. Jackman v. Court of Common Pleas of Cuyahoga Cty. (1967), 9 Ohio St.2d 159, 161, 38 O.O.2d 404, 405-406, 224 N.E.2d 906, 908-909; State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 10 O.O.3d 408, 383 N.E.2d 892. In addition, we note that in Columbus v. Pub. Util. Comm., 58 Ohio St.2d at 432, 12 O.O.3d at 364, 390 N.E.2d at 1204, this court explained that a spectrum of relations exists between the state and its municipalities: “Where the state enacts a statute promoting a valid and substantial interest in the public health, safety, morals or welfare; where the statute's impact upon the municipal utilities is incidental and limited; and where the statute is not an attempt to restrict municipal power to operate utilities, the statute will be upheld. Conversely,...where the purpose of a statute is to control or restrict municipal utilities, the statute must yield. The majority of cases, however,...fall between these extremes.” In those cases, the court must “ ‘balance the rights of the state against those of the municipality and endeavor to protect the respective interests of each.’ ” Id. at 433, 12 O.O.3d at 364, 390 N.E.2d at 1204, quoting Teater, 53 Ohio St.2d at 261, 7 O.O.3d at 414, 374 N.E.2d at 160. R.C. 6103.04 falls between the extremes. Accordingly, we balance the interests of the Board against those of Marblehead. We recognize that the state has a substantial interest in ensuring that Ohio residents have a safe and adequate water supply. In fact, this court has held that a board's power to regulate sewer districts in the interest of public health and welfare constitutes a valid exercise of state police powers. Delaware Cty. Bd. of Commrs. v. Columbus (1986), 26 Ohio St.3d 179, 180-181, 26 OBR 154, 155, 497 N.E.2d 1112, 1113-1114. R.C. 6103.04 ensures stability of financing for county water service projects even in the face of changing governmental entities. Having concluded that R.C. 6103.04 is a valid exercise of state police powers, we next review whether the legislative intent of the statute was to generally restrict a municipality's authority to provide utility service to its residents. By the expressly limited scope, we discern that the General Assembly intended R.C. 6103.04 to permit completion of pending county water service projects through protection of financing arrangements that would otherwise be affected by intervening annexations. The challenged statute's impact on a municipality's authority to operate utilities is limited. R.C. 6103.04 restricts the Board's statutory jurisdiction within the municipality to that period of time when “any water supply or water-works improvements for said area...have been completed or until said board has abandoned such projects.” And this limited jurisdiction is only triggered by an intervening set of circumstances that warrant such practical considerations; considerations generally encompassed within the concept of police powers, including preservation of public resources. R.C. 6103.04 does not substantially interfere with a municipality's power to own and operate a water supply system. For all of these reasons, we conclude that Marblehead has not overcome the strong presumption that R.C. 6103.04 is constitutional. R.C. 6103.04 only permissibly infringes on a municipality's authority. It is an exercise of police powers and does not substantially infringe upon a municipality's power to operate utilities. Because we reverse the court of appeals' decision regarding the constitutionality of R.C. 6103.04, we need not reach its decision regarding R.C. 6103.26. The court of appeals premised its R.C. 6103.26 discussion on the unconstitutionality of R.C. 6103.04. Accordingly, the judgment of the court of appeals is reversed. Judgment reversed. FREDERICK N. YOUNG, PFEIFER and LUNDBERG STRATTON, JJ., concur. DOUGLAS, Acting C.J., SPELLACY and FRANCIS E. SWEENEY, Sr., JJ., dissent. FREDERICK N. YOUNG, J., of the Second Appellate District, sitting for MOYER, C.J. DOUGLAS, Acting C.J., dissenting. DOUGLAS, Acting C.J., dissenting. I dissent from the judgment and opinion of the majority. The majority, in rapid fashion, has abridged the express grant of power provided to municipalities in this state by Section 4, Article XVIII of the Ohio Constitution. Specifically, the majority holds that “[a]lthough Article XVIII of the Ohio Constitution grants municipalities the exclusive authority to provide their residents with utility services, a statute that limits the municipality's power is not unconstitutional if the purpose of the statute is an exercise of the state's police powers and is not a substantial infringement upon the municipality's authority.” (Emphasis added.) To that end, the majority holds that “[b]ecause R.C. 6103.04 satisfies these requirements, it is not unconstitutional.” In reaching these conclusions, the majority relies primarily on Lucas v. Lucas Local School Dist. (1982), 2 Ohio St.3d 13, 2 OBR 501, 442 N.E.2d 449; Columbus v. Pub. Util. Comm. (1979), 58 Ohio St.2d 427, 12 O.O.3d 361, 390 N.E.2d 1201; Columbus v. Teater (1978), 53 Ohio St.2d 253, 7 O.O.3d 410, 374 N.E.2d 154; and Canton v. Whitman (1975), 44 Ohio St.2d 62, 73 O.O.2d 285, 337 N.E.2d 766. However, these cases, along with the “clear, specific and self-executing” powers enumerated in Section 4, Article XVIII, see In re Complaint of Residents of Struthers (1989), 45 Ohio St.3d 227, 543 N.E.2d 794, paragraph one of the syllabus, do not support the conclusions reached by the majority. Accordingly, because the majority has failed to properly interpret and apply the law in this area, and because the majority has effectively renounced the clear grant of constitutional authority provided to municipalities in Section 4, Article XVIII, I must dissent. Indeed, today's short-sighted holding will only further exacerbate the problems associated with the establishment, servicing, and control of utility services within land annexed by a municipality. Section 4, Article XVIII provides: “Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility.” (Emphasis added.) The language of Section 4, Article XVIII is unmistakable. Until today, the clear language of Section 4 meant that a municipality could, without restriction, “acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants.” However, these plain words, as approved by the sovereign people of this state in 1912, apparently no longer mean what they say. This court has held consistently that rights afforded by Section 4, Article XVIII are not subject to statutory restriction or to commission review or control. See, e.g., Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1996), 76 Ohio St.3d 521, 530, 668 N.E.2d 889, 895-896 (Moyer, C.J., dissenting), citing Link v. Pub. Util. Comm. (1921), 102 Ohio St. 336, 131 N.E. 796, paragraph two of the syllabus; In re Complaint of Residents of Struthers, supra, paragraphs one and three of the syllabus; Lucas, supra; Columbus v. Pub. Util. Comm., supra; and Columbus v. Ohio Power Siting Comm. (1979), 58 Ohio St.2d 435, 12 O.O.3d 365, 390 N.E.2d 1208. See, also, Pfau v. Cincinnati (1943), 142 Ohio St. 101, 26 O.O. 284, 50 N.E.2d 172; and Swank v. Shiloh (1957), 166 Ohio St. 415, 2 O.O.2d 401, 143 N.E.2d 586, paragraph one of the syllabus (“The power to acquire, construct, own or lease and to operate a utility, the product of which is to be supplied to a municipality or its inhabitants, is derived from Section 4, Article XVIII of the Constitution, and the General Assembly is without authority to impose restrictions or limitations upon that power.”). Specifically, in Lucas, 2 Ohio St.3d at 14, 2 OBR at 502, 442 N.E.2d at 450, we stated that Section 4, Article XVIII “is clearly a grant of power and not a limitation of authority,” and that “the obvious purpose of this section is to provide the municipalities with the comprehensive authority to deal with public utilities.” Id., 2 Ohio St.3d at 14, 2 OBR at 502, 442 N.E.2d at 450, fn. 1. Additionally, we also noted that “the first cases interpreting this provision described the municipal powers over utilities as ‘plenary,’ ” and that “[t]he Home Rule Amendments, Section 4 included, are examples of the people taking a governmental function from one body and placing it under the auspices of another.” Id., 2 Ohio St.3d at 14, 2 OBR at 502, 442 N.E.2d at 450. Hence, “municipalities were awarded jurisdiction over public utilities which formerly rested in the domain of the General Assembly.” Id. Therefore, we expressly held in Lucas, at paragraph one of the syllabus, that “[c]ontracting for public utility services is exclusively a municipal function under Section 4, Article XVIII, of the Ohio Constitution.” (Emphasis added.) Citing Lucas, the majority states that “[t]he Ohio Constitution authorizes a municipality to provide water service to its residents to the exclusion of other providers.” (Emphasis added.) “Exclusion” is defined as “[d]enial of entry or admittance.” Black's Law Dictionary (6 Ed.Rev.1990) 563. Moreover, “exclusive” is defined as “[a]ppertaining to the subject alone, not including, admitting, or pertaining to any others.” Id. at 564. Thus, it would seem to follow that, since Marblehead has the absolute authority “to provide” water services to its inhabitants to the “exclusion” of all other entities, any restriction or limitation placed on Marblehead in this regard runs afoul of Section 4, Article XVIII. R.C. 6103.04 provides: “Whenever any portion of a sewer district is incorporated as a municipal corporation or annexed to a municipal corporation, the area so incorporated or annexed shall remain under the jurisdiction of the board of county commissioners for water-works purposes until any water supply or water-works improvements for said area for which detailed plans have been prepared and the resolutions declaring the necessity thereof has [sic] been adopted by the board have been completed or until said board has abandoned such projects. Such incorporation or annexation of any part of a district shall not interfere with or render illegal any issue of bonds or certificate of indebtedness made by the board in accordance with sections 6103.02 to 6103.30, inclusive, of the Revised Code, to provide payment for the cost of construction and maintenance of any water improvements within such area, or with any assessments levied or to be levied upon the property within such area to provide for the payment of the cost of construction and maintenance.” R.C. 6103.04 sets forth that whenever any portion of a county sewer district is annexed to a municipality, the area annexed shall remain under the jurisdiction of the board of county commissioners for waterworks purposes until the projects, for which detailed plans have been prepared and resolutions declaring the necessity thereof have been adopted, have been completed or abandoned by the board. According to the majority, Marblehead can be enjoined from establishing a water supply system for its residents because R.C. 6103.04 is a legitimate exercise of the state's police powers and because the statute does not “substantially interfere” with, and “only permissibly infringes” upon, the exclusive authority afforded to municipalities in Section 4, Article XVIII. In reaching these conclusions, and, specifically, the conclusion that the board's rights under R.C. 6103.04 are paramount to the explicit constitutional power afforded to Marblehead under Section 4, Article XVIII, the majority relies upon Teater and Whitman, supra. Without question, certain legislative acts “of statewide concern,” which do not impair constitutional grants of authority contained in Section 4, Article XVIII, are valid. Lucas, 2 Ohio St.3d at 15, 2 OBR at 503, 442 N.E.2d at 451. Clearly, Teater and Whitman involved such matters. However, Teater and Whitman do not support the conclusions reached by the majority and both cases are easily distinguishable from the case at bar. In Whitman, we held that the state may require a municipality to fluoridate an already existing municipally owned and operated water supply system and that the statute in question, which required a certain level of fluoridation, was a valid exercise of the state police power. Specifically, we determined that the statute requiring fluoridation of water was permissible because the regulation was a matter of statewide concern (prevention and control of dental caries), and, more importantly, because the regulation did not limit the ownership or operation of a municipal waterworks. Id., 44 Ohio St.2d at 68, 73 O.O.2d at 289, 337 N.E.2d at 771 (“The ownership and operation of a municipal waterworks is not limited by a state requirement that fluorides be added to the water in the interest of the public health.... The state, in fact, supplies the equipment necessary to add the fluorides. ... Fluoridation is plainly a matter involving the public health; there is no indication that it unreasonably restricts, limits, or otherwise interferes with the operation of a municipal utility.”). However, the case before us is clearly different. The majority has extinguished, indefinitely, Marblehead's exclusive right to establish and provide water services to its residents. Moreover, the operation and ownership of water services within the area annexed by Marblehead is not a matter of statewide concern. Thus, the majority misapprehends Whitman by using Whitman to elevate, herein, the purely local interests of appellant board over the express constitutional authority of Marblehead to own and operate a public utility within its municipal limits. The majority attempts to soften its holding by asserting that R.C. 6103.04 is only a “limited” restriction. The majority states that R.C. 6103.04 “restricts the Board's statutory jurisdiction within the municipality to that period of time when ‘any water supply or water-works improvements for said area...have been completed or until said board has abandoned such projects.’ ” (Emphasis added.) “Period of time” is, of course, not defined by the majority. In any event, any limitation on a municipality's authority to provide water services to its residents violates Section 4, Article XVIII. Indeed, this court's holding in Whitman was never intended to “represent a retreat from the strong home rule principles” that the General Assembly may not limit the power of a municipality to own or operate a public utility without violating Section 4, Article XVIII. See Columbus v. Pub. Util. Comm., 58 Ohio St.2d at 432, 12 O.O.3d at 364, 390 N.E.2d at 1204, relying on McCann v. Defiance (1958), 167 Ohio St. 313, 4 O.O.2d 369, 148 N.E.2d 221. Accordingly, Whitman does not support the position of the majority, and any reliance by the majority on Whitman in reaching its holding is simply wrong. Likewise, Teater also lends no support to the holding rendered by the majority. In Teater, the city of Columbus instituted a program for the construction, operation, and maintenance of a new water supply reservoir located outside its corporate limits on Big Darby Creek. The location of the reservoir was also to be within the area proposed by the Director of Natural Resources as a “scenic river area.” The director's authority to designate the area as a protected “scenic area” was in accordance with a state statute adopted pursuant to Section 36, Article II of the Ohio Constitution. The effect of such a designation was to prohibit channel modification of the watercourse. The city challenged the constitutionality of the statute, urging, among other things, that it violated Section 4, Article XVIII. In finding the statute constitutional, this court recognized that the area in question was located outside the city's corporate limits and that the statute at issue concerned matters of statewide import, namely, the conservation and preservation of natural resources. Specifically, in Teater, 53 Ohio St.2d at 261, 7 O.O.3d at 414, 374 N.E.2d at 159-160, the court held: “The authority enjoyed by municipalities under Article XVIII cannot be extinguished by the General Assembly. Nevertheless, under appropriate facts, the power possessed by the General Assembly under Section 36 of Article II can override the interest of a city in constructing water supply impoundments located outside its corporate limits. Ultimately, the judiciary must determine the facts in such controversies, balance the rights of the state against those of the municipality and endeavor to protect the respective interests of each. In such instances, the outcome of the constitutional argument involved will depend upon the facts and circumstances of the case.” (Emphasis added.) Clearly, Teater does not support the holding of the majority. In Teater, the court indicated that state police powers are not presumptively paramount to home rule authority conferred upon municipalities by Article XVIII. Rather, state police powers and home rule powers are “equal in dignity,” see Teater, 53 Ohio St.2d at 257, 7 O.O.3d at 412, 374 N.E.2d at 157, only if the statute is of statewide concern, and the statute and the application of the home rule provision establishing a public utility conflict outside the municipal limits. The significant “extra-territorial effect,” which would have resulted from the city's proposed water supply reservoir, was material to the holding in Teater. See Columbus v. Pub. Util. Comm., 58 Ohio St.2d at 433, 12 O.O.3d at 364, 390 N.E.2d at 1205; and Columbus v. Ohio Power Siting Comm., 58 Ohio St.2d at 439, 12 O.O.3d at 368, 390 N.E.2d at 1211. Thus, unlike the situation in Teater, here Marblehead is not attempting to establish a water service system outside its boundaries. In this regard, the equal dignity language and balancing test derived from Teater are not applicable to the present case. Until today, this court has consistently protected the rights of a municipality to own and operate a public utility for the purpose of supplying the service or product to its residents. See, e.g., McCann (statute that requires municipalities to furnish water to noninhabitants and also limits the price which the municipality may charge for such water is unconstitutional and is void); Columbus v. Pub. Util. Comm. (statute that requires municipally owned and operated electric light companies to offer their customers specified billing options violates Section 4, Article XVIII); and Columbus v. Ohio Power Siting Comm. (statute that authorizes a commission to evaluate and determine a municipality's need for, and the public service and convenience of, a proposed municipal utility is unconstitutional). Importantly, “ ‘[l]egislation enacted by the state pursuant to the police power, in relation to the public health, is valid as applied to the municipal operation of a public utility under Section 4, Article XVIII of the Ohio Constitution, where such legislation does not interfere with the ownership or operation of the utility.’ ” (Emphasis sic.) Columbus v. Ohio Power Siting Comm., 58 Ohio St.2d at 440, 12 O.O.3d at 368-369, 390 N.E.2d at 1212, quoting Whitman, paragraph three of the syllabus. The law in Ohio is clear. Marblehead has the exclusive right to provide water service to its residents. The majority's decision, reversing the judgment of the court of appeals and enjoining Marblehead from extending its water supply system into the annexed area, is just plain wrong. Accordingly, I must dissent. SPELLACY and FRANCIS E. SWEENEY, Sr., JJ., concur in the foregoing dissenting opinion.

+/- Brown v. City of Canton

Ohio, Injunction, Improper Procedure

• Plaintiff
  Brown
• Defendant
  City of Canton
• State
  Ohio
• Other Parties
  -
• Case Tags
  - Injunction

  - Improper Procedure
• Citation

  64 Ohio St. 2d 182; 414 N.E.2d 412 (Ohio 1980)

• Year
  1980-01-01T00:00:00
• Court Name
  Supreme Court of Ohio
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  On July 1, 1974, as a result of proceedings before the Ohio Environmental Protection Agency, the Director of Environmental Protection (“director”) issued an order requiring the city of Canton to install and operate all devices necessary and appropriate to maintain the fluoride content of the city water system as mandated by statute. That order was upheld by this court in Canton v. Whitman (1975), 44 Ohio St.2d 62, 337 N.E.2d 766,certiorari denied, 425 U.S. 956, 96 S.Ct. 1735, 48 L.Ed.2d 201. Subsequently, the director filed a mandamus action in this court to force compliance with that order. In State ex rel. Williams v. Canton (1977), 51 Ohio St.2d 81,304 N.E.2d 1161, this court held that the forfeiture provision of R.C. 6111.30^FN1 provided an adequate remedy in the ordinary course of the law. Therefore, the writ of mandamus was denied. FN1. The pertinent part of R.C. 6111.30 reads, as follows: “If a legislative authority, a department, or an officer of a municipal corporation, or a person in charge of a public institution, or other person fails for a period of thirty days, after notice given him or them by the director of environmental protection of his findings and order, to perform any act required of it by sections 6111.12 to 6111.30 of the Revised Code, relating to public water supply, the members of such legislative authority or department, or such officer or person shall be personally liable for such default, and shall forfeit ten thousand dollars to be paid into the state treasury to the credit of the general revenue fund. Such findings and order of the director, unless complied with within the time provided in this section, shall be prima facie evidence in any court of law of the existence of a public nuisance detrimental to health or comfort, or of the pollution of the source of a public water supply.” R.C. 6111.30 has been repealed. (Am.Sub.S.B.No. 445, effective December 14, 1978.) The Attorney General, appellant herein, filed this action in the Court of Appeals for Stark County, seeking a writ of mandamus directing the appellees, the city of Canton, its mayor and city council, to comply with the director's July 1, 1974, order. The Court of Appeals denied the writ, finding that R.C. 6109.32,^FN2 which authorizes the Attorney General to bring an action for an injunction, is an adequate remedy in the ordinary course of the law. FN2. The pertinent part of R.C. 6109.32 reads: “The attorney general, upon written request by the director, shall bring an action for injunction or other appropriate action against any person violating or threatening to violate such section.” The cause is now before this court upon an appeal as of right. PER CURIAM. The standard of review applied by this court in mandamus actions is set forth in State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, at paragraph ten of the syllabus, as follows: “The Court of Appeals is governed by the same rules that govern the Supreme Court with regard to its original jurisdiction in mandamus actions. On appeal as a matter of right from a judgment of a Court of Appeals in such an action, the Supreme Court will review the judgment of the Court of Appeals, as if the action had been filed originally in this court, to determine the following questions: (a) Is the respondent under a clear legal duty to perform an official act? (b) Is there a plain and adequate remedy in the ordinary course of the law? (c) Is the action, although labeled a proceeding in mandamus, in effect an action seeking an injunction?... .” Here, there is no question that the appellees are under a clear legal duty to fluoridate Canton's water system pursuant to R.C. 6109.20^FN3 and this court's determination in Canton v. Whitman, supra. Further, appellant herein seeks to compel appellees to perform their legal duty, rather than restrain them from doing an act in contravention of that duty. See State ex rel. Pressley v. Indus. Comm., supra, at pages 150-51, 228 N.E.2d 631. Hence, this action does not in effect seek an injunction. FN3. At the time Canton was ordered to fluoridate its water system, R.C. 6109.20 was numbered R.C. 6111.13. Therefore, the only question on appeal is whether appellant has a plain and adequate remedy in the ordinary course of the law. The Court of Appeals ruled that appellant has such a remedy. We disagree.^FN4 FN4. The appellant argues that a writ of mandamus should be issued under R.C. 6109.16 even if there is a plain and adequate remedy in the ordinary course of the law. Since we hold that appellant has no such remedy, we need not decide that question. The Court of Appeals' determination that R.C. 6109.32 provides such a remedy is contrary to previous decisions of this court. R.C. 6109.32 authorizes the Attorney General to enforce orders of the director by an injunction. To enforce the order directing appellees to fluoridate Canton's water system would require a mandatory injunction. However, a mandatory injunction is an extraordinary remedy; hence, it is not a plain and adequate remedy in the ordinary course of the law. In State ex rel. Pressley v. Indus. Comm., supra, at paragraph six of the syllabus, this court stated: “The extraordinary remedies of statutory mandamus and statutory mandatory injunction are not plain and adequate remedies in the ordinary course of the law and the availability of these extraordinary remedies in the Common Pleas Court is not a ground upon which the Supreme Court can adopt or adhere to a rule that it is error for the Supreme Court or the Court of Appeals to exercise jurisdiction in a mandamus action filed originally therein. ( Perkins v. Quaker City, 165 Ohio St. 120, 133 N.E.2d 595; State ex rel. Selected Properties, Inc. v. Gottfried, 163 Ohio St. 469, 127 N.E.2d 371; State ex rel. Killeen Realty Co. v. East Cleveland, 169 Ohio St. 375, (160 N.E.2d 1); State ex rel. Riley Construction Co. v. East Liverpool City School Dist. Bd. of Edn., 10 Ohio St.2d 25 (225 N.E.2d 246), approved and followed.)” Finally, this court must decide whether R.C. 6109.33,^FN5 which provides for civil penalties for violations of any order of the director is a plain and adequate remedy in the ordinary course of the law. Notwithstanding our decision in State ex rel. Williams v. Canton, supra, that R.C. 6111.30,^FN6 an analogous section, was an adequate remedy, we find that R.C. 6109.33 does not provide such a remedy. FN5. R.C. 6109.33 reads: “Any person who violates section 6109.31 of the Revised Code shall pay a civil penalty of not more than ten thousand dollars for each violation, to be paid into the state treasury to the credit of the general revenue fund. The attorney general, upon written request by the director of environmental protection, shall bring an action for such penalty against any person who violates such section. Such action is a civil action, governed by the Rules of Civil Procedure and other rules of practice and procedure applicable to civil actions.” FN6. See fn. 1, supra. In reaching this decision, we must analyze what constitutes an “adequate remedy.” This question was addressed in State ex rel. Paul Stutler, Inc. v. Yacobucci (1958), 108 Ohio App. 41, 160 N.E.2d 300, affirmed, 169 Ohio St. 20, 157 N.E.2d 357, wherein the court, at page 46, stated that an “adequate remedy” means a remedy “ ‘complete in its nature, beneficial and speedy.’ ” (Quoting from State ex rel. Merydith Const. Co. v. Dean (1916), 95 Ohio St. 108, 123, 116 N.E. 37.) It is more than three years after this court's denial of mandamus relief in State ex rel. Williams v. Canton, supra, and the appellees still refuse to obey the order to fluoridate the city's water system. The fact that an analogous forfeiture prevision was for three years unable to secure compliance with the director's order leads us to the conclusion that a civil penalty will not afford the appellant either a complete or a speedy remedy. Since appellant has no plain and adequate remedy in the ordinary course of the law, he is entitled to a writ of mandamus. Therefore, the judgment of the Court of Appeals is reversed, and the writ is allowed. Judgment reversed and writ allowed. WILLIAM B. BROWN, PAUL W. BROWN, SWEENEY, LOCHER, HOLMES and STILLMAN, JJ., concur. CELEBREZZE, C. J., dissents. STILLMAN, J., of the Eighth Appellate District, sitting for DOWD, J. CELEBREZZE, Chief Justice, dissenting. The writ of mandamus is an extraordinary remedy which is customarily granted with caution. The conditions which must exist to support the issuance of a writ of mandamus are, as recently stated in State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66, paragraph one of the syllabus, as follows: “In order to grant a writ of mandamus, the court must find that relator has a clear legal right to the relief prayed for, that respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. ( State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41 (374 N.E.2d 641.))” Since appellant has failed to demonstrate the lack of a plain and adequate remedy at law, I would, on the basis of this court's prior ruling in State ex rel. Williams v. Canton (1977), 51 Ohio St.2d 81, 364 N.E.2d 1161, deny the writ. In State ex rel. Williams v. Canton, supra, this court held in a unanimous opinion that the director was not entitled to a writ of mandamus directing Canton to fluoridate its water supply, where he had a remedy by way of seeking the statutory fine against the offending municipal officials pursuant to R.C. 6111.30. Similarly, I submit that appellant has a plain and adequate remedy at law through the analogous forfeiture provisions of R.C. 6109.33, which permit for the imposition of significant civil monetary penalties against any person who violates an order of the director. Thus, in my view, R.C. 6109.33 furnishes appellant with an effective means of enforcing the orders of the director. However, the majority assumes that the foregoing civil penalty concept is not an “adequate” remedy. I fail to see how the majority can so readily conclude that a civil penalty is not an effective remedy when the record before us is totally devoid of evidence of any legal proceeding in which a civil penalty was attempted to be imposed on any public official. I cannot conclude that a civil penalty is an inadequate remedy until there is some indication that it has been employed-and found to be ineffective. For all the foregoing reasons, there is no clear legal right for the issuance of this writ and I would accordingly deny it.

+/- City of Canton v. Whitman

Ohio, State police power

• Plaintiff
  City of Canton
• Defendant
  Whitman
• State
  Ohio
• Other Parties
  -
• Case Tags
  - State police power
• Citation
  44 Ohio St. 2d 62; 337 N.E.2d 766 (Ohio 1975)
• Year
  1975-00-00T00:00:00
• Court Name
  Supreme Court of Ohio
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Stern
• Opinion Text
  Syllabus by the Court 1. 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 the state, as well as in municipalities, by the general laws and the Constitution of the state of Ohio. (Kraus v. Cleveland, 163 Ohio St. 559, approved and expanded.) 2. Police and similar regulations adopted under the power of local self-government established by the Constitution of Ohio must yield to general laws of statewide scope and application, and statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations of a municipality adopted in the exercise of its powers of local self-government. (State, ex rel. Klapp, v. Dayton P. & L. Co., 10 Ohio St.2d 14, paragraph one of the syllabus approved and followed.) 3. Legislation enacted by the state pursuant to the police power, in relation to the public health, is valid as applied to the municipal operation of a public utility under Section 4 of Article XVIII of the Ohio Constitution, where such legislation does not interfere with the ownership or operation of the utility. 4. The General Assembly has discretion to enact legislation subject to local option elections by those directly affected, and a local option provision does not violate the requirement of Section 26, Article II of the Ohio Constitution, that all laws of a general nature shall have a uniform operation throughout the state. The city of Canton owns and operates a public waterworks and water supply system. The city does not add fluorides to the water supply and the level of natural fluorides in the water is less than eight tenths milligrams of fluoride per liter, the level of fluoridation required by R.C. 6111.13. On July 1, 1974, the then Ohio Director of Environmental Protection issued an order directing the city to begin fluoridating its water within 30 days. The city appealed to the Environmental Board of Review, which upheld the order. An appeal was taken to the Court of Appeals, which reversed the orders of the Board and the Director, holding that R.C. 6111.13 was not reasonably related to the police power of the state. The cause is now before this court pursuant to an allowance of a motion to certify the record. STERN, Justice. The issue raised in this case is, generally, whether the state may require a municipality to fluoridate a municipally-owned-and-operated water supply, and, specifically, whether R.C. 6111.13, which requires fluoridation, is a valid exercise of the state police power.^FN1 FN1. R.C. 6111.13, as amended by the General Assembly in 1972 (134 Ohio Laws 766), provides in pertinent part: ‘If the natural fluoride content of supplied water of a public water supply and waterworks system is less than eight-tenths milligrams per liter of water, fluoride shall be added to such water to maintain a flouride content of not less than eight-tenths milligrams per liter of water nor more than one and three-tenths milligrams per liter of water beginning: ‘(A) On or before January 1, 1971, for a public water supply and water-works system supplying water to twenty thousand or more persons: ‘(B) On or before January 1, 1972, for a public water supply and water-works system supplying water to five thousand or more persons, but less than twenty thousand persons. A municipal corporation may request the environmental protection agency for reimbursement of the actual cost of acquiring and installing equipment, excluding chemicals added to the water supply, necessary for compliance with division (A) or (B) of this section. The director of environmental protection, upon determination of the necessity of this cost for this purpose, shall order the reimbursement of the municipal corporation for such costs, from funds available to the agency.’ Between 1969 and 1973, R.C. 6111.13 also provided: ‘Within one hundred twenty days after November 17, 1969, a petition may be filed with the board of elections of a county containing a political subdivision served by a public water supply to which fluoride must be added under this section and where fluoride was not regularly added to such water supply prior the filing of such petition, requesting that the issue of adding fluoride to this water supply be placed on the ballot at a special election in the political subdivisions of the county or adjoining counties served by the water supply, to be held on a date specified in the petition, not less than ninety nor more than one hundred twenty days after the date of filing the petition. ‘The petition shall meet the requirements of Section 3501.38 of the Revised Code and, in addition, shall designate the political subdivisions in the county and adjoining counties served by the water supply and shall be signed by not less than ten per cent of the number of electors served by the water supply of each political subdivision who voted for Governor at the last preceding gubernatorial election. The board of elections shall place the issue on the ballot at the special election to be held in the political subdivisions served by the water supply. ‘If a water supply extends into more than one county, the board of elections of the county where the petitions are filed shall, within ten days after such filing, send notice of such filing to all other boards of elections of counties served by the water supply and shall furnish all ballots for the special election. ‘In political subdivisions where only a part of the electors are served by the water supply, only those electors shall be allowed to vote on the issue who sign forms provided by the board of elections stating that they are served by the water supply. The question of adding fluoride to the water supply shall be determined, at this election, by a majority vote of those voting on the issue.’ ‘The latter provisions were repealed in 1973 (135 Ohio Laws 1109), by which time the 120-day period for filing of petitions had expired. The purpose of fluoridation is wellknown. Fluorides help prevent and control the incidence of dental caries. Fluoridation has become a familiar public health measure in the past two decades, and it is beyond questioning a proper subject for legislation pursuant to the police power. Kraus v. Cleveland (1955), 163 Ohio St. 559, 127 N.E.2d 609; Alkire v. Cashman (S.D. Ohio E.D.1972), 350 F.Supp. 360; Dowell v. Tulsa (Okl.1954), 273 P.2d 859; Paduano v. New York (1966), 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339; Annotation, 43 A.L.R.2d 453. In Kraus, supra, we held that a municipality could fluoridate its municipallyowned water supply, as a proper exercise of the police power. Here, the city of Canton does not wish to fluoridate its water, and the issue is whether the state may order the city to do so. The city contends that fluoridation is a matter of local self-government and of the operation of a municipal public utility, matters which are reserved for municipal control under the home-rule provision of the Ohio Constitution. Section 3 of Article XVIII of the Ohio Constitution provides: ‘Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.’ This section, adopted in 1912, preserved the supremacy of the state in matters of ‘police, sanitary and other similar regulations,’ while granting municipalities sovereignty in matters of local self-government, limited only by other constitutional provisions. Municipalities may enact police and similar regulations under their powers of local self-government, but such regulations ‘must yield to general laws of statewide scope and application, and statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations in the exercise by a municipality of the powers of local self-government.’ State, ex rel. Klapp, v. Dayton P. & L. Co. (1967), 10 Ohio St.2d 14, 225 N.E.2d 230 (paragraph one of the syllabus); West Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 205 N.E.2d 382; Cincinnati v. Hoffman (1972), 31 Ohio St.2d 163, 179, 285 N.E.2d 714 (Brown, J., dissenting) ; Leavers v. Canton (1964), 1 Ohio St.2d 33, 37, 203 N.E.2d 354. Matters involving local self-government and those involving the police power often overlap. Even if a matter is of local concern, the local regulation may have significant extraterritorial effects, in which case it properly becomes a matter of statewide concern for the General Assembly. Cleveland Electric Illuminating Co. v. Painesville (1968), 15 Ohio St.2d 125, 239 N.E.2d 75; Beachwood v. Bd. of Elections (1958), 167 Ohio St. 369, 371, 148 N.E.2d 921. Similarly, a matter which relates to exercise of the police power by a municipality, e. g., the appointment of officers to the police force, may essentially be an exercise of local self-government not subject to state authority. State, ex rel. Canada, v. Phillips (1958), 168 Ohio St. 191, 151 N.E.2d 722. The power of local self-government and that of the general police power are constitutional grants of authority equivalent in dignity. A city may not regulate activities outside its borders, and the state may not restrict the exercise of the powers of self-government within a city. The city may exercise the police power within its borders, but the general laws of the state are supreme in the exercise of the police power, regardless of whether the matter is one which might also properly be a subject of municipal legislation. Where there is a direct conflict, the state regulation prevails. The city contends further that the power to fluoridate is a ‘power of local self-government.’ That argument is necessarily rejected by the decision of this court in Kraus v. Cleveland, supra. See, also, Beachwood v. Bd. of Elections, supra. The decision to fluoridate is intrinsically one involving public health. Whether it is decided by an exercise of local self-government is irrelevant, for its validity must depend upon whether it bears a substantial relationship to the public health. In Kraus, the court held that fluoridation is a proper subject for exercise of the police power when enacted by a municipality, and was not ‘in contravention of the general laws in relation to adulteration or the practice of medicine.’ Fluoridation is equally a proper subject for the exercise of the state police power, and a municipal ordinance in contravention of a general state law requiring fluoridation is invalid. The public health is a matter of state as well as local concern ( State, ex rel. Mowrer, v. Underwood (1940), 137 Ohio St. 1, 27 N.E.2d 773; State, ex rel. Cuyahoga Heights, v. Zangerle (1921), 103 Ohio St. 566, 134 N.E. 686), and that concern extends to those ills which affect us individually, as well as those which we transmit to one another. As this court stated in Kraus, supra, 163 Ohio St. at page 562, 127 N.E.2d at page 611: ‘,...An examination shows that 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 veneral 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. ‘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.’ The city of Canton also contends that the fluoridation legislation interferes with the power to own or operate public utilities, granted by Section 4 of Article XVIII. That section reads: ‘Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. ...’ Those rights and privileges are derived directly from the people through the Constitution, and the General Assembly may not impose restrictions upon the power to operate a public utility granted to a municipality under Article XVIII of the Ohio Constitution. State, ex rel. McCann, v. Defiance (1958), 167 Ohio St. 313, 148 N.E.2d 221; Swank v. Shiloh (1957), 166 Ohio St. 415, 143 N.E.2d 586; Euclid v. Camp Wise Assn. (1921), 102 Ohio St. 207, 131 N.E. 349. It may, however, enact legislation under its general police power to protect the public health and safety. State, ex rel. McCann v. Definance, supra; Akron v. Pub. Util. Comm. (1948), 149 Ohio St. 347, 78 N.E.2d 890; Bucyrus v. Dept. of Health (1929), 120 Ohio St. 426, 166 N.E. 370. The ownership and operation of a municipal waterworks is not limited by a state requirement that fluorides be added to the water in the interest of the public health, to any greater degree than by other health and safety requirements affecting the purity of the water or the safety of plant operations. The state, in fact, supplies the equipment necessary to add the fluorides. An exercise of the police power necessarily occasions some interference with other rights, but that exercise is valid if it bears a real and substantial relationship to the public health, safety, morals or general welfare, and if it is not unreasonable or arbitrary. Piqua v. Zimmerlin (1880), 35 Ohio St. 507, 511. Fluoridation is plainly a matter involving the public health; there is no indication that it unreasonably restricts, limits, or otherwise interfers with the operation of a municipal utility. The effect of fluoridating a water supply is a local one, limited to the area served by the system.^FN2 FN2. In the case of a municipal water supply, the area served is not limited by municipal boundaries, for the municipality may sell any amount of its surplus water to other communities. Section 6, Article XVIII of the Ohio Constitution. The local interest in the decision regarding fluoridation is clear, while the interest of the state is not as direct as in the areas of infectious diseases or of pollution. Cf. Bucyrus v. Dept. of Health, supra. However, the mandate of Section 3 of Article XVIII of the Ohio Constitution is that municipal exercise of the police power is valid only insofar as it does not conflict with general state laws, regardless of whether the matter might also be decided locally. In fact, the General Assembly did permit the users of local water supplies to decide whether to fluoridate their water. R.C. 6111.13 contained provisions which authorized a special election to be called within 120 days of the effective date of the legislation, November 17, 1969, by the users of any water supply system which did not then add fluorides. The question of fluoridation would be decided by a majority vote. Thirty-eight such elections were held, and in thirty-six the vote was against fluoridation. No special election was held in the area supplied by the city of Canton waterworks, although fluoridation had previously been rejected in two general elections. The city contends that the local option provision of R.C. 6111.13 prevented that section from being valid as a general law, because its effect was to require some water suppliers to fluoridate, while allowing others, whose users held a referendum, to avoid that requirement. The referendum provisions of R.C. 6111.13 are somewhat unusual, in that they require that the referendum be held, if at all, within 120 days, and require that the voters be only those using the water supply, regardless of the political subdivision in which they might reside. Essentially, however, the provisions are for a local option, and no claim is raised that those provisions are unreasonable. The principle of local options is well-established. It is a legislative deferral to differing local needs and attitudes, a principle which is also embodied in the home-rule provisions. Local option laws are upheld by the great weight of authority ( Locke's Appeal (1873), 72 Pa. 491, 13 Am.Rep. 716; 16 Am.Jur.2d 508; 16 C.J.S. Constitutional Law s 142, p. 680; 79 L.Ed. 562), and their enactment lies within the discretion of the General Assembly. As stated in Stone v. Charlestown (1873), 114 Mass. 214, 221: ‘...In doing so, the Legislature does not, in any sense, delegate its constitutional authority, but, in the exercise of that authority, determines that if the inhabitants of that part of the state to be immediately affected by the proposed change assent to it, public policy requires it to be made, and that, without such assent, the other considerations offered in support of it are not sufficient to justify its adoption by the Legislature. The question whether the act shall take effect at once, or only upon such acceptance by the inhabitants, is within the discretion of the Legislature to determine.’ A local-option law is also not objectionable as not having a uniform operation throughout the state, as required by Section 26 of Article II of the Ohio Constitution. As the court stated in Gordon v. State (1889), 46 Ohio St. 607, 628, 23 N.E. 63, 65 upholding a local option liquor law: ‘...The provisions of the act are bounded only the limits of the state, and uniformity in its operation is not destroyed, stroyed, because the electors in one or more townships may not see fit to avail themselves of its provisions. The act makes no discrimination between localities to the exclusion of any township. Every township in the state comes within the purview of the law, and may have the advantage of its provisions by complying with its terms. The operation of the statute is the same in all parts of the state, under the same circumstances and conditions.’ See, also, Cincinnati W. & Z. R. Co. v. Commrs. of Clinton County (1852), 1 Ohio St. 77. The floridation local option was similarly applied uniformly throughout the state, and made no discrimination between one locality and another. The users of all affected water supply systems were equally permitted to petition for a local option election. For the reasons stated above, we disagree with the holding of the Court of Appeals that the inclusion by the General Assembly of local option provisions rendered the entire statute void because they were not reasonably related to the police power. It is, of course, true that the beneficial effects of fluoridation upon the public health are unrelated to the votes of a majority in any community. Medical research has proven fluoridation effective in reducing dental caries, and communities with fluoridated water will generally have better dental hygiene than those without fluoridation, irrespective of a majority vote. Yet many persons strongly oppose fluoridation for religious and other reasons. Plainly, the General Assembly made a political compromise-it ordered fluoridation, but permitted users of particular water supplies to choose, by local option, to avoid that order under specified conditions. As in Stone v. Charlestown, supra, the Ohio General Assembly determined that ‘if the inhabitants of that part of the state to be immediately affected by the proposed change assent to it, public policy requires it to be made, and that, without such assent, the other considerations offered in support of it are not sufficient to justify its adoption by the... (General Assembly).’ The decision as to whether the benefits to the public health of fluoridation are sufficient to require it for all, notwithstanding the concerted opposition of many individuals, is within the discretion of the General Assembly. So, too, is the decision that those immediately affected by a local fluoridation program should have an option to decide that same question for themselves. For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the orders of the Environmental Board of Review and the Director of Environmental Protection are affirmed. Judgment reversed. C. WILLIAM O'NEILL, C. J., and HERBERT, WILLIAM B. BROWN and PAUL W. BROWN, JJ., concur. J. J. P. CORRIGAN and CELEBREZZE, JJ., dissent.

+/- City of Canton v. Maynard

Ohio

• Plaintiff
  City of Canton, et al.
• Defendant
  Robert H. Maynard, et al.
• State
  Ohio
• Other Parties
  -
• Case Tags
  -
• Citation
  766 F.2d 236 (6th Cir. 1985)
• Year
  1985-00-00T00:00:00
• Court Name
  United States Court of Appeals for the Sixth Circuit
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  PER CURIAM. The appellants seek reversal of the dismissal of their complaint in an action brought under 42 U.S.C. § 1983. The district court found that their cause of action was barred under principles of res judicata and entered judgment for the defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). We affirm. This case is an outgrowth of a long-running battle between the City of Canton and the Ohio Environmental Protection Agency over the fluoridation of Canton's water supply. The Ohio EPA first ordered the city to fluoridate its water supply in 1974. The city appealed this order to the Ohio Supreme Court, which upheld the fluoridation order as a proper exercise of the state's police power. City of Canton v. Whitman, 44 Ohio St.2d 62, 337 N.E.2d 766 (1975), appeal dismissed, 425 U.S. 956, 96 S.Ct. 1735, 48 L.Ed.2d 201 (1976). After further litigation in state court, the city finally began fluoridating its water system in March 1984. In 1983, the city, its mayor, members of its city council, and two residents of the city filed the present action in federal district court claiming that the Ohio EPA was unconstitutionally enforcing the state fluoridation laws. The central theory of the appellant's case is that because the Ohio EPA is not enforcing the fluoridation requirement against cities that opted under Ohio Rev.Code Ann. § 6111.13 (1969) ^FN1 to hold a referendum not to fluoridate their water supplies, the fluoridation requirement is being arbitrarily enforced in violation of the federal equal protection and due process clauses. The district court, applying Ohio law, held that the appellants could have raised this issue in the initial state court litigation and that they were barred under res judicata from raising the claim in a separate federal proceeding. FN1. Ohio Rev.Code Ann. § 6111.13 (1969) was amended in 1969 to require all Ohio cities with population over 5,000 to fluoridate their water supplies by 1972. Act of Aug. 6, 1969, 1969 Ohio Laws 352. The amendments, however, allowed each city to hold a referendum on whether to fluoridate its water within 120 days of the effective date of amendment, which was November 17, 1969. Canton failed to hold such a referendum and was therefore required under the statute to fluoridate its water. The current version of section 6111.13 can be found as Ohio Rev.Code Ann. § 6109.20. The local option provision of the statute was deleted in 1973 as the time period allowed for a local referendum had long since passed. In determining what preclusive effect to give to a prior state court judgment, federal courts must give the same effect to that judgment as would be given it under the law of the state that rendered the judgment. 28 U.S.C. § 1738, Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985); Loudermill v. Cleveland Board of Education, 721 F.2d 550 (6th Cir.1983), aff'd, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The Supreme Court has explicitly applied this rule to actions under section 1983. Allen v. McCurry, 449 U.S. 90, 105, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980); Migra, 104 S.Ct. at 898. As a general proposition of law, there are two branches of res judicata, claim preclusion and issue preclusion. Under the claim preclusion branch, an earlier final judgment on the merits precludes a party from raising an issue in new litigation that should have been advanced in the earlier proceedings. See Migra, 104 S.Ct. at 894 n. 1; Duncan v. Peck, 752 F.2d 1135, 1138 (6th Cir.1985). See generally 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4402 (1981). Under the issue preclusion branch, “parties are precluded from relitigating an issue of law or fact which was necessarily decided in a previous final judgment.” Employees Own Federal Credit Union v. City of Defiance, Ohio, 752 F.2d 243, 245 (6th Cir.1985). By arguing that res judicata should not bar their suit in this case because the equal protection issue was never decided in the state proceedings, the appellants are apparently arguing that only the issue preclusion branch of res judicata, and not the claim preclusion branch, is employed by the Ohio courts. Our review of Ohio law indicates that the Ohio courts have consistently recognized and applied the doctrine of claim preclusion. See generally Migra, 104 S.Ct. at 898-99; Duncan v. Peck, 752 F.2d at 1139-40. In Stromberg v. Board of Education of Bratenahl, 64 Ohio St.2d 98, 100, 413 N.E.2d 1184, 1186 (1980) (per curiam), the Supreme Court of Ohio unequivocally stated that the doctrine of res judicata “applies not only to what was determined but also to every question which might properly have been litigated.” The Supreme Court of Ohio has also clearly indicated that claim preclusion does not only apply to issues that could have been raised by the plaintiff in the prior proceeding but also to issues that could have been raised as defenses to the plaintiff's claim in the earlier case. Johnson's Island, Inc. v. Board of Township Trustees, 69 Ohio St.2d 241, 244-46, 431 N.E.2d 672, 674-75 (1982); Swensen v. Cresop, 28 Ohio St. 668 (1876). See also Francis H. Fisher, Inc. v. Midwesco Enterprise, Inc., 477 F.Supp. 169, 173 (S.D.Ohio 1979). Although claim preclusion is utilized by the Ohio courts, those courts have required that the second suit be between the same parties and involve the same cause of action for res judicata to apply. Norwood v. McDonald, 142 Ohio St. 299, 305, 52 N.E.2d 67, 71 (1943). In this case, there is no doubt that, except for the two private plaintiffs, there is identity of parties with the prior state court proceeding. Thus, the only question is whether the present claim involves the same cause of action as the earlier state court case. This Court, analyzing Ohio law, recently stated that the proper way to determine whether two causes of action are the same is “to consider the facts necessary to sustain the claim.” Duncan v. Peck, 752 F.2d at 1139. See also FDIC v. Eckhardt, 691 F.2d 245, 248 (6th Cir.1982). Applying this standard, we conclude that this cause of action is the same as in the prior state court judgment. In both cases, the only real issue was the enforceability of the Ohio fluoridation legislation to Canton. The equal protection clause argument proffered by the appellants in this case is nothing more than a defense to enforcement of the fluoridation law that could have been raised in state court. The factual issues in the cases are identical; the only question is the legal implication of those facts. Our conclusion is buttressed by two Ohio Supreme Court decisions. In Johnson's Island, Inc. v. Board of Trustees, 64 Ohio St.2d 241, 431 N.E.2d 672 (1982), a landowner brought an action challenging the constitutionality of a zoning law after the law had been enforced against it in a prior state court proceeding. The Supreme Court of Ohio concluded that the landowner was foreclosed from raising this claim because it could have asserted it as a defense to enforcement of the zoning laws in the earlier case. Even more directly on point is City of Cincinnati ex rel. Crotty v. City of Cincinnati, 50 Ohio St.2d 27, 361 N.E.2d 1340 (1977). In Crotty, citizens of Cincinnati brought suit alleging that enforcement ofthe state fluoridation laws violated the first amendment and the equal protection clause. The Ohio Supreme Court found that the suit was barred under res judicata because the constitutional issues could have been raised as defenses in an earlier state court proceeding involving the enforcement of the fluoridation laws against Cincinnati. Thus, we conclude that at least in respect to the City of Canton and its public officials, the district court properly dismissed their complaint. The appellants argue, however, that even if the district court properly granted judgment on res judicata grounds with respect to the city and its officials, judgment should not have been entered against the two private residents of Canton because they were not parties to the prior state court litigation. This argument, however, has been consistently rejected by the Ohio courts which have recognized that a judgment “against a governmental body is binding and conclusive as res judicata on all residents, citizens and taxpayers with respect to matters adjudicated which are of general and public interest.” Stromberg, 64 Ohio St.2d at 101, 413 N.E.2d at 1186; City of Cincinnati ex rel. Crotty, 50 Ohio St.2d at 28; 361 N.E.2d at 1341. Thus, the district court also properly dismissed the complaint of the private residents. Finally, the appellants argue that the factual circumstances have changed since the earlier state court proceeding so that application of res judicata to their present claim was improper. We find no merit in this argument. The local option provision under which a number of Ohio cities exempted themselves from the state fluoridation requirements was passed in 1969, and the city was well aware of the option in the prior state court proceeding. In fact, the Ohio Supreme Court explicitly upheld the local option against a state equal protection challenge in the earlier litigation. City of Canton v. Whitman, 44 Ohio St.2d at 70, 337 N.E.2d at 772. Thus, the factual basis for the appellant's present constitutional challenge was easily discernible in the earlier litigation, and no significant new facts have been alleged that would entitle the appellants to avoid the effect of res judicata. The judgment of the district court is affirmed.

+/- Crotty v. City of Cincinnati

Ohio, Unnecessary Unsafe & Wasteful

• Plaintiff
  Crotty
• Defendant
  City of Cincinnati
• State
  Ohio
• Other Parties
  -
• Case Tags
  - Unnecessary Unsafe & Wasteful
• Citation
  50 Ohio St. 2d 27; 361 N.E.2d 1340 (Ohio 1977)
• Year
  1977-00-00T00:00:00
• Court Name
  Supreme Court of Ohio, First Appellate District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  On November 19, 1975, this court decided the case of Cincinnati v. Whitman, 44 Ohio St.2d 58, 337 N.E.2d 773, affirming an order by the Ohio Director of Environmental Protection directing the city of Cincinnati, a respondent herein, to add fluoride to its water supply system, and decided further the case of Canton v. Whitman, 44 Ohio St.2d 62, 337 N.E.2d 766, which held generally that statutes requiring fluoridation of municipal water supplies are valid as an exercise of the state police power. On February 26, 1976, the relators, as taxpayers and water users of the city of Cincinnati, filed a complaint in the Court of Common Pleas, pursuant to R.C. 733.59, alleging that the respondents' contemplated addition of fluoride to the drinking water of the city as directed in the order affirmed in Cincinnati v. Whitman, supra, would deprive relators of certain constitutional rights. Relators sought, inter alia, temporary and permanent injunctions barring the addition of fluoride to the city's water supply, and sought, further, declaratory judgments that such addition constitutes a violation of due process, an interference by the state with relators' free exercise of religion, and a violation of equal protection. Appended to the complaint were affidavits asserting that the sodium fluoride to be added to the water is a carcinogen. The court allowed a temporary restraining order to prevent the respondents from taking any action which would result in the addition of fluorides to the water. On March 5, 1976, the respondents moved to dismiss the complaint on the grounds that the court lacked jurisdiction over both the subject matter and the persons of the respondents and that the complaint failed to state a cause of action upon which relief could be granted. The trial court found that the relators were not entitled to any relief and dismissed the complaint. The Court of Appeals reversed and remanded the cause to the trial court for further proceedings. A motion to certify the record was granted by this court upon the sole issue of the jurisdiction of the trial court to hear the complaint and the applicability of Canton v. Whitman, supra. PER CURIAM. It is a generally accepted rule that in absence of fraud or collusion, a judgment for or against a governmental body, such as a municipal corporation, is binding and conclusive as res judicata on all residents, citizens and taxpayers with respect to matters adjudicated which are of general and public interest,^FN1 except where the proceedings were not of an adversary character.^FN2 This rule is in accordance with the general policy favoring finality of judgments where a matter has been litigated upon the merits. Where, as here, the case involves a single cause of action, the prior judgment is conclusive not only as to what was determined in the prior action, but also as to all material facts or questions which properly might have been litigated in the case.^FN3 The claims that fluoridation infringes upon religious freedom and upon equal protection are matters which properly could have been litigated in the prior action and which also were dismissed by this court in Canton v. Whitman, supra (44 Ohio St.2d 62, 337 N.E.2d 766), and Kraus v. Cleveland (1955), 163 Ohio St. 559, 127 N.E.2d 609. FN1. Thoms v. Greenwood (1878), 6 Ohio Dec.Rep. 639, affirmed 3 W.L.B. 1057; Cincinnati Union Stock Yards Co. v. Cincinnati (1913), 1 Ohio App. 452; Griffin v. Roseburg (1970), 255 Or. 103, 464 P.2d 691; Greenberg v. Chicago (1912), 256 Ill. 213, 99 N.E. 1039; 1 Freeman on Judgments 956 (5 Ed.1925); 50 C.J.S. Judgments s 796, pp. 337-40; 46 American Jurisprudence 2d 742. FN2. Lakewood v. Rees (1937), 132 Ohio St. 399, 8 N.E.2d 250. FN3. Schimke v. Earley (1962), 173 Ohio St. 521, 184 N.E.2d 209; Quinn v. State ex rel. Leroy (1928), 118 Ohio St. 48, 160 N.E. 453. A more difficult question is raised by the claim that fluoride is a carcinogen based on statistics that the cancer death rate has increased in certain cities with fluoridated water, while remaining the same in certain other cities which do not fluoridate. The evidence for this claim has not been tested by litigation and is disputed by other authorities. This evidence has also been submitted to federal agencies and to the Congress.^FN4 If scientifically proved, these claims could raise legitimate questions as to the constitutionality of fluoridation as a public health measure, and, since these claims are based upon very recent studies, the purposes underlying the principle of res judicata would probably not be served by barring litigation to determine the validity of the claims. However, in the present cause, the complaint was properly dismissed by the Court of Common Pleas for a different reason. FN4. Congressional Record, Dec. 16, 1975, Page H12732; Hearings before a Subcommittee of the Committee on Appropriations House of Representatives, Ninety-Fourth Congress, Second Session, Part 7, pages 1018-21 and 1063-70 (1976). The claim which was presented is in actual effect a claim that the order of the Director of Environmental Protection, affirmed in Cincinnati v. Whitman, supra, should now be reversed because the presence of fluorides in public water supplies is a danger to health. Under R.C. 6111.12, the statutory procedure for claims that a public water supply is impure and dangerous to health is by complaint to the Environmental Protection Agency. Further, under R.C. 3745.04, an appeal ‘for an order vacating or modifying the action of the Director of Environmental Protection’ may be brought before the Environmental Board of Review and ‘the Environmental Board of Review has exclusive original jurisdiction over any matter which may, under (R.C. 3745.04), be brought before it.’ Appeal thereafter may be taken only ‘to the Court of Appeals of Franklin County, or, if the appeal arises from the alleged violation of a law or regulation, to the Court of Appeals of the district in which the violation was alleged to have occurred.’ R.C. 3745.06. It is apparent that this statutory scheme for review of actions by the Director of Environmental Protection is exclusive, and that the Court of Common Pleas of Hamilton County accordingly lacked jurisdiction over the complaint at bar, which seeks to have an order issued by the director set aside. For that reason, the complaint was properly dismissed by the trial court, and the judgment of the Court of Appeals must be reversed. Judgment reversed. C. WILLIAM O'NEILL, C. J., and HERBERT, STERN, SWEENEY and LOCHER, JJ., concur. CELEBREZZE and WILLIAM B. BROWN, JJ., dissent. STERN, J., retired, assigned to active duty under authority of Section 6(C), Article IV, Constitution, sitting for PAUL W. BROWN, J.

+/- Kraus v. City of Cleveland

Ohio, Unlicensed Practice of Medicine/Compulsory Medication, State police power, First Amendment

• Plaintiff
  Kraus
• Defendant
  City of Cleveland, et al.
• State
  Ohio
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - State police power

  - First Amendment
• Citation
  163 Ohio St. 559; 127 N.E.2d 609 (Ohio 1955)
• Year
  1955-00-00T00:00:00
• Court Name
  Supreme Court of Ohio
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Matthias J
• Opinion Text
  Syllabus by the Court. 1.   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 the general laws and the Constitution of the state of Ohio. 2.   The enactment of legislation by the city council of Cleveland providing for fluoridation of the Cleveland water supply, by the introduction of inorganic fluoride chemicals therein, constitutes neither an infringement of the constitutional liberties of the citizens of such municipality nor an exercise of power in contravention of the general laws in relation to adulteration or the practice of medicine. The city of Cleveland owns and operates a municipal water department which supplies water to the inhabitants of said city and surrounding territory. After public hearings thereon, certain ordinances and resolutions were passed and adopted providing for the floridation of such water, for the purpose of preventing dental caries. Whereupon the plaintiff, appellant herein, brought a taxpayer's action, seeking a permanent injunction restraining the city and others, appellees herein, from expending money for the fluoridation of the water and from entering into any contracts therefor, to declare the resolutions and ordinances unconstitutional and void and to declare void any contract already entered into. It is unnecessary to make and extensive review of the evidence before the trial court. It consists of testimony and exhibits as to the value and effect of fluoridation as a preventive of dental caries. MATTHIAS, Judge. Essentially, the plaintiff attacks the legislation on two grounds, first, that it infringes upon certain of his fundamental liberties, and, second, that it conflicts with certain statutes of the state and is beyond any power granted to municipalities by the laws and the Constitution of Ohio. The police power is vested in municipalities by Section 3, Article 18 of the Ohio Constitution, which is as follows: ‘Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.’ By Sections 3616 and 3646, General Code, Section 715.37, Revised Code, municipal corporations are authorized ‘to provide for the public health.’ The basic question presented by this case is whether a municipality has the authority under its police power, in relation to public health, to add inorganic fluoride chemicals to its water supply, where such addition will not and is not intended to have any effect on the potability, palatability or purity of such drinking water but has for its sole purpose the prevention of dental caries. The plaintiff contends that the prevention or treatment of diseases of the teeth is a matter of private health and not of public health, and that the addition of fluoride chemicals to the water supply constitutes an invasion of his constitutional liberties to treat his health as he deems best, his right as a parent to safeguard the health of his children as he deems best, his right to be free from medical experimentations and his right of freedom of religion. The personal liberties granted by the Constitution, although broad and on the whole inviolate, are nevertheless subject to certain qualifications and restraints and are generally held to be subject to a valid exercise of the police power. The Supreme Court of the United States in discussing constitutional liberties has said: ‘Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.’ Chicago, Burlington & Quincy Rd. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 262, 55 L.Ed. 328. The Supreme Court of the United States in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 26, 25 S.Ct. 358, 361, 49 L.Ed. 643, in holding a compulsory vaccination statute constitutional, said in regard to constitutional liberties: ‘The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. 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. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’' The plaintiff, while admitting that personal liberties are not wholly free from restraint, contends that, for a valid exercise of the police power on the basis of public health, the subject matter of the regulation must relate to contagious or infections diseases, and that there must exist an overriding necessity. In regard to this, it is sufficient to say there is no foundation in law for such a premise. An examination shows that 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. 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. In Kaul v. City of Chehalis, Wash., 277 P.2d 352, 354, the Supreme Court of Washington, in a decision upholding fluoridation legislation, said: ‘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 considering the same subject, the Supreme Court of Louisiana, in Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, 145, said: ‘The appellees insist, and the district judge concluded, that fluoridation of the water to prevent tooth decay is not a matter of public health, but a matter of private health and hygiene. The evidence in this record refutes overwhelmingly this conclusion. Dental caries is one of the most serious health problems in the City of Shreveport, and in the nation as well. The fact that it is not a communicable disease and one that can cause an epidemic does not detract from its seriousness as affecting the health and well-being of the community. The plan for fluoridation, therefore, bears a reasonable relation to the general welfare and the general health of the community, and is a valid exercise of the power conferred by Section 2.01 of the charter if it is not arbitrary or unreasonable.’ 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, is 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. It 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. In Chapman v. City of Shreveport, supra, 74 So.2d 145, the court answers that argument, as follows: ‘Although the immediate purpose of the proposed fluoridation is to retard and decrease the disease of dental caries in young children, the protection thus given will continue well into adult life. Not only will the proposed fluoridation retard and reduce this disease in the generation of children presently in Shreveport, but its effect will continue into their adult life, and consequently the proposed measure will ultimately be beneficial to all the residents of the city. ‘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 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. Children of today are adult citizens of tomorrow, upon whose shoulders will fall the responsibilities and duties of maintaining our government and society. Any legislation, therefore, which will better equip them, by retarding or reducing the prevalence of disease, is of great importance and beneficial to all citizens. In our opinion the legislation does bear a reasonable relation to public health.’ 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. Plaintiff's argument that fluoridation constitutes mass medication, the unlawful practice of medicine and adulteration may be answered as a whole. Clearly, the addition of fluorides to the water supply does not violate such principles any more than the chlorination of water, which has been held valid many times. It was said in Dowell v. City of Tulsa, supra, 273 P.2d 864: ‘Plaintiffs do not elaborate on their contention that Ordinance 6565 is in violation of the ‘free exercise’ of religion, which, in the First Amendment of the United States Constitution, Congress is forbidden to prohibit, but we assume this is based on the hypothesis that the fluoridation prescribed in the Ordinance is a form of ‘medication’ or ‘medical treatment’ forbidden by the tenets of one or more well-known churches or religious sects. This argument is closely allied to one phase of the plaintiffs' ‘proposition 4’ to the effect that fluoridation is treatment of a disease and therefore that the Ordinance constitutes the unlicensed practice of medicine as defined and forbidden in Title 59 O.S.1951 §§ 495b and 497. To what was said concerning a similar argument in De Aryan v. Butler, supra [119 Cal.App.2d 674, 260 P.2d 98], which we hereby approve and adopt, we wish to add our opinion that 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.' To summarize: I. Although dental caries does not constitute a contagious or infectious disease, it is a disease so common and so widespread that it is a proper subject, in relation to public health, for a municipal corporation to act upon in the exercise of the police power. II. The introduction of inorganic fluoride chemicals in its municipal drinking water does not constitute an infringement of the constitutional liberties of the citizens of such municipality or an exercise of power in contravention of the general laws in relation to adulteration or practice of medicine. The judgment of the Court of Appeals is affirmed. Judgment affirmed. WEYGANDT, C. J., and HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.

+/- State ex rel. Lehmann v. Cmich

Ohio

• Plaintiff
  Lehmann
• Defendant
  Cmich
• State
  Ohio
• Other Parties
  -
• Case Tags
  -
• Citation
  23 Ohio St. 2d 11; 260 N.E.2d 835 (Ohio 1970)
• Year
  1970-00-00T00:00:00
• Court Name
  Supreme Court of Ohio
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  Respondents demur to the amended petition, alleging that relator has an adequate remedy in the ordinary course of law and that the petition does not state facts which show a cause of action. PER CURIAM. It has long been the law of this state that the conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be authorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy. State ex rel. Caley v. Tax Comm. of Ohio. 129 Ohio St. 83, at 87, 193 N.E. 751. Relator, in his amended petition, admits that the city of Canton supplies water to more than 20,000 persons and that R.C. s 6111.13 requires the city to fluoridate its water by January 1, 1971. R.C. s 6111.13 requires respondents to perform a purely ministerial or administrative duty. Respondents are unable to exercise any discretion, except to vary, within narrow statutory limits, the amount of fluorides to be added to the water supply (to be determined by the amount naturally in the water), and the date (prior to January 1, 1971), for implementing fluoridation. Since R.C. s 6111.13 allows no exercise of judicial or quasi-judicial discretion by respondents, they are not ‘about to exercise judicial or quasi-judicial power.’ Furthermore, a writ of prohibition will not issue where there is an adequate remedy at law. State ex rel. Stefanick v. Municipal Court of Marietta, 21 Ohio St. 2d 102, at 104, 255 N.E.2d 634. The demurrer is sustained and the writ is denied. Writ denied. O'NEILL, C. J., and LEACH, SCHNEIDER, HERBERT, DUNCAN and CORRIGAN, JJ., concur. LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.

+/- Yiamouyiannis v. Chemical Abstracts Service

Ohio

• Plaintiff
  John Yiamouyiannis
• Defendant
  Chemical Abstracts Service, et al.
• State
  Ohio
• Other Parties
  -
• Case Tags
  -
• Citation
  578 F.2d 164 (6th Cir. 1989)
• Year
  1978-00-00T00:00:00
• Court Name
  United States Court of Appeals for the Sixth Circuit
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  PER CURIAM. In this case, after the District Court granted motions for summary judgment in favor of all defendants, this court reversed in part and remanded for a District Court hearing on two fact problems. We said: The District Court has jurisdiction of this action under 28 U.S.C. s 1331 (1970). See also Bell v. Hood, 327 U.S. 678 (66 S.Ct. 773, 90 L.Ed. 939) (1946). We believe the complaint states a cause of action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (91 S.Ct. 1999, 29 L.Ed.2d 619) (1971). We recognize that Bivens dealt with a Fourth Amendment violation, but its logic appears to us to be equally applicable to a First Amendment violation. See generally Moore v. Koelzer, 457 F.2d 892 (3d Cir. 1972); States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974). Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392, 1393 (6th Cir. 1975). As an instruction to the District Court as to which fact issues to try, we said: Fundamental to appellant's cause of action, of course, is proof that his discharge was state action. In this regard appellant contends (and appellee denies) that CAS is federally funded to the extent that his discharge must be regarded as governmental action. Alternatively appellant contends (and appellee denies) that the HEW exerted financial pressure upon CAS to silence or fire appellant. These assertions and denials pose questions of fact upon which findings must be made. If these questions are answered favorably to appellant, there must also be a finding of fact as to whether appellant was, in practical effect, discharged or whether, as appellee contends, he resigned voluntarily. Id. at 1393. On remand it appears that the District Judge conducted an evidentiary hearing limited to the state action question. The appeal currently before this court as to the issue of state action relies solely upon the fact that Chemical Abstracts Service has a charter from the federal government. We must therefore assume that no evidence, or insufficient evidence, was presented on the fact questions which we identified in our previous consideration of this case. The District Judge held that the chartering by Congress of this corporation was insufficient to establish state action, and again dismissed the complaint. The fact that Congress has seen fit to charter an organization otherwise private in character does not, by the mere fact of chartering, render the action of the officers of that organization “state action.” This court previously passed on this question in Northrip v. Federal National Mortgage Assn., 527 F.2d 23 (6th Cir. 1975). See also Stearns v. Veterans of Foreign Wars, 394 F.Supp. 138 (D.D.C.1975), aff'd mem., 174 U.S.App.D.C. 78, 527 F.2d 1387, cert. denied, 429 U.S. 822, 97 S.Ct. 72, 50 L.Ed.2d 83 (1976). We have considered appellant's reliance upon McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), but do not find that it is applicable to either the facts or legal argument in our instant case. The judgment of the District Court is affirmed.

+/- Dowell v. City of Tulsa

Oklahoma, Unlicensed Practice of Medicine/Compulsory Medication, State police power, First Amendment

• Plaintiff
  Dowell
• Defendant
  City of Tulsa
• State
  Oklahoma
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - State police power

  - First Amendment
• Citation
  273 P.2d 859; 43 A.L.R. 2d 445 (Okla. 1954)
• Year
  1954-00-00T00:00:00
• Court Name
  Supreme Court of Oklahoma
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Blackbird
• Opinion Text
  BLACKBIRD, Justice. Plaintiffs in error commenced the present action, as plaintiffs, to enjoin defendants in error, as defendants, from enforcing and/or complying with Ordinance No. 6565, passed by the Board of Commissioners of the City of Tulsa, on March 3, 1953, authorizing fluoridation of said city's water supply by its Water Department and Commissioner of Waterworks and Sewerage. The purpose of such fluoridation, as indicated in the ordinance, was ‘to aid in the control of dental caries' (tooth decay), and by reason of the emergency therein declared to exist for ‘preservation of the public peace, health and safety’, it was provided by Section 4 thereof that the ordinance would become effective upon its passage, approval and publication. The parties appear here in the same order as they appeared in the trial court, and they will be referred to by their trial designations. Plaintiffs are individual taxpayers of the city. Their effort to enjoin the enforcement of the Ordinance was based upon the alleged ground that it is invalid. The only alleged reasons for such invalidity which they apparently urged are that (1) the ordinance constitutes an ‘unwarranted exercise of police power’ in violation of the Fourteenth Amendment of the U. S. Constitution; (2) that it is an exercise of power beyond that delegated to the city by the State Legislature; (3) it violates the U. S. Constitution's First Amendment concerning freedom of religion; and (4) it violates Title 63 O.S.1951 § 196 forbidding the manufacture and sale of ‘food’ to which ‘fluorine compounds' have been added as the term ‘food’ is defined in Section 183 to include ‘articles of food, meat, drin...beverage... .’ After a trial at which plaintiffs introduced no evidence, but entered into a stipulation with defendants as to certain facts, the court made specific findings against plaintiffs on all of the issues above described and entered judgment denying them the injunction. From said judgment they have lodged this appeal. With apparent reference to (1) and (3) above, plaintiffs contend under the first two propositions formulated in their briefs that our State Legislature has never established a policy of attempting to regulate or control any disease except those that are ‘contagious, infectious or dangerous;’ and that it could not constitutionally do so. In denying the first part of this contention, defendants point to various statutes enacted by the Oklahoma Legislature, particularly sections appearing under Title 63 O.S.1951, which they say plainly show that its policy in matters of public health and welfare has never been confined to seeking control, regulation and prevention of contagious, infectious, or dangerous diseases. Among these are provisions for safeguards pertaining to bedding and the germicidal treatment of secondhand materials, Section 51 et seq.; provisions requiring the injection of ‘nitrate of silver or other proven antiseptic’ into the eyes of newborn infants, for their protection against ‘Inflammation of the eyes...’ (ophthalma neonatorum), Sections 71-77, incl.; those pertaining to the regulation of milk production and marketing, Section 295 et seq.; and of hotels, etc., Section 331 et seq.; to the regulation of bakeries and other foodstuff factories, Section 151; to the regulation of bottling works, Section 27 et seq.; to the Section, 296.2, specifying the vitamin and mineral requirement for flour; and to the statutes creating the State Board of Health, Tit. 63 O.S.1951 § 1.1, and creating in the State Health Department a division to be known as the “Division of Preventive Dentistry.” Tit. 63 O.S.1951 § 41. In fact, it was apparently in conformity with the provisions of the latter section that said State Department made its study of the fluoridation of public water supplies for controlling dental caries and promulgated certain rules and recommendations, or a policy to govern it in assisting municipalities considering such projects. A written statement of these was introduced in evidence as Defendants' Exhibit 3, and the parties' stipulation of facts as well as Ordinance No. 6565 shows that these recommendations were considered and were to be followed in the fluoridation of the water supply contemplated in the ordinance in accord with certain rules, standards and prerequisites (unnecessary here to set forth) prescribed by the State Board. In view of the broad terms in which our Legislature has spoken on the subject we cannot believe that it has intended to restrict its enactment of measures designed to promote the public health and welfare to those designed to prevent the spread of infections, contagious or dangerous diseases. We think the mere reading of the statutes herein cited and others enacted by our Legislature is sufficient to show that it has not so restricted its policy, and that it has chosen to make many minimum requirements with reference to food, lodging and a myriad of subjects connected with the public health and/or welfare that have no direct connection with or relation to infectious, contagious or dangerous diseases. The next question then is: Recognizing that such a thing is not against public policy as declared by our Legislature, can the police power delegated to a city by the Legislature be exercised to the extent of what in practical analysis amounts to a compulsory measure requiring people of the city to use or pay for water that is fluoridated in order to control a physical characteristic or weakness which is not an infectious, contagious or dangerous disease? Plaintiffs say that it cannot-that under the guarantees of freedom contained in the 1st and 14th Amendments to the U. S. Constitution the citizens of Tulsa have a right to be furnished city water not ‘medicated’ or treated with fluorides. We do not agree. The tests by which such matters are to be governed in two of the cases quoting or expressing them in verbage most favorable to plaintiffs are Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 501, 38 L.Ed. 385, and Bowes v. City of Aberdeen, 58 Wash. 535, 542, 109 P. 369, 372, 30 L.R.A.,N.S., 709. In the first of these it is said: ‘To justify the state in thus interposing its authority in behalf of the public, it must appear-First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.’ In the Washington case, it was said: “The questions which present themselves in the examination of a safety or health measure are: Does a danger exist? Is it of sufficient magnitude? Does it concern the public? Does the proposed measure tend to remove it? Is the restraint or requirement in proportion to the danger? Is it possible to secure the object sought without impairing essential rights and principles? Does the choice of a particular measure show that some other interest than safety or health was the actual motive of the Legislature?” In suggesting negative answers to the above-quoted questions when propounded about Ordinance 6565, it seems to be plaintiffs' position that (1) since it is not contended that Tulsa's water is not pure, or that unless treated with fluorides it will tend to spread contagious disease or that an epidemic of an infectious or dangerous disease is threatened or imminent unless said water is so treated, the exercise of the police power to the extent of interfering with Tulsa citizens' freedom to purchase and use its water without such treatment cannot be justified; that (2) since the only direct evidence on the matter went no further than showing that drinking fluoridated water reduces caries in the lower-age group of minor persons, such treatment could not be justified as a measure to improve the health or welfare of the public generally; (3) that the evidence tended to show that the same object could be attained by leaving to individuals the treatment of their own drinking water with fluorides on an individual and voluntary basis, as could be attained by requiring the wholesale treatment of the City's entire water supply and therefore that the latter is not ‘reasonably necessary’ to attain that end, thus belying the Ordinance's announced representation or misrepresentation that it is necessary to preservation of the public health and safety. We do not find any of these arguments tenable for the reasons hereinafter set forth. While most of the reported cases that have arisen in the past involved the so-called ‘purity’ or ‘purification’ of municipal water supplies and the regulations upheld with reference thereto were designed to prevent contamination or pollution with consequent epidemics or spread or disease, notice Annotations, 6 A.L.R. 228, and 8 A.L.R. 673; 23 A.L.R. 228; 72 A.L.R. 673, 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. See Blue v. Beach, 155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64; and the Annotations thereto, at 80 Am.St.Rep. 212; 25 Am.Jur., ‘Health’, Secs. 21 and 25, inclusive; 56 Am.Jur. ‘Water Works', Sec. 76. 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. See McQuillin, Municipal Corporations (3d Ed.), Vol. 7, Sec. 24.224. As said in 11 Am.Jur., ‘Constitutional Law’, Sec. 271, at page 1023: ‘The protection of the public health and safety is the basis of much valid regulation over persons. This broad field includes not only legislation relating to the prevention and curtailment of disease through quarantine, when not in conflict with Federal regulations on the subject, vaccination, and segregation in special hospitals of persons suffering from contagious and infectious illnesses, but also measures relating to eugenics and the maintenance of a healthy, normal, and socially sound populace.’ As knowledge in both the medical and dental fields has increased, the subject of health in both of these spheres has become more important, and modern experience shows that private convenience and individual freedom of action are required to yield to the public good in instances where formerly there was observed no necessity for legislative interference. See Territory v. Hop Kee, 21 How. 206, Ann.Cas.1915D, 1082, and other authorities cited in notes to 37 Am.Jur., ‘Municipal Corporations', Secs. 286 and 288. No principle is better established in our system of jurisprudence than the one that “Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations ...imposed in the interests of the community.” Chicago, B. & O. R. Co. v. McGuire, 219 U.S. 549, 565, 31 S.Ct. 259, 55 L.Ed. 328, as quoted in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 582, 81 L.Ed. 703, 108 A.L.R. 1330. 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 of principle between it and compulsory vaccination or inoculation, which, for many years, has been well-established as a valid exercise of police power. See Blue v. Beach and other authorities cited, supra, as well as the Annotations at 93 A.L.R. 1434. See also De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, in which some of the same arguments made here were made and rejected concerning the fluoridation of the water supply of the City of San Diego, California. While the evidence in the present case did not purport to establish fluoridation as a remedy or prevention for any specific contagious disease, it did show, without contradiction, that it will materially reduce the incidence of caries in youth. The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice. Accordingly, we hold that in establishing the fluoridation prescribed by Ordinance 6565, as effective to reduce dental caries, the evidence also sufficiently established it as a health measure to be a proper subject for exercise of the police power possessed by the City of Tulsa. We now come to plaintiffs' argument that fluoridation of Tulsa's water supply cannot be justified as a public health measure because the evidence went no further than establishing it as an aid to the prevention of caries in persons under sisteen years of age, and tended to show that consumption of such water is of no benefit to older persons. The evidence did not reveal what proportion of Tulsa's population is under sixteen years of age, but under our view this was not necessary. When it is borne in mind that the children and youth of today are the adult citizens of tomorrow, and that this one segment of the population unquestionably benefitted by the drinking of fluoridated water now, will in a few years comprise all or a very large percentage of Tulsa's population; and it is further realized that reducing the incidence of dental caries in children will also benefit their parents, the fallacy of plaintiffs' argument is manifest. We think the uncontradicted testimony of Dr. Paul Haney, Superintendent of Health for the City and County of Tulsa, who was the only witness used at the trial, is sufficient answer to plaintiffs' claim that on the basis of the evidence, the same benefits to be obtained from fluoridation of said city's water supply could be obtained by leaving individuals to fluoridate their own water on a voluntary basis. Dr. Haney's testimony shows not only that the treatment of drinking water by individuals not directly under the supervision of health authorities or as prescribed by a private physician (whose services many families would be financially unable to employ) may be dangerous, but also that it is necessary that all or nearly all of the water consumed by children in the age group involved be fluoridated over a period of years in order for them to obtain the benefits of such process. He explained that such total consumption would not be likely to occur in children of school age, if the fluoridation was left to be done individually or in their homes, because they are at school or away from home much of the time. Plaintiffs do not elaborate on their contention that Ordinance 6565 is in violation of the ‘free exercise’ of religion, which, in the First Amendment of the United States Constitution, Congress is forbidden to prohibit, but we assume this is based on the hypothesis that the fluoridation prescribed in the Ordinance is a form of ‘medication’ or ‘medical treatment’ forbidden by the tenets of one or more well-known churches or religious sects. This argument is closely allied to one phase of the plaintiffs' ‘Proposition 4’ to the effect that fluoridation is treatment of a disease and therefore that the Ordinance constitutes the unlicensed practice of medicine as defined and forbidden in Title 59 O.S.1951 §§ 495b and 497. To what was said concerning a similar argument in De Aryan v. Butler, supra, which we hereby approve and adopt, we wish to add our opinion that 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. This conclusion also disposes of the contention that the Ordinance constitutes a violation of Title 59 O.S.1951 §§ 273 and 333, wherein plaintiffs employ what a California Judge is said to have termed an ‘over-refinement’ in the application of definitions to facts. With reference to plaintiffs' contention that the proposed fluoridation violates Title 63 O.S.1951 § 196, forbidding, among other things, the manufacture and sale of food to which ‘fluorine compounds' have been added, defendants say that said Section, which was a part of the Pure Food and Drug Act passed in 1910, was repealed by implication in the Oklahoma Food Act passed in 1949, Title 63 O.S.1951 §§ 180.1-180.19, incl. No cases are cited on either side of this argument and we think defendants' contention goes too far. However, it must be noted that despite the prohibition against the addition of certain named acids and other substances included with ‘fluorine compounds' in Section 196, supra, some of which must certainly be deemed ‘poisonous or deleterious substances' (as defined by Webster's Dictionary), Section 180.13 referring to the addition of such substances to foods, provides that when it is necessary to use them, this can be done under reasonable rules and regulations promulgated by the Board of Health. It would thus appear that even though the latter section might not accurately be said to entirely repeal the former section by implication, it cannot be doubted that in practical operation and effect it modifies it to a certain extent; and we so hold. It therefore follows that since the Board of Health has promulgated rules and regulations prescribing the amount of, and manner in which, fluorides can be added to a city water supply, and the ordinance in question plainly provides that such rules and regulations be complied with, we do not think the fluoridation involved herein can correctly be considered a violation of Section 196, supra, when construed in the light of, and as its application is modified or limited by, Section 180.13, supra. Since the filing of the original briefs in the present case, an Ohio Court has reached similar conclusions on the same questions involved herein and similar ones in the Case of Kraus v. City of Cleveland, Ohio Com.Pl., 116 N.E.2d 779. As no ground for reversal has been found in any of the arguments advanced by plaintiffs, the judgment of the trial court is hereby affirmed.

+/- 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.

+/- Burt v. Blumenauer

Oregon, Petitions Initiatives & Re-votes

• Plaintiff
  Burt
• Defendant
  Blumenauer, et al.
• State
  Oregon
• Other Parties
  -
• Case Tags
  - Petitions Initiatives & Re-votes
• Citation
  65 Ore. App. 399; 672 P.2d 51 (Or. Ct. App. 1983)
• Year
  1983-00-00T00:00:00
• Court Name
  Court of Appeals of Oregon
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  WARDEN, Judge. This is an action brought under ORS 294.100, which reads in pertinent part: “(1) It is unlawful for any public official to expend any money in excess of the amounts, or for any other or different purpose than provided by law. “(2) Any public official who expends any public money in excess of the amounts, or for any other or different purpose or purposes than authorized by law, shall be civilly liable for the return of the money by suit of the district attorney of the district where the offense is committed, or at the suit of any taxpayer of such district.” Also pertinent is ORS 260.432, which reads in part: “(1) No person shall attempt to, or actually, coerce, command or require a public employe to influence or give money, service or other thing of value to aid, promote or oppose any political committee or to aid, promote or oppose the nomination or election of a candidate, the adoption of a measure or the recall of a public office holder. “(2) No public employe shall solicit any money, influence, service or other thing of value or otherwise aid or promote any political committee or aid, promote or oppose the nomination or election of a candidate, the adoption of a measure or the recall of a public office holder while on the job during working hours. However, this section does not restrict the right of a public employe to express personal political views.”^FN1 (Emphasis supplied.) FN1. A violation may result in a civil penalty of $100. ORS 260.432(4). “Measure” is defined in ORS 260.005(8); opposition to or promotion of a ballot measure has been included in the statute since 1979. Or.Laws 1979, ch. 190, § 372. Defendants are the Multnomah County Dental Health Officer (Isman), the director of the Multnomah County Department of Human Resources (Lawrence), the Multnomah County Executive (Clark) and three of Multnomah County's five commissioners (Blumenauer, McCoy and Buchanan). Plaintiff, a Multnomah County taxpayer, contends that defendants violated ORS 260.432, and thereby ORS 294.100, when they spent county funds (received as part of a federal grant) and directed county employes to spend county time in a “fluoridation public information project,” preceding a vote on an anti-fluoridation measure on the City of Portland ballot. Plaintiff sought to require defendants to repay $7,040.10 to Multnomah County and $13,974.62 to the Center for Disease Control of United States Department of Health, Education and Welfare. Both plaintiff and defendants moved for summary judgment; the trial court entered judgment in favor of defendants, finding as a matter of law that the fluoridation information project was not political activity, and plaintiff appeals. We reverse and remand. On August 28, 1979, the City of Portland announced that the anti-fluoridation measure^FN2 had qualified, via initiative petition, to appear on the May 20, 1980, primary election ballot. The ballot measure was to be entitled, “Eliminates Mandatory Fluoridation of City Water.” On February 21, 1980, defendant Isman applied for a federal grant from the Public Health Service unit of the United States Department of Health, Education and Welfare. ^FN3Defendant Clark was specified as the “certifying representative” on the grant application form. The grant application requested $55,573 of federal funds, to be matched by $38,573 from the county, to establish a “Fluoridation Public Information Project.” The county's contribution was to be in the form of time and service of 17 county employes, including Isman, ^FN4under the ultimate supervision of defendant Lawrence. FN2. In 1978, the voters of the City of Portland approved a city charter amendment allowing fluoridation of the city's water supply. The 1980 anti-fluoridation measure, which passed, repealed the city charter amendment. FN3. See 42 U.S.C. § 247(b) (1976). Agency guidelines for fluoridation project grants state that the primary goal of the grants is “to achieve near-universal community fluoridation.” Specific objectives listed were, among others, to “promote fluoridation at national, regional, and state levels” and to “carry on national informational and educational activities through mass media and other outlets.” FN4. According to the grant application, employes were to spend specified percentages of working hours, ranging from five to 100 percent, over a three month period, on the project. Although the Multnomah County Department of Human Services had conducted educational efforts about the benefits of fluoridation in the past, the application for a federal grant was not made until after the anti-fluoridation measure was placed on the ballot.^FN5 A document, which plaintiff's affidavit asserts is a rough draft of the grant application, states: FN5. A Notice of Intent to apply for the grant, which was subsequently withdrawn because of a perceived lack of support from the county commissioners, was originally submitted by Isman on July 27, 1979. That was before the anti-fluoridation measure qualified for the ballot but at a time when the political committee supporting the initiative had already submitted 21,000 signatures, 6,000 more than necessary to qualify, to the City Auditor. “A. Goal: Portland residents will vote to retain fluoridation of the Portland Bull Run Watershed in the 1980 primary election.” This language did not find its way into the final document, which stated instead: “B. Objectives “1. Public education efforts pertaining to fluoridation, conducted by the Multnohah County Department of Human Services, will double by September 30, 1980.” At a March 6, 1980, meeting of the Board of County Commissioners, Lawrence endorsed the project and, after a debate over the propriety of the project, the grant application was approved by a 3-2 vote, defendants Blumenauer, Buchanan and McCoy comprising the majority. The federal grant was awarded on April 7, 1980, for a budget period from April 1, 1980, to June 30, 1980.^FN6 The major use of the federal grant funds was for contracts with advertising and research firms. A research firm conducted surveys of public attitudes and knowledge about fluoridation. An advertising firm conducted a mass media campaign, which included placing full-page ads in Portland's major daily newspaper.^FN7 The activities of the county employes, who were under the supervision and direction of defendants Lawrence and Isman, included public presentations, distribution of written materials and posters, training speakers, writing articles and press releases and operation of a telephone “hot line.” Federal funds continued to be expended after the election for surveys of public opinion and knowledge, but $18,000 of the federal grant money was never spent. FN6. The budget period was subsequently extended to September 30, 1981. FN7. One full-page ad, in the May 8, 1980, edition of The Oregonian, stated in large black print, “People who don't use fluoridated water have something to show for it” and depicted a mouth with missing teeth. Small print at the bottom of the page stated “Learn the facts” and gave the number of the county's “Fluoridation Hotline.” Other ads appeared on May 11, 15, 18 and 19, 1980. Defendant Isman sought legal advice as to what activities were permitted by law and arrived at the conclusion that “anything short of outright advocacy” was permitted. Although project participants were directed by Isman and Lawrence not to advocate or solicit any particular vote on the ballot measure,^FN8 defendants concede that the project communications “were one-sided and that they were purposely so.” They argue that the project was one-sided only because it was the scientifically arrived at medical opinion of Isman and Lawrence that fluoridation has no disadvantages, only advantages. Isman and Lawrence were well aware of the restraints placed on political activity by statute but considered that it was their duty as doctors and public health officials to publicize the benefits of fluoridation. In his affidavit supporting his motion for summary judgment, plaintiff states that, at the meeting of the Board of Commissioners at which the grant application was considered, defendant Lawrence testified: FN8. At one point, evidently, someone within the department failed to abide by the direction, because a flyer distributed by “Oregonians for Fluoridation” that urged readers to “vote no on 51” included “Multnomah County Department of Human Resources” in a list of endorsers. “For me to fail to act publicly in support of community fluoridation would constitute dereliction of duty...the message will be one sided because fluoridating the water of Portland is, in my view, in the best interests of the health of our people. There is no other position I can or will support. There is potential conflict in this position, nonetheless. The public health issue, water fluoridation, has been politicized and our state law attempts to control political activity by public employees. It is my commitment to you in this matter that my official efforts and those of our Department will be limited to provision of information about the benefits of community water fluoridation. ...I have no responsibility to represent the other side in this issue and will not.” Good faith, however, is not a defense in an action under ORS 294.100. Porter v. Tiffany, 11 Or.App. 542, 549-50, 502 P.2d 1385 (1972), rev. den. (1973). Likewise, strength of conviction in the minds of agency officials of the correctness of the position they espouse provides no immunity for violation of ORS 260.432. Defendants also argue that their actions were not only justified but are mandated by the statutes which create a county department of health. See ORS ch. 431. In particular, they cite ORS 431.416, which reads: “The district or county department of health shall: “.... “(2) Conduct activities necessary for the preservation of health or prevention of disease in the area under its jurisdiction.” (Emphasis supplied.) They appear to argue that this statute authorizes any activity which in the judgment of county health officials serves to carry out this broad mandate, despite the fact that that same activity serves to “aid, promote or oppose... the adoption of a measure,” which is forbidden by ORS 260.432. We do not find that argument persuasive. ORS chapter 431 defines the duties of a county health department in the most general ways, but ORS 260.432 is specific about the actions it makes unlawful. A specific provision controls over a general one. ORS 174.020. In order to give effect to both statutes, we hold that ORS 431.416 authorizes activities necessary for public health except when those activities violate ORS 260.432. Funds expended in activities which are generally authorized, but specifically forbidden, are for a “different purpose than provided by law” under ORS 294.100(1). For example, the Sheep Commission has statutory authority to “represent and protect the interests of the sheep and wool industry with respect to any legislation or proposed legislation or executive action which may affect that industry.” ORS 577.730(3). That statute contains a clearer grant of authority for the agency to engage in political activity than does ORS 431.416. We have held that ORS 577.730(3) does not empower the Sheep Commission to donate money to a group opposing an initiative measure to ban leg-hold traps, “even though those purposes may coincide with the Commission's statutory function.” regonians Against Trapping v. Dept. of Agric., 56 Or.App. 78, 82, 641 P.2d 72 (1982); see also Porter v. Tiffany, supra. Finally, defendants claim that, although they did not present a neutral picture of the merits and demerits of fluoridation, as a matter of law the fluoridation project did not violate ORS 260.432, because it was only part of a long history of departmental activities promoting fluoridation as a public health measure.^FN9 From plaintiff's affidavit it appears that defendant Isman asserted in his deposition that it was “coincidental” that the Fluoridation Public Information Program was “quite active” in the period prior to the May, 1980, election. FN9. Defendant Lawrence's affidavit states: “It was my medical opinion as a Health Officer for Multnomah County and it remains my medical opinion that fluoridation of water systems is a safe, economical and the most efficient mechanism for maintaining the good dental health of children and for preserving the dental health of adults. For at least ten years prior to the May 20, 1980 ballot measure, and consistently to the date of this affidavit, Multnomah County Health officers have consistently advocated the implementation and maintenance of fluoridated water systems within Multnomah County. In my opinion, the county's long-standing publicized position is based upon the most accurate and scientifically current information available.” In deciding whether similar activities violate the law, some courts have drawn a distinction between neutral education and advocacy, although the difference may seem to be one merely of perspective. The leading such case is Citizens to Protect Pub. Funds v. Board of Education, 13 N.J. 172, 98 A.2d 673 (1953). In that case the court said in dictum that a school board had authority to spend public funds to educate the public about the consequences of the outcome of an upcoming bond issue vote but that, by over-dramatizing the dire consequences of a “no” vote and by exhorting voters to “vote yes,” the board had strayed into advocacy and “thus imperilled the propriety of the entire expenditure.” 98 A.2d at 677. In Stanson v. Mott, 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1 (1976), the court held that “determination of the propriety or impropriety of the expenditure depends upon the careful consideration of such factors as the style, tenor and timing of the publication...,” 130 Cal.Rptr. at 708, 551 P.2d at 12. See also, Prusia, The Expenditure of Public Funds in Election Campaign Advocacy: Liability of Local Public Officials, 52 Or.L.Rev. 155, 157 n. 9 (1973); 35 Op. Att'y. Gen. 169 (1970). Once a measure has qualified for placement on a ballot, ORS 260.432 effectively prohibits public employes from promoting or opposing its adoption during working hours. Although officials and employes of the agency might possess valuable expertise and information, when an issue that an agency views as strictly a matter of medical science has become a ballot measure, the agency may not participate in the debate using public time or funds, even if what the agency sees itself as doing is merely providing the public with scientifically verified information or merely continuing an ongoing activity of the agency. It cannot be said as a matter of law that defendants did not expend public money for a different purpose than authorized by law. There are genuine issues of material fact. Among those issues are whether defendants, or some of them, required public employes to oppose, or expended public money to oppose, the adoption of the anti-fluoridation ballot measure. It was therefore error to grant defendants a summary judgment. Reversed and remanded for further proceedings not inconsistent with this opinion. NEWMAN, Judge, concurring. I concur that defendants are not entitled to summary judgment because there are genuine issues of material fact to be tried. A few additional comments appear advisable. The majority correctly states that some courts have drawn a distinction between neutral education and advocacy. It is an important distinction. Public bodies must provide information to voters regarding ballot measures affecting their programs, whoever proposes the ballot measure, both to inform the electorate and to negate a charge of secret, unresponsive government. It has long been recognized, although the statutes here involved are not new, that a school district, for example, may use public funds to inform district voters of facts pertinent to a school tax levy election. See 35 Op Att'y Gen 169 (Or.1970). The information that public bodies provide, however, must be fairly presented, and public funds cannot be used to advocate that a citizen vote in a particular way at the election or otherwise to “aid, promote or oppose” a ballot measure. See ORS 260.432; Porter v. Tiffany, 11 Or.App. 542, 502 P.2d 1385 (1972). A school district, for example, can have little hope for public support if it refuses to provide information about a proposed tax levy. Judge (now Justice) Brennan commented on this matter in Citizens to Protect Public Funds v. Board of Education, 13 N.J. 172, 98 A.2d 673 (1953). “There is no express statutory provision authorizing the expenditure by boards of education of public funds in the manner done by the defendant board for the printing and distribution of the booklet. The power, however, within the limits hereafter stated, is to be found by necessary of fair implication in the powers expressly conferred... . “The power so implicit plainly embraces the making of reasonable expenditures for the purpose of giving voters relevant facts to aid them in reaching an informed judgment when voting upon the proposal. In these days of high costs, projects of this type invariably run into very substantial outlays. This has tended to sharpen the interest of every taxpayer and family man in such projects. Adequate and proper school facilities are an imperative necessity, but the large additional tax burden their cost often entails concerns taxpayers that they be obtained with the maximum economy of cost. At the same time the complexities of to-day's problems make more difficult the task of every citizen in reaching an intelligent judgment upon the accommodation of endurable financial cost with the acknowledged need for adequate education. The need for full disclosure of all relevant facts is obvious, and the board of education is well qualified to supply the facts. But a fair presentation of the facts will necessarily include all consequences, good and bad, of the proposal, not only the anticipated improvement in education opportunities, but also the increased tax rate and such other less desirable consequences as may be foreseen. If the presentation is fair in that sense, the power to make reasonable expenditure for the purpose may fairly be implied as within the purview of the power, indeed duty, of the board of education to formulate the construction program in the first instance. And the choice of the media of communication to give such facts, whether by the use of a booklet, as in this case, radio broadcast, newspaper advertising, or other means, is within the discretion, reasonably exercised, of the board of education. ... ” 98 A.2d at 677 Among the facts which should be determined at trial are whether the material that the county distributed was “promotional” or “informational.” The content and use of the material prepared and distributed with the expenditure of public funds or public employee time must be examined. The distinction to which the majority refers may be decisive.

+/- Commonwealth Dept. of Environment Resources v. City of Lebanon

Pennsylvania

• Plaintiff
  Department of Environmental Resources, Carroll E. Ditzler, et al.
• Defendant
  City of Lebanon
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  -
• Citation
  -
• Year
  1978-00-00T00:00:00
• Court Name
  Supreme Court of Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  POMEROY, Justice. The City of Lebanon, Pennsylvania, which began to fluoridate its water supply in 1972, sought permission of the Department of Environmental Resources (DER), to cease such fluoridation; the request was denied. By this appeal we are asked to determine whether the DER has the legal authority to compel the City of Lebanon to continue with the fluoride treatment of its water supply and, if such authority exists, whether in this case the DER exercised that authority without abusing its discretion. We conclude that sufficient authority is vested in the DER by statute to prescribe continued fluoridation and that the agency's decision with regard to Lebanon's proposed permit modification was a reasonable and justifiable exercise of the department's statutory authority. The City of Lebanon was issued a water supply permit in 1970 ^FN1 which authorized construction and operation of a water treatment plant for the city to replace the one then in service. The permit specified that the water to be distributed from the new plant would be fluoridated.^FN2 By November, 1972 fluoridation was in practice at the new plant. On January 8, 1973 the City Council of Lebanon passed a resolution requesting the DER to approve a revision of Lebanon's water permit so as to eliminate fluoride as a component of the water to be furnished to citizens of Lebanon, to the end that fluoridation could be discontinued. When DER denied the request, one Daemon C. Strickler and certain other citizens of the City appealed to the Environmental Hearing Board,^FN3 and the City of Lebanon intervened.^FN4 The Board, one member dissenting, sustained the action of the DER in refusing to alter the permit so as to allow discontinuance of fluoridation. FN1. The permit was issued by the Department of Health under the terms of the Water Supply Law, Act of April 22, 1905, P.L. 260, s 1, 35 P.S. 711 (1977). In 1971 many of the powers of the Department of Health were transferred to the new Department of Environmental Resources created by amendment to The Administrative Code of 1929. Act of April 9, 1929, P.L. 177, art. XIX-A, s 1901-A, added December 3, 1970, P.L. 834, No. 275, s 20, 71 P.S. s 510-1 (Supp.1978). Specifically the DER was vested with the power and duty to administer the Water Supply Law, Supra, and to issue waterworks permits. 71 P.S. s 510-1(6-7). FN2. Fluoride is an ion of the element fluorine which is not naturally found in an isolated form, but rather in association with other elements, most commonly calcium. Fluoridation is accomplished by the addition of a fluoride compound to the water supply so as to achieve a concentration of the fluoride ion of approximately one part per million. The purpose of fluoridation is to protect the teeth of those who drink fluoridated water from developing dental caries. FN3. The Environmental Hearing Board, authorized by the same act which created the DER, is vested with, Inter alia, the following functions: “(a) The Environmental Hearing Board shall have the power and its duties shall be to hold hearings and issue adjudications under the provisions of the act of June 4, 1945 (P.L. 1388), known as the ‘Administrative Agency Law,’ on any order, permit, license or decision of the Department of Environmental Resources. “(b) The Environmental Hearing Board shall continue to exercise any power to hold hearings and issue adjudications heretofore vested in the several persons, departments, boards and commissions set forth in section 1901-A of this act (E. g., The Department of Health in this instance). “(c) Anything in any law to the contrary notwithstanding, any action of the Department of Environmental Resources may be taken initially without regard to the Administrative Agency Law, but no such action of the department adversely affecting any person shall be final as to such person until such person has had the opportunity to appeal such action to the Environmental Hearing Board; provided, however, that any such action shall be final as to any person who has not perfected his appeal in the manner hereinafter specified.” Adm.Code s 1921-A, 71 P.S. s 510-21. FN4. Notwithstanding the pendency of the above proceeding, the Lebanon City Council on February 24, 1974, resolved unilaterally to discontinue fluoridation of the City's water supply. This action prompted the filing of a bill in equity in the Court of Common Pleas of Lebanon County by one Carroll E. Ditzler and others seeking to enjoin the proposed discontinuance. Ditzler v. City of Lebanon, Court of Common Pleas of Lebanon County, No. 7, Equity, 1974. The DER intervened in this action and the parties entered into a stipulation according to which the City agreed to petition for intervention in the appeal pending before the Environmental Hearing Board (which petition was granted) and agreed that it would not terminate fluoridation of its water supply until final disposition of the legal questions involved. The common pleas action was thereafter discontinued. At a later stage of this controversy there occurred a breakdown in the City's water treatment plant, including the fluoridation process, which went unrepaired. The court of common pleas decreed specific performance of the stipulation referred to above so that fluoridation would be continued pending this litigation. This decree was affirmed by the Commonwealth Court. Ditzler v. City of Lebanon, 29 Pa.Cmwlth. 69, 370 A.2d 441 (1977). Lebanon appealed this decision to Commonwealth Court and Carroll E. Ditzler and interested proponents of fluoridation, See Note 4 Supra, were allowed to intervene, thus bringing together all of the interested parties. The Commonwealth Court reversed the order of the Environmental Hearing Board and directed the DER to allow Lebanon to discontinue fluoridation of its water supply. 2 Pa.Cmwlth. 132, 348 A.2d 166 (1975).^FN5 We granted allocatur,^FN6 and will reverse. FN5. The decision was by a divided court. Judge Wilkinson filed a dissenting opinion, joined by Judges Rogers and Blatt. FN6. Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. II, s 204(a), 17 P.S. s 211.204(a) (Supp.1978), since superseded by Section 724(a) of the Judicial Code, 42 Pa.C.S. s 724(a) (effective June 28, 1978). In creating the DER,^FN7 the legislature in the Administrative Code charged that agency with, among other things, the duty of administering the Water Supply Law, Supra note 1. The purpose of that law is indicated by its title: “An act to preserve the purity of the waters of the State, for the protection of the public health.” The Water Supply Law also empowers the DER to use its judgment as to whether “the proposed source of supply appears to be not prejudicial to the public health.” 35 P.S. s 713. The Administrative Code also contains provisions concerning water supply, including the requirement that no waterworks may be constructed or extended without written approval of the DER. Waterworks permits issued by the DER are to “stipulate therein the conditions under which water may be supplied to the public.” Adm.Code s 1918-A(1), 71 P.S. s 510-18(1). FN7. Adm.Code ss 1901-A(7), 1918-A(1), 71 P.S. ss 510-1(7), 510-18(1). In the discharge of its functions under the Water Supply Law and the Administrative Code, the DER has issued rules and regulations. 25 Pa.Code s 109.1 Et seq. The term “water supply” is defined to include “any and all water treatment, storage, transmission and distribution facilities.” 25 Pa.Code s 109.1. The stated purpose of the waterworks regulations is “to protect the public health through the proper design, operation and maintenance of water supplies.” 25 Pa.Code s 109.2. Written approval by the DER is required before a water supplier may make any change from previously approved specifications affecting the treatment process, including the addition, alteration or discontinuance of any protective measure. 25 Pa.Code s 109.22(a-b). Where fluoridation is in use, the standard for the concentration of fluoride in the water is established in accordance with federal drinking water standards (at 1.0 mg/1). The City makes no direct challenge to the validity of these regulations,^FN8 including the provision that any change in the treatment process of water by a permit holder must have DER approval. Such a challenge is, however, implicit in the City's contention that DER is without authority to disapprove its contemplated discontinuance of the fluoride treatment. FN8. Courts are required to take judicial notice of the contents of the Pennsylvania Code, where the regulations referred to are published. 45 Pa.C.S. s 506 (Special Pamphlet 1978). An appellate court's scope of review of an administrative agency's order of the kind here challenged is narrow. See, E. g., Ramey Borough v. Pennsylvania Department of Environmental Resources, 466 Pa. 45, 49, 351 A.2d 613 (1976); Crawford v. Pennsylvania Department of Health, 19 Pa.Cmwlth. 10, 15-17, 338 A.2d 727 (1975). In the hearings before the Environmental Hearing Board the City sought to establish that fluoride in water might have a deleterious effect on the potability of the water or the health of the consumer. The DER and the advocates of fluoridation, on the other hand, produced evidence that fluoride treatment has been successfully practiced in this country for decades, significantly reducing the incidence of dental caries among the populace, and without producing any ill effects. From our examination of the record we are satisfied that the evidence amply supports the conclusion of the DER and the Environmental Hearing Board that the fluoridation of domestic water supplies is an important means of preventing tooth decay, especially in children, and thereby of protecting the public health. Clearly, the DER had power, “for the protection of the public health,” to promulgate its regulation prohibiting the alteration of the chemical composition of water without its approval. The evidence warranted the Board's conclusion that actions concerning the elimination of fluoridation fall within the scope of this regulation.^FN9 FN9. We note in this regard that the courts of our sister states have unanimously upheld fluoridation in the interest of public health as a proper exercise of the states' police power. A recent observation of the Supreme Court of New Jersey adds perspective to the instant dispute: “Although no harmful results from fluoridation have been clearly 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.” (Citations omitted.) Young v. Board of Health of Somerville, 61 N.J. 76, 78, 293 A.2d 164, 165 (1972). The decisions from other states cited in the New Jersey opinion quoted above are included among the cases from twenty different states upholding fluoridation collected in the appendix to this opinion. The remaining question is whether the DER's determination that the fluoridation of water in the City of Lebanon should be continued was an abuse of its administrative discretion. The Commonwealth Court suggested that in order to require continuation of fluoridation by any water supply permit holders, such as Lebanon, the DER must require that all permit holders fluoridate their water supplies, including municipalities which have never initiated such treatment. Assuming that the DER could, in the proper exercise of its authority, require all permit applicants to undertake fluoridation as a condition of obtaining a water supply permit (a question not presented by this record and which we need not now consider),^FN10 the fact that it has not enforced such a requirement does not render defective the agency's refusal to sanction abandonment of this beneficial health measure by a permit holder whose water supply system is already capable of fluoridation.^FN11 Since elimination of the fluoride component in water already containing it would arguably be prejudicial to public health, the refusal to approve such an action seems clearly to be within the DER's statutorily vested discretion, relative to protection of public health, and neither arbitrary nor capricious, as appellee contends. In sum, we conclude that the DER's fluoridation policy is a reasonable exercise of its statutory authority over water supply permits, and that the agency acted properly in refusing to allow the City of Lebanon to alter the formula of its water so as to cease fluoridating the municipal water supply. FN10. Nor do we consider any argument, none having been presented, that the DER's regulations or its action thereunder in this case violate the Equal Protection or Due Process clauses of the federal or state constitutions. FN11. The pragmatic reasoning of the dissenters below is, we think, a valid justification of the DER's approach to this matter: “DER's policy of refusing to require fluoridation to obtain a permit and the refusal to modify a permit previously issued to allow discontinuance of fluoridation after it is established is not inconsistent. Indeed, it is sound on the basis of burden of proof alone. “In the first instance, when fluoridation is not required to obtain a permit, the applicant is resisting fluoridation and the burden would be on DER to establish that to approve an unfluoridated water supply would be prejudicial to the public health. In the second instance, where the existing permit requires fluoridation, the applicant is seeking to change the permit and, therefore, has the burden of convincing DER that it is not prejudicial to the public health to remove the requirement. “In addition, . . . expense is always a proper consideration in setting requirements for what is or is not detrimental to the public health as those words are used in legislation. Certainly it is a proper consideration when one is exercising discretion. Under such circumstances, there is a vast distinction between insisting on a very substantial expense to obtain a permit and permitting its removal after it and the permit have been in existence.” 22 Pa.Cmwlth. at 137-38, 348 A.2d at 168-69. The order of the Commonwealth Court is reversed and the order of the Environmental Hearing Board is reinstated. MANDERINO, J., filed a dissenting opinion in which NIX, J., joins. PACKEL, former J., did not participate in the decision of this case. APPENDIX Decisions from other states upholding fluoridation of water. (See note 9 Supra.) Minnesota State Board of Health v. City of Brainerd, 308 Minn. 24, 241 N.W.2d 624, Appeal dismissed, 429 U.S. 803, 97 S.Ct. 35, 50 L.Ed.2d 63 (1976); Young v. Board of Health of the Borough of Somerville, 61 N.J. 76, 293 A.2d 164 (1972); Graybeal v. McNevin, 439 S.W.2d 323 (Ky.1969); Opinion of the Justices, 243 A.2d 716 (Del.1968); Paduano v. City of New York, 45 Misc.2d 718, 257 N.Y.S.2d 531, aff'd., 24 A.D.2d 437, 260 N.Y.S.2d 831 (1st Dep't 1965), aff'd., 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966), Cert. denied, 385 U.S. 1026, 87 S.Ct. 754, 17 L.Ed.2d 674 (1967); Attaya v. Town of Gonzales, 192 So.2d 188 (Ct.App.La.1966); 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), Cert. 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); 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); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W.2d 569 (1961); Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819, 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); Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okl.1954), Cert. denied, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, 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), Cert. denied, 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135 (1954). MANDERINO, Justice, dissenting. I dissent. The Department of Environmental Resources (DER) has never decided that drinking water is unsafe when it has been fluoridated nor has it ever decided that drinking water is unsafe when it Has not been Fluoridated. If it had ever decided the issue either way all drinking water in the state would have to be treated or not according to the DER's decision. How then can it be said that the DER did not abuse its discretion? I would affirm the Commonwealth Court. NIX, J., joins in this dissenting opinion.

+/- Commonwealth Dept. of Environment Resources v. Bierman

Pennsylvania

• Plaintiff
  Department of Environmental Resources
• Defendant
  Joseph Bierman, Emanuel Roth, Luther Bilheimer, Carol Zimmerman, Paulina Curtis, F. Murray Iobst
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  -
• Citation
  23 Pa. Commw. 646; 354 A.2d (Pa. Commw. Ct. 1976)
• Year
  1976-00-00T00:00:00
• Court Name
  Commonwealth Court of Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Mencer
• Opinion Text
  MENCER, Judge. This is an appeal from an adjudication by the Environmental Hearing Board (Board) which dismissed appellants' objections to the issuance of a public water supply permit by the Department of Environmental Resources (DER) to the Allentown Water Authority (Authority). The permit allows the Authority to provide for fluoridation of its water supply. Appellants are persons who use the Allentown water supply and are opposed to fluoridation. Specifically, appellants are opposed to the addition of hydrofluorosilicic acid (H2SiF6) to the Allentown water supply in sufficient quantities to produce a concentration of approximately one part per million of fluoride. Appellants raise several issues on appeal, not all of which are properly within the ambit of our review. The scope of review of this Court is to determine whether there exists a manifest abuse of discretion or an error of law on the part of the Board. Sierra Club v. Sanitary Water Board, 3 Pa.Cmwlth. 110, 281 A.2d 256 (1971). Under Section 44 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, As amended, 71 P.S. s 1710.44, we must affirm the adjudication of the Board unless there has been a violation of appellants' constitutional rights, an error of law, or a lack of substantial evidence to support any necessary findings of fact. Belin v. Department of Environmental Resources, 5 Pa.Cmwlth. 677, 291 A.2d 553 (1972). Based on testimony before the Board in hearings held on December 18, 19 and 20, 1974, the hearing examiner made the following findings of fact: ‘18. Fluoridation at approximately one ppm (part per million) is recognized as safe, efficient, and economical by the Pennsylvania Department of Health. ‘20. Fluoridation at approximately one ppm produces an approximate sixty-five per cent reduction in dental cavities. ‘21. Fluoridation at approximately one ppm is safe from a medical standpoint.’ Appellants first contend that there was not substantial evidence to support these findings. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wilkinsburg v. Sanitation Department, 16 Pa.Cmwlth. 640, 330 A.2d 306 (1975). Both DER and appellants produced expert testimony on the subjects of the safety and effectiveness of fluoridation at the proposed concentration. Although the experts disagreed on these matters, it was for the hearing examiner to determine the weight to be given the evidence presented. His findings of fact were amply substantiated by the testimony of DER's expert witnesses and those presented by the intervenor, the City of Allentown.^FN1 FN1. Furthermore, we note that the issues of the efficacy and safety of fluoridation in general were the subject of previous hearings before the Board. An administrative body, which, by definition, is charged with developing expertise in a given area, should not be obliged to rediscover the underlying facts within its area of specialization at each new hearing. Appellants assert secondly that the hearing examiner abused his discretion in ruling that appellants' expert witness, Dr. John A. Yiamouyiannis, could not testify concerning the contents of many unnamed scientific articles on the subject of Fluoridation and its effects on man. Dr. Yiamouyiannis holds a Ph.D. in biochemistry and worked for several years as an editor of scientific abstracts. He stated that during this time he had read thousands of articles on the subject of fluoridation. The hearing examiner reasoned-correctly, in our view-that testimony concerning the Contents of these scientific articles would constitute inadmissible hearsay. However Dr. Yiamouiannis was allowed to testify that in his opinion the research done on fluoridation, taken as a whole, was not of sufficient quality and quantity to establish the safety or efficacy of fluoridation. He was also permitted to testify to the results of one experiment he himself conducted. We hold that the hearing examiner ruled correctly in allowing Dr. Yiamouyiannis to testify to his general knowledge of the research and in refusing to allow testimony concerning the conclusions and methodology of various experiments not in evidence whose authors were not available for cross-examination. This Court has held in A. P. Weaver and Sons v. Sanitary Water Board, 3 Pa.Cmwlth. 499, 284 A.2d 515 (1971), that reports of tests or experiments conducted by third parties are inadmissible hearsay when the author of the report or the experimenter is not available to testify or to be cross- examined. The majority of jurisdictions are in accord with this view. ^FN2Our review of the record indicates that the hearing examiner did not abuse his discretion in refusing to hear this testimony. Indeed, if anything, the examiner was quite lenient in admitting some of the testimony by Dr. Yiamouyiannis. FN2. See generally Annotation, 19 A.L.R.3d 1008 (1968). Appellants have asserted several other bases for their appeal which we will discuss only briefly since we find them to be without merit. Appellants assert that DER abused its discretion and failed to fulfill its legal duty to make an environmental impact study before issuing the permit. We have not found, nor have appellants called our attention to, any legal authority imposing a duty to make such a study. DER, in reviewing the Authority's application for a water supply permit must abide by the Act of April 22, 1905, P.L. 260, 35 P.S. s 713, which states in pertinent part: ‘No municipal corporation, private corporation, company, or individual shall construct waterworks for the supply of water to the public within the State, or extend the same, without a written permit, to be obtained from the Commissioner of Health If, in his judgment, the proposed source of supply appears to be not prejudicial to the public health.’ (Emphasis added.) It should be noted that Article XIX-A of The Administrative Code of 1929, ss 1901-A(7), 1918-A, added by the Act of December 3, 1970, P.L. 834, 71 P.S. ss 510-1(7), 510-18, transferred the powers and duties under the Act of April 22, 1905, from the Department of Health to DER. By challenging DER's determination, appellants assumed the burden of proving a prejudicial effect on public health. They have not carried this burden. Appellants next urge us not to allow the permit to issue since they have brought suit in another court seeking to compel a referendum in Allentown on the issue of fluoridation. They also assert that several neighboring townships will receive the fluoridated water without prior legislative approval by their respective governing bodies. These arguments are simply not relevant to the Issuance of a water supply permit where the only question is whether or not, in the judgment of DER, the proposed source of supply is prejudicial to public health. Appellants' other contentions are without sufficient merit to extend this opinion by discussion here. Accordingly, we enter our ORDER Now, this 11th day of March, 1976, the order of the Environmental Hearing Board in the above captioned case is affirmed. BOWMAN, President Judge (concurring). In concurring with the majority opinion in all respects, I simply record this case as but one more example of the ambivalent position of the DER that a ‘proposed source of (water) supply (to include a fluoridation program) appears to be not prejudicial to the public health.’ Section 3, Act of April 22, 1905, P.L. 260, As amended, 35 P.S. s 713, when it continues to deny applications to modify water supply permits intended to discontinue a fluoridation program not because discontinuance of such a program is found to be prejudicial to the public health but simply because, as originally issued, the permit included such a fluoridation program. See Commonwealth, Department of Environmental Resources v. City of Lebanon, 22 Pa.Cmwlth. 132, 348 A.2d 166 (1975).

+/- Potratz v. Pennsylvania DEP

Pennsylvania, Improper Procedure

• Plaintiff
  James B. Potratz
• Defendant
  Commonwealth of Pennsylvania Department of Environmental Protection
• State
  Pennsylvania
• Other Parties
  Erie City Water Authority
• Case Tags
  - Improper Procedure
• Citation
  897 A.2d 16 (Pa. Commw. Ct. 2006)
• Year
  2006-00-00T00:00:00
• Court Name
  Commonwealth Court of Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Flaherty J
• Opinion Text
  OPINION BY Senior Judge FLAHERTY. James B. Potratz (Potratz) petitions for review of the order of the Environmental Hearing Board (Board) which granted the Pennsylvania Department of Environmental Protection (DEP) and Erie City Water Authority's (Authority)(Collectively, Respondents) motion for partial summary judgment on several issues raised in Potratz's amended notice of appeal.^FN1 FN1. The Board granted partial summary judgment on the following objections in Potratz's amended notice of appeal: 19, 20 a-h, 21 b-c, 28 a-f, 29 a-g, 30 a-j and 31. We note that Potratz does not contest the dismissal of objections 20 a-h and 21 b-c. In April of 2002, the Authority filed two permit applications with the DEP for the construction of fluoridation facilities at the Sommerheim and Chestnut Street water treatment plants.^FN2 On August 21, 2002, the DEP issued a construction permit for the construction/modification of the public water supply for the Chestnut Street facility. On January 9, 2003, the Authority authored a certificate of completion of construction/modification of the public water supply for the Chestnut Street facility. On February 21, 2003, the DEP issued the operations permit for the Chestnut Street facility.^FN3. On April 4, 2003, Potratz and the City of Erie filed a notice of appeal challenging DEP's grant of Authority's operations permit. This appeal was amended on April 23, 2003.^FN4 FN2. The present controversy only deals with the facilities at the Chestnut Street water treatment plant. FN3. Some members of City Council disagreed with the concept of fluoridating the public water supply and requested an opinion from the City Solicitor as to whether City Council could pass a resolution ordering the Authority to refrain from doing so. FN4. The second notice of appeal was filed on behalf of Potratz, a private party, along with the City of Erie. The City Solicitor subsequently withdrew the appeal. On March 15, 2004, Potratz again filed a motion to amend his notice of appeal in order to raise four constitutional claims in addition to those claims already before the Board. On May 12, 2004, Potratz was granted leave to amend his appeal. On May 21, 2004, Potratz amended his notice of appeal and alleged that: 19) DEP abused its discretion or committed an error of law when it issued the Water Supply Permit because it failed to ascertain the components of hydrofluorosilicic acid and their effect upon public drinking water. Arsenic and lead are naturally occurring contaminants of hydrofluorosilicic acid and the levels of such cannot be adjusted. There exists a varying amount of naturally occurring arsenic and lead found in water supplies. The addition of hydrofluorosilicic acid to public water supplies adds to the natural levels of arsenic and lead thereby increasing the total level to an amount of those impurities that will certainly exceed the established scientific endpoints, known as Maximum Contaminant Level Goals, at which the risk of adverse health effects to consumers are expected to increase, and to a total concentration that under certain circumstances could very well exceed the regulatory Maximum Contaminant Level for those contaminants.... 28) [Authority]'s selection of hydrofluorosilicic acid as the medium to fluoridate the public water system violated [Authority]'s duty as a trustee under Article I, Section 27 of the Pennsylvania Constitution to protect the waters of the Commonwealth.... 29) [Respondent]'s administration of the Safe Drinking Water Act and approval of [Authority]'s permit to fluoridate the public drinking water violated [Respondent]'s duty under Article I, Section 27 of the Pennsylvania Constitution to protect the waters of the Commonwealth.... 30) [Respondent]'s approval of [Authority]'s application to fluoridate violated [Potratz]'s rights under the United States Constitution.... 31) [Respondent]'s approval of [Authority]'s application to fluoridate violated [Potratz]'s rights under the Pennsylvania Constitution.... Amended Notice of Appeal, Paragraph Nos. 19, 28-31; at 5, 11-15. Potratz's main complaint was the Authority's use of hydrofluorosilicic acid, which is an industrial waste product contaminated with impurities such as lead and arsenic, to fluoridate the public water supply. Amended Notice of Appeal, No. 19 at 5.^FN5 FN5. We note that Potratz does not contest the Board's grant of partial summary judgment on his objections in paragraphs 20a-h and 21 b-c. On September 10, 2004, Respondents filed a joint motion for partial summary judgment. Respondents alleged that Potratz did not appeal the DEP's issuance of the construction permit but only the operation permit and that of Potratz's fifty-four objections, only two actually pertain to or challenge the validity of the operation permit, those being paragraphs 21a and 26 of Potratz's appeal.^FN6 Respondents allege that the general concept of fluoridating the public water supply was approved at the construction permit stage of the process and that Potratz failed to raise those objections in a timely manner after the DEP issued the construction permit and therefore, Potratz is precluded from raising those objections now by the Doctrine of Administrative Finality (Doctrine). Respondents therefore asked for a judgment as a matter of law relative to Potratz's paragraphs 19, 20a-20h, 21b-21c, 22-25, 27, 28a-28f, 29a-29g, 30a-30j, and 31a-31i of Potratz's appeal. FN6. Paragraphs 21a and 26 are not on appeal here. In response, Potratz contended that Respondents failed to properly plead and prove that he could have raised these issues earlier and that his constitutional claims were not ripe for consideration when the construction permit was issued. On March 11, 2005, the Board issued an opinion and order granting the Respondents motion for partial summary judgment on objections 19, 20a-h, 21b-c, 28a-f, 29a-g, 30a-j, and 31 in Potratz's amended notice of appeal. The Board concluded that Potratz's constitutional issues were ripe when the construction permit was issued. The Board also found that Potratz would have had standing to raise his issues in an earlier appeal of the construction permit. Potratz petitioned our Court for review.^FN7 FN7. Our review of a Board's decision is limited to a determination of whether constitutional rights have been violated, errors of law committed, or whether essential findings of fact are supported by substantial evidence. Bethenergy Mines, Inc. v. Department of Environmental Protection, 676 A.2d 711 (Pa.Cmwlth.), appeal denied, 546 Pa. 668, 685 A.2d 547 (1996). A grant of summary judgment by the Board is proper where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. Our Court may reverse the Board's entry of summary judgment where there has been an error of law or a clear or manifest abuse of discretion. Fiore v. Department of Environmental Resources, 96 Pa.Cmwlth. 477, 508 A.2d 371 (1986). Before our Court Potratz contends that Respondents failed to properly plead and meet their burden of proof regarding the application of the Doctrine to objections raised before the Board; and that the Board erred in finding that the Constitutional claims related to the use of the water additive by a public water supplier were sufficiently ripe for adjudication when a construction permit was issued by the DEP for the construction of a facility intended to add the water additive to the public water supply. First, Potratz contends that Respondents failed to establish a prima facie case for the application of the Doctrine; that the Doctrine requires that the party against whom the Doctrine is applied to have also been aggrieved by the earlier agency action. The Doctrine precludes a collateral attack of an administrative action where the party aggrieved by the action foregoes his statutory appeal remedy. Department of Environmental Protection v. Peters Township Sanitary Authority, 767 A.2d 601 (Pa.Cmwlth.2001). Potratz contends that he was not an aggrieved party. In Commonwealth, Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corp., 22 Pa.Cmwlth. 280, 348 A.2d 765 (1975), a steel manufacturer applied for a variance from minimum standards relating to particulate matter emissions into the atmosphere as established by the DEP's regulations. Through the variance, the steel manufacturer sought an extension of time in which it would be required to comply with the standards as applied to the steel manufacturer. The DEP granted the steel manufacturer's request for a variance from the required time standards. The steel manufacturer did not appeal this order. Two years later, the DEP initiated enforcement proceedings against the steel manufacturer for its failure to comply with the compliance deadline. The steel manufacturer filed an answer to the enforcement proceedings and attacked the validity of the subject DEP regulations and subsequent DEP order. Our Court discussed whether the steel manufacturer should be precluded from raising these issues and held that the manufacturer “had no right to attack the DEP order in question nor the validity of the regulations upon which it was predicated.” Id. Our Court further found in pertinent part as follows: We agree that an aggrieved party has no duty to appeal but disagree that upon failure to do so, the party so aggrieved preserves to some indefinite future proceedings the right to contest an unappealed order. To conclude otherwise, would postpone indefinitely the vitality of administrative orders and frustrate the orderly operation of administrative law. This principal was expressed in Philadelphia v. Sam Bobman Department Store Company, 189 Pa.Super. 72, 78 149 A.2d 518, 521 (1959), in which Judge Woodside stated: It is settled both under common law and statute that where an act creates a right or liability or imposes a duty and prescribes a particular remedy for its enforcement such remedy is exclusive and must be strictly pursued. This means that one who fails to exhaust his statutory remedies may not thereafter raise an issue which could have and should have been raised in the proceeding afforded by his statutory remedy. ....This is particularly true of special statutory appeals from the action of administrative bodies. Wheeling-Pittsburgh, 348 A.2d at 767. In the present controversy, Potratz challenges the DEP's issuance of the operation permit on February 21, 2003. Potratz did not challenge the August 21, 2002, issuance of the construction permit. Therefore, the scope of the project that was approved by the construction permit became final and unappealable once the time period for appealing that decision had expired. Id. The Board held that Potratz “could have and should have” raised his objections that are the subject of this petition, in an objection to the construction permit, that Potratz's failure to raise the issues by contesting the construction permit, resulted in his waiver of such issues and that it was improper to contest them in the operation permit. The Board has held before that the Doctrine applies in cases where an appeal was taken from an operation permit which was approved after a construction permit, when the appeal involves the same issues that could have been raised in the underlying construction permit. See, Emporium Water Co. v. Com., Dept of Environmental Protection, 1997 EHB 395 (1997). The DEP has a two tiered permitting system. Section 109.503 of the regulations relating to the Safe Drinking Water Act (Act),^FN8 requires an applicant seeking a construction permit to submit among other things the following: FN8. Act of May 1, 1984, P.L. 206, as amended, 35 P.S. § 721.1-721.17. (a) Permit application requirements. An application for a public water system construction permit shall be submitted in writing on forms provided by the Department and shall be accompanied by plans, specifications, engineer's report, water quality analyses and other data, information or documentation reasonably necessary to enable the Department to determine compliance with the act and this chapter.... Water quality analyses shall be conducted by a laboratory certified under this chapter. ... (a)(3)(ii)(C) Assurances that the commitments needed for proper operation and management of the system will be carried out. These assurances can be given in the form of documentation of the credentials of management and operations personnel, cooperative agreements or service contracts. 25 Pa.Code § 109.503(a) and (a)(3)(ii)(C). Section 109.504 deals with applications for an operations permit. This section states in pertinent part as follows: (a) To obtain a[n] operation permit for a new system ... the public water supplier shall submit a certification of construction to the Department upon completion of the applicable construction.... The certification shall state that the work was completed in accordance with the approved plans and specifications and shall be signed by the professional engineer or other person responsible for the work. (b) The Department will not issue an operation permit ... unless the following conditions are satisfied: (1) Construction of the new ... facilities has been approved by the Department. (2) The water supplier has demonstrated to the Department that adequate operation and maintenance information for the new ... facilities is available onsite for use by the public water system's personnel. (3) The water supplier has demonstrated to the Department that personnel required under § 109.704 (relating to operator certification) have been retained. 25 Pa.Code § 109.504(a) and (b)(1)-(3). A review of the regulations reveals that the Authority must first apply for a construction permit which requires, among other things, plans, specifications, and water quality analyses. The DEP uses this information to ensure that the applicant is complying with the Act and the regulations. In the present controversy, the Authority submitted an application that contained a stated purpose of the facility as “Fluoridation Facility”. The application also contained under Module 12, hydrofluorosilicic ^FN9 acid as the type of fluoridation compound to be used at the facility. The DEP issued the Authority's construction permit on August 21, 2002. Proper notice was published in the Pennsylvania Bulletin that informed all aggrieved parties that they had 30 days in which to file an appeal challenging this approval. Potratz did not appeal the issuance of the construction permit. FN9. The DEP construction permit application refers to “hydrofluosilicic” acid. See, Authority's Permit Application, Module 12-Fluoridation, Reproduced Record (R.R.) at 89. However, the Board, in its opinion and Potratz, in his brief, refer to “hydrofluorosilicic” acid. The Authority uses the terms interchangeably throughout their brief. We will use the term “hydrofluorosilicic” acid for uniformity with the Board opinion. The Authority constructed its new fluoridation water treatment system and thereafter submitted an application for an operation permit which was issued on February 21, 2003. The regulations regarding the operation permit required the Authority to submit a certification that the construction was completed in accordance with the approved plans and specifications. 25 Pa.Code § 109.504(a). The operations permit was the only permit that Potratz appealed. Thus, the only issue that could be appealed to the Board would be whether the Authority completed its construction in accordance with the approved plans and specifications and/or whether the Authority failed to comply with the procedural requirements for certification, such as, a failure to fulfill the conditions required for an operation permit, such as, properly certified test operating personnel, etc. 25 Pa.Code § 109.504(b). The regulations ensure that any individual who is aggrieved by the proposed changes to a water treatment system or the construction of a new water treatment system have the opportunity to challenge the issuance of a construction permit before construction begins. In Butch v. East Lackawannock Township Zoning Appeal Board, 75 Pa.Cmwlth. 33, 460 A.2d 923 (1983), we held that persons who begin construction during the pendency of an appeal period, do so at their own peril. Once the appeal period has run, the Doctrine protects that person who has relied on the construction permit from being challenged at some time in the future. In the present controversy, the cost of the construction of the facility was estimated at $285,498.78. To allow Potratz to appeal this permit after the construction of the facility under the guise of an operations permit would be substantially unfair to the Authority. It would cause every holder in possession of a construction permit to proceed with the construction “at its own peril.” Next, Potratz contends that the Board erred in finding that the Constitutional claims relating to the use of the water additive by a public water supplier, were sufficiently ripe for adjudication when a construction permit was issued by the DEP for the construction of a facility intending to add the water additive to the public water supply. Potratz argues that he would suffer no harm until the fluoride is actually added to the public water supply and distributed and therefore, the matter was not ripe for adjudication. A party has standing if it is aggrieved by an action or order. Commonwealth v. J.H., 563 Pa. 248, 759 A.2d 1269 (2000). A party is aggrieved if it has “a substantial, direct, immediate, and not remote interest in the subject-matter of the litigation.” Id. at 252, 759 A.2d at 1271. Potratz states in his Amended Notice of Appeal that he is a: natural person ... who works in the City of Erie and who owns real estate situated in the City of Erie.... During all times relevant to this Appeal, Appellant James B. Potratz is the owner of the Potratz Property, which is situated within the municipal boundaries of the City of Erie and within the service district of the [Authority].... The Potratz Property is supplied with water from the [Authority]. Appellant James B. Potratz fears the adverse effects of fluoridation upon his property. The mass fluoridation of the [Authority]'s water by and through the addition of an untested contaminated industrial waste product will result in a reasonable certainty of harm to Appellant James B. Potratz and his property.... Appellant James B. Potratz works in the City of Erie. Appellant James B. Potratz will be subjected to fluoridated water while he is working, as his business receives its drinking water from the [Authority]. The mass fluoridation of the [Authority]'s water by and through the addition of an untested contaminated industrial waste product will result in a reasonable certainty of harm to Appellant James B. Potratz. Amended Notice of Appeal, May 19, 2004, Paragraph Nos. 1, 15-17; at 1,4. These pleadings by Potratz are sufficient to prove that Potratz was an aggrieved party at the time the construction permit was issued. He had a “substantial” interest as a land owner in the Authority's service area. He had a “direct” interest as the approval of the construction permit was the approval of the type of system that would be constructed. Potratz also had an “immediate” interest in that once the system was approved at the construction phase, the consumers would receive the fluoridated water, unless the Authority failed to build the facility in conformance with the permit. Potratz's constitutional claims were ripe at the time the DEP granted the construction permit to the Authority. A claim is ripe when the issues are adequate for review and the challenged action would be final. ^FN10 This is to prevent courts from making premature adjudications and also to help them avoid hearing abstract disagreements over administrative policies. Merriam v. Philadelphia Historical Commission, 777 A.2d 1212 (Pa.Cmwlth.2001). The present controversy involved an issue that would have been ripe at the construction permit phase. As the plans and type of fluoridation process to be used at the facility were approved by the construction permit and there were no other approvals necessary for the type of fluoridation process to be used at the facility, the DEP's action in granting the construction permit was a final action. All of the issues relating to the fluoridation of the water supply and the manner in which it was to be accomplished were discussed and finalized when the construction permit was granted. The DEP's approval of the construction permit was not only an approval of the fluoridation process that would be used by the Authority but also an approval of the hydrofluorosilicic acid type of fluoridation process, all of which were stated in the application for the construction permit. The operations permit would merely confirm that the construction was completed in accordance with the construction permit and the operating conditions were complied with. It did not address the construction or fluoridation issue any further. The only approvals necessary after the construction permit was granted were procedural in nature, such as obtaining approval to obtain a certificate that the construction was in accordance with the plans and specifications and an approval of the conditions of having properly certified personnel to operate the facility, etc. Thus, the DEP's determination was final and adequate for review, including the fluoridation process, at the time the construction permit was issued. FN10. Potratz is questioning whether his constitutional rights were violated, not whether a statute is unconstitutional. After the appeal period for the construction permit expires, the contractor cannot be expected to continue to deal with objections to the pre-construction phase as the uncertainty created thereby would place an unreasonable burden on economic development. If objections were allowed to be raised at any time after the construction was complete, the construction permit would be meaningless. Persons requesting a construction permit would be reluctant to spend considerable effort, time and money to construct a facility when it could be found after construction was complete that the construction permit appeal period was not final as to all pre-construction issues which could have been raised previously. When the construction permit was issued, it created a right to appeal which was the exclusive remedy for opposing the construction and operation and must be strictly pursued at that time. Wheeling-Pittsburgh. Potratz became an “aggrieved” party and the matter was ripe for adjudication when the Authority was issued the construction permit. The issuance of the operating permit cannot be used as a method of collaterally attacking any issue which was or could have been raised when the construction permit was issued. Accordingly, we must affirm the decision of the Board. ORDER AND NOW, this 19th day of April, 2006 the order of the Environmental Hearing Board in the above captioned matter is affirmed.

+/- Rovin v. Pennsylvania Public Utility Commission

Pennsylvania, Unlicensed Practice of Medicine/Compulsory Medication, Unnecessary Unsafe & Wasteful

• Plaintiff
  Sheldon R. Rovin
• Defendant
  Pennsylvania Public Utility Commission
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Unnecessary Unsafe & Wasteful
• Citation
  94 Pa. Commw. 71; 502 A.2d 785 (Pa. Commw. Ct. 1986)
• Year
  1986-00-00T00:00:00
• Court Name
  Commonwealth Court of Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  MacPhail
• Opinion Text
  MacPHAIL, Judge. Sheldon R. Rovin, D.D.S. (Petitioner) seeks review of an order of the Pennsylvania Public Utility Commission (PUC) dismissing his complaint that the Philadelphia Suburban Water Company (PSWC) failed to provide him with adequate, safe and reasonable water service in violation of Section 1501 of the Public Utility Code (Code), 66 Pa.C.S. § 1501. We affirm.^FN1 FN1. Pursuant to Pa.R.A.P. 1952(b), Petitioner and the PUC entered into a stipulation agreeing that neither the record nor a certified list of its contents would be filed with the court. Section 1501 of the Code provides in full: Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, and shall make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public. Such service also shall be reasonably continuous and without unreasonable interruptions or delay. Such service and facilities shall be in conformity with the regulations and orders of the commission. Subject to the provisions of this part and the regulations or orders of the commission, every public utility may have reasonable rules and regulations governing the conditions under which it shall be required to render service. Any public utility service being furnished or rendered by a municipal corporation beyond its corporate limits shall be subject to regulation and control by the commission as to service and extensions, with the same force and in like manner as if such service were rendered by a public utility. The commission shall have sole and exclusive jurisdiction to promulgate rules and regulations for the allocation of natural or artificial gas supply by a public utility. Petitioner states in his brief that the question involved in this appeal is: Does the PUC have authority to decide a complaint wherein a water company customer alleges that the practices of the company regarding fluoridation of the water it supplies its customers are not “adequate, ... safe and reasonable” as required by [Section 1501 of the Code]? Petitioner also states that the PUC answered that question in the negative. He asks this Court to reverse the PUC order and remand the case to the PUC for a decision “on the merits”. Petitioner is a dentist residing in PSWC's service area. Petitioner filed a complaint with the PUC alleging that some of PSWC's customers receive fluoridated water while others do not. Petitioner claims that the service provided by PSWC is unsafe, inadequate and unreasonable in that (1) those customers not receiving fluoridated water are denied the benefits of fluoridated water and (2) those customers who are receiving fluoridated water might be harmed if their pediatricians prescribe a fluoride supplement. Following a hearing, an Administrative Law Judge (ALJ) recommended that Petitioner's complaint be dismissed on the basis that the Code is devoid of any specific language authorizing the PUC to require utilities to fluoridate their water supply. The PUC adopted the ALJ's recommendation, noting that the fluoridation issue properly would lay before the Department of Environmental Resources (DER). A timely appeal to this Court followed. Petitioner's primary argument on appeal is that the PUC misconceived the nature of his complaint. Petitioner avers that the PUC dismissed his complaint on the basis that the issue raised was whether PUC could direct PSWC to fluoridate its water. Petitioner alleges that the issue really presented in his complaint was whether an unreasonable and potentially unsafe situation exists, in violation of Section 1501 of the Code, when PSWC provides only some of its customers with fluoridated water.^FN2 FN2. We must note, however, that Petitioner stated in his complaint filed with the PUC: The proposed rate increase by the Philadelphia Suburban Water Company does not assure that the water provided will be “safe and adequate” as required by statute. If the increase is approved, then assurance should be given that the water will be “safe and adequate” which by definition means adding the proper substances to it. I should like assurance that the proper substances for the complete health of the people drinking the water will, in fact, be added. (Emphasis added). It appears that PSWC obtains most of its water from sources owned and operated by PSWC. That water is not fluoridated. Approximately 7% of the water supply comes from the Bucks County Water and Sewer Authority and the Chester Municipal Authority. Water from those sources is fluoridated. Petitioner contends that PSWC's customers will not know whether the water they are using is fluoridated and that there is a possibility that a dentist's recommendation of a fluoride application to a patient whose water is fluoridated could cause fluorosis because the total amount of fluoride might then exceed permissible levels. This, Petitioner says, renders the water unsafe. At the direction of the ALJ, PSWC did offer testimony indicating that its water was safe and that laboratory services were available and used to make that determination. Petitioner did not prove or offer to prove that the fluoride levels in any of PSWC water distributed to its customers exceeded safe limits. The ALJ did refer to the Petitioner's precise argument on this point in his recommendation to the PUC and concluded that since Petitioner failed to offer any evidence that any PSWC customer had been afflicted with fluorosis because of the fluoride levels in the water and since the company did offer testimony that the water was safe, there was nothing in the record that would warrant PUC intervention. We agree. Petitioner frames the issue as whether in providing water containing varying levels of fluoride to some of its customers, PSWC is violating its statutory obligations as above set forth. We believe the correct issue is whether PSWC furnished adequate, efficient, safe and reasonable water service to its customers. See Barone v. Pennsylvania Public Utility Commission, 86 Pa. Commonwealth Ct. 393, 485 A.2d 519 (1984). It is apparent that Petitioner herein is not complaining about the quality of service but rather is complaining about the quality of the water. Water quality in Pennsylvania is statutorily regulated by the provisions of the Pennsylvania Safe Drinking Water Act, Act of May 1, 1984, P.L. 206, 35 P.S. §§ 721.1-721.17 and the Federal Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-10. Enforcement of those statutes is specifically vested in DER and the Federal Environmental Protection Agency. It is provided in Section 318 of the Code, 66 Pa.C.S. § 318 that the PUC “may certify to the DER any question of fact regarding the purity of water supplied to the public by any public utility over which it has jurisdiction, when any such question arises in any controversy or other proceeding before it....” Petitioner concedes in his brief to this Court that “[h]e did not present the PUC with a claim that the composition of PSWC's drinking water violated any DER-administered statute or DER-promulgated regulation. Similarly, [Petitioner's] complaint raised no issue regarding the ‘purity’ of PSWC's water supply.” Petitioner's Brief at 14. Accordingly, there was no need for the PUC to certify any question of fact regarding the fluoridation issue to DER. Petitioner did not otherwise complain about the quality of service PSWC provides. In our opinion, therefore, he did not sustain his burden of proving a violation of Section 1501 of the Code, and the PUC properly dismissed his complaint. ORDER The order of the Pennsylvania Public Utility Commission, Docket No. R-842592, dated December 10, 1984, is affirmed.

+/- Sheffer v. City of Harrisburg

Pennsylvania, Injunction, Unnecessary Unsafe & Wasteful

• Plaintiff
  Sheffer
• Defendant
  City of Harrisburg
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  - Injunction

  - Unnecessary Unsafe & Wasteful
• Citation

  60 PA D. & C. 2d 725 (Pa. Com. Pl. 1971)

• Year
  1971-01-01T00:00:00
• Court Name
  Common Pleas Court of Dauphin County, Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Caldwell J
• Opinion Text
  CALDWELL, J. On December 22, 1970, the City Council of the City of Harrisburg enacted an ordinance authorizing and directing the mayor to cause the public water supply of the city to be fluoridated. The following day, December 23, 1970, plaintiff filed a complaint in equity seeking to enjoin the city and various of the officials of the city from pursuing the direction and authorizations contained in the ordinance. On January 11, 1971, preliminary objections were filed by defendants, consisting of a demurrer, a petition raising the defense of lack of capacity to sue, and, in the alternative, a motion for a more specific pleading. These objections have been argued and are now before us for disposition. The issue before the court at this time does not involve a decision on the merits of fluoridation. Before this important question can come before us, we must resolve several legal questions that have been advanced concerning plaintiff's complaint and the theories under which she is proceeding. THE DEMURRER Defendants allege that plaintiff has failed to state a cause of action upon which relief can be granted, and, in order to dispose of this objection, it is necessary to analyze the several bases for relief relied upon by plaintiff. The allegations of plaintiff's complaint in certain respects are vague and ambiguous and neither the complaint nor argument brief gives a completely clear indication of the legal or factual theories upon which she is proceeding. However, we believe it can be fairly stated that plaintiff's primary contention is that the fluoridation of a public water supply is prohibited by the following statutes for the reasons set forth: 1. That the fluoridation of public water supplies is prohibited by section 8 of the General Food Law of May 13, 1909, P. L. 520, 31 PS §1, et seq. 2. That the provisions of the Act of July 26, 1913, P. L. 1363, sec. 2, as amended, 43 PS §473, declares the use of fluorides as dangerous to health, thus rendering fluoridation illegal. 3. That the provisions of the Act of June 24, 1939, P.L. 872, 18 PS §4639, dealing with poisons, require that the fluoridation of water be declared illegal and improper. Although it is not included in the complaint, plaintiff's brief also refers to the Non-Alcoholic Beverage Law of July 5, 1957, P. L. 485, as amended, 31 PS §790.1, which deals with the manufacture, bottling and sale of nonalcoholic beverages. This act provides that a nonalcoholic drink shall be deemed adulterated if it contains any “... hydrofluoric acid or fluorides, fluoborates, fluosilicates or other fluorine compounds ...”: 31 PS §790.5. The applicable provisions of the General Food Law provide as follows: “... an article of food shall be deemed to be adulterated, “... “Fifth. If it contains any added ... hydrofluoric acid or fluorides, fluoborates, fluosilicates, or other fluorine compounds ...”: 31 PS §3. It is plaintiff's contention that the fluoridation of a public water supply is prohibited by the provisions quoted above from the General Food Law and the Non-Alcoholic Beverage Law, although no authority or argument is submitted to support these conclusions. Defendants urge that neither of these acts apply to the fluoridation of a public water supply, and it would appear that a logical argument can be made for this position. The General Food Law, which was enacted long before the fluoridation issue arose, is concerned with the manufacture or sale of adulterated “food” and it has been held that the act does not apply to ““drinks” prepared by one who bottles carbonated or still beverages. See Cott Beverage Corporation v. Horst, 380 Pa. 113, 110 A.2d 405 (1955). In Commonwealth v. Kebort, 212 Pa. 289, 61 Atl. 895 (1905), the court, in discussing an earlier food law, noted that food and drink have definite legal meanings: “The words food and drink in common usage and understanding are complementary and associate terms, denoting the two prime necessities of life, but they are so far from synonymous that they import a plain and fundamental distinction, as universal as language and as old as the human race. No tongue is so primitive that it lacks different words to indicate them and different words to express the sensations of want of them, as hunger and thirst”: Page 291. In Commonwealth v. Mengel, 21 Pa. D. & C.2d 335 (1959), the court decided that cider is a beverage or drink and is not an article of “food,” and that cider is not within the ambit of the General Food Law. If the General Food Law is not applicable to beverages or drinks, we fail to see how it could be extended to apply to water. Insofar as the Non-Alcoholic Beverage Act is concerned, we note that the section relied upon by plaintiff includes the provision that, “Nothing herein prohibits the use of treated potable water as furnished by any approved public water supply”: 31 PS §790.5. Although there have been no interpretations of either act within the framework of the fluoridation issue, it should be observed that both statutes appear to deal with those engaged in the business of preparing and selling food and beverages to the general public. It can be argued that these laws apply to the fluoridation of water because fluoridated water from a public water supply will be consumed or used by those engaged in the food and beverage business. However, we believe that such reasoning is too remote to the apparent purposes of the two statutes, which is to regulate certain businesses. Without some clearer indication of the legislative intent, we do not agree that the application of these acts can be broadened to the extent desired by plaintiff. It is readily apparent that the real purpose of the statutes under consideration is to regulate and control persons and firms who are directly engaged in the commercial manufacturing and sale of food and nonalcoholic beverages to the general public. There is no indication in either act, or in the cases decided under them, that any different result was intended. It has already been noted that the beverage law specifically excludes the treatment of public water and our courts have decided that the food law does not apply to drinks, which certainly includes water. We conclude that the General Food Law and the Non-Alcoholic Beverage Law^FN1 have no application concerning the treatment of public water supplies, including fluoridation, and we sustain defendants' demurrer to plaintiff's action based on said laws. FN1. In Readey v. St. Louis County Water Co., 352 S. W. 2d 622 (1961), it was held that fluoridation did not violate the Missouri Non-Alcoholic Beverage Law. Similarly, we see no applicability of the other statutory provisions relied upon by plaintiff. The Act of July 26, 1913, P. L. 1363, sec. 2, 43 PS §473, is known as the Pennsylvania Lead Manufacturers' Act. The obvious purpose of this legislation is to safeguard the health of employes engaged directly in the manufacture of certain substances, including fluosilicate. However, the act has no application whatsoever to the subject under consideration and plaintiff has not demonstrated how the fluoridation of water could possibly be affected by the terms of this statute. The remaining statutory provision cited by plaintiff, the Act of June 24, 1939, P. L. 872, 18 PS §4639, is from The Penal Code. This act makes it a crime to sell certain poisons, including any “corrosive sublimate,” except on the prescription of a physician. The act also controls the labeling of containers and the identification and registering of purchasers of poisons. Assuming that fluorine is a corrosive sublimate, it is nevertheless our opinion that this act has no applicability to the fluoridation of public water and in accordance with our previous discussion must be restricted in its application to the conduct prohibited by its terms and none other. In this connection, we note that arguments that fluoridation violates statutory prohibitions against the unlicensed practice of medicine or the unlawful sale of poisons were rejected in Dowell v. City of Tulsa, 273 P.2d 859 (1954), and Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N. W. 2d 569 (1961), respectively. The Food and Beverage Laws and the other statutes relied on by plaintiff are penal in nature and in accordance with section 58 of the Statutory Construction Act of May 28, 1937, P. L. 1019, 46 PS §558, and numerous cases decided thereunder, must be strictly construed. See Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959). The object of all interpretation and construction of laws is to ascertain and effectuate the legislative intent and a strict construction of the two statutes fails to support the plaintiff's position. See Commonwealth v. Peoples, 345 Pa. 576, 28 A.2d 792 (1942). Plaintiff's contentions concerning the applicability of the foregoing statutes require a strained and distorted interpretation of the language of these laws which we are unwilling to adopt, and we have been unable to find any case law that supports plaintiff's application of these laws. In Genkinger v. Water Co., 14 Lawrence 101 (1955), the court passed upon the merits of fluoridation but, unfortunately, the issue of the applicability of these acts was not raised. So far as we can ascertain, this is the only case in Pennsylvania dealing with the legality of fluoridation. We sustain defendant's demurrer and rule that none of the statutory authority relied upon by plaintiff prohibits or controls fluoridation of the public water supply of the City of Harrisburg. PLAINTIFF'S CAPACITY TO SUE We have studied defendants' contention that plaintiff lacks capacity to sue and has no standing to enforce the provisions of the General Food Law and the Non-Alcoholic Beverage Law because those acts provide that they shall be enforced by the Secretary of Agriculture: 31 PS §8 and 31 PS §790.12. While the disposition of this question may not be required because of our action on defendants' demurrer, we nevertheless believe a comment on said objection is indicated. We do not agree with defendants that the enforcement of these laws is limited to litigation brought by the Secretary of Agriculture, although we recognize that most cases will be prosecuted in this form. As between the various agencies of State government, these acts clearly place the duty on the Secretary of Agriculture to enforce them. But does it follow that no other citizen can seek the protection afforded by these laws? We have found no decision which so holds. Defendants attempt to compare this case to one where a mandamus action is brought against a public official to procure the enforcement of a duty owed by that official. In such situations, the Act of June 8, 1893, P. L. 345, sec. 4, 12 PS §1914, requires that “the proceedings shall be prosecuted in the name of the commonwealth on the relation of the attorney general.” This act has been interpreted as limiting such actions to suits by the Attorney General. See Dorris v. Lloyd, 375 Pa. 474, 100 A. 2d 924 (1953). We fail to see that the situations are comparable, however, because the General Food Law only provides that the Department of Agriculture “shall be charged with the enforcement of” the act and the Beverage Law states that the Secretary of Agriculture “shall have the power and it shall be his duty” to enforce the act. Neither act contains the restriction that its provisions may not be raised in an appropriate case by a private citizen. Plaintiff here seeks to enjoin an act which she argues is prohibited by these laws and we see no incapacity in this regard. The food and beverage laws were enacted to protect the public health and welfare and, in absence of a definitive holding by our courts, we believe that a citizen may allege violations of these laws in litigation of this nature. Were the food and beverage laws applicable to this case, we would hold that any affected citizen would have standing to contend that fluoridation of water is prohibited by them. In this case, however, the matter of plaintiff's standing to sue is moot, for we have already decided that the food and beverage laws are not applicable to the fluoridation of a public water supply. MOTION FOR MORE SPECIFIC COMPLAINT We come now to defendants' motion for a more specific complaint. In addition to the statutory provisions relied on by plaintiff, the complaint contains broad averments or inferences to the effect that fluorine is “a very dangerous chemical substance”; that “the hazards are great”; that “the adoption of said (fluoridation) ordinance ... is reckless and without due regard and consideration for the health and welfare of the resident consumers of the City”; that the “consumers ... will sustain irreparable injury, if fluorine is inducted in the city water supply”; that certain text writers consider fluorine a dangerous chemical; that fluoridation is “needless, wasteful, illegal, injurious to health,” etc. We consider these statements as being expressions of opinion or conclusions and not averments of fact, and we note that the complaint fails to allege any facts in support of these generalizations. If plaintiff seeks relief independently of the statutory authority referred to in the complaint, it is incumbent upon her to plead the facts upon which she relies concisely and with particularity in accordance with the Pennsylvania Rules of Civil Procedure. It is insufficient to simply allege that fluoride is a dangerous or harmful chemical, that fluoridation is dangerous to the consumer or that certain textbooks consider it so. Plaintiff must set forth the facts upon which such conclusions are based. As stated in 3 Standard Pa. Pract. §31, 135, “every party is entitled to be informed of the facts he will meet so that he may properly prepare his case.” See also Bakery & Confectionery Workers v. Local 464, 84 Dauph. 301 (1966). The complaint does not comply with the requirements of the rules and plaintiff will be permitted to file an amended complaint if this matter is to be pursued. ORDER And now, November 10, 1971, defendants' demurrer is sustained in accordance with this opinion and defendants' motion for a more specific pleading is granted. Plaintiff is afforded 30 days in which to file an amended complaint.

+/- Aitkenhead v. Borough of West View

Pennsylvania, Injunction, Improper Procedure

• Plaintiff
  Paul W. Aitkenhead et al.
• Defendant
  Borough of West View et al.
• State
  Pennsylvania
• Other Parties
  West View Water Authority et al.
• Case Tags
  - Injunction

  - Improper Procedure
• Citation

  65 Pa. Commw. 213; 442 A.2d 364 (Pa. Commw. Ct. 1982)

• Year
  1982-01-01T00:00:00
• Court Name
  Commonwealth Court of Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Williams J
• Opinion Text
  WILLIAMS, Judge. This case comes before the Court for a decision concerning preliminary objections to the jurisdiction of the common pleas court over an equity action challenging the addition of fluoride to a public water system, in accordance with a permit properly issued by the designated state agency. In January, 1978, the West View Water Authority (authority) announced its intention to begin adding fluoride to the public water supply, under the auspices of a permit granted by the then-Pennsylvania Department of Health, whose functions are now performed by the Department of Environmental Resources (DER). In response to that announcement, this suit was filed on February 28, 1978, seeking preliminary and permanent injunctive relief to block the fluoridation. The authority filed preliminary objections asserting that equity could not take jurisdiction because there was an adequate and alternative remedy before DER and the Environmental Hearing Board. Fluoridation began, as scheduled, on March 1, 1978. In November, 1978, the common pleas court granted the preliminary injunction. The authority promptly filed a request for a supersedeas, in which it argued that modification of an existing water supply could not legally be effected without permission of DER, under the provisions of the Water Supply Law. ^FN1 The court denied the supersedeas request, and, in response to the authority's appeal to the Commonwealth Court, issued an additional decree, in which it “restored from automatic supersedeas”^FN2 its preliminary decree. It further ordered that the prohibition against fluoridation should remain in effect until (1) the matter was submitted to, and dealt with, by DER, or (2) a final hearing on the matter was held in the common pleas court. FN1. Act of April 22, 1905, P.L. 260, 35 P.S. s 711 et seq. FN2. Pa.R.A.P. 1736(b). The authority applied to DER for permission to discontinue the fluoridation, but its application was denied by letter of January 8, 1979. Neither the authority nor the plaintiffs in the equity action pending before the common pleas court appealed that decision to the Environmental Hearing Board. In the meantime, this Court, by order of the late President Judge Bowman, had reinstated the automatic supersedeas. The case first came before this Court, sitting en banc, on a Motion to Dismiss the preliminary injunction appeal for mootness. The petitioners, plaintiffs below, and appellees in this Court, contended that the authority's appeal was moot because the aforementioned decision of the DER dissolved the preliminary injunction issued by the common pleas court. The appellants argued that the appeal was not moot, because the issuance of the preliminary injunction was premised on the usurpation of DER's jurisdiction by the common pleas court. We held, however, that the appeal was indeed moot, disagreeing with “appellants' conclusion that the court has ruled on its jurisdiction.” Aitkenhead v. Borough of West View, 40 Pa.Commonwealth Ct. 547, 550, 397 A.2d 878, 879 (1979). We observed that although the issuance of the preliminary injunction was an implicit or explicit conclusion that the court's jurisdiction extended to the preliminary injunction, it was not a final determination of jurisdiction by that court. We therefore remanded the case to the Common Pleas Court for a decision on the outstanding preliminary objections prior to a final hearing on the permanent injunction. On May 25, 1979, the lower court issued an order denying the preliminary objections. Since no Opinion was filed in conjunction therewith, we do not have the benefit of the court's reasoning. The authority appealed to this Court, and the appellees promptly filed a Motion to Quash the appeal as being interlocutory. We determined that the action was appealable because the provisions of the Act of March 5, 1925, P.L. 23, s 1, 12 P.S. s 672, pursuant to which the appeal was filed, were in effect until June 27, 1980, and the appeal was not therefore barred.^FN3 FN3. See The Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, No. 53, s 2(a) (1069), 42 P.S. s 20002, which applies s 4(b) of JARA to the repeal of the Act of March 5, 1925, P.L. 23, 12 P.S. s 672 et seq. Section 4(b) of JARA states that Repeals contained in this act which make reference to this subsection shall take effect two years after the general effective date of this act. The Pennsylvania Supreme Court affirmed our order, and the case is presently before this Court on the question of whether equity can take jurisdiction in the face of a statutory administrative remedy. We find nothing in the facts or law of this case which would cause us to deviate from the general rule that equity will not inquire into a controversy where to do so would obviate a constitutionally valid statutory exclusive procedure enacted by the legislature. City of Beaver Falls v. Samuels, 272 Pa.Superior Ct. 76, 79, 414 A.2d 676, 678 (1979). Appellees contend that, at the time the suit was instituted, there was no adequate remedy at law, since the time for appeal from the issuance of the permit ten years before had long since run. Therefore, equity had jurisdiction, and once exercised, that jurisdiction would be retained, in spite of the alternate statutory remedy which became available when DER denied the authority's request to discontinue fluoridation. Gulbenkian v. Gulbenkian, 147 F.2d 173 (2d Cir. 1945), cited by appellees in support of their “retained jurisdiction” argument, involved a completely distinguishable procedural matter. There, plaintiffs apparently prayed for specific performance of a contract, but later motioned to amend their pleading to conform to the proof, so as to secure a judgment for damages for breach of that contract. In directing the lower court to take evidence on the issue of damages, the Second Circuit noted that legal and equitable claims could be joined under the Federal Rules of Civil Procedure. Implicit in this statement is the understanding that the district court had the jurisdiction to hear and resolve both the legal and equitable aspects of the dispute. In the case sub judice, the alternate legal remedy is not within the jurisdiction of the common pleas court, because it is not empowered to review a decision of DER. In this instance, where no action had been taken by DER since the issuance of the permit ten years before, it is not unlikely that there was no adequate remedy at law for those individuals who, perhaps, labored under legal infirmities ten years before, or who, perhaps, had moved into the municipalities during the intervening years, and were unaware of the planned change in the water supply. Under the limited facts of this case, taking into account the extensive lapse of time between the permit issuance and the commencement of fluoridation, we cannot find that the common pleas court improperly exercised its equitable jurisdiction in ordering a temporary cessation of a possibly harmful undertaking until the designated agency exercised its statutorily vested discretion,^FN4 reviewed information acquired during the intervening years, and refused to allow the authority to discontinue the fluoridation. That DER decision, however, is eventually reviewable by the Commonwealth Court, under the provisions of the Administrative Agency Law, 2 Pa.C.S. s 501 et seq. and Chapter 15 of the Rules of Appellate Procedure, and is not reviewable within the jurisdiction of the common pleas court. What has occurred here is simply a request to an inappropriate forum to resolve a dispute that it is not authorized to examine.^FN5 FN4. Department of Environmental Resources v. Lebanon, 482 Pa. 66, 393 A.2d 381 (1978). FN5. The administrative system of this Commonwealth would be thrown into chaos if we were to hold that agency decisions, reviewable by law by the Commonwealth Court, are also susceptible to collateral attack in equity in the numerous common pleas courts. See also, 42 Pa.C.S. s 763. We therefore reverse the determination of the common pleas court, and sustain the appellant's preliminary objections to jurisdiction in that tribunal because (1) the appellees failed to exhaust their administrative remedy in appealing the adverse decision of DER to the Environmental Hearing Board, and (2) DER is vested by statute with the duty to administer the Water Supply Law, and any objections to the decisions concomitant to that administration are reviewable by appeal to the Environmental Hearing Board, the Commonwealth Court, and the Pennsylvania Supreme Court, but not the common pleas courts of this state. ORDER AND NOW, this 9th day of March, 1982, the Order of the Court of Common Pleas of Allegheny County, dated May 25, 1979, filed to No. GD 4585-78 is hereby reversed, and the preliminary objections to jurisdiction are sustained. PALLADINO, J., did not participate in the decision in this case.

+/- Williamsport v. Commonwealth, Department of Agriculture

Pennsylvania

• Plaintiff
  City of Williamsport
• Defendant
  Commonwealth of Pennsylvania, Department of Agriculture, et al.
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  -
• Citation
  1 Pa. Commw. 332 (Pa. Commw. Ct. 1971)
• Year
  1971-00-00T00:00:00
• Court Name
  Commonwealth Court of Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Crumlish J
• Opinion Text
  OPINION BY JUDGE CRUMLISH, JR. Before this Court is a Complaint in Mandamus brought by the City of Williamsport seeking to order the Department of Agriculture to enforce the General Food Law, Act of May 13, 1909, P.L. 520, 31 P.S. § 1 et seq., pursuant to its authority under Section 8 of that Act. To support its contention that there is a violation of the General Food Law, it is alleged that by fluoridating the public water supply the Williamsport Municipal Water Authority adulterates its water, asserting that water is an ingredient in the preparation of food. Specifically, the City of Williamsport wants the Department of Agriculture to institute appropriate legal action against the Water Authority to enforce the Act. The Williamsport Municipal Water Authority has been fluoridating its water pursuant to a permit granted by the Department of Health. The Authority is now seeking to terminate fluoridation. In a separate action, the Department of Health has moved to obtain judicial relief by enjoining the Authority's program to end fluoridation. Commonwealth of Pennsylvania v. The Williamsport Municipal Water Authority is pending before the Lycoming County Court of Common Pleas, No. 4, November Term, 1969 and the City of Williamsport has joined as an intervenor in that action. Certain citizens of Williamsport have carried on a tireless fight to maintain the naturalness of their water. However, the issue before this Court is not whether fluoridation has merit. This will be determined by the Lycoming County Court of Common Pleas, supra. Before us we have an allegation by the City that fluoridation of water which is used in the preparation of food is a clear violation of the General Food Law and that the Department of Agriculture has improperly and illegally refused to enforce the Act pursuant to the authority given it under Section 8. We are asked to compel the Department to perform its duty as the City sees it. “Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy: Borough of Easton v. Lehigh Water, 97 Pa. 554, 560; Goodman v. Meade, 162 Pa.Superior Ct. 587, 60 A.2d 577.” Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177 (1952) (Emphasis in Original). Defendant argues that the City's request is deficient in at least two of the cited requisites. First, we are asked to conclude that the City does not have standing to maintain this suit. Section 4, Act of June 8, 1893, P.L. 345, 12 P.S. § 1914; Dorris v. Lloyd (No. 1), 375 Pa. 474, 100 A.2d 924 (1954); Butcher v. Philadelphia Civil Service Commission, 163 Pa.Superior Ct. 343, 61 A.2d 367 (1948); Butcher v. Hersch, 7 D. & C.2d 418 (1956); Commonwealth ex rel. Blanc v. Hersch, 20 D. & C.2d 682, 684 (1960). Alternatively, we are asked to conclude that the duty to enforce the General Food Law under Section 8 involves discretionary decisions not permitting of mandamus. Travis v. Teter, supra; Commonwealth ex rel. McLaughlin v. Erie County, 37 Erie 188, affirmed, 375 Pa. 344, 100 A.2d 601 (1954); Shamberg v. McNulty, 72 D. & C. 488 (1950). The posture of this case, however, is such that we find it unnecessary to pass on the merits of defendant's contention. Even if these questions were resolved in a manner most favorable to the plaintiff, this Court must dismiss the Complaint. “A writ of mandamus is not a writ of right; and whether mandamus shall issue is a matter for the exercise of a sound discretion by the court: Gold v. Building Committee of Warren Borough, 334 Pa. 10, 5 A.2d 367; Reading v. Commonwealth, 11 Pa. 196; Achuff's Appeal, 12 Pa.Superior Ct. 573. “If the interests of the general public would be injuriously affected, or if the object sought to be obtained is inequitable, or oppressive, or excessively burdensome, or is likely to create disorder and confusion in municipal or governmental departments, the courts may, in their discretion, refuse to issue the writ: Sinking Fund Commissioners v. City of Philadelphia, 324 Pa. 129, 135, 188 A. 314; ... 34 Am.Jur. 833, § 40; 35 Am.Jur. 16, § 240; 55 C.J.S. Mandamus § 10a.” Waters v. Samuel, 367 Pa. 618, 621-22, 80 A.2d 848 (1951). (Emphasis in original). See also, Dombrowski v. Philadelphia, 431 Pa. 199, 245 A.2d 238 (1968); Commonwealth ex rel. Alessandroni v. Confluence Borough, 427 Pa. 540, 234 A.2d 852 (1967). We hold that the writ sought would needlessly and adversely affect the water supply of millions of citizens throughout the Commonwealth and result in disorder and confusion between the Department of Health and Agriculture. The City is attempting to aid its water authority and its citizens in their fight to protect their exceptional local water system. However, the order which it seeks must of necessity require the Department of Agriculture to alter the operations of water systems throughout the state. If it is mandatory for the Department to prosecute violations of the General Food Law, then enforcement could not be limited to Williamsport alone. In addition, it is conceivable that the Williamsport Municipal Water Authority would find itself enjoined as a result of the Lycoming County Common Pleas proceeding brought by the Department of Health to require fluoridation and enjoined in the proceeding before us brought by the Department of Agriculture to cease fluoridation. The resulting disorder between the governmental agencies is precisely what concerned the Court in the cases cited above. The refusal of this Court to grant the relief sought, however, does not leave the City without any recourse. To the contrary, it would appear that the controversy may finally be put to rest. Both the City and the Authority are challenging the right of the Department of Health to compel fluoridation. Courts cannot compel the commission of an illegal act. Brown v. Brancato, 321 Pa. 54, 184 A. 89 (1936). If the Lycoming County Court of Common Pleas should find fluoridation of the water violates the General Food Law, it must dismiss the Complaint and refuse to issue the injunction sought by the Department of Health. The people of Lycoming County are engaged in a controversial and principled struggle with the Department of Health which at this point can be adequately adjudicated by the Common Pleas Courts of that County. We feel compelled to oppose the needless proliferation of this fight which would include governmental agencies and municipalities, especially where the adverse effects of this proliferation would disturb the tranquility of every community in the Commonwealth. We do not hold that the City could under these facts succeed in the action before us. However, we do hold that under any circumstances where the effect of the issuance of a writ would be detrimental to the general public and the orderly function of governmental agencies, that writ must be denied.

+/- 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.

+/- Safe Water Foundation of Texas v. City of Houston

Texas, State police power

• Plaintiff
  Safe Water Foundation of Texas
• Defendant
  City of Houston
• State
  Texas
• Other Parties
  -
• Case Tags
  - State police power
• Citation
  661 S.W.2d 190 (Tex. App. 1983)
• Year
  1983-00-00T00:00:00
• Court Name
  Court of Appeals of Texas, First District, Houston
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Doyle
• Opinion Text
  DOYLE, Justice. This is an appeal from a judgment denying the appellant's petition for permanent injunction to prohibit the City of Houston (City) from injecting fluoride into its water supply. The Houston City Council (Council) held public hearings at which it received views of interested citizens concerning the issue of injecting fluoride into the City's surface water supply. On July 8, 1980, the Council passed Ordinance No. 80-2530 adopting the recommendation by Dr. James Watson, Director of the City of Houston Health Department, that fluoride, in a concentration of one part per million (1 ppm), be added to the City's surface water supply. The appellants filed suit seeking an injunction to permanently enjoin the City from injecting fluoride into its drinking water. The appellants were granted a temporary restraining order until a hearing could be held. By consent of the parties, the hearing on the temporary injunction was combined with the trial on the merits. On January 13, 1982, the trial court entered judgment that the appellants take nothing. The appellants' appeal raises seven points of error. The appellee has filed one cross-point of error. In points of error one through four the appellants argue that the trial court erred (1) in holding them to a higher degree of proof than a preponderance of the evidence; (2) in failing to enter judgment in the appellants' favor based on findings of fact made by the court; (3) in failing to enter proper findings of fact; and (4) in failing to find that hydrofluosilic acid, as proscribed by the subject ordinance, constituted a “deleterious matter” as set forth in Tex.Rev.Stat.Ann. art. 4477-1, § 10(a) (Vernon 1976). Such a finding, the appellants contend, would have entitled them to a judgment as a matter of law. These four points of error will be discussed jointly. 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. City of Houston v. Johnny Frank's Auto Parts, 480 S.W.2d 774 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). Council must first decide the necessity and reasonableness of the ordinance. John v. State, 577 S.W.2d 483 (Tex.Cr.App.1979). A court will not substitute its discretion for that of the governing body of a city. City of Abilene v. Woodlock, 282 S.W.2d 736 (Tex.Civ.App.-Eastland 1955, writ ref'd, 351 U.S. 925, 76 S.Ct. 782, 100 L.Ed. 1455). 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 no indication in the case at bar that the City clearly abused its discretion. John, supra; City of Abilene, supra. An ordinance is presumed to be valid, with the burden of showing its invalidity resting on the party attacking it. 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. Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945 (1949); City of Clute v. Linscomb, 446 S.W.2d 377 (Tex.Civ.App.-Houston [1st Dist.] 1969, no writ). In the case before us, it appears that the appellants are laboring under the mistaken belief that they must only make proof by a preponderance of the evidence that the injection of fluoride into the City's water system in the amount proposed by City would be harmful. Indeed, this was the quantum of evidence that the appellants presented, both lay and scientific. The appellants' burden was to prove that the City, in the exercise of its police power, has acted arbitrarily, unreasonably and capriciously in making the decision to fluoridate its water supply. If the trier of fact finds that the municipality did not so act, its legislative determination, as reflected by its ordinances must be accepted by the courts as a valid exercise of its police power. Smith v. Davis, 426 S.W.2d 827 (Tex.1968); Johnny Franks Auto Parts Company, supra. The record herein reflects that Council heard evidence, both pro and con, from interested citizens concerning the effects of injecting fluoride into the City's water supply. Council then passed an ordinance approving the injection of fluoride. The record also shows that at trial the court heard similar evidence and concluded that the Council did not act in a manner that was arbitrary, capricious, or unreasonable. We hold that the Houston City Council, acting under Article XI, Section 5 of the Texas Constitution, had the authority and responsibility to pass Ordinance Number 80-2530 in furtherance of the public's health, safety, and welfare. There was no proof by the appellants that Council, in doing so, acted in a manner that was arbitrary, unreasonable, and a clear abuse of power. Therefore, the trial court, using this standard, was correct in upholding the validity of the city ordinance, and the court's findings relating to the burden of proof being higher than a preponderance of the evidence were dicta. For this reason the court's omission to make findings as to what constituted “deleterious matter” was harmless. The appellants' first four points of error are overruled. In their fifth point of error the appellants contend that the trial court erred in not holding that fluoridation of the City's water supply violated the United States and Texas Constitutions. Four state courts have previously upheld the constitutionality of fluoridation. In all four cases, the United States Supreme Court has denied certiorari. 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), cert. denied, 385 U.S. 1026, 87 S.Ct. 754, 17 L.Ed.2d 674 (1967); Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964); cert. denied, 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558 (1965); DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (1953), cert. 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); cert. denied, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955). Because the United States Supreme Court has never recognized the fundamental right the appellants are seeking to assert, we find no grounds on which to sustain their fifth point of error and accordingly overrule it. Points of error six and seven respectively, complain that the trial court erred in holding the word “deleterious” to be vague and also erred in holding that the appellants must prove the unconstitutionality of art. 4477-1. The authorities listed in support thereof, have been considered and analyzed. Although they are exhaustive and scholarly, we do not find persuasive support therein for appellants' burden as mandated by their pleadings. We overrule points of error six and seven. The City contends by cross-point that the trial court erred in rejecting its pleas in bar and in abatement and by special exceptions, challenging the appellants' standing to maintain this suit because they showed no justiciable interest, alleged no peculiar harm, and demonstrated no legal right to injunctive relief. The general rule is that where the purpose of a suit is to benefit the general public, and no citizen is to be affected differently from all other citizens as a result of the suit, a private citizen must allege specific damage or damage that is peculiar to him. Otherwise, he lacks a justiciable interest that permits him to institute and prosecute the suit. Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926); Marshall v. City of Lubbock, 520 S.W.2d 553 (Tex.Civ.App.-Amarillo 1975, no writ); City of Abilene v. Shackelford, 572 S.W.2d 742 (Tex.Civ.App.-Abilene 1978, no writ). A review of the authorities cited by the appellants shows a gradual trend away from the strict requirements of standing as applied to “special injury” or “justiciable interest”. The Supreme Court of Texas has apparently adopted a liberal attitude towards standing generally as shown by its decisions in Texas Highway Commission v. Texas Association of Steel Importers, Inc., 372 S.W.2d 525 (Tex.1963) and Touchy v. Houston Legal Foundation, 432 S.W.2d 690 (Tex.1968). In Texas Industrial Traffic League, et al. v. Railroad Commission of Texas, 628 S.W.2d 187 (Tex.App.-Austin 1982), reversed on other grounds per curiam, Justice Powers gives an excellent review of the background and present status of the law on standing. Of further significance is the reasoning of the court in Housing Authority v. State, 539 S.W.2d 911 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.). There, the tenants in a low income housing project filed suit to enjoin the City Housing Authority from making certain payments to the commissioners. In holding that the plaintiffs had standing to sue, the court stated at page 915: If plaintiffs are denied the right to bring and maintain this action, in effect, all tenants in a public housing project that is constructed ... will be denied the right to complain ... Plaintiffs have standing to complain about the alleged unauthorized acts of the Commissioners, and may seek relief in the courts to protect their interest and that of the general public. The appellants filed suit as “taxpaying residents and consumers” of the City's water supply. They challenged the validity of City Ordinance Number 80-2530, and alleged that the addition of fluoride could cause various injuries. They averred that such injuries were “immediate and irreparable in that some marginal individuals” would suffer ill health immediately. The appellants' pleadings entitled them to sue not only to protect their individual interests but those of the general public as well. We hold that the appellants had standing to sue and deny the appellee's counter-point. The judgment of the trial court is affirmed.

+/- Birnel v. Town of Fircrest

Washington

• Plaintiff
  Patricia I. Birnel
• Defendant
  Town of Fircrest
• State
  Washington
• Other Parties
  -
• Case Tags
  -
• Citation
  53 Wn.2d 830; 335 P.2d 819 (Wash. 1959)
• Year
  1959-00-00T00:00:00
• Court Name
  Supreme Court of Washington
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  PER CURIAM. Plaintiff commenced this action to have ordinance No. 323 of the town of Fircrest declared unconstitutional and to enjoin the town from adding to the city water supply ‘...a source of fluoridation approved by the State Department of Health ...under the rules and regulations of the State Board of Health, such addition to be administered in a manner approved by the State Department of Health.' A demurrer was sustained to plaintiff's amended complaint; she elected not to plead further and now appeals from a judgment dismissing her action with prejudice. The judgment is affirmed on the authority of Kaul v. City of Chehalis, 1954, 45 Wash.2d 616, 277 P.2d 352. It is so ordered. HILL, DONWORTH, and FOSTER, JJ., dissent for all of the reasons urged in the three dissents in Kaul v. City of Chehalis, 1954, 45 Wash.2d 616, 277 P.2d 352.

+/- Clallam Co. Citizens for Safe Drinking Water v. City of Port Angeles

Washington, Improper Procedure

• Plaintiff
  Clallam County Citizens for Safe Drinking Water et al.
• Defendant
  City of Port Angeles
• State
  Washington
• Other Parties
  -
• Case Tags
  - Improper Procedure
• Citation
  137 Wn. App. 214; 151 P.3d 1079 (Wash. Ct. App. 2007)
• Year
  2007-00-00T00:00:00
• Court Name
  Court of Appeals of Washington, Division Two
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Houghton CJ
• Opinion Text
  HOUGHTON, C.J. ¶ 1 In an administrative appeal of a Determination of Nonsignificance (DNS), the City of Port Angeles Council ruled that its decision to fluoridate the public water supply was categorically exempt from environmental review under the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Clallam County Citizens for Safe Drinking Water, Protect the Peninsula's Future, and Eloise Kailin (collectively, Citizens) appealed to the superior court. The superior court dismissed Citizens' appeal, finding the proposal exempt. Because the superior court correctly determined that the City of Port Angeles (City) fluoridation proposal is categorically exempt from environmental review and the issue was properly preserved for review, we affirm. FACTS ¶ 2 On February 18, 2003, the City passed a motion to fluoridate its public water supply. Brad Collins, the responsible official for purposes of SEPA review, issued a DNS concluding that the City's decision to construct a fluoride feed facility and fluoridate the public water supply did not have a probable significant adverse impact on the environment. Collins also had determined that the proposal was categorically exempt from SEPA review because “the Washington State Department of Health allows fluoridation of public water supplies at the concentration range of .8-1.3 mg/L (ppm) pursuant to WAC 246-290-460.” ^FN1 2 Administrative Record (AR) at 2623. FN1. WAC 197-11-845 exempts “[a]ll actions under programs administered by the department of social and health services as of December 12, 1975.” On December 12, 1975, the Board and Division of Health of the Department of Social and Health Services (DSHS) regulated fluoridation of public water supplies. See former WAC 248-54-370 (1970). DSHS required purveyors of public water desiring to install fluoridation facilities to submit plans and specifications for approval. Former WAC 248-54-370. The Department of Health currently performs the same functions that were formerly assigned to DSHS. See WAC 246-290-460. Accordingly, the exemption for fluoridation activities under the DSHS program extends to the same program administered today by the Department of Health. ¶ 3 Citizens appealed the DNS to the city council (Council) ^FN2 in accordance with Port Angeles Municipal Code (PAMC) 15.04.280, arguing that fluoridation could have significant detrimental effects on public health and, therefore, an environmental impact statement should be prepared. The Council heard extensive testimony from numerous witnesses concerning the adequacy of the environmental checklist addressing the potential health impacts of fluoridation. When it rendered its decision, the Council found that fluoridation of public water supplies was categorically exempt from SEPA review under WAC 197-11-800(23)(b) ^FN3 and (1)(b)(iii). The Council also determined that the DNS was not clearly erroneous. FN2. The city council is not a separate entity from the City. But to distinguish between the roles the City played as decision-maker and proponent in the administrative appeal, we refer to it as the Council when discussing its decision on the administrative appeal. FN3. Citizens note that the Council actually cited WAC 197-11-800(24)(b) but WAC 197-11-800(24)(b) does not apply as it categorically exempts granting licenses to remove firewood. We assume that the Council intended to cite WAC 197-11-800(23)(b), which provides an exemption for utility-related actions involving “storm water, water and sewer facilities, lines, equipment, hookups or appurtenances including, utilizing, or related to lines eight inches or less in diameter.” See AR at 2623 (written testimony of the responsible official indicating he considered the proposal exempt under WAC 197-11-800(23)(b)). Thus, we refer to WAC 197-11-800(23)(b) as the first basis for exemption. ¶ 4 Citizens appealed the Council's decision and findings to the superior court. The City moved to dismiss the appeal under CR 12(b)(6), arguing that its fluoridation proposal was categorically exempt from SEPA review under WAC 197-11-800(12), -800(23), -845 and, thus, Citizens could not state a claim for relief. Citizens opposed the motion, arguing that the City was precluded from raising the categorical exemptions because it did not properly present them in the administrative appeal. Further, Citizens asserted that the proposal did not fit within any categorical exemption and, if it did, the exemption violated SEPA. ¶ 5 The superior court granted the City's motion to dismiss, finding the City's fluoridation program categorically exempt from SEPA review under WAC 197-11-845 and rejecting Citizens' other arguments. ¶ 6 Citizens moved for reconsideration, arguing that the fluoridation proposal comprised part of a larger proposal to remove the Elwha River Dams, to change the point of diversion for the municipal water supply, and to construct a new water treatment facility. And because SEPA prohibits “piecemealing” environmental review under WAC 197-11-305(1), Citizens claimed that the decision to fluoridate must be reviewed as part of a larger proposal that is not categorically exempt. Clerk's Papers (CP) at 39. The superior court found that the City's decision to fluoridate the water was independent from the federal dam removal project and denied the motion for reconsideration. ¶ 7 Citizens appealed and sought direct review by our Supreme Court, arguing that the case involved a fundamental and urgent issue of broad public import. The Court declined to grant review and transferred the case to us. ANALYSIS CATEGORICAL EXEMPTION FROM SEPA REVIEW^FN4 FN4. We recently considered the application of SEPA's categorical exemptions in PUD No. 1 of Clark County v. Pollution Control Hearings Board, Nos. 33427-5-II and 33707-0-II, 137 Wash.App.2d 159-60, 151 P.3d 1067, 2007 WL 339996 (2007). In that case we considered whether the exemption in WAC 197-11-800(17) applied to a proposal to drill a test well, concluding that the exemption applied and that the Department of Ecology's interpretation of the exemption was entitled to deference. PUD No. 1, 137 Wash.App.2d at 150, 151 P.3d at 1070-71. Because PUD No. 1 involves a different categorical exemption and a different administrative framework, it does not affect our analysis in this case. A. WAC 197-11-845 ¶ 8 Citizens assign error to the trial court's decision that the City's fluoridation proposal is categorically exempt, claiming that although WAC 197-11-845 might exempt the actions of the Department of Health in approving and regulating municipal fluoridation, it does not apply to the City's decision to initiate fluoridation. ¶ 9 Statutory interpretation presents questions of law that we review de novo. Burton v. Lehman, 153 Wash.2d 416, 422, 103 P.3d 1230 (2005). Here, we apply that standard to determine the meaning of a SEPA provision. See Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wash.2d 345, 352, 932 P.2d 158 (1997); see also RICHARD L. SETTLE, THE WASHINGTON STATE ENVIRONMENTAL POLICY ACT: A LEGAL AND POLICY ANALYSIS § 20.08, at 20-36-20-37 (2006). ¶ 10 SEPA requires agencies, including local governments, to prepare an environmental impact statement (.) for all major actions having a probable, significant adverse environmental impact. RCW 43.21C.031(1). But the legislature also directed the Department of Ecology (DOE) ^FN5 to adopt categories of actions that are not to be considered as potential major actions significantly affecting environmental quality. RCW 43.21C.110(1)(a). DOE accordingly adopted Part Nine of the SEPA rules, which sets forth numerous types of actions that are not considered to be major actions and are, therefore, categorically exempt from threshold determination and EIS requirements. See WAC 197-11-800 et seq. WAC 197-11-845 is one of these administrative exemptions. FN5. DOE is entrusted with interpreting and implementing SEPA through rule making. RCW 43.21C.110. ¶ 11 WAC 197-11-845 categorically exempts from review “[a]ll actions under programs administered by the department of social and health services as of December 12, 1975,” with specified exceptions. An “action” is defined as “(a) New and continuing activities (including projects and programs) entirely or partly financed, assisted, conducted, regulated, licensed, or approved by agencies; (b) New or revised agency rules, regulations, plans, policies, or procedures; and (c) Legislative proposals.” WAC 197-11-704(1). Thus, WAC 197-11-845 broadly exempts all new or continuing programs subject to official approval or oversight, as well as official changes in law or policy, provided that the activity occurs under a program the Department of Social and Health Services (DSHS) administers. ¶ 12 Based on these provisions, the City's proposal to fluoridate the public drinking water supply is an action under a program that DSHS administered on December 12, 1975. See former WAC 248-54-370 (1970) (fluoridation of public water supplies was formerly regulated by DSHS). That the Department of Health currently administers the same program does not affect this interpretation. The City's proposed fluoridation program could not occur without the Department of Health's approval and continuing oversight. See WAC 246-290-460. The proposal is an action “under” the Department of Health's fluoridation program because it is bound by its requirements and subject to its authority. See WEBSTER'S THIRD NEW INTERN'L DICTIONARY 2487 (2002) (defining “under”). Accordingly, WAC 197-11-845 makes the City's fluoridation proposal exempt from SEPA review. B. Separate Agency Action ¶ 13 Citizens also argue that the City's legislative proposal to construct and operate a fluoridation system is an action separate from the state-level regulation of fluoridation. Citizens point to WAC 197-11-810, claiming that provision limits the scope of the exemption established in WAC 197-11-845 to those actions occurring within DSHS. Therefore, Citizens contend that WAC 197-11-845 does not exempt the City's proposal to fluoridate. ¶ 14 WAC 197-11-810 provides, “The exemptions in WAC 197-11-820 through 197- 11-875 relate only to the specific activities identified within the named agencies.” The plain language does not support Citizens' reading. ^FN6 Citizens would have us read the provision to exempt “the specific activities ... within the named agencies,” eliminating the word “identified.” But courts presume the legislature says what it means and means what it says. In re Marriage of Kahle, 134 Wash.App. 155, 158, 138 P.3d 1129 (2006). FN6. Citizens urge us to adopt their interpretation either under a plain language reading or by determining that the rules are ambiguous. To that end, Citizens submitted numerous historical documents relating to the adoption of WAC Part Nine in an appendix to their opening brief. Because the language is unambiguous, we do not resort to legislative history to ascertain legislative intent. See Shoop v. Kittitas County, 149 Wash.2d 29, 36, 65 P.3d 1194 (2003). ¶ 15 We disagree with Citizens' argument that the legislature exempted activities “occurring” or “taking place” within the named agencies; rather, it exempted activities “identified” within the named agencies. Within DSHS, the activities identified as exempt are all actions under programs it administers and Citizens' argument to the contrary fails. ¶ 16 Moreover, Citizens' argument runs afoul of Dioxin's prohibition against “as-applied” challenges to categorically exempt actions. 131 Wash.2d at 356, 932 P.2d 158 (“SEPA review is not required for an individual action that is properly characterized as exempt under a valid regulation.”). In Dioxin, our Supreme Court considered whether the categorical exemption for the reissuance of waste discharge permits applies when the permit allows activity constituting a major action having a probable significant adverse environmental impact. 131 Wash.2d at 356, 932 P.2d 158. Noting that allowing such case-by-case challenges would be neither efficient nor cost-effective, the Court held that individual actions that fit within a categorical exemption are not subject to SEPA review. Dioxin, 131 Wash.2d at 364-65, 932 P.2d 158. ¶ 17 Here, Citizens are effectively challenging fluoridation “as applied” to the City's water supply. The exemption in WAC 197-11-845 covers all actions under WAC 246-290-460, which broadly authorizes the Department of Health to approve and oversee fluoridation. Thus, WAC 197-11-845 exempts from SEPA review the practice of fluoridating public water. But interpreting WAC 197-11-810 to require review of the City's fluoridation proposal would be, in effect, requiring “as applied” review of fluoridation. Dioxin does not permit this result. ¶ 18 WAC 197-11-810 does not provide a basis for distinguishing between the actions of the City and the Department of Health regarding the decision to fluoridate. The exemption in WAC 197-11-845 is broadly drafted to include all actions under fluoridation programs and includes the City's decision to fluoridate. Citizens' argument fails. C. Segment of Larger Proposal Containing Exempt and Nonexempt Actions ¶ 19 Citizens further argue that the City's program is a segment of a larger proposal including multiple agency actions, some of which are exempt and some of which are not. Therefore, Citizens argue that under WAC 197-11-305(1), the entire proposal is not exempt. ¶ 20 WAC 197-11-305(1)(b)(i) provides that a proposal, otherwise categorically exempt, will not be exempt if the proposal is a segment of a proposal that includes a “series of actions, physically or functionally related to each other, some of which are categorically exempt and some of which are not.” But this rule does not assist Citizens because, as discussed above, the City's action itself is exempt under WAC 197-11-845. ¶ 21 Further, the superior court correctly observed that this “seems a bit like arguing that when a property owner signs a construction agreement with a contractor that action is itself subject to SEPA review.” CP at 208. That the City is an agency under SEPA rather than a private actor does not affect this analysis because, in this instance, the City is in the same position as a private applicant: it is powerless to take any action consistent with its decision until it receives approval from the permitting agency. See WAC 246-290-460. It is the agency's decision that is subject to review, not the underlying action. See RCW 43.21C.075(4) (judicial review is afforded to those aggrieved by agency action). Accordingly, the City's proposal to fluoridate the water, contingent on Department of Health approval, is not reviewable under SEPA. C. PRESERVATION FOR REVIEW ¶ 22 Citizens also contend the superior court erred in finding that the City properly raised exemption during the administrative appeal. They argue that the City presented claims of exemption under only WAC 197-11-800(23)(b) ^FN7 and -800(1)(b)(iii).^FN8 And because the City did not claim the proposal was exempt under WAC 197-11-845 ^FN9 during the administrative appeal, Citizens maintain that the City was precluded from raising the issue on review. FN7. WAC 197-11-800(23)(b) exempts all “storm water, water and sewer facilities, lines, equipment, hookups or appurtenances including, utilizing or related to lines eight inches or less in diameter.” FN8. WAC 197-11-800(1)(b)(iii) exempts “construction of an office, school, commercial, recreational, service or storage building with 4,000 square feet of gross floor area, and with associated parking facilities designed for twenty automobiles.” FN9. WAC 197-11-845 categorically exempts from review “[a]ll actions under programs administered by the department of social and health services as of December 12, 1975,” except for eight specific actions not at issue in this case. ¶ 23 Although that regulatory provision was not cited in the administrative record, the record shows that Collins, the City's responsible official, determined that the proposal was categorically exempt because “the Washington State Department of Health allows fluoridation of public water supplies at the concentration range of .8-1.3 mg/L (ppm) pursuant to WAC 246-290-460.” 2 AR at 2623. WAC 246-290-460 governs the Department of Health's fluoridation program, which is the same program DSHS administered in 1975 and is exempted in WAC 197-11-845. Thus, the City raised the issue below. THE DNS ¶ 24 Citizens further argue that the Council's decision on administrative appeal is clearly erroneous because it determined that the fluoridation proposal is categorically exempt from SEPA review and also concluded that the DNS is factually and legally valid. The City counters that nothing in SEPA or the SEPA rules precludes an agency from issuing a DNS on a project determined to be categorically exempt. We agree with the City. ¶ 25 SEPA requires the preparation of an EIS only for “proposals for legislation and other major actions having a probable significant, adverse environmental impact.” RCW 43.21C.031(1). But because the statute remains silent as to how to determine whether an action is a major action having a probable significant, adverse environmental impact, SEPA rules require the lead agency to make a threshold determination “for any proposal which meets the definition of action and is not categorically exempt.” WAC 197-11-310(1). The threshold determination is either a DNS or a determination of significance (DS). WAC 197-11-310(5). ¶ 26 “In any action involving an attack on a determination by a governmental agency relative to the requirement or the absence of the requirement, or the adequacy of a ‘detailed statement’, the decision of the governmental agency shall be accorded substantial weight.” RCW 43.21C.090. An agency's determination that a proposal is categorically exempt falls within this statute because it is a finding that environmental review is not required; therefore, a finding of exemption is given substantial weight. See RCW 43.21C.110(1)(a). The “substantial weight” requirement directs us to review the agency's decision under a “clearly erroneous” standard. Norway Hill Pres. & Protection Ass'n v. King County Council, 87 Wash.2d 267, 275, 552 P.2d 674 (1976), superseded by statute on other grounds as recognized in Moss v. City of Bellingham, 109 Wash.App. 6, 21, 31 P.3d 703 (2001). A finding is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been made. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). ¶ 27 Although the SEPA rules clearly provide that any project that is not categorically exempt must be subject to a threshold determination, the rules do not prohibit an agency from issuing a threshold determination on a project that is categorically exempt from EIS requirements. Although the rules' structure suggests that a project is either categorically exempt or subject to a threshold determination, there is nothing prohibiting the City from performing a threshold determination on an exempt proposal. Absent a statutory prohibition, the Council's conclusion that the DNS was sufficient and the proposal is categorically exempt is not clearly erroneous. ¶ 28 Furthermore, as the City points out, there is no contradiction between upholding a DNS while simultaneously concluding the proposal is categorically exempt. A DNS reflects the agency's threshold determination that the proposal is not a major action with potential significant, adverse environmental impacts. WAC 197-11-734. Similarly, a categorical exemption reflects DOE's conclusion that a type of proposal is not a major action with potential significant, adverse environmental impacts. RCW 43.21C.110(1)(a); WAC 197-11-720. Because further environmental review is not required in either case, the conclusions are consistent and are, therefore, not clearly erroneous.^FN10 FN10. Citizens also argue that by inconsistently issuing a DNS and then claiming exemption, the City has subjected all to the costs of an unnecessary administrative appeal. These costs would not have been justified had the City simply found the project exempt and not issued the DNS. Although we might sympathize with Citizens' position, it seems to derive more from the drafting of the SEPA rules rather than from any legal insufficiency in the City's review. WAC 197-11-305(2) allows agencies to make determinations of categorical exemption without providing notice to the public or even documenting the decision. Although it seems clear that Citizens' concern could be remedied by requiring the agency to document and release its determination that a proposal is categorically exempt, such action is not presently required. ¶ 29 Citizens also argue that the superior court erred when it found it could not substitute its judgment for the Council's as to whether the project is categorically exempt. Because whether the fluoridation proposal is categorically exempt presents a legal question, Citizens contend that the superior court should have reviewed the issue de novo, giving no deference to the Council's determination. We disagree. ¶ 30 Citizens' argument overlooks the statutory mandate that an agency's determination relative to the requirement of an EIS is to be afforded substantial weight by the courts. RCW 43.21C.090. The superior court correctly noted that the determination was entitled to substantial weight. ¶ 31 Because nothing prohibits the City from issuing a DNS when it had also determined that the fluoridation proposal was categorically exempt, the Council's decision is not clearly erroneous. CR 12(b)(6) ¶ 32 Citizens argue that because the trial court considered matters outside the pleadings in ruling on the City's motion under CR 12(b)(6), namely the administrative record, the superior court erred in failing to treat the motion as a motion for summary judgment. We disagree. ¶ 33 We review a CR 12(b)(6) ruling de novo as a question of law. Burton, 153 Wash.2d at 422, 103 P.3d 1230. Dismissal under CR 12(b)(6) is only appropriate if it appears beyond doubt that the plaintiff cannot prove any set of facts that would justify recovery. Burton, 153 Wash.2d at 422, 103 P.3d 1230. ¶ 34 When the parties present matters outside the pleadings that the trial court accepts on a motion under CR 12(b)(6), the court treats the motion as one for summary judgment and disposes of it accordingly. In a summary judgment motion, the court considers the evidence in the light most favorable to the nonmoving party. CLEAN v. City of Spokane, 133 Wash.2d 455, 462, 947 P.2d 1169 (1997). Citizens contend that the superior court's failure to treat the motion as a motion for summary judgment was error “to the degree that the court considered any disputed facts when it made its decision.” Appellant's Br. at 29. ¶ 35 But as the City correctly notes, the only issue raised in the City's CR 12(b)(6) motion was whether the fluoridation proposal was categorically exempt. This issue did not require the court to consider any disputed facts but, rather, entailed interpreting relevant statutes and applying the undisputed facts in the administrative record. Contrary to Citizens' contention, the superior court was not obligated to “accept the position that fluoridation of water is an unhealthy practice which should be eliminated and then proceed to an analysis of the record.” CP at 218. Citizens' argument fails. ¶ 36 Affirmed. We concur: HUNT and VAN DEREN, JJ.

+/- 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.

+/- Parkland Light & Water Company v. Tacoma-Pierce Co. Board of Health

Washington, Abuse of Municipal Authority, State police power

• Plaintiff
  Parkland Light & Water Company
• Defendant
  Tacoma-Pierce County Board of Health
• State
  Washington
• Other Parties
  Lakewood Water District, City of Bonney Lake
• Case Tags
  - Abuse of Municipal Authority

  - State police power
• Citation
  151 Wn2d 428; 90 P.3d 37 (Wash. 2004)
• Year
  2004-00-00T00:00:00
• Court Name
  Supreme Court of Washington
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Johnson CW
• Opinion Text
  JOHNSON, J. This case involves a dispute over the Tacoma-Pierce County Board of Health's resolution requiring municipal water districts and certain private water purveyors to fluoridate their water. Four sets of plaintiffs filed separate lawsuits against the Tacoma-Pierce County Board of Health (the Board) and the Tacoma-Pierce County Health Department (the Department), challenging the resolution's validity. The trial court granted summary judgment in favor of the Board. We reverse and hold that the resolution conflicts with RCW 57.08.012, which gives water districts the power to control the content of their water systems and, with that power, the authority to fluoridate their water. FACTUAL AND PROCEDURAL HISTORY On October 2, 2002, the Board adopted Resolution No.2002-3366.A-2, entitled, “Regulation Requiring Fluoridation of Drinking Water in Pierce County Water Systems Serving 5,000 or More People.” Br. of Appellants at 2. Essentially, the resolution purports to solve the dental caries problem in Pierce County by requiring that certain water systems be fluoridated by January 1, 2004. The resolution also imposes a penalty of up to $250 per day if water purveyors do not comply with the mandate's implementation. The Board would provide funding to water purveyors in order to offset the costs of implementing the fluoridation mandate if they sign letters of intent or begin implementation by December 31, 2002. Four sets of plaintiffs filed separate lawsuits against the Board and Department challenging the resolution's validity. The plaintiffs were (1) five private water companies called Parkland Light & Water Co., Fruitland Mutual Water Co., Mountain View-Edgewater Co., Summit Water & Supply Co., and Spanaway Water Co. (Parkland Light); (2) Lakewood Water District (Lakewood); (3) Citizens Opposing Fluoridation in Pierce County (Citizens); and (4) the City of Bonney Lake (Bonney Lake). On December 20, 2002, the trial court consolidated the claims. The trial court set an expedited briefing and hearing schedule, and the parties exchanged cross-motions for summary judgment. On February 19, 2003, the trial court entered an order granting the Board's motion for summary judgment and denying the plaintiffs' cross-motions for summary judgment. Three of the four plaintiffs appealed the order.^FN1 Parkland and Bonney Lake sought timely review of the order with Division Two of the Court of Appeals, while Lakewood sought an emergency stay and direct review with this court.^FN2 We accepted review and applied the stay to Lakewood. ^FN3 FN1. Citizens did not appeal. FN2. The Board and Department joined in the request for direct review, and the private water companies did not object. FN3. Before Lakewood filed its motion for an emergency stay, the commissioner of the Court of Appeals granted the same motion pending before that court. After the case was consolidated and transferred to this court, we extended the stay to include Lakewood. Commissioner's Ruling (Mar. 19, 2003). The plaintiffs present four errors for review. Specifically, the private water companies allege that (1) the Board does not have the police power to exercise the resolution, (2) the resolution imposes an illegal tax in kind, and (3) the resolution violates their due process rights, and Bonney Lake alleges that (4) it has standing to assert forced medical treatment and voting rights violation claims on behalf of its citizens. We hold that the resolution irreconcilably conflicts with the statutes governing the authority of water districts. See RCW 57.08.005; RCW 57.08.012, infra p. 7. ANALYSIS On appeal from summary judgment, we engage in the same inquiry as the trial court. RAP 9.12. After considering all evidence and reasonable inferences in the light most favorable to the nonmoving party, summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Interpreting a statute presents a question of law subject to de novo review. Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm'n, 123 Wash.2d 621, 627, 869 P.2d 1034 (1994). When interpreting a statute, our fundamental duty is to ascertain and fulfill legislative intent. However, if a statute is clear, it is not subject to judicial construction and its meaning is to be derived from the statute itself. Under RCW 57.08.012, water districts are given the statutory authority to decide whether to fluoridate their water systems. RCW 57.08.012 specifically states that: [a] water district by a majority vote of its board of commissioners may fluoridate the water supply system of the water district. The commissioners may cause the proposition of fluoridation of the water supply to be submitted to the electors of the water district at any general election or special election to be called for the purpose of voting on the proposition. The proposition must be approved by a majority of the electors voting on the proposition to become effective. This section expressly provides that water districts have the authority to decide whether to fluoridate their water systems. The issue we must resolve, then, is whether the Board's resolution conflicts with the statutes governing the water districts' specifically delegated discretionary authority by ordering fluoridation. Local boards of health supervise all matters pertaining to the preservation of the life and health of the people within its jurisdiction. RCW 70.05.060. A Board's statutory authority gives it the power to “[e]nact such local rules and regulations as are necessary in order to preserve, promote and improve the public health and provide for the enforcement thereof.” RCW 70.05.060(3). These broad powers do not authorize the Board to act in areas where the legislature has made a more specific delegation of authority to another agency. For instance, where the Board's action usurps specifically delegated statutory authority, a conflict can arise between the actions of one agency that negates the more specific statutory authority of another. If that occurs, the more specific statutory delegation of authority controls. This court most recently considered whether a local regulation was invalid on grounds of conflict in HJS Development, Inc. v. Pierce County, 148 Wash.2d 451, 61 P.3d 1141 (2003). In HJS, we recognized and applied analytical framework for determining when a conflict occurs. We concluded that a local regulation conflicts with a statute when it permits what is forbidden by state law or prohibits what state law permits. HJS, 148 Wash.2d at 482, 61 P.3d 1141 (citing Rabon v. City of Seattle, 135 Wash.2d 278, 292, 957 P.2d 621 (1998)). In other words, when two provisions are contradictory they cannot coexist. No conflict will be found, however, if the provisions can be harmonized. HJS, 148 Wash.2d at 482, 61 P.3d 1141 (citing Heinsma v. City of Vancouver, 144 Wash.2d 556, 29 P.3d 709 (2001)). In this case, we hold that the Board's resolution irreconcilably conflicts with the authority granted to water districts under RCW 57.08.012, and the two cannot be harmonized. Essentially, the Board's resolution is a local regulation that prohibits what state law permits: the ability of water districts to regulate the content and supply of their water systems expressly granted to them by statute. The resolution ordering fluoridation takes away any decision-making power from water districts with respect to the content of their water systems, and the express statutory authority granted to water districts pursuant to RCW 57.08.012 would be rendered meaningless. The purpose of the statute is to give water districts, not the Board, the authority over water fluoridation. Here, the resolution is invalid as applied to Lakewood because it does not allow the water district to decide the issue of whether to fluoridate its water systems as provided for in RCW 57.08.012. No majority vote of the commissioners takes place. No vote of the electors (water users) within the water district takes place. The resolution deprives Lakewood of its specific statutory power and discretion provided under RCW 57.08.012. The resolution is also invalid and ineffective as applied to the private water companies (Parkland Light). A local regulation that conflicts with state law fails in its entirety. See Adams v. Thurston County, 70 Wash.App. 471, 482, 855 P.2d 284 (1993) (holding that a county ordinance conflicted with state laws and was invalid as applied to all citizens); see also Employco Pers. Servs., Inc. v. City of Seattle, 117 Wash.2d 606, 618, 817 P.2d 1373 (1991) (holding that an entire ordinance which gave the City of Seattle blanket immunity from liability for damages for loss of electrical services was void because it conflicted with state statutes authorizing suits against utilities and permitting recovery of damages for negligently caused losses). We lend further support for this conclusion by the fact that article XI, section 11 of the Washington State Constitution prohibits a local regulation from conflicting with a general law of the state. This means that when a local regulation conflicts with a state statute, we will invalidate the regulation. Because we conclude that an irreconcilable conflict exits, the Board's resolution fails in its entirety and cannot be enforced against any party to the present suit. Thus, we need not decide any of the other issues raised by the parties in this case. We reverse the trial court's decision. WE CONCUR: ALEXANDER, C.J., MADSEN, SANDERS, CHAMBERS, OWENS, JJ. IRELAND, J. (dissenting). In this case we are asked to determine whether the Pierce County Board of Health's (Board) resolution requiring water districts to fluoridate their water systems is lawful. The majority holds that the Board's resolution is unlawful because it conflicts with the water districts' permissive authority to decide whether to fluoridate their water systems. I respectfully dissent. Article XI, section 11 of the Washington State Constitution authorizes that “[a]ny 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 police power to enact regulation, a local law, ceases when it conflicts with general state law. HJS Dev., Inc. v. Pierce County, 148 Wash.2d 451, 477, 61 P.3d 1141 (2003). Where an apparent conflict exists between two statutes, the statutes should be read such that each may be given effect if possible. City of Lakewood v. Pierce County, 106 Wash.App. 63, 71, 23 P.3d 1 (2001) (citing In re Pers. Restraint of King, 110 Wash.2d 793, 799, 756 P.2d 1303 (1988)). The statutes are to be read together to achieve a harmonious total statutory scheme while maintaining the statutes' respective integrity. Id. The Board's police powers arise from a statutory delegation by the legislature. Pierce County is a home rule charter county. The legislature has authorized counties to establish boards of health to carry out public health regulatory power. RCW 70.05.035. The relevant portion of the statute provides: Each local board of health shall have supervision over all matters pertaining to the preservation of the life and health of the people within its jurisdiction and shall: .... 3) Enact such local rules and regulations as are necessary in order to preserve, promote and improve the public health and provide for the enforcement thereof; (4) Provide for the control and prevention of any dangerous, contagious or infectious disease within the jurisdiction of the local health department; RCW 70.05.060. In Kaul v. City of Chehalis, 45 Wash.2d 616, 620, 277 P.2d 352 (1954), we held that a city's decision to fluoridate its water supply was a proper exercise of its police power. The city recognized that dental caries, also known as tooth decay, was a very common disease. In response, the city promulgated fluoridation of the city's water mainly to prevent tooth decay in children up to 14 years of age. Id. at 618, 277 P.2d 352. The Kaul court took into consideration article XI, section 11 of the Washington State Constitution and the state statutes that authorized the city to pass its ordinance. Id. at 619, 277 P.2d 352. The Kaul decision remains the law nearly 50 years later. The Board's police powers under RCW 70.05.060 include the power to direct fluoridation of water within its jurisdictional limits. As in Kaul, the fluoridation resolution here was proposed to address the high incidence of dental caries among children within its jurisdictional limits. The Board considered evidence and made the following extensive health hazard findings: dental caries is the single most common chronic childhood disease; on a national level, more than 51 million school hours are lost related to dental illnesses; in Pierce County an estimated 128,000 school hours per year are lost due to dental illnesses; dental caries affect 50 percent of the children below the age of nine; fluoridation of the public water supply is the most equitable, cost effective, and cost-saving method to the community to prevent and control dental caries; and that only 43 percent of Pierce County residents received optimally fluoridated water compared with 57.8 percent for the state. The Board's adoption of a resolution requiring water purveyors within Pierce County that serve 5,000 or more persons to fluoridate their water supply was a proper exercise of its police power. In this case, RCW 57.08.012 applies to all water districts and grants them permissive authority to fluoridate their water systems. RCW 57.08.012 reads in relevant part, “[a] water district by a majority vote of its board of commissioners may fluoridate the water supply system of the water district. The commissioners may cause the proposition of fluoridation of the water supply to be submitted to the electors of the water district....” (Emphasis added.) It is well established that the use of “may” in a statute indicates that the provision is permissive and not binding, while the use of “shall” indicates a mandatory obligation. See Amren v. City of Kalama, 131 Wash.2d 25, 35, 929 P.2d 389 (1997); Wash. State Coalition for the Homeless v. Dep't of Soc. & Health Servs., 133 Wash.2d 894, 907-08, 949 P.2d 1291 (1997); Strenge v. Clarke, 89 Wash.2d 23, 29, 569 P.2d 60 (1977). The majority incorrectly concludes that the legislature's grant of permissive authority amounts to giving water districts the exclusive authority to decide on fluoridation of their water systems. On this basis, the majority concludes an irreconcilable conflict exists between RCW 57.08.012 and the Board's resolution. However, the court should conclude that there is no conflict between the Board's resolution and RCW 57.08.012 having regard to the context and legislative history. Prior to the 1988 amendment, the water districts had “full authority to regulate [water] and control the use, distribution and price thereof.” Former RCW 57.08.010 (1987), repealed by Laws of 1996, ch. 230, § 1703. The 1988 amendment added the word “content” to former RCW 57.08.010, now codified at RCW 57.08.005(3), according to the House Bill Report on H.B. 1514, to address the concern raised by the attorney general opinion that water districts did not have the authority to fluoridate their water systems without authorization from the county. H.B. Rep. on H.B. 1514, 50th Leg., Reg. Sess. (Wash.1988); 1987 Op. Att'y Gen. No. 3, at 2. Lakewood argues that “full authority” over water content means “exclusive authority” and includes the “right to decide whether to change that content by adding fluoride to the water.” The Board takes the position that “full authority” is not the same as exclusive authority, citing to the legislative history. Further, the Board points out that water districts are required to comply under WAC 246-290-300(3) with the Washington State Department of Health directives to add chlorine into their water systems when bacteriological thresholds are exceeded. They are not free to disregard the regulation of a higher legislative authority. The legislative history shows the legislature intended to provide water districts with the nonexclusive authority to fluoridate water within their jurisdiction. The changes to RCW 57.08.005 and 57.08.012 arose out of concern as to whether water districts could fluoridate. The attorney general issued an opinion that water districts did not have the police power to fluoridate water absent a grant of authority by the county. The legislature responded by enacting a bill that gave water districts permissive authority because “[s]ome attorneys question[ed] the authority of a water district to fluoridate its water unless expressly authorized by the Legislature.” H.B. Rep. on H.B. 1514, supra, at 2. Nothing in the statute or legislative history suggests that the legislature's grant of permissive authority to permit water districts to have the ability to fluoridate the water on their own, simultaneously operated to prohibit counties and cities from exercising their police power to fluoridate. Contrary to the majority's assertion, the Board's resolution does not usurp the water district's authority. RCW 57.08.012 and the Board's resolution are harmonized with each another. Thus, the court should hold that the Board's resolution does not conflict with the legislature's permissive grant of authority to water districts to optionally fluoridate their water systems. BRIDGE and FAIRHURST, JJ., concur.

+/- Wilson v. City of Mountlake Terrace

Washington, Abuse of Municipal Authority, State police power

• Plaintiff
  A.P. Wilson et al.
• Defendant
  City of Mountlake Terrace
• State
  Washington
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - State police power
• Citation
  69 Wn.2d 148; 417 P.2d 632 (Wash. 1966)
• Year
  1966-00-00T00:00:00
• Court Name
  Supreme Court of Washington
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Donworth
• Opinion Text
  DONWORTH, Judge. Appellant Reese had appealed from the dismissal of his alternative writ of prohibition with prejudice after a trial before the court sitting without a jury. The facts were stipulated by counsel. Therefore, the only issues in the case are questions of law. The basic question is whether the persons who are not residents of the City of Mountlake Terrace can obtain judicial relief to prevent the City of Mountlake Terrace from fluoridating the city's water supply when its so doing will inevitably result in the fluoridation of the water of the nonresidents who wish to have their water remain unfluoridated. The facts are somewhat involved but are not in dispute. The stipulated facts which were accepted verbatim by the trial court as findings of fact are as follows: 2. That the City of Mountlake Terrace is a city of the third class duly organized and existing in Snohomish County, Washington, with a population of approximately 13,200 persons. 3. That plaintiffs and the members of the class which they represent reside in an unincorporated area of Snohomish County, Washington, contiguous to the City of Mountlake Terrace, in which said area reside approximately 300 persons. That plaintiffs are electors, taxpayers, and customers of the Alderwood Water District. 4. That prior to the 18th day of May, 1959, the Alderwood Water District supplied water to the residents of the City of Mountlake Terrace all of whom were then customers and taxpayers of said district. On the 18th day of May, 1959, the City of Mountlake Terrace entered into a contract with the Alderwood Water District for the purchase by the city from the district of the water system within the city limits, a true and correct copy of which said contract has been admitted herein as defendant's Exhibit 1. 5. That plaintiffs, and the class to which they belong, are served with water by the Alderwood Water District through pipes which run though the defendant City of Mountlake Terrace. That said pipes are common distribution lines, both for the City of Mountlake Terrace and for plaintiffs and others similarly situated. 6. That on or about the 15th day of June, 1964, the duly elected, qualified and acting City Council of the City of Mountlake Terrace, duly adopted an Ordinance No. 388 which purported to authorize the addition of a fluoride chemical to the municipal water supply of said city. That a true and correct copy of said ordinance has been admitted herein as defendant's Exhibit 3. 7. That the only feasible method available to the City of Mountlake Terrace to fluoridate its water supply, is by the introduction of the appropriate amount of fluoride at the point of delivery of water to the City of Mountlake Terrace by the Alderwood Water District. That if fluorides were introduced at said point, not only the municipal water supply of the City of Mountlake Terrace would receive such fluorides, but also the water delivered to plaintiffs and the class to which they belong. 8. That the introduction of fluorides pursuant to the aforesaid ordinance would be, if permitted, accomplished for the purpose of reducing dental decay in the users of said water, and would not be for the purpose of eliminating or reducing harmful bacteria or organisms in the water nor would it have any purifying effect on the said water. 9. If fluorides were introduced into the municipal water supply of the City of Mountlake Terrace pursuant to the aforesaid ordinance, said introduction would not render the same unfit for human consumption according to the standards of the State of Washington Department of Health. 10. That plaintiffs object to the introduction of fluorides into their water, inasmuch as they are not citizens, residents, nor taxpayers of the City of Mountlake Terrace. In addition to these stipulated facts, the trial court added the additional finding which reads: X. That the fluoridation of plaintiffs' water supply would be a mere incident to a legitimate sanitary regulation of defendant City of Mountlake Terrace in the valid exercise of its police power. The only conclusion of law entered by the trial court reads as follows: I. That defendant is entitled to judgment dismissing the alternative writ of prohibition heretofore entered herein on the 25th day of June, 1964 and to judgment for its costs and disbursements herein to be taxed. The contract by which the water district sold the water distribution system to the City of Mountlake Terrace was incorporated in the stipulated facts. It provided for the sale of the water pipeline system within the city limits of Mountlake Terrace to the city (except for certain specific exclusions not relevant to the issues in this case). The city agreed to pay a specific sum of money, and to purchase all the water it found necessary for the use of its residents up to the amount which the water district could supply for a period of 7 years. In addition, the agreement contained the following provisions which are pertinent to an understanding of this case: V. The City shall permit the District to continue to serve areas outside the present or future City limits which receive water service from lines running through the City. Meter readings shall be made of water consumed within said areas and shall be deducted from the master meter readings in computing the amount of water delivered to the City. The amount as near as may be determined of any unmetered water used or water loss sustained in said areas shall also be deducted in computing the amount of water delivered to the City. If and when the City no longer purchases water from the District, the City agrees to furnish water to said areas at rates to be mutually agreed upon between the City and the District. This section shall not apply to the 12 inch and 3 inch lines described in Section I hereof. Any area served by the District lying within the City not served by water delivered to the master meter by the District shall be served and billed as follows: The City shall read meters and bill the customer and add to the master meter reading the amount of water consumed by those customers within the City. The City shall maintain the service line and the meters. The amount as near as may be determined of any unmetered water used or water loss sustained in said areas shall also be added in computing the amount of water delivered to the City. VI. The District agrees to furnish to the City Good and wholesome quality of water approved by the State Department of Health at point of delivery. All water supplied by the District shall be upon the express condition that after it has passed the meter equipment the same becomes the property of the City and the District shall not be liable for any damages or loss beyond said point, except as provided in Section V above. XVI. This agreement shall terminate on June 1, 1966 as to all provisions herein except Sections V, IX and X. (Italics ours.) Appellant assigns as error the entry of the judgment by the trial court, and the making of its finding of fact No. 10 and conclusion of law No. 1, quoted earlier in this opinion. We assume that the trial court's reason or reasons for its dismissal of the alternative writ of prohibition are based on the finding and the conclusion of law as supported and explained by respondent city's arguments. Appellant's position can be clearly shown be quoting portions of his brief. Appellant states therein: The City of Mountlake Terrace admittedly intends to put a chemical medicine, fluoride, in water furnished to it by the Alderwood Water District, which water in turn passes through the City of Mountlake Terrace to plaintiffs' properties outside the city. Appellant's brief also contains the following statement: Assuming, for the sake of argument only, that the City of Mountlake Terrace has the police power to fluoridate its own water system, it is clearly apparent that it has no jurisdiction or authority to impose such fluoridation or chemical medicine upon persons living outside the city. Appellant cites and quotes from many authorities which state in clear language that, unless the authority is expressly granted by charter or statute, a city cannot exercise its police power outside its boundaries. In particular, appellant relies on Brown v. City of Cle Elum, 145 Wash. 588, 261 P. 112 (1927). We agree that appellant is correct in his abstract statement of the law, but we are of the opinion that in this case the City of Mountlake Terrace is not proposing to exercise its police power outside the city limits. The city does not distribute water to appellant. Under the contract, it redelivers water received from the Alderwood Water District, a portion of which is then delivered to appellant through the district's mains. It is true that the city will be the entity which will fluoridate appellant's water, but such fluoridation is not being done for the purpose of supplying fluoridated water to him or to other persons in his class. These persons are customers of the water district, I.e., they buy water from the district, although that water has first passed through the City's water mains consistent with the provisions of the contract. The fact that appellant's water will contain fluoride is the inevitable result of the city's fluoridation program and the passage of the ordinance which implemented the program. In a very meaningful sense, the city is not exercising its police power for the purpose of fluoridating water which it will deliver to persons residing outside the city. Its purpose is to furnish fluoridated water to its own inhabitants. To the extent that the trial court's finding of fact No. X determines a factual issue, we must accept it as correct, since there is substantial evidence to support it. To the extent that this finding also may be a mixed finding of fact and conclusion of law, we believe that it correctly states the legal effect of the ordinance. As stated above, the fluoridation of appellant's water is the incidental, although inevitable, result of the city's exercise of its police power in this respect. Appellant does not claim that he is, in fact, harmed by this incidental result of the fluoridation. Furthermore, the trial court found that the fluoridation would not render the water unfit for human consumption according to the standards of the State of Washington Department of Health. This was one of the Stipulated facts in this case. Since, under the contract between the city and the water district, the latter is obligated to deliver to the former a good and wholesome quality of water, approved by the State Department of Health, and since the city further agreed to permit the district's customers residing outside the city to receive water service from mains running through the city, it can only reasonably be inferred that the parties contemplated that appellant and other persons similarly situated were to receive the quality of water approved by the State Department of Health. The trial court, having found on stipulation of the parties that fluoridation will not render the water unfit for human consumption according to health department standards, had no legal basis for holding that appellant will be harmed. Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352 (1954), and Birnel v. Town of Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959). (Appeal to United States Supreme Court dismissed 361 U.S. 10, 80 S.Ct. 71, 4 L.Ed.2d 51.) Brown v. City of Cle Elum, supra, relied on by appellant, does not support his position. In that case (which was twice argued before this court), it was held that a city ordinance purporting to make it unlawful for anyone to swim, fish, or boat on a certain lake situated in the National Forest Reservation, about six miles outside the city limits, was an invalid exercise of the city's police power. The facts in the present case, as stated above, make it readily distinguishable from the Brown case. The trial court's conclusion of law No. 1 is correct. Respondent has argued, inter alia, that appellant has no standing to bring this suit. The trial court reached the merits and determined, in effect, that appellant was not harmed. Since we affirm on that ground, there is no need to discuss the standing issue. The judgment of the trial court is hereby affirmed. ROSELLINI, C.J., FINLEY and HAMILTON, JJ., and BARNETT, J. pro tem., concur.

+/- Froncek v. City of Milwaukee

Wisconsin, Push for FDA Approval, Unlicensed Practice of Medicine/Compulsory Medication, State police power

• Plaintiff
  Froncek
• Defendant
  City of Milwaukee
• State
  Wisconsin
• Other Parties
  -
• Case Tags
  - Push for FDA Approval

  - Unlicensed Practice of Medicine/Compulsory Medication

  - State police power
• Citation
  269 Wis. 276; 69 N.W.2d 242 (Wis. 1955)
• Year
  1955-00-00T00:00:00
• Court Name
  Supreme Court of Wisconsin
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Fairchild CJ
• Opinion Text
  FAIRCHILD, Chief Justice. The questions raised on this appeal are not new, and the investigation as to the competence of legislative bodies acting under the police power, in their concern for the accompanying benefit to be derived from requiring ingestion of fluoride in drinking water sold by a public utility has proceeded to the point that the properly regulated practice is found conformable with and related to public health and general welfare. While it has been established that fluoride ingested in proper portions to the volume of water is especially of more immediate benefit to citizens with the age period causing them to be more susceptible to dential caries; still differences of opinion exist and have been expressed. They are set forth in the so-called Delaney's Report of the hearing of February and March 1952 of a committee of the house of representatives of the United States and in the book entitled ‘Survey of the Literature of Dental Caries.’ However, there is a general recognition of the merit of a daily intake of fluoride of approximately 1 ppm increasing the resistance of teeth to caries. Of course, it is recognized that there are alternatives, but the point has been reached where it can no longer be said that it is not reasonable to treat it as a proper subject for legislative act. As in cases to which reference will be made, the city of Milwaukee, as one of its proprietary functions, operates a municipal water department, and by reason of the general control and convenience of use of the water supply it has a practical monopoly in furnishing drinking water to thousands of the residents of the city. They are served through a system of underground mains and pipes maintained by the city, and thus the city enjoys a practical monopoly of the service of water therein. The city, through the passage of various resolutions and actions taken by its officials, has determined to treat all of the water supply of the so-called city water with fluorides. It is to this procedure that the appellants object. The resolution and enactment under consideration in the fluoridation of the water supply have been put into effect. The policy is fixed, and the respondents are treating all of the water supply of so-called city water with fluorides. The appellants earnestly and with marked degree of thoroughness in the presentation of their views insist that the substance of the controversy involves the welfare of a million or more people. They place great importance on their claim that there is involved ‘the direction in which our society shall turn in the long term development of the problems of the treatment of disease, for dental caries or cavities, is a disease.’ And they ask: ‘Shall it be the government, or shall it be the individual?’ In their brief, appellants urge that there is a distinction between public health and private health and pointing to the differences, they say: ‘Contagious and infectious disease, anything that may affect others than those immediately involved, clearly involve public health. But if we have a headache from sinus, a backache from lumbago, or a toothache from caries, it is a question of private health that cannot involve anyone else.’ While there are several important questions that were treated with in the trial below, this contention of the appellants quite clearly defines the issue and suggests the question of the limit of the duty in a community's providing proper regulation not to extend beyond that reasonable interference which tends to preserve and promote preservation of the health of the residents. ‘So every police regulation must answer for its legitimacy at the bar of reasonableness.’ Mehlos v. City of Milwaukee, 156 Wis. 591, 599, 146 N.W. 882, 885, 51 L.R.A., N.S., 1009. In State ex rel. Carter v. Harper, 182 Wis. 148, on page 152, 196 N.W. 451, on page 453, 33 A.L.R. 269, the doctrine of legislative policy in relation to police power was set forth as follows: “There must be some reasonable basis for legislative activity in respect to the matter dealt with, else the subject is outside the scope of legislative interference. However, given a subject in respect to which there is some reasonable necessity for regulation, fair doubt in respect thereto being resolved in favor of the affirmative, in case of the Legislature having so determined, the degree of exigency is a matter wholly for its cognizance. What is said as regards legitimacy of subjects for exercise of the police power may be repeated as to appropriateness of means; while given the two elements-legitimacy of subject and appropriateness of means-the degree of interference within the boundaries of reason is for the Legislature to decide, there being left in the end the judicial power to determine whether the interference goes so far as to violate some guaranteed right-regulate it so severely as to materially impair it, reasonable doubts being resolved in favor of legislative discretion”. See also, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 363, 49 L.Ed. 643, where Mr. Justice Harlan 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.’ There is no doubt about appellants' right to challenge the act of the common council's proceeding providing for the mixing of sodium silico fluoride, other fluoride salt, or other compounds in the water sold and delivered by the city as owner and operator of a public water utility. But the court cannot sustain that challenge. Under the material facts before the trial court, the resolution and action are reasonable. The learned trial judge was of the opinion that the issues presented upon admitted material facts are: ‘Where no question of infectious or contagious disease is involved, does the city of Milwaukee possess the authority under its delegated police power to introduce fluorides in the water supply for the purpose of reducing the incidence of dental caries in children and thereby also increasing the resistance to caries in their later life and, by substantial compulsion, in the necessity of most of its inhabitants to drink such water to compel its inhabitants to accept medication, especially where it has a beneficial effect only upon a minority, although a substantial portion of such inhabitants?’ He ruled that although a city may act in a proprietary capacity in owning and operating a water utility, the relation between the city and its inhabitants and its officers is governmental, even when the officers are performing duties which relate to the management of the city. And he said: ‘In the performance of its duty to protect the public health, a city is not acting in a private or proprietary capacity but purely in a governmental capacity in the discharge of one of the highest duties it owes to its citizens.’ State ex rel. Martin v. City of Juneau, 238 Wis. 564, 570, 300 N.W. 187. The court recognized as controlling evidence in the case which sustained and findings and supported the conclusion that a drinking water supply regularly consumed between the first ten years of life containing a concentration of one ppm of fluoride greatly inhibits dental decay, and recognized at the same time that the water supply furnished by the city was deficient in that element. While dental caries is not contagious, it is nevertheless a condition coming into existence and carrying its decaying effect to children and is generally recognized as a deteriorating element. When dental caries is recognized, as it must be, as a serious and widespread disease, a reasonably designed measure to decrease or retard the incidence thereof is in the interest of the welfare of the public. It is recognized that the disease is active primarily in the formative years of child life; still the benefits derived as a result of preventing that disease carry through a substantial part of adult life. In the case of Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, 145, a case considering circumstances similar to those now before us, it was said: ‘Accordingly, if fluoridation of the water supply bears any reasonable relation to the public health, it can be undertaken by the city under the express provisions of this section of its charter. Moreover, it is well settled that courts will not interfere with the legislative authority in the exercise of its police power unless it is plain and palpable that such action has no real or substantive relation to the public health or safety or general welfare. City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503; City of Shreveport v. Bayse, 166 La. 689, 117 So. 775. There also exists a presumption that an ordinance adopted under the police power of the state is valid, and the burden of proving the contrary is on him who asserts the invalidity or nulity. City of New Orleans v. Beck, 139 La. 595, 71 So. 883, L.R.A.1918A, 120; Ward v. Leche, 189 La. 113, 179 So. 52; State v. Saia, 212 La. 868, 33 So.2d 665; State v. Rones, 223 La. 839, 67 So.2d 99. ‘Although the immediate purpose of the proposed fluoridation is to retard and decrease the disease of dental caries in young children, the protection thus given will continue well into adult life. Not only will the proposed fluoridation retard and reduce this disease in the generation of children presently in Shreveport, but its effect will continue into their adult life, and consequently the proposed measure will ultimately be beneficial to all the residents of the city. ‘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 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. Children of today are adult citizens of tomorrow, upon whose shoulders will fall the responsibilities and duties of maintaining our government and society. Any legislation, therefore, which will better equip them, by retarding or reducing the prevalence of disease, is of great importance and beneficial to all citizens. In our opinion the legislation does bear a reasonable relation to public health.’ We agree with the decision of the court below denying the injunction, because it is within the province of the legislative authority to enact such measures in the interest of promoting public health and welfare, even though the act to protect general health is not based strictly upon an infectious, contagious or dangerous disease. Well-reasoned precedents sustain the right of municipalities to adopt reasonable undiscriminatory measures to improve public health even though no epidemic or dangerous disease is involved. Dowell v. City of Tulsa, Okl., 273 P.2d 859, certiorari denied, 75 S.Ct. 292. It may be said, historically, that a very ugly and disfiguring dental defect results from lack of fluorides in drinking water, and we refer to an able and well-reasoned opinion by Judge Artl of the Court of Common Pleas of Ohio, Cayuga county, dated October 23, 1953, Kraus v. City of Cleveland, 116 N.E.2d 779, 790: ‘On a national scale, the United States Public Health Service began an extensive search for data that would lead to the possible discovery of a basis at which it would be safe for the ingestion of fluorides to avoid dental fluorosis, mottled enamel, without losing the benefit of fluorides' effect upon dental caries. ‘The study progressed to such a degree that ‘it led to the establishment in 1942 of one part per million and in 1946 of 1.5 parts per million as the maximum fluorine concentration acceptable under the requirements of the Public Health Service drinking water standards. So, the level of 1.5 parts per million was actually set as a safe level for water standards years before the recommendation was made that fluorides be added in optimum amounts to prevent tooth decay.’ (Dr. Forsythe-Delaney Report-page 1484.) ‘Public Health Authorities continued to study the problem, notably the New York State Health Department and the United States Public Health Service, extending their studies to several controlled or pilot studies involving the addition of fluorides to nonfluoride waters in one community and comparing by various investigations the results with a nearby community whose water is fluoride free. The most notable of such experimental communities are Grand Rapids, Mich., Newburgh, N. Y., Kingston, N. Y., Bradford, Ont., Lewiston, Idaho, Evanston, Ill., Madison, Wisc., Marshall, Texas, Sheboygan, Wisc.’ The objections are not based upon the claim that the program as outlined by the city will cause injury. It is rather based on a difference in policies with relation to necessity as an approach to the subject causing different standpoints. We do not find it necessary to enter upon an extensive and detailed review of the evidence. Opinions of scientists, doctors, and dentists are given in the record. The pleadings and testimony cover hundreds of pages, including affidavits in which reference is made to certain books and pamphlets. A consideration of this evidence by the trial court discloses that a careful study has been made of the subject relating to the fluoridation of water. The sources of supply for some bodies of water contain proportions of fluoride which may be styled excessive, while others are lacking in it. Milwaukee's supply is naturally deficient. The evidence shows general health needs and warrants the assumption of proper standards placing the proposed use of fluorides within the field of legislation. We agree that many statements in the record and the exhibits are clearly conclusions. However, Judge Drechsler said: ‘There are a number of allegations and averments which present issues immaterial to the dominant and controlling issue of law as to which the facts are substantially undisputed.’ The essential facts pointed out so far as they are related to the form and content of the legislation are: ‘The plaintiffs are purchasers and consumers of water furnished by the city, and are citizens, residents and taxpayers of the city. They sue in behalf of themselves and other citizens, residents, taxpayers, water users and water purchasers of the city similarly situated. ‘The defendant, city of Milwaukee, is a municipal corporation of the state of Wisconsin, and the other defendant are various officers of the city, whose duties include those pertaining to the water works owned and operated by the city. ‘On November 1, 1948, there was introduced at a meeting of the common council of the city a proposed resolution, reading as follows: “Resolution to authorize the fluorination of the water supply of the city of Milwaukee for the purpose of preventing dental decay. “Whereas, an overwhelming weight of scientific evidence indicates that the regular ingestion of a drinking water supply deficient in fluorine during the first ten years of life is invariably associated with a high incidence of dental decay; and “Whereas, an overwhelming weight of scientific evidence indicates that a drinking water supply, regularly consumed during the first ten years of life, containing a concentration of one part per million of fluorine, as fluorides, greatly inhibits dental decay; and “Whereas, the drinking water supply of the city of Milwaukee is now practically devoid of fluorides; and “Whereas, dental decay is rampant among children of school age, as well as people of all ages, in the city of Milwaukee; and “Whereas, an addition to the drinking water supply of the city of Milwaukee of a concentration of one part per million of fluorine, as fluorides, can, without equivocation, be expected to greatly reduce the incidence of dental decay among the citizens of Milwaukee in the future; and “Whereas, the fluoride deficient water supply of the city of Milwaukee can be safely and cheaply supplemented with a concentration of one part per million of fluorine; therefore be it ‘Resolved, by the common council of the city of Milwaukee that the proper officials of the Milwaukee Water Works are hereby authorized and directed to provide the means and to proceed as early as possible in the year 1949 with the introduction of approximately one part of fluorine to every million parts of water distributed in the water supply system of the city of Milwaukee; and be it further “Resolved, that the cost of materials, equipment, and labor for this purpose, in the amount of approximately $100,000 per year, shall be paid for out of Milwaukee Water Works revenues.' ‘This resolution was later ordered on file as a result of action taken by subsequent resolutions to be referred to; as to all of which public hearings were held before the committee to which they were referred. ‘On October 24, 1950, the common council of the city adopted a resolution, signed by the mayor, reading as follows: “Resolution relative to fluoridation of the city's water supply: Resolved, by the common council of the city of Milwaukee that the water department be and hereby is authorized and directed to provide the means to proceed as early as possible in the year 1951 with the fluoridation of the city's water supply, and be it: Further Resolved, that the board of estimates be and hereby is authorized and directed to appropriate in the 1951 proposed budget a sufficient sum of money to carry out the aforesaid purpose.' ‘Pursuant to that resolution, the city purchased equipment for fluoridating the city's public water supply at a cost of about $7,000, and purchased tons of sodium silicofluoride (hereinafter called ‘Fluoride’) to fluoridate the water provided by the city's water works. ‘Then on June 16, 1953, the common council of the city adopted another resolution, signed by the mayor, reading as follows: “Resolution relative to commencing the introduction of sodium silicofluoride into the city water system: Whereas, pursuant to Resolution File No. 48-1922A, adopted October 24, 1950, the Milwaukee Water Works has taken all steps necessary to introduce fluorine into the water it distributes, has a stock of the necessary chemicals on hand, and is prepared to commence fluoridation; now, therefore, be it Resolved, by the common council of the city of Milwaukee, that the proper city officers be and they hereby are directed to commence the introduction of sodium silicofluoride into water distributed by the Milwaukee waterworks in sufficient quantities to bring the flourine content of the water to a concentration of approximately one part per million.' ‘After the second resolution became effective the city, through its water works, inserted fluoride into the city water to bring it to the concentration mentioned in the resolution and continues to insert fluorides to keep it at the concentration mentioned in the resolution. ‘The water is taken by the city from Lake Michigan and is distributed through a system of water mains to consumers-municipal, industrial, manufacturers of food, some of which goes into interstate commerce, and domestic, within and without the city limits. The water as taken from Lake Michigan contains less than 0.1 part of fluoride per million.’ Because a public health measure has been enacted and the subject bears a real, substantial, and reasonable relation to the health of the city, there is no unreasonable invasion of the rights of the individual or of ‘the right of parents to bring up and care for their children as they deem best,’ or of any of the rights set forth by the plaintiffs in their complaint. There is then left the questions raised because of the wording of the resolution and because a resolution was used as the method to express the council's determination instead of an ordinance, and the further question of conflict with existing laws. The resolution as such and in its form and substance provides the necessary legislative authority for the water fluoridation plan under the police power earlier discussed in this opinion. Sec. 6.06, Milwaukee City Charter; Meade v. Dane County, 155 Wis. 632, 145 N.W. 239. The resolution directs the proper city officials to proceed in the matter, and this is a sufficient authorization as well as a proper fixing of responsibility upon those officials. Those officials, the proper officers, are well known. They are parties to this proceeding. Attention is called to the misuse of the word ‘fluorine.’ However, the complete resolution discloses too clearly the legislative intention to use the word ‘fluoride’ to permit regarding that verbal mistake as a valid objection to the validity of the act. Lewis' Sutherland, Statutory Construction, 2d ed., p. 795, sec. 410. The respondent city was not intending to and did not violate the recommendation of the state board of health. The court, in passing on this point, properly based his conclusion on the rules of statutory construction and held that the word ‘fluorine’ as used in connection with the surrounding provisions meant ‘fluoride.’ The objection that the resolution results in a conflict with the federal food, drug and cosmetic act and the state pure food laws was correctly ruled out by the circuit court. The city attorney asserts that when the action of the common council is considered in the light of information concerning the many communities fluoridating their water, it is apparent that the legislative body (the common council) is not pioneering in a field of medicine or health which is new and unusual. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. Upon the trial below, attention was called to an opinion of the attorney general, 42 Op.Atty.Gen. 160, dated June 9, 1953 containing a discussion of the points now being considered. In that opinion sec. 97.27, Stats. appears, which reads: ‘97.27(1) No person, firm or corporation shall, by himself, or by his agents or servants, manufacture, sell, ship, consign, offer for sale, expose for sale or have in his possession with intent to sell for use or consumption within the state, any article of food within the meaning of section 97.01, which contains fluorides, fluoborates, fluosilicates or other fluorine compounds, or any other preservatives injurious to health.’ In his opinion, the attorney general said: ‘Your problem really divides itself into two phases, whether this section precludes a municipality from fluoridating its water supply, and whether the section prohibits a food manufacturer from utilizing fluoridated water from the municipal system in preparing foods for sale. ‘Sec. 97.27(1) relates to foods, but by definition sec. 97.01, Stats., provides that the term ‘food’ as used in ch. 97 includes all articles used for food or drink or condiment by man, whether simple, mixed or compound, and all articles used or intended for use as ingredients in the composition or preparation thereof. ‘That the provisions of sec. 97.27(1) were not intended to apply to municipal water supplies is clearly evidenced, however, by other and later provisions of the statutes. ‘Sec. 196.03(3), Stats., relating to the fixing of utility rates by the public service commission, provides: “In the cae of a public water utility, the commission shall include, in the determination of water rates, the cost of fluorinating the water in the area served by such public water utility, provided the local governing legislative body in which such public water utility is situated authorizes the fluornation of water in the area primarily served by such public water utility.' ‘Sec. 66.069(1)(a), Stats., provides in part: “The council or board of any town, village or city operating a public utility may, by ordinance, fix the initial rates and provide for this collection monthly, quarterly or semiannually in advance or otherwise. The rates shall be uniform for like service in all parts of the municipality and shall include the cost of fluorinating the water.' ‘Sec. 66.071(1)(f), Stats., relating to the city of Milwaukee, provides in the part governing charges for the furnishing of water to users outside the city: “which charges shall include the proportionate cost of fluorinating the water'. ‘This clearly implies that the city of Milwaukee may fluoridate its water supply. It might also be added that waterworks maintenance and operation plans are subject to approval by the state board of health under sec. 144.04, Stats., and that the state board of health has approved the plans and specifications submitted by the city of Milwaukee in connection with the installation of its fluoridation equipment. ‘This brings us to the second part of your question relating to the impact, if any, of sec. 97.27(1) upon the food processor or manufacturer who utilizes fluoridated water from a municipal water system in the course of his operations. ‘Again it is our conclusion that sec. 97.27(1) was not intended to apply. ‘Perhaps the most comprehensive study of fluoridation of water supplies available is that published by the National Institute of Municipal Law Officers, Report No. 140, 1952, entitled Fluoridation of Municipal Water Supply-A Review of the Scientific and Legal Aspects, by Charles S. Rhyne and Eugene F. Mullin, Jr.’ The attorney general supports his opinion by calling attention to the case of United States v. Commonwealth Brewing Co., notice of judgment No. 7926, reported in the March 1946 issue of Notices of Judgment under Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq. It may also be found in Kleinfeld and Dunn, Federal Food, Drug and Cosmetic Act, 1938-1949, published by Commerce Clearing House, Inc., at p. 310. It was there held that the Federal Act does not proscribe fluoridation of municipal water supplies. The attorney general's opinion then reads: ‘In the July 23, 1952 Federal Register, 6732, there is printed a statement by John L. Thurston, acting federal security administrator, under the date of July 17, 1952, which statement reads in part as follows: “(c) The Federal Security Agency will regard water supplies containing fluorine, within the limitations recommended by the Public Health Service, as not actionable under the Federal Food, Drug, and Cosmetic Act. Similarly, commercially prepared foods within the jurisdiction of the act, in which a fluoridated water supply has been used in the processing operation, will not be regarded as actionable under the Federal law because of the fluorine content of the water so used, unless the process involves a significant concentration of fluorine from the water. In the latter instance the facts with respect to the particular case will be controlling. (Sec. 701, 52 Stat. 1055; 21 U.S.C. § 371 [21 U.S.C.A. § 371].)' See p. 47, Fluoridation of Municipal Water Supply, supra. ‘While the federal act is couched in more general language than sec. 97.27(1), Stats., and mentions ‘poisonous or deleterious substances' rather than specific ingredients such as fluorine, it was considered in the Commonwealth case to include fluorine in shipments of food in interstate commerce and we believe the reasoning of the federal security administrator is equally applicable to sec. 97.27(1), Stats. ‘Sec. 97.27(1) had its genesis in ch. 33, Laws 1905. It reads now substantially the same as it did then. This was long before the fluoridation of municipal water supplies, which is a very recent development, having been commenced at Grand Rapids, Michigan, in January 1945. See Fluoridation of Municipal Water Supply, supra, at p. 6. On the other hand, secs. 66.069(1)(a), 66.071(1)(f) and 196.03(3), Stats., insofar as they relate to fluoridation of city water supplies, had their origin in chs. 325, 327 and 328, respectively, Laws 1949. Presumably the legislature was aware of the existence of sec. 97.27(1) when it enacted these later provisions and of the commonly known fact that nearly all of the large food processing or manufacturing concerns are dependent upon municipal water supplies.’ With respect to the question as to whether the summary judgment statute is applicable, we are of the opinion that upon the record as it is before the court, the proceedings under sec. 270.635, Stats. were properly applicable. The affidavits state evidentiary facts, Schau v. Morgan, 241 Wis. 334, 6 N.W.2d 212, and the court properly decided the question of the constitutionality of the resolution in determining the case. Werner v. Milwaukee Solvay Coke Co., 252 Wis. 392, 31 N.W.2d 605. The issues presented by the pleading and affidavits are legal rather than factual, and the power involved is the general police power. It appears from the record that all of the proceedings and the principal and controlling issues were properly determined. Both sides asked for summary judgment. The evidence warranting the determination of the court is such that the objections on the part of the appellants were properly overruled in denying their complaint. The judgment below must be upheld. Judgment affirmed.

+/- Landt v. City of Wisconsin Dells

Wisconsin, Petitions Initiatives & Re-votes

• Plaintiff
  Landt
• Defendant
  City of Wisconsin Dells
• State
  Wisconsin
• Other Parties
  -
• Case Tags
  - Petitions Initiatives & Re-votes
• Citation
  30 Wis. 2d 470; 141 N.W.2d 245 (Wis. 1966)
• Year
  1966-00-00T00:00:00
• Court Name
  Supreme Court of Wisconsin
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  FAIRCHILD, Justice. Sec. 10.43, Stats., is entitled ‘Direct legislation.’ Under its terms a petition may be filed with a city clerk requesting that a specified ordinance or resolution ‘either be adopted without alteration by the common council of said city or be referred without alteration to a vote of the electors thereof.’ Such petition must have been signed by electors equal in number to not less than 15 percent of the vote cast in the city for governor at the last general election. If a petition fulfills the statutory requirements, the clerk so certifies, and the proposed ordinance or resolution must thereupon be passed by the council without alteration, or be submitted to the voters at the next regular election. If adopted at the election, it can neither be repealed nor amended within two years after its adoption except by vote of the people. There is no part of sec. 10.43, Stats., which expressly authorizes a petition to compel the council to repeal an ordinance or resolution previously adopted, or, in default of repeal, to submit the ordinance or resolution to popular vote. It is conceded that the petition in this case had an adequate number of signers and was otherwise in proper form. The council did not adopt the proposed ordinance, but did submit a question to the voters on the subject of fluoridation. Whether this question could be deemed a proper submission of the proposed ordinance under sec. 10.43(5), Stats., is open to debate, but need not be decided here. Although the majority of votes were against increasing the fluoride content, the council has treated the vote as advisory only. The question argued on this appeal has been stated by petitioners as follows: ‘Where the Common Council of the City has previously adopted a resolution to increase the fluoride content of the public water supply of the City, may the provisions of Wisconsin Statutes 10.43 be enforceably invoked by the electors of the City for an ordinance to prohibit fluoridation of the public water supply of the City and to repeal the resolution previously adopted by the Common Council.’ Section 2 of the proposed ordinance would prohibit the addition of fluorides to the municipal water supply. Section 3 would impose a forfeiture for violation. Section 4 would repeal resolutions in conflict with the proposed ordinance. Although sections 2 and 3 would appear, in form, to add new legislation, the proposed ordinance would, in substance, be a reversal of the policy decision already made by the common council to fluoridate the city water. Defendants suggest that the proposal is no more than a repeal of the resolution of October, 1963, authorizing and directing city employees to add fluoride, and petitioners do not seriously challenge this interpretation. We conclude that when a common council has adopted an ordinance or resolution dealing with a particular subject, sec. 10.43, Stats., does not authorize the filing of petitions to compel the council to repeal such ordinance or resolution, or, in default of repeal, to submit the ordinance or resolution to popular vote. It is true that in a broad sense a repeal of an existing measure is an act of legislation, just as is the adoption of a new measure upon a subject not previously dealt with. Nevertheless, traditional concepts in the field of direct popular legislation, and the history of sec. 10.43, Stats., and its predecessor statutes, convince us that the two types of legislation are not the same in the context of sec. 10.43, Stats. Usually the procedure for consideration by the voters of new legislation is referred to as the initiative, and for review by the voters of existing legislation as the referendum. ‘Generally speaking, the initiative, in the case of municipal legislation, is initiation of municipal legislation and enactment or rejection thereof by the municipal electorate in event the proposed measure is not enacted by their elected representatives.'^FN1 FN1. 5 McQuillin, Municipal Corporations, p. 247, sec. 16.52. ‘The referendum is essentially a referral to the voters of a municipality for their direct vote on an existing ordinance, or at least one that has been passed by the municipal legislative body and that is or may become law except for the successful intervention of referendum procedure. It usually is utilized, practically speaking, with the object in view of defeating municipal legislation that exists, is in process of being enacted, or has been enacted with its effective date in the future, although it is designed obviously to determine the will of the electorate as to such legislation.'^FN2 FN2. 5 McQuillin, Municipal Corporations, p. 248, sec. 16.53. The source of present sec. 10.43, Stats., was ch. 513, Laws of 1911, creating ‘sections 39 i to 39 l, inclusive, of the statutes, relating to the initiative and referendum on acts of municipal councils and of boards of county supervisors.’ Sec. 39 i created an initiative procedure, the filing of a petition to compel a city council or county board to adopt an ordinance, or, in default of such adoption, to submit it to popular vote. Sec. 39 j created a procedure of the referendum type, the filing of a petition to compel a city council or county board either to repeal an ordinance or resolution already adopted, or, in default of such repeal, to submit it to popular vote. The referendum procedure created by sec. 39 j was closely limited in that the petition must be filed within 20 days after adoption of the ordinance or referendum to be challenged. Sec. 39 k provided formal and procedural requirements applicable to both the initiative and referendum, and sec. 39 l deprived the mayor of veto power over measures adopted by vote of the people. The initiative procedure was comparable to that now provided by sec. 10.43, Stats., except that sec. 39 i required a number of signatures equal to 25 percent of the vote for governor rather than 15 percent as now provided. No part of present sec. 10.43, Stats., is comparable to the referendum procedure contained in sec. 39 j. The legislative history makes it clear that the legislature intended to eliminate the referendum provided by sec. 39 j, and leaves no room for the contention that the legislature intended to authorize repeal of existing ordinances or resolutions by resort to the initiative under sec. 10.43, Stats. A series of 1915 session laws revised and renumbered many of the laws relating to elections.^FN3 Sec. 14 of ch. 385, Laws of 1915, revised sec. 39 i, 39 k and 39 l, and renumbered them to be sec. 10.43, Stats., and sec. 670 m, Stats. Sec. 10.43, Stats.1915, expressly applied to cities, and, except for changes not relevant to the present issues, was the same as the present section.^FN4 Sec. 27 of ch. 383, Laws of 1915, repealed sec. 39 j. The bills which accomplished the revision were introduced by the Committee on Judiciary and notes were printed therein. A note to sec. 27 of Bill No. 79, S, which became sec. 27 of ch. 383, repealing 39 j, read as follows: ‘This section was declared unconstitutional in Mead v. Dane County, 155 Wis. 632, 145 N.W. 239. Sections 39 l (sic), 39 k, and 39 L (sic) have been transferred to subtitle ‘City Elections' in chapter 10.’ A note to sec. 14 of Bill No. 81, S, which became sec. 14 of ch. 385, read as follows: FN3. Chs. 381 to 386, inclusive, Laws of 1915. FN4. Sec. 670 m, Stats.1915, made sec. 10.43 applicable to counties. It later became sec. 59.02(2). In 1939 the attorney general asserted that sec. 10.43 could not constitutionally be applied to counties, 28 Op.Atty.Gen. 719; this court so held in Marshall v. Dane County Board of Supervisors (1940), 236 Wis. 57, 294 N.W. 496; and sec. 59.02(2), Stats., was repealed by ch. 177, Laws of 1943. ‘This section has been rewritten with a view of condensation and of placing its provisions in the order in which the events are to occur. The substance has been faithfully preserved. No use has ever been made of the section and even as rewritten it is so cumbersome and so expensive a way of getting local legislation that it probably ought to be repealed. The directions as to the conduct of the election, ballot to be used, canvass and returns, are provided already by section 10.42.’ The Meade Case,^FN5 referred to in the note concerning the repeal of sec. 39 j, providing a referendum procedure, involved an attempt, by petition under sec. 39 j, to compel the county board of Dane county to repeal a resolution or submit it to vote of the people. The opinion was highly critical of the breadth of the referendum review provided by sec. 39 j and did indeed hold that it conflicted with the constitution. The case before the court involved a county board, and several of the reasons stated for holding sec. 39 j unconstitutional would apply to a county, but not to a city. However broad the holding of the Meade Case, the notes above quoted demonstrate an intent to do away with review by referendum and negative any implication in sec. 10.43, Stats., that it is available for repeal of existing legislation. FN5. Meade v. Dane County (1914), 155 Wis. 632, 145 N.W. 239. In a 1939 decision, this court stated that sec. 10.43, Stats., ‘has no application to an ordinance already passed.'^FN6 FN6. Town of Wilson v. City of Sheboygan (1939), 230 Wis. 483, 283 N.W. 312. We consider the proposal involved in the case before us as clearly and solely an attempt to repeal a resolution previously adopted by the council. We note, but do not reach, the possibility that although an ordinance or resolution, proposed by petition, might incidentally involve amendment or repeal of existing measures, its real substance might nevertheless be deemed affirmative legislation upon a new subject. In 1940, for example, a case came before this court where an attempt was made, by petition and popular vote under sec. 10.43, Stats., to change the salaries of aldermen. The court determined that the attempt failed because it was untimely under another statute, and did not find it necessary to decide whether salaries may be fixed or changed under sec. 10.43.^FN7 Mr. Justice Fowler, in an opinion concurred in by Mr. Justice Fritz, stated that ‘sec. 10.43 (Stats.) authorizes salaries to be fixed by direct legislation.’ FN7. Feavel v. City of Appleton (1940), 234 Wis. 483, 494, 291 N.W. 830. Petitioners call our attention to four references to sec. 10.43, Stats., in other sections of the statutes. They argue that such references indicate an intent on the part of the legislature that the procedure of sec. 10.43 may be used to initiate repeal of existing ordinances or resolutions. The references cited are as follows: Sec. 43.28(5), Stats., provides that if a gift be offered to a county, city, village or town for a public library or library building, such municipality may obligate itself, by an ordinance adopted by a two-thirds vote, to levy and collect an annual tax for the maintenance of such library, ‘and if such gift be accepted such obligation shall not be repealed. Such ordinance shall be subject to the referendum provided for in section 10.43 ‘ Petitioners suggest that the use of the word ‘referendum’ implies that review and repeal is authorized by sec. 10.43. It is arguable, however, that since the section expressly prohibits repeal if the gift be accepted, the word ‘referendum’ is more loosely used, and means no more than that if a gift is offered, the ordinance undertaking the maintenance obligation may be initiated and enacted under sec. 10.43. Obviously, too, sec. 43.28(5) is a special adaptation of the procedure created for a city by sec. 10.43 since sec. 43.28(5) applies to a county, village, and town as well. Sec. 66.01, Stats., deals with home rule of a city or village. Sub. (6) provides that ‘Any charter ordinance may be initiated in the manner provided in subsections (1) to (5) of section 10.43, but alternative adoption thereof by the legislative body shall be subject to referendum as provided in subsection (5) of this section.’ Sub. (2) defines a charter ordinance as one ‘which enacts, amends or repeals the whole or any part of the charter of a city or village....’ Petitioners point out that it thus is made possible to initiate under sec. 10.43 an ordinance which repeals a previous enactment. Sec. 66.01, again, is a special adaptation of the procedure created for a city by sec. 10.43, and applies to a village as well as a city. Secs. 66.40 to 66.404, Stats., constitute the ‘Housing Authorities Law.’ Sub. (4) provides that when the council of a city declares that there is need for a housing authority, such authority comes into existence as a public body corporate. Sub. (25)(a) provides: ‘In any city or village the city council or village board by resolution or ordinance, or the electors by referendum under s. 10.43, may provide that the authority shall liquidate and dispose of a particular project or projects held and operated under ss. 66.40 to 66.404 or 66.43.’ Ch. 64, Stats., provides for adoption of the city manager plan in cities of the second, third, or fourth class. Sec. 64.10(3) provides that the board of education shall continue ‘provided that such board may be discontinued by a vote of the people held in accordance with the provisions of section 10.43 of the statutes, and in such case the powers and duties of such board shall be exercised and performed by the council and city manager....’ It is true that to some extent several of the statutes just referred to authorize the use of the initiative procedure under sec. 10.43, Stats., to accomplish what is essentially a repeal. The fact that such express authorizations exist in specific areas, does not convince us that the general authority to initiate repeal measures pursuant to sec. 10.43 is implied within that section. The express provisions for the special cases may as well imply that sec. 10.43 would be imapplicable to repeal proposals in the absence of the express provisions. Petitioners also point to a statement by the attorney general^FN8 that the purpose of sec. 10.43, Stats., ‘is to give the voters of cities and of counties the right to initiate legislation and to pass upon ordinances and resolutions which have been enacted by county boards and city councils.’ The particular opinion dealt with direct legislation by the electors of counties and held it unconstitutional for reasons peculiar to counties.^FN9 In the light of the legislative history heretofore referred to, we do not consider the statement of the attorney general, just quoted, persuasive in determining the application of sec. 10.43 to cities. As previously indicated, we conclude that the legislature has not, by sec. 10.43, authorized a procedure for the repeal of existing legislation. FN8. IX Op.Atty.Gen. 67 (1920). FN9 See Marshall v. Dane County Board of Supervisors, supra, footnote 4. Judgment affirmed.

+/- 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.

+/- Williams v. Rowe

Pennsylvania, Petitions Initiatives & Re-votes

• Plaintiff
  Williams et al.
• Defendant
  Rowe
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  - Petitions Initiatives & Re-votes
• Citation
  3 Pa. Commw. 537; 283 A.2d 881 (Pa. Commw. Ct. 1971)
• Year
  1971-00-00T00:00:00
• Court Name
  Commonwealth Court of Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Kramer
• Opinion Text
  KRAMER, Judge. This is an appeal from two orders of the Court of Common Pleas of Northumberland County: (1) refusing plaintiffs' (appellants here) Motion for a Summary Judgment, and (2) sustaining defendant's (appellee here) Preliminary Objections to a Complaint in Mandamus. On January 21, 1971, Paul D. Williams, et al. (appellants) presented a written request to Helen Rowe (appellee) City Clerk of the City of Sunbury, asking for the preparation of a petition for the submission of a proposed ordinance to the City Council. The above mentioned ‘written request’ was signed by one hundred eight electors of the City of Sunbury, five of whom are the petitioners below and appellants here. This procedure was intended by the appellants to set into motion the initiative process as provided for in ‘The Third Class City Code,’ Act of June 23, 1931, P.L. 932, Article X, Section 1030,^FN1 53 P.S. s 36030 et seq. FN1 Unless otherwise indicated, all of the section numbers cited in this opinion will refer to the Third Class City Code, Supra. Appellants had requested that appellee prepare a petition for submission to the City Council of a proposed ordinance prohibiting the addition of fluoride to the public water system in and about the City of Sunbury. Six days later, appellee orally refused to comply with appellants' written request. It is to be noted that Section 1031 (53 P.S. s 36031) provides for the city clerk to prepare such a petition for submission to city council within ten days after the written request is made by the electors. The preparation consists of public notification via newspaper that a petition will be ready for signing by the electors of the city at the expiration of ten days from the presentation of the written requeat to the City Clerk. On January 29, 1971, at 9:57 A.M., appellants filed a Complaint in Mandamus in the office of the Prothonotary of Northumberland County. Within minutes, appellants also filed in that same action a Motion for Summary Judgment. The Sheriff of Northumberland County personally served (at 10:20 A.M. on that same date) appellee with copies of both pleadings. Later that day (at 2:30 P.M.), without prior notice to the appellee, appellants appeared in court and requested the court to issue an ex parte ruling on their Motion for Summary Judgment, under Rule No. 1098 ^FN2 of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix. The court, by an Order issued that day, refused to grant the Motion for Summary Judgment. FN2 Rule 1098. Summary Judgment. ‘At any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear, but the judgment may be opened upon cause shown. Judgment shall not be entered without prior notice to all parties unless the exigency of the case is such as to require action before notice, in which event notice shall be given as soon as possible.’ On February 2, 1971, in response to appellants' Petition for the reconsideration of their Motion for Summary Judgment, the court issued upon appellee a rule to show cause why the court should not reconsider appellants' Motion for Summary Judgment. Thereafter the court received briefs and heard arguments of both parties, and on February 25, 1971, issued an order denying appellants' petition for reconsideration, and again refusing a summary judgment. On February 16, 1971, appellee filed Preliminary Objections in the nature of a demurrer to appellants' Complaint in Mandamus. On March 2, 1971, appellants filed an Answer to the Preliminary Objections with a request that they be stricken. On March 22, 1971, the court sustained the appellee's Preliminary Objections and dismissed the appellants' Complaint in Mandamus. In its opinion, the court ‘...concluded that the proposed ordinance is not the subject of referendum vote and therefore excepted from the initiative process under the Code...’ The appeal before us touches upon the refusal by the lower court to grant the requested Motion for Summary Judgment on January 29, 1971, and the refusal of the court to overrule appellee's Preliminary Objections on March 22, 1971. For the purposes of this appeal, we are concerned with the issue of the scope of the initiative and referendum processes in general, and the appropriateness of the subject matter of appellants' proposed ordinance in particular. The disposition of these questions will be determinative of the instant appeal. The proposed ordinance attempts to place criminal sanctions upon ‘...any person, firm, association, corporation, government or agency thereof, who or which shall add or shall cause to be added to the public water system in and about the City of Sunbury, County of Northumberland, Commonwealth of Pennsylvania, any substance or derivative thereof commonly known, recognized and described as FLUORIDE,...’ We will first turn to the Third Class City Code, Supra, Section 1030, 53 P.S. s 36030, which in pertinent part reads as follows: ‘(b) Initiative Initiation of proposed ordinances by petition; exceptions Any proposed ordinance may be submitted to the council by a petition signed by the electors of any city, as hereinafter provided, except: (a) Proposed ordinances relating to any matter, subject or thing, which is not the subject of a referendum vote as provided in subdivision (c) of this article;‘ The subsequent sections of the statute outline the procedures to be followed in the use of the initiative process. Subdivision (c), as referred to in the above quotation, is found at Section 1050 et seq., 53 P.S. 36050 et seq., which deals with the referendum process and in pertinent part reads: ‘(c) Referendum Referendum; exceptions No ordinance passed by council shall go into effect before ten (10) days from the time of its final passage, except: (a) Ordinances expressly required to be passed by the general laws of the State or by the provisions of any act of Assembly, or the provisions of which and the matters to be carried out thereunder are subject to the approval of an officer or tribunal of the State Government; (b) Ordinances providing for tax levies, annual and other appropriations, and for the exercise of the right of eminent domain; (c) Ordinances for the preservation of the public peace, health, morals, safety, and in the exercise of the police powers of the city government, and for the prevention and abatement of nuisances; (d) Any ordinance providing for an election to increase indebtedness, and any other ordinance which by law must be submitted to an election before it shall take effect; (e) Ordinances for the opening, paving, grading, or other improvement of streets or highways, when the improvement is petitioned for by a majority in number or interest of the abutting property owners; (f) Ordinances for the construction of sewers, and for the purpose of keeping the streets, highways, and sidewalks in good order and repair and in a safe and passable condition.' (Emphasis added) It is the appellants' position that ‘no subject, matter or thing’ is excepted from the referendum process under Section 1050. They reason that the only purpose of Section 1050 is to exclude the six excepted areas from the ten-day waiting period. They argue that all of the six exclusions of Section 1050 are subject to the referendum process. Once the appellants reach this conclusion, they then insist that it follows naturally that there are no exceptions to the initiative process. They make this argument in spite of the obvious fact that ordinances in the six excepted areas may become effective immediately upon final passage by the legislative body. Their argument runs contrary to the purpose of the referendum process under which it is intended to provide for the suspension of the effectiveness of an ordinance if a petition is filed within the ten-day suspension period. It is clear to us that the General Assembly intended to exclude from the referendum process the six enumerated categories set forth in Section 1050. It is the appellee's position that the beforementioned two sections of the Code act as a bar to the implementation of the initiative procedure in this case. Appellee asserts that the written request made by the appellants for the preparation of a petition for the submission of an ordinance to City Council may not be granted in that it touches upon a subject matter which is excluded from the use of the referendum process and thereby is excluded from the initiative process. Appellee suggests that the only possible reason for which fluoride and its derivatives are added to human water supplies is that of health and safety. Consequently, the appellee argues that she is clearly barred from granting a written request to prepare an ordinance petition touching upon this subject matter. It is important to note that in one of the appellants' pleadings they aver as a fact that the purpose of the proposed ordinance via the attempted initiative procedure was an attempt ‘to preserve the public health.’ The initiative and referendum processes run contrary to our understanding of representative government. See Commonwealth ex rel. Heinly v. Marks, 248 Pa. 518, 94 A. 191 (1915). To carry out the appellants' position would permit a small minority percentage of the citizens of third class cities to control the efforts of the elected officials of the majority of its citizens in every legislative action or inaction. This indeed would be an intolerable situation. The General Assembly has said through the Code (Sections 1030 through 1064) that in those governmental areas not covered by the exceptions of Section 1050, a minority of the citizens may force a reconsideration of the passage of an ordinance. In the event that city council refuses to repeal the ordinance, the electorate may nevertheless defeat the implementation of the objected-to ordinance by a majority vote. However, the electors may not force a referendum within those excepted areas. In Section 1030, the General Assembly permits the initiative process in those areas of legislation not excluded from the referendum process in Section 1050. It is clear to us from a study of the development of the initiative and referendum processes statutes that the General Assembly has intended to keep a tight rein on these processes by restrictions rather than the expansive approach as urged upon us by the appellants. See Act of June 27, 1913, P.L. 568; Act of May 27, 1919, P.L. 310; Act of May 23, 1927, P.L. 378; Act of June 23, 1931, P.L. 932; and Act of June 28, 1951, P.L. 662. The case of Bogert v. Kistler, 38 Pa.Dist. & Co.R.2d 133 (1965) dealt with this very same question and resolved it in the same manner as we hare hold. We are of the firm belief that such an interpretation is consistent with our representative democratic form of government. It is indeed fitting that the electorate be given the opportunity to initiate some types of legislation and similarly to call into question the implementation of certain types of proposed legislation. However, the General Assembly has not extended that right to every possible area of legislation. One of the prices paid for the creation of a representative democracy is the vesting by the electorate of trust and responsibility in its elected representatives. Discretion is placed within the hands of the municipal legislators and we must accept the lawful exercise of this discretion. The efficiency of government, its stability, and the protection of the public at large necessitates the creation of certain categories wherein the legislative prerogative is unfettered by the initiative and referendum processes. The electorate nevertheless is not helpless in defending itself against unlawful legislation in the statutorily excluded areas, for it is before our courts that one may come and assert the illegality of a particular piece of legislation. Furthermore, it is at the ballot box that a voter may express his disapproval of the legislative programs of his elected officials. The interpretation made by this Court gives purpose and sense to both Section 1030 and Section 1050, and is in concert with the Statutory Construction Act, Act of May 28, 1937, P.L. 1019, Article IV, Section 51, 46 P.S. s 551, which reads: ‘The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the Legislature. Every law shall be construed, if possible, to give effect to all its provisions.’ (Emphasis added) In requesting the extraordinary relief provided for by mandamus and by the Pennsylvania Rules of Civil Procedure No. 1098, Supra, the appellants had a heavy burden to prove to the court that their right to a summary judgment was clear and free from doubt. See Rogoff v. The Buncher Company, 395 Pa. 477, 151 A.2d 83 (1959) and Travis v. Teter, 370 Pa. 326, 87 A.2d 177 (1952). The ruling of the trial court on a motion for a summary judgment in mandamus should not be disturbed by a reviewing court except for an arbitrary and capricious abuse of discretion or a clear violation of the law. Commonwealth ex rel. Alessandroni v. Confluence Borough, 427 Pa. 540, 234 A.2d 852 (1967). We can find no such abuse or violation by the trial court in this case. Even the appellants concede that there are possible ambiguities in the Code; and this concession clouds their claim to a ‘clear’ right. Lastly, in connection with the trial court's ruling on the preliminary objections, in view of the fact that the appellants averred in their pleadings that their purpose involved public health, their argument that the trial court went beyond the record in making its determination that their proposed ordinance came within Section 1050(c), Supra, is without merit. In light of the preceding discussion, we are of the opinion that the interpretation of the initiative and referendum procedures as urged upon us by the appellee, and as stated by the well-reasoned opinion of the court below, is proper, and we therefore affirm the Order of the court below.

+/- Opinion of the Justices of the Supreme Court in Response to a Question Propounded by the Governor of Delaware

Delaware, State police power

• Plaintiff
  None
• Defendant
  None
• State
  Delaware
• Other Parties
  -
• Case Tags
  - State police power
• Citation
  243 A.2d 716 (Del. 1968)
• Year
  1968-00-00T00:00:00
• Court Name
  Supreme Court of Delaware
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  Wolcott DF Chief Justice, Carey JB, Herrmann DL
• Opinion Text
  To His Excellency Charles L. Terry, Jr. Governor of Delaware. Reference is made to your letter of May 21, 1968, addressed to the Chief Justice, requesting the opinion of the members of the Supreme Court upon the constitutionality of House Bill No. 166 as amended by Senate Amendment No. 1 of the 126th General Assembly, presently before you for consideration. You have submitted to us a copy of House Bill No. 166 as amended by Senate Amendment No. 1. This Bill amends 16 Del.C. s 122(3)(C), dealing with the powers and duties of the State Board of Health, by striking the semicolon at the end of said subparagraph (C) of subsection (3) and inserting in lieu thereof a comma and the following additional language: ‘and further provide for the fluoridation of all water supplies which are furnished to and used by the public, excepting, however, such water supplies sold by bottle or similar container.’ The precise question upon which you have requested our opinion reads as follows: ‘In view of the limitations placed on the State Board of Health by Article 12, Section 1, of the Delaware Constitution which gives them ‘supervision of all matters relating to public health,’ can their present powers be enlarged to include providing ‘for the fluoridation of all water supplies which are furnished to and used by the public, excepting, however, such water supplies sold by bottle or similar container,’ where fluoridation may not be essential to the public health and is not necessary for the sanitary protection of public water supplies?‘ As indicated in your question, this amendment to 16 Del.C. s 122(3)(C) will give the State Board of Health the power to fluoridate local water supplies. We are asked to determine if this power is one which the General Assembly can confer upon the State Board of Health. The powers and duties of the State Board of Health are to be prescribed by the General Assembly according to Article 12, Section 1 of the Delaware Constitution, Del.C.Ann. The only limitations upon the General Assembly in so prescribing are that these powers and duties must relate to the public health and be within the police power of the State. The police power in Delaware is both comprehensive and vague.     Appeal of Blackstone, 8 W.W.Harr. 230, 190 A. 597 (1937).  The test of the constitutionality of its exercise is whether the end result and the method adopted bear a reasonable relation to the public health, safety, morals or general welfare.  All doubts are resolved in favor of the challenged statute.     Wilmington Parking Authority v. Ranken, 34 Del.Ch. 439, 105 A.2d 614 (1954). While the question of whether or not fluoridation is within this police power is one of first impression in Delaware, the question has been extensively litigated in other jurisdictions. In this litigation, fluoridation has been attacked on the following grounds: 1. It is unsafe. 2. It is outside the police power because it does not combat infectious disease and is not an emergency measure. 3. It is a violation of equal protection because it only aids children under 12 years of age. 4. It is the unauthorized practice of medicine. 5. It violates freedom of religion. The courts have uniformly held that fluoridation of water is a reasonable and proper exercise of the police power in the interest of the public health.   Schuringa et al. v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1964) cert. denied 379 U.S. 964, 85 S.Ct. 655, 13 L.Ed.2d 558; De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98 (1953) cert. denied 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Chapman v. City of Shreveport, 226 La. 859, 74 So.2d 142 (1954) app. dismissed 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701; Dowell v. City of Tulsa, 273 P.2d 859, 43 A.L.R.2d 445 (Okl.1954) cert. denied 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715; Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609 (1955) app. dismissed 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463; Paduano v. City of New York, 45 Misc.2d 718, 257 N.Y.S.2d 531 (1965) cert. denied 385 U.S. 1026, 87 S.Ct. 754, 17 L.Ed.2d 674; Attaya v. Town of Gonzales, 192 So.2d 188 (La.App.1966); Hall v. Bates, 247 S.C. 511, 148 S.E.2d 345 (1966). Consequently, we adopt the unanimous reasoning of courts which have decided this issue. Our answer to the question stated above is, therefore, in the affirmative. Respectfully submitted, DANIEL F. WOLCOTT Chief Justice JAMES B. CAREY DANIEL L. HERRMANN Justices

+/- 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.

+/- McGurren v. City of Fargo

North Dakota, Unlicensed Practice of Medicine/Compulsory Medication, Unnecessary Unsafe & Wasteful

• Plaintiff
  McGurren
• Defendant
  City of Fargo
• State
  North Dakota
• Other Parties
  -
• Case Tags
  - Unlicensed Practice of Medicine/Compulsory Medication

  - Unnecessary Unsafe & Wasteful
• Citation
  66 N.W. 2d 207 (N.D. 1954)
• Year
  1954-00-00T00:00:00
• Court Name
  Supreme Court of North Dakota
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  GRIMSON, Judge. The plaintiff brings this action, both individually and on behalf of all others similarly situated, against the City of Fargo, a municipal corporation, for an injunction to prevent the addition of fluoride compounds to the municipal water supply. In his amended complaint alleges that he is a resident, freeholder and taxpayer in the City of Fargo, a municipal corporation; that the defendant, City of Fargo, acting in a proprietary capacity, and for compensation, furnishes water to the residents of the city; that on the 8th day of April 1952, the defendant, acting through the city commission, passed a resolution directing the city manager to take necessary steps in the water department to provide for the addition of sodium-silico-fluoride compounds to the water supply of the City of Fargo, for the avowed purpose of preventing dental caries in young children; that prior thereto the defendant had procured and installed the mechanical equipment for injecting fluoride compounds into the municipal water supply and plaintiff alleges on information and belief that that was now being done from day to day. Plaintiff further alleges that there is an implied contract between the defendant and the customers of said water department that the water furnished shall be ‘as reasonably pure and wholesome as possible;’ that in reliance thereon plaintiff purchased property in the City of Fargo, procured water connections and is in all things conforming to the said implied contract on his part; that said fluoride is a toxic or poisonous substance and does not help in making the water pure or wholesome but on the contrary makes said water adulterated and dangerous to plaintiff's health causing him irreparable injury; that the amount of the charge by the city for water is necessarily increased by the expense involved in the operation and supervision of the machinery for the injection of the fluoride which expense was not in contemplation of the parties; that all this is in violation of the contractual rights of the plaintiff; that he receives no benefit therefrom as he is an adult; that in order to procure pure and wholesome water not adulterated with fluoride plaintiff would have to buy such water from other sources which would cause him, ‘continual inconvenience, vexation, harassment, and expense,’ on account of this breach by defendant of his contract to furnish pure water; that the defendant has no right ‘either in governmental or a proprietary capacity to sell or dispense to the plaintiff and others similarly situated any medication or alleged thereapeutic agent;’ that this medication is contrary to the state Food and Drug law, Sec. 19-0201, NDRC 1943, in that mixing fluorides with water, alleged to be food, injuriously affects its quality and renders it injurious to health, and contrary to the state Pharmacy Law, Chap. 43-15, NDRC 1943, in that it dispenses a medical compound by others than a pharmacist or physician. Then he finally alleges that this is mass medication, unreasonable and arbitrary, exceeds the police power, does not conform to due process, violates plaintiff's inherent right to care for his own body and health and invades his right of freedom of religion, all contrary to the First and Fourteenth Amendments to the Constitution of the United States and to Article I, Sections 1, 4, 11 and 16 of the Constitution of North Dakota. It is repeatedly alleged that these results of the fluoridation cause plaintiff and all those similarly situated irreparable injury and ‘that pecuniary compensation will not afford adequate relief and that restraint is necessary to prevent multiplicity of judicial proceedings' and prays that for those reasons he be granted an injunction to prevent fluoridation of the municipal water supply. To this complaint the defendant demurred on the grounds, (1) that it did not state a cause of action; (2) that plaintiff has not legal capacity to sue; (3) that the court has no jurisdiction of the subject of the action; (4) that several causes of action have been improperly united. The district court sustained the demurrer. Plaintiff appeals from the order of the district court. Since the case now is before us on the demurrer we must look to the complaint to see if the plaintiff has stated facts sufficient to entitle him to bring this action for an injunction. For the purpose of testing the sufficiency of the complaint it is held that the demurrer admits the truth of all issuable, relevant, material facts well pleaded. Englund v. Townley, 43 N.D. 118, 122, 174 N.W. 755, 30 C.J.S., Equity, § 283, p. 719. Sec. 28-0741, NDRC 1943, provides: ‘In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.’ In McCurdy v. Hughes, 61 N.D. 235, 237 N.W. 748, 754, it is held that ‘this rule is applied where a complaint is attacked by a demurrer.’ In Olsness v. State, 58 N.D. 20, 224 N.W. 913, 914, this court states: ‘In considering the sufficiency of the allegations of the complaint we must, of course, give to the pleading the advantage of every intendment. See Northern Trust Co. v. First Nat. Bank, 25 N.D. 74, [at page] 79, 140 N.W. 705; Weber v. Lewis, 19 N.D. 473, 126 N.W. 105, 34 L.R.A.,N.S., 364.’ Lamoure v. Lasell, 26 N.D. 638, 647, 145 N.W. 577; Milwaukee Trust Co. v. Van Valkenburgh, 132 Wis. 638, 112 N.W. 1083. A demurrer however, does not admit inferences and conclusions unless they appear clearly drawn from the facts alleged. ‘Legal conclusions or inferences of fact which are not presumed or which may not be reasonably or necessarily inferred from the facts alleged are not admitted by the demurrer.’ Torgerson v. Minneapolis, St. P. & St. Marie R. R. Co., 49 N.D. 1096, 1102, 194 N.W. 741, 743; See also Tayloe v. City of Wahpeton, N.D., 62 N.W.2d 31, 38; Consolidated Freightways, Inc., v. Lamb, 73 N.D. 339, 15 N.W.2d 74; City of Fargo v. Sathre, 76 N.D. 341, 349, 350, 36 N.W.2d 39; McIntyre v. State Board of Higher Education, 71 N.D. 630, 3 N.W.2d 463; King v. Baker, 69 N.D. 581, 288 N.W. 565, 125 A.L.R. 730. The complaint in the instant case is long, repetitious and rather indefinite. It is doubtful whether some of the conclusions can be inferred from the facts alleged. We must, however, construe it liberally and give it the advantage of every intendment to determine whether it states facts sufficient to fairly apprise the defendant of the nature of the claims made against it. There are no allegations in the complaint to the effect that plaintiff's rights as a taxpayer are being violated. The City of Fargo operates the water supply system in a proprietary capacity. The mechanical equipment had been procured before the fluoridation was commenced. Charges are made against the consumers of the water for the cost and expense of operation. There is no allegation that public funds are being illegally expended. Under the complaint the fact that plaintiff is a taxpayer gives him no special rights in this action. The plaintiff alleges ‘That an actual, or in all events, an implied contract exists obligating the defendant in the conduct of the municipal water plant to furnish water that is as reasonably pure, wholesome as possible.’ To support this conclusion he alleges that the defendant furnishes and sells water to the plaintiff and other residents of the City of Fargo in a proprietary capacity; that plaintiff has made the necessary service connections with the defendant's water main; that he is paying the charges made by defendant for the water and in all things conforming on his part to the alleged contract. These allegations seem to imply mutuality of obligations between the parties. It is alleged that the defendant is to furnish pure water and the plaintiff to pay therefor. That implies consideration on both sides. It is true these allegations do not show that each party has the same remedies against the other. Mutuality, however, does not require that the parties have the same remedies against each other. 17 C.J.S., Contracts, § 100, p. 447. ‘There are many contracts, originally unilateral, capable of enforcement when accepted. Many other contracts afford one party a remedy by an action for the recovery of money, either upon a specific promise to pay, or in an action for damage, while the other party may be entitled to a specific performance; still others, where the remedy of one party before any performance might be very inadequate, which are yet, after full performance on one side, capable of specific enforcement against the other.’ Topeka Water Supply Co. v. Root, 56 Kan. 187, 197, 42 P. 715, 719. There is nothing in the allegations to show the time during which this contract was to exist. The inference from the allegations is that the plaintiff could cease purchasing the water from the city at any time. That, however, does not destroy the mutuality of the contract. ‘Where an offer is accepted, not by a promise, but for the performance of an act, it is mutual, although no time is stipulated during which performance is to be continued’. 17 C.J.S., Contracts, § 100, p. 447. See also Rague v. New York Evening Journal Pub. Co., 164 App.Div. 126, 149 N.Y.S. 668. Sec. 9-0601, NDRC 1943 provides: ‘An implied contract is one the existence and terms of which are manifested by conduct.’ As defined by the court in Armstrong v. Cleveland, 32 Tex.Civ.App. 482, 74 S.W. 789, an implied contract ‘is one which the law creates from the conduct and relations of the parties in the absence of an agreement by them.’ We hold that construing the allegations of the complaint liberally they support the conclusion that an implied contract existed between the defendant and the plaintiff. Plaintiff then alleges in his complaint that the defendant has breached this implied contract by the addition of fluoride compounds to the water supply which he says adulterates the water and makes it dangerous to plaintiff's health. Whether the complaint alleges sufficient facts upon which to base that conclusion is a close and serious question. He does allege that under the implied contract the defendant has to furnish water that is ‘as reasonably pure and wholesome as possible.’ That means that the defendant must furnish water free from any ‘contamination rendering the water unfit for domestic use and unsafe and dangerous to individuals.’ 56 Am.Jur., Waterworks, Sec. 75, p. 76, and Sec. 79, p. 983. See also Annotation 61 L.R.A. 88. The complaint then alleges that the fluoride compounds are poisonous. It does not state in what proportion to the amount of water the fluorides are injected. It is, however, common knowledge that poisons when taken in sufficient quantities do cause serious injury. It follows that the intent of the allegation is that the mixture of the fluorides with the water was in sufficient amounts to cause serious injury. It must be held, therefore, that giving the allegations in the complaint their full intendment, they form a basis from which the conclusion can be drawn that the plaintiff will suffer irreparable injury from the acts of the defendant in mixing fluoride compounds with the drinking water. The allegations of the complaint when given every intendment fairly apprise the defendant of the claim made against defendant in regards to the irreparable damage. The violation of a contract, even if such violation causes the injured party irreparable damage, does not, however, entitle him to an injunction if he has any adequate remedy at law. But a legal remedy in order to be adequate in the sense involved in determining the jurisdiction of equity must be as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity. Bourke v. Olcott Water Co., 84 Vt. 121, 78 A. 715, 33 L.R.A.,N.S., 1015. It is claimed in the complaint that the injuries and expense caused by fluoridation are continuous; will cause a multiplicity of lawsuits and that there is no adequate remedy at law. Clearly any injuries caused by fluoridation would continue as long as fluoridation is permitted. No one action at law could determine the damages sustained by the injured party. The injuries and expense up to the bringing of an action for damages could perhaps be estimated and injured party duly recompensed to that extent. However, the future damages caused by the continued use of fluoridation would necessitate the bringing of future actions. This would continue as long as the fluoridation would continue. In Bartles Northern Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576, this court said: ‘Although a legal remedy may be adequate for any single act of trespass or any single wrong, yet when such acts or wrongs are continuous in their nature and the entire wrong may be prevented by injunction, that form of proceeding is preferable to one at law, because full compensation for the entire wrong cannot be obtained in one action at law.’ In Viestenz v. Arthur Township, 78 N.D. 1029, 1030, 54 N.W.2d 572, 573, this court held: ‘As a general rule where an injury, committed by one against another is continuous or is being constantly repeated, so that the complainant's remedy at law requires the bringing of successive actions, that remedy is inadequate and the injury will be prevented by injunction.’ 28 Am.Jur. Injunctions, Sec. 48, p. 243. Plaintiff claims that the defendant's breach of contract consists of furnishing contaminated and adulterated water dangerous to the health of plaintiff and others similarly situated. Thus the breach becomes a matter endangering the health of the community. ‘Acts which are a menace to the public health or safety, or, as sometimes stated in greater detail, acts which are dangerous to human life, detrimental to public health, and the occasion of great public inconvenience and damage, may be enjoined.’ 43 C.J.S., Injunctions, § 124, p. 671. The allegations of the complaint liberally construed show that there is an implied contract between the defendant and the plaintiff to furnish pure water; that the defendant has breached that contract by mixing fluorides, alleged to be poisonous, with the water; that the plaintiff and others similarly situated suffer irreparable damage therefrom; that there is no adequate remedy at law and that a multiplicity of actions will result. These allegations are sufficient to constitute a cause of action, and to entitle the plaintiff to an injunction if proven. Clearly defendant's other grounds of demurrer that the plaintiff has not legal capacity to sue, that the court has no jurisdiction, and that several causes of action have been improperly united, are untenable. ‘Public authorities and water consumers as well are proper parties to an action for a restraining injunction against the use or furnishing of impure water.’ 56 Am.Jur., Waterworks, Sec. 77, p. 982. ‘Courts of equity are very often called upon to grant injunctive relief to protect contractual rights of parties to a supply of electricity, gas, water, etc. In some instances the relief is sought by individual consumers,...’ 28 Am.Jur., Injunctions, Sec. 87, p. 280. ‘No misjoinder occurs, however, where the matters united in the bill for injunction are but the specifications of the elements of the right of suit and of the equity which the complainant has, where, in other words, they are but the enumeration of the elements of the asserted aggression or wrong upon the complainant and in emphasis of it.’ 128 Am.Jur., Injunctions, Sec. 288, p. 462. We have concluded that the demurrer must be overruled and the defendant allowed to answer. The order of the district court sustaining the demurrer is reversed. MORRIS, C. J., and BURKE and SATHRE, JJ., concur. JOHNSON, J., did not participate.

+/- City of Cuyahoga Falls v. McAvoy

Ohio, State police power, Petitions Initiatives & Re-votes

• Plaintiff
  City of Cuyahoga Falls
• Defendant
  McAvoy
• State
  Ohio
• Other Parties
  -
• Case Tags
  - State police power

  - Petitions Initiatives & Re-votes
• Citation
  1979 Ohio App. LEXIS 12500 (Oh. Ct. App. 1979)
• Year
  1979-00-00T00:00:00
• Court Name
  Court of Appeals of Ohio, Tenth Appellate District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  WHITESIDE, J. The City of Cuyahoga Falls appeals from a judgment of the Environmental Board of Review affirming an order of the Director of the Ohio Environmental Protection Agency, ordering Cuyahoga Falls to implement a program of fluoridation of its public water supply. In support of its appeal, Cuyahoga Falls has raised six assignments of error, as follows: "1. The order of the appellee is contrary to law in that the City of Cuyahoga Falls, Ohio, is exempt from the operation of Ohio Revised Code Section 6111.13. "2. The order of the Appellee is in violation of the referendum provisions of the United States and Ohio Constitutions, and is in violation of the Charter of the City of Cuyahoga Falls, Ohio. "3. The order of the Appellee violates the Home Rule provisions of the Ohio Constitution. "4. The order of the appellee is unreasonable, arbitrary, capricious, unconstitutional, and is contrary to law. "5. The appellee has violated the terms of his own order, in that he failed, neglected or refused to send to appellant the specifications directed in the order. "6. The decision of the Environmental Board of Review is unreasonable, arbitrary, capricious, unconstitutional and is contrary to law." These six assignments are interrelated and raise two basic issues: (1) whether Cuyahoga Falls is exempt from operation of R.C. 6111.13, which became effective November 17, 1969, by virtue of a referendum held in November, 1969; and (2) whether R.C. 6111.13 is unconstitutional as applied to Cuyahoga Falls. Prior to the enactment of R.C. 6111.13, the Council of the City of Cuyahoga Falls on March 10, 1969, adopted Ordinance No. 33-1969, providing for the fluoridation of its public water supply. A referendum petition containing the requisite signatures was timely filed, and the Council of Cuyahoga Falls on April 28, 1969, ordered the ordinance submitted to a referendum at the November 4, 1969, election, at which the electorate disapproved Ordinance No. 33-1969 by a vote of 9,538 to 8,083. The act adopting R.C. 6111.13 was signed by the governor on August 18, 1969, having passed the Senate on August 6, and became effective November 17, 1969. The referendum election involving an ordinance of the City of Cuyahoga Falls was submitted only to the electorate of that city. However, the public water supply system operated by the City of Cuyahoga Falls serves some 20,000 persons both within and outside the corporate limits of that city. None of those persons residing outside the corporate limits but served by the Cuyahoga Falls public water supply were entitled to vote on the referendum on the adoption of Ordinance No. 33-1969. As originally enacted in 1969, R.C. 6111.13 contained certain referendum provisions which have subsequently been deleted from the statute by amendment. However, inasmuch as the statute continues to contain a requirement that fluoridation be commenced on or before January 1, 1971, for a public water supply system supplying water to 20,000 or more persons, at which time the referendum provisions were in effect and makes no new requirement for fluoridation with respect to those municipalities exempted by referendum on that date, it must be assumed to be the legislative intent that those municipalities exempted by referendum under preexisting law continue to be exempted from the fluoridation requirements. As enacted in 1969, R.C. 6111.13 contained the following provision for referendum: "Within one hundred twenty days after the effective date of this section a petition may be filed with the board of elections of a county containing a political subdivision served by a public water supply to which fluoride must be added under this section and where fluoride was not regularly added to such water supply prior to the filing of such petition, requesting that the issue of adding fluoride to this water supply be placed on the ballot at a special election in the political subdivisions of the county or joining counties served by the water supply, to be held on a date specified in the petition not less than ninety no more than one hundred days after the date of filing the petition. "The petitions shall meet the requirements of section 3501.38 of the Revised Code and, in addition, shall designate the political subdivisions in the county and adjoining counties served by the water supply and shall be signed by not less than ten percent of the number of electors served by the water supply of each political subdivision who voted for governor at the last preceding gubernatorial election. The board of elections shall place the issue on the ballot at the special election to be held in the political subdivisions served by the water supply. "If a water supply extends into more than one county, the board of elections of the county where the petitions are filed shall, within ten days after such filing, send notice of such filing to all other boards of elections of counties served by the water supply and shall furnish all ballots for the special election. "In political subdivisions where only a part of the electors are served by the water supply, only those electors shall be allowed to vote on the issue who sign forms provided by the board of elections stating that they are served by the water supply. The question of adding fluoride to the water supply shall be determined, at this election, by a majority vote of those voting on the issue." (Emphasis added.) The Board of Review found the referendum failed to comply with the requirements of R.C. 6111.13 in the following respects: "(A) The election was not held within the statutorily prescribed time; "(B) The election was not held pursuant to a petition meeting the requirements of Section 3501.38 of the Revised Code, signed by ten percent of the appropriate electorate, and filed with the County Board of Elections." As to the finding of timeliness, the referendum was in fact conducted prior to the expiration of the prescribed time, but technically was not a referendum contemplated by statute in that: (1) the parties had stipulated that the referendum election "was not held in contemplation of or to take advantage of the special election provision of Section 6111.13;" and (2) the referendum was not one authorized to be conducted by R.C. 6111.13 since that section could not authorize the conduct of a referendum election prior to its effective date. It is unnecessary to determine the effect of a referendum mistakenly held prior to the effective date of the statute but in contemplation thereof since the parties have stipulated the referendum election was not in contemplation of the statute. The finding of the Board of Review that the referendum petitions did not contain the requisite number of signatures is not supported by reliable, probative, and substantial evidence, inasmuch as the record does not reflect either the number of signatures on the refendum petitions or the number of signatures required to comply with R.C. 6111.13. However, the referendum petitions did not meet the requirement of R.C. 6111.13 since it did not designate the political subdivision in the county and adjoining counties served by the water supply. Even if despite these deficiencies the referendum could somehow be considered one having the effect contemplated by R.C. 6111.13, it is not clear from the record herein that a majority of the qualified electors rejected fluoridation. Although more than 54 percent of the votes cast in the referendum were against fluoridation, there is no clear indication in the record herein that such a majority, consisting only of electors of the City of Cuyahoga Falls, constitutes the requisite majority required by R.C. 6111.13 of all electors served by the water supply both within and outside the corporate limits of Cuyahoga Falls. Conceivably, the votes of the electors outside the corporate limits served by the water supply would have been sufficient to have changed the result of the election had such outside users been permitted to vote at the referendum. The record does not clearly reflect the number of outside elector users of Cuyahoga Falls water supply. The statute contemplates that the referendum shall be of water supply users, rather than merely a referendum of the electors residing in the political subdivision operating the public water supply system. Accordingly, the November, 1969, referendum upon Ordinance No. 33-1969 cannot be considered or have the effect of a referendum pursuant to R.C. 6111.13. Cuyahoga Falls, however, contends that the local option election provision is unreasonable in requiring a second referendum when one was conducted upon the same issue only 13 days prior to the effective date of the statute. For the reasons stated above, Cuyahoga Falls has not demonstrated such unreasonableness, especially since it has not been demonstrated that the result of a referendum conducted pursuant to R.C. 6111.13 would have been exactly the same as the referendum upon the ordinance, since the difference in the electorate entitled to vote could conceivably have changed the result. It is not unreasonable for the General Assembly to permit all interested and affected persons, that is, all users of the public water supply, to participate in the refendum upon the fluoridation issue, rather than limiting the referendum to the electors of the political subdivision which owns and operates the public water supply system. Although cogent argument can be made that the state statute interferes with the exercise of the power of local self-government by Cuyahoga Falls, that issue was determined in Canton v. Whitman (1975), 44 Ohio St. 2d 62, finding no such interference with local self-government and further finding the legislation in question to constitute a police or similar regulation with which local ordinances cannot conflict. However, the Supreme Court in Canton noted the situation as exists with respect to Cuyahoga Falls also; that the municipality supply water not just to its own inhabitants but also to users outside the municipal boundaries. Justice Stern at the conclusion of the opinion in Canton stated at page 71: "The decision as to whether the benefits to the public health of fluoridation are sufficient to require it for all, notwithstanding the concerted opposition of many individuals, is within the discretion of the General Assembly. So, too, is the decision that those immediately affected by a local fluoridation program should have an option to decide that same question for themselves." Cuyahoga Falls argues that R.C. 6111.13 interferes with the local right of referendum by a municipality since it effectively denies such right with respect to a municipality, unless it has no water supply users outside its limits and effectively voids any prior home-rule referendums within the municipality, even the subject one conducted only 13 days prior to the effective date of the new statute. It becomes quite apparent that the home-rule right of referendum has been eliminated by R.C. 6111.13. However, this right would be eliminated whether or not the local option provision were contained in the statute. This is no different than any other police or similar regulation which the General Assembly may adopt. When the General Assembly adopts a police or similar regulation, the municipality loses its right by ordinance or referendum to reject such police or similar regulation or to adopt a regulation in conflict therewith. Although the Cuyahoga Falls referendum was rendered a virtual nullity only 13 days after it was held by R.C. 6111.13 becoming effective, the same could be true of any police or similar regulation adopted by the General Assembly where a municipality had previously rejected identical local legislation by referendum. The Canton case is controlling, since it expressly holds the fluordation statute to constitute a police or similar regulation with which municipal ordinances may not conflict. Accordingly, the first, second, third, fourth, and sixth assignments of error are not well taken. By the fifth assignment of error, Cuyahoga Falls contends to the effect that the order of the Director of Environmental Protection should be set aside because the Director failed timely to comply with the requirement of that order that specifications for fluoridation be forwarded within 30 days, the specifications being submitted some 26 days late. Whatever may be the effect of the failure of the Director to comply with the order, it is not to render the order void or voidable. Clearly, Cuyahoga Falls would not be required to comply with the order until the Director had, and the time within which compliance by Cuyahoga Falls is required may not commence until the Director's compliance. The fifth assignment of error is not well taken. For the foregoing reasons, all six assignments of error are overruled, and the decision of the Environmental Board of Review is affirmed.

+/- State ex rel. Celebrezze v. Ohio Fifth District Court of Appeals

Ohio

• Plaintiff
  State ex rel. Celebrezze
• Defendant
  Ohio Fifth District Court of Appeals
• State
  Ohio
• Other Parties
  -
• Case Tags
  -
• Citation
  5 Ohio St. 3d 1; 448 N.E.2d 806 (Ohio 1983)
• Year
  1983-00-00T00:00:00
• Court Name
  Supreme Court of Ohio
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  On July 1, 1974, the then Ohio Director of Environmental Protection (“director”) issued an order directing the city of Canton to begin fluoridating its water within thirty days, to bring it into compliance with R.C. 6109.20 (then numbered R.C. 6111.13), which requires a certain level of fluoridation of supplied water of a public water system. The city appealed, first to the Environmental Board of Review (“board”), which upheld the order, and then to the court of appeals, which reversed the orders of the board and the director and held that R.C. 6111.13 was not reasonably related to the police power of the state. Upon further appeal, this court in Canton v. Whitman (1975), 44 Ohio St.2d 62, 337 N.E.2d 766 [73 O.O.2d 285], reversed the lower court and affirmed the orders of the board and the director. The issue was framed succinctly by Justice Stern: “ * * * Here, the city of Canton does not wish to fluoridate its water, and the issue is whether the state may order the city to do so.” Canton, supra, at 65, 337 N.E.2d 766. In upholding the enforceability of the statute, the court noted: “ * * * Plainly, the General Assembly made a political compromise-it ordered fluoridation, but permitted users of particular water supplies to choose, by local option, to avoid that order under specified conditions. * * * “The decision as to whether the benefits to the public health of fluoridation are sufficient to require it for all, notwithstanding the concerted opposition of many individuals, is within the discretion of the General Assembly. So, too, is the decision that those immediately affected by a local fluoridation program should have an option to decide that same question for themselves.” Id. at 71, 337 N.E.2d 766. The city of Canton did not take advantage of the local option law enacted by the General Assembly, such referendum being required within one hundred twenty days of the passage of the statute. Following a denial of certiorari by the United States Supreme Court of our decision of November 19, 1975 ( 425 U.S. 956, 96 S.Ct. 1735, 48 L.Ed.2d 201 [1976] ), a mandamus action against the city of Canton was brought by the director to enforce compliance with his order. In State, ex rel. Williams, v. Canton (1977), 51 Ohio St.2d 81, 364 N.E.2d 1161 [5 O.O.3d 50], this court held that the forfeiture provision of former R.C. 6111.30 provided an adequate remedy in the ordinary course of the law, and the writ of mandamus was denied. R.C. 6111.30 authorized the levying of $10,000 fines on non-complying city officials, who could be held personally liable for the default. This court rejected the director's claim that the penalty was an illusory means of obtaining the enforcement of his order. Effective December 14, 1978, R.C. 6111.30 was repealed. Following our decision in State, ex rel. Williams, supra, the then Attorney General filed an action in the court of appeals seeking a writ of mandamus directing the city to comply with the July 1, 1974 order. The court of appeals denied the writ, finding an adequate remedy in the ordinary course of the law under R.C. 6109.32, which authorizes the Attorney General to “bring an action for injunction or other appropriate action against any person violating or threatening to violate” the fluoridation statute. On appeal, this court in State, ex rel. Brown, v. Canton (1980), 64 Ohio St.2d 182, 414 N.E.2d 412 [18 O.O.3d 401], reversed, finding that neither R.C. 6109.32 nor 6109.33 provided a plain and adequate remedy in the ordinary course of the law. In a per curiam opinion, this court noted: “It is more than three years after this court's denial of mandamus relief in State, ex rel. Williams, v. Canton, supra, and the appellees still refuse to obey the order to fluoridate the city's water system. The fact that * * * [former R.C. 6111.30] was for three years unable to secure compliance with the director's order leads us to the conclusion that a civil penalty will not afford the appellant either a complete or a speedy remedy.” Id. at 185, 414 N.E.2d 412. Accordingly, this court allowed the writ to direct the city of Canton to comply with the July 1, 1974 order. Our decision was announced on December 23, 1980, and a mandate addressed to the court of appeals was issued commanding that court “to proceed without delay” to execute our judgment. Relator then filed a motion in the court of appeals for issuance of a peremptory writ to require the city of Canton to fluoridate its water supply. Following oral argument on the motion, the court, on January 27, 1981, ordered the Attorney General to prepare judgment entries “in clear-cut language specifically” commanding named city officials to perform the acts necessary for compliance with the mandate. These entries were duly submitted and oral argument on the submissions followed. On May 14, 1981 the court of appeals rejected same “for want of chemical specificity” and ordered new proposed entries from the Attorney General. These entries were filed May 28, 1981 and included a chemical definition of “fluoride.” On July 9, 1981, the court of appeals issued a judgment entry rejecting the new proposed entries “as being an unauthorized amendment of the mandate of the Supreme Court of Ohio filed with us pursuant to State, ex rel. v. Canton, 64 Ohio St.2d 182 [414 N.E.2d 412] [18 O.O.3d 401] [sic].” The court of appeals then overruled relator's motion for a peremptory writ of mandamus. Relator's appeal to this court from this order (case No. 81-1154) was dismissed on the ground that it was non-appealable. Thereafter, relator's motion for “Clarification of Mandate” was denied. On July 21, 1982, the then Attorney General filed a complaint in this court seeking a peremptory writ of mandamus to compel respondents, the court of appeals, to comply with the mandate of State, ex rel. Brown, v. Canton, and an alternative writ directing the court of appeals to appear for a hearing and show cause why they have not so complied. Respondents-judges answered, stating they stand “ready to comply immediately with any order the Supreme Court makes.” On December 22, 1982, relator's motion for summary judgment was overruled. PER CURIAM. Almost nine years have elapsed since the city of Canton was first ordered to fluoridate its water supply “within thirty days.” This court has reviewed and passed on this issue in one form or another on numerous occasions. It should be quite clear to all interested parties that the state law requiring fluoridation will be enforced in the city of Canton. That question was answered in 1975. It is also quite clear that a writ of mandamus will issue compelling said fluoridation. That question was answered in 1980. This court ordered the issuance of a writ of mandamus to compel the city of Canton to fluoridate its water supply and issued a mandate to respondents to carry that order into execution. To date, respondents have not complied with that mandate. The purpose of this action is to obtain compliance with that mandate and obtain execution of the writ this court allowed in State, ex rel. Brown, v. Canton, supra. Pursuant to R.C. 2731.16, this court is not limited in its power “...to carry its order and judgment into execution, or to punish any officer named therein for contempt or disobedience of its order or writs.” Although it would have been more appropriate for relator to have initiated contempt proceedings in the 1980 action wherein the city of Canton was a party, we find that the extraordinary history of delay attendant to this matter requires extraordinary steps to be taken. We hereby allow the issuance of a writ to compel respondents to comply with the mandate issued in State, ex rel. Brown, v. Canton, supra. We also find that the city of Canton and its officials are essential parties to the enforcement of this writ and compliance with our previous mandate. Accordingly, this court sua sponte joins the city and its officials, i.e., the mayor, city council, and all employees of the municipal water works, in this action. Given our prior holdings requiring fluoridation, we hereby issue a peremptory writ to compel the city and its officials to comply with the writ issued in State, ex rel. Brown, v. Canton, supra, without delay. Failure to follow the mandate issuing from this court will result in contempt proceedings against any non-complying party. Judgment accordingly. FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, SWEENEY, LOCHER, HOLMES, CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., concur.

+/- Smith v. State of Alaska

Alaska

• Plaintiff
  Janet Smith
• Defendant
  State of Alaska
• State
  Alaska
• Other Parties
  -
• Case Tags
  -
• Citation
  921 P.2d 632 (Alaska 1996)
• Year
  1996-00-00T00:00:00
• Court Name
  Supreme Court of Alaska
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  S-7347
• Opinion Judges
  Compton, Rabinowitz, Matthews, Eastaugh, Fabe
• Opinion Text
  COMPTON, Chief Justice. This appeal presents the sole question of whether a genuine issue of material fact precludes summary judgment on the scope of the duty assumed by the State of Alaska (State). The superior court concluded that the State owed the decedent Dominic Smith no duty and granted summary judgment in favor of the State. We reverse. I. BACKGROUND Most of the facts underlying this appeal are not in dispute. A May 1992 fluoride poisoning incident in Hooper Bay resulted in widespread illness and the death of Dominic Smith. The cause of this poisoning was ultimately traced to excessive fluoride in the townsite water system. The water system was owned and operated by Hooper Bay, not the State. In April 1992, however, the State had installed new parts in the fluoride pump at the townsite wellhouse. The State installed these parts in response to excessive levels of fluoride found in water samples. Prior to installing the new parts, the State had made plans to “rehabilitate” the aging townsite water system in its entirety, a project which would involve completely replacing all of the equipment at the site, including the fluoride pump. The rehabilitation work was scheduled to begin within a couple of weeks of the date on which the fluoride poisoning occurred. Janet Smith, the personal representative of Dominic Smith's estate (Smith), brought suit against the State, alleging that the State's negligence in resolving the fluoride problem in the Hooper Bay water system was a cause of Smith's death. The superior court granted summary judgment to the State, based on its conclusion that the State did not have an affirmative duty to fix the water system. The parties agree that the State, by its voluntary actions, assumed a duty of care to the residents of Hooper Bay. They also agree that, absent a voluntary undertaking, the State would have owed no duty of care to the residents in connection to the distribution of water from the townsite water system. The parties disagree, however, as to the precise nature of the duty the State did assume regarding the Hooper Bay water system. The State concedes that by working on the fluoride pump, it assumed a duty to use reasonable care in performing this work. This narrow duty is the only duty the State admits to having assumed. Because there was no evidence that the work was negligently performed by the State, the State contends that summary judgment was appropriate. Smith, however, argues that the State assumed a broader duty, for it “undertook to resolve the fluoride problem.” Smith contends that the State should be held liable if it negligently failed to complete this undertaking and if this failure was a cause of Smith's death. Smith claims that evidence in the record supports both “the inference that the State undertook to perform the duty Hooper Bay owed its citizens to protect them from overfluoridation” and “the inference that the State undertook only to replace parts in the fluoride pump.” According to Smith, this uncertainty precludes summary judgment, since the nature and extent of the State's duty would differ depending upon which inference is drawn. II. DISCUSSION A. Standard of Review [1][2] We review summary judgments de novo. Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1369 (Alaska 1993). In reviewing a grant of summary judgment, we must determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts. Cozzen v. Municipality of Anchorage, 907 P.2d 473, 475 (Alaska 1995); Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991). All reasonable inferences of fact must be drawn in favor of the non-moving party. Dayhoff, 848 P.2d at 1369. B. Nature of the Duty [3] As the owner and operator of the townsite water system, Hooper Bay is responsible for this system. See 18 AAC 80.005. By voluntarily taking action on the Hooper Bay water system, however, the State could have assumed certain duties towards third persons who rely on the system. “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if ... he has undertaken to perform a duty owed by the other to the third person[.]” City of Kotzebue v. McLean, 702 P.2d 1309, 1313 n. 4 (Alaska 1985) (quoting Restatement (Second) of Torts § 324A (1965)). [4][5][6] The “precise nature and extent” of a duty “is a question of law which can be decided at the summary judgment stage.” Mulvihill v. Union Oil Co., 859 P.2d 1310, 1314 n. 4 (Alaska 1993). As a question of law, it is a question for the court and not the jury to answer. “Although the precise nature and extent of that duty is a question of law,” however, “it depends on the nature and extent of the act undertaken, a question of fact.” Estate of Breitenfeld v. Air-Tek, Inc., 755 P.2d 1099, 1102 (Alaska 1988). [7][8] Where reasonable people could differ over the nature and extent of the act undertaken, summary judgment is inappropriate, since the scope of the assumed duty will vary depending on the inferences drawn from the facts. See Saddler v. Alaska Marine Lines, Inc., 856 P.2d 784, 789 (Alaska 1993) (reasonable inference could be drawn that common carrier had undertaken performance of services necessary for protection of workers; inference created material issue of fact concerning carrier's assumed duty, requiring reversal of summary judgment). Where reasonable people could not differ over the nature and extent of the act undertaken, summary judgment is appropriate, insofar as there is no question as to whether the duty the undertaking gave rise to was fully discharged. See Mulvihill, 859 P.2d at 1314 (reasonable people could not differ on nature and extent of voluntary undertaking when defendant “only agreed to drive [co-employee] home;” summary judgment properly granted because duty assumed through this undertaking was fully discharged); Breitenfeld, 755 P.2d at 1103 (“reasonable minds could not reach divergent conclusions concerning the nature of the acts undertaken” by electrical repair contractor; contractor undertook only to order replacement part, which it did). [9] The superior court concluded that “[t]he facts regarding the State's limited involvement with the water system are not in dispute, as the parties agree there was only the repair of the pump;” therefore “[t]he legal duty which would flow from that is a question of law and public policy, not fact.” This conclusion is mistaken, because the appropriateness of the grant of summary judgment in this case cannot be decided simply as a question of law but is instead dependent on the nature and extent of the undertaking, a question of fact. The repair of the pump may have been a complete undertaking in and of itself, or it may have been the initiation of a broader undertaking to resolve the fluoride problem. While it may be true that the underlying facts of the case-what was said and what was done-are not in dispute, these underlying facts may be capable of supporting different inferences as to the nature and extent of the State's undertaking in working on the Hooper Bay water system. If the record can support these competing inferences, a genuine issue of material fact concerning the nature and extent of the duty assumed by the State would exist, precluding summary judgment. We conclude that the record can support such competing inferences. A reasonable person could infer, from the evidence in the record, that the State had undertaken to resolve the fluoride problem, thereby assuming a duty towards Smith and other Hooper Bay water users to complete this undertaking in a non-negligent manner. First, statements made by State employees prior to the work on the pump support the inference that, in sending its engineers to Hooper Bay, the State undertook to resolve the fluoride problem at a systemic level. Steve M. Weaver, an engineer with the Village Safe Water (VSW) section of the Alaska Department of Environmental Conservation (ADEC), testified that Lynn Cochran, another ADEC employee, had asked VSW to “check on the fluoridation system.” VSW engineer Mac MacPhee also stated that “the sanitarian in Bethel had mentioned that the fluoride readings in the old watering point were erratic and had requested we look at the system.” Second, statements by MacPhee support the inference that, when he and fellow VSW engineer Doug Poage arrived in Hooper Bay, their undertaking was not limited to the specific task of installing parts to the pump but involved other actions intended to correct the fluoride problem generally. MacPhee stated that they conducted a general inspection of the system in addition to installing the pump parts. They took water samples, inspected the “well pump wiring and other wiring in the building,” and “discussed the replacement of all the wiring and conduit.” Finally, before leaving Hooper Bay they gave the lead operator at the townsite water system, Hooper Bay employee Adrian Lake, instructions to test the fluoride level twice a day and disconnect the fluoride pump if the level reached a certain point. They prepared a “sheet for Adrian to record water usage daily and [ ] showed Adrian how to read and record the totals from the water meter.” Third, statements made and actions taken by State employees during the weeks that followed the pump work support the inference that the State had undertaken to see to it that the fluoride problem was kept under control. Poage made a follow-up call, a week after the work was performed on the pump, to see what the fluoride level was. Weaver testified that Poage had planned a meeting in Hooper Bay to “look at the fluoridator and resolve the problem” after high fluoride levels persisted. Weaver “said no” to this plan, not because of a belief that the State had already discharged the only duty it had assumed, but because “[w]e're going to gut that building in less than two weeks and throw all that stuff away; we don't need to waste time on it now.” Weaver instead instructed that the fluoride pump should be shut off in the meantime, until the rehabilitation was underway. Viewing this evidence in the light most favorable to Smith, as we must, it raises a genuine issue of material fact whether the State undertook to correct the fluoridation problem and thereby assumed the duty to complete this task non-negligently. A jury could infer from this evidence that the State had stepped in and taken on the responsibility of keeping fluoride levels under control during the time it would take to get the rehabilitated townsite water system up and running.^FN1 Summary judgment was inappropriate when the evidence could support this inference. FN1. This inference seems particularly plausible in light of VSW's perception that Hooper Bay was unable to manage the townsite water system effectively. Weaver testified that “Hooper Bay was at a point in their organizational structure where they were unable to operate their existing facilities correctly,” and that there was need for “a training program and an education program” in addition to the physical rehabilitation of the plant. A reasonable person could infer that the State, having concluded that Hooper Bay was unable to manage its own water system, had undertaken the task of bringing the fluoride problem under control during the weeks prior to the full rehabilitation of the system. Because reasonable jurors could differ over the inferences that should be drawn regarding the nature and extent of the State's undertaking, a material issue of fact existed as to the duty the State had assumed, one that should have precluded summary judgment. III. CONCLUSION We reverse the summary judgment and remand for a trial on the merits.

+/- Citizens for Safe Drinking Water v. San Diego City Council

California, Abuse of Municipal Authority, Petitions Initiatives & Re-votes, Preemption

• Plaintiff
  Citizens for Safe Drinking Water
• Defendant
  San Diego City Council
• State
  California
• Other Parties
  -
• Case Tags
  - Abuse of Municipal Authority

  - Petitions Initiatives & Re-votes

  - Preemption
• Citation

  2002 Cal. App. Unpub. LEXIS 4975

• Year
  2001-01-01T00:00:00
• Court Name
  Court of Appeals of California, Fourth Appellate District
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  BENKE, Acting P. J. Citizens for Safe Drinking Water (CSDW) petitioned for a writ of mandate requiring San Diego City Council( Council) to comply with section 67 of the San Diego Municipal Code prohibiting the fluoridation of city drinking water. The trial court denied the writ finding that section 67 was preempted by Health and Safety Code ^FN1 sections 116410 and 116415 which require fluoridation under certain conditions. CSDW appeals. FN1. All further statutory references are to the Health and Safety Code unless otherwise specified. BACKGROUND In June 1954 the charter city of San Diego enacted by initiative Municipal Code section 67, which makes it unlawful for anyone, including Council, to add fluoride to the city's water supply. In 1995 the state Legislature added sections 116410 and 116415 (formerly §§ 4026.7, 4026.8) to the Health and Safety Code. (Stats.1995, ch. 660) (A.B.733, § 1.) Section 116410, subdivision (a), requires: “In order to promote the public health through the protection and maintenance of dental health,” the State Department of Health Services (department) shall adopt regulations requiring the fluoridation of public water systems. Subdivision (b)(4) of section 116410 required the department to create a “schedule for the fluoridation of public water systems with at least 10,000 service connections, based on the lowest capital cost per connection for each system.” The department adopted the required regulations. (Cal.Code Reg., tit. 22, §§ 64433-64434.) Section 116415, subdivision (a)(1)(A), exempts a public water system from complying with section 116410 and its regulatory scheme if the water system is scheduled to implement a fluoridation program but insufficient funds are available to pay the capital and associated costs from sources other than the system's ratepayers, shareholders, local taxpayers, bondholders or any fees or charges levied by the water system. Subdivision (a)(1)(B), provides the same exemption when, while sufficient capital and associated funds are available for fluoridation, sufficient funding is not available to pay noncapital operation and maintenance costs from sources other than those made exempt by the section. Section 116415, subdivision (c), states that if a system does not comply with any regulation adopted pursuant to section 116410 or any order made pursuant to those regulations, the Attorney General, upon request by the department, is required to institute a mandamus or other appropriate proceeding to compel compliance. This remedy is in addition to all other authorized remedies or sanctions. On February 18, 2000, the California Attorney General issued an opinion concluding that state law requiring the fluoridation of public water systems supercedes a charter city ordinance forbidding fluoridation when outside funds are made available to install and operate the system. (83 Ops.Cal.Atty.Gen. 24 (2000).) The opinion noted that pursuant to California Constitution, article XI, section 5, subdivision (a), a charter city has supreme power over “municipal affairs,” free from state legislative intervention. The Attorney General noted, however, that the concept of municipal affairs as used in the Constitution is vague and not given to precise definition. Using a four-part test defined by the California Supreme Court, the Attorney General concluded Municipal Code section 67 was in conflict with sections 116410 and 116415. The opinion noted that a city has an interest in the quality of its water and in the absence of state legislation is free to adopt ordinances prohibiting fluoridation. The Attorney General concluded, however, that the health, including the dental health, of the citizens of the state is a matter of statewide concern and not the exclusive province of a city. The opinion found that fluoridation of public water supplies was reasonably related to that concern and Municipal Code section 67 was, therefore, superceded by sections 116410 and 116415. In March 2000, the Fluoridation 2000 Work Group, a collaboration of the California Dental Association Research Fund, the Dental Health Foundation, the Fluoridation Task Force and the California Department of Health Services, informed the City of San Diego it was making $4 million available to it for the installation of a fluoridation system and operation of the system for two years. In April 2000 Council by resolution accepted those funds for the purpose of installing a fluoridation system and ordered the city manager to create an implementation plan for the fluoridation of the city's water supply. On June 9, 2000, CSDW filed a petition for writ of mandate, arguing Council had a ministerial duty to obey the dictates of Municipal Code section 67 and could not order the fluoridation of the city's water supply. CSDW did not address the ultimate issue of whether sections 116410 and 116415 superceded Municipal Code section 67. CSDW's complaint was rather a purely procedural one. While stated several ways, CSDW's core argument was that Council had no authority to ignore Municipal Code section 67 and proceed with fluoridation of the city's water. In part, CSDW argued that since Municipal Code section 67 was enacted by initiative, Council could not amended (sic) or repeal it. In part, CSDW argued Council could not act on its legal conclusion that Municipal Code section 67 was superceded by sections 116410 and 116415 since such determination can only be made by the courts. CSDW requested the trial court to issue a peremptory writ or an alternative writ requiring Council to comply with Municipal Code section 67 or show cause why it was not required to do so. On June 15, 2000, the trial court ordered a briefing schedule and set the matter for telephonic ruling on September 1, 2000. Council's answer to CSDW's petition in large part ignored CSDW's procedural arguments and defended by arguing, based on the Attorney General's opinion, that Council was required to comply with sections 116410 and 116415 and their attendant regulations since they superceded Municipal Code section 67. In its reply, CSDW emphasized that its argument was that Council had no authority to resolve the legality of Municipal Code section 67, in light of sections 116410 and 116415, and to proceed with the fluoridation of city water. CSDW argued that the proper venue for deciding whether Municipal Code section 67 was superceded was in an action for declaratory relief. CSDW argued that whether a matter is a “municipal affair” or of “statewide concern” is a factual question and “cannot be adequately addressed in the limited setting of [its] mandamus proceeding.” Nonetheless, CSDW argued that the fluoridation of city water was a municipal affair. In addition, CSDW argued that fluoridation is not reasonably related to public health since it is a carcinogenic and otherwise dangerous. The trial court in a detailed tentative decision found that fluoridation was a matter of state concern and not a municipal affair and that state law required Council to proceed with installation of a fluoridation system. The court did not address CSDW's contention concerning the power of Council to act on its conclusion that Municipal Code section 67 had been superceded by state law. At a hearing CSDW repeated that its mandamus action was a procedural one. The action was concerned not with the ultimate issue of whether Municipal Code section 67 had been superceded by sections 116410 and 116415 but rather with whether Council had the authority to ignore, for any reason, a provision of its Municipal Code created by initiative. CSDW argued the trial court's tentative decision missed this point and instead treated the matter as one for declaratory relief concerning the ultimate question of pre-emption. It argued doing so denied it the right to present evidence concerning the ultimate issue of whether fluoridation was a municipal affair. CSDW argued that the court should issue a writ of mandate, stating that Council was, in light of Municipal Code section 67, without authority to fluoridate the city's water supply. CSDW contended this would force Council to bring a declaratory relief action concerning the pre-emption issue. CSDW asked the court if it stood by its denial of the petition, that it be allowed to amend the action to seek declaratory relief. The trial court was concerned such a conversion of the action was not appropriate and asked CSDW why it could not simply bring a separate action for declaratory relief. CSDW stated it feared the res judicata effect of any order denying its petition for writ of mandate. The parties and trial court agreed to craft an order denying the writ that would not affect CSDW's rights in any subsequent declaratory relief action. At a second hearing it was noted that CSDW had filed a separate declaratory relief action. CSDW argued again that the matter of pre-emption in this context was a factual one and should not be decided without the parties having an opportunity to present evidence. CSDW argued that on the face of the matter, Municipal Code section 67 had not been superceded by sections 116410 and 116415. CSDW argued Council was required to file a declaratory relief action against the state, arguing that sections 116410 and 116415 did not supercede Municipal Code section 67. By written order the trial court denied the petition, finding that a conflict existed between Municipal Code section 67 and sections 116410 and 116415 and that state law controlled. DISCUSSION CSDW asserts that the trial court summarily denied its petition for writ of mandate. It argues, for the most part in conclusory fashion, the trial court erred in doing so. A. Municipal Affairs In addressing CSDW's argument that the trial court erred in not granting an alternative writ, it is helpful to review the law applicable to the resolution of conflicts between state and local enactments. “As a charter city, [San Diego] enjoys autonomous rule over municipal affairs pursuant to article XI, section 5 of the California Constitution, ‘subject only to conflicting provisions in the federal and state Constitutions and to preemptive state law.’ [Citations.]” ( Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 363, 87 Cal.Rptr.2d 654, 981 P.2d 499.) There is no exact definition of the term “municipal affair.” “[T]he task of determining whether a given activity is a ‘municipal affair’ or one of statewide concern is an ad hoc inquiry; ... ‘the constitutional concept of municipal affairs is not a fixed or static quantity’ [citation]....' ” ( California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 16, 283 Cal.Rptr. 569, 812 P.2d 916.) Nonetheless, the courts have defined a general decisional procedure designed to bring some consistency to the inquiry. When a court is asked to resolve a claimed conflict between a state statute and the law of a charter city, it must first satisfy itself that an actual conflict exists. If no conflict exists, no determination of legal superiority is required. ( California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 54 Cal.3d at p. 16, 283 Cal.Rptr. 569, 812 P.2d 916.) If a conflict is found, the pivotal questions are whether the subject of the conflicting laws is one of statewide concern and whether the state statute is reasonably related to resolution of that concern and narrowly tailored to limit incursion into legitimate municipal interests. If it is, then the subject in question is not a municipal affair and the city's law is preempted. (Johnson v. Bradley (1992) 4 Cal.4th 389, 404, 14 Cal.Rptr.2d 470, 841 P.2d 990; California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) The court in California Fed. Savings & Loan Assn. v. City of Los Angeles made several general observations to aid in this inquiry. The court cautions against “the error of ‘compartmentalization’, that is, of cordoning off an entire area of governmental activity as either a ‘municipal affair’ or one of statewide concern.” ( 54 Cal.3d at p. 17, 283 Cal.Rptr. 569, 812 P.2d 916.) The court stated: “When a court invalidates a charter city measure in favor of a conflicting state statute, the result does not necessarily rest on the conclusion that the subject matter of the former is not appropriate for municipal regulation. It means, rather, that under the historical circumstances presented, the state has a more substantial interest in the subject than the city.” (Id. p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.) The court stated: “In cases presenting a true conflict between a charter city measure ... and a state statute, therefore, the hinge of the decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations.” ( California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 54 Cal.3d at p. 18, 283 Cal.Rptr. 569, 812 P.2d 916.) In Domar Electric, Inc. v. City of Los Angeles (1995) 41 Cal.App.4th 810, 821-822, 48 Cal.Rptr.2d 822, the court stated: “Although a legislative finding that a particular subject is a matter of statewide concern does not necessarily make it so [citation], it is well settled that courts should accord great weight to the Legislature evaluation's of this issue. [Citation.] And where there is doubt as to whether a matter is truly a municipal affair, such doubt must be resolved in favor of the legislative authority of the state. [Citation.]” B. City Council Authority CSDW first argues that since Municipal Code section 67 was enacted by initiative, Council had no authority to act on its legal conclusion that Municipal Code section 67 had been superceded by state law. The issue brought by CSDW in its writ petition was a narrow one. Apparently for tactical reasons, it did not argue that the fluoridation of drinking water was a municipal affair and thus that Municipal Code section 67 superceded sections 116410 and 116415. Rather, it argued that since Municipal Code section 67 was enacted by initiative, Council had no authority to unilaterally ignore its prohibition on the fluoridation of city water. CSDW argued Council could not legally decide that sections 116410 and 116415 were controlling and then act on that conclusion. Even if it concluded that the law required it to fluoridate its water, Council's only course was to comply with Municipal Code section 67 and await a judicial determination of the status of that section. Council in CSDW's view could either ignore the dictates of the Health and Safety Code, be fined and sued by the state or it could sue the state and seek declaratory relief concerning whether the Municipal Code or the Health and Safety Code controlled. First, we take issue with CSDW's contention that local initiative actions are somehow inviolate. As was stated in L.I.F.E. Committee v. City of Lodi (1989) 213 Cal.App.3d 1139, 1149, 262 Cal.Rptr. 166: “The right of local initiative ... must give way where the issue is one of paramount statewide concern. [Citation.]” Obviously, if a matter is one of statewide concern, the citizens of even a charter city cannot by initiative override state law. Next, we conclude, contrary to the position advanced by CSDW, a city faced with a conflict or uncertainty of law has the authority to decide what it believes the law requires and act accordingly. The law is a complex and imperfect tool. Cities, like persons and businesses, are faced from time to time with legal uncertainties. It is simply not the case that the city's only lawful recourse is to take the issue to court before acting. It may well be the ultimate resolution of the issue will be made by the courts but that does not mean a city has no authority to act on its best understanding of the law in the first instance and to act lawfully as best it is able to understand the law. We conclude there is no merit to CSDW's contention Council was without authority to decide that sections 116410 and 116415 superceded Municipal Code section 67 and to act accordingly. The judgment is affirmed. WE CONCUR: NARES, J., and HALLER, J.

+/- City of Port Angeles v. Our Water-Our Choice!

Washington, Petitions Initiatives & Re-votes

• Plaintiff
  Our Water-Our Choice!
• Defendant
  City of Port Angeles
• State
  Washington
• Other Parties
  -
• Case Tags
  - Petitions Initiatives & Re-votes
• Citation
  239 P.3d 589 (Wash. 2010)
• Year
  2010-00-00T00:00:00
• Court Name
  Supreme Court of Washington
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  CHAMBERS, J. ¶ 1 Public drinking water quality is highly regulated by the United States and Washington State governments. Extensive regulations dictate what may and may not appear in the water. But public drinking water is also, intrinsically, a matter of local concern and in this state is largely provided at the local level by municipalities and local water districts. ¶ 2 The city of Port Angeles operates a municipal water system. In 2003, the Port Angeles City Council voted to fluoridate its city's water supply. In 2006, the petitioners before us sought to repeal that decision through two initiatives. The city and the Washington Dental Service Foundation (Foundation) (which funded the fluoridation system) contend the initiatives are beyond the scope of the local initiative power because, among other things, the subject matter of the initiatives is administrative in nature. We agree and affirm the Court of Appeals on somewhat different grounds. FACTUAL BACKGROUND ¶ 3 The city of Port Angeles, a noncharter code city, has been running its own municipal water system since 1924. Around 2000, the board of commissioners of the nearby Olympic Medical Center suggested that the city fluoridate its water supply. Two years later, “[a] coalition of medical, dental, and health care professionals” followed up on the suggestion by approaching the utility advisory committee, encouraging it to consider fluoridation. Wash. Dental Serv. Found. Clerk's Papers at 237. Around that time, the Foundation offered a grant to the city to build a fluoridation system. On February 18, 2003, after some study, the city council held a very long public meeting on the subject and passed a motion approving fluoridation of the water system. ¶ 4 On March 1, 2005, the city council approved a contract with the Foundation. Under that contract, the Foundation agreed to pay for the design, construction, and installation of a fluoridation system and transfer it to the city. The city agreed to fluoridate the public water supply for at least 10 years and to reimburse the Foundation its costs (up to $433,000) if it failed to do so. On May 18, 2005, the system was completed and transferred to the city. The next year, and apparently for the first time, the city council amended the city code to allow for citizen initiatives and referendums under RCW 35A.11.080-.100. Port Angeles Municipal Code (PAMC) 1.14.010 (codifying Ordinance 3252 (July 14, 2006)). ¶ 5 Some residents resisted the move to fluoridate. One group sued on environmental grounds and lost. Clallam County Citizens for Safe Drinking Water v. City of Port Angeles, 137 Wash.App. 214, 227, 151 P.3d 1079 (2007). On September 8 and 12, 2006, two months after the city council amended the municipal code to allow for initiatives and referendums, Our Water-Our Choice (OWOC) and Protect Our Waters (POW) filed separate initiatives seeking to stop fluoridation of Port Angeles's public waters. OWOC's initiative, the “Medical Independence Act,” would declare that the right to public water is a property right that has been taken without compensation due to fluoridation. Appellant's Clerk's Papers (ACP) at 11. That initiative would make it unlawful to “put any product, substance, or chemical in public water supplies for the purpose of treating physical or mental disease or affecting the structure or functions of the body of any person.” Id. POW's initiative, the “Water Additives Safety Act,” would make it a crime to “add any substance to a public drinking water supply with the intent to treat or affect the physical or mental functions of the body of any person or which is intended to act as a medication for humans,” with exceptions for “substances which are added to treat water to make water safe or potable” and substances approved by the Food and Drug Administration (FDA) for use in public water systems. Id. at 13. ^FN1 The initiative also would require the manufacturer, producer, or supplier of any additives to provide a “certificate of independent analysis” showing purity with each shipment. Id. FN1. The FDA exception is essentially meaningless since the Environmental Protection Agency, not the FDA, regulates public drinking water systems. See FOOD & DRUG ADMIN., U.S. DEP'T OF HEALTH & HUMAN SERVS., MEMORANDUM OF UNDERSTANDING BETWEEN THE ENVIRONMENTAL PROTECTION AGENCY AND THE FOOD AND DRUG ADMINISTRATION, MOU 225-79-2001 (June 22, 1979), available at http:// www. fda. gov/ About FDA/ Partnerships Collaborations/ Memorandaof Understanding MOUs/ Domestic MOUs/ ucm 116216. htm. ¶ 6 The city council declined to either enact the initiatives or refer them to the ballot. Instead, the council sought declaratory judgment that the initiatives were beyond the scope of the local initiative power because they concerned administrative matters; because the Washington State Legislature had vested the responsibility to run the water system to the council, not the city; and because the initiatives were substantively invalid. The Foundation intervened on behalf of the city. The initiative sponsors filed for a writ of mandamus directing the city clerk to forward the petitions to the county auditor for validation, among other things. The parties agreed to allow the auditor to count the signatures, and the auditor found that enough had been gathered to qualify the initiatives for the ballot. The trial court consolidated the cases and found for the city on all issues. After this court declined direct review, the Court of Appeals affirmed. City of Port Angeles v. Our Water-Our Choice, 145 Wash.App. 869, 188 P.3d 533 (2008). The challengers again petitioned this court for review, which we granted. 165 Wash.2d 1053, 208 P.3d 556 (2009). ANALYSIS ¶ 7 We must decide whether these initiatives are beyond the scope of local initiative power and therefore are subject to preelection attack. These are questions of law and our review is de novo. 1000 Friends of Wash. v. McFarland, 159 Wash.2d 165, 172, 149 P.3d 616 (2006) (citing Lybbert v. Grant County, 141 Wash.2d 29, 34, 1 P.3d 1124 (2000)). Generally, judicial preelection review of initiatives and referendums is disfavored. Coppernoll v. Reed, 155 Wash.2d 290, 301, 119 P.3d 318 (2005). However, courts will review local initiatives and referendums to determine, notably, whether “the proposed law is beyond the scope of the initiative power.” Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wash.2d 740, 746, 620 P.2d 82 (1980) (citing Leonard v. Bothell, 87 Wash.2d 847, 557 P.2d 1306 (1976)). A. THE SCOPE OF LOCAL INITIATIVE POWER ¶ 8 With Amendment 7 to the Washington Constitution, the people secured for themselves the right to legislate directly. Wash. Const. art. II, § 1; Ruano v. Spellman, 81 Wash.2d 820, 823, 505 P.2d 447 (1973). However, Amendment 7 does not apply to municipal governments, which under our constitution are not fully sovereign. Wash. Const. art. II, § 1; 1000 Friends, 159 Wash.2d at 167, 149 P.3d 616; Lauterbach v. City of Centralia, 49 Wash.2d 550, 554, 304 P.2d 656 (1956) (“A municipal corporation is a body politic established by law as an agency of the state-partly to assist in the civil government of the county, but chiefly to regulate and administer the local and internal affairs of the incorporated city, town, or district” (citing Columbia Irrigation Dist. v. Benton County, 149 Wash. 234, 235, 270 P. 813 (1928))). While our constitution does not extend the initiative and referendum power to cities, our legislature has authorized, but has not required, noncharter code cities like Port Angeles to enact enabling legislation authorizing referendums and initiatives. RCW 35A.11.080.^FN2 But neither article II, section 1 nor RCW 35A.11.080 encompasses the power to administer the law, and administrative matters, particularly local administrative matters, are not subject to initiative or referendum. Ruano, 81 Wash.2d at 823, 505 P.2d 447 (citing Ford v. Logan, 79 Wash.2d 147, 154, 483 P.2d 1247 (1971)). FN2. The qualified electors or legislative body of a noncharter code city may provide for the exercise in their city of the powers of initiative and referendum, upon electing so to do in the manner provided for changing the classification of a city or town in RCW 35A.02.020, 35A.02.025, 35A.02.030, and 35A.02.035, as now or hereafter amended. The exercise of such powers may be restricted or abandoned upon electing so to do in the manner provided for abandoning the plan of government of a noncharter code city in RCW 35A.06.030, 35A.06.040, 35A.06.050, and 35A.06.060, as now or hereafter amended. RCW 35A.11.080. B. WATER QUALITY REGULATION BACKGROUND ¶ 9 The United States Safe Drinking Water Act (SDWA), Pub.L. No. 93-523, § 2(a), 88 Stat. 1660, 1661 (1974), regulates all drinking water systems in the United States. States are permitted to provide greater protection than the minimums established by the SDWA. 42 U.S.C. § 300g-2(a)(1). The Washington State Legislature vested the Department of Health with the power and duty to regulate the health and safety of drinking water. RCW 43.20.050(2)(a).^FN3 The department has responded with detailed regulations governing public water systems. Ch. 246-290 WAC. This chapter includes a specific regulation on fluoridation, WAC 246-290-460. Pursuant to the SDWA and the regulations promulgated by Washington's Department of Health, there are approximately 40 chemicals that may be added to public water supplies. Mostly these chemicals are used to “treat water and make it safe, palatable and aesthetically acceptable.” ACP at 207 (decl. Clallam County Health Officer). Fluoride is one of the permitted chemicals. WAC 246-290-460. While class A municipal water suppliers like Port Angeles are not required to fluoridate, if they choose to, the rule sets quantities and monitoring required. WAC 246-290-020 through-460. FN3. That statute currently provides in part: (2) In order to protect public health, the state board of health shall: (a) Adopt rules for group A public water systems, as defined in RCW 70.119A.020, necessary to assure safe and reliable public drinking water and to protect the public health. Such rules shall establish requirements regarding: (i) The design and construction of public water system facilities, including proper sizing of pipes and storage for the number and type of customers; (ii) Drinking water quality standards, monitoring requirements, and laboratory certification requirements; (iii) Public water system management and reporting requirements; (iv) Public water system planning and emergency response requirements. RCW 43.20.050. ¶ 10 Port Angeles has operated its own municipal water system for nearly 100 years, and its own municipal code includes a fairly detailed regulatory scheme. Ch. 13.24 through .48 PAMC (regulating public water system). It appears that the city has not incorporated a water and sewer district to manage city waters. There is no mention of it in the city code. See also Mun. Research Servs. Ctr. of Wash., Washington Water and Sewer Districts Listed by County, http:// www. mrsc. org/ Subjects/ governance/ spd/ SPD- Wat Sew. aspx (last visited Sept. 16, 2010) (listing water districts). If it had, it is unlikely this case would have come before us. The legislature has explicitly vested the power to decide whether or not to fluoridate in the board of commissioners of a water district. RCW 57.08.012. Nothing in chapter 57.08 RCW creates the power of initiative or referendum to check such board decisions. The grant of power to water districts is not subject to local oversight, even by local boards of health. Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of Health, 151 Wash.2d 428, 434, 90 P.3d 37 (2004). C. ADMINISTRATIVE VS. LEGISLATIVE ACTION ¶ 11 Municipal legislative bodies regularly perform both legislative and administrative functions. The trial court found that these initiatives were administrative in nature and thus not the proper subject for initiatives. See Ruano, 81 Wash.2d at 823, 505 P.2d 447. Generally speaking, a local government action is administrative if it furthers (or hinders) a plan the local government or some power superior to it has previously adopted. Id. at 823-24, 505 P.2d 447; Heider v. City of Seattle, 100 Wash.2d 874, 876, 675 P.2d 597 (1984). Discerning whether a proposed initiative is administrative or legislative in nature can be difficult. Justice Brachtenbach suggested that at least for the case before the court at the time, the appropriate question was “whether the proposition is one to make new law or declare a new policy, or merely to carry out and execute law or policy already in existence.” Ruano, 81 Wash.2d at 823, 505 P.2d 447 (citing People v. City of Centralia, 1 Ill.App.2d 228, 117 N.E.2d 410 (1953)). ¶ 12 Ruano concerned the King County stadium. After the county council had voted to build it and the bonds had been sold to finance it, an initiative was filed to prevent construction. Id. at 822, 825, 505 P.2d 447. Noting that the original ordinance authorizing the project was legislative in nature and that no referendum had been proposed to repeal it, the court found that the later initiative attacked only administrative decisions that were beyond the scope of the initiative power. Id. at 824-25, 505 P.2d 447.^FN4 Similarly, this court held that the Seattle City Council acted administratively, and thus was not subject to referendum, when it passed an ordinance changing the name of Empire Way to Martin Luther King Jr. Way. In a brief opinion, this court dismissed a proposed referendum ^FN5 repealing the name change as outside the scope of the referendum power. After again acknowledging there were several ways of determining whether an action was legislative or administrative, we said: FN4. In Ruano, the court noted that voters of King County approved the construction of the stadium in 1968. Ruano, 81 Wash.2d at 821, 505 P.2d 447. The initiative to block the stadium was filed three years later. Id. at 822, 505 P.2d 447. That timing played some role in the court's analysis. Id. at 824-25, 505 P.2d 447. Because the right of initiative and referendum were not available in Port Angeles until mere months before appellants filed their initiatives, we do not reach the timeliness of their challenges. FN5. We apply the same analysis to challenges to local initiatives and referendums. 1000 Friends, 159 Wash.2d at 185 n. 10, 149 P.3d 616 (citing State ex rel. Guthrie v. City of Richland, 80 Wash.2d 382, 387, 386, 494 P.2d 990 (1972)). The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it. 5 E[ugene] McQuillin, [Municipal Corporations] § 16.55, at 194 [ (3d rev. ed.) ]; Durocher v. King Cy., 80 Wash.2d 139, 152-53, 492 P.2d 547 (1972); Ruano v. Spellman, supra at 823 [505 P.2d 447]. .... ...The name change ordinance merely amended Seattle's comprehensive street names ordinance. Therefore, the ordinance should be characterized as administrative, since it was enacted “[pursuant to] a plan already adopted by the legislative body itself ...” Heider, 100 Wash.2d at 876, 675 P.2d 597 (some alterations in original) (quoting Citizens for Fin. Responsible Gov't v. City of Spokane, 99 Wash.2d 339, 347, 662 P.2d 845 (1983)); accord Leonard, 87 Wash.2d at 850, 852, 557 P.2d 1306 (finding the decision to rezone property was administrative and not subject to referendum). D. PORT ANGELES'S FLUORIDATION PLAN ¶ 13 The city and the Foundation argue that the city council's decision to fluoridate the water was made pursuant to both the city's existing water management plan and detailed state administrative regulations governing water, and thus was as administrative as Seattle's decision to rename streets. Both courts below agreed. ¶ 14 OWOC and POW respond by arguing that the initiatives are essentially legislative because the decision to fluoridate was new.^FN6 We need not decide whether that in itself is sufficient to show that a plan was administrative or legislative because the record does not support the contention that the fluoridation plan was new at the time the initiatives were filed. The initiatives were filed three and one-half years after the city council approved fluoridating and one and one-half years after the city council entered into a contract to build and install the system. FN6. The petitioners also argue that the decision was legislative because there was no prior law regarding medicines in public waters. However, the trial court did not find that fluoride was a medicine, and OWOC and POW did not assign error to that lack of a finding. The factual predicate for this argument is not provided by the record before us, and we do not reach it. ¶ 15 OWOC and POW also cite to a California case that found the decision to fluoridate was intrinsically legislative. Hughes v. City of Lincoln, 232 Cal.App.2d 741, 747, 43 Cal.Rptr. 306 (1965) (“Intrinsically therefore, as well as in its police power origin, the decision to fluoridate is legislative rather than administrative.”). But they make no attempt to show that the 1965 California Court of Appeals made that decision against a substantially similar statutory and regulatory scheme that exists in Washington today. As described above, water quality in the United States, and in Washington State specifically, is highly regulated. The Department of Health regulations permit water systems to administratively adopt water fluoridation programs. WAC 246-290-460 (implicitly acknowledging the power of water purveyors to fluoridate and regulating implementation). There is a finding in a related case that Port Angeles's decision to fluoridate the water was made pursuant to the Department of Health's program. Clallam County Citizens, 137 Wash.App. at 220, 151 P.3d 1079. POW and OWOC have not shown that the California system was similar to our own such that Hughes is helpful. ¶ 16 OWOC and POW also contend that the court should only consider the “fundamental and overriding purpose” of the initiatives in determining whether they are administrative or legislative, relying on Coppernoll, 155 Wash.2d at 302, 119 P.3d 318. Their reliance on Coppernoll is not well taken. As we explained in Futurewise, “[i]f an initiative otherwise meets procedural requirements, is legislative in nature, and its ‘fundamental and overriding purpose’ is within the State's broad power to enact, it is not subject to preelection review.” Futurewise v. Reed, 161 Wash.2d 407, 411, 166 P.3d 708 (2007) (emphasis added) (quoting Coppernoll, 155 Wash.2d at 302-03, 119 P.3d 318). Coppernoll concerned a largely substantive preelection challenge to a statewide initiative that would have, among other things, restricted noneconomic damages in medical malpractice action to $350,000 per claimant. Coppernoll, 155 Wash.2d at 293-95, 119 P.3d 318. Coppernoll did not hold (or even consider, given the questions that were presented) that court review of whether a local initiative was administrative or legislative was limited to the “fundamental and overriding purpose” of an initiative. Instead, it assumed the subject matter was legislative in nature and the court used the term “fundamental and overriding purpose” as a razor to cut away untimely substantive constitutional challenges to the statewide initiative's validity. Id. at 303, 119 P.3d 318. ¶ 17 We agree with the city and the Foundation that these initiatives are administrative in nature. They explicitly seek to administer the details of the city's existing water system. The legislature gave the Department of Health the authority and responsibility to set maximum contaminant levels in drinking water based on the best available scientific information, which it has done. RCW 70.142.010; chs. 246-290 through-296 WAC. Only local health departments of counties with at least 125,000 in population may set stricter standards, again, based on the best available scientific information. RCW 70.142.040. The Medical Independence Act explicitly seeks to interfere with this existing system by limiting the amount of fluoride in the public water system. Similarly, the Water Additives Safety Act states, among other things, that “it is prohibited to add to a public water supply any substance which is contaminated with filth,” with “contaminated with filth” defined as “a term applicable to contaminants taken singly or as a group which are present in a product intended to be added to drinking water and which are present in quantities which would, when dispensed at the manufacturer's Maximum Use Level, allow the final consumer-ready product to exceed for one or more contaminants the Maximum Contaminant Level Goals (‘MCLGs') as published by the U.S. Environmental Protection Agency.” ACP at 13. This directly impacts existing water regulations promulgated by state and federal agencies. The water additives initiative also seeks to set limits on the amount of fluoride that can be present in the water and imports testing and documentation standards from health regulations governing pharmaceuticals into the public water regime. Id. (citing WAC 246-895-070(9)). These are not details of “ ‘a new policy or plan,’ ” indicative of a legislative act; these are modifications of “ ‘a plan already adopted by the legislative body itself, or some power superior to it,’ ” indicative of an administrative act. Heider, 100 Wash.2d at 876, 675 P.2d 597 (internal quotation marks omitted) (quoting Citizens for Fin. Responsible Gov't, 99 Wash.2d at 347, 662 P.2d 845). ^FN7 FN7. The Court of Appeals struck the initiatives on the alternative grounds that the state legislature intended the city's legislative body, rather than the city as a whole, to manage its water system. While we do not reach this issue, we note that there may be language in the opinion below that could be misunderstood. The Court of Appeals began its analysis by quoting a statutory general grant of power to code city legislative bodies: The trial court correctly determined that the initiative power does not extend to regulating public water systems because the legislature granted city legislative bodies the power to operate water utilities. See RCW 35A.11.020 (“The legislative body of each code city shall have all powers [necessary for] operating and supplying of utilities and municipal services commonly or conveniently rendered by cities or towns.”). 145 Wash.App. at 880-81, 188 P.3d 533. While the citation is correct, read out of context, it could have unintended consequences. Given that the same chapter of the RCW specifically authorizes noncharter code cities to “provide for the exercise ... of the powers of initiative and referendum upon electing to do so,” RCW 35A.11.080, reading RCW 35A.11.020 expansively strains the statutory fabric. In our view, RCW 35A.11.020 grants code cities broad, though specific, powers notwithstanding “Dillon's Rule” (which limits municipal powers to those specifically granted or necessarily implied) and does not necessarily speak to whether the state legislature intended to grant those powers only to its municipal counterpart. See Michael Monroe Kellogg Sebree, Comment, One Century of Constitutional Home Rule: A Progress Report?, 64 Wash. L.Rev. 155, 158 (1989) (limiting local governments to “those powers expressly conferred by state constitutional provisions, state statutes, and, where applicable, the home rule charter; those powers necessarily or fairly implied in, or incident to, the powers expressly granted; and those powers essential to the declared objects and purposes of the municipality or quasi-corporation” (citing 1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS § 237, at 448-50 (5th ed. 1911))). Otherwise, RCW 35A.11.080 is largely a nullity. See 1000 Friends, 159 Wash.2d at 182, 149 P.3d 616 (we look to the entirety of the statutory scheme to determine whether local initiatives and referendums are consistent). Second, again, the state legislature charged the Department of Health with the power and responsibility to regulate the health and safety of drinking water, and the department has promulgated regulations. RCW 43.20.050(2)(a). The department has responded with detailed regulations. Ch. 246-290 WAC. The task of complying with detailed regulations is generally inconsistent with a general grant of authority to the municipal corporate body to make these decisions. See generally 1000 Friends, 159 Wash.2d 165, 149 P.3d 616. We respectfully disagree with our dissenting colleagues that reaching this issue is “essential to the analysis.” Dissent at 599. We agree that some words are appropriate. However, whether the state legislature has delegated to the local legislative body, or the local corporate body, the power and responsibility to act is a completely separate question than whether a particular ordinance promulgates new policy, or implements existing policy. CONCLUSION ¶ 18 We hold that the initiatives before us are administrative in nature in that they attempt to interfere with and effectively reverse the implementation of Port Angeles's water fluoridation program first adopted in 2003 and further implemented in 2005 pursuant to an existing city regulatory system and a regulatory system established by the Washington State Legislature and the Department of Health. We do not reach whether the legislature vested the authority to operate the water system to the city legislative body as opposed to the city as a corporate whole or whether these initiatives are substantively invalid. ¶ 19 We grant the respondents' motion to strike ^FN8 and deny all other motions. We affirm the courts below. FN8. The respondents move to strike large portions of both the amicus brief filed in support of the petitioners and the petitioners' answer to that amicus brief as beyond the scope of review. These motions are granted. The petitioners' supporting amicus also seeks belated leave to file its brief on behalf of several entities that either did not seek or were denied leave to file an amicus brief in this case. The motion is denied. The respondents have moved for sanctions under RAP 18.9(a) against the amicus's attorney for disregarding the order granting permission to file. While sanctions may be authorized, we do not feel they are warranted. The petitioners seek to strike the restatement of issues presented in the respondents' supplemental brief. The motion is denied. The petitioners also ask this court to make a finding of fact that more than one water system serves Port Angeles. But while there is evidence in the record supporting this, the trial court declined to make such a holding. The petitioners have given us no reason to disturb the trial court's judgment on this matter. WE CONCUR: BARBARA A. MADSEN, C.J., and CHARLES W. JOHNSON, SUSAN OWENS, DEBRA L. STEPHENS, JJ. SANDERS, J., dissenting. ¶ 20 The Washington Constitution provides: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed....” Const. art. I, § 1. The power of initiative, the first power reserved by the people of Washington, remains a powerful symbol of the importance this State places on the ability of the people to check the other branches of government. Coppernoll v. Reed, 155 Wash.2d 290, 296-97, 119 P.3d 318 (2005) (citing Const. art. II, § 1(a)). It must be vigilantly protected. Id. at 297, 119 P.3d 318. Because the majority today diminishes our state's forthright commitment to this core democratic principle, I dissent. ¶ 21 It has been a long-standing rule that courts refrain from inquiring into the validity of a preelection initiative. Id. (citing Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wash.2d 740, 745, 620 P.2d 82 (1980)). Our preelection review is only appropriate under narrowly prescribed exceptions. Id. One exception is when the initiative exceeds the scope of initiative power. Id. at 301, 119 P.3d 318. An initiative is beyond the scope of initiative power when it is (1) administrative, not legislative, in character; and (2) the initiative would enact a law beyond the jurisdiction's power to enact. See Philadelphia II v. Gregoire, 128 Wash.2d 707, 718-19, 911 P.2d 389 (1996). ¶ 22 An initiative is legislative in character when it makes new law or declares a new policy. Seattle Bldg. & Constr. Trades Council, 94 Wash.2d at 748, 620 P.2d 82 (citing 5 Eugene McQuillin, The Law of Municipal Corporations § 16.55 (3d rev. ed. 1969)). Conversely, administrative initiatives merely carry out laws or policies already in existence and are not within the scope of initiative power. See id. The majority asserts the initiatives here ^FN1 are administrative because the city of Port Angeles (the City) implemented its water fluoridation program pursuant to an existing regulatory system established by the Washington State Legislature and the Department of Health. Majority at 595-96. This view oversimplifies the analysis. Although the Department of Health does regulate water fluoridation levels, class A municipal water suppliers like Port Angeles are not required to fluoridate. See WAC 246-290-460(2). The decision to fluoridate did not carry out a state mandate or preexisting policy. See Seattle Bldg. & Constr. Trades Council, 94 Wash.2d at 748, 620 P.2d 82 “ ‘[An initiative] is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.’ ” (quoting 5 McQuillin, supra, § 16.55, at 214). Instead, it introduced a new policy to fluoridate the City's water. The preexisting regulations merely dictate safe levels of fluoride; they do not determine whether fluoride should be added in the first place. This threshold question falls within the legislative domain. FN1. Entitled the “Medical Independence Act,” sponsored by petitioner Our Water-Our Choice (Clerk's Papers (CP) at 220-21), and the “Water Additives Safety Act,” sponsored by petitioner Protect Our Waters (CP at 222-23). ¶ 23 The majority claims the initiatives do not constitute new policies or plans because they seek to prohibit or limit the amount of fluoride or contaminant levels in drinking water-which the majority believes is already regulated by the Department of Health. See majority at 593-94; see also WAC 246-290-460. Furthermore, the majority contends the initiatives seek to administer details of the City's water system, which has existed since 1924. ¶ 24 The majority views the issue through too wide a lens. The initiatives here seek to create new law in Port Angeles. Although the water system has existed since 1924, the provisions of the Port Angeles Municipal Code that regulate water services carry no mention of chemical additive regulation, including optional ^FN2 additives such as fluoride. See Port Angeles Municipal Code chs. 13.24-13.48.^FN3 Accordingly these initiatives would not merely administer details of the City's water system. FN2. I use the term “optional” to mean chemicals added for purposes other than ensuring safe drinking water. FN3. For example, the chapters cited regulate “Water Service Connection Charges” (ch. 13.32); “Water Service Turnons and Turnoffs” (ch. 13.36); “Water Rates” (ch. 13.44), etc. Nothing in these chapters regulates potability, chemical contaminants, or fluoride. ¶ 25 While the Department of Health regulations do regulate fluoridation and a variety of chemical additives, the initiatives here would substantially expand the scope of regulated chemicals. This substantial expansion constitutes new law, which is legislative in character. See WAC 246-290-310 (listing maximum contaminant levels of chemicals for water samples). We have addressed an analogous issue before. See Citizens for Financially Responsible Gov't v. City of Spokane, 99 Wash.2d 339, 662 P.2d 845 (1983) (Citizens). In Citizens, we found an ordinance that expanded a licensing tax from utility companies to all businesses generally to be legislative in character. Like the licensing tax, the initiatives here seek to expand categories that would be regulated. The initiatives seek to regulate all public sources of water supply, not just the City's municipal water supply. There is no current ordinance regulating the purity of all public water systems in the City. See Appellant's Opening Br. at 24. ¶ 26 Furthermore, the Department of Health regulations address the health and safety of drinking water. See WAC 246-290-001(2)(b).^FN4 The proposed initiatives do not seek to ensure the safety of drinking water, but rather to prohibit or limit additives for reasons unrelated to the water quality itself. ^FN5 Specifically the initiatives would ban certain optional additives, such as fluoride, which has been shown to prevent dental disease.^FN6 These new objectives address a wholly different matter than the preexisting WAC regulations. The current state regulations ensure that the water is safe to drink. These initiatives, in turn, aim to prevent the addition of optional additives, which have nothing to do with water drinkability. They do not attempt to interfere with the current systems set in place by the City and the Department of Health. Accordingly the initiatives are legislative, not administrative, in nature. FN4. “The rules of this chapter are specifically designed to ensure: ... (b) Provision of safe and high quality drinking water in a reliable manner and in a quantity suitable for intended use.” FN5. The Water Additives Safety Act states: This ordinance does not regulate chemicals added to water to make water safe or potable. .... This ordinance requires that any substances which are added with the intention of treating people, not the water, must meet existing health-based standards.... CP at 222-23 (emphasis added). FN6. Respondents have conceded that the decision to fluoridate was spurred by local health care professionals who thought fluoridation would produce a measurable benefit for a significant portion of the population. See Br. of Resp'ts at 7. ¶ 27 Because the majority holds the initiatives are administrative in nature and thus determinative of the case, it does not reach the second issue of whether the initiative would enact a law within the jurisdiction's power to enact. Because I would hold the initiatives are legislative, however, I address the issue briefly. ¶ 28 The Court of Appeals noted that an initiative is generally beyond the scope of initiative power if the initiative involves powers granted by the legislature to the governing body of the city, rather than to the City itself. City of Port Angeles v. Our Water-Our Choice, 145 Wash.App. 869, 881, 188 P.3d 533 (2008). However, it held that RCW 35A.11.020 granted exclusive authority to the city council to operate and regulate a municipal water system and, therefore, in its opinion “[t]his delegation placed the operation of a municipal water system beyond the initiative power.” Id. at 880-81, 188 P.3d 533. ¶ 29 This interpretation is erroneous; the statute is a general grant of authority but, as is clear from the text, the exercise of that power is clearly permissive.^FN7 Under the Court of Appeals' interpretation, any issues included after the language “by way of illustration,” including utilities, are naturally precluded from initiative powers. This interpretation is not supported by the text of the statute. Only when the legislature clearly delegates power to a local legislative body alone, as opposed to the city as a whole, will initiatives that attempt to modify that power be invalid. See 1000 Friends of Wash. v. McFarland, 159 Wash.2d 165, 173-74, 149 P.3d 616 (2006). RCW 35A.11.020 uses the word “may” in describing the power exercised by a city council over utilities; there is no clear delegation of power solely to the city council. A proper reading of RCW 35A.11.020 would be that the legislative body or some other law-making body may exercise power over its utilities. FN7. RCW 35A.11.020 states: “The legislative body of each code city shall have all powers possible.... By way of illustration and not in limitation, such powers may be exercised ..., including operating and supplying of utilities and municipal services commonly or conveniently rendered by cities or towns.” (Emphasis added.) ¶ 30 The majority does not reach the issue of whether the legislature delegated to the city's legislative body the decision to fluoridate. See majority at 596 n. 7. However, it is essential to the analysis. “Not only must the proposed initiative be legislative in nature, but it must be within the authority of the jurisdiction passing the measure.” Philadelphia II, 128 Wash.2d at 719, 911 P.2d 389. ¶ 31 The Court of Appeals opinion below broadly suggests citizen initiatives cannot touch city council decisions when the legislature has granted power to a local legislative body instead of the city as a whole. Our Water-Our Choice, 145 Wash.App. at 880-81, 188 P.3d 533 (citing 1000 Friends, 159 Wash.2d at 173-74, 149 P.3d 616; Whatcom County v. Brisbane, 125 Wash.2d 345, 350, 884 P.2d 1326 (1994); Lince v. City of Bremerton, 25 Wash.App. 309, 312-13, 607 P.2d 329 (1980)). But 1000 Friends and its brethren demand this result only if the legislature did not also contemplate the use of local referenda within the same statutory chapter. For example, the statutory scheme in 1000 Friends did not expressly allow for initiative and referendum. ^FN8 But here the legislature's intent to authorize citizen legislation, as expressed in RCW 35A.11.080, is clear. RCW 35A.11.080 provides: “The qualified electors or legislative body of a noncharter code city may provide for the exercise in their city of the powers of initiative and referendum....” Port Angeles, in turn, accepted the legislature's invitation to provide to its citizens the powers of initiative and referendum. See Port Angeles Ordinance 3252 (2006), available at http:// 65. 243. 149. 132/ Weblink/ Doc View. aspx? id = 16649 (last visited Sept. 17, 2010). Statutory delegation of authority to the Port Angeles City Council cannot preempt citizens' initiative rights when the same chapter also expressly authorizes those rights. FN8. 1000 Friends concerned the Growth Management Act, chapter 36.70A RCW. ¶ 32 This is borne out in our case law. The Court of Appeals applied the first part of the holding in 1000 Friends (i.e., that delegation of control to the city council superseded citizen initiative) while, at the same time, improperly overlooked the implicit second part of the holding (i.e., that citizens can modify by initiative when the legislature contemplated the use of local initiatives and referenda). In 1000 Friends we stated that “we considered the absence of any mention of referenda in the extensive and detailed [statutory scheme], and concluded that absence was strong evidence of a legislative desire to vest the power and responsibility in the local legislative authority.” 1000 Friends, 159 Wash.2d at 176, 149 P.3d 616 (citing Brisbane, 125 Wash.2d at 351-52, 884 P.2d 1326). But as noted above, the statute here does contemplate the initiative and referendum power. After granting permissive power to local legislative bodies in RCW 35A.11.020, the legislature then specifically considered and approved the use of citizen legislation in a subsequent section of the same chapter. See RCW 35A.11.080. This situation is the opposite of that discussed in 1000 Friends. Here we have an explicit grant of referendum and initiative power. This distinction compels us to find the fluoridation decision subject to initiative. The initiatives here fell within the authority of the City's legislative body. ¶ 33 Washington State respects the people's right to govern their own affairs. Without a robust right of initiative, the citizens of Port Angeles are without recourse in determining what types of additives the City pumps into or withholds from their drinking water. The initiatives propose new policy regarding chemical additives in the water; these matters have not been satisfactorily addressed by either the Department of Health or the Port Angeles Municipal Code. These legislative initiatives, which would greatly expand the range of substances and parties regulated, are not beyond the scope of initiative power. Accordingly, they are not subject to preelection review. We must allow them to proceed to the ballot. ¶ 34 Because the right of initiative must be preserved here, I dissent. WE CONCUR: GERRY L. ALEXANDER, JAMES M. JOHNSON and MARY E. FAIRHURST, JJ.

+/- Salt Lake County v. Holliday Water Co.

Utah

• Plaintiff
  Salt Lake County
• Defendant
  Holliday Water Co.
• State
  Utah
• Other Parties
  -
• Case Tags
  -
• Citation
  234 P.3d 1105 (Utah 2010)
• Year
  2010-00-00T00:00:00
• Court Name
  Supreme Court of Utah
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
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• Opinion Text
  NEHRING, Justice: INTRODUCTION ¶ 1 Holliday Water Company appeals the district court's grant of summary judgment in favor of Salt Lake County, which requires Holliday Water to fluoridate its water supply in compliance with Salt Lake Valley Health Department's Regulation 33 (as amended). ¶ 2 While these proceedings were pending, the Utah State Legislature passed Senate Bill 29, amending Utah Code section 19-4-111 to exempt “corporate public water systems” from having to comply with Regulation 33. Holliday Water, contending it is a corporate public water system as defined by the new statute, filed a Notice of Suggestion of Mootness, arguing that the 2009 amendments moot this appeal. ¶ 3 Because we find that the 2009 amendments to section 19-4-111 moot this case, we vacate the decision of the district court and remand with instructions to dismiss the complaint as moot. However, we also hold that to the extent Salt Lake County and Holliday Water entered an enforceable contract before the 2009 amendments took effect, the 2009 amendments will not apply retroactively to displace the terms of that contract. BACKGROUND ¶ 4 The Utah Safe Drinking Water Act, originally passed in 1953, prohibits the addition or removal of fluorine ^FN1 to “public water supplies, whether state, county, municipal, or district,” unless a majority of voters in the affected area vote in favor of such an action in an election. See Utah Code Ann. § 19-4-111(2)(a) (Supp.2009). FN1. Fluorine is defined as “[a] pale-yellow, highly corrosive, poisonous, gaseous halogen element, the most electronegative and most reactive of all the elements, used in a wide variety of industrially important compounds.” The American Heritage Dictionary 516-17 (2d ed. 1985). Concluding the Utah State Legislature would not contemplate adding a toxic substance to public water supply, even if by popular opinion, we assume the word “fluorine” in the statute should actually be the word “fluoride,” a beneficial compound often added to a water supply to prevent tooth decay. As such, we use the term “fluoride” instead of “fluorine” throughout this opinion. ¶ 5 In November 2000, Salt Lake County held a general election that included a ballot question regarding whether fluoride should be added to public water systems in Salt Lake County. A majority of registered voters approved the ballot initiative, thus requiring the addition of fluoride to the public water systems in Salt Lake County. After the vote, the Salt Lake Valley Health Department drafted Regulation 33, which mandated fluoridation of all “regulated public water systems” in Salt Lake County by October 1, 2003. The Salt Lake Valley Board of Health subsequently amended Regulation 33 in 2005 to exempt “functionally separate” water systems from the fluoridation requirement. ¶ 6 Holliday Water Company, a registered Utah corporation in Salt Lake County, declared itself to be a functionally separate water system and exempt from Regulation 33, as amended. In response, Salt Lake County filed a complaint against Holliday Water seeking a declaratory judgment ruling that due to its interconnections with Salt Lake City, Holliday Water is not a functionally separate water system and is required to comply with Regulation 33. ¶ 7 Holliday Water filed an answer and counterclaim, seeking a declaration that it is a functionally separate water system under the amended regulation. Salt Lake County moved for summary judgment. At the same time, Holliday Water filed a Motion for Declaratory Judgment asserting Utah Code section 19-4-111 and Regulation 33 do not apply to it. ¶ 8 In a memorandum decision, the district court granted Salt Lake County's motion for summary judgment and denied Holliday Water's motions. The district court found that under the plain language of the statute, along with Regulation 33, Holliday Water is not functionally separate because it is a public system that has interconnections with Salt Lake City, it is not independent of any other water system, and it provides water service to retail customers. ¶ 9 Holliday Water appealed the district court's grant of summary judgment in favor of Salt Lake County and the denial of Holliday Water's Motion for Declaratory Judgment on the application of Utah Code section 19-4-111. ¶ 10 While these proceedings were pending before our court and in response to the lobbying efforts of Holliday Water, the Utah State Legislature passed Senate Bill 29, amending section 19-4-111 of the Safe Drinking Water Act to expressly exempt from compulsory fluoridation those “corporate public water systems” whose shareholders oppose adding the chemical. Safe Drinking Water Act Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. Under the amended statute, a corporate public water system is defined as “a public water system that is owned by a corporation engaged in distributing water only to its shareholders.” Utah Code Ann. § 19-4-111(1)(a). ¶ 11 In response to the new legislation and pursuant to rule 37 of the Utah Rules of Appellate Procedure, Holliday Water filed a Notice of Suggestion of Mootness, arguing that because it is a corporate public water system as defined in the new version of the statute, Salt Lake County has no authority to compel Holliday Water to fluoridate its water supply. ¶ 12 Salt Lake County filed a response to Holliday Water's Notice of Suggestion of Mootness arguing, among other things, that Senate Bill 29 is not retroactive and does not apply to this case. ¶ 13 We called for supplemental briefing on the mootness issue. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j) (2009). STANDARD OF REVIEW ¶ 14 We review a summary judgment determination “for correctness, granting no deference to the [district] court's legal conclusions.” Hansen v. Am. Online, Inc., 2004 UT 62, ¶ 6, 96 P.3d 950. “[W]e determine only whether the [district] court erred in applying the governing law and whether the [district] court correctly held that there were no disputed issues of material fact.” Kouris v. Utah Highway Patrol, 2003 UT 19, ¶ 5, 70 P.3d 72. ¶ 15 “An appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect.” State v. Laycock, 2009 UT 53, ¶ 12, 214 P.3d 104 (internal quotation marks omitted). ANALYSIS ¶ 16 Although the parties characterize their arguments in several ways, this appeal concerns one central question: Is Holliday Water required to add fluoride to its water supply? To answer this question, we must resolve three subsidiary issues: (1) Does Senate Bill 29, which amended Utah Code section 19-4-111 to exempt “corporate public water systems” from the fluoridation requirement, apply to this appeal? (2) If Senate Bill 29 does apply, is Holliday Water a “corporate public water system” as defined by the amended statute, and thus statutorily exempt from the fluoridation requirement? ^FN2 (3) If Holliday Water qualifies for the “corporate public water system” exemption, could Holliday Water still be required to fluoridate its water supply under the terms of a contract entered into before the amendments were passed? FN2. Because we determine Senate Bill 29 does apply to this appeal, we decline to address the argument that Holliday Water meets the definition of a functionally separate water system under the 2005 version of the statute. ¶ 17 We conclude that Senate Bill 29 applies to this appeal and Holliday Water meets the definition of a “corporate public water system” under Utah Code section 19-4-111, as amended. Although this means Holliday Water has no statutory obligation to fluoridate its water supply, we also hold that to the extent Holliday Water entered into an enforceable contract with Salt Lake County before the statute was amended, Holliday Water may still be bound to comply with that contract's terms. I. SENATE BILL 29 APPLIES TO THIS APPEAL ¶ 18 A “[t]hreshold question[ ] in any case on appeal [is] whether there is an actual controversy.” State v. Lane, 2009 UT 35, ¶ 15, 212 P.3d 529. Thus, the first question we must answer is whether Senate Bill 29, which amended Utah Code section 19-4-111 to add an exemption for corporate public water systems, applies to this appeal.^FN3 FN3. Because Senate Bill 29 is now codified at Utah Code Ann. § 19-4-111 (Supp.2009), we refer to its statutory citation throughout the remainder of this opinion. ¶ 19 Largely as a result of Holliday Water's lobbying efforts, Utah Code section 19-4-111 was amended in the 2009 Utah State Legislative session. See Safe Drinking Water Act Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. Holliday Water contends that the new amendments to Utah Code section 19-4-111 apply to this appeal and moot the controversy between the parties. ¶ 20 Salt Lake County disagrees, arguing the amended section 19-4-111 does not moot this appeal because it does not apply retroactively to obligations that existed before the legislative amendments were passed. Thus, according to Salt Lake County, the prior version of the statute applies, and under that language, a controversy still remains. ¶ 21 We agree with Holliday Water on this point. “The burden of persuading the court that an issue is moot ‘lies with the party asserting mootness.’ ” See Cedar Mountain Envtl. Inc. v. Tooele County, 2009 UT 48, ¶ 26, 214 P.3d 95 (Durrant, J., dissenting) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). “[M]ootness can be determined by facts that change or develop as the suit is pending.” Id. Indeed, “[l]egislation can often moot a civil case, even where the legislation passes after the events have transpired in the case.” Salt Lake City v. Tax Comm'n, 813 P.2d 1174, 1177 (Utah 1991); see also Berning v. A.G. Edwards & Sons, Inc., 990 F.2d 272, 277 (7th Cir.1993) (citing United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801)) (recognizing the Supreme Court's long-standing recognition of the principle that Congress may impose new legal rules to pending cases). ¶ 22 We find that Holliday Water has met its burden to demonstrate mootness. Although Salt Lake County is correct that the 2009 amendments to Utah Code section 19- 4-111 do not apply retroactively and thus cannot alter contractual rights that existed before their enactment (see infra Part III), Utah Code section 19-4-111 is the current law, and it prospectively governs the obligations of water companies to add fluoride to their water supplies. The 2009 amended version of this section provides: 19-4-111 Fluori[d]e added to or removed from water-Election or shareholder vote required ... (2)(a) Except as provided in Subsection (7) or Subsection 19-4-104(1)(a), public water supplies, whether state, county, municipal, or district, may not have fluori[d]e added to or removed from the water supply without the approval of a majority of voters in an election in the area affected. ... (3) If a majority of voters on an opinion question under Subsection (2) [ ] approve the addition of fluori[d]e or the removal of fluori[d]e from the public water supplies within the county, the local health departments shall require the addition of fluori[d]e to or the removal of fluori[d]e from all public water supplies within that county other than those systems: (a) that are functionally separate from any other public water systems in that county; ... (7) (a) A supplier may not add fluori[d]e to or remove fluori[d]e from a corporate public water system unless the majority of the votes cast by the shareholders of the corporate public water system authorize the supplier to add or remove the fluori[d]e. (b) If a corporate public water system's shareholders do not vote to add fluori[d]e under Subsection (7)(a), the supplier shall annually provide notice to a person who receives water from the corporate public water system of the average amount of fluori[d]e in the water. Utah Code Ann. § 19-4-111 (Supp.2009) (emphasis added). ¶ 23 The statute defines a “corporate public water system” as “a public water system that is owned by a corporation engaged in distributing water only to its shareholders.” Id. § 19-4-111(1)(a). Under this statute, if an entity demonstrates it is a corporate public water system, the authority to make the decision to fluoridate or not fluoridate its water supply is vested in the shareholders of that entity not the voters of the corresponding county. See id. § 19-4-111(7)(a). Although individuals other than shareholders may be the primary consumers of the company's water, the decision to fluoridate does not belong to them; it belongs to the shareholders. Thus, the next question we must answer is whether Holliday Water is a corporate public water system as defined by the amended statute. II. HOLLIDAY WATER IS A “CORPORATE PUBLIC WATER SYSTEM” AS DEFINED BY UTAH CODE SECTION 19-4-111(1)(A) ¶ 24 The parties vigorously dispute whether Holliday Water meets the definition of a “corporate public water system” under Utah Code section 19-4-111(1)(a) (Supp.2009). Holliday Water believes that it is so obvious that it qualifies as a corporate public water system, that it asks us to take judicial notice of this as a fact. In support of taking judicial notice of its status, Holliday Water directs us to: (1) a statement we made in Holliday Water Co. v. Lambourne, 24 Utah 2d 97, 466 P.2d 371 (1970), (2) a definition from the Utah Safe Water Drinking Act, and (3) a letter from the Public Service Commission. Holliday Water next asserts that even without taking judicial notice of its status, we should conclude that Holliday Water falls squarely within the definition of a corporate public water system under the plain language of the statute. ¶ 25 Salt Lake County disagrees. First, the County argues that under Utah Rule of Evidence 201 we cannot take judicial notice of a record in a different case or proceeding, or of a fact in dispute. Next, the County argues that Holliday Water does not meet the definition of a corporate public water system under the plain language of the statute. ¶ 26 We decline to take judicial notice that Holliday Water is a corporate public water system. Instead, we conclude that this issue is best resolved by means of statutory interpretation. ¶ 27 When interpreting statutes, “we look first to the plain language of the statute,” and give effect to that language unless it is ambiguous. Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 520 (Utah 1997). In doing so, “our primary goal is to evince the true intent and purpose of the Legislature.” State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276 (internal quotation marks omitted). ¶ 28 Utah Code section 19-4-111(1)(a) defines a “corporate public water system” as “a public water system that is owned by a corporation engaged in distributing water only to its shareholders.” There is no dispute that Holliday Water is a corporation that operates a public water system. Rather, the parties' disagreement over the statute centers on whether Holliday Water distributes water only to its shareholders. ¶ 29 Holliday Water distributes water to shareholders through “connections” or “meters.” Once the water is distributed, the shareholders are then free to use or redistribute the water as they desire. They are free to provide water to nonshareholders, whether family, renters, or strangers. ¶ 30 Although Salt Lake County concedes that Holliday Water distributes water only to meters associated with its shareholders, Salt Lake County contends that because water from those meters may eventually find its way to nonshareholders and other retail customers, Holliday Water does not qualify as a corporate public water system. ¶ 31 The County's argument is unpersuasive. The phrase “engaged in distributing water only to its shareholders” is clear and unambiguous; we therefore need not expand our search for meaning beyond the text of the statute.^FN4 World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994) (“Only when we find ambiguity in the statute's plain language need we seek guidance from the legislative history and relevant policy considerations.”) Under the plain language of the statute, a corporation operating a public water system satisfies the definition of a corporate public water system so long as the corporation's water is delivered exclusively to the shareholders of the corporation. How, where, and to whom the water travels after it is in the shareholders' possession is of no consequence.^FN5 Because it is undisputed that Holliday Water distributes water only to meters assigned to its shareholders, we hold that Holliday Water qualifies as a corporate public water system under the amended statute and that it has no statutory obligation to fluoridate its water supply. FN4. Although we decline to undertake a comprehensive analysis of the lawmakers' intent behind this statute, we note that the legislative history in this case leaves us no doubt as to whom the “corporate public water system” definition was meant to apply. As Salt Lake County conceded at oral argument, the “corporate public water system” exemption and its related statutory amendments were passed as a direct result of the lobbying efforts of Holliday Water's shareholders, and in an attempt to achieve an exemption from Salt Lake County Health Department's fluoridation requirement. FN5. Although we decline Holliday Water's invitation to take judicial notice of its “corporate public water system” status, we note that the statutory definition of a corporate public water system strongly resembles the description of a “mutual water company” contained in our case law. See, e.g., E. Jordan Irr. Co. v. Morgan, 860 P.2d 310, 311 n. 1 (Utah 1993) (defining a “mutual water company” as a “nonprofit corporation formed to supply water only to its shareholders”). We find these mutual water cases and their discussion of the distribution of company water to shareholders to be instructive. Indeed, they illustrate the principle that once the water is distributed to a meter, it becomes the property of a shareholder and the corporation no longer has control over how the water is used. See id. at 318 (“The mutual water corporation is under a perpetual duty to deliver water to the shareholder; it may not decide that it would rather deliver the water to someone else or for some other purpose.... [It is] [t]he shareholder, not the corporation, [who] decides whether to use his or her water on certain crops, for domestic use,” or whether to use the water for any purpose at all. (citation omitted)); Baird v. Upper Canal Irr. Co., 70 Utah 57, 257 P. 1060, 1065 (1927) (same); see also Consol. Peoples Ditch Co. v. Foothill Ditch Co., 205 Cal. 54, 269 P. 915, 920 (1928) (“The term ‘Mutual Water Company[ ]’... has no defined legal meaning which would serve to differentiate corporations, organized for the acquiring of water rights and the distribution of water, from other corporations owning and administering property for the benefit of their stockholders”). ¶ 32 Having determined that Holliday Water meets the definition of a corporate public water system under the statute, we now address Salt Lake County's argument that Holliday Water must comply with Regulation 33 notwithstanding the application of the amendments to Utah Code section 19-4-111. III. HOLLIDAY WATER MAY STILL BE BOUND BY A PREEXISTING CONTRACT TO COMPLY WITH SALT LAKE VALLEY HEALTH DEPARTMENT'S REGULATION 33 ¶ 33 Salt Lake County argues that notwithstanding the amendments to Utah Code section 19-4-111, Holliday Water may still be required to fluoridate its water supply under an express agreement it made with the County before section 19-4-111 was amended. Salt Lake County renews its argument that the new statute should not apply retroactively to invalidate contracts that were in force before the amendments were passed.^FN6 FN6. The issue of whether the parties have an enforceable express agreement or an agreement by estoppel is a separate action that remains pending in the district court. ¶ 34 In contrast, Holliday Water asserts that every Utah contract is entered into with the knowledge that “the State Legislature can, in the exercise of its police powers, pass laws reasonably necessary to secure the health, safety, and general welfare of the community regardless of whether such laws or regulations affect contracts incidentally, directly or indirectly.” Holliday Water argues that any agreement it may have entered into with the County is subject to current law, and thus, even if Holliday Water agreed to fluoridate its water supply by express contract or otherwise, to require Holliday Water to comply with that promise now would be to force it to commit an “illegal act.” ¶ 35 While it is true that when a legislative enactment renders preexisting contract terms illegal the contract may be deemed unenforceable; it is also true that preexisting contracts at odds with new legislation will not automatically be deemed invalid. Rather, we must conduct a balancing test to determine whether “the interest in [enforcing the contract] is clearly outweighed ... by a public policy against the enforcement of such terms.” Restatement (Second) of Contracts § 178 (1981); see also 15 Corbin on Contracts, § 89.16 (1993). A. The 2009 Amendments to Utah Code Section 19-4-11l Do Not Automatically Invalidate Preexisting Contract Obligations ¶ 36 “Despite the general rule that every contract in violation of [the] law is void, the fact that a contract serves a prohibited purpose does not necessarily make the contract unenforceable.” Peterson v. Sunrider Corp., 2002 UT 43, ¶ 39, 48 P.3d 918 (internal quotation marks and citations omitted). “[T]he court must then determine whether [the] statute or public policy demands that the contract be held unenforceable.” Id. In doing so, a court should “look at the over-all picture ... and determine upon the facts of the individual case whether the ends of justice demand that relief be granted.” McCormick v. Life Ins. Corp. of Am., 6 Utah 2d 170, 308 P.2d 949, 952 (1957). This analysis includes both an identification of the purpose of enforcing the new legislation, as well as the public policy of preserving the freedom to contract. See 15 Corbin on Contracts, § 79.4 (1993) (“[C]onclusions on enforceability” are made “by weighing the particular public policy at issue against the damage that the freedom of contract may suffer if the court does not enforce the contract.”). ¶ 37 The 2009 amendments to section 19-4-111 are irrelevant to the protection of the health, safety, and welfare of the citizens in Salt Lake County. Instead, the purpose of the 2009 amendments is to shift the decision to add or discontinue the addition of fluoride to a water system from the citizens in the affected area to the shareholders who own the water system. See Utah Code Ann. § 19-4-111(7)(a). This shift in political power does not establish a legislative preference for fluoridation, but rather a policy of granting corporate public water systems the autonomy and power to make their own fluoridation decisions. ¶ 38 Unless Holliday Water lacked the power to enter into the alleged contract before these amendments were passed, its decision to enter an agreement with the County was also an exercise of its autonomy. To the extent that the enforcement of contracts does not clearly contravene public rights or the general welfare, it is the function of this court to enforce and maintain contracts rather than to enable parties to avoid their contractual obligations. See Baltimore & Ohio Sw. R. Co. v. Voigt, 176 U.S. 498, 505, 20 S.Ct. 385, 44 L.Ed. 560 (1900); DeVetter v. Principal Mut. Life Ins. Co., 516 N.W.2d 792, 794 (Iowa 1994) (“For a court to strike down a contract on [public policy] grounds, it must conclude that the preservation of the general public welfare imperatively ... demands invalidation so as to outweigh the weighty societal interest in the freedom of contract.”). ¶ 39 Passing a law that allows shareholders to vote against the addition of fluoride to drinking water is irrelevant to public safety because it neither mandates nor prohibits the fluoridation of water. Therefore, freely entered contracts, legal when executed, that implement fluoride practices in a manner made illegal by the amended version of section 19-4-111 will not be displaced. ¶ 40 Because we have concluded that no overriding public policy interest prevents enforcement of an alleged preexisting contract, we now turn to the question of whether the 2009 amendments should apply retroactively to govern preexisting private contracts that may have been entered in this case. We are persuaded by Salt Lake County's argument that the 2009 amendments should not invalidate any preexisting contract between the parties. B. The 2009 Amendments Will Not Apply Retroactively to Invalidate Any Preexisting Contract ¶ 41 As a general rule, we apply the version of the statute in effect “at the time of the events giving rise to [the] suit.” Taghipour v. Jerez, 2002 UT 74, ¶ 5 n. 1, 52 P.3d 1252. Indeed, the Utah Code expressly restricts retroactive application of legislative changes by stating “[n]o part of these revised statutes is retroactive, unless expressly so declared.” Utah Code Ann. § 68-3-3 (2008). When no such declaration of retroactive application is present in a legislative amendment, we must apply the statute in effect at the time of the controversy unless one of two exceptions apply: (1) the legislative change merely “clarif[ies] the meaning of an earlier enactment,” Utah Dep't of Soc. Servs. v. Higgs, 656 P.2d 998, 1001 (Utah 1982) or (2) the amendment changed the prior law in a purely procedural way that does not affect the substantive rights of the parties. See Harvey v. Cedar Hills City, 2010 UT 12, ¶ 14, 227 P.3d 256 (stating retroactive application is permissible “if the amended version of the statute does not enlarge, eliminate, or destroy vested or contractual rights” (alteration and internal quotation marks omitted)); Brown & Root Indus. Serv. v. Indus. Comm'n, 947 P.2d 671, 675 (Utah 1997) (same). ¶ 42 Utah Code section 19-4-111 (Supp.2009) contains no language about retroactive application; therefore, to determine if the amendments will override a possible private contract, we must determine whether the 2009 amendments to the statute are merely procedural or for clarification, or if they affect the substantive rights of the parties. We conclude that the 2009 amendments were not procedural in nature, and that they possibly affected vested contractual rights that existed before the changes to the statute were made. 1. The 2009 Amendments Do More Than Merely Clarify the Meaning of an Earlier Enactment ¶ 43 It is well established in our case law that “when the purpose of an amendment is to clarify the meaning of an earlier [statute], the amendment may be applied retroactively in pending actions.” Due South, Inc. v. Dep't of Alcoholic Beverage Control, 2008 UT 71, ¶ 14, 197 P.3d 82 (alteration in original) (quoting Kilpatrick v. Wiley, 2001 UT 107 ¶ 59, 37 P.3d 1130). An amendment serves as a clarification when it corrects a discrepancy or merely “amplif[ies] ... how the law should have been understood prior to [the amendment].” Richards Irr. Co. v. Karren, 880 P.2d 6, 8 (Utah Ct.App.1994) (internal quotation marks omitted). In cases of doubt or uncertainty as to the character of an amendment, the title or preamble to a statutory amendment may be examined to clarify the purpose of the change. See, e.g., Shelter Am. Corp. v. Ohio Cas. & Ins. Co., 745 P.2d 843, 845 (Utah Ct.App.1987) (noting the preamble to a statutory amendment stated that the purpose of the amendment was to clarify that a “mobile home” constituted a “motor vehicle,” under the statute). ¶ 44 When we examine the 2009 amendments to Utah Code section 19-4-111, nothing in their text appears to be an attempt to clarify preexisting language. Rather, the amendments add a new subsection to the statute providing an additional exemption to the fluoridation requirement that did not exist in any form before the amendments were made. Should there be any doubt as to the character of these amendments, the preamble to Senate Bill 29, amending section 19-4-111, is instructive. It states, “[t]his bill defines terms; requires the majority of the voting shareholders of a corporate public water system to approve the addition or removal of fluori[d]e in the public water system; and makes technical changes.” See Safe Drinking Water Act Amendments, ch. 371 § 1, 2009 Utah Laws 2029-30. This language makes clear that the amendment added a substantive requirement to the statute and was more than a mere clarification. We find the language in our case of Salt Lake Union Stock Yards v. Tax Comm'n, to be applicable to describe the situation: In this case we see no room for the argument that the Legislature intended to give a definition retroactively to words used in a previous enactment. There is no language used in the ... amendment from which this can be inferred. [The amendment] is clearly an attempt to extend [a new] exemption to [another class] of [individuals]. 93 Utah 166, 71 P.2d 538, 541 (1937). Senate Bill 29 was not a mere clarification of the law; it was an affirmative addition of a new exemption to the statute. We now turn to whether this addition was procedural in nature, or if it affected the substantive rights of the parties. 2. The 2009 Amendments Are Not Procedural Because They Grant Corporate Public Water Systems a Right That Did Not Previously Exist ¶ 45 As we stated above, the “substantive law to be applied throughout an action is the law in effect at the date the action was initiated.” Higgs, 656 P.2d at 1000. An exception to this rule applies when a law is merely procedural rather than substantive in nature. See id. at 1000-01. A change to a law is procedural when it does not “enlarge, eliminate, or destroy any vested or contractual rights of the parties.” Due South, 2008 UT 71, ¶ 15, 197 P.3d 82 (internal quotation marks omitted). A change is substantive “where the new statute establishes a primary right and duty which was not in existence at the time [the claim] arose.” Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct.App.1996) (internal quotation marks omitted). ¶ 46 We are persuaded that adding an exemption from the fluoridation requirement for “corporate public water systems” was not merely procedural in nature. Rather, we find that this change affected the structure, purpose, and key elements of Utah's fluoridation statutes. Utah law takes up the subject of fluoridation within the Safe Drinking Water Act in sections 19-4-101 to -112 of the Utah Code. Fluoridation of drinking water is mandated where the addition of fluoride is approved in a general election. Before the 2009 amendments added specific exemptions for corporate public water systems, these systems were required to comply with this fluoridation requirement. After the amendments, corporate public water systems were exempt from fluoridation. It is hard to envision a more substantive change than mandating an action under one statute and taking away that obligation in another. ¶ 47 Because the 2009 amendments to Utah Code section 19-4-111 vested corporate public water systems with a right they previously did not have, the amendments were substantive in nature, and we decline to apply them retroactively to displace any terms in enforceable preexisting contracts entered into by Salt Lake County and Holliday Water before the amendments were made. Whether or not Salt Lake County and Holliday Water have an enforceable contract is not squarely before us on this appeal and should be determined in the pending action before the district court. CONCLUSION ¶ 48 Because we conclude that the amendments to Utah Code section 19-4-111 moot Holliday Water's statutory obligation to fluoridate its water supply, we vacate the judgment of the district court, and remand with instructions to dismiss the complaint as moot. Although we conclude that Holliday Water has no statutory obligation under current law to comply with Salt Lake County Health Department's Regulation 33, Holliday Water may have a contractual obligation to fluoridate its water supply. The issue of whether a preexisting contract was entered between the parties that requires Holliday Water to fluoridate its water supply is presently pending in a separate action before the district court. ¶ 49 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING's opinion. ¶ 50 Justice WILKINS acted on this opinion prior to his retirement.

+/- City of Cincinnati v. Whitman

Ohio

• Plaintiff
  City of Cincinnati
• Defendant
  Whitman
• State
  Ohio
• Other Parties
  -
• Case Tags
  -
• Citation

  44 Ohio St.2d 58, 337 N.E.2d 773, 73 O.O.2d 283 (Ohio, 1975)

• Year
  1975-01-01T00:00:00
• Court Name
  Ohio Supreme Court
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  Syllabus by the Court 1. The absence of a necessary party constitutes a jurisdictional defect which precludes a Court of Common Pleas from properly rendering a declaratory judgment. ( Zanesville v. Zanesville Canal & Mfg. Co., 159 Ohio St. 203, 111 N.E.2d 922, followed.) 2. The Director of Environmental Protection is a necessary party in a declaratory judgment action brought to adjudicate the constitutionality of R.C. 6111.13 and 6111.30. This is an appeal from an August 17, 1973, order by the Ohio Director of Environmental Protection, acting upon a complaint filed by one Harvey A. Immerman, directing the city of Cincinnati to add fluoride to its water system as required by R.C. 6111.13. In the case of Crotty v. Cincinnati (unreported, case No. A-244304, decided July 15 1971), a declaratory judgment action in the Common Pleas Court of Hamilton County, R.C. 6111.13 was held to be unconstitutional, and the city of Cincinati was permanently enjoined from fluoridating its water supply system under that statutory provision. The Attorney General of Ohio was given notice of the proceeding, but was not made a party and did not participate in the action. The Director of Health (predecessor to the Director of Environmental Protection's enforcement responsibilities under R.C. 6111.13) was also not made a party. The Environmental Board of Review affirmed the order of the Director, and the Court of Appeals affirmed that order of the Board. The cause is before this court pursuant to the allowance of a motion to certify the record. STERN, Justice. The sole assignment of error in the Court of Appeals was that ‘(t)he Environmental Board of Review erred in ordering the appellant to fluoridate its water supply because it placed a burden on appellant to extricate itself from a perilous situation.’ The city contends that to obey the orders of the Board and the Director, it must act in contempt of the permanent injunction issued by the Court of Common Pleas of Hamilton County. Because we conclude that the Court of Common Pleas lacked jurisdiction to issue the injunction, and therefore that the injunction is void, we agree that the assignment of error was properly overruled by the Court of Appeals. One of the requisites to the rendition of a declaratory judgment is that all necessary parties be before the court, and the absence of an interested and necessary party ‘constitutes a jurisdictional defect which precludes the court from properly rendering a declaratory judgment.’     Zanesville v. Zanesvill Canal & Mfg. Co. (1953), 159 Ohio St. 203, 111 N.E.2d 922. The issue presented in the declaratory judgment action, supra, was the constitutionality of R.C. 6111.13 and 6111.30. R.C. 6111.13 provides that ‘(t) he environmental protection agency shall exercise general supervision of the operation and maintenance of the public water supply and water-works systems throughout the state,’ and requires the fluoridation of supplied water of a public water system, if it does not contain a certain level of fluoride. The actual costs of equipment necessary for purposes of fluoridation would be reimbursed from funds available to the Environmental Protection Agency. R.C. 6111.30 provides for penalties to be imposed for failure to obey an order of the Director of Environmental Protection to perform an act required by R.C. 6111.12 to R.C. 6111.30. The Director is also required, by R.C. 6111.12, to inquire into and investigate complaints that a public water supply does not contain the level of fluoride required by R.C. 6111.13. The provisions of those statutes impose clear duties upon the Director to investigate and enforce compliance with the fluoridation requirement of R.C. 6111.13. The General Assembly has delegated to him the authority to monitor the level of fluorides in public water systems, reimburse the costs of equipment, adopt and enforce rules and regulations, hold hearings, and issue orders requiring compliance with the fluoridation directives of R.C. 6111.13. The effect of holding R.C. 6111.13 and R.C. 6111.30 unconstitutional would be to remove all those duties and obligations from the Director. In particular, it would render ineffective any order of the Director in pursuance of his statutorily mandated duty to enforce R.C. 6111.13. It is apparent that the issue in the declaratory judgment action, supra, affected both the city and the Director. That action's practical effect was to interpose a bar to any proceeding by the Director against the city. It is also apparent that, in the absence of the Director as a party, the judgment would not terminate the uncertainty or controversy, for the judgment would not prejudice the right of the Director to issue compliance orders or to perform his other duties. The anomalous result would be that the Director would retain the right and duty to order compliance with R.C. 6111.13, and that the object of that order would have the right and duty to disobey it. Properly, when declaratory relief is sought which involves the validity or construction of a statute and affects the powers and duties of public officers, such officers should be made parties to the action or proceeding in which the relief is sought.   Langer v. State (1939), 69 N.D. 129, 284 N.W. 238; Harvey Payne, Inc. v. Slate Co. (1961), 342 Mass. 368, 173 N.E.2d 285; Mobile v. Gulf Development Co. (1965), 277 Ala. 431, 171 So.2d 247; Aerated Products Co. v. Godfrey (1943), 263 App. Div. 685, 35 N.Y.S.2d 124, reversed on other grounds, 290 N.Y. 92, 48 N.E.2d 275. Joinder of such officers assures that the parties will be properly adverse, that the issues involved will be fully presented, that the uncertainty or controversy will be terminated, and that the public interest will be adequately protected without a multiplicity of suits. In Crotty, supra, the Director was an interested and necessary party to the proceeding and the failure to join him in the suit deprived the court of jurisdiction to render an enforceable declaratory judgment. The state also claims that the Court of Common Pleas of Hamilton County lacked jurisdiction because of R.C. 6111.27. That argument was rejected by the Court of Common Pleas, and that statute has since been repealed. Our holding that the court lacked jurisdiction because of failure to join a necessary party renders this issue moot. The constitutional issues raised in the declaratory judgment action in the Court of Common Pleas are not properly before us, not having been assigned as error in the Court of Appeals. See our decision in Canton v. Whitman, 44 Ohio St.2d 62, 337 N.E.2d 766, also rendered this day. For the foregoing reasons, the judgment of the Court of Appeals is affirmed. Judgment affirmed. WILLIAM O'NEILL, C. J., and HERBERT, WILLIAM B. BROWN and PAUL W. BROWN, JJ., concur. J. J. P. CORRIGAN and CELEBREZZE, JJ., dissent.

+/- City of Cincinnati v. Whitman

Ohio

• Plaintiff
  City of Cincinnati
• Defendant
  Whitman
• State
  Ohio
• Other Parties
  -
• Case Tags
  -
• Citation
  44 Ohio St.2d 58, 337 N.E.2d 773, 73 O.O.2d 283 (Ohio, 1975)
• Year
  1975-00-00T00:00:00
• Court Name
  Ohio Supreme Court
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  Syllabus by the Court 1. The absence of a necessary party constitutes a jurisdictional defect which precludes a Court of Common Pleas from properly rendering a declaratory judgment. ( Zanesville v. Zanesville Canal & Mfg. Co., 159 Ohio St. 203, 111 N.E.2d 922, followed.) 2. The Director of Environmental Protection is a necessary party in a declaratory judgment action brought to adjudicate the constitutionality of R.C. 6111.13 and 6111.30. This is an appeal from an August 17, 1973, order by the Ohio Director of Environmental Protection, acting upon a complaint filed by one Harvey A. Immerman, directing the city of Cincinnati to add fluoride to its water system as required by R.C. 6111.13. In the case of Crotty v. Cincinnati (unreported, case No. A-244304, decided July 15 1971), a declaratory judgment action in the Common Pleas Court of Hamilton County, R.C. 6111.13 was held to be unconstitutional, and the city of Cincinati was permanently enjoined from fluoridating its water supply system under that statutory provision. The Attorney General of Ohio was given notice of the proceeding, but was not made a party and did not participate in the action. The Director of Health (predecessor to the Director of Environmental Protection's enforcement responsibilities under R.C. 6111.13) was also not made a party. The Environmental Board of Review affirmed the order of the Director, and the Court of Appeals affirmed that order of the Board. The cause is before this court pursuant to the allowance of a motion to certify the record. STERN, Justice. The sole assignment of error in the Court of Appeals was that ‘(t)he Environmental Board of Review erred in ordering the appellant to fluoridate its water supply because it placed a burden on appellant to extricate itself from a perilous situation.’ The city contends that to obey the orders of the Board and the Director, it must act in contempt of the permanent injunction issued by the Court of Common Pleas of Hamilton County. Because we conclude that the Court of Common Pleas lacked jurisdiction to issue the injunction, and therefore that the injunction is void, we agree that the assignment of error was properly overruled by the Court of Appeals. One of the requisites to the rendition of a declaratory judgment is that all necessary parties be before the court, and the absence of an interested and necessary party ‘constitutes a jurisdictional defect which precludes the court from properly rendering a declaratory judgment.’     Zanesville v. Zanesvill Canal & Mfg. Co. (1953), 159 Ohio St. 203, 111 N.E.2d 922. The issue presented in the declaratory judgment action, supra, was the constitutionality of R.C. 6111.13 and 6111.30. R.C. 6111.13 provides that ‘(t) he environmental protection agency shall exercise general supervision of the operation and maintenance of the public water supply and water-works systems throughout the state,’ and requires the fluoridation of supplied water of a public water system, if it does not contain a certain level of fluoride. The actual costs of equipment necessary for purposes of fluoridation would be reimbursed from funds available to the Environmental Protection Agency. R.C. 6111.30 provides for penalties to be imposed for failure to obey an order of the Director of Environmental Protection to perform an act required by R.C. 6111.12 to R.C. 6111.30. The Director is also required, by R.C. 6111.12, to inquire into and investigate complaints that a public water supply does not contain the level of fluoride required by R.C. 6111.13. The provisions of those statutes impose clear duties upon the Director to investigate and enforce compliance with the fluoridation requirement of R.C. 6111.13. The General Assembly has delegated to him the authority to monitor the level of fluorides in public water systems, reimburse the costs of equipment, adopt and enforce rules and regulations, hold hearings, and issue orders requiring compliance with the fluoridation directives of R.C. 6111.13. The effect of holding R.C. 6111.13 and R.C. 6111.30 unconstitutional would be to remove all those duties and obligations from the Director. In particular, it would render ineffective any order of the Director in pursuance of his statutorily mandated duty to enforce R.C. 6111.13. It is apparent that the issue in the declaratory judgment action, supra, affected both the city and the Director. That action's practical effect was to interpose a bar to any proceeding by the Director against the city. It is also apparent that, in the absence of the Director as a party, the judgment would not terminate the uncertainty or controversy, for the judgment would not prejudice the right of the Director to issue compliance orders or to perform his other duties. The anomalous result would be that the Director would retain the right and duty to order compliance with R.C. 6111.13, and that the object of that order would have the right and duty to disobey it. Properly, when declaratory relief is sought which involves the validity or construction of a statute and affects the powers and duties of public officers, such officers should be made parties to the action or proceeding in which the relief is sought.   Langer v. State (1939), 69 N.D. 129, 284 N.W. 238; Harvey Payne, Inc. v. Slate Co. (1961), 342 Mass. 368, 173 N.E.2d 285; Mobile v. Gulf Development Co. (1965), 277 Ala. 431, 171 So.2d 247; Aerated Products Co. v. Godfrey (1943), 263 App. Div. 685, 35 N.Y.S.2d 124, reversed on other grounds, 290 N.Y. 92, 48 N.E.2d 275. Joinder of such officers assures that the parties will be properly adverse, that the issues involved will be fully presented, that the uncertainty or controversy will be terminated, and that the public interest will be adequately protected without a multiplicity of suits. In Crotty, supra, the Director was an interested and necessary party to the proceeding and the failure to join him in the suit deprived the court of jurisdiction to render an enforceable declaratory judgment. The state also claims that the Court of Common Pleas of Hamilton County lacked jurisdiction because of R.C. 6111.27. That argument was rejected by the Court of Common Pleas, and that statute has since been repealed. Our holding that the court lacked jurisdiction because of failure to join a necessary party renders this issue moot. The constitutional issues raised in the declaratory judgment action in the Court of Common Pleas are not properly before us, not having been assigned as error in the Court of Appeals. See our decision in Canton v. Whitman, 44 Ohio St.2d 62, 337 N.E.2d 766, also rendered this day. For the foregoing reasons, the judgment of the Court of Appeals is affirmed. Judgment affirmed. WILLIAM O'NEILL, C. J., and HERBERT, WILLIAM B. BROWN and PAUL W. BROWN, JJ., concur. J. J. P. CORRIGAN and CELEBREZZE, JJ., dissent.

+/- City of Port Clinton Public Water Supply v. McAvoy

Ohio, Improper Procedure

• Plaintiff
  City of Port Clinton
• Defendant
  McAvoy
• State
  Ohio
• Other Parties
  -
• Case Tags
  - Improper Procedure
• Citation
  1980 WL 351576 (Ohio Ct. App. 1980)
• Year
  1980-00-00T00:00:00
• Court Name
  Ohio Court of Appeals
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  PER CURIAM. This cause came on to be heard upon the record in the trial court. Each assignment of error was reviewed by the court and upon review the following disposition made: Plaintiff-appellant, city of Port Clinton, appeals to this court, pursuant to R.C. 3745.06, from the decision of the Environmental Board of Review issued on May 12, 1980, which affirmed the action of James McAvoy, Director of Environmental Protection, filed and issued January 19, 1978, and on October 24, 1979, which found the city of Port Clinton in violation of R.C. 6111.13 for not fluoridating its public water supply as required by R.C. 6111.13, and ordered the city to achieve full compliance with R.C. 6119.20 requiring fluoridation. On January 19, 1978, the Director of the Ohio Environmental Protection Agency issued findings regarding the alleged public water system of the city of Port Clinton after conducting an investigation of the city's alleged water supply and gave notice of a hearing to be held pursuant to former R.C. 6111.18 on the charge that the city did not meet the required fluoride content as required by R.C. 6111.13. The adjudication hearing was scheduled for April 3, 1978. On April 3, 1978, the adjudication hearing was continued to June 18, 1979, at which time the adjudication hearing was held. At this hearing the director presented three witnesses. The city produced none. On the basis of the record produced at the adjudication hearing the hearing examiner issued a Report and Recommendation on August 23, 1979, recommending that the city should be ordered to fluoridate its public water system to levels prescribed in the Revised Code. On October 24, 1979, the director issued findings of fact, conclusions of law and order, which ordered the city to achieve full compliance on fluoridation within 45 days of journalization of the director's order. On November 15, 1979, a notice of appeal was filed from the director's final action with the Environmental Board of Review. The Board of Review summarily upheld the director's action. On May 12, 1980, the Board of Review issued its findings of fact and final order affirming the director's actions of October 24, 1979. Appeal of this final order to the Court of Appeals then followed. Under the first assignment of error plaintiff contends that defendant did not prove that the city of Port Clinton was owner or operator of a public water supply system which served more than 5,000 persons, and that the Environmental Board of Review erred in finding that the city did own or operate such a water supply system. Defendant Board's water expert, J. Franklyn Stoner, testified that he could not say who the owner or operator was of the water plant in Port Clinton. There is no other effort in the record to establish who owned or operated such water plant. Neither was there any evidence adduced that the water supply system served more than 5,000 persons. Therefore, the first assignment of error is well taken. Appellant's second assignment of error is as follows: “II. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN HOLDING THAT EVIDENCE NEED NOT BE EXCLUSIVELY AVAILABLE TO AND UNDER THE CONTROL OF AN OPPOSING PARTY FOR THE DIRECTOR TO LAWFULLY APPLY O.A.C. 3745-47-23(A)(3).” The director contends that the director was not required at the agency hearing to produce evidence that the water system was owned or operated by the city or that it served more than 5,000 persons, but was permitted to rely upon Ohio Administrative Code (O.A.C.) 3745-47-23(A)(3) which, in pertinent part, provides: “(3) Notwithstanding anything to the contrary in (A)(1) or (A)(2) above, there shall be a legal presumption in favor of facts asserted by a party that can be disproved by evidence available to and under the control of an opposing party. In order to rebut this presumption, the party having control of such evidence must show that the nonexistence of the presumed fact is more likely than the existence of such fact * * *.” (Emphasis added). This O.A.C. section is inapplicable to the case sub judice because evidence as to ownership and operation of the water system in Port Clinton and the number of persons served was as much available and under the control of the director as it was under the control of the city. This administrative code section refers to a situation where the facts are in the exclusive control of the opposing party against whom the presumption is asserted, namely, the city of Port Clinton. Therefore, the second assignment of error is well taken. Appellant's third and fourth assignments of error, considered together, attack the order of the director and Board as invalid for procedural irregularities and as being unsupported by the evidence in the following language: “III. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN ITS FINDING THAT THE HEARING HELD IN FRONT OF THE HEARING EXAMINER WAS PROPERLY CONDUCTED IN ACCORDANCE WITH THE OHIO REVISED CODE AND THE OHIO ADMINISTRATIVE CODE. “IV. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN ITS FINDING THAT THE NATURAL FLUORIDE CONTENT OF THE SUPPLIED WATER FROM THE PUBLIC WATER SUPPLY SYSTEM OWNED OR OPERATED BY THE CITY OF PORT CLINTON IS LESS THAN 0.8 MILLIGRAMS PER LITER IN CONTRAVENTION OF SECTION 6109.20, OHIO REVISED CODE.” Appellant observes that “adjudication hearing” is defined in O.A.C. 3745-47-03 as follows: “(c) ‘Adjudication hearing’ shall mean an adversary proceeding at which are determined rights, duties, privileges, benefits or legal relationships of a specified person.” Appellant argues that at an adjudication hearing the party (the director) asserting the affirmative of an issue must proceed first, and that until such party substantiates his affirmative position the other party has no duty to present its evidence. Florida Dept. of Health Rehabilitative Services v. Career Service Commission (1974), 289 So.2d 412. In the case sub judice the director did not substantiate his initial findings issued in this action on January 18, 1978. After conducting an investigation in 1977 of water supplied to three places in Port Clinton, the director offered evidence only that three water samples were taken within the city of Port Clinton. The expert witness, J. Franklyn Stoner, testified that he took the samples on November 17, 1977, and filled out lab sheets for analysis of the samples at the Ohio Department of Health laboratory. He also testified that he delivered the samples to the laboratory for testing. No further testimony regarding these samples or the results of their analysis was given. This testimony pertained to exhibits 1, 2 and 3. The next evidence offered by the director was testimony of witnesses regarding samples taken on May 8, 1979, and tested on May 10, 1979. The director contends that this evidence may be used to substantiate his findings issued on January 19, 1978. With this contention we disagree. While subsequent testing may supplement evidence of a prior violation, it may not be used as a sole basis to prove a prior violation. The general rule of evidence is that a party is precluded from proving a certain state of affairs at a particular time by evidence that such condition existed at another time. Heldman v. Uniroyal, Inc. (1977), 53 Ohio App.2d 21, 371 N.E.2d 557; Renee v. Sanders (1956), 102 Ohio App. 21, 131 N.E.2d 846. The director must first substantiate his initial findings by evidence which caused him to issue such findings. At that point he may supplement his findings with additional evidence he has obtained. That was not done in the present case. At the adjudication hearing involving an evidentiary proceeding there was no reliable, probative and substantial evidence produced for the record to support the order of the Environmental Board of Review. Accordingly, the third and fourth assignments of error of the appellant are well taken. Appellant's fifth assignment of error is as follows: “V. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN ITS CONCLUSIONS OF LAW NUMBER 3, IN THAT SECTION 6109.14, OHIO REVISED CODE DOES NOT APPLY TO THIS PROCEEDING.” R.C. 6109.14 was not applicable to this action. It became effective on December 14, 1978, and the initial findings in this action were issued on January 19, 1978. The fifth assignment of error is well taken. Appellant's remaining assignments of error have not been briefed. They are, therefore, not well taken. App. R. 16(A)(4). The order of the Environmental Board of Review issued May 12, 1980, in case No. ERB79-111 which affirmed the director's action of October 24, 1979, issuing final findings of fact, conclusions of law and order to the city of Port Clinton is hereby reversed, vacated and set aside, at costs of appellee, and the agency proceedings dismissed. A mandate of this judgment shall issue to the Environmental Board of Review. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. See also Supp. R. 4, amended 1/1/80. Clifford F. Brown, John J. Connors, Jr., JJ., concur. Frank W. Wiley, J., dissents. WILEY, J. I dissent. WILEY, J. Appellant sets forth the following assignments of error in his brief: “I. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN ITS FINDING THAT THE CITY OF PORT CLINTON OWNS OR OPERATES A PUBLIC WATER SUPPLY SYSTEM WHICH SERVES MORE THAN 5,000 PERSONS. II. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN HOLDING THAT EVIDENCE NEED NOT BE EXCLUSIVELY AVAILABLE TO AND UNDER THE CONTROL OF AN OPPOSING PARTY FOR THE DIRECTOR TO LAWFULLY APPLY O.A.C. 3745-47-23(A)(3). III. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN ITS FINDING THAT THE HEARING HELD IN FRONT OF THE HEARING EXAMINER WAS PROPERLY CONDUCTED IN ACCORDANCE WITH THE OHIO REVISED CODE AND THE OHIO ADMINISTRATIVE CODE. IV. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN ITS FINDING THAT THE NATURAL FLUORIDE CONTENT OF THE SUPPLIED WATER FROM THE PUBLIC WATER SUPPLY SYSTEM OWNED OR OPERATED BY THE CITY OF PORT CLINTON IS LESS THAN 0.8 MILLIGRAMS PER LITER IN CONTRAVENTION OF SECTION 6109.20, OHIO REVISED CODE. V. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN ITS CONCLUSION OF LAW NUMBER 3, IN THAT SECTION 6109.14, OHIO REVISED CODE DOES NOT APPLY TO THIS PROCEEDING. VI. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN ITS FINDING THAT WHEN THE DIRECTOR ISSUES FINAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER THAT IT MUST BE BASED UPON THE ENTIRE RECORD PRODUCED AT AN ADJUDICATION HEARING, NOT JUST WHAT WAS AVAILABLE TO THE DIRECTOR BEFORE THE ISSUANCE OF THE INITIAL FINDINGS. VII. THE ENVIRONMENTAL BOARD OF REVIEW ERRED IN FINDING THAT ON REVIEWING THE RECORD IN THIS CASE THE TOTALITY OF THE EVIDENCE SHOWS THE DIRECTOR'S ACTION HAD A VALID FACTUAL FOUNDATION AND WAS ISSUED IN ACCORDANCE WITH LAW AND WAS THEREFORE BOTH REASONABLE AND LAWFUL. VII. (sic) THE ACTION BELOW WAS NOT CONDUCTED ACCORDING TO THE CONSTITUTIONAL PROVISIONS OF THE STATE OF OHIO AND THE CONSTITUTION OF THE UNITED STATES OF AMERICA.” Appellee has responded by stating that the issue on review is as follows: “Appellant does not deny the fact that it is not fluoridating its water nor does it challenge the statute under which the Director's fluoridation order was issued or the application of the statute to it. Rather, Appellant is, in virtually all of its Assignments of Error, attacking the manner in which the adjudication hearing at the Ohio EPA was conducted.”, and has set forth the following arguments which do not specifically address appellant's assignments of error: “I. SECTION 3745.06, OHIO REVISED CODE, LIMITS THE COURT OF APPEAL'S REVIEW OF FACTUAL DETERMINATIONS MADE BY THE ENVIRONMENTAL BOARD OF REVIEW TO THE SUBSTANTIAL EVIDENCE RULE. II. RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE SUPPORTS THE ENVIRONMENTAL BOARD OF REVIEW'S FINDING THAT THE CITY OF PORT CLINTON OWNS OR OPERATES A PUBLIC WATER SUPPLY SYSTEM WHICH SERVES MORE THAN 5,000 PERSONS AND SUPPLIES WATER WITH A FLUORIDE CONTENT LESS THAN 0.8 MILLIGRAMS PER LITER. A. The Ohio EPA met its burden of proof pursuant to OAC 3745-47-23(A)(2). B. An unrebutted presumption was raised pursuant to O.A.C. 3745-47-23(A)(3) that the city of Port Clinton owns or operates a public water supply system which serves more than 5,000 persons. C. The Ohio EPA can conduct adjudication hearings with rules of evidence not consistent with those rules used in a court. III. THE ENVIRONMENTAL BOARD OF REVIEW WAS CORRECT IN HOLDING THAT AFTER CONDUCTING AN ADJUDICATION HEARING UNDER SECTION 6109.14, O.R.C., THE DIRECTOR ISSUES FINAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER BASED UPON THE ENTIRE RECORD AT THE ADJUDICATION HEARING, NOT JUST UPON WHAT WAS AVAILABLE TO THE DIRECTOR BEFORE THE ISSUANCE OF THE INITIAL FINDINGS. IV. THE ORDER OF THE DIRECTOR WHICH IS THE SUBJECT OF THIS APPEAL WAS PROPERLY ISSUED PURSUANT TO SECTIONS 6109.14 AND 6109.15, OHIO REVISED CODE. V. THE ENVIRONMENTAL BOARD OF REVIEW WAS CORRECT IN FINDING THAT ON REVIEWING THE TOTALITY OF THE EVIDENCE IN THIS CASE THE DIRECTOR'S ACTION HAD A VALID FACTUAL FOUNDATION AND WAS ISSUED IN ACCORDANCE WITH LAW AND WAS THEREFORE BOTH REASONABLE AND LAWFUL. VI. THE ADJUDICATION HEARING HELD IN FRONT OF THE OHIO EPA HEARING EXAMINER, THE DIRECTOR'S ACTION AND THE HEARING IN FRONT OF ENVIRONMENTAL BOARD OF REVIEW WERE PROPERLY CONDUCTED IN ACCORDANCE WITH THE OHIO REVISED CODE, THE OHIO ADMINISTRATIVE CODE, THE CONSTITUTION OF OHIO AND THE CONSTITUTION OF THE UNITED STATES.” Appellant does not address his assignments of error directly, but instead raises three arguments. I will respond to these three arguments raised by the appellee along with the arguments of the attorney general raised in his brief. Regarding appellant's first argument, I find sufficient evidence in the record to support the finding of the hearing examiner, the Director of the Environmental Protection Agency and the Environmental Board of Review, that the city of Port Clinton operated a water system serving over 5000 persons. Testimony by Franklyn Stoner, an employee of the Office of Public Water Supply in charge of the fluoridation program, on page 60 of the transcript, raised the presumption that the water system of Port Clinton served about 12,000 persons. It is not essential to the appellee's case that the document providing this figure be introduced into evidence. This presumption could be regarded as true by the Environmental Board of Review under O.A.C. 3745-47-23(A)(3), unless the city of Port Clinton offered evidence to rebut it. The city of Port Clinton, however, failed to present any evidence at the adjudication hearing and lost its opportunity to rebut this presumption. I do not read O.A.C. 3745-47-23(A)(3) as narrowly as the majority; there is no requirement in O.A.C. 3745-47-23(A)(3) that the party seeking to rebut the legal presumption in favor of facts asserted by another party must have exclusive control of the evidence needed to rebut this presumption based upon the lack of such explicit language in this procedural rule. Deference should be given to the interpretation of O.A.C. 374547-23(A)(3) by the hearing examiner, the Director of E.P.A., and the Environmental Protection Board of Review, which did not require such exclusive control. See for example Ford Motor Credit Co. v. Milhollon (1980), 63 L. Ed. 22 at 31. The issue raised by the appellant in his second argument is the question of whether the action of the Director of the E.P.A., in ordering Port Clinton to fluoridate its water supply, was lawful and reasonable as required by R.C. 3745.05. The answer is yes, it was lawful and reasonable. Appellees met their burden of proving at the adjudicatory hearing that Port Clinton was not fluoridating its water supply in compliance with R.C. 6109.20, formerly R.C. 6111.13. The results of the first 3 tests conducted on November 18, 1977, were not the sole evidence offered by the attorney general to prove the city of Port Clinton was in violation of R.C. 6109.20. As is stated by the hearing examiner in her report: “It is apparent that Exhibits 1-3 are certainly relevant to the question of whether the City's water supply contains the required amount of fluoride. The exhibits can be viewed as having some probative value as regards the Agency's testing of the water supply of the City. As discussed above the exhibits were certainly identified in Mr. Stoner's testimony. Therefore, the Examiner concludes that the City's objection is without merit and admits Agency Exhibits 1-3 into evidence. However, even if Agency Exhibits 1-3 were not admitted into evidence or considered at all, the Agency still would have proven the City's violation of R.C. 6109.20. The Agency took three additional water samples from the City's water supply on May 8, 1979, and had these analyzed for fluoride at the Ohio Department of Health lab, as were the November 18, 1979, samples. (Tr. at 27, 42). Mr. Stoner filled out sample identification sheets for these samples in the same manner as described in the discussion of the November 18, 1979, samples (Exs. 4, 5 and 6). * * * “The results of the tests done on the May 8, 1979, samples show a flouride (sic) content of .21, .20 and .20 milligrams per liter of water. Obviously, this is less than the minimum amount of .8 milligrams per liter of water prescribed by R.C. 6109.20. Thus, the only reasonable conclusion which can be drawn is that the City is in violation of R.C. 6109.20.” The issue at the adjudication proceeding was whether the city of Port Clinton was in compliance with R.C. 6109.20. The hearing examiner, the Director of E.P.A. and the Environmental Review Board all found Port Clinton was in violation of this statutory section. My examination of the record discloses reliable, probative and substantial evidence to support these findings. Pursuant to R.C. 3745.06, the order complained of should be affirmed. Appellant's third argument is that R.C. 6109.14 is not applicable to this action because it was not in existence at the time this action was initiated. The recodification of R.C. 6111.16 and R.C. 6111.17 into R.C. 6109.14 and R.C. 6109.15 did not alter the procedures to be followed by the Director of the E.P.A. where he finds that a city is not fluoridating its water system. The record discloses that these procedures were followed; therefore, I would find argument III of the appellant to be totally without merit. Judge Frank W. Wiley, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

+/- Myers

Oregon, Petitions Initiatives & Re-votes

• Plaintiff
  Oregon Anti-Fluoridation Council
• Defendant
  Myers
• State
  Oregon
• Other Parties
  -
• Case Tags
  - Petitions Initiatives & Re-votes
• Citation
  554 P.2d 177 (Or. 1976)
• Year
  1976-00-00T00:00:00
• Court Name
  Supreme Court of Oregon
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  DENECKE, Chief Justice. This is one of several original proceedings to review orders of the Secretary of State deleting portions of arguments submitted for insertion in the voters' pamphlet. The argument in this particular proceeding is in support of an initiative measure which would prohibit adding fluoride to water systems. In another proceeding, Oregonians for Nuclear Safeguards v. Myers, Or., 554 P.2d 172, decided this date, we set out the procedures provided by statute and the scope of our review. Petitioner submitted the following argument to the Secretary of State: ‘The addition of fluoride or fluoride containing compounds to the State's water supplies should be of grave concern to every Oregonian. ‘Rep. James J. Delaney of New York, in a July 21, 1975 speech before Congress ‘recommended immediate suspension of all artificial fluoridation pending further investigation’. Rep. Delaney's deep concern on this issue was based on the report by two eminent scientists who found a definite fluoridation-cancer link in their research studies. ‘25,000 OR MORE EXCESS CANCER DEATHS OCCUR ANNUALLY IN U.S. CITIES SUBJECTED TO IMPOSED WATER FLUORIDATION-A DEATH EVERY 20 MINUTES! ‘There has been a posted $100,000.00 reward for the last twenty-five years to anyone who can prove scientifically that the addition of fluoride to the water at the rate of one part per million is absolutely safe, and no one has yet been able to claim the reward! ‘Fluoridation, thusly, Beside being a ‘killer’, means creation of another bureaucracy, government interference, Higher taxes, and higher water bills. ‘BE SMART! PROTECT YOUR HEALTH!! SAVE DOLLARS! ‘VOTE YES FOR BALLOT MEASURE #11.’ The Secretary of State held a hearing and deleted the underlined portions. Petitioner petitions to have this order of deletion reviewed. The petitioner offered no evidence at the hearing. Exhibits included in the petitioner's brief to this court will not be considered as they were not offered at the hearing. There was testimony by the opponents of the measure and proposed argument that the fluoridation of water does not cause cancer or cause death in any other form. There was also testimony that while fluoridation would raise water bills about $.17 per person per year, there would be no increase in taxes; rather, fluoridation would save taxpayers millions of dollar per year in decreased dental expense. We hold there is evidence supporting the Secretary of State's order. Affirmed.

+/- Crawford v. Pennsylvania Dept. of Health

Pennsylvania

• Plaintiff
  Crawford, et al.
• Defendant
  Pennsylvania Dept. of Health
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  -
• Citation
  338 A.2d 727 (Pa. Commw. Ct. 1975)
• Year
  1975-00-00T00:00:00
• Court Name
  Pennsylvania Commonwealth Court
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  MENCER, Judge. These cases are before us on Preliminary Objections filed by the defendants, the Pennsylvania Department of Health and the Pennsylvania Department of Environmental Resources, to a Complaint in Mandamus and to a Complaint in Equity filed by the plaintiffs on behalf of themselves and all other citizens of Pennsylvania who are not served by fluoridated water supply systems. The facts are not in dispute. Plaintiffs allege that dental decay is a wide-spread disease which can be easily prevented or retarded by the addition of fluoride compounds to the drinking water. At present, however, many public water works companies have refused to fluoridate their water supplies. To date, the Commonwealth of Pennsylvania, Department of Health and the Department of Environmental Resources, has not proposed any regulations which would require public water supply companies to initiate a fluoridation program. As a result, plaintiffs complain that they, and many other persons similarly situated, are required to live in communities where they cannot drink fluoridated water. Plaintiffs have brought their action in Mandamus requesting that the named departments, by their Secretaries, be ordered to alter the existing regulations governing the issuance of water works permits by adding a provision which will require fluoridation. Alternatively, they have filed a separate suit in Equity asking for an injunction to prevent the Commonwealth from authorizing any permit which does not include such a provision. In support of their position, plaintiffs argue that the Commonwealth has a statutory duty to protect the health of its citizens, and that the prevention of dental decay falls within the scope of this duty. Defendants have raised objections to the Complaints, by way of demurrer, to the effect that plaintiffs have failed to state a cause of action sufficient to obtain relief either in Mandamus or in Equity for the reason that plaintiffs have established no right to fluoridated water and becaue defendants are under no statutory duty to mandate flouridation. The chief statutory authority relied upon by the plaintiffs is Article XXI of The Administrative Code, Act of April 9, 1929, P.L. 177, s 2102(a), as amended, 71 P.S. s 532(a), which states: ‘The Department of Health shall have the power, and its duty shall be: (a) To protect the health of the people of this Commonwealth, and to determine and employ the most efficient and practical means for the prevention and suppression of disease;‘ Also relevant is Section 3 of the Water Supply Law, Act of April 22, 1905, P.L. 260, s 3, 35 P.S. s 713, which states in pertinent part: ‘No municipal corporation, private corporation, company, or individual shall construct waterworks for the supply of water to the public within the State, or extend the same, without a written permit, to be obtained from the Commissioner of Health If, in his judgment, the proposed source of supply appears to be not prejudicial to the public health.’ (Emphasis added.) 1 It should be noted that Article XIX-A of The Administrative Code, ss 1901-A(7) and 1918-A, added by the Act of December 3, 1970, P.L. 834, No. 275, 71 P.S. ss 510-1(7) and 510-18 (Supp.1974-75), transferred the powers and duties under the Water Supply Law, from the Department of Health to the Department of Environmental Resources. These provisions effectively remove any responsibility for determining the propriety of issuing water works permits from the Department of Health and transfer that responsibility to the Department of Environmental Resources. 2 3 4 “(M)andamus lies where there is a clear legal right in the plaintiff and a corresponding duty in the defendant, and the act requested is not discretionary but only ministerial, (but) . . . mandamus will not lie To control an official’s discretion or judgment where that official is vested with a discretionary power.” Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A.2d 738, 738-39 (1956). As stated by the Supreme Court in Dechert v. Commonwealth, 113 Pa. 229, 235, 6 A. 229, 231 (1886): ‘It is well settled that mandamus will lie to compel the performance by public officers of duties purely ministerial in their character, but it is equally well settled that as to all acts and duties necessarily calling for the exercise of judgment and discretion on their part, mandamus will not lie. Whilst the writ may perhaps be awarded to set the latter class of officers in motion, and to compel action upon the particular matters over which they may have jurisdiction, it will in no manner interfere with the exercise of that discretion nor control or dictate the judgment, or decision which shall be reached.’ 5 Can it be said, then, that the lack of fluoridated water state-wide is prejudicial to the health of the public so that the Secretary of Environmental Resources is under a duty to withhold permits from all water works installations which do not provide for fluoridation, and, furthermore, can it be said that plaintiffs have a clear legal right to the requested relief? We think not in both instances. 6 7 Without defining or otherwise considering whether the absence of statewide fluoridation is ‘prejudicial to the public health,’ we think it clear that the legislature’s use of the words ‘in his judgment’ in Section 3 of the Water Supply Law clearly indicates that the Secretary’s decision is entirely within his discretion. Therfore, this action in Mandamus seeking alteration of the existing regulations governing the issuance of water works permits is clearly inappropriate. 8 Nor do we think it appropriate to enjoin the Secretary of Environmental Resources from authorizing any permit which does not include a provision requiring fluoridation. It is axiomatic that for the plaintiffs to have a clear legal right to such relief there must be a corresponding legal duty on the part of the Secretary to authorize permits. Since the Secretary’s decision is discretionary, he has no duty to authorize such permits, and there cannot be a corresponding right to either force him to authorize a permit or to prevent him from doing so. Without such a right, plaintiffs cannot and have not stated a valid cause of action sufficient to support Equity jurisdiction. 9 Even if it could be concluded that the Department of Health has certain general residual obligations under Section 2102(a) of The Administrative Code, 71 P.S. s 532(a), we feel constrained to agree with the Commonwealth that the general language of that section necessarily gives the Department of Health the discretion to determine for itself not only the circumstances under which such protection is needed but also the means which will most efficiently and practically prevent and suppress the disease of tooth decay. In essence, we are unwilling to compel the Secretary of either department to affirmatively exercise his discretion for the purpose of determining that dental decay is a wide-spread and significant disease which must be dealt with by introducing fluoridation on a state-wide level. 10 Although we consider the Commonwealth position (that it will not require municipal water works to Initiate a program of fluoridation but that it will require them to Continue fluoridation procedures once they have been established) as arbitrary, we are reluctant to substitute judicial discretion for administrative discretion. See Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 572-73, 109 A.2d 331, 334-35 (1954). Therefore, for the above reasons, we make the following ORDER Now, this 6th day of May, 1975, the defendants’ preliminary objections in each of the above captioned cases are sustained and the plaintiffs’ complaint in each case is dismissed.

+/- Ditzler v. City of Lebanon

Pennsylvania

• Plaintiff
  Ditzler
• Defendant
  City of Lebanon
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  -
• Citation
  370 A.2d 441 (Pa. Commw. Ct. 1977)
• Year
  1977-00-00T00:00:00
• Court Name
  Commonwealth Court of Pennsylvania
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  WILKINSON, Judge. Appellants appeal the order of the Lebanon County Court of Common Pleas requiring them to continue the fluoridation of the public water system under their control pending the final disposition of all allowable appeals. We affirm. Appellants were informed by the Department of Environmental Resources (DER) in September 1973 that a request to discontinue fluoridation of the public water system had been denied. In February 1974, a resolution for such discontinuation within 90 days was adopted by the city council. On March 22, 1974, appellees sought to enjoin appellants from interfering with the fluoridation program and a temporary injunction was granted on that date. On March 27, 1974, counsel for appellants, appellees and the DER agreed to a stipulation that allowed the appellant city to intervene in an appeal then pending before the Environmental Hearing Board (EHB) from the adverse ruling of the DER. In return, the city agreed not to discontinue fluoridation pending ‘the final disposition of all allowable appeals provided by the Administrative Code^FN1 and the Appellate Court Jurisdiction Act^FN2 or otherwise.’ The action in the court below was discontinued upon the allowance of the city to intervene in the appeal before the EHB. FN1. The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, As amended, 71 P.S. s 51et seq. FN2. The Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, As amended, 17 P.S. s 211.101 et seq. In January 1975, the EHB upheld the DER and refused to permit the city to discontinue fluoridation. That order was reversed by this Court on December 2, 1975 in Department of Environmental Resources v. City of Lebanon, 22 Pa.Cmwlth. 132, 348 A.2d 166 (1975). Appellees filed an appeal to the Supreme Court which was granted and is still pending. On August 20, 1975, the tank which held the fluoride split and released all of its contents. Although there has been no contention nor evidence that any deliberate or intentional action caused the split, appellants have not fluoridated the water since that date. In November 1975, appellees brought an action for specific performance in the Lebanon County Court of Common Pleas, alleging that the stipulation of March 27, 1974 obligated appellants to reintroduce fluoridation. The court upheld appellees' claim and ordered fluoridation. The court stated: ‘Plainly and simply put the City of Lebanon agreed to continue the fluoridation of its public water supply system until all allowable appeals are terminated. This event has yet to occur. The City may not take advantage of the unfortunate rupture of its fluoride holding tank to avoid its legal promise and obligation. As we said in the beginning, this controversy is not about fluoridation of water but about an agreement.’ This appeal followed. Appellants' first argument is that the court below lacked jurisdiction to issue its order. They contend that jurisdiction over subject matter and parties was transferred to the EHB by the stipulation of March 27, 1974, and therefore any request for equitable relief should have been brought before this Court. We disagree. The stipulation itself bound appellants not to discontinue fluoridation ‘pending the final disposition of all allowable appeals . . ..’ While this Court has exclusive jurisdiction over appeals from the EHB, the common pleas court is not deprived of its jurisdiction to order compliance with a prior agreement expressly enforcible during the pendency of appeals. ‘A compromise or settlement of litigation is always referable to the action or proceeding in the court where the compromise was effected; it is through that court the carrying out of the agreement should thereafter be controlled.’ Melnick v. Binenstock, 318 Pa. 533, 536, 179 A. 77, 78 (1935). Appellants contend, however, that even if the common pleas court had jurisdiction to issue its order, such order was contrary to the decision of this Court in Department of Environmental Resources v. City of Lebanon, supra, where we reversed the EHB and directed it to permit appellants to discontinue fluoridation. Again, we must disagree. That case did not consider the stipulation between the parties and decided only whether DER had properly exercised its discretion in refusing to allow the discontinuance of fluoridation. Our decision on that point did not nullify the effect of the stipulation or the order of the common pleas court pursuant thereto. Since an appeal from our decision is now pending before the Supreme Court, the order of the common pleas court continues in force and must remain so until the final disposition of all allowable appeals. Accordingly, we will enter the following ORDER NOW, March 3, 1977, the order of the Lebanon County Court of Common Pleas at No. 34 Equity Docket 1975, dated February 13, 1976, is hereby affirmed.

+/- Ditzler v. City of Lebanon

Ohio

• Plaintiff
  Ditzler
• Defendant
  City of Lebanon
• State
  Ohio
• Other Parties
  -
• Case Tags
  -
• Citation
  1980 WL 351576 (Ohio Ct. App. 1980)
• Year
  1980-00-00T00:00:00
• Court Name
  Ohio Court of Appeals
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  WILKINSON, Judge. Appellants appeal the order of the Lebanon County Court of Common Pleas requiring them to continue the fluoridation of the public water system under their control pending the final disposition of all allowable appeals. We affirm. Appellants were informed by the Department of Environmental Resources (DER) in September 1973 that a request to discontinue fluoridation of the public water system had been denied. In February 1974, a resolution for such discontinuation within 90 days was adopted by the city council. On March 22, 1974, appellees sought to enjoin appellants from interfering with the fluoridation program and a temporary injunction was granted on that date. On March 27, 1974, counsel for appellants, appellees and the DER agreed to a stipulation that allowed the appellant city to intervene in an appeal then pending before the Environmental Hearing Board (EHB) from the adverse ruling of the DER. In return, the city agreed not to discontinue fluoridation pending ‘the final disposition of all allowable appeals provided by the Administrative Code^FN1 and the Appellate Court Jurisdiction Act^FN2 or otherwise.’ The action in the court below was discontinued upon the allowance of the city to intervene in the appeal before the EHB. FN1. The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, As amended, 71 P.S. s 51 et seq. FN2. The Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, As amended, 17 P.S. s 211.101 et seq. In January 1975, the EHB upheld the DER and refused to permit the city to discontinue fluoridation. That order was reversed by this Court on December 2, 1975 in Department of Environmental Resources v. City of Lebanon, 22 Pa.Cmwlth. 132, 348 A.2d 166 (1975). Appellees filed an appeal to the Supreme Court which was granted and is still pending. On August 20, 1975, the tank which held the fluoride split and released all of its contents. Although there has been no contention nor evidence that any deliberate or intentional action caused the split, appellants have not fluoridated the water since that date. In November 1975, appellees brought an action for specific performance in the Lebanon County Court of Common Pleas, alleging that the stipulation of March 27, 1974 obligated appellants to reintroduce fluoridation. The court upheld appellees' claim and ordered fluoridation. The court stated: ‘Plainly and simply put the City of Lebanon agreed to continue the fluoridation of its public water supply system until all allowable appeals are terminated. This event has yet to occur. The City may not take advantage of the unfortunate rupture of its fluoride holding tank to avoid its legal promise and obligation. As we said in the beginning, this controversy is not about fluoridation of water but about an agreement.’ This appeal followed. Appellants' first argument is that the court below lacked jurisdiction to issue its order. They contend that jurisdiction over subject matter and parties was transferred to the EHB by the stipulation of March 27, 1974, and therefore any request for equitable relief should have been brought before this Court. We disagree. The stipulation itself bound appellants not to discontinue fluoridation ‘pending the final disposition of all allowable appeals . . ..’ While this Court has exclusive jurisdiction over appeals from the EHB, the common pleas court is not deprived of its jurisdiction to order compliance with a prior agreement expressly enforcible during the pendency of appeals. ‘A compromise or settlement of litigation is always referable to the action or proceeding in the court where the compromise was effected; it is through that court the carrying out of the agreement should thereafter be controlled.’ Melnick v. Binenstock, 318 Pa. 533, 536, 179 A. 77, 78 (1935). Appellants contend, however, that even if the common pleas court had jurisdiction to issue its order, such order was contrary to the decision of this Court in Department of Environmental Resources v. City of Lebanon, supra, where we reversed the EHB and directed it to permit appellants to discontinue fluoridation. Again, we must disagree. That case did not consider the stipulation between the parties and decided only whether DER had properly exercised its discretion in refusing to allow the discontinuance of fluoridation. Our decision on that point did not nullify the effect of the stipulation or the order of the common pleas court pursuant thereto. Since an appeal from our decision is now pending before the Supreme Court, the order of the common pleas court continues in force and must remain so until the final disposition of all allowable appeals. Accordingly, we will enter the following ORDER NOW, March 3, 1977, the order of the Lebanon County Court of Common Pleas at No. 34 Equity Docket 1975, dated February 13, 1976, is hereby affirmed.

+/- Charleston Committee for Safe Water v. Commissioners of Public Works

South Carolina

• Plaintiff
  Charleston Committee for Safe Water
• Defendant
  Commissioners of Public Works
• State
  South Carolina
• Other Parties
  -
• Case Tags
  -
• Citation
  286 S.C. 10, 331 S.E.2d 371 (S.C. Ct. App. 1985)
• Year
  1985-00-00T00:00:00
• Court Name
  South Carolina Court of Appeals
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  GARDNER, Judge: The Charleston Committee for Safe Water (the Committee) filed this suit to enjoin as a nuisance the proposed fluoridation of the water supply of the City of Charleston. The case was referred to a master who refused to issue an injunction. By consent of the parties, this is a direct appeal from the master's order. We affirm. The sole issue on appeal is whether the findings of the master are supported by the record. No issue of law is involved. To enjoin an anticipated nuisance, it must appear that a nuisance will inevitably result from the act or thing sought to be enjoined. Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628 (1962). The inevitability required by this rule is the crux of this case. The appealed order, with reference to the credibility of the witnesses, noted that the witnesses who appeared for the Committee were ardent antifluoridationists, whose views, though sincerely held, were inconsonant with the medical and scientific opinion of the great majority of medical and scientific experts in this country. As an example, the Committee contends that fluoride added to water acts as a carcinogen (a cancer inducing agent). Dr. Yiamouyiannis, a witness for the Committee, testified that fluoride was a carcinogen; however, the testimony of respected scientists from the Center of Disease Control in Atlanta, Georgia, and the Laboratory of Developmental Biology and Anomalis at the National Institute of Dental Research contradicted this testimony. Additionally, documentary evidence was introduced which indicated that the National Cancer Institute saw no danger from water fluoridation. The record of this case is volumnious. This court has examined it thoroughly and held the master's order is fully supported by the record and correct in every respect. The burden of proof required by Strong v. Winn-Dixie Stores, Inc., supra, was not met by the Committee. The order of the master is affirmed. AFFIRMED. CURETON and GOOLSBY, JJ., concur

+/- Genkinger v. City of New Castle Water Co.

Pennsylvania

• Plaintiff
  Genkinger
• Defendant
  City of New Castle Water Co.
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  -
• Citation
  5 Pa. D. & C.2d 86, 1956 WL 6453 (Pa. Commw. Ct. 1955)
• Year
  1955-00-00T00:00:00
• Court Name
  Pennsylvania Commonwealth Court
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  BRAHAM, P. J. This case comes before the court en banc on exceptions to an adjudication refusing to enjoin defendants from treating the water supply of the City of New Castle and surrounding municipalities with compounds of fluorine. Plaintiffs have filed some 26 exceptions to the adjudication, but their main contention, raised by their 20th exception, is that it was ultra vires for the water company to treat the water supply with fluorine. It is axiomatic that a corporation being a creature of the State has no powers except those conferred upon it by the legislature: Bangor Electric Company's Petition 295 Pa. 228; Citizens Electric Illuminating Co. v. Lackawanna and Wyoming Valley Railroad Co., 255 Pa. 176. Generally it is only the State which has the right to proceed against a corporation for violation of the powers granted by its charter or for usurpation of powers not granted: 13 Am. Jur. §1147, Corporations, page 1067. The private citizen with only the right of every other citizen has no right to take legal action against a corporation on the ground that it acts are ultra vires; the Attorney General is ordinarily the one to act. In this State, however, the Act of June 19, 1871, P. L. 1360, 12 PS §1315, allows suit by private persons. The pertinent language is as follows: “In all proceedings in courts of law or equity of this commonwealth, in which it is alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court in which such proceedings are had, to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights, or to the rights and franchises of other corporations, results, and if such rights or franchises have not been conferred upon such corporation, such courts, if exercising equitable power, shall, by injunction, at suit of the private parties or other corporations, restrain such injurious acts; and if the proceedings be at law for damages, it shall be lawful therein to recover damages for such injury as in other cases.” Plaintiffs have relied upon the contention that the acts of the water company were ultra vires and defendants have constantly countered with the contention that only the Commonwealth has the right to raise the question. The problem now appears in a different light. The trial judge allowed plaintiffs to challenge the legality of the procedure because of their contention that their lives and health were in danger because of the treated water. Now the court has found that no such danger exists. Does the court have the right or is it under a duty to enjoin the treating of the water with fluorine, not because the treated water is dangerous but because the conduct of the water company is alleged to be ultra vires. The Act of 1871 has been given a very limited construction. In Becker v. The Lebanon and Myerstown Street Railway Co., 188 Pa. 484, 496, the court ruled that notwithstanding the use of the word “shall” in the act, the real meaning is “may”. The language of Justice Mitchell will make the point more clear: “But this act, if it does anything more than declare the previous law, was intended to reinforce and make clearer the power of the courts to inquire into the rights and franchises of corporations in suits by private individuals, and perhaps in some degree to extend the class of cases in which such inquiry is open to suitors without the intervention of the commonwealth. It was not intended to do away with or change the general principles on which equitable relief is administered. Notwithstanding, therefore, the use of the imperative “shall', the injunction is not to be granted unless a proper case for injunction be made out, in accordance with the principles and practice of equity. The word ‘shall’ when used by the legislature to a court is usually a grant of authority and means ‘may’, and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of power.” The later cases follow the same guarded line. In Gring et al. v. Sinking Spring Water Co., 270 Pa. 232, Chief Justice von Moschzisker was at some pains to point out that the Act of 1871 is of “limited scope”, “... it does not give general jurisdiction to grant relief wherever private rights are injured or invaded by a corporation, but simply affords individuals the right to complain, and endows the courts with power to inquire and restrain”, ... “the statute does not clothe the courts ... with the commonwealth's general powers of inquiry”, ... “we have held that, notwithstanding the use of the imperative “shall' in the statute, an injunction will not be granted thereunder, unless a proper case is made out in ‘accordance with the principles of the practice of equity’.'D' To the same effect is Citizens Electric Co. v. Susquehanna Boom Co. et al., 270 Pa. 517, where defendant, Boom Company, although apparently exceeding its franchise by flooding properties, was not enjoined because this action was not required by general equitable principles. The trial judge has found that the Department of Health of the Commonwealth and the water company are merely employing the latest and most approved methods of combating dental caries and that no real harm to plaintiffs has ensued or is threatened. In this situation the law does not favor the employment of the power of injunction, one of the most drastic of equitable remedies: Gillespie v. American Zinc & Chemical Co., 247 Pa. 222; Mint Realty Co. v. Wanamaker, 231 Pa. 277; Berkey v. Berwind-White Coal Mining Co., 220 Pa. 65; Andel v. Duquesne Street Railway Co., 219 Pa. 635; Rhodes et al. v. Dunbar et al., 57 Pa. 274; Barget v. Drake, 52 Pa. Superior Ct. 647. The rule that the Act of 1871 authorizes the court to make an inquiry to determine whether plaintiffs have suffered actual damage but, lacking such damage, does not authorize the court to proceed and decide those matters of general concern with which the Attorney General is presumed to be particularly aware, applies with great force in this case. The action of the Department of Health and of the water company has been taken in the exercise of the police power. A large area of governmental policy is involved. If the power of the corporation to carry out the directions of the health department is to be challenged as ultra vires it should be at the suit of the Attorney General. The bulk of plaintiff's exceptions, however, go to the validity of the findings of the trial judge that fluoridation of the drinking water is not a menace to the health of plaintiffs and of the public generally but a sound and practicable therapeutic measure. This is supported by the great weight of the evidence and we have no disposition to change our conclusion. To be sure there are scientists who believe further study should be made before wholesale fluoridation of the public drinking water is undertaken. The difficulty with plaintiffs is that they insist the court adopt the unfavorable opinions although they are the minority opinions. Plaintiffs further contend that the court should have admitted the report of the congressional committee on fluoridation of water and some articles unfavorable to fluoridation generally instead of for the special purpose of showing the state of mind of plaintiffs. This evidence was not technically competent. Defendants had a right to confront the witnesses and to cross-examine them. The principle which plaintiffs seek to invoke is the exception to the hearsay rule for learned treatises: 6 Wigmore on Evidence (3rd) 2 par. 1690 et seq. Pennsylvania allows an exception for ancient maps and documents and to some extent for historical and geographical maps relating to public matters and remote transactions: 1 Henry on Pennsylvania Evidence (4th Ed.) 358 par. 354. But even this is received in a very guarded fashion: Spalding v. Hedges, 2 Pa. 240; Laidley v. Rowe, 275 Pa. 389, 394; Hostetter v. Commonwealth, 367 Pa. 603. “Learned treatises” as a subject of the law of evidence is akin to “judicial notice”. In the Uniform Judicial Notice of Foreign Law Act of May 4, 1939, P. L. 42, 28 PS §292, the court is authorized to inform itself of the law of a foreign state by consulting all manner of authorities. The doctrine of judicial notice allows a court also to take judicial notice of unquestioned facts of a wide variety: 9 Wigmore on Evidence 571, §2580; 1 Henry on Pennsylvania Evidence, 500, par. 501. But nowhere does the doctrine of learned treatises or judicial notice do more than to allow information to be given to a court regarding facts which are generally accepted. In the case at bar plaintiffs, in order to prove their point, desired to use the opinions expressed by learned men in a congressional hearing. The opinions expressed were partisan opinions. They were the type of opinions which need to be tested by confrontation. In no sense were they a statement of unquestioned facts. Plaintiff's feeling that the court should have paid more attention to the unfavorable aspects of the fluoridation program is understandable but it overlooks the most salient point in the case. The Secretary of Health investigated the program of fluoridation, recommended it, and licensed the water company to employ it. A decent respect for the decisions of this high administrative officer requires that we do not interfere except in a clear case. This is not such a case. Nor is it necessary to allude specifically to the exceptions relating to the court's failure to find certain facts as requested by plaintiffs. The requests have served their purposes by calling the court's attention to the subjects. The court's findings will be found to have comprehended plaintiffs' contentions. The court is no longer obliged to answer specifically each request: Pennsylvania Rule of Civil Procedure 1516. To do so would unnecessarily prolong this opinion. Entertaining these views we make the following Order Now, July 26, 1955, the several exceptions of plaintiffs are each severally overruled and refused and the final decree is entered as follows: Now, July 26, 1955, plaintiffs' petition for an injunction is refused and the action is dismissed. The costs shall be paid one half by the City of New Castle Water Company and one half by the Department of Health of the Commonwealth of Pennsylvania.

+/- Pennsylvania v. Williamsport Municipal Water Authority

Pennsylvania, Injunction

• Plaintiff
  Pennsylvania
• Defendant
  Williamsport Municipal Water Authority
• State
  Pennsylvania
• Other Parties
  -
• Case Tags
  - Injunction
• Citation

  56 Pa. D. & C.2d 791, 1972 WL 15920 (Pa. Ct. Common Pls. 1972)

• Year
  1972-01-01T00:00:00
• Court Name
  Pennsylvania Court of Common Pleas
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  WOOD, J. This case comes before the court on a complaint in equity by plaintiffs who seek to have made permanent a preliminary injunction restraining defendant, Williamsport Water Authority, from discontinuing fluoridation of the municipal water supply. Upon the basis of voluminous testimony and extensive other evidence, we make the following: FINDINGS OF FACT (1) The Williamsport Municipal Water Authority (hereinafter “Authority”) was organized on May 23, 1946, by the City of Williamsport under the Municipality Authorities Act of May 2, 1945, P. L. 382, sec. 1, et seq., 53 PS §301, et seq., as amended. (2) The Authority supplies water to the City of Williamsport, the Borough of South Williamsport, the Borough of Duboistown, Loyalsock Township and Old Lycoming Township, all in this county. (3) On August 11, 1966, the City of Williamsport (hereinafter “city”) adopted an ordinance, no. 4092, authorizing and directing the introduction of fluorines or related compounds into the water supply furnished by the Authority. (4) On July 20, 1966, the Authority resolved by unanimous vote to seek a permit from the Pennsylvania Department of Health (hereinafter “department”) to undertake fluoridation of the public water supply “in the interest of the health” of its consumers and “particularly for the purpose of preventing the disease of dental caries.” (5) On August 23, 1966, the secretary of the department approved the fluoridation plan of the Authority and issued a permit. Fluoridation began in December of 1966 and is continuing pursuant to the department permit. (6) In January of 1968, the city council passed an ordinance (no. 4214) ““absolutely” repealing the aforesaid ordinance of August 11, 1966, relating to the introduction of compounds of fluorine into the water supply. (7) On September 23, 1970, the Authority, by a 4-3 vote, resolved to discontinue the fluoridation of the water supply. No hearing, debate or discussion was permitted before the question was submitted to a vote. (8) The department and its secretary are charged by law with the duty and have the power “to protect the health of the people of the State, and to determine and employ the most efficient and practical means for the prevention and suppression of disease”: Act of April 9, 1929, P. L. 177, art. XXI, sec. 2102(a), as amended, 71 PS §532(a); Act of April 27, 1905, P. L. 312, sec. 8, 71 PS §1403. (9) The department has the responsibility to promulgate rules and regulations relating to the exercise of its powers: Act of April 9, 1929, P. L. 177, art. XXI, sec. 2102, as amended, 71 PS §532(g). (10) The department has adopted a policy endorsing and recommending adjustment of the fluorine concentration of public water supplies in the Commonwealth so that the concentration is 1.0 to 1.2 parts per million, and has established procedures for obtaining department approval and permission to make such adjustment. This policy has been endorsed by numerous organizations concerned with promoting the health of the public and has been approved by the United States Public Health Service. (11) Controlled fluoridation of municipal water supplies is a disease preventative process which benefits public health by preventing and suppressing the disease of dental caries. (12) Fluoridation of public water supplies is a practical and efficient means for the prevention and suppression of the disease of dental caries among members of the public, and is superior to any demonstrated method of providing compounds of fluorine to the general public for the prevention and suppression of dental caries. (13) If fluoridation of the subject municipal water supply is discontinued, there will be immediate and continuing irreparable injury to the health of the public, especially to that of children. (14) The regulations of the department relating to public water supplies provide that “no treatment process or protective measure shall be added to, altered or discontinued without securing written approval from the Department”: Rules and Regulations of Commonwealth of Pennsylvania, Department of Health, Chapter 4, art. 433, Regulations for Public Water Supply, sec. 5. (15) The authority neither sought written approval to discontinue fluoridation nor notified the department it proposed to do so. DISCUSSION Plaintiffs in this action are the Commonwealth of Pennsylvania, specifically the Department of Health, and seven private citizens who are residents of the various municipalities and townships served by the Williamsport Municipal Water Authority, and who are consumers of the water supplied by it. They seek to enjoin the proposed discontinuance of a program of controlled fluoridation of the public water supply begun by the Authority in December of 1966. Both the Authority and the city have voted to discontinue the fluoridation process. Generally, an authority created under the provisions of the Municipality Authorities Act is vested with, and may exercise only such powers as are prescribed by statute: White Oak Borough Authority Appeal, 372 Pa. 424, 427 (1953). The principal responsibility of the subject Authority is to provide potable water to the public. Neither its charter nor the Municipality Authorities Act, as amended, expressly or impliedly grants the authority either responsibility or power as to matters relating to public health. The city is vested with certain powers relating to the prevention and control of communicable and noncommunicable disease, Act of April 23, 1956, P. L. (1955) 1510, sec. 3a, 35 PS §521.3(a). However, it is obvious that the exercise of its powers may not extend beyond its territorial limits. Since the water system of the authority supplies several other municipalities in addition to the city through a single, integrated system, and since there is no practical way to separate the distribution to the city, its health powers cannot govern the instant situation. Furthermore, we doubt that the city could give the authority a mandate on any operational policy if the city and authority boundaries coincided, as the authority is considered an independent agency of the State, not as an agency of the city: Whitemarsh Township Authority v. Elevert, 413 Pa. 329, 332 (1964). In any event, it is clear that the ultimate authority over the health and welfare of the people of the Commonwealth is vested in the Department of Health. Section 2102 of The Administrative Code of April 9, 1929, P. L. 177, art. XXI, as amended, 71 PS §532(a), provides that the “Department of Health shall have the power, and its duty shall be: (a) To protect the health of the people of the Commonwealth, and to determine and employ the most efficient and practical means for the prevention and suppression of disease.” The department established and published a policy favoring and recommending adjustment of fluoridation levels in public water supplies to prevent development of caries. This put the matter of fluoridation in such a position that any supplier of water to the public can undertake fluoridation as an incident of its general operations. In point of fact, as of 1969 some 271 communities in the Commonwealth, including the cities of Pittsburgh and Philadelphia, had adopted the practice of controlled fluoridation,^FN* a practice which involves permission and control by the department. Thus, we do not consider that the Authority acted ultra vires in undertaking fluoridation. It was not confronted with the necessity of determining the merits of fluoridation. This determination had been made previously by the Commonwealth. The Authority simply resolved to adopt an approved and recommended water treatment procedure under the authority and supervision of the department. FN*. Fluoridation Census 1969, United States Department of Health, Education and Welfare. The evidence and testimony presented in this case, clearly and preponderantly support the contention of the Commonwealth that controlled fluoridation of the public water supply is beneficial to the public, particularly to children, in that it effectively reduces the rate of dental caries by 60 percent or greater. Where considered on its merits in other jurisdictions, fluoridation of public water supplies has been upheld almost uniformly. See Graybeal et al. 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 (La., 1966); Hall v. Bates 148 S. E. 2d 345 (S. C., 1966); Paduano et al. v. City of New York, 257 N. Y. S. 2d 531 (1965), affirmed 274 N. Y. S. 2d 158 (1966); Schuringa v. City of Chicago, 198 N. E. 2d 326 (Ill., 1964) and cases cited therein at page 329. See also the Pennsylvania case, Genkinger et al. v. City of New Castle Water Co., 14 Lawrence 25 (1955). Further, the evidence received at trial of the instant case clearly supports plaintiffs' contention that to discontinue fluoridation would cause both immediate and long-range irreparable harm in that the substantial disease preventative effects of fluoride would no longer be available to the general public in a practical and efficient means. Since the department has the specific statutory authority and duty to protect the public health, we consider that it was obliged to initiate reasonable measures to maintain the subject fluoridation program, and that the instant suit is such an appropriate measure. The relief sought by plaintiffs can be granted only if it is appropriate for the court to intervene. Generally, intervention is foreclosed, since there is a presumption that actions of public bodies are within the limits of their discretion: Downing v. Erie City School District et al., 360 Pa. 29, 34 (1948). However, where it is clear that action is arbitrary and capricious rather than a consequence of an exercise of discretion, restraint may be applied: Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446 (1960);Downing v. Erie City School District et al., supra. Here, the facts admit of no other conclusion than that the determination made by the Authority was influenced by considerations other than those consistent with the public interest. Where such is clearly the situation, restraint is justified: Lamb v. Redding, 234 Pa. 481 (1912). Possession of discretionary authority does not render a public body immune from judicial review:Price v. Philadelphia Parking Authority, 422 Pa. 317 (1966); Hyam v. Upper Montgomery Joint Authority, supra. There is positive evidence that the Authority gave no consideration to the merits of the matter in determining its course of action. This is inconsistent with the clear requirement that the conduct of public bodies “must be guided by good faith and sound judgment”: Price v. Philadelphia Parking Authority, supra at 329. Certainly, it is not an exercise of “good faith and sound judgment” to subject the health of the public to such a radical change without deliberate consideration of consequences. And this should obtain most firmly when the action proposed is counter to a pertinent policy enunciated by the Commonwealth Department of Health. We note also that the Authority has not complied with the regulations of the Department regarding the proposed discontinuance of fluoridation. These regulations, adopted pursuant to the Act of April 9, 1929, P. L. 177, art. XXI, sec. 2102(g), as amended, 71 PS §532(g), are practical and reasonably necessary to insure continued and adequate control by the Department over health and safety requirements for public water supplies. We are not insensitive to the aversion many people feel toward such measures as the use of a public water supply for a purpose as that here concerned. In our view, the problem of fluoridation is one for resolution by the legislature. However, in the present posture of our statutes and their administration by the executive branch of the government of the Commonwealth, we consider the instant matter is properly with this court for decision. ORDER And now, this April 7, 1972, the Williamsport Municipal Water Authority is permanently enjoined from discontinuing the fluoridation of the public water supply.

+/- 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
  -
• 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).

+/- Utahns for Better Dental Health-Davis, Inc. v. Davis County Clerk

Utah, Petitions Initiatives & Re-votes

• Plaintiff
  Utahns for Better Dental Health-Davis, Inc.
• Defendant
  Davis County Clerk
• State
  Utah
• Other Parties
  -
• Case Tags
  - Petitions Initiatives & Re-votes
• Citation
  175 P.3d 1036 (Utah 2007)
• Year
  2007-00-00T00:00:00
• Court Name
  Supreme Court of Utah
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  DURHAM, Chief Justice: ¶ 1 Utahns For Better Dental Health-Davis, Inc. (UFBDH) appeals from the district court's denial of an attorney fee award. We reverse the district court and award UFBDH attorney fees in this matter under the private attorney general doctrine. BACKGROUND ¶ 2 During the November 2000 general election, Davis County citizens voted on an opinion question that asked, “Should fluoride be added to the public water supplies within Davis County?” With fifty-two percent of voters favoring the addition of fluoride to water supplies and forty-eight percent opposing fluoridation, the addition of fluoride was approved. A group of Davis County citizens opposed to fluoridation subsequently sought to have a revote on the issue, circulating a petition among voters so that the identical opinion question from the 2000 general election would be on the ballot during the 2002 general election. Treating it as an initiative petition, the Davis County Clerk submitted the petition to the Davis County Commission, which took no action on it. Pursuant to Utah Code section 20A-7-501(3)(d),^FN1 the County Clerk stated that he would place the opinion question on the ballot during the 2002 general election. FN1. Utah Code section 20A-7-501(3)(d) (2003) provides, “If a county legislative body rejects a proposed county ordinance or amendment, or takes no action on it, the county clerk shall submit it to the voters of the county at the next regular general election.” ¶ 3 UFBDH, a nonprofit corporation organized to advocate for the public health benefits of fluoridation, questioned the constitutionality of placing the revote question on the 2002 ballot. It sought a declaratory judgment and injunctive relief against the Davis County Clerk and the Davis County Commission. The Commission was dismissed from the suit, but the district court found in favor of UFBDH and against the County Clerk. Recognizing the “ ‘sacrosanct and fundamental right’ ” ^FN2 to legislate directly through the initiative and referenda processes, the court held that the County Clerk's decision to place the petition “on the ballot violate[d] Utah constitutional and statutory law governing initiatives and referenda.” If classified as a referendum, the petition was untimely, and if viewed as an initiative, the petition was “an inappropriate mechanism to change the law of fluoridation within Davis County.” The court stated that allowing the petition to be placed on the ballot would be a “misuse [of] the people's direct legislative power” granted in article VI, section 1 of the Utah Constitution and would “thwart the will of a majority of Davis County voters.” The court noted that “the public ... ha[s] a real and substantial interest in ensuring that the laws of initiative and referenda are scrupulously followed and the election process adheres to the rule of law.” FN2. The trial court quoted Gallivan v. Walker, 2002 UT 89, ¶ 27, 54 P.3d 1069. ¶ 4 UFBDH motioned for an award of attorney fees pursuant to the private attorney general doctrine, which the district court denied. UFBDH appealed, and the court of appeals concluded that the district court had “failed to enter adequate subsidiary findings to justify its ultimate conclusion,” eliminating the court of appeals ability to meaningfully review the case. Utahns For Better Dental Health-Davis, Inc. v. Davis County Comm'n, 2005 UT App 347, ¶ 12, 121 P.3d 39. The court of appeals remanded for the entry of adequate findings and conclusions and a decision in accordance with those findings and conclusions. Id. ¶ 13. The district court did so, again denying an award of attorney fees. In explaining the denial, the district court relied on the lack of a substantial monetary benefit created by UFBDH's actions, a lack of a windfall to the Davis County Clerk, and the ability of UFBDH to pay its own attorney fees. It stated that the “mere interpretation of a contested petition” was not a strong or societally important public policy issue and that no “actual or concrete benefits” were created by this case. UFBDH appealed from that order. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002).^FN3 FN3. We determined to transfer the first appeal to the court of appeals, but to retain this second appeal. ANALYSIS ¶ 5 “In general, Utah follows the traditional American rule that attorney fees cannot be recovered by a prevailing party unless a statute or contract authorizes such an award.” Hughes v. Cafferty,2004 UT 22, ¶ 21, 89 P.3d 148. “However, in the absence of a statutory or contractual authorization, a court has inherent equitable power to award reasonable attorney fees when it deems it appropriate in the interests of justice and equity.” Stewart v. Utah Pub. Serv. Comm'n, 885 P.2d 759, 782 (Utah 1994). This court has recognized the private attorney general doctrine as one method for granting equitable awards of attorney fees. In Stewart, this court explicitly relied on the private attorney general doctrine to require an award of attorney fees when the “ ‘vindication of a strong or societally important public policy’ takes place and the necessary costs in doing so ‘transcend the individual plaintiff's pecuniary interest to an extent requiring subsidization.’ ” Id. at 783 (quoting Serrano v. Priest, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303, 1314 (1977)). We also commented on the “exceptional nature” of the Stewart case, and stated that “any future award of attorney fees under [the private attorney general doctrine would] take an equally extraordinary case.” Id. at 783 n. 19. I. DE NOVO REVIEW IS THE APPROPRIATE STANDARD OF REVIEW FOR ATTORNEY FEE AWARDS UNDER THE PRIVATE ATTORNEY GENERAL DOCTRINE ¶ 6 This case presents only the second opportunity we have had since Stewart to review a trial court's denial of attorney fees pursuant to the private attorney general doctrine. Our first opportunity was in Shipman v. Evans, 2004 UT 44, 100 P.3d 1151, where we, without analysis as to the unique nature of the private attorney general doctrine, simply imported the abuse of discretion standard from Hughes. InHughes, we considered equitable awards of attorney fees after Stewart. We were not, however, considering the private attorney general doctrine, but rather equitable awards of attorney fees in the context of a beneficiary suing a trustee and vindicating the rights of all other harmed beneficiaries.Hughes, 2004 UT 22, ¶ 22, 89 P.3d 148. In Shipman, we failed to acknowledge the unique policy implications associated with the private attorney general doctrine. Today we recognize that the highly deferential standard of review utilized for other equitable awards of attorney fees is unsuitable for private attorney general doctrine cases and conclude instead that de novo review should be applied.^FN4 FN4. An examination of a majority of the cases reviewing fees under the doctrine demonstrates that de novo review is in fact what appellate courts actually apply, even when they articulate deferential standards in this fairly unusual class of cases. See Maria P. v. Riles, 43 Cal.3d 1281, 240 Cal.Rptr. 872, 743 P.2d 932, 936-38 (1987) (engaging in an examination of the record to conclude that “[t]his is precisely the type of public interest lawsuit that the private attorney general doctrine ... was intended to foster”); Westside Cmty. For Indep. Living, Inc. v. Obledo,33 Cal.3d 348, 188 Cal.Rptr. 873, 657 P.2d 365, 368-69 (1983) (engaging in full record review to overturn trial court's decision to award fees); Baggett v. Gates, 32 Cal.3d 128, 185 Cal.Rptr. 232, 649 P.2d 874, 881-83 (1982) (overturning trial court's denial of attorney fees under the private attorney general doctrine after a review of the record); State v. Hagerman Water Right Owners, Inc. (In re SRBA Case No. 39576), 130 Idaho 718, 947 P.2d 391, 394-95, 396-99 (1997)(purporting to review for abuse of discretion, but appearing to treat each prong of the private attorney general test as a legal question in overturning an award of fees); Taggart v. Highway Bd., 115 Idaho 816, 771 P.2d 37, 39 (1988) (engaging in review of the record to overturn trial court's denial of attorney fees). In fact, the Oregon Supreme Court explicitly recognized that, although a trial court's decision to award attorney fees is discretionary, when a prevailing party seeks to vindicate “the rights of others as much as his own ... [the supreme court,] as a matter within its own discretion, may award or decline to award such fees.” Umrein v. Heimbigner, 53 Or.App. 871, 632 P.2d 1367, 1371-72 (1981) (exercising supreme court's own discretion in awarding attorney fees to plaintiffs suing to enforce “their constitutionally guaranteed power to initiate local legislation”). Even in this court's own cases, where we purport to review awards of attorney fees based on abuse of discretion, we often engage in a review of the record. SeeHughes, 2004 UT 22, ¶¶ 28, 30, 89 P.3d 148 (announcing the abuse of discretion standard of review for equitable awards of attorney fees yet conducting a review of the record to determine if such fees were appropriately awarded). ¶ 7 In Hughes, 2004 UT 22, ¶ 24 n. 2, 89 P.3d 148, our determination to apply the abuse of discretion standard of review to equitable awards of attorney fees was based largely upon our discussion in State v. Pena, 869 P.2d 932, 936 (Utah 1994), of the opportunities for trial courts to “assess the credibility of witnesses and to derive a sense of the proceedings as a whole, something an appellate court cannot hope to garner from a cold record.” Trial court determinations of attorney fee cases are generally multilayered,^FN5 and much of the trial court's work relies on its traditional capacity to evaluate witnesses' credibility, the weight of factual evidence, and the satisfaction by parties of their burdens of proof. Considerations like these, however, are not primarily implicated in cases involving the private attorney general doctrine. Part of the trial court's function in attorney fee deliberations depends on an understanding and proper interpretation of the applicable legal standard. Cf. City of Sacramento v. Drew,207 Cal.App.3d 1287, 255 Cal.Rptr. 704, 710 (1989) (considering whether the grounds given by the trial court in denying an attorney fee award were consistent with the legal principles, substantive law, and the policy and purpose behind the private attorney general doctrine). Appellate courts do not, for example, generally defer to a trial court's determination as to whether a party has prevailed within the meaning of a contract or a statute, or as to whether a particular dispute qualifies for coverage under an attorney fee provision. See, e.g., Still Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 8, 122 P.3d 556 (“Whether the trial court properly interpreted the legal prerequisites for awarding attorney fees under [the statute] is a question of law that we review for correctness.” (internal quotation marks omitted)). The determination as to whether the Stewart extraordinary case standard has been met similarly requires legal analysis.^FN6 To leave to trial courts the determination of the existence of an extraordinary case under Stewarton an individual case-by-case basis without meaningful review by this court, which articulated the underlying doctrine permitting fees, would lead to inconsistency and even potential arbitrariness in its use and availability. FN5. The trial court must resolve factual questions about the underlying merits of a dispute and the relief that should or should not be afforded. It must determine whether the legal standards for an award of fees have been met, whether those standards derive from contract, statute, or common law-doctrine, as in the case of private attorney general awards. Finally, it must make factual determinations about the nature, amount, and value of legal services provided, and ultimately reach some “equitable” conclusion about what, if any, attorney fees are due. FN6. This is particularly true in the historical context where this court has had virtually no opportunity since Stewart to flesh out the content and contours of the private attorney general doctrine. ¶ 8 In private attorney general cases, the threshold issue is a rather transcendent, large picture question of public policy, namely, whether an important right affecting the public interest has been vindicated. A de novo standard of review of the grant or denial of fees in private attorney general cases is necessary to promote uniformity and predictability in these rare cases, to maintain judicial consistency and integrity in the use of the doctrine, and to encourage the private enforcement of important rights affecting the public interest. Because the threshold issue is one of public policy, appellate judges, who have the benefit of deliberating as a panel and reviewing the well-considered arguments of the parties on appeal, have an advantaged position to review such considerations. II. AN AWARD OF ATTORNEY FEES TO UFBDH IS APPROPRIATE IN THIS CASE ¶ 9 This case presents an example of the potential inconsistency and arbitrariness of fee awards under the private attorney general doctrine and presents an opportunity for us to clarify the Stewart standard. Based on the district court's findings of fact and unchallenged conclusions of law regarding the merits of this case, we conclude that the Stewart standard has been met. We are persuaded that the district court erred in concluding that this case involved the “mere interpretation of a[n initiative] petition” and not the “vindication of a strong or societally important public policy” concerning the misuse of the constitutionally-based initiative power and the integrity of a public election. In its decision on the merits, the district court itself recognized that this case implicated the sacrosanct and fundamental right of the people to directly legislate through the constitutional processes of initiative and referenda. It acknowledged the public's “real and substantial interest in ensuring that the laws of initiative and referenda are scrupulously followed and the election process adheres to the rule of law.” The district court's decision on the matter of attorney fees was thus at odds with its original decision in the case. We also conclude that the district court erred in incorporating into the private attorney general doctrine a requirement that a plaintiff somehow show an inability to pay its own attorney fees in order to be eligible for reimbursement under the doctrine, or that a plaintiff show that its burden “was out of proportion to [its] individual stake in the matter.” Finally, the district court candidly acknowledged that it was on its own in interpreting the private attorney general doctrine under Stewart: [This case] is not, in this [c]ourt's view, the extraordinary type of case envisioned by Stewart. First of all, there were no monetary benefits created by plaintiff's actions as in Stewart nor was there a windfall to [d]efendant. While these factors alone may not be controlling, this Court perceives that the significant monetary benefits related to future rates bestowed by the plaintiff's actions in Stewart were an important reason for the [Supreme] Court's decision regarding attorney fees under the “private attorney general” doctrine. Again, there are no such benefits in this case. This [c]ourt cannot even find actual or concrete benefits created in this case. ¶ 10 We hold that the district court's perception that monetary benefits due to a plaintiff's action are required by the private attorney general doctrine is erroneous and not part of the legal standard first articulated in Stewart. We also hold that the blocking from the ballot of an unconstitutional initiative petition is an actual and concrete benefit to a large number of citizens and voters, especially in light of the potential costs associated with campaigns to secure or avoid the initiative's passage. We have previously stated, “Because the people's right to directly legislate through initiative and referenda is sacrosanct and a fundamental right, Utah courts must defend it against encroachment and maintain it inviolate.” Gallivan v. Walker, 2002 UT 89, ¶ 27, 54 P.3d 1069. Regarding the vindication of this strong and societally important public policy issue, the Oregon Supreme Court recognized that defending the “integrity of the ... initiative process [ ]” benefits all citizens of the State and “is the type of public benefit that ... makes an award of attorney fees appropriate.” Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49, 71 (1998); see alsoUmrein v. Heimbigner, 53 Or.App. 871, 632 P.2d 1367, 1371-73 (1981) (awarding attorney fees under Oregon's version of the private attorney general doctrine because parties exercising the constitutional right to place initiative petitions on the ballot were “protecting the rights of others as much as [their] own” (internal quotation marks omitted)). Vindication of the constitutional rights implicated in this case falls well within the notion of an extraordinary and exceptional case referenced in Stewart. CONCLUSION ¶ 11 We reverse the judgment of the district court and remand to the district court for a determination as to the proper amount of attorney fees to be awarded. The amount should include attorney fees for the entirety of these proceedings, including both appeals. ¶ 12 Justice DURRANT and Justice PARRISH concur in Chief Justice DURHAM's opinion. NEHRING, Justice, concurring: ¶ 13 I join in the opinion of the Chief Justice. I write separately to supplement her justification for conducting a nondeferential review of rulings that apply the private attorney general doctrine with the observation that our employment termination jurisprudence provides ample precedent for de novo review of questions that require us to measure the importance of a particular public policy. ¶ 14 In Berube v. Fashion Centre, Ltd., 771 P.2d 1033 (Utah 1989), we ratified three exceptions to the employment-at-will doctrine. One of these exceptions may be invoked when an employee is discharged in a manner that transgresses a “substantial and important” public policy. Id. at 1043. There is little difference between evaluating whether a public policy is substantial and important in the context of employment termination and assessing whether an important right affecting the public interest has been vindicated in a private attorney general case. Both considerations call on us to rank matters of public policy among their peers. ¶ 15 Without ever expressly stating our intention to do so, we have unfailingly reviewed public policy challenges in wrongful discharge cases nondeferentially. See, e.g., Touchard v. La-Z-Boy, Inc., 2006 UT 71, ¶¶ 11-16, 148 P.3d 945; Hansen v. Am. Online, Inc., 2004 UT 62, ¶¶ 9-24, 96 P.3d 950; Gottling v. P.R. Inc., 2002 UT 95, ¶¶ 5, 21, 61 P.3d 989; Rackley v. Fairview Care Ctrs., Inc., 2001 UT 32, ¶¶ 10-19, 23 P.3d 1022; Retherford v. AT & T Commc'ns of the Mountain States, Inc., 844 P.2d 949, 958-61 (Utah 1992). Our court of appeals has gone beyond a de facto recognition of this standard and has adopted it outright. See, e.g., Rackley v. Fairview Care Ctrs., Inc., 970 P.2d 277, 281-82 (Utah Ct.App.1998), aff'd2001 UT 32, 23 P.3d 1022. I am unable to discern any principled reason to defer to a trial court's assay of public policy interests in private attorney general cases while declining to do so when reviewing wrongful discharge cases. For this reason and for those set out in the lead opinion, I would conduct a whole record review of the UFBDH attorney fees claim and, having conducted that review, reverse. ¶ 16 Justice DURRANT and Justice PARRISH concur in Justice NEHRING's concurring opinion. WILKINS, Associate Chief Justice, dissenting: ¶ 17 The essence of the majority opinion in this matter is that our common law rule awarding attorney fees to litigants who act in the public interest should be extended to those who successfully challenge a ballot initiative's inclusion on the ballot. The fact that the litigant may do so for reasons other than the public interest falls out of the equation, as does the financial need of the litigant. My colleagues pronounce the role of preventing the public from voting on a dubious measure proposed by initiative or referendum to be of such “sacrosanct and fundamental” importance that the court must act to encourage litigation against, in this case, the Davis County Clerk, for failing in his administrative duty. ¶ 18 I, on the other hand, would not. ¶ 19 I would certainly allow those who see unwarranted inclusion of a matter on the ballot to challenge its inclusion, and in instances of improper, unethical, or fraudulent behavior by government officials, encourage the additional incentive of requiring the government to defray the expenses of such an effort. I would reserve that additional incentive for only those few truly extraordinary occasions when a brave citizen takes on government and succeeds against corrupt or wrongful acts, and does so for altruistic reasons, at a personal financial sacrifice. In all other cases, I would let the people vote on the matter. ¶ 20 My colleagues, in this case, elevate a corporate challenge to the flawed initiative petition to a level mandating the award of attorney fees, and do so in language one might reasonably interpret to mean that any such challenge in the future is also entitled to fees, so long as a referendum or initiative effort is successfully removed from the ballot. Such a position places both an unreasonable burden on state and local governments, and substitutes our views of the importance of an issue for the view of the voters on the merits of the issue. One might reasonably expect all such future petitions to be challenged in court, leaving the bill to be paid by the public treasury. ¶ 21 I disagree with my colleagues, and therefore dissent.

+/- Exner v. American Medical Association

Washington, First Amendment

• Plaintiff
  Exner
• Defendant
  American Medical Association
• State
  Washington
• Other Parties
  -
• Case Tags
  - First Amendment
• Citation
  12 Wash. App. 215, 529 P.2d 863 (Wash. Ct. App. 1974)
• Year
  1974-00-00T00:00:00
• Court Name
  Washington Court of Appeals
• Abstract
  -
• Description of Legal Challenge
  -
• Opinion #
  -
• Opinion Judges
  -
• Opinion Text
  CALLOW, Judge. The plaintiff, Dr. Frederick Exner, brought suit claiming he had suffered damages from allegedly defamatory statements made in an article by the defendant Goulding, Director of Public Information for the American Dental Association. The article appeared October 1965 in the American Medical Association's journal, ‘Today's Health,’ and is published as an appendix to this opinion save for those deletions which could be made in the interest of brevity without affecting the substance and flavor of the article. HISTORICAL BACKGROUND For a number of years there has been a great deal of controversy over the fluoridation of public water supplies as a dental health measure. The plaintiff has been an active opponent of fluoridation for over two decades and has, by his own statement, devoted considerable time, effort and resources to this cause. He has written books and magazine articles, lectured, and participated in court actions, both as a litigant and as an expert witness, on the subject of fluoridation. The American Dental Association and the American Medical Association have been in favor of fluoridation. PLEADINGS AND PROCEEDINGS The plaintiff's complaint claimed that the defendants conspired to defame him by publication of the article. The defendants denied that the statements were defamatory and raised state and federal constitutional protection of free speech in defense. The plaintiff was represented by counsel during the early stages of the proceedings but has represented himself during the hearing on the motions for summary judgment brought by the defendants and on this appeal. Following a hearing on the motions, a consideration of the depositions and other evidence presented, and the argument of counsel and the plaintiff, the trial court concluded the article itself was not defamatory. The trial court also held that the evidence presented was insufficient to support a determination that the defendants published the article with knowledge that it was false or with reckless disregard of whether it was false or true. The plaintiff claims that summary judgment should not have been granted as genuine issues of material fact were involved. WAS THE ARTICLE DEFAMATORY? The intital examination that must be made is whether or not the article was defamatory. Its introductory paragraphs make it clear that its purpose is to discuss and evaluate the motives of the opponents of fluoridation. These paragraphs state that the people to be discussed ‘range from the sincere to the charlatan, from the confused to the quack.’ The writer, having planted this prologue in the mind of the reader, then proceeds to a discussion of the motives behind several factions of the opposition to fluoridation. Following a paragraph on the attitude of some chiropractors towards fluoridation, the writer then states that the plaintiff is ‘Perhaps the most frequently quoted ‘professional’ opponent to fluoridation . . .' The plaintiff asserts that the use of the term ‘professional’ was libelous. The term ‘professional’ can mean many things. It can be construed as sarcasm or to be complimentary. We note that the dictionaries do not recognize a sarcastic implication. In this case, the word could be interpreted as calling the plaintiff ‘professional’ in terms of his background as a medical practitioner, or in his fulltime devotion of his energies to resisting fluoridation, or in the manner in which he had successfully opposed fluoridation proposals.  The reader might give the term any one of these constructions even though it has been placed in quotes in the article.  Terms, however, should be construed in the sense in which they would ordinarily be understood.   McNair v. Hearst Corp., 494 F.2d 1309 (9th Cir. 1974); Amsbury v. Cowles Publishing Co., 76 Wash.2d 733, 458 P.2d 882 (1969); Purvis v. Bremer's, Inc., 54 Wash.2d 743, 344 P.2d 705 (1959). When the reader is left to decide for himself whether the term ‘professional’ is meant to imply that the person referred to is in a profession such as medicine, law, the clergy, or the military, is totally committed to his cause, is expert and businesslike, or is a practitioner of the ‘world's oldest profession’ -resolving any ambiguity in favor of a disparaging connotation is not justified.  The apparently intended meaning was to denote the plaintiff as a completely devoted but overly zealous opponent.  This could be taken by some as uncomplimentary, but the implications were not defamatory.   Dowling v. Livingstone, 108 Mich. 321, 66 N.W. 225 (1896). The plaintiff next challenges the use of the word ‘Exner's' being substituted in parenthesis for the word ‘these’ with respect to the discussion of the reviews of the book he co-authored on the hazards of fluoridation. It is true that the book reviews attacked the book forcefully. The defendant-writer of the article likewise attacked the ideas and results achieved by the plaintiff in his opposition to fluoridation. The opinions expressed in the book reviews and the comments of the defendant in the article were justified even though the statements were fuel adding to the ‘heat of the kitchen’ to which the plaintiff has exposed his beliefs. The comments in the article on the book reviews amount to no more than reiteration of the criticism voiced by the reviewers of the book. These comments did not result in defamation. If it were otherwise, every book reviewer who found fault with an author's performance rather than applauding his work would be subject to suit. Reviewers who attack the contents of a literary work, as these reviewers did, rather than engaging in personal vilification cannot be held to have defamed the author. Merivale v. Carson, (1887) 20 Q.B.D. 275; Bearce v. Bass, 88 Me. 521, 34 A. 411 (1896).  Authors are not entitled to protection for a thin skin, and critics are not required to tread lightly.  It follows the neither are those who only report what such a reviewer has said.   Fisher v. Washington Post Co., 212 A.2d 335 (D.C.App.1965); Fitzgerald v. Hopkins, 70 Wash.2d 924, 425 P.2d 920 (1967); 3 Restatement of Torts ss 606, 609 (1938); 1 F. Harper & F. James, The Law of Torts s 5.28 (1956). The allegation that Dr. Exner was defamed because he was mentioned along with others who may have been characterized in a disparaging manner in the article is not defamatory towards him of itself and does not indicate malice specifically directed towards him. The article did not condemn all who opposed fluoridation in a derogatory manner but separately commented upon each group of opponents to fluoridation and proceeded to analyze the considerations that impelled each group. We find that the article, while attempting to cast doubt upon the soundness of the concepts espoused by the plaintiff, did not attempt to personally disgrace him or diminish the esteem in which he was held in the community. It is true that a reader of the article might be persuaded that the position of the plaintiff on the subject of fluoridation was wrong. This does not amount to defamation, however, even though rejection of one's theories by others does not enhance that person's reputation. See Walker v. D'Alesandro, 212 Md. 163, 129 A.2d 148, 64 A.L.R.2d 231 (1957); Cohen v. Cowles Publishing Co., 45 Wash.2d 262, 273 P.2d 893 (1954), and the cases discussed therein. The article did mistakenly report that of those members of the King County Medical Society voting in a poll on the subject, 706 were for fluoridation and 68 were against. The actual vote was 595 in favor and 166 against fluoridation. There is no evidence that this mistake was other than inadvertent or that it was material. This apparently unintentional mistake does not indicate malice. The article finally proceeds to attack on a more personal basis others who opposed fluoridation and then states that those who have fought fluoridation (characterizing Some as ‘convicted quacks, or hate mongers, or food fadists') have fought fluoridation with astonishing success. The article concludes that the scientists, health agencies, family physicians, and dentists who have supported fluoridation have been beaten not because of any question about the effectiveness or safety of fluoridation but because ‘men like this have been able to confuse, frighten, and mislead.’ These statements were not directed against the plaintiff specifically and did not malign him personally. We consider the article to have commented fairly on the plaintiff's position on fluoridation and not to have attacked his personal character or medical competence. The defendants were privileged to do so, and the article was not defamatory. WAS THE PLAINTIFF A PUBLIC FIGURE? We find that the action of the trial court is supportable as well on the ground that the plaintiff was a ‘public figure’ and failed to show malice towards himself in the publication of the article. We turn to a discussion of this ground for summary judgment for the defendants. During the hearing on the motions for summary judgment, the following colloquy took place: THE COURT: . . . I will consider first the question: Is Dr. Exner a public figure as a matter of law? If Dr. Exner is not a public figure as a matter of law, then there are different consequences than if he is a public figure as a matter of law. DR. EXNER: May I suggest I am most definitely a public figure. In a deposition considered by the court, the plaintiff stated: ‘I am regarded all over the world as the world's best informed authority on the fluoridation fraud.’ The evidence before the trial court on the motions reflected that the plaintiff had been vigorously involved in fluoridation controversies since 1952, locally, nationally and internationally. Fluoridation is a public issue which has been before the voters in numerous areas of the United States, is a matter of public interest and, as to that issue, the plaintiff forcefully and voluntarily placed himself in the public spotlight. A person's claim that he is a public figure does not make him so. He must have become one from his participation in public matters. It is only then that he losses his safety from libel and slander unless malice accompanies the act. The categorization of a person as a public figure may rest on either of two alternative bases. It was recently stated: In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789 (1974). Here, the defendant is not universally famout but is well known among those involved in the argument over fluoridation. It is within this orbit that the plaintiff has cast aside his mantle of privacy. When citizens voluntarily expose themselves to the limelight, they may become public figures. In addition to showing dissemination of a falsehood and resultant damage, public figures must show that the publication was made knowing it was false or with reckless disregard as to whether it was true or false. Gertz v. Robert Welch, Inc., Supra; Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964); Tilton v. Cowles Publishing Co., 76 Wash.2d 707, 459 P.2d 8 (1969). Gertz further discusses the interplay between the need for free discussion of public issues protected by the First Amendment and the right of persons to protect themselves from defamation thusly 94 S.Ct. on page 3008: Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgement of the state law right to compensation for wrongful hurt to one's reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehoods concerning public officials and public figures. Private citizens do not become public figures subject to damaging falsehoods concerning their lives without recourse when they are suddenly thrust into the news by events. When chance and the news media bring a private citizen into the public eye, the right to redress for defamation is not diminished so long as their notoriety was not of their own choosing. The right to recover damages for the dissemination of untruths about themselves without proving actual malice by the disseminator is retained. Even though the statements made concern matters of public interest, the right to be left alone is not lessened for the private person. See Time, Inc. v. Hill, 385 U.S. 374, 380, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).  The requirement of proof of malice of New York Times Co. v. Sullivan does not extend to private individuals who have not risen to public renown by their own activity.   Gertz v. Robert Welch, Inc., Supra. Miller v. Argus Publishing Co., 79 Wash.2d 816, 490 P.2d 101 (1971), relying upon Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), indicated that one could be placed into the ‘public figure’ category when the comment about him involved a subject of general public interest. The Rosenbloom case had enlarged the area of open comment under the First Amendment to include not only persons who were public officials or public figures but also those whose private lives were suddenly embroiled by chance in matters of public interest. Rosenbloom has now been modified by Gertz v. Robert Welch, Inc. which stated 94 S.Ct. on page 3010: (T)he communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehoods concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office nor assumed an ‘influential role in ordering society.’   Curtis Publishing Co. v. Butts, . . . 388 U.S., at 164, 87 S.Ct., at 1996 . . . He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. Rosenbloom, the basis espoused in Miller for restricting defamation suits by private citizens incidentally involved in public matters by requiring proof of malice, has now been limited by Gertz on the side of permitting legal recourse against the news media to the nonparticipating innocent bystander. It follows that private individuals who have not become public figures may now protect their reputations in state courts by legal remedy without proof of malice and that the mandate of Miller v. Argus Publishing Co. is likewise modified. See Gertz v. Robert Welch, Inc., Supra 94 S.Ct. at 3010. The plaintiff, however, is not embroiled in the fluoridation controversy just by commenting on a matter in which there is public interest, but he has taken upon himself the role of attempting to order society insofar as the fluoridation issue was concerned. Curtis Publishing Co. v. Butts, Supra. As to this issue, we note the appropos words of Gertz 94 S.Ct. on page 3013: Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. The plaintiff was a public figure in regard to the limited issue of fluoridation by having abandoned his anonymity, by having assumed leadership and by having attempted to influence the outcome of the issue. The reporters of these activities could write freely about this aspect of the plaintiff so long as they did not write with malice. See Amsbury v. Cowles Publishing Co., 76 Wash.2d 733, 458 P.2d 882 (1969). SUMMARY JUDGMENT Summary judgment is to be granted in defamation cases as in other cases only when there is no genuine issue as to a material fact.   McDonald v. Murray, 83 Wash.2d 17, 515 P.2d 151 (1973). Likewise, as in other cases, the evidence presented must be considered in the light most favorable to the nonmoving party. Amsbury v. Cowles Publishing Co., Supra; Hudesman v. Foley, 73 Wash.2d 880, 441 P.2d 532 (1968); O'Brien v. Tribune Publishing Co., 7 Wash.App. 107, 499 P.2d 24 (1972); Diel v. Beekman, 1 Wash.App. 874, 465 P.2d 212 (1970). However, the function of the trial court in ruling on a defense motion for summary judgment in a defamation action is to determine if the plaintiff's proffered evidence is of a sufficient quantum to establish a prima facie case with convincing clarity. Unless the plaintiff has done so, the motion must be granted. Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); New York Times Co. v. Sullivan, Supra; Chase v. Daily Record, Inc., 83 Wash.2d 37, 515 P.2d 154 (1973). To show that the defendant acted with reckless disregard for the truth or falsity of a statement, the plaintiff must submit evidence pursuant to CR 56 that the defendant entertained serious doubts as to the truth of the publication and published anyway.   St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Tilton v. Cowles Publishing Co., Supra.  The proof before the trial court failed to establish malice with convincing clarity.  It is the duty of a reviewing court to examine the total record to ascertain whether there exists convincingly clear evidence of malice.   Mellor v. Scott Publishing Co., 10 Wash.App. 645, 519 P.2d 1010 (1974). When the affidavits, admissions, exhibits and depositions submitted by the parties are considered in the light most favorable to the plaintiff, the record is lacking in proof of malice on the part of the defendants except for the unsupported allegations of the plaintiff that malice existed. This is not sufficient to survive the challenge of summary judgment in a defamation case brought by a public figure. Time, Inc. v. Hill, Supra. The plaintiff's evidence advanced him no further than his pleadings and failed to establish a knowledge or high degree of awareness of the probable falsity of any statement in the article with convincingly clear proof. The summary judgment of dismissal is affirmed. SWANSON, C.J., and HOROWITZ, J., concur. APPENDIX The article entitled Why Doctors Vote Yes to Fluoridation by Peter C. Goulding, Director, Bureau of Public Information, American Dental Association, reads in part: IS FLUORIDATION of public water supplies an effective method of reducing tooth decay? Yes-says every authoritative health and scientific organization in the country-the American Medical Association, the American Dental Association, the American Association for the Advancement of Science, and the U.S. Public Health Service-plus fully 99 percent of the 250,000 physicians and 100,000 dentists in this country. Despite this overwhelming vote of confidence from virtually every medical, dental, and scientific authority in our nation, and, indeed the world . . . fluoridation loses heavily in the ballot boxes of the American public. Evolving as a political rather than a scientific issue, fluoridation has been passed in only 334 of 852 community referendums during the past 15 years. . . . How can this possibly happen? First of all, perhaps, because no one ever died of dental decay. Secondly, and certainly most significantly, because the issue of fluoridation is being grossly misrepresented to the American public by a shouting few. Specifically, the voters are being swayed in their thinking by the loud and persistent shouts of ‘poison.’ . . . On this issue, therefore, the most important question the voter must resolve is whether there is validity to the dissenter's loud and persistent shouting. The House of Anti-Fluoridation has many rooms. Residents range from the sincere to the charlatan, from the confused to the quack. Motives vary. Some are cautions, sincere individuals; others have an axe to grind. Methods vary too. Some would present their case only in print and at a high level. Others love a political battle and use emotional arguments exclusively. The sincerity of pamphleteers-the socalled political crusaders-is more difficult to judge. There still may be individuals who believe that fluoridation is part of a gigantic conspiracy, that fluorides are poisonous in any amount and that their individual liberties are being violated. When sincere, such views usually are held by people who have been thoroughly misguided. On the other hand, many of these alleged crusaders tie the emotion-charged fluoridation controversy to other campaigns of fear, hate, and prejudice. Extremist political agitators very often add attacks on fluoridation to their many wild charges against the social order. In short, they use the issue to sell pamphlets and their own particular social and political quirks. Motivations of health food faddists-devotees of health foods who consistently wage vigorous campaigns against fluoridation-are more easily analyzed. For some, the issue runs counter to their preachments on ‘purity’ of water. Others are in the business of selling health foods and the resultant publicity from their attacks on fluoridation does not hurt their business one bit. Sone of them are also opposed to pasteurization and vaccination. In addition, there are perhaps a handful of physicians and dentists who oppose fluoridation. Often, they regard it as part of a larger picture of ‘creeping socialism,’ even though the decision to fluoridate a water supply remains wholly within the individual community. So be it. There are also physicians who are still opposed to vaccination and pasteurization. Perhaps the most frequently quoted ‘professional’ opponent to fluoridation is Dr. Frederick B. Exner of Seattle, Washington. Having written a book on the subject, he has taken part in court suits; he has brought suit himself; he has spoken in many parts of the nation in opposition to fluoridation. In reviewing the book, American Fluoridation Experiment, published in 1957, which Doctor Exner co-authored with Dr. G. L. Waldbott, the Royal Society of Health found: ‘This book cannot be recommended to the reader in search of an objective evaluation of fluoridation, although it will certainly offer an attraction to those interested in the extremes of subjective criticism . . . Readers who seek a verification of (Exner's) charges will fail to find it. Instead, they will find a strange melange varying from vague generalities to downright misstatements.’ In its review of the book, the Rocky Mountain Medical Journal noted that it ‘plunges into a subject that is only vaguely concerned with the special practice of either of the authors . . . This is one of the most peculiar books ever to be offered for serious consideration, either by scientists or lay persons. ‘One of the authors attempted to show in a published report that a pronounced stain had been produced in two persons, who, it was alleged, were raised on Denver South Platte water-which consistently has contained one part per million fluorides,’ the Journal review continues. ‘In a court of law in another state, sometime over a year ago, it was determined that these two persons had acquired the stain, not in Denver, but in other communities where the water held an ‘excess of fluoride.’ ‘This episode is mentioned here only because the book stubbornly retains this ‘evidence’ despite its rejection by a court of law . .. There is hardly a paragraph in the book with which informed opinion could agree,' the Journal concludes. Doctor Exner's own medical organization, the King County (Washington) Medical Society, voted 706 to 68 for fluoridation. Doctor Exner's opposition has been equally unacceptable in the courts. Despite testimony against the measure, a Washington State lower court and the State Supreme Court upheld fluoridation. Instituting a suit against the Fluoridation League of Chehalis, Washington, he attempted to obtain $1000 which the group had offered to anyone able to prove that fluoridation at one part per million caused any ill effects. The court rejected his plea. Doctor Exner also testified in a court case in Chicago in which fluoridation was again upheld. Another frequently cited ‘professional’ opponent of fluoridation, ‘Doctor’ E. H. Bronner, was no doctor of medicine at all. Speaking in many cities at the invitation of various anti-fluoridation groups, he persuaded the city council of Clinton, Iowa, to vote against fluoridation. After he had left, the city's newspaper, the Clinton Herald, became curious enough to investigate the ‘doctor's' record. It turned out that Bronner was at that time an escapee from a mental institution, the Elgin State Hospital in Elgin, Illinois. Bronner is one of the reasons why the city of Seattle, Washington, does not now have fluoridation. Other opponents to fluoridation have equally questionable credentials. Take for example the widely quoted Oliver Kenneth Goff. A former Communist by his own admission who ‘knows all about them,’ he has authored a book called Brain Washing, which was published by Defenders, Incorporated. Established by Gerald Windrod, this enterprie also publishes the Defender magazine, which is characteristically anti-medical, anti-Communist, anti-Catholic, and anti-Jewish. This organization has championed such useless cancer treatments as the Koch preparation, the Hoxsey treatment, and the ‘Laetrile’ treatment Goff has been connected with the group, in the past at least. All of these men-some of whom are expert only as convicted quacks, or hate mongers, or food faddists-all of them have fought fluoridation, with astonishing success. They have beaten the scientists and the health agencies; they have beaten your family physician and dentist. Fluoridation has lost, not because of any question about its effectiveness or safety but because men like this have been able to confuse, frighten, and mislead. Presently, more than 56 million persons are drinking water with the proper amounts of fluoride in it. Hopefully, your children, number among them. However, in communities where this issue-cited as the most proven measure in the history of public health-remains to be settled, the ultimate decision rests with the voting parents. Your physician and your dentist urge that you vote ‘yes' to fluoridation.

+/- Foli v. Metropolitan Water District of Southern California

California, Push for FDA Approval, Violation of Fundamental Liberties, Injunction

• Plaintiff
  Debra Foli
• Defendant
  The Metropolitan Water District of Southern California
• State
  California
• Other Parties
  -
• Case Tags
  - Push for FDA Approval

  - Violation of Fundamental Liberties

  - Injunction
• Citation
  Case No. 11CV1765 JLS (BLM).
• Year
  2012-00-00T00:00:00
• Court Name
  United States District Court, S.D. California
• Abstract
  -
• Description of Legal Challenge
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• Opinion #
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• Opinion Judges
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• Opinion Text
  Presently before the Court is Defendants Metropolitan Water District ("MWD") and Jeffrey Kightlinger's ("Kightlinger," and collectively, "Defendants") motion to dismiss. (Mot. to Dismiss, ECF No. 6) Also before the Court are Plaintiffs' opposition, (Resp. in Opp'n, ECF No. 9), and Defendants' reply, (Reply in Supp., ECF No. 10). The hearing set for the motion on January 26, 2012, was vacated, and the matter taken under submission on the papers. Having considered the parties' arguments and the law, the Court GRANTS Defendants' motion. BACKGROUND Plaintiffs, residents of San Diego, Ventura, and Los Angeles Counties, bring this action against MWD and its General Manager, Kightlinger, asserting claims for violations of 42 U.S.C. § 1983 and California Business & Professions Code section 17200, et seq. ("Unfair Competition Law" or "UCL"), seeking declaratory and injunctive relief. Plaintiffs take issue with Defendants' practice of "systematically add[ing] an unapproved drug, hydrofluosilicic acid [("HFSA")], to the water, and then caus[ing] the water to be delivered to water consumers like the Plaintiffs." (Compl. ¶ 17, ECF No. 1) MWD allegedly adds HFSA to the water supply "for the express purpose of administering [HFSA] to the Plaintiffs and other members of the general public receiving their water supply from MWD with the intention of altering their physical structure and body functions to prevent and to treat disease," (id.), despite the fact that HFSA is not approved by the Federal Drug Administration ("FDA") for such use, (id. ¶ 26). LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require `detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "`merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Id. Moreover, "[f]or a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990) (internal quotation marks omitted). Where a motion to dismiss is granted, "leave to amend should be granted `unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401. ANALYSIS 1. 42 U.S.C. § 1983 Defendants' primary argument for dismissal is that Plaintiffs are precluded from bringing a § 1983 claim for violations of certain federal statutes, including the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300f, et seq. (Mot. to Dismiss 6-7, ECF No. 6) Defendants rely on Mattoon v. City of Pittsfield, which held that because "the SDWA enforcement scheme is closely analogous to other enforcement schemes found sufficiently comprehensive to evince a clear congressional intent to preempt relief under section 1983, . . . appellants' section 1983 claims are preempted by the SDWA." 980 F.2d 1, 6 (1st Cir. 1992). In opposition, Plaintiffs do not challenge the conclusion that they cannot bring a § 1983 claim on the basis of a SDWA violation. Contrary to Defendants' characterization, Plaintiffs argue that their complaint is brought to redress violations of the Food, Drug, and Cosmetic Act ("FDCA"), not the SDWA. (Resp. in Opp'n 3-4, ECF No. 9) Even under this characterization, however, the Court agrees with Defendants that Plaintiffs cannot assert a § 1983 claim. Section 337(a) of the FDCA provides that "all such proceedings for the enforcement, or to restrain violations, of [the FDCA] shall be by and in the name of the United States." Interpreting this provision, the Ninth Circuit has held that the FDCA does not provide for a private right of action. PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th Cir. 2010) ("[T]he FDCA forbids private rights of action under that statute."); Feidler v. Clark, 714 F.2d 77, 79 (9th Cir. 1983) (holding that the court lacked jurisdiction under the FDCA in a suit brought by a private party); see also Summit Technology, Inc. v. High-Line Med. Instruments Co., Inc., 922 F.Supp. 299, 305 (C.D. Cal. 1996) (citing cases from the Third, Fourth, and Seventh Circuits, and concluding that "[c]ourts have generally interpreted [§ 337(a) of the FDCA] to mean that no private right of action exists to redress alleged violations of the FDCA"); Ginochio v. Surgikos, Inc., 864 F.Supp. 948, 957 (N.D. Cal. 1994) ("Given th[e] language and the regulatory nature of the Act, and the fact that Congress has vested the power to enforce the regulatory scheme in the United States, this court concludes that there is no private right of action."). By suing under 42 U.S.C. § 1983, Plaintiffs attempt to circumvent FDCA's limitation on who may sue to enforce the Act. It is true that § 1983 may be used to "redress the deprivation of federal statutory rights." Almond Hill School v. U.S. Dep't of Agric., 768 F.2d 1030, 1035 (9th Cir. 1985) (citing Maine v. Thiboutot, 448 U.S. 1 (1980)). And, "[a]n action to enforce a particular federal statute may lie under section 1983 even though no such action exists under the particular statute itself." Id. (citing Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 18-19 (1981)). Such an action is not available in all instances, however. Relevant here, a § 1983 suit is not available to redress the violation of a federal statutory right where "Congress [has] foreclosed private enforcement of the statute in the statute itself." Id. (citing Middlesex, 453 U.S. at 19; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981)). In Almond Hill School v. United States Department of Agriculture, the Ninth Circuit held that a group of concerned citizen plaintiffs lacked a private right of action to enforce the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), and therefore could not utilize § 1983 to sue to enjoin the state and federal departments of agriculture from spraying certain pesticides. 768 F.2d 1030, 1039. There, after a careful analysis of the relevant statutory provisions, the court "inferred" an intent to foreclose private remedies because "FIFRA's enforcement scheme [was] sufficiently comprehensive." Id. at 1035, 1038. Unlike FIFRA, however, which "does not authorize explicitly or implicitly a private cause of action to enforce the Act," id. at 1035, the FDCA explicitly "forbids private rights of action," PhotoMedex, 601 F.3d at 924. As such, the Court need not conduct a detailed analysis of the remedial devices provided for in the FDCA in order to "infer" whether Congress had an intent to foreclose a private remedy. Congress's intent is plain: there is no private right of action under the FDCA. See supra at 4. Accordingly, Plaintiffs may not use § 1983 as a means to enforce the FDCA, and Defendants' motion to dismiss the § 1983 claim is therefore GRANTED. 2. UCL California's UCL prohibits acts of unfair competition, which includes "any unlawful, unfair or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200; see also In re Pomona Valley Med. Grp. Inc., 476 F.3d 665, 674 (9th Cir. 2007). "Because [the UCL] is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent." Podolsky v. First Healthcare Corp., 58 Cal.Rptr.2d 89, 98 (Cal. Ct. App. 1996). Plaintiffs allege that Defendants have engaged in unlawful, unfair, and deceptive business acts or practices. A. Unlawful Business Practice "[A]n action based on [the UCL] to redress an unlawful business practice `borrows' violations of other laws and treats these violations . . . as unlawful practices, independently actionable under section 17200, et seq. and subject to the distinct remedies provided thereunder." Farmers Ins. Exch. v. Super. Ct. of L.A. Cnty., 826 P.2d 730, 734 (Cal. 1992) (citation omitted); see also Chabner v. United Omaha Life Ins. Co., 225 F.3d 1042, 1048 (9th Cir. 2000). A business practice that violates almost any federal, state, or local law is an "unlawful practice" under section 17200 and thereby may serve as the basis for a UCL claim. See CRST Van Expedited, Inc. v. Werner Enters., Inc., 479 F.3d 1099, 1107 (9th Cir. 2007); Saunders v. Super. Ct. of L.A. County, 33 Cal.Rptr.2d 438, 441 (Cal. Ct. App. 1994). Plaintiffs can state a UCL claim if they can state a claim under a "borrowed" law. See Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (finding that the alleged conduct "must violate a law . . . in order for Plaintiffs to state a claim for relief under Section 17200's `unlawful' prong"). Here, Plaintiffs' complaint alleges that Defendants' practices "violate[] the constitutional rights of the Plaintiffs and also violates the [FDCA] and other federal laws." (Compl. ¶ 56, ECF No. 1) As explained above, Congress has expressly rejected private rights of actions to enforce the FDCA. As such, the Court finds that Plaintiffs may not enforce the FDCA privately by using it as a predicate for their UCL claim. See Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1048 (9th Cir. 2000) (citing Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 527, 541 (Cal. 1999)) (indicating that a plaintiff may not use the UCL to enforce a statute that bars a private right of action). Thus, the Court finds that Plaintiffs' UCL claim based on a violation of the FDCA must be dismissed. B. Unfair Business Practice Even if a practice is not "unlawful," it may still be "unfair." See Cel-Tech, 973 P.2d at 540. Here, Plaintiffs' complaint alleges that Defendants' practices constitute unfair competition because "[t]here are FDA approved methods to treat dental caries and disease, and therefore, there can be no justification for MWD's use of an unapproved drug to medicate water consumers through the water supply." (Compl. ¶ 58, ECF No. 1) For UCL suits involving injuries to consumers, as here, the "unfairness" prong prohibits business practices that "offend[] an established public policy or [that are] immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Smith v. State Farm Mut. Auto. Ins. Co., 113 Cal.Rptr.2d 399, 415 (Cal. Ct. App. 2001). Though this proscription "is very broad in its scope," "it is not unlimited." Id. at 416. Indeed, "[s]pecific legislation may limit the judiciary's power to declare conduct unfair." Id. "If the Legislature has permitted certain conduct or considered a situation and concluded no action should lie, courts may not override that determination." Id. Accordingly, for the same reasons as above, the Court finds that Plaintiffs cannot pursue their FDCA claim "simply by recasting the cause of action for one for unfair competition." Id. (internal quotation marks omitted). C. Fraudulent Business Practice Plaintiffs also predicate their UCL claim under the fraudulent business practice prong, alleging that Defendants' buisness practices are deceptive because "MWD fails to inform consumers that they are being medicated with [HFSA], that [HFSA] is an unapproved drug, and that [HFSA] presents a risk of serious and irreparable harm to consumers." (Compl. ¶ 60, ECF No. 1) Without deciding whether this single allegation is sufficient to state a claim under the fraudulent prong of the UCL, however, the Court must dismiss this claim as well insomuch as it is also predicated on an underlying violation of the FDCA. Accordingly, Defendants' motion to dismiss the UCL claim is GRANTED. 3. Declaratory Relief For the same reasons, Plaintiffs' declaratory relief claim must be dismissed. Like § 1983 and the UCL, the Declaratory Judgment Act, 22 U.S.C. § 2201, may not be used as a vehicle to enforce a private right that the FDCA explicitly denies. See Schilling v. Rogers, 363 U.S. 666, 677 (1960) ("[T]he availability of [declaratory relief] presupposes the existence of a judicially remediable right.") CONCLUSION For the reasons stated above, Defendants' motion to dismiss Plaintiffs' complaint is GRANTED. Plaintiffs' complaint is DISMISSED WITHOUT PREJUDICE. If Plaintiffs wish, they may file an amended complaint within fourteen days after this order is electronically docketed. IT IS SO ORDERED.

+/- Espronceda v. City of San Antonio

Texas

• Plaintiff
  Ruben ESPRONCEDA
• Defendant
  City of San Antonio
• State
  Texas
• Other Parties
  -
• Case Tags
  -
• Citation
  2003 Tex. App. LEXIS 4334
• Year
  2003-00-00T00:00:00
• Court Name
  COURT OF APPEALS OF TEXAS, FOURTH DISTRICT
• Abstract
  -
• Description of Legal Challenge
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• Opinion #
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• Opinion Judges
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• Opinion Text
  The Court's opinion and judgment of May 21, 2003 are hereby withdrawn and substituted with the following opinion and judgment. This is an appeal of a summary judgment rendered in favor of the City of San Antonio in a suit challenging the City's authority to fluoridate its public water supply. We affirm the trial court's judgment. Factual and Procedural Background In August of 2000, the City Council of San Antonio passed ordinance 92255 directing suppliers of drinking water to fluoridate the water supplied to the City. That ordinance provided that it would take effect only if approved by voters at an election to be held on November 7, 2000. After the voters approved the fluoridation issue, Ruben Espronceda, Ramon Espronceda, Rafael Espronceda, William A. Mallow, and Sheryl Pursely (collectively, "the Esproncedas") brought suit seeking to enjoin the City from adding fluoride to its water supply and requesting a declaratory judgment that ordinance 92255 is unconstitutional. (1) After two years of litigation, both parties filed motions for summary judgment. The trial court granted the City's motion and dismissed the Esproncedas' claims with prejudice. The Esproncedas now challenge that judgment on various grounds. We affirm. Motions for Summary Judgment and Burden of Proof Issues The Esproncedas claim the trial court erred in denying their motion for summary judgment and in granting the City's motion for summary judgment. They also claim the trial court imposed the wrong burden of proof on them. We disagree. A municipal ordinance is presumed to be valid and the burden of showing its invalidity rests on the party attacking it. See Safe Water Found. of Tex. v. City of Houston, 661 S.W.2d 190, 192 (Tex. App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.). "The City Council acts as the legislative body of the City, and has both the authority and the responsibility to determine whether injecting fluoride into the City's water supply is an act in furtherance of the public's health, safety, and welfare." Id. at 191-192. If reasonable minds may differ as to whether a particular ordinance has a substantial relationship to the public health, safety, morals, or general welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid exercise of the city's police power. See Quick v. City of Austin, 7 S.W.3d 109, 117 (Tex. 1998). When suit is filed attacking an ordinance passed under a municipality's police powers, "[t]he party attacking the ordinance bears an 'extraordinary burden' to show 'that no conclusive or even controversial or issuable fact or condition existed' which would authorize the municipality's passage of the ordinance." City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 792-93 (Tex. 1982), citing Thompson v. City of Palestine, 510 S.W.2d 579, 581 (Tex. 1974). The question of whether one challenging an ordinance can meet this burden of proof is a question of law properly answered in summary judgment proceedings. See Hunt v. City of San Antonio, 462 S.W.2d 536, 539 (Tex. 1971). We review a trial court's rulings on a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). Summary judgment is proper if the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Additionally, a defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet denied). A no-evidence motion for summary judgment should be denied if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. See id. When, as here, the trial court does not specify the grounds upon which it relied for its ruling, summary judgment will be affirmed if any of the theories advanced are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). In support of their motion for summary judgment and in response to the City's motion for summary judgment, the Esproncedas presented the affidavit of William A. Mallow, which stated that Mallow is a chemist familiar with the facts and science involved in this case. He alleged that by providing fluoride to be ingested without the aid of a doctor, the City has violated the law. He also claimed that the City's proposed system would use fluoride containing traces of arsenic, lead, radium, and other potentially harmful impurities. He contended that the City's refusal to advise voters of this danger would harm consumers of the water, and that certain populations would be harmed more than others. He also stated that rather than preventing cavities, ingesting fluoride may actually cause cavities. In its motion for summary judgment the City asserted that ordinance 92255 was a valid exercise of police power and legislative authority, and that the ordinance was enacted in furtherance of the public's health, safety, and welfare. In response to the Esproncedas' motion and in support of its own motion, the City produced the affidavit of Ernest Newbrun, D.M.D., Ph.D., Professor Emiratus at the University of California San Francisco where he taught biology for thirty years. He has authored two textbooks which are widely-accepted references on the topic of fluoride and cavities. He is also a past president of the International Association for Dental Research, an organization of more than ten thousand researchers, academics, and dentists which has repeatedly endorsed the benefits of communal water fluoridation. Newbrun stated that fluoridation of the water supply produces a public health benefit and will not injure the public's health or the environment. On appeal the Esproncedas challenge Newbrun's affidavit on the grounds that he is a dentist and is not qualified to testify about the adverse effects of ingested fluoride. The Esproncedas also complain that Newbrun is not familiar with the specific process involved in fluoridating San Antonio's water supply and that his authorities are contrary to his opinion. Assuming without deciding that the Esproncedas are correct, even if Newbrun's affidavit were stricken from the record, the Esproncedas have still failed to show that no conclusive or even controversial or issuable fact or condition exists to authorize the City's passage of the fluoridation ordinance. See Comeau, 633 S.W.2d at 792-92. Initially, we note that the City filed the affidavit of Val Ruiz, P.E., an engineer and the Fluoride Point of Contact for the San Antonio Water System ("SAWS"). This affidavit answers any perceived shortcomings in Newbrun's knowledge of the specific fluoridation process to be employed by the City. Ruiz stated that the City and SAWS installed fluoridation systems at 27 pump stations which will fluoridate the water to a level not to exceed 0.8 parts per million. He also detailed the process by which the fluoride will be tested before being added into the water. Ruiz's affidavit declared that the City would follow the system designed by the Texas Department of Health. The City also submitted as summary judgment evidence an executive summary of the Surgeon General's Report, Oral Health in America. This report describes community water fluoridation as a "critical public health measure" that is "an effective, safe, and ideal public health measure." As further support for its summary judgment, the City submitted an American Dental Association publication entitled "Fluoridation Facts." The publication, which extols the benefits of community water fluoridation, was reviewed and considered by City Council members prior to adoption of ordinance 92255. Similar studies and publications from the Texas Department of Health and the Centers for Disease Control and Prevention were also presented by the City as summary judgment evidence. Even when all reasonable inferences and doubts are resolved in the Esproncedas' favor, this summary judgment record establishes the absence of a genuine issue of material fact and the City's entitlement to judgment as a matter of law. See Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). Because the Esproncedas' evidence failed to negate the City's defenses, the trial court did not err in denying the Esproncedas' no-evidence motion for summary judgment. Additionally, the Esproncedas have failed to meet the "extraordinary" burden placed on them by the Texas Supreme Court. See Comeau, 633 S.W.2d at 792-93. They have not shown that no conclusive or even controversial or issuable fact or condition existed which would authorize the municipality's passage of the ordinance. See id. Indeed, the competing summary judgment evidence reveals an issuable and controversial fact about the benefits or detriments of community water fluoridation. Given this issuable fact, the City was authorized to pass the ordinance. (2) The Esproncedas' first, second, and fourth issues are therefore overruled. Requests for Admissions This suit was conducted under a Level 2 Discovery Control Plan. Under Level 2, the discovery period ends nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. See Tex. R. Civ. P. 190.3(b)(1)(B). The first discovery requiring a written response were interrogatories sent to the City on November 21, 2000. The City's response was due December 21, 2000. See id. Therefore, the discovery period ended nine months later, on September 21, 2001. On May 7, 2002, more than seven months after the discovery period ended, the Esproncedas served requests for admissions upon the City. The Esproncedas' motion to deem the admissions was denied, as were their subsequent motions to reconsider. A trial court's rulings on discovery matters are reviewed for an abuse of discretion. See Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998). Because the Esproncedas presented no explanation of why the interests of justice required modification of the discovery control plan, the trial court acted within its discretion in refusing to extend the discovery period and deem the Esproncedas' requests for admissions admitted. See Tex. R. Civ. P. 190.5. The Esproncedas' third issue is overruled. Informed Consent Next, the Esproncedas claim that the citizens who voted against ordinance 92255 are being medicated by the City without their consent, as are those who receive water from the City's water supply but were unable to vote against the ordinance. However, as the Florida Fourth District Court of Appeals noted in a similar challenge to fluoridation of a municipality's water supply: Importantly, the city proposes to fluoridate the water before it enters each household in the city; it is not seeking to introduce the mineral directly into [plaintiff's] bloodstream. Therefore, the city's fluoridation of its water stops with [plaintiff's] water faucet. The city is not compelling him to drink it. He is free to filter it, boil it, distill it, mix it with purifying spirits, or purchase bottled water. His freedom to choose not to ingest fluoride remains intact. Quiles v. City of Boynton Beach, 802 So.2d 397, 399 (Fla. Dist. Ct. App. 2001, review denied). Once again, the Esproncedas have failed to meet the "extraordinary" burden placed on them by the Texas Supreme Court in Comeau, 633 S.W.2d at 792-93. Therefore, their argument that the ordinance should be struck down because it medicates consumers of the City's water without their consent is overruled. Constitutional Challenges In the Esproncedas' sixth and final issue, they claim the ordinance is unconstitutionally vague in its failure to define the word "fluoridate." The ordinance declares that it will fluoridate the water at a level set by the Texas Department of Health. The Esproncedas also allege the ordinance improperly delegates legislative authority to the Texas Department of Health. If possible, we must interpret a statute in a manner that renders it constitutional. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000). A statute is fatally vague only when it exposes a potential actor to some risk or detriment without giving him fair warning of the nature of the proscribed conduct. Tex. Liquor Control Bd. v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex. 1970). Due process is violated only when there is a substantial risk of miscalculation by those whose acts are subjected to the regulation. Id. Furthermore, one of the settled maxims in constitutional law is that the Legislature declares the policy of the law and fixes the controlling legal principles, but may invest a delegated authority with the power to ascertain the facts and conditions to which the policy and principles apply. Comm'rs Court of Lubbock County v. Martin, 471 S.W.2d 100, 105 (Tex. Civ. App.-Amarillo 1971, writ ref'd). The City Council acts as the legislative branch of the City. See Safe Water Found., 661 S.W.2d at 191-92 . "The Legislature may delegate powers to agencies established to carry out legislative purposes as long as the Legislature establishes reasonable standards to guide the agency in exercising those powers." FM Props., 22 S.W.2d at 873. In their brief, the Esproncedas "ask this Court to change the law as set out by the Houston Court of Appeals in Safe Water Foundation v. Houston." However, this is the framework mandated by the Texas Supreme Court. See FM Props., 22 S.W.3d at 873. The Texas Department of Health is responsible for monitoring the quality of water throughout the state. See Tex. Water Code Ann. § 26.130 (Vernon 2002). According to the affidavit of Val Ruiz, the Texas Department of Health has regulated the quality of fluoridated water in other Texas cities for more than thirty years. Because the summary judgment evidence shows there is no substantial risk of miscalculation by those whose acts are subjected to the regulation, we affirm the trial court's finding that the statute is not void for vagueness. See Attic Club, 457 S.W.2d at 45. Furthermore, the City's delegation of authority to set and regulate the parts per million of fluoride added to the City's water is an appropriate delegation, well within the constraints of the Texas Constitution. See Tex. Const. art. 2, § 1 (Vernon 2000); see also Hanzal v. City of San Antonio, 221 S.W. 237, 238 (Tex. Civ. App.--San Antonio 1920, writ ref'd) (recognizing the power inherent in every sovereignty to enact laws for sanitary purposes and protection of the public's health). Because the burden of proving the municipality's actions to be improper should remain on the party challenging the statute, we decline the Esproncedas' invitation to re-write law. Their sixth issue is overruled, and the judgment of the trial court is affirmed. Catherine Stone, Justice 1. William Mallow was named as a plaintiff at the trial court level and as an appellant before us. The Esproncedas' brief indicates that Mallow has since died. Because the record contains no information to that effect, we will adjudicate the appeal as if all parties are alive. See Tex. R. App. P. 7.1(a). 2. We note that the overwhelming summary judgment evidence is supportive of community fluoridation. Texas Judiciary Online: http://www.4thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=16114

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+/- Nemphos v. Nestle Waters North America

Maryland, Preemption

• Plaintiff
  Michelle Nemphos
• Defendant
  Nestle USA, Inc.
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  Nemphos v. Nestle Waters North America, Inc., 1:12CV02718 (Md. 2013)

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  follow this link to read the full opinion http://law.justia.com/cases/federal/district-courts/maryland/mddce/1:2012cv02718/211709/26

+/- Protect the Peninsula's Future Et al. v. The City of Port Angeles Et al.

Washington, Unlicensed Practice of Medicine/Compulsory Medication

• Plaintiff
  Protect the Peninsula's Future, Clallam County Citizens for Safe Drinking Water, and Eloise Kailin
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  The City of Port Angeles and the City of Forks
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  175 Wn. App. 201, 304 P.3d 914 (App. Div. 2 2013), Court Opinion (06/19/2013)

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  The Court of Appeals of Washington, Division Two
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+/- Foli v. Metro. Water Dist. of S. Cal.

California, Violation of Fundamental Liberties

• Plaintiff
  Debra Foli, et al.
• Defendant
  Metropolitan Water District of Southern California & Jeffrey Kightlinger
• State
  California
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  - Violation of Fundamental Liberties
• Citation

  No. 13-55302, 2015 WL 691214 (9th Cir. Feb. 19, 2015).

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• Court Name
  The Ninth Circuit Court of Appeals
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+/- Water Works Bd. v. City of Arab

Alabama, Abuse of Municipal Authority

• Plaintiff
  Water Works Bd. v. City of Arab
• Defendant
  Water Works Bd. v. City of Arab
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  Alabama
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  - Abuse of Municipal Authority
• Citation

  No. 1150674, 2016 Ala. LEXIS 145 (Ala. 2016).

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  Supreme Court of Alabama
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+/- Pure Wafer Inc. v. City of Prescott

Arizona, Violation of Fundamental Liberties

• Plaintiff
  Pure Wafer Inc. v. City of Prescott
• Defendant
  Pure Wafer Inc. v. City of Prescott
• State
  Arizona
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  - Violation of Fundamental Liberties
• Citation

  845 F.3d 943 (9th Cir. 2017).

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  2017-01-01T00:00:00
• Court Name
  4th Circuit Court of Appeals
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+/- Food & Water Watch, Inc. v. EPA

California, Improper Procedure

• Plaintiff
  Food & Water Watch, Inc. v. EPA
• Defendant
  Food & Water Watch, Inc. v. EPA
• State
  California
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  - Improper Procedure
• Citation

  No. 17-cv-02162-EMC, 2017 U.S. Dist. LEXIS 210431 (N.D. Cal. 2017)

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+/- Nemphos v. Nestle Waters N. Am., Inc.

Maryland

• Plaintiff
  Nemphos v. Nestle Waters N. Am., Inc.
• Defendant
  Nemphos v. Nestle Waters N. Am., Inc.
• State
  Maryland
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  775 F.3d 616 (4th Cir. 2015).

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  2016-01-01T00:00:00
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  4th Circuit Court of Appeals
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