>
n1 Reported in 277 P. (2d) 352.
277 P.2d 352;
1954 Wash. LEXIS 455
December 2, 1954
SUBSEQUENT HISTORY:
[***1]
Petition for Rehearing Denied January 13, 1955.
PRIOR HISTORY:
Appeal from a judgment of the superior court for Lewis county, No. 21896,
Murray, J., entered December 1, 1952, upon findings in favor of the defendants,
in an action for injunctive relief, tried to the court.
DISPOSITION: Affirmed.
HEADNOTES:
[1] Appeal and Error — Review — Findings — Conclusiveness. Where the
appellant does not question the findings of fact entered by the trial court,
they become the established facts in the case.
[2] Health — Police Power — Prevention of Common Diseases — Dental Caries.
Although dental caries is neither infectious nor contagious, it is
a common disease of mankind, and, as such, its prevention and extermination
come within the police power of the state.
[3] Municipal Corporations — Police Power — Public Health. A city ordinance
providing that a source of fluoridation be added to the city water supply is
not in conflict with general laws, nor does it detract from the
constitutional and statutory grants to the city to make and enforce local
police, sanitary, and other regulations.
[4] Same. Such an ordinance is not
ultra vires simply because the police power is exercised
[***2] through a municipal agency operated by the city in its proprietary capacity.
[5] Same. Where a city,
in providing that a source of fluoridation be added to its water supply, acted
in the exercise of its police power for the protection of public health to
prevent the introduction and spread of dental caries among its citizens, the
subject matter of such exercise of power and its expediency are beyond judicial
control, except as they may violate some
constitutional right guaranteed to its citizens.
[6] Same — Use and Regulation of Public Water Works — Duty to Furnish
Wholesome Water. It is the duty of a city operating a water system to furnish
its citizens with wholesome water, free from contamination.
[7] Constitutional Law — Personal Rights — Constitutional Guarantees —
Health Regulations — Fluoridation of Water Supply. Where it appears that a
city, after the fluoridation of its water supply, will continue to furnish
wholesome water, the city’s obligation to its citizens is fulfilled and none of
their constitutional rights are violated.
[8] Health — Police Power — Public Health — Regulation — Scope. The police
power,
exercised in the realm
[***3] of public health, is not limited solely to the control of contagious diseases
as distinguished from noncontagious diseases; and, under the police power, a
health regulation may be an effective public measure without the existence of
some immediate public necessity.
[9] Municipal Corporations — Ordinances — Referendum — Emergency
Clause. Where no referendum petitions were presented to the city clerk within
thirty days after an ordinance was passed, it is immaterial whether the
ordinance properly specified an emergency.
[10] Same — Police Power — Public Health — Fluoridation of Water. A city
which adds a source of fluoridation to its water supply is not thereby
engaged in selling drugs, or practicing medicine, dentistry, or pharmacy as
defined by statute.
[11] Same — Fiscal Management — Appropriation of Funds. The appropriation by
a city of funds under an ordinance providing for the fluoridation of its water
supply, to effect its purpose, is valid under applicable state
law.
COUNSEL:
Karr, Tuttle
& Campbell, Robert K. Keller, and
James B. Carroll, for appellant.
Lee J. Campbell, for respondents.
JUDGES:
En Banc. Weaver, J. Mallery, Schwellenbach,
[***4] Finley, and Olson, JJ., concur. Hill, J. (dissenting). Hamley, J., concurs
with Hill, J. Donworth, J. (dissenting). Hill, J., concurs with Donworth, J.
Hamley, J. (dissenting). Grady, C. J., Hill, and Donworth, JJ.,
concur with Hamley, J.
OPINIONBY: WEAVER
OPINION:
[*617]
[**353] Appellant challenges the validity of ordinance No. 653-A adopted June 25,
1951, by the city commissioners 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.”
[1] 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 Wn. (2d) 47, as amended, effective January 2, 1953.
In his memorandum opinion, the trial judge said:
“The questions
[***5] to be determined by this court are purely
legal and constitutional questions, and will be dealt with only from that
standpoint. It is of no consequence or importance
[*618] 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. Grandview, 39 Wn. (2d) 551, 553, 236 P. (2d) 1061 (1951)), 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
[***6] 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. (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
[**354] 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
[*619] with prejudice. Seven assignments of error are directed to the conclusions of
law; one is directed to entry of judgment.
Did the city council
[***7] 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, p. 634 (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
[***8] 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. Shreveport (1954), No. 116282, First District Court, Caddo Parish, Louisiana.)
Laws of 1909, chapter 249,
§§
290, 291, p. 979 (Rem. Rev. Stat.,
§ 2542 [cf. RCW 70.54.010]) (Rem. Rev. Stat.,
§ 2543 [cf. RCW 70.54.020]) and Laws of 1899, chapter 70, p. 114 (Rem. Rev. Stat.,
§§ 9473, 9475, 9476, 9477 [cf.
RCW 35.88.010-020, RCW 35.88.050-070]) contain numerous provisions, both penal
and otherwise, designed to insure the purity of water supplies.
[*620]
[2] 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, 36 Wn. (2d) 522, 525, 219 P. (2d) 566 (1950), 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
[***9] 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, p. 236 [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 the 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:
[**355]
“Sec. 19. Fluoridation of Public Water Supplies. An owner [which
[***10] 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 procedures are followed as outlined
herein: . . .”
(This rule was amended July 25, 1952, but its purpose was not changed.)
[*621]
[3, 4] 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.
[5] 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. Tulsa, 273 P. (2d) (Okla.) 859 (1954) (fluoridation of water).
We fail to see, however, where
[***11] 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.)
[6, 7] 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
[***12] water. This fulfills the city’s obligation to appellant and violates none of
his constitutional rights.
[*622] This conclusion finds support in
DeAryan v. Butler, 119 Cal. App. (2d) 674, 260 P. (2d) 98 (1953),
Dowell v. Tulsa, 273 P. (2d) (Okla.) 859 (1954), and
Kraus v. Cleveland, 116 N. E. (2d) 779 (1953), affirmed
121 N. E. (2d) 311 (1954).
Subsequent to the cited opinion of the
DeAryan
case,
supra, it became final when the supreme court of California denied a petition for a
hearing. June 7, 1954, the United States 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:
“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 The University of Calif., 293 U.S. 245 [55 S. Ct. 197, 79 L. Ed. 343];
West Virginia State Board
[***13]
of Education v. Barnette, 319 U.S. 624 [63 S. Ct. 1178, 87 L. Ed. 1628, 147 A. L. R. 674];
Cantwell v. State of Connecticut, 310 U.S. 296, 303 [60 S. Ct. 900, 84 L. Ed. 1213, 128 A. L. R. 1352].)”
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
[**356] 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. Tulsa, 273 P. (2d) (Okla.) 859 (1954).
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
[***14] of the police power, for the protection of public health, to prevent the
introduction or spread of
contagious
[*623] or
communicable diseases.
Jacobson v. Massachusetts, 197 U.S. 11, 49 L. Ed. 643, 25 S. Ct. 358, 3 Ann. Cas. 765 (1904) (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. 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.
[8] 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
[***15] 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, 16 Wn. (2d) 373, 133 P. (2d) 803 (1943) (compulsory
flag salute held unconstitutional);
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (compulsory flag salute unconstitutional); and
Pierce v. Society of Sisters and Hill Military Academy, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571, 39 A. L. R. 468 (1925) (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.
[*624] It is unfortunate that the case of
Chapman v. Shreveport, (1954)
[***16] 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 plaintiff’s
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
[**357] 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
[***17] cannot concern ourselves), appears in considerable detail in the opinion of
Judge Artl in
Kraus v. Cleveland, 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
121 N. E. (2d) 311 (1954); the
Chapman case,
supra, was reversed in
74 So. (La.) (2d) 142 (1954).
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.
[*625] We are convinced by the reasoning of the
Kraus, Dowell, Chapman, and
DeAryan 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.
[9-11] Appellant’s remaining assignments of error are directed to the trial court’s
[***18] 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.
DISSENTBY: HILL; DONWORTH; HAMLEY
DISSENT: Hill, J. (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
[***19] 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 decay primarily
in children up to 14 years of age, and particularly between the ages of
[*626] 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
[***20] appellant is that the ordinance deprives him of
“liberty . . . without due process of law,” in violation of the constitution of the United States, amendment
[**358] 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
[***21] 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).
[*627] 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
[***22] 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
[*628] from coercion, freedom of choice,
[***23] 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):
”
[**359] 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
[***24] 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
[*629] 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
[***25] 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, 197 U.S. 11, 49 L. Ed. 643, 25 S. Ct. 358 (1904). Mr. Justice Harlan, in the course of the opinion, used the following quotation
from
Crowley v. Christensen, 137 U.S. 86, 89, 34 L. Ed. 620, 11 S. Ct. 13 (1890):
“‘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
[***26] 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.
[*630] 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
[**360]
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
[***27] 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. 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
[***28] that was said by the supreme court of Louisiana in reversing Judge Galloway (Chapman v. Shreveport, 74 So. (2d) (La.) 142 (1954)) 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
[*631] 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 medical
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, cure, mitigation, treatment, or
prevention of disease in man. . . .” (Italics mine.)
21 U. S. C. A. (Sup.), § 321(g).
[***29] 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
[***30] 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
[*632] ordinance
[**361] 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, 39 Wn. (2d) 860, 239 P. (2d) 545 (1952), 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
[***31] 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, 103 Wash. 409, 174 Pac. 973 (1918);
McDermott v. State, 197 Wash. 79, 84 P. (2d) 372 (1938);
State v. Sears, 4 Wn. (2d) 200, 103 P. (2d) 337 (1940);
State v. Boren, 36 Wn. (2d) 522, 219 P. (2d) 566, 20 A.
[***32] L. R. (2d) 798 (1950).
[*633] 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
[***33] 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
[**362] laid
[*634] 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, 249
[***34] U.S. 47, 63 L. Ed. 470, 39 S. Ct. 247 (1919) (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, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A. L. R. 674 (1943);
Thomas v. Collins, 323 U.S. 516, 89 L. Ed. 430, 65 S. Ct. 315 (1944). 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
[***35] States constitution.
I dissent. The judgment should be reversed.
Donworth, J. (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.
[*635] 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 priniciple 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
[***36] 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 transmission of medicine from the apothecary’s pestle to the
mouth of 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,
[***37] 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. Grandview,
[**363] 39 Wn. (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
[*636] 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 Wn. (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
[***38] 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. 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
[***39] 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
[*637] vires and the ordinance purporting to authorize such action is void. See
Woodward v. Seattle, 140 Wash. 83, 248 Pac. 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
[***40] 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
[**364] 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
[*638] of the
opinion that the judgment should be reversed and the proposed
[***41] fluoridation enjoined.
Hamley, J. (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 Wn. (2d) 373, 133 P. (2d) 803 (compulsory flag salute);
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A. L. R. 674 (compulsory flag salute);
[***42] and
Pierce v. Society of Sisters and Hill Military Academy, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571, 39 A. L. R. 468 (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
[*639] 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
[***43] 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, 34 L. Ed. 620, 11 S. Ct. 13), or by
[***44]
“pressure of great dangers”
[**365] (Jacobson v. Massachusetts, 197 U.S. 11, 49 L. Ed. 643, 25 S. Ct. 358).
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. 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
[*640] 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
[***45] 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,
[***46] 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
[*641] 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 my dissent in
State ex rel. Holcomb v. Armstrong, 39 Wn. (2d) 860, 873, 239 P. (2d) 545, now becomes more urgent than ever:
“Can we, . . . withstand the insidious erosion [of our basic liberties]
[***47] 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?”
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