Columbia, SC Fluoridation Fought

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DISPOSITION:

 [***1] 

Affirmed.

COUNSEL:
David A. Fedor, Esq., of Columbia,
for Appellant, cites:
As to the fluoridation of the water supply of the City of Columbia unduly
infringing upon the individual liberty of the Plaintiff in contravention of the
due process of clauses of the Federal and State Constitutions:
172 S.C. 16, 172 S.E. 689;
231 S.E. 56, 97 S.E. (2d) 71;
197 U.S. 11;
264 U.S. 504.
As to the fluoridation of the water supply of the City of Columbia violating
the guarantees of equal protection:
287 F. 381;
125 S.C. 538, 119 S.E. 242; Freund on Police Powers 116, Sec. 123;
197 U.S. 11;
137 U.S. 86;
241 S.C. 96, 127 S.E. (2d) 206.

Messrs. John W. Sholenberger and
Edward A. Harter, Jr., of Columbia,
for Respondents, cite:
As to Appellant not being denied due process of law within the meaning of the
Federal and
State Constitutions where the City Council after a hearing, ordered
fluorides added or adjusted to the City water supply to improve the dental health of the
residents of the City and others using its center:
225 La. 859, 74 So. (2d) 142;
75 S. Ct. 216, 348 U.S. 892, 99 L. Ed. 701;
119 Cal. App. (2d) 674, 260 P. (2d) 98;
74 S. Ct. 863, 347 U.S. 1012, 98 L. Ed.
 [***2]  1135;
273 P. (2d) 859, 43 A.L.R. (2d) 445;
75 S. Ct. 292, 348 U.S. 912, 99 L. Ed. 715;
163 Ohio St. 559, 127 N.E. (2d) 609;
76 S. Ct. 833, 351 U.S. 935, 100 L. Ed. 1463;
30 Ill. (2d) 504, 198 N.E. (2d) 326;
85 S. Ct. 665, 379 U.S. 964, 13 L. Ed. (2d) 558;
43 A.L.R. (2d) 453; 56 Am. Jur., Waterworks and Water Companies, Sec. 76, 1965 Cum. Supp. p. 79;
Anno.
43 A.L.R. (2d) 459; 1965 Cum.
Supp., McQuillin Municipal Corporations, Section 24.265, p. 26; Rhyne’s
Municipal Law 499, Sec. 23.6; 16 C.J.S., Const. Law, Sec. 2026, p. 991, 16
C.J.S., Const. Law, Sec. 206 (2), p. 1039; 16A C.J.S., Const. Law,
Sec. 493, note 48, p. 255; 16A C.J.S., Const. Law, Sec. 566, p. 536; 16A
C.J.S., Const. Law, Sec. 606, p. 737, note 69; 94 C.J.S., Waters, Sec. 278, p.
139; 31 C.J.S., Evidence, Sec.
50(4), p. 1040, note 59.5.
As to due process in South Carolina:
190 S.E. 286, 183 S.C. 263;
246 S.C. 268, 143 S.E. (2d) 455;
243 S.C. 351, 133 S.E. (2d) 843;
190 S.E. 826, 183 S.C. 263;
82 S.E. (2d) 191, 225 S.C. 289;
87 S.C. 566, 70 S.E. 296;
87 S.C. 573, 70 S.E. 299;
126 N.C. 999, 35 S.E. 459.
As to Appellant not being denied equal protection of the laws within the
meaning of the Federal and State Constitutions
 [***3]  : 16A C.J.S., Const. Law, Sec. 5021, p. 296; 16A C.J.S., Const. Law, Sec. 507,
p. 327; 16A C.J.S., Const. Law, Sec. 566, p. 536;
225 La. 859, 74 So. (2d) 142.

JUDGES: Bussey, Justice. Moss, Acting C.J., and Lewis and Brailsford, JJ., concur.
Legge, Acting J., dissents.

OPINIONBY: BUSSEY

OPINION:

 [*513] 

 [**346]  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.

 [*514]  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
 [***4] 
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 the lower court. The plaintiff
offered expert testimony tending to prove that
fluoridation would not be beneficial
 [***5]  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

 [*515]  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

 [**347]  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
 [***6]  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.

 [*516]  Except for the alleged unconstitutionality of
 [***7]  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
 [***8]  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

 [*517]  was taken in the trial of that case than in the

 [**348]  instant case. We quote from that decision the following pertinent language:

“The first issues thus confronting us are whether the fluoridation of water is
so related to the public
 [***9]  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
 [***10] 
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

 [*518]  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
 [***11]  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
 [***12]  Court has repeatedly denied
certiorari in these
fluoride cases for lack of
a substantial federal question. In addition to the complete

 [**349]  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.

 [*519]  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 matters.”

Plaintiff
places strong reliance on the decision of this court in the case
 [***13]  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

 [*520]  great importance to the general health of people. The
 [***14]  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
 [***15]  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,

 [**350]  and not unconstitutional on either of the grounds urged by the plaintiff.

The judgment of the circuit court is, accordingly,

Affirmed.

DISSENTBY: LEGGE

DISSENT: 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,
 [*521]  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.

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