198 N.E.2d 326;
1964 Ill. LEXIS 392
March 18, 1964
March 18, 1964, Filed
SUBSEQUENT HISTORY:
[***1]
Rehearing Denied May 19, 1964.
PRIOR HISTORY:
Appeal from the Superior Court of Cook County; the Hon. Samuel B. Epstein,
Judge, Presiding.
DISPOSITION: Decree affirmed.
COUNSEL: Albert W. Dilling and Kirkpatrick W. Dilling, both of Chicago, for appellants.
John C. Melaniphy, Corporation Counsel, of Chicago, (Sydney R. Drebin, William
Kafka, and Marvin E. Aspen, Assistant Corporation Counsel, of counsel,) for
appellees.
Peterson, Lowry, Rall, Barber
& Ross, of
Chicago, (Owen Rall and Peter M. Sfikas, of counsel,) for amicus curiae.
JUDGES: Mr. Justice Daily delivered the opinion of the court.
OPINIONBY: DAILY
OPINION:
[*506]
[**327] Mr. Justice Daily delivered the opinion of the court:
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
[***2] 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:
“* * * that steps for the
introduction of
fluoride in a concentration adequate for safety and in accordance
[**328] 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
[***3] by the Illinois Department of Health and it was set into operation on May 1,
1956.
[*507] 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
fluoride 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
[***4] 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
[*508] 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
[***5] 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, certiorari denied
348 U.S. 912, 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;
National Jockey Club v. Illinois Racing Com. 364 Ill. 630,) 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;
City of Chicago v. Rhine, 363 Ill. 619, 626.
The police power of the State is a basic attribute of sovereignty which exists
without any
[***6] special grant or reservation in the constitution, (Chicago Junction Railway
[**329] Co. v. Illinois Commerce Com. 412 Ill. 579;
Berry v. City of Chicago, 320 Ill. 536,) 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;
People ex rel. Kerner v. Huls, 355 Ill. 412,) and that the State of Illinois, as it may lawfully do, has delegated to its
municipalities the police power to protect the public health
[*509] 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.) 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
[***7] Ill.2d 401;
Vissering Mercantile Co. v. Annunzio, 1 Ill.2d 108;
Lawton v. Steele, 152 U.S. 133, 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;
Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384.) 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
[***8] conceived. (See:
Chapman v. City of Shreveport, 225 La. 859, 74 So. 2d 142, certiorari denied
348 U.S. 892, 99 L. ed.
701;
Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, certiorari denied
351 U.S. 935, 100 L. ed. 1463;
Dowell v. City of Tulsa, (Okla. 1954,) 273 P.2d 859, certiorari
[*510] denied
348 U.S. 912, 99 L. ed. 715;
de Aryan v. Butler, 119 Cal. App. 2d 674, 260 P.2d 98, certiorari denied
347 U.S. 1012, 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 Ore. 221, 292 P.2d 134;
Kaul v. City of Chehalis, 45 Wash. 2d 616, 277 P.2d 352;
City of Fort Pierce v. State ex rel. Altenhoff, (Fla. 1962,) 143 So. 2d 879; cf.
Wilson v. City of Council Bluffs, 253 Ia. 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
[***9]
things, that there were possibilities of risk and disadvantage to health.
(Association for Promotion of Health v. Town of Norrkopping, (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
[**330] 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.
[*511]
[***10] The result of these discoveries was extensive scientific study, research,
testing and experimentation which ultimately laid the basis for the program of
artifically 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
[***11] 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
[*512] 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,
[***12] 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 as 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 kidney stones. Additionally,
[**331] they testified that damage would result to the kidneys, liver and other vital
organs; that the nervous system would be directly and harmfully affected;
[***13] 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. They 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
[*513] 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
[***14] 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
[***15] 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
[*514] 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, (far 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
[***16] 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
[**332] 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
[*515] Chicago and other communities having a comparable program; and that a mottled
tooth was preferable
[***17] 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
[***18] of proving to the contrary is upon him who asserts the invalidity. (Kieg Stevens Baking Co. v. City of Savanna, 380 Ill. 303;
Stearns v. City of Chicago, 368 Ill. 112.) 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;
Dunlap v. City of Woodstock, 405 Ill. 410.) 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,
[*516] 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;
Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384.
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
[***19] 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
[**333] 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
[***20] 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
[*517] 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 excedes 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
[***21] 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
[***22] 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.
[*518] 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 it 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
[***23] 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
[**334] 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, 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
[*519] not be considered. (Pickus v. Board of Education, 9
[***24] Ill.2d 599;
Zehender & Factor, Inc. v. Murphy, 386 Ill. 258.) 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;
Jones v. Felix, 372 Ill. 262,) 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 therefore
affirmed.
Decree affirmed.
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