139 N.E.2d 158;
1956 Ind. LEXIS 247
December 26, 1956, Filed
PRIOR HISTORY:
[***1]
From the Marshall Circuit Court,
Alvin F. Marsh, Judge.
Edwin A. Teeter, and others, appellants, brought this action against the
Municipal City of LaPorte, Indiana, and others, appellees, to enjoin appellees
from adding
fluorides to the water supplied by the Municipal Water Works and to declare a city
ordinance
void which authorizes fluoridation. A demurrer was sustained, appellants
refused to plead over and judgment accordingly. Appellants appeal.
DISPOSITION:
Reversed.
COUNSEL:
Taylor, Allen, Matthews
& Gay, Harry S. Taylor, of South Bend, for appellants.
John Anderton, City Attorney of LaPorte,
Roule
& Raelson, of LaPorte,
Stevens
& Wampler, of Plymouth, and
John P. Daley, special counsel, of LaPorte, for appellees.
Edwin K. Steers, Attorney General,
Addison M. Dowling, and
Judson L. Stark, Deputy Attorneys General,
Amicus Curiae.
JUDGES: Emmert, J. Achor, C.J., Arterburn, Bobbitt and Landis, JJ., concur.
OPINIONBY: EMMERT
OPINION:
[*147]
[**158] This is an appeal from a judgment for appellees upon failure of appellants to
plead over after a demurrer had been sustained to an amended complaint for
injunction.
[**159] The amended complaint
[***2] sought to enjoin appellees, defendants in the trial court, from adding
fluorides to the water supplied by the municipal water works, to
declare void Section 27 of Ordinance 948 enacted by the Common Council of the
City of LaPorte in March, 1951. The questioned section reads as follows:
“The Municipal waterwords of the City is hereby authorized to add
Fluorides to the water for the purpose of reducing dental caries. And the Board of
Public Works and Safety of the
City is hereby authorized to purchase from the revenues of the water works the
necessary
Fluorides to be added, as well as any equipment to properly add such
Fluorides to the water distributed by the municipal water works.”
There was no motion filed by the defendants to make the amended complaint more
specific, n1 and when such
[*148] a complaint is tested by
demurrer all intendments are taken in favor of the pleading. 1 Lowe’s Work’s
Ind. Practice
§ 14.39, p. 565;
Rochester Bridge Co. v. McNeill (1919), 188 Ind. 432, 439, 122 N.E. 662;
Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N.E. 675, 102 N.E. 99;
Vandalia Coal Co. v. Coakley (1915), 184 Ind. 661, 111 N.E.
[***3] 426;
Lincoln Operating Co. v. Gillis (1953), 232 Ind. 551, 558, 114 N.E. 2d 873.
See also
State ex rel. Tittle v. Covington, Etc., Schools (1951), 229 Ind. 208, 214, 96 N.E. 2d 334.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n1 There was no motion filed to make the amended complaint more specific under
§ 2-1005, Burns’ 1946 Replacement. There was
a motion filed to require the plaintiffs to show by what authority the action
was brought on behalf of a certain religious organization and on behalf of the
LaPorte Committee Opposed to Fluoridation. The amended complaint omitted all
reference to the religious organization.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
The amended complaint attempted to plead a class action
under
§ 2-220, Burns’ 1946 Replacement, by alleging:
“1. That these plaintiffs are all citizens of the United States of America and
the State of Indiana, residing in LaPorte, Indiana, and bring this action to
assert their said rights of citizenship on behalf of themselves and for all
others of the class of such citizens residing in LaPorte,
Indiana, and entitled
[***4] to assert their rights of citizenship.“2. That plaintiffs are all resident taxpayers of the Municipal City of LaPorte,
Indiana, and bring this action on behalf of themselves in their capacity as
said taxpayers and on behalf of all others of said class residing in said City
of LaPorte, Indiana.“3. That plaintiffs are all users of water supplied by the City
Water Works, a utility operated by the Municipal City of LaPorte, Indiana, and
bring this action in their capacity of said water users and on behalf of all
persons in said class residing in said City and using such water supplied by
such public utility.“4. That certain of the plaintiffs are opposed to the enforced use of
medicinal properties and ingredients on religious scruples.“5. That all of the plaintiffs are members of an association known as the
LaPorte Committee Opposed to Fluoridation representing an organization of
approximately 3,000 persons, all residents of the City of LaPorte, Indiana, who
are opposing and have expressed their opposition to the use of[*149]
fluorides in the water supplied by the Municipal City of LaPorte
through its said Public Water Works, and they being this action in their
capacity as
[***5] members of such committee and organization and on behalf of the entire
membership of such organization.”
It is not necessary to summarize all the facts and contentions asserted by the
complaint,
[**160] but among other averments it alleged:
“27. That the toxic qualities of fluorines affect the health and physical
condition of different persons in various manners, some being peculiarly
allergic to same, and to require the entire population of said city to ingest
them, particularly when artificially and mechanically added, would have a
cululative [cumulative] toxic effect, particularly upon the aged, the ill, and
those suffering from chronic physical ailments, particularly cancer.”
It also alleged
violation of the constitutional rights, as set out in the note. n2
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n2
“33. That said ordinance violates Amendment I to the Constitution of the United
States in that it prohibits the free exercise of religious scruples, by such
persons who on account of such scruples are opposed to medication.
“34. That it violates Amendment XIV to the Constitution of the
United States in that it abridges the privilege and immunities of citizens of
the United States and deprives them of certain liberties, in that it becomes an
enforced method of taking drugs and giving same to their children, in water and
food, whereas each individual should have the right to determine what to drink
and eat without dictation from others, whether they be individuals or
municipalities.
“35. That on account of its restriction to freedom of the individual, it is in
violation of the Indiana Bill of Rights.”
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***6]
The first cause of the demurrer was on the ground there were several causes of
action improperly joined. Section 2-1009, Burns’ 1946 Replacement, provides,
“No judgment shall ever be reversed for any error
committed in sustaining or overruling a demurrer for misjoinder of causes of
action.” The preceding section requires the court, upon sustaining a demurrer for
misjoinder of causes of action, to note the misjoinder on the order-book, and
cause separate
[*150] actions to be separately docketed. Since there is no order-book
entry showing this, we must presume the demurrer was not sustained for
misjoinder of causes.
The second ground of the demurrer was for failure to state facts sufficient to
constitute a cause of action. We do not deem it necessary to consider all the
reasons and arguments cited in the memorandum to the demurrer in support of
this ground. There is
nothing in the memorandum whereby we would be authorized to hold that
rhetorical paragraph 27 of the amended complaint is untrue as a matter of law.
We do judicially know many cases have decided that fluoridation of public water
supply is a reasonable exercise of the police power.
Baer v. City of Bend
[***7] (1956), 206 Or. 221, 292 P. 2d 134;
Kraus v. City of Cleveland (1955), 163 Ohio St. 559, 127 N.E. 2d 609, appeal dismissed
351 U.S. 935, 100 L. Ed. 646, 76 S. Ct. 833 (1956);
Froncek v. City of Milwaukee (1955), 269 Wis. 276, 69 N.W. 2d 242;
Dowell v. City of Tulsa (1954), — Okla. –, 273 P. 2d 859, certiorari denied
348 U.S. 912, 99 L. Ed. 715, 75 S. Ct. 292 (1955);
Kaul v. City of Chehalis (1954), 45 Wash. 2d 616, 277 P. 2d 352;
Chapman v. City of Shreveport (1954), 225 La. 859, 74 So. 2d 142, appeal dismissed
348 U.S. 892, 99 L. Ed. 701, 75 S. Ct. 216 (1954);
DeAryan v. Butler (1953), 119 Cal. App. 2d 674, 260 P. 2d 98, certiorari denied
347 U.S. 1012, 98 L. Ed. 1135, 74 S. Ct. 863 (1954). Only one of these cases was an appeal from a judgment on a demurrer, and there
were
admissions made by counsel in an oral argument and it does not appear the
complaint alleged fluoridation had toxic effects. n3
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n3
“Although there is no direct benefit to adults, it is not alleged, nor is it
contended, that the consumption of water so treated is harmful to them or
anyone else. The concessions of counsel for the plaintiff to which we have
referred only harmonize with scientific findings reflected in the opinions of
the courts which have been called upon to consider constitutional challenges to
similar legislation.”
Baer v. City of Bend (1956), 206 Or. 221, 223, 224, 292 P. 2d 134.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***8]
[*151] We have been cited to numerous scientific articles
by appellants and appellees, but
[**161] under the present state of scientific experience and opinion we do not feel we
are in a position to hold conclusively as a matter of law fluoridation will not
have cumulative toxic effects. If it does, such will be a matter of proof by
the plaintiffs in the trial court when the
issues are tried there. If there should be conflicting evidence on this issue
the trial court is in a position to weigh it, and we are not.
It is not necessary to decide the constitutional issues at this stage of the
proceeding, since anything we might decide now would be without proof first had
in the trial court.
Judgment reversed with instructions to overrule the demurrer and
for further proceedings consistent with this opinion.
Achor, C.J., Arterburn, Bobbitt and Landis, JJ., concur.
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