1966 La. App. LEXIS 4588
November 21, 1966
DISPOSITION:
[**1]
Affirmed.
COUNSEL: Miriam T. Attaya, Gonzales, Gordon M. White, Baton Rouge, for Appellants.
Penrose C. St. Amant, of St. Amant
& Crawford, Gonzales, for Appellees.
JUDGES: Landry, Ellis and Bailes, JJ.
OPINIONBY: LANDRY
OPINION:
[*189] This action originated as a suit by fifteen citizens of the Town of Gonzales,
Ascension Parish (sometimes hereinafter referred to simply as
“The Town” or
“The Municipality”), wherein the numerous petitioners prayed for the issuance of a preliminary
injunction prohibiting and restraining the Mayor and Board of Aldermen of said
Municipality (Governing Authority) from fluoridating the municipal
water supply. At one stage or another of the proceedings, the suit has been
abandoned by all save one of the original petitioners, namely, Henry E. Attaya,
who alone appeals the judgment of the trial court dismissing and rejecting his
said demands.
We conclude our learned brother below has correctly resolved the numerous
issues presented herein for
determination.
In substance the petition filed herein recites that pursuant to a motion or
resolution adopted August 10, 1964, the governing authority proposed to
fluoridate the municipal water supply and that such intended
[**2] action will damage petitioners
“since it may produce certain ill effects in them” and that they
“would be forced to take
medicine against their will, since there is only one source of water for the
people to drink.” Upon the foregoing allegations petitioners prayed for judgment
“decreeing the above described acts of the defendants to be injurious to
plaintiffs and an impairment of their rights” and further prayed for the issuance of a preliminary injunction restraining
and
prohibiting the Governing Authority from proceeding with the proposed
fluoridation of the municipal water supply.
The Governing Authority responded by filing exceptions of no right and no cause
of action which were referred to the merits by the trial court. Apparently
said exceptions have never been passed upon.
At a pre-trial conference, the lower
court ruled that fluoridation of a municipal water supply was a proper exercise
of the police power vested in the Governing Authority pursuant to the ruling in
Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, and limited the issue upon trial solely to the question of whether the
Governing Authority acted reasonably in ordering the proposed fluoridation. The
[**3] trial court also declined to permit introduction of evidence to prove or
disprove the relative merits or demerits of fluoridation in general.
Notwithstanding his aforesaid ruling, however, our colleague below permitted
all parties to introduce into the record any and all depositions, books,
pamphlets, periodicals or
other literature concerning fluoridation which they desired. As as result the
record contains numerous depositions in addition to a considerable volume of
scientific and professional information and studies pointing out both the
favorable and unfavorable aspects of fluoridation.
In substance appellant attacks the legality of the aforesaid action of the
Governing Authority on
two basic grounds: First, it is contended the authority for the action, a
motion or resolution adopted August 10, 1964, is null, void and of not effect
because of defects of form and procedure. In this regard appellant argues the
motion
[*190] or resolution is violative of the provisions of LSA-R.S. 33:406 because (a) it
was not
presented to the Governing Authority in writing; (b) it was not signed by the
Mayor and Clerk, and (c) it was not published or promulgated within twenty days
of its
[**4] adoption. Secondly, the action of the Governing Authority is assailed on
constitutional grounds. In this respect counsel for appellant contends (1) The
resolution was secretive,
unreasonable and arbitrary; (2) The action was taken hastily without due
deliberation and upon inadequate information and investigation by the Governing
Authority, and (3) Fluoridation constitutes an invasion of appellant’s freedom
of choice guaranteed by the Fourteenth Amendment to the Constitution of the
United States.
The assignment of alleged errors argued by
counsel for appellant both in brief and oral argument before this court may be
summarized as follows: (1) The trial court erred in concluding the motion of
August 10, 1964 was valid as to form and procedure; (2) The lower court
incorrectly held adoption of the motion was a valid
exercise of the police power of the Municipality by declining to find the
action of the Governing Authority secretive, unreasonable and arbitrary; (3)
The trial court mistakenly held the action of the Governing Authority was taken
after full investigation and disclosure of the subject matter of fluoridation;
(4) The trial court erroneously found that fluoridation did
not
[**5] infringe upon appellant’s constitutional guarantee of freedom of choice and
consequent right to be free of enforced medication, and (5) The district
tribunal incorrectly refused to permit appellant to prove his allegation that
fluoridation might be harmful.
Considering first appellant’s contention the motion or resolution of August 10,
1964 was invalid because of
failure to follow the form and procedure prescribed by LSA-R.S. 33:406, we
point out that the Municipality is chartered pursuant to the Lawrason Act
(LSA-R.S. Title 33, Chapter 2, Part I, Sections 321-481, inclusive). As
contended by counsel for appellant, LSA-R.S.
33:406 provides that municipal ordinances shall be presented in writing, shall
be read section by section and after adoption shall be signed by the Mayor and
Clerk and published within twenty days of adoption. While the record before us
is not conclusive regarding the circumstances surrounding the motion or
resolution
attacked, we are of the opinion it preponderates in favor of the conclusion
that the motion was not in fact presented to the Governing Authority in
writing. The record also leaves serious doubt whether the resolution in
question was properly promulgated
[**6] within twenty days of its adoption. We point out also that appellant argues
the action of the Municipality being
legislative in nature could only be accomplished by an ordinance as
distinguished from a resolution or motion.
It is unnecessary to answer any of the arguments of appellant regarding the
alleged defects in form attributed to the motion or resolution of August 10,
1964. We find in the record an ordinance adopted by the Governing Authority on
May
24, 1965, ordering controlled fluoridation of the municipal water supply by
directing the Utilities Manager to adjust its
fluoride content to the level of one part of
fluoride per million parts of water as recommended by the Louisiana State Board of
Health and maintain said ratio by periodic addition of such quantities of
fluoride as may be necessary.
Not only has counsel for appellant failed to attack the ordinance of May 24,
1965, but also the record reveals beyond doubt said ordinance was eminently
proper as to form and was duly promulgated, all in strict accordance with the
provisions of the controlling statute LSA-R.S. 33:406. Consequently, we
hold that the question of validity of the motion or resolution of August 10,
[**7] 1964, has been rendered moot by adoption of the ordinance approved May 24,
1965. Since there exists upon the records of the Municipality an ordinance
valid as to form covering the subject matter of
[*191] this litigation any comment by this court upon the alleged invalidity of
a prior motion or resolution would be pure obiter dictum.
Adverting now to appellant’s attack on the ordinance upon constitutional
grounds, we initially note that the Supreme Court of this state in
Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142, has expressly held fluoridation of a
municipal water supply bears a reasonable relation to the general welfare and
health of the citizens of the community and as such constitutes a valid
exercise of the police powers vested in municipalities pursuant to Louisiana
Constitution of 1921, Article 14, Section 37.
Counsel for appellant acknowledges the authority of the municipality to
exercise its police powers but contends that nevertheless such powers cannot be
exercised secretively, unreasonably or arbitrarily upon authority contained in
Town of Jonesville v. Boyd, 161 La. 278, 108 So. 481 and
State ex rel. Galle v. City of New Orleans, 113 La. 371, 36
[**8] So. 999, 67 L.R.A. 70. On this premise it is argued the action of the Governing Authority in enacting
both the motion of August 10, 1964, and the ordinance of May 24, 1965, are
invalid because they were adopted without notice to the public and without
sufficient information or investigation to enable the Governing Authority to
intelligently
consider the subject matter.
Our careful consideration of the voluminous testimony appearing in the record
shows that appellant’s foregoing contention is without foundation. It
conclusively appears that fluoridation of the Town’s water supply was a plank
in the campaign platform of the Mayor and at least one of the present Aldermen
in the election which preceded
by some months adoption of the resolution or motion of August 10, 1964.
Likewise it is shown that on one occasion a full page advertisement was run in
the local paper at the expense of certain citizens extolling the virtues of
fluoridation and urging fluoridation of the municipal water supply as a health
measure. Further, it
appears that, preceding adoption of the August 10th resolution, the Mayor and
members of the Board of Aldermen attended a meeting of the Lions Club of
Gonzales,
[**9] a civic organization, at which one of the club members, Dr. Doyle F. Philippe,
D.D.S., showed two movies which in some degree detailed the cases of both the
proponents and opponents of fluoridation. On this occasion Dr. Philippe
personally discussed fluoridation and recommended its adoption for the Town of
Gonzales.
At the August 10, 1964 meeting, Dr. Philippe appeared in person and urged the
Governing Authority to proceed with the proposed fluoridation project. He
presented the Governing Authority a document
containing the written approval and endorsement of fluoridation by every
physician, dentist and pharmacist then practicing in the area. In addition,
Dr. Philippe submitted for consideration by the Governing Authority a
voluminous amount of literature consisting of documents, pamphlets, studies and
reports of various organizations, some of which favored,
endorsed and recommended fluoridation while others condemned and opposed the
practice. The literature of record discloses that among those organizations
favoring and recommending fluoridation of public water supplies may be found,
inter alia, The American Dental Association, The American Nurses Association,
The American Hospital
[**10] Association, all branches of the United States
Armed Services, The Louisiana State Board of Health and the United States
Department of Public Health, Education and Welfare. Certain literature of the
American Medical Association appearing in the record discloses the policy of
said organization to be that whereas it considers fluoridation beneficial to
public health, nevertheless it neither recommends nor disapproves fluoridation
of
public water supplies.
As appears from both his testimony and deposition of record herein, Dr.
Philippe
[*192] quite frankly advised the Governing Authority that fluoridation was a
controversial subject. He further declared that based on research which
involved consideration of literature both pro and con the subject, he was of
the firm opinion there was no sound basis
for opposition and that fluoridation would benefit the residents of the
community, especially the youth for whom fluoridation would mean less dental
cavities.
Under the circumstances it can hardly be said the action of appellee was
secretive, arbitrary, capricious or unreasonable. Granted the subject of
fluoridation is controversial as hereinbefore shown, such circumstance alone
[**11] does not prohibit the Governing Authority of
a municipality from decreeing fluoridation of its water supply.
Appellant’s argument that fluoridation infringes upon his constitutional
guarantee of freedom of choice as insured by the Fourteenth Amendment to the
Federal Constitution in that it results in enforced medication is answered by
the following in
Chapman v. City of Shreveport, supra:
“Appellees contend that it is arbitrary and unreasonable to compel a person to
submit to the taking of preventive medicine except for the purpose of
controlling the spread of contagious or infectious diseases. Their argument is
not entirely appropriate to the instant case. In the first place there is no
direct compulsion on anyone to drink the water. The compulsion at
most is an indirect one, but it cannot be questioned, of course, that the
fluoridation is undertaken with the view that the citizens or a large majority
of them will receive its benefits by drinking the public water. The witnesses
from the dental profession considered that the addition of
fluoride to the water was not medicating it in the generally accepted sense, but was
adding to it one of the mineral properties found naturally
[**12] in water in some sections of the country.”
We note similarity between the case at bar and that of
Chapman v. City of Shreveport, supra, to the effect that the degree of fluoridation decreed in each instance is
identically the same, namely, one part
fluoride to one
million parts water. Further likeness is to be found in the circumstance that
in each instance the petitioner alleged merely that fluoridation
“may” be harmful and that there was no specific averment that fluoridation was in
fact harmful.
The remaining contention of appellant is that the trial court erred in
declining to permit proof of his allegation that
fluoridation might be harmful to his physical welfare.
The ordinance in question is entitled
“An ordinance to promote the health, safety, convenience and general welfare of
the inhabitants of the Town of Gonzales, State of Louisiana, by providing for
the adjustment of the
fluoride content of the municipal water supply for the purpose of reducing the
incidence of dental
caries.”
Chapman v. City of Shreveport has settled the question that fluoridation of a
municipal water supply is a legitimate exercise of the police power vested in a
municipal governing
[**13] authority. It is also settled law that courts are hesitant to interfere with
or control any legislative body in the exercise of its lawful police
powers. In this area the courts have historically recognized that a wide
latitude exists in legislative bodies at all levels of government to determine
the necessity for protecting the health, safety and general welfare of the
people.
West Coast Hotel Company v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703, and the numerous cases therein cited. That our own state follows this same
general rule is evident from the following language appearing in
Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142:
“There is no merit in appellees’ argument that, if the
city charter grants to the city council of Shreveport authority to fluoridate
its water supply, such action[*193] to that extent is a violation of the Fourteenth Amendment of the United States
Constitution. The Fourteenth Amendment does not deprive a state or its
subdivisions of the right to preserve order or to protect the health of the
people under its police power, and
in the exercise of its power the legislative branch may interfere with and
impair the individual
[**14] liberty of the citizens in a manner and to an extent reasonably necessary for
the public interest, and the courts will not interfere except where the
measures invade fundamental rights or are arbitrary, oppressive, or
unreasonable. This is not a proper
case for judicial interference. See Cooley on Constitutional Law (4th ed.), p.
289; 2 Cooley’s Constitutional Limitations (8th ed.), pp. 1223 et seq.;
Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643;
State v. McCormick, 142 La. 580, 77 So. 288, L.R.A. 1918C, 262.”
Granted some of the literature appearing of record does contend that
fluoridation may be harmful, nevertheless we are convinced, as were the members
of the Governing Authority, that the overwhelming weight of the evidence
establishes the contrary and shows that the public has nothing to fear from
fluoridation. That fluoridation may be a controversial subject does not in
itself justify the court substituting their judgment for that of the
legislative body. The merits or demerits of the subject, in the absence of a
clear showing of abuse of discretion, unreasonableness or capriciousness on the
part of the legislative body, is solely
[**15] within the province of the Governing
Authority. Furthermore, conceding the wisdom of legislative choice may be
questionable with respect to a debatable or controversial issue, again such
circumstance does not justify judicial interference with the legislative choice
absent a clear abuse of legislative discretion or a showing of arbitrariness or
unreasonableness on the part of the legislative body. We believe the
foregoing principle peculiarly applicable in the instant case because appellant
herein does not argue that fluoridation IS HARMFUL but merely that he has the
right to establish that it MAY BE harmful. An adverse determination having
been made by the Governing Authority after what we deem a reasonable and proper
study, investigation and consideration of the subject matter by the
legislative body concerned, this court is unable to find that the Governing
Authority exceeded its police powers or acted either unreasonably, arbitrarily
or capriciously.
Chapman v. City of Shreveport, supra.
Accordingly, the judgment of the trial court is affirmed at appellant’s cost.
Affirmed.
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