132 N.W.2d 16;
1965 Mich. LEXIS 340
January 5, 1965, Decided
PRIOR HISTORY:
[***1]
Appeal from Wayne; Bowles (George E.), J.
DISPOSITION: Affirmed.
HEADNOTES: 1. Evidence — Judicial Notice — Fluoridized Public Water.
The Supreme Court takes judicial notice of the fact that millions of people,
including 2/3 of the 18 major cities, were drinking water containing
supplemental
fluoride and that 72 communities in this State were supplying approximately 1,250,000
people with water so
supplemented.
2. Judgment — Summary Judgment — Material Issues of Fact.
The mere existence of issues of fact is no bar to entry of summary judgment for
defendants, if, upon resolving all such issues in favor of plaintiffs, the
defendants would still be entitled to a judgment as a matter of law; it being
necessary that there be
material issues of fact presented in order to bar entry of summary judgment
(GCR 1963, 117.2[1]).
3. Constitutional Law — Police Power — Public Health.
The police power of a State must be held to embrace such reasonable regulations
established directly by legislative enactment as
will protect the public health and the public safety.
4. Same — Public Health — Local Bodies.
A State may invest local bodies called into existence for purposes of local
administration
[***2] with authority in some appropriate way to safeguard the public health and the
public safety.
5. Same —
Liberty of the Individual.
The liberty secured by the Constitution of the United States to every person
within its jurisdiction does not import an absolute right in each person to be,
at all times and in all circumstances, wholly freed from restraint.
6. Same — Protection of Public.
The power of the public to guard itself against imminent
danger does not depend in every case involving the control of one’s body upon
his willingness to submit to reasonable regulations established by the
constituted authorities, under sanction of the State, for the purpose of
protecting the public collectively against such danger.
7. Evidence — Common Knowledge.
The court must
know what everybody knows.
8. Health — Statutes — Common Relief.
A legislature, in choosing a method of protecting the public health or public
safety, is not compelled to commit such a matter to the final decision of a
court or jury, and where it does not do so, the legislature’s choice is made
law in the
light of all the information it had or could obtain, notwithstanding that it
may be the common belief of the mass
[***3] of the people is not accepted universally.
9. Evidence — Common Belief.
A common belief, like common knowledge, does not require evidence to establish
its existence, but may be acted upon without proof by the legislature and the
courts.
10. Health — Statutes.
A legislative enactment based on the common belief of the people of the State
that the public health would be protected thereby, is a reasonable and proper
exercise of the police power, hence, neither a court nor a jury may disregard
such legislation.
11. Evidence — Judicial Notice — Common Belief —
Fluoridation — Dental Caries — Public Health.
A court may take judicial notice of the common knowledge or belief that
fluoridation of public water supply is beneficial to prevent dental caries and
so improve public health.
12. Judgment — Summary Judgment — Injunction — Fluoridation of Public Water
Supply — Police
Power.
Summary judgment for defendant was the proper disposition of suit to enjoin
city from fluoridation of its public water supply, where claimed issues of fact
were immaterial, being matters of opinion relating to the efficacy or effects
of fluoridation not decisive of whether the police power was properly
[***4] exercised within constitutional limitations (GCR
1963, 117.2[1]).
13. Health — Prevention of Disease — Dental Caries — Fluoridation of Public
Water.
It is not essential to the adoption of a public health measure that the disease
involved be an infectious or contagious one, hence, a duly adopted city
ordinance to fluoridate public water supply to prevent dental
caries was not an improper measure to protect and improve the public health.
14. Municipal Corporations — Fluoridation of Public Water.
A home-rule city is
held, to have authority to adopt an ordinance providing for the fluoridation of the
public water supply so as to prevent dental caries, pursuant to the
Constitution, statutes, and its charter, such
action being not in conflict with charter requirement for furnishing pure and
wholesome water (Const 1908, art 8,
§§ 20, 21; CL 1948 and CLS 1961,
§ 117.1
et seq.; Detroit Charter, title 3, ch 1,
§§ 1,
12, title 4, ch 1,
§ 12, ch 12,
§§ 1, 7).
15. Health — Fluoridation of Public Water Supply — Practice of Medicine or
Dentistry.
The fluoridation of the public water supply of a city for the purpose of
preventing dental caries is not the practice of medicine
[***5] or
dentistry or treatment of children by health officers.
16. Costs — Public Question — Municipal Corporations — Fluoridation of Water.
No costs are allowed in class action to enjoin city from enforcing a water
fluoridation ordinance, and to have it declared illegal and void, a public
question being involved.
SYLLABUS: Bill by Frank Rogowski and others against City of Detroit, a municipal
corporation, Common Council of City of Detroit, Board of Water Commissioners of
City of Detroit, and Board of Health of City of Detroit to enjoin the
fluoridation of the city’s water. Michigan State Dental Association, a
Michigan nonprofit
corporation, and Detroit District Dental Society intervened as defendants.
Summary judgment for defendants. Plaintiffs appeal.
COUNSEL:
Craig Thompson, for plaintiffs.
Robert Reese, Corporation Counsel,
John F. Hathaway and
John D. O’Hair, Assistant Corporation Counsel, for defendants.
Clark, Klein, Winter, Parsons
& Prewitt (H. William Butler, Douglas E. Peck, and
Laurence M. Scoville, Jr., of counsel),
for intervening defendants.
JUDGES: Dethmers, J. Kelly, Souris, Smith, O’Hara, and Adams, JJ., concurred with
Dethmers, J. Kavanagh,
[***6] C. J., and Black, J., concurred in result.
OPINIONBY: DETHMERS
OPINION:
[*411]
[**18] Plaintiffs are residents of Detroit and users of water supplied by it. They
brought this chancery action to enjoin defendant city, its common council,
board of water commissioners, and board of health from enforcing a water
fluoridation ordinance, and to have it declared illegal and void. An order
entered declaring this to be a class action, on behalf of all
users of Detroit’s public water supply who object to its fluoridation. The
State Dental
[*412] Association and Detroit Dental Society were permitted to intervene as parties
defendant. Defendants moved for summary judgment in their favor. Their motion
was granted, the court holding the ordinance to be valid. Plaintiffs appeal.
The ordinance, as adopted by
defendant city’s common council, stated that it was adopted in furtherance of
the city’s policy, pursuant to its police power, to promote public health. It
directed the defendant city board of water commissioners, in cooperation with
the defendant city board of health, to institute fluoridation of the city’s
water supply.
Plaintiffs’ bill of
complaint challenges the validity of
[***7] the ordinance on the following grounds: (1) that the council is given no
authority to enact it either by State statute or the city charter and that it
is violative of the latter; (2) that it violates a statute forbidding wholesale
treatment of children by health officers, other than to control epidemics of
infectious or
contagious diseases, without written consent of their parents; (3) that its
adoption does not come within the reasonable exercise of the city’s police
power and thus is unconstitutional because (a) no preponderance of evidence can
be produced to prove that fluoridation of water actually reduces tooth decay,
as claimed by defendants, (b) fluoridation
harms the teeth of a substantial number of children, (c) fluoridation will not
benefit adults, but large numbers of them may be physically harmed thereby; (4)
that the ordinance purports to benefit public health but the improvement would
be very slight, if any, it has no real or emergency relation to public health,
and it invades the private
rights of persons to choose for themselves what medications they will take; (5)
that it is an attempt to subject people to scientific and medical
experimentation without their consent;
[***8] (6) that it is wasteful and uneconomic; (7) that the purported object of the
ordinance could be
[*413] attained by other means not destructive of private rights.
Defendants filed answer
denying the plaintiffs’ allegations, above noted, as being without legal or
factual basis or termed them unenlightened opinions and conclusions. They
alleged in their answer that the ordinance was adopted to promote public health
and that as such it was a lawful exercise of the police power; that
fluoridation reduces dental caries in children, a common and
widespread disease; that the overwhelming weight of scientific, medical, and
dental opinion is that fluoridation of the public water supply reduces dental
caries in children and benefits public health; and that this was the basis of
the adoption of the ordinance, after the council had conducted hearings and
heard evidence concerning the merits and demerits of fluoridation. The
allegations of
[**19] the complaint and of the
answer conflict as to such merits and demerits.
Defendants moved for summary judgment on the ground that plaintiffs’ complaint
raised no genuine issue of any material fact to be litigated, but presented
only expressions
[***9] of opinions and questions of law for court determination. In support of the
motion, defendants filed statements of
public officials, indorsements by State councils and departments of health, and
affidavits of scientific and medical authorities setting forth and
acknowledging that fluoridation of public water supplies is beneficial to
public health, that several thousand cities in the United States are
fluoridating public water supplies and that millions of Americans are drinking
such
water and receiving the health benefits therefrom. Included among them were
the following: Statement by John F. Kennedy, president of the United States;
statement by Anthony J. Celebrezze, secretary, department of health, education
and welfare; statement
[*414] by Arthur S. Flemming, secretary, department of health, education and welfare;
statement by Dr. Luther L. Terry, surgeon general, public health service;
statement by Robert F. Kennedy, attorney general of the United States;
affidavit of Albert E. Heustis, M. D., Michigan State health commissioner;
minutes of December 19, 1951, meeting of
State council of health; minutes of October 15, 1952, meeting of State council
of health; minutes of October
[***10] 7, 1953, meeting of State council of health; minutes of October 27, 1959,
meeting of State council of health; statement of policy re fluoridation of
public water supplies, Michigan
department of health, January, 1949; statement of policy re fluoridation of
public water supplies, Michigan department of health, July, 1950; statement of
policy re fluoridation of public water supplies, Michigan department of health,
September, 1952; statement of policy re fluoridation of public water supplies,
Michigan department of health, July, 1955; affidavit of Howard H. Mehaffey,
D.D.S., in support of motion for summary judgment; affidavit of William Travis,
D.D.S., in support of motion for summary judgment. In one of the said
affidavits by a dentist, listed as public and private
organizations that have indorsed fluoridation of public water supplies, are the
following: public health service of the United States department of health,
education and welfare, Michigan department of health, American Medical
Association, American Dental Association, Michigan State Dental Association,
Detroit District Dental Society, American Academy of
Pediatrics, American Association of Public Health Dentists, American
[***11] Public Health Association, Inter-Association Committee on Health (representing
American Dental Association, American Hospital Association, American Medical
Association, American Nurses Association, American Public Health Association,
and the American Public
[*415] Welfare Association),
Association of State and Territorial Dental Directors, Association of State and
Territorial Health Officers, American Pharmaceutical Association, American
School Health Association, and College of American Pathologists. In addition,
it is a matter of fact, of which this Court may take judicial notice, that as
of December 31, 1962, 43,750,878 people of
2,317 communities in the United States, including 12 of the 18 major cities,
were drinking water containing supplemental
fluoride. Of this total, 72 Michigan communities were supplying approximately 1,250,000
people with water containing a
fluoride supplement.
It does not appear that plaintiffs filed any affidavits, depositions, or other
types of proofs in opposition to the materials supporting defendants’ motion.
Plaintiffs say, however, that they should have been permitted to produce
proofs, on trial, to show that (1) fluoridation of the water
[***12] supply constitutes experimentation upon and treatment of the bodies of water
users; (2) the object of the ordinance could be secured without violation of
their rights; and (3) that harm to their
bodies may result from such fluoridation. All of these bear on whether there
was a constitutional
[**20] exercise of the police power. This, then, projects the question of the
propriety of disposition of the case by summary judgment without according
plaintiffs an opportunity of a trial at which to advance such proofs.
Defendants’ motion for summary judgment stated that it was planted on GCR 1963,
117.2(1) in that plaintiffs’ complaint had failed to state a claim upon which
relief could be granted, and, further, that plaintiffs’ complaint attacked the
constitutionality of the ordinance and the issues so raised presented only
questions of law without raising any properly pleaded, genuine issue as to any
material fact. The trial court’s judgment
stated that it was to be entered
[*416] because of plaintiffs’ failure to state a claim upon which relief could be
granted. Plaintiffs say, however, that issues of fact about fluoridation were
raised by the pleadings which entitled them
[***13] to trial and determination thereof. In turn, defendants stress that what
plaintiffs had to offer by way of testimony concerning fluoridation was not as
to facts
but opinions, expert and lay.
In
Whittenberg v. Carnegie, 328 Mich 125, this Court said (p 126):
“The mere existence of issues of fact is, however, no bar to entry of summary
judgment for defendants, if, upon resolving all such issues in favor of
plaintiffs, the defendants would still be entitled to a
judgment as a matter of law.
Jones v. Wayne Circuit Judge, 253 Mich 515.”
In
Davis v. Kramer Bros. Freight Lines, Inc., 373 Mich 594, we said, in affirming a summary judgment (p 597):
“We think appellants may have misconceived the issue: That
disputed issues of fact arose by reason of certain claims of plaintiffs is
undoubtedly true. The question, however, is whether those fact issues were
material to the controlling legal principle and to the ground upon which
summary judgment was granted.”
Our inquiry must go, then, to whether there was an issue as to material facts,
not just immaterial facts or opinions, and whether acceptance as
true of all that plaintiffs say they could have proved
[***14] under their pleadings would have entitled them to the injunctive relief sought
or would have left defendants entitled still to a judgment as a matter of law.
Preliminary to ascertaining whether there was an issue as to facts which were
material, the question of their materiality must be resolved by consideration
of precisely what it is that must be decided
[*417] in this case on the
merits as to constitutionality of the ordinance.
With respect to the chief controversy herein, whether the ordinance is a
reasonable and lawful exercise of the police power and hence constitutional, it
is fortunate, for our guidance, that the Supreme Court of the United States has
spoken in
Jacobson v. Massachusetts, 197 U.S. 11 (25 S Ct 358, 49 L
ed 643). In that case a statute of Massachusetts was involved making it a
criminal offense for a person over 21 years of age and not under guardianship
to refuse to comply with a city board of health requirement to be vaccinated
for smallpox at public expense. Defendant was on
trial for refusing to comply, in violation of the statute. The prosecution
contented itself with proof of the board’s having required vaccination and
having advised defendant
[***15] thereof and defendant’s noncompliance, but offered no other evidence.
Defendant offered proofs purporting to show that vaccinations were injurious,
had no relationship to public health and were not
a scientifically accepted means of preventing smallpox. The trial court
rejected defendant’s offers of such proofs on the ground that they were
immaterial. After conviction he appealed to the Massachusetts supreme judicial
court, which affirmed, sustained the trial court’s rulings on proffered proofs,
and upheld the constitutionality of the statute and board action against the
objections
[**21] of the
defendant, which were similar to those raised here. On appeal, the United
States Supreme Court affirmed, quoting with approval from the opinion of the
Massachusetts court, as follows (pp 23, 24):
“‘The other 11 propositions all relate to alleged injurious or dangerous effects
of vaccination. The defendant
“offered to prove and show by competent evidence” these so-called
facts. Each of them, in its nature, is such that it cannot be stated as a
truth,[*418] otherwise than as a matter of opinion. The only
“competent evidence” that could be presented to the court to prove these
[***16] propositions was the testimony of experts, giving their opinions. * * * If
the defendant had been permitted to introduce such expert testimony as he had
in support of these several propositions, it could not have changed the result.
It would
not have justified the court in holding that the legislature had transcended
its power in enacting this statute on their judgment of what the welfare of the
people demands.’”
The United States Supreme Court went on to say, inter alia (pp 25, 26, 28-30):
“According to settled principles the police power of a State
must be held to embrace, at least, such reasonable regulations established
directly by legislative enactment as will protect the public health and the
public safety. * * * It is equally true that the State may invest local bodies
called into existence for purposes of local administration with authority in
some appropriate way to safeguard the
public health and the public safety. * * *“The defendant insists that his liberty is invaded when the State subjects him
to fine or imprisonment for neglecting or refusing to submit to vaccination;
that a compulsory vaccination law is unreasonable, arbitrary and oppressive,
and, therefore,[***17] hostile to the inherent right of every freeman to care for his own body and
health in such
way as to him seems best; and that the execution of such a law against one who
objects to vaccination, no matter for what reason, is nothing short of an
assault upon his person. But the liberty secured by the Constitution of the
United States to every person within its jurisdiction does not import an
absolute right in
each person to be, at all times and in all circumstances, wholly freed from
restraint. There are manifold restraints to which every person is necessarily
subject for the common good. On any other basis organized society could not
exist with safety to its members.[*419] Society based on the rule that each one is a law unto himself would soon be
confronted with
disorder and anarchy. Real liberty for all could not exist under the operation
of a principle which recognizes the right of each individual person to use his
own, whether in respect of his person or his property, regardless of the injury
that may be done to others. This court has more than once recognized it as a
fundamental principle that ‘persons and
property are subjected to all kinds of restraints and burdens,[***18] in order to secure the general comfort, health, and prosperity of the State;
of the perfect right of the legislature to do which no question ever was, or
upon acknowledged general principles ever can be made, so far as natural
persons are concerned.’ * * *“The court would usurp the functions of another branch of government if it
adjudged, as
matter of law, that the mode adopted under the sanction of the State, to
protect the people at large, was arbitrary and not justified by the necessities
of the case. * * * An American citizen, arriving at an American port on a
vessel in which, during the voyage, there had been cases of yellow fever or
Asiatic cholera, although apparently free from disease
himself, may yet, in some circumstances,[**22] be held in quarantine against his will on board of such vessel or in a
quarantine station, until it be ascertained by inspection, conducted with due
diligence, that the danger of the spread of the disease among the community at
large has disappeared. The liberty secured by the Fourteenth Amendment, this
court has said, consists, in part, in the right of a person ‘to live and work
where he will,’
Allgeyer v. Louisiana, 165 U.S. 578
[***19] (17 S Ct 427, 41 L ed 832); and yet he may be compelled, by force if need be, against his will
and without regard to his
personal wishes or his pecuniary interests, or even his religious or political
convictions, to take his place in the ranks of the army of his country and risk
the chance of being shot down in its defense. It is not, therefore, true[*420] that the power of the public to guard itself against imminent danger depends
in every case involving the
control of one’s body upon his willingness to submit to reasonable regulations
established by the constituted authorities, under the sanction of the State,
for the purpose of protecting the public collectively against such danger. * *
*“Looking at the propositions embodied in the defendant’s rejected offers of
proof it is clear that they are more formidable by their number than
by their inherent value. Those offers in the main seem to have had no purpose
except to state the general theory of those of the medical profession who
attach little or no value to vaccination as a means of preventing the spread of
smallpox or who think that vaccination causes other diseases of the body. What
everybody knows the court must
know,[***20] and therefore the State court judicially knew, as this court knows, that an
opposite theory accords with the common belief and is maintained by high
medical authority. We must assume that when the statute in question was
passed, the legislature of Massachusetts was not unaware of these opposing
theories, and was compelled, of necessity, to choose between them. It was not
compelled to
commit a matter involving the public health and safety to the final decision of
a court or jury. It is no part of the function of a court or a jury to
determine which one of two modes was likely to be the most effective for the
protection of the public against disease. That was for the legislative
department to determine
in the light of all the information it had or could obtain.”
The United States Supreme Court quoted from
Viemeister v. White, 179 NY 235, 239-241 (72 NE 97-99, 70 LRA 796), as follows (pp 34, 35):
“‘It must be conceded that some laymen, both learned and unlearned, and some
physicians of
great skill and repute, do not believe that vaccination is a preventive of
smallpox. The common belief, however, is that it has a decided tendency to
prevent the[*421] spread
[***21] of this fearful disease and to render it less dangerous to those who contract
it. While not accepted by all, it is accepted by the mass of the people, as
well as by most members of the medical
profession. It has been general in our State and in most civilized nations for
generations. It is generally accepted in theory and generally applied in
practice, both by the voluntary action of the people and in obedience to the
command of law. Nearly every State of the Union has statutes to encourage, or
directly or indirectly to
require, vaccination, and this is true of most nations of Europe. * * *“‘A common belief, like common knowledge, does not require evidence to establish
its existence, but may be acted upon without proof by the legislature and the
courts. * * *“‘The fact that the belief is not universal is not controlling, for there is
scarcely any belief that is
accepted[**23] by everyone. The possibility that the belief may be wrong, and that science
may yet show it to be wrong, is not conclusive; for the legislature has the
right to pass laws which, according to the common belief of the people, are
adapted to prevent the spread of contagious diseases. In a free country,[***22] where the government is by the people,
through their chosen representatives, practical legislation admits of no other
standard of action; for what the people believe is for the common welfare must
be accepted as tending to promote the common welfare, whether it does in fact
or not. Any other basis would conflict with the spirit of the Constitution,
and would sanction measures opposed to a republican
form of government.“‘While we do not decide and cannot decide that vaccination is a preventive of
smallpox, we take judicial notice of the fact that this is the common belief of
the people of the State, and with this fact as a foundation we hold that the
statute in question is a health law, enacted in a reasonable and proper
exercise of the
police power.’”
[*422]
The United States Supreme Court then said (pp 35, 37, 38):
“Since then vaccination, as a means of protecting a community against smallpox,
finds strong support in the experience of this and other countries, no court,
much less a jury, is justified in disregarding the
action of the legislature simply because in its or their opinion that
particular method was — perhaps or possibly — not the best either for children
[***23] or adults. * * *“We are not prepared to hold that a minority, residing or remaining in any city
or town where smallpox is prevalent, and enjoying the general protection
afforded by an organized local government,
may thus defy the will of its constituted authorities, acting in good faith for
all, under the legislative sanction of the State. If such be the privilege of
a minority then a like privilege would belong to each individual of the
community, and the spectacle would be presented of the welfare and safety of an
entire population being subordinated to the notions of a single
individual who chooses to remain a part of that population. We are unwilling
to hold it to be an element in the liberty secured by the Constitution of the
United States that one person, or a minority of persons, residing in any
community and enjoying the benefits of its local government, should have the
power thus to dominate the majority when supported in their action by the
authority of the State. While this court should guard with firmness every
right appertaining to life, liberty or property as secured to the individual by
the Supreme Law of the Land, it is of the last importance that it should not
[***24] invade the domain of local authority except when it is plainly necessary to do
so in order to enforce that law. The safety and the health of the people of
Massachusetts are, in the first instance, for that Commonwealth to guard and
protect. They are matters that do not ordinarily concern the National
government. So far as they can be reached by any government,[*423] they depend, primarily, upon such action as the State in its wisdom may take;
and we do not perceive that this legislation has invaded any right secured by
the
Federal Constitution.”
From the above language of the United States Supreme Court the rule clearly
appears that the court may take judicial notice of the common knowledge or
belief, as evidenced by the above listed public statements, affidavits, and
official actions, that fluoridation is beneficial to prevent dental caries and
so improve public
health. Further, that proofs of the character which plaintiffs say they might
have adduced on trial could not have changed the results because a difference
of opinion,
[**24] whether expert or lay, as to the merits or demerits of fluoridation with
respect to public health presents a question for legislative,
[***25] not judicial, determination. It follows that this case could be and was
properly disposed of, as
a question of law, by summary judgment. This follows, as well, from the above
cited Michigan decisions because there was no issue of material or controlling
facts, the so-called factual disputes actually being matters of opinion,
relating to the efficacy or effects of fluoridation. Hence, they could not be
decisive of whether the police power was properly exercised within
constitutional limitations.
The
Jacobson Case fully answers plaintiffs’ questions as to the constitutionality of the public
health measure. n1 It is true that the smallpox disease involved in that case
is infectious or contagious while dental caries is not. Plaintiffs cite no
cases to the effect that that element is essential to the power of the State to
adopt and
enforce regulations designed to protect or improve public health. We conceive
[*424] of no sound reason for so holding. To the contrary are:
Readey v. St. Louis County Water Co. (Mo), 352 SW2d 622;
Dowell v. City of Tulsa (Okla), 273 P2d 859;
Kraus v. Cleveland, 163 Ohio St 559 (127 NE2d 609);
Kaul v. Chehalis,
[***26] 45 Wash 2d 616 (277 P2d 352);
Froncek v. Milwaukee, 269 Wis 276 (69 NW2d 242);
Baer v. City of Bend, 206 Ore 221 (292 P2d 134).
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n1
Readey v. St. Louis County Water Co. (Mo), 352 SW2d 622 (certiorari denied
371 U.S. 8 [83 S Ct 20, 9 L ed 2d 47]), contains citations of a number of cases in the
several States upholding the constitutionality and validity of fluoridation
measures. Plaintiffs do not cite any to the contrary and we find none.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
Michigan Constitution of 1908, art 8,
§ 20, in effect when the ordinance was adopted and when judgment entered herein,
empowered and directed the legislature to provide by general law
for the incorporation of cities. Section 21 provided that cities shall have
power to adopt charters and to pass ordinances relating to municipal concerns.
The legislature by PA 1909, No 279, n2 provided that each city charter shall
provide for the public health. The people of Detroit adopted
a charter under such authority. Title 3, ch 1,
§ 1, of the charter vests the
[***27] legislative power of the city in a common council. Section 12 thereof
provides that the permitted legislative powers include adoption of ordinances
to promote public health and also to prescribe the duties of all city officers.
Title 4, ch 1,
§ 12, provides that city officers shall have the duties prescribed by the
council by ordinance. Title 4, ch 12,
§ 1, provides for a board of water commissioners and section 7 thereof provides
that it shall have duties to be exercised in
accordance with city ordinances, including supplying the city with sufficient
pure and wholesome water. We think, contrary to plaintiffs’ contentions, that
these constitutional, statutory and charter provisions constitute adequate
authority for enactment of the ordinance in question by the council. It does
not conflict with the charter requirement for furnishing pure and
wholesome water. 56 Am Jur, Waterworks,
[*425]
§ 75, pp 980, 981, and
Commonwealth v. Towanda Water Works, 1 Monaghan (Pa) 500 (15 A 440).
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n2 See CL 1948 and CLS 1961,
§ 117.1
et seq. (Stat Ann
1949 Rev and Stat Ann 1961 Cum Supp 5.2071
et seq.). — Reporter.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***28]
Dowell v. City of Tulsa, supra, and
Kaul v. Chehalis, supra, hold that fluoridation of the public water supply is not, as plaintiffs here
contend, the practice of medicine or dentistry or treatment of children
by health officers. We agree.
Judgment affirmed. No costs, a public question being involved.
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