127 N.E.2d 609;
1955 Ohio LEXIS 588;
57 Ohio Op. 1
June 29, 1955, Decided
PRIOR HISTORY:
[***1]
APPEAL from the Court of Appeals for Cuyahoga County.
The city of Cleveland owns and operates a municipal water department which
supplies water to the inhabitants of said city and surrounding territory.
After public hearings thereon, certain ordinances and resolutions were passed
and adopted providing for the fluoridation of such water, for the purpose of
preventing
dental caries.
Whereupon the plaintiff, appellant herein, brought a taxpayer’s action, seeking
a permanent injunction restraining the city and others, appellees herein, from
expending money for the fluoridation of the water and from entering into any
contracts therefor, to declare the resolutions and ordinances unconstitutional
and void and to declare void any contract already entered into.
It is
unnecessary to make an extensive review of the evidence before the trial court.
It consists of testimony and exhibits as to the value and effect of
fluoridation as a preventive of dental caries.
DISPOSITION:
Judgment affirmed.
HEADNOTES:
Municipal corporations — Police power — Public health — Prevention and
control of dental caries — Legislation for fluoridation of city water —
Constitutional law — General laws relative to
[***2]
adulteration and medical practice not contravened.
SYLLABUS: 1. Prevention and control of dental caries, a common disease of mankind, is a
proper subject, in relation to public health, for legislation enacted pursuant
to the police power vested in municipalities by the general laws and the
Constitution of the state of Ohio.
2. The enactment of legislation by the
city council of Cleveland providing for fluoridation of the Cleveland water
supply, by the introduction of inorganic
fluoride chemicals therein, constitutes neither an infringment of the constitutional
liberties of the citizens of such municipality nor an exercise of power in
contravention of the general laws in relation to adulteration or the practice
of medicine.
COUNSEL:
Mr. William J. Kraus, in propria persona.
Mr. Ralph S. Locher, director of law,
Mr. Joseph H. Crowley and
Mr. Burt J. Fulton, for appellees.
JUDGES: MATTHIAS, J. WEYGANDT, C. J., HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ.,
concur.
OPINIONBY: MATTHIAS
OPINION:
[*560]
[**610] Essentially, the plaintiff attacks the legislation on two grounds, first, that
it infringes upon certain of his fundamental liberties, and, second, that it
conflicts with
[***3] certain statutes of the state and is beyond any power granted to
municipalities by the laws and the Constitution of Ohio.
The police power is vested in municipalities by Section 3, Article 18 of the
Ohio Constitution, which is as follows:
“Municipalities shall have authority to exercise all powers of local
self-government and to adopt and enforce within their limits such local police,
sanitary and other similar regulations, as are not in conflict with general
laws.”
By Sections 3616 and 3646, General Code (Section 715.37, Revised
Code), municipal corporations are authorized
“to provide for the public health.”
The basic question presented by this case is whether a municipality has the
authority under its police power, in relation to public health, to add
inorganic
fluoride chemicals to its water supply, where such addition will not and is not
intended to have any effect on the
potability, palatability or purity of such drinking water but has for its sole
purpose the prevention of dental caries.
The plaintiff contends that the prevention or treatment of diseases of the
teeth is a matter of private health and not of public health, and that the
addition
[*561] of
fluoride chemicals
[***4] to the water supply constitutes an invasion of his constitutional liberties to
treat his
health as he deems best, his right as a parent to safeguard the health of his
children as he deems best, his right to be free from medical experimentations
and his right of freedom of religion.
The personal liberties granted by the Constitution, although broad and on the
whole inviolate, are nevertheless subject to certain qualifications and
restraints and are generally held to be subject to
a valid exercise of the police power. The Supreme Court of the United States
in discussing constitutional liberties has said:
“Liberty implies the absence of arbitrary restraint, not immunity from
reasonable regulations and prohibitions imposed in the interest of the
community.”
Chicago, Burlington & Quincy Rd. Co. v. McGuire, 219 U.S., 549, 55 L. Ed., 328, 31 S. Ct., 259.
The Supreme Court of the United States in
Jacobson v. Massachusetts, 197 U.S., 11, 26, 49 L. Ed., 643, 25 S. Ct., 358, in holding a compulsory vaccination
statute constitutional, said in regard to constitutional liberties:
“The defendant insists that his liberty is invaded when the state subjects him
to fine or imprisonment
[***5] for neglecting or refusing to submit to vaccination; that a compulsory
vaccination law is unreasonable, arbitrary and oppressive, and, therefore,
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
[**611] to be, at all times and in all circumstances, wholly freed from restraint.
[*562] 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. 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.
[***6] 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, 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 plaintiff, while admitting that personal liberties are
not wholly free from restraint, contends that, for a valid exercise of the
police power on the basis of public health, the subject matter of the
regulation must relate to contagious or infectious diseases, and that there
must exist an overriding necessity.
In regard to this, it is sufficient to say there is no foundation in law for
such
a premise. An examination shows that laws relating to child labor, minimum
wages for women and minors and maximum hours for women and minors have all been
upheld on the basis of the police power in relation to public health.
Regulations relating to control of venereal disease, blood tests for marriage
licenses, sterilization, pasteurization of milk, chlorination of water and
vaccination have
[***7] all been held valid as based on police power exercised in regard to public
health.
Clearly neither an overriding public necessity or emergency nor infectious or
contagious diseases are
[*563] the criteria which authorize the exercise of the police power in relation to
public health.
That
dental caries is a disease is not questioned, and its prevalence is well
recognized, as is the fact that the health of the teeth bears a direct
relationship to general physical health. In sustaining a similar fluoridation
statute, the court in
Dowell v. City of Tulsa (Okla.), 273 P. (2d), 859, 863, stated:
“The relation of dental hygiene to the health of the body generally is now so
well recognized as to warrant judicial notice.”
Thus the fact that dental caries is neither infectious nor contagious does not
remove it from the authority of a municipality to attempt its control by
fluoridation of the water supply.
In
Kaul v.City of Chehalis (Wash.), 277 P. (2d), 352, 354, the Supreme Court of Washington, in a decision upholding fluoridation
legislation, said:
“Dental caries is neither infectious nor contagious. This, however, does not
detract from the fact that it is a common
[***8] disease of mankind. As such, its prevention and extermination come within the
police power of the
state.”
In considering the same subject, the Supreme Court of Louisiana, in
Chapman v. City of Shreveport, 225 La., 859, 74 So. (2d), 142, said:
“The appellees insist, and the district judge concluded, that fluoridation of
the water to prevent tooth decay is not a matter of public health, but
a matter of private health and hygiene. The evidence in this record refutes
overwhelmingly this conclusion. Dental caries is one of the most serious
health problems in the city of Shreveport, and in the nation as well. The fact
that it is not a communicable disease and one that can cause an epidemic does
not detract from its
seriousness as affecting the health and well-being of the community. The
[**612] plan for fluoridation, therefore,
[*564] bears a reasonable relation to the general welfare and the general health of
the community, and is a valid exercise of the power conferred by section 2.01
of the charter if it is not arbitrary or unreasonable.”
It is argued that the same result might be accomplished
by private dental care, and, since there is an alternative to public
[***9] regulation, the police power may not be invoked. Although it is admitted that
private care would be as effective, the record shows that there are not
sufficient private dental facilities to perform the task. Under our modern
existence the law must change and expand with mechanical and
scientific progress. What did not concern public health yesterday, because of
an inability of science to cope with the problem at hand, may very well today
become a matter of public health due to scientific achievement and progress.
The use of fluoridation to prevent dental caries is an excellent example of
this proposition. Science has discovered a
method whereby dental caries may be diminished. The prevalence and danger of
such caries are well known and the only practicable application of such
scientific knowledge is by treating drinking water with
fluoride. Thus the problem of dental caries has of necessity become one of public
health.
Nor does the fact that the
fluoride, instead of killing germs, builds up
a resistance to the disease have any effect on the validity of fluoridation
legislation. The court in
Dowell v. City of Tulsa, supra, 863, disposed of this question, in the following
[***10] language:
“Plaintiffs concede, as they must, that municipalities may chlorinate their
water supply,
Commonwealth v. Town of Hudson, 315 Mass., 335, 52 N. E. (2d), 566; McQuillin Municipal Corporations (3d Ed.), Vol. 7, Sec. 24.265 and though they
contend, under one proposition, that a city’s treatment of its water supply
with
[*565]
fluorides is the unlicensed practice of medicine, dentistry and pharmacy under our
statutes, they here argue that such treatment must be
distinguished from treatment with chlorides, because the latter will kill
germs, purify water and accordingly aid in the prevention and spread of
disease, whereas
fluorides will not. We think that if the putting of chlorides in public water supplies
will in fact promote the public health, the distinetion sought to be drawn
by plaintiffs is immaterial. To us it seems ridiculous and of no consequence
in considering the public health phase of the case that the substance to be
added to the water may be classed as a mineral rather than a drug, antiseptic
or germ killer; just as it is of little, if any, consequence whether
fluoridation accomplishes its beneficial result to the public health
by killing germs in
[***11] the water, or by hardening the teeth or building up immunity in them to the
bacteria that causes caries or tooth decay. If the latter, there can be no
distinction on principle between it and compulsory vaccination or inoculation,
which, for many years, has been well established as a valid exercise of police
power.”
Although it is true that the actual active effect of fluoridation is confined
to that period of a person’s life while the teeth are developing, such benefits
extend on into adult life and fluoridation legislation is not such class
legislation as to invalidate it.
In
Chapman v. City of Shreveport, supra, 145, the court answers that argument, as
follows:
“Although the immediate purpose of the proposed fluoridation is to retard and
decrease the disease of dental caries in young children, the protection thus
given will continue well into adult life. Not only will the proposed
fluoridation retard and reduce this disease in the generation of children
presently in Shreveport,
but its effect will continue into their adult life,
[*566] and consequently the proposed measure will ultimately
[**613] be beneficial to all the residents of the city.
“The health of
[***12] the children of a community is of vital interest and of great importance to
all the inhabitants of the community. Their health and physical well-being is
of great concern to all the people, and any legislation to retard or reduce
disease
in their midst cannot and should not be opposed on the ground that it has no
reasonable relation to the general health and welfare. Children of today are
adult citizens of tomorrow, upon whose shoulders will fall the responsibilities
and duties of maintaining our government and society. Any legislation,
therefore, which will better equip them, by retarding or reducing the
prevalence of disease, is of
great importance and beneficial to all citizens. In our opinion the
legislation does bear a reasonable relation to public health.”
It is clear from the record that the fluoridation of water for the prevention
of dental caries has progressed far beyond the experimental period and has now
become an established method. The facts that there are still differences of
opinion as to its value and
effect by a number of persons and that there are certain questions unanswered
in relation to fluoridation do not make it an experiment. There are dissenters
to
[***13] many established and proved scientific practices which are accepted today.
Dissent to scientific method does not constitute such method an experiment, and
plaintiff’s contention that fluoridation constitutes experimentation is without
foundation.
Plaintiff’s argument that fluoridation constitutes mass medication, the
unlawful practice of medicine and adulteration may be answered as a whole.
Clearly, the addition of
fluorides to the water supply does not violate such principles any more than the
chlorination of water, which has been held valid many times.
[*567] It was said in
Dowell v. City of Tulsa, supra, 864:
“Plaintiffs do not elaborate on their contention that ordinance 6565 is in
violation of the ‘free exercise’ of religion, which, in the First Amendment of
the United States Constitution, Congress is forbidden to prohibit, but we
assume this is based on the hypothesis that the fluoridation prescribed in the
ordinance is a form of ‘medication’ or ‘medical treatment’
forbidden by the tenets of one or more well known churches or religious sects.
This argument is closely allied to one phase of the plaintiffs’ ‘proposition 4’
to the effect that fluoridation is treatment
[***14] of a disease and therefore that the ordinance constitutes the unlicensed
practice of medicine as defined and forbidden in
Title 59 O. S. 1951, Sections 495b and 497. To what was said concerning a similar argument in
De Aryan v. Butler, supra, which we hereby approve and adopt, we wish to add our opinion that in the
contemplated water fluoridation, the city of Tulsa is no more practicing
medicine or dentistry or manufacturing, preparing, compounding or selling a
drug, than a mother would be who furnishes her children a well balanced diet,
including foods containing vitamin D and calcium to harden bones and prevent
rickets, or lean meat and milk to prevent pellagra. No one would contend that
this is practicing medicine or administering drugs.”
To summarize:
I. Although dental
caries does not constitute a contagious or infectious disease, it is a disease
so common and so widespread that it is a proper subject, in relation to public
health, for a municipal corporation to act upon in the exercise of the police
power.
II. The introduction of inorganic
fluoride chemicals in its municipal
drinking water does not constitute an infringement of the constitutional
liberties of the
[***15] citizens of such municipality or an exercise of
[**614] power in
[*568] contravention of the general laws in relation to adulteration or practice of
medicine.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
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