1954 Okla. LEXIS 596;
43 A.L.R.2d 445
June 15, 1954
SUBSEQUENT HISTORY:
[**1]
Rehearing Denied July 13, 1954.
SYLLABUS:
Syllabus by the Court.
1. An examination of the statutes enacted by the Oklahoma Legislature
providing various regulations and standards to promote and protect public
health renders it manifest that said body’s policy of exercising such power of
regulation is not restricted to measures for the prevention and control of
contagious, infectious, or dangerous diseases.
2. To the extent that such power is delegated to it under this State’s
constitution and statutes, a municipality may by proper ordinance provide for
the fluoridation of its water supply without contravening the First and the
Fourteenth Amendments of the U. S. Constitution.
3. Record examined and Held: The City of Tulsa’s Ordinance No.
6565 is a valid exercise of police power to promote the public health as
against the contention that there was no sufficient proof of its public
necessity; Further, Held: Said ordinance does not violate Title 59 O.S.1951
§§ 273, 333, 495b and 497, or Title 63 O.S.1951
§
196.
COUNSEL: James B. Coppedge, Tulsa, E. O. Patterson, Tulsa, of counsel, for plaintiffs
in error.
Harry M. Crowe, Jr., City Atty., A. M. Widdows, Tulsa, for defendants in error.
OPINIONBY:
[**2]
BLACKBIRD
OPINION:
[*860]
BLACKBIRD, Justice. Plaintiffs in error commenced the present action, as
plaintiffs, to enjoin defendants in error, as defendants, from enforcing and/or
complying with Ordinance No. 6565, passed by the Board of Commissioners of the
City of Tulsa, on March 3, 1953, authorizing fluoridation of said city’s water
supply by its Water
Department and Commissioner of Waterworks and Sewerage. The purpose of such
fluoridation, as indicated in the ordinance, was ‘to aid in the control of
dental caries’ (tooth decay), and by reason of the emergency therein declared
to exist for ‘preservation of the public peace, health and safety’, it was
provided by Section 4 thereof that the ordinance would become effective upon
its
passage, approval and publication.
The parties appear here in the same order as they appeared in the trial court,
and they will be referred to by their trial designations.
Plaintiffs are individual taxpayers of the city. Their effort to enjoin the
enforcement of the Ordinance was based upon the alleged ground that it is
invalid. The only alleged reasons for such invalidity which they
apparently urged are that (1) the ordinance constitutes an ‘unwarranted
[**3] exercise of police power’ in violation of the Fourteenth Amendment of the U.
S. Constitution; (2) that it is an exercise of power beyond that delegated to
the city by the State Legislature; (3) it violates the U. S. Constitution’s
First Amendment concerning freedom of religion; and (4) it violates Title 63 O.S.1951
§ 196 forbidding the manufacture and sale of ‘food’ to which ‘fluorine
compounds’ have been added as the term ‘food’ is defined in Section 183 to
include ‘articles of food, meat, drink * * * beverage * * *.’
[*861] After a trial at which plaintiffs introduced no evidence, but
entered into a stipulation with defendants as to certain facts, the court made
specific findings against plaintiffs on all of the issues above described and
entered judgment denying them the injunction. From said judgment they have
lodged this appeal.
With apparent reference to (1) and (3) above, plaintiffs contend under the
first two propositions formulated in their
briefs that our State Legislature has never established a policy of attempting
to regulate or control any disease except those that are ‘contagious,
infectious or dangerous;’ and that it could not constitutionally do so. In
denying
[**4] the first part of this contention, defendants point to various statutes
enacted by the Oklahoma Legislature, particularly sections appearing under
Title
63 O.S.1951, which they say plainly show that its policy in matters of public
health and welfare has never been confined to seeking control, regulation and
prevention of contagious, infectious, or dangerous diseases. Among these are
provisions for safeguards pertaining to bedding and the germicidal treatment of
secondhand materials, Section 51 et
seq.; provisions requiring the injection of ‘nitrate of silver or other proven
antiseptic’ into the eyes of newborn infants, for their protection against
‘Inflammation of the eyes * * *’ (ophthalma neonatorum), Sections 71-77, incl.;
those pertaining to the regulation of milk production and marketing, Section
295 et seq.; and of hotels, etc., Section
331 et seq.; to the regulation of bakeries and other foodstuff factories,
Section 151; to the regulation of bottling works, Section 27 et seq.; to the
Section, 296.2, specifying the vitamin and mineral requirement for flour; and
to the statutes creating the State Board of Health, Tit. 63 O.S.1951
§
1.1, and creating in the State Health Department
[**5] a division to be known as the ‘Division of Preventive Dentistry.’ Tit. 63
O.S.1951
§ 41. In fact, it was apparently in conformity with the provisions of the
latter section that said State Department made its study of the fluoridation of
public water supplies for
controlling dental caries and promulgated certain rules and recommendations, or
a policy to govern it in assisting municipalities considering such projects. A
written statement of these was introduced in evidence as Defendants’ Exhibit 3,
and the parties’ stipulation of facts as well as Ordinance No. 6565 shows that
these recommendations were considered and were to be followed
in the fluoridation of the water supply contemplated in the ordinance in accord
with certain rules, standards and prerequisites (unnecessary here to set forth)
prescribed by the State Board.
In view of the broad terms in which our Legislature has spoken on the subject
we cannot believe that it has intended to restrict its enactment of measures
designed to
promote the public health and welfare to those designed to prevent the spread
of infections, contagious or dangerous diseases. We think the mere reading of
the statutes herein cited and others enacted
[**6] by our Legislature is sufficient to show that it has not so restricted its
policy, and that it has chosen to make many minimum requirements with reference
to food, lodging and a myriad of
subjects connected with the public health and/or welfare that have no direct
connection with or relation to infectious, contagious or dangerous diseases.
The next question then is: Recognizing that such a thing is not against public
policy as declared by our Legislature, can the police power delegated to a city
by the Legislature be exercised to the extent of what
in practical analysis amounts to a compulsory measure requiring people of the
city to use or pay for water that is fluoridated in order to control a physical
characteristic or weakness which is not an infectious, contagious or dangerous
disease? Plaintiffs say that it cannot — that under the guarantees of freedom contained in the
1st and 14th Amendments to the U. S. Constitution the citizens of Tulsa have a
right to be furnished city water not ‘medicated’ or treated with
fluorides. We do not agree.
The tests by which such matters are to be governed in two of the cases quoting
or expressing them in verbage most favorable to plaintiffs
[**7] are
Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 501, 38 L.Ed. 385, and
Bowes v. City of Aberdeen, 58 Wash.
[*862] 535, 542, 109 P. 369, 372, 30 L.R.A.,N.S., 709. In the first of these it is said:
‘To justify the state in thus interposing its
authority in behalf of the public, it must appear — First, that the interests of the public generally, as distinguished from those
of a particular class, require such interference; and, second, that the means
are reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals.’
In the Washington case, it was said:
‘The questions which present themselves in the
examination of a safety or health measure are: Does a danger exist? Is it of
sufficient magnitude? Does it concern the public? Does the proposed measure
tend to remove it? Is the restraint or requirement in proportion to the
danger? Is it possible to secure the object sought without impairing essential
rights and principles? Does the choice of a particular measure show that some
other interest than safety or health was the actual motive of the Legislature?’
In suggesting negative answers to the above-quoted questions when propounded
[**8] about Ordinance 6565, it seems to be plaintiffs’ position that (1) since it is
not contended that Tulsa’s water is not pure, or that unless treated with
fluorides it will tend to spread
contagious disease or that an epidemic of an infectious or dangerous disease is
threatened or imminent unless said water is so treated, the exercise of the
police power to the extent of interfering with Tulsa citizens’ freedom to
purchase and use its water without such treatment cannot be justified; that (2)
since the only direct evidence on the matter went no further than
showing that drinking fluoridated water reduces caries in the lower-age group
of minor persons, such treatment could not be justified as a measure to improve
the health or welfare of the public generally; (3) that the evidence tended to
show that the same object could be attained by leaving to individuals the
treatment of their own drinking
water with
fluorides on an individual and voluntary basis, as could be attained by requiring the
wholesale treatment of the City’s entire water supply and therefore that the
latter is not ‘reasonably necessary’ to attain that end, thus belying the
Ordinance’s announced representation or misrepresentation
[**9] that it is necessary to preservation of the public health and safety. We do
not find any of these arguments tenable for the
reasons hereinafter set forth. While most of the reported cases that have
arisen in the past involved the so-called ‘purity’ or ‘purification’ of
municipal water supplies and the regulations upheld with reference thereto were
designed to prevent contamination or pollution with consequent epidemics or
spread or disease, notice Annotations,
6 A.L.R. 228, and
8 A.L.R. 673;
23 A.L.R. 228;
72 A.L.R. 673, we think the weight of well-reasoned modern precedent sustains the right of
municipalities to adopt such reasonable and undiscriminating measures to
improve their water supplies as are necessary to protect and improve the public
health, even though no epidemic is imminent and no
contagious disease or virus is directly involved. See
Blue v. Beach, 155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64; and the Annotations thereto, at
80 Am.St.Rep. 212; 25 Am.Jur., ‘Health’, Secs. 21 and 25, inclusive; 56 Am.Jur. ‘Water Works’,
Sec.
76. Where such necessity is established, the Courts, especially in recent
years, have adopted a liberal view of the health measures promulgated and sought
[**10] to be enforced. See McQuillin, Municipal Corporations (3d Ed.), Vol. 7, Sec.
24.224. As said in 11 Am.Jur., ‘Constitutional Law’, Sec. 271, at page
1023:
‘The protection of the public health and safety is the basis of much valid
regulation over persons. This broad field includes not only legislation
relating to the prevention and curtailment of disease through quarantine, when
not in conflict with Federal regulations on the subject, vaccination, and
segregation in special hospitals of persons
suffering from contagious and infectious illnesses, but also measures relating
to eugenics and the maintenance of a healthy, normal, and socially sound
populace.’
[*863] As knowledge in both the medical and dental fields has increased, the subject
of health in both of these spheres has become more important, and modern
experience shows that private convenience and
individual freedom of action are required to yield to the public good in
instances where formerly there was observed no necessity for legislative
interference. See
Territory v. Hop Kee, 21 How. 206, Ann.Cas.1915D, 1082, and other authorities cited in notes to 37 Am.Jur., ‘Municipal Corporations’, Secs. 286 and 288. No principle
[**11] is better established in our system of jurisprudence than the one that
‘Liberty implies the absence of arbitrary restraint, not immunity from
reasonable regulations * * * imposed in the interests of the community.’
Chicago, B. & O. R. Co. v. McGuire, 219 U.S. 549, 565, 31 S.Ct. 259, 55 L.Ed. 328, as quoted in
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 582, 81 L.Ed. 703, 108 A.L.R. 1330. 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
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 distinction
sought to be drawn by plaintiffs is immaterial.
[**12] 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 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 of principle between it and
compulsory vaccination or inoculation, which, for many years, has been
well-established as a valid exercise of police power. See Blue v. Beach and
other authorities cited, supra, as well as the Annotations at
93 A.L.R. 1434. See also
De Aryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, in which some of the same arguments made here were made and rejected
concerning the fluoridation of the water supply of the City of San Diego,
California. While the evidence in the present case did not purport to
establish fluoridation as a remedy or prevention for any specific contagious
disease, it did
show, without contradiction, that it will materially
[**13] reduce the incidence of caries in youth. The relation of dental hygiene to
the health of the body generally is now so well recognized as to warrant
judicial notice. Accordingly, we hold that in establishing the fluoridation
prescribed by Ordinance 6565, as effective to reduce dental caries, the
evidence also sufficiently established it as a health measure to be a proper
subject for exercise of the police power possessed by the City of Tulsa.
We now come to plaintiffs’ argument that fluoridation of Tulsa’s water supply
cannot be justified as a
public health measure because the evidence went no further than
establishing it as an aid to the prevention of caries in persons under sixteen
years of age, and tended to show that consumption of such water is of no
benefit to older persons. The evidence did not reveal what proportion of
Tulsa’s population is under sixteen years of age, but under our view this was
not necessary. When it is borne in
mind that the children and youth of today are the adult citizens of tomorrow,
and that this one segment of the population unquestionably benefitted by the
drinking of fluoridated water now, will in a few years comprise all or a very
large percentage
[**14] of Tulsa’s population; and it is further realized that reducing the incidence
of dental caries in
children will also benefit their parents, the fallacy of plaintiffs’ argument
is manifest.
We think the uncontradicted testimony of Dr. Paul Haney, Superintendent of
Health for the City and County of Tulsa, who was the only witness used at the
trial, is sufficient
[*864] answer to plaintiffs’ claim that on the basis of the evidence, the same
benefits to be obtained from fluoridation of said city’s
water supply could be obtained by leaving individuals to fluoridate their own
water on a voluntary basis. Dr. Haney’s testimony shows not only that the
treatment of drinking water by individuals not directly under the supervision
of health authorities or as prescribed by a private physician (whose services
many families would be financially unable to employ) may be dangerous, but also
that it is necessary that all or nearly all of the water consumed by children
in the age group involved be fluoridated over a period of years in order for
them to obtain the benefits of such process. He explained that such total
consumption would not be likely to occur
in children of school age, if the fluoridation
[**15] was left to be done individually or in their homes, because they are at school
or away from home much of the time.
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 of a
disease and therefore that the Ordinance constitutes the unlicensed practice of
medicine as defined and forbidden in Title 59 O.S.1951
§§ 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
[**16] 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. This conclusion also disposes of the contention that the
Ordinance constitutes a violation of Title 59 O.S.1951
§§ 273 and 333, wherein plaintiffs employ what a California Judge is said to have
termed an ‘over-refinement’ in the application of definitions to facts.
With reference to
plaintiffs’ contention that the proposed fluoridation violates Title 63
O.S.1951
§ 196, forbidding, among other things, the manufacture and sale of food to which
‘fluorine compounds’ have been added, defendants say that said Section, which
was a part of the Pure Food and Drug Act passed in 1910, was repealed by
implication in the Oklahoma Food Act passed in 1949, Title 63 O.S.1951
§§ 180.1-180.19, incl. No cases are cited on either side of this argument and we
think defendants’ contention goes too far. However, it must be noted that
despite the prohibition against the addition of certain named
acids and other substances included with ‘fluorine compounds’ in Section 196,
supra,
[**17] some of which must certainly be deemed ‘poisonous or deleterious substances’
(as defined by Webster’s Dictionary), Section 180.13 referring to the addition
of such substances to foods, provides that when it is necessary to use them,
this can be done under reasonable rules and regulations
promulgated by the Board of Health. It would thus appear that even though the
latter section might not accurately be said to entirely repeal the former
section by implication, it cannot be doubted that in practical operation and
effect it modifies it to a certain extent; and we so hold. It therefore
follows that since the Board of Health has promulgated rules and
regulations prescribing the amount of, and manner in which,
fluorides can be added to a city water supply, and the ordinance in question plainly
provides that such rules and regulations be complied with, we do not think the
fluoridation involved herein can correctly be considered a violation of Section
196, supra, when construed in the light of, and as its
application is modified or limited by, Section 180.13, supra.
Since the filing of the original briefs in the present case, an Ohio Court has
reached similar conclusions on the same questions
[**18]
[*865] involved herein and similar ones in the Case of
Kraus v. City of Cleveland, Ohio Com.Pl., 116 N.E.2d 779.
As no ground for reversal has been found in any of the arguments advanced by
plaintiffs, the judgment of the trial court is hereby affirmed.
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