292 P.2d 134;
1956 Ore. LEXIS 351
April 28, 1955, Argued
January 11, 1956
PRIOR HISTORY:
[***1]
Appeal from Circuit Court, Deschutes County. E. H. Howell, Judge.
DISPOSITION: Affirmed.
COUNSEL:
Craig C. Coyner, Bend, argued the cause and filed briefs for appellant.
Harry A. English, Bend, argued the cause and filed a brief for respondents.
JUDGES: Warner, Chief Justice, and Tooze, Rossman, Lusk, Latourette and Perry,
Justices.
OPINIONBY: LUSK
OPINION:
[*222]
[**135] The city of Bend maintains and operates a water system for supplying water to
its inhabitants. In February, 1952, the mayor and city commissioners adopted
an ordinance or resolution providing for the introduction of inorganic
fluoride chemicals into the water supply. The plaintiff, a citizen, elector, taxpayer,
resident and water-user of the city of Bend, for himself and all others similarly situated,
commenced this suit against the city and its officials to enjoin the proposed
action. The defendants demurred to the second amended
[*223] complaint. The court sustained the demurrer and, the plaintiff refusing to
plead further, a decree of dismissal was entered from which this appeal is
taken.
The main
contentions of the plaintiff are that the legislation is unconstitutional
because, if carried into effect,
[***2] it will deprive the plaintiff of liberty in violation of the Due Process
Clause of the Fourteenth Amendment to the Constitution of the United States,
and will encroach upon the freedom of religion secured by the First Amendment
against abridgment by the United States and similarly
secured to all persons by the Fourteenth Amendment against abridgment by a
state.
Schneider v. New Jersey, 308 U.S. 147, 160, 60 S. Ct. 146, 84 L.Ed. 155, . The plaintiff also invokes the equivalent guarantees of freedom of religion
in the Bill of Rights (Art I,
§§ 2, 3 and 4) of the Constitution of Oregon. See
City of Portland v. Thornton, 174 Or. 508, 512, 149 P.2d 972, cer. den.
323 U.S. 770, 89 L.Ed. 616, 65 S.Ct. 123.
From the allegations of the complaint,
aided by the express concessions of counsel for the plaintiff at the oral
argument, it appears that
fluorides are introduced into a community’s drinking water, when needed, for the purpose
of
“reducing dental caries,” that is, decay of the teeth, among children. It is used in the proportion of
one part
fluoride to one million parts of
water, and among children up to the age of 12 or 14 years it effects a
reduction of dental decay by some
[***3] 60 to 65 per cent. 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
[*224] challenges to similar legislation. According to the opinion in
Chapman v. City of Shreveport, 225 La 859, 74 So2d 142 (appeal dismissed for want of a
substantial federal question,
348 U.S. 892, 99 L. Ed. 701, 75 S.Ct. 216),
“By November 6, 1951, more than 840 communities, with a total population of
15,578,300, were using water supplies which had been artificially fluoridated
in concentrations from .07 to 1.5 parts
per million.” As stated by the Supreme Court of Ohio in
Kraus v. Cleveland, 163 Ohio St. 559, 564, 127 N.E.2d 609,
“Science has discovered a method whereby dental caries may be diminished” (p 564) and again
“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
[***4] an established method.” (p 566). See Public Health Service Bulletin No. 62 (1951); Fluoridation of
Municipal Water Supply, Report No. 140 (1952), National Institute of Municipal
Law
Officers; Henry A. Dietz, Fluoridation and Domestic Water Supplies in
California, IV The Hastings Law Journal, p 1;
Kraus v. City of Cleveland, (Court of Common Pleas of Ohio) 55 Ohio Op. 6, 116 N.E.2d 779, 790-794, per
Artl, J.
The legislation in question was adopted by the city in the exercise of its
police power granted by a provision of its charter which authorizes it
“to make ordinances, by-laws, and regulations * * * not repugnant to the laws of
the state of Oregon or of the United States, that shall be deemed necessary to
secure the peace,
health and general welfare of the city and its inhabitants.” Charter of the city of
[**136] Bend, ch VII, art B,
§ 1. These powers the municipality derives from the state, and
“According to settled principles the police power of a State must be held to
embrace, at least, such reasonable regulations established directly
[*225] by legislative
enactment as will protect the public health and the public safety.”
Jacobson v. Massachusetts, 197 U.S.
[***5] 11, 25, 49 L.Ed. 643, 25 S.Ct. 358. See, also,
State v. Muller, 48 Or. 252, 255, 85 P. 855, 120 Am. St. Rep. 805, aff.
208 U.S. 412, 52 L.Ed. 551, 28 S.Ct. 324;
Foeller v. Housing Authority of Portland, 198 Or. 205, 236, 237, 256 P.2d 752;
Daniels v. City of Portland, 124 Or. 677, 265 P. 790, 59 ALR 512. As the Supreme Court of Massachusetts said in sustaining legislation providing
for the introduction of chlorine into a community’s water supply,
“The preservation of the health and physical safety of the people is a purpose
of prime importance in the exercise of the police power.”
Commonwealth v. Town of Hudson, 315 Mass 335, 52 N.E.2d 566. All this is expressly conceded by plaintiff, who says in his reply brief,
“We concede that the general dental health of the citizens is a proper field for
the exercise of State authority.”
This and other concessions of plaintiff regarding the beneficial effects of the
addition of
fluoride to the water
supply of the city as a means of reducing the
“serious and widespread disease” (Froncek v. City of Milwaukee, 269 Wis 276, 69 N.W.2d 242, 246) of dental caries among children is all the answer that need be given to the
claim that
[***6] the regulation has no real, rational and substantial relation to the public
health and the general welfare. See
Jacobson v. Commonwealth, supra, 197 U.S. at p 31;
State v. Muller, supra, 48 Or. at p 255;
Stettler v. O’Hara, 69 Or. 519, 530, 139 P. 743, aff.
243 U.S. 629, 61 L.Ed. 937, 37 S.Ct. 475;
Commonwealth v. Town of Hudson, supra. Whether, as plaintiff suggests, there are
“more rational methods for reducing dental caries,” is a legislative, not a judicial question, as is sufficiently shown by the
cases just cited. And, as for judicial authority upon the
[*226]
precise question now before us, every court of last resort in the country which
has had occasion to consider the subject has sustained similar legislation as a
valid exercise of the police power.
Dowell v. City of Tulsa, (Okla) 273 P.2d 859, cer. den.
348 U.S. 912, 99 L.Ed. 207, 75 S.Ct. 292;
DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, hearing denied by
Supreme Court of California, cer. den. 347 U.S. 1012, 98 L.Ed. 1135, 74 S.Ct. 863;
Chapman v. City of Shreveport, supra;
Kaul v. City of Chehalis, 45 Wash2d 616, 277 P.2d 352;
Kraus v. City of Cleveland, supra, 163 Ohio
[***7] St. at p 559;
Froncek v. City of Milwaukee, supra.
The
liberties of the citizen which the plaintiff asserts are threatened with
invasion are religious liberty (apparently, although it is not explicitly
stated, because fluoridation of the water supply involves enforced medication
against the conscientious religious convictions of those adhering to certain
religious sects); and the personal liberties of parents to guard the health of
their children, and of individuals to determine
for themselves whether they shall submit to medication thus furnished by the
city. It is also alleged that the legislation is discriminatory because it
will benefit only children and not adults. The complete answer, though not the
only one, to the last contention is that the children of today are the adult
citizens of tomorrow, and a measure reasonably calculated to prevent the
spread of disease among children and improve their health cannot be said to be
without benefit to the entire community.
Chapman v. City of Shreveport, supra, 225 La at p 870;
Dowell v. City of Tulsa, supra, 273 P.2d at p 863; and see
State v. Muller, supra, 48 Or. at p 258.
Upon the general subject of the liberties
[***8] protected by the Constitution it should be first observed
[*227] that they are not held absolutely but only subject to reasonable restraints
imposed for the general welfare. As Mr. Justice Harlan said in speaking for
the court in
Jacobson v. Massachusetts, supra:
“* * * But the liberty secured by the Constitution of the United States to every
person within its jurisdiction[**137] 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. 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.”
See, also,
Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 565, 55 L.Ed. 328, 31 S.Ct. 259;
West Coast Hotel Co. v. Parrish
[***9] , 300 U.S. 379, 391, 81 L.Ed. 703, 57 S.Ct. 578, 108 ALR 1330.
As stated by Chief Justice Hughes in
West Coast Hotel Company v. Parrish, supra, where the court upheld the legislation of Washington providing for the
establishment of
minimum wages for women and minors as a health measure:
“* * * Liberty in each of its phases has its history and connotation. But the
liberty safeguarded is liberty in a social organization which requires the
protection of law against the evils which menace the health, safety, morals and
welfare of the people. Liberty under the
Constitution is thus necessarily subject to the restraints of due process, and
regulation which is reasonable in relation to its subject and is adopted in the
interests[*228] of the community is due process.”
300 U.S. at p 391.
See in this connection
State v. Bunting, 71 Or. 259, 139 P. 731, aff. sub nom.
Bunting v. Oregon, 243 U.S. 426, 61 L.Ed. 830, 37 S.Ct. 435, Ann Cas 1918A, 1043.
In the Jacobson case the court recognized that there is
“a sphere within which the individual may assert the supremacy of his own will
and rightfully dispute the authority of any
human government, especially of any
[***10] free government existing under a written constitution, to interfere with the
exercise of that will.”
197 U.S. at p 29. Nevertheless, the court held that a compulsory vaccination law of
Massachusetts was constitutional, and sustained a conviction of violation of
the statute by one asserting its invalidity. That was
a much more drastic statute than the measure we are here dealing with because
it subjected to prosecution anyone who refused to submit his person to the
injection of vaccine. Likewise, statutes or ordinances excluding children from
public schools who had not been vaccinated have been, with but few exceptions,
uniformly sustained.
Zucht v. King, 260 U.S. 174, 67 L.Ed. 194, 43 S.Ct. 24;
Hartman v. May, 168 Miss. 477, 151 So 737, 93 ALR 1408, and annotation,
93 ALR 1413, 1414;
Sadlock v. Board of Education, 137 NJL 85, 58 A2d 218.
It cannot be
successfully contended that the exercise of the police power for the protection
of the public health — and this
is a question of the public health — is restricted to situations of overriding
public necessity or emergency or infectious or contagious diseases, for, as the
Supreme Court of Ohio said in
Kraus v. City
[***11] of Cleveland, supra, 163 Ohio St. at p 562,
“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
[*229] 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 all been
held valid based on police power exercised in regard to public health.”
It is true that the specific guarantee of freedom of religion in the First
Amendment and incorporated into the Fourteenth holds a preferred place by
comparison with the liberties protected by the Due
Process Clause of the Fourteenth Amendment when the latter is applied
“for its own sake.”
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 87
[**138] L.Ed. 1628, 63 S.Ct. 1178, 147 ALR 674. See, also,
Schneider v. New Jersey, supra, 308 U.S. at p 161;
Thomas v. Collins, 323 U.S. 516, 529, 89 L.Ed. 430, 65 S.Ct. 315. But it is not true, as counsel for the plaintiff asserts, that when First
Amendment liberties are involved the presumption is one of unconstitutionality.
[***12] All that has ever been
held is that in such a case there is no presumption either way.
“Choice on that border, now as always delicate, is perhaps more so where the
usual presumption supporting legislation is balanced by the preferred place
given in our scheme to the great, the indispensable democratic freedom secured
by the First Amendment.”
Thomas v. Collins, supra.
It has never been held, said Mr. Justice Belt, speaking for this court in
City of Portland v. Thornton, supra, 174 Or. at p 513, that
“the practice of religion is beyond reasonable limitation.” As stated by the Supreme Court of Appeals of Virginia in
Rice v. Commonwealth, 188 Va 224, 234, 49 SE2d 342, 3 ALR2d 1392,
“The individual cannot be permitted, on religious grounds, to be the judge of
his duty to obey the regulatory laws enacted by the State in the interests of
the public welfare. The mere fact that such a claim of immunity
[*230] is asserted because of religious convictions is
not sufficient to establish its constitutional validity.” In that case the Virginia court sustained, as have other courts, a statute
which required parents, guardians, and others having control of young children,
to send
[***13] them to school, notwithstanding religious convictions of the dissenters. See
West Virginia State Board of Education v. Barnette, supra, 319 U.S. at p 631;
Commonwealth v. Beiler, 168 Pa Super 462, 79 A2d 134. So, it is held that it is no defense to a charge of violation of a statute
denouncing polygamy as a crime that the accused conscientiously believed as a
tenet of his church that it was the duty of male
members of the church, circumstances permitting, to practice polygamy (Reynolds v. United States, 98 U.S. 145, 161-167, 25 L.Ed. 244); that a state university which requires its students to take and complete a
course in military science and tactics may, without offending
against the First Amendment, exclude members of a church who refused to take
such course because to do so would violate a tenet of their faith with
reference to making war (Hamilton v. Regents of the University of Southern California, 293 U.S. 245, 79 L.Ed. 343, 55 S.Ct. 197); that a
provision of a state labor law making it a penal offense for a parent or
guardian or other person having custody of minor children under a certain age
to permit them to sell newspapers, magazines or periodicals in any
[***14] street or public place, is immune to challenge by a
member of Jehovah’s Witnesses based upon her belief in the scriptural
injunction to preach the gospel — the periodicals sold by the child in the
particular case being
“The Watchtower” and
“Consolation,” magazines put out by Jehovah’s Witnesses for the propagation of their faith (Prince v. Massachusetts, 321 U.S. 158, 88 L.Ed. 645, 64 S.Ct. 438;
City of Portland
[*231] v. Thornton, supra); that a conviction of a parent for refusing, in violation of a statute, to
furnish needed medical attendance to his minor child should be sustained
notwithstanding the religious scruples of the parent on that
score (People v. Pierson, 176 NY 201, 68 N.E. 243, 98 Am. St. Rep. 666, 63 L.R.A. 187); that where a parent refused her consent to a necessary blood transfusion for
his infant child because of religious convictions against the use of blood for
that purpose
a court might, without transcending constitutional limitations, appoint a
guardian for the child and authorize the guardian to consent to such
transfusion (People v. Labrenz, 411 Ill 618, 104 N.E.2d 769, 30 ALR2d 1132, cer. den.
344 U.S. 824, 97 L.Ed. 642, 73 S.Ct. 24);
[***15] and that the board of regents of a university might deny registration to an
applicant therefor who refused to comply with a requirement of the board that
all students have an X-ray examination of the chest for the purpose of
discovering possible tubercular infection, the basis of such refusal being that
to
submit to such an examination would violate the tenets of the applicant’s
church (State v. Armstrong, 39 Wash2d 860, 239 P.2d 545).
[**139] The plaintiff relies on
Meyer v. Nebraska, 262 U.S. 390, 399, 67 L.Ed. 1042, 43 S.Ct. 625, 29 ALR 1446;
Pierce v. Society of Sisters of the Holy Names, 268 U.S. 510, 69 L.Ed. 1070, 45 S.Ct. 571, 39 ALR 468; and
West Virginia State Board of Education v. Barnette, supra.
Meyer v. Nebraska involved the constitutionality of a
statute of Nebraska which forbade the teaching in any school, public, private
or parochial, of any subject except in English, and also forbade the teaching
of any other language as a language until the pupil had attained and
successfully passed the eighth grade. Violation of this statute was made a
penal offense.
In
Pierce v.
Society of Sisters of the Holy Names
[*232] the challenged statute,
[***16] adopted by the people of Oregon under the initiative, required parents and
others having control of children between the ages of 8 and 16 years to send
them to the public schools. Violation of the statute was punishable by fine or
imprisonment in jail or both.
In the
Barnette case the question was whether a state board of education, acting
pursuant to a statute of Indiana, could constitutionally compel a school child
to participate in the salute to the flag. The objectors were members of the
sect known as Jehovah’s Witnesses. They claimed that the regulation conflicted
with a tenet of their religion based on scripture which
forbade them to make unto themselves or bow down to or serve any
“graven image.” They considered that the flag was an image within this command. For their
refusal to salute the flag children of this faith were expelled from school and
threatened with sentence to reformatories maintained for criminally inclined
juveniles and their parents were prosecuted or threatened with prosecution for
causing
delinquency.
All these measures were condemned as invasions of the liberties of the citizen.
The so-called
“German language” law of Nebraska and the Oregon compulsory
[***17] public school attendance law were found to have their roots in a political
theory that was repugnant to American principles of liberty. In the Nebraska
case the court, after a reference to the Spartan
system of assembling all males at seven into barracks and entrusting their
education to official guardians, denounced the statute as
“arbitrary, and without reasonable relation to any end within the competency of
the state.” In the Oregon case the court said:
“* * * The fundamental theory of liberty upon which all governments in this
Union repose[*233] excludes any general power of the state to
standardize its children by forcing them to accept instruction from public
teachers only. The child is not the mere creature of the state; those who
nurture him and direct his destiny have the right, coupled with the high duty,
to recognize and prepare him for additional obligations.”
268 U.S. at p 535.
And so, as stated in
Prince v. Massachusetts, supra, the court
“sustained the parent’s authority to provide religious with secular schooling,
and the child’s right to receive it, as against the state requirement of
attendance at public schools.”
321 U.S. at p 166.
In the
[***18]
“flag salute” case the court said that
“the flag salute is a form of utterance”
(319 U.S. at p 632) and that the court was
“dealing with a compulsion of students to declare a belief”
(319 U.S. at p 631). The action of the local authorities, therefore, was declared to invade
“the sphere of intellect and spirit which it is the purpose of the First
Amendment to our Constitution to reserve from all official control”
(319 U.S. at p 642).
The famous
“clear and present
danger” test announced by Mr. Justice Holmes in
Schenck v. United States, 249 U.S. 47, 63 L.Ed. 470, 39 S.Ct. 247, as applicable to legislative restriction of free speech, has either been
misunderstood (as we prefer to think) or it was modified by
Dennis v. United States, 341 U.S. 494, 95 L.Ed. 1137, 71 S.Ct. 857 (the case of the communist
[**140] conspiracy), where, after a lengthy discussion and careful analysis of the
decisions touching the question, Chief Justice Vinson said:
“Chief Judge Learned Hand, writing for the
majority below, interpreted the phrase as follows: ‘In each case [courts] must
ask whether the gravity of the
“evil,” discounted by its improbability, justifies[*234] such invasion
[***19] of free speech as is necessary to avoid the danger.’
183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it
is as
succinct and inclusive as any other we might devise at this time. It takes
into consideration those factors which we deem relevant, and relates their
significances. More we cannot expect from words.”
341 U.S. at p 510.
Incorporation of the First Amendment into the Fourteenth has not rendered the
states and their political subdivisions impotent to enact reasonable laws for
the
protection of the public health. We think that the fluoridation measure of the
city of Bend passes the test of reasonableness. It is not designed to pour the
children of the community into a common mould, of the state’s own fashioning,
in order to achieve an illusory unity. It does not compel expression of belief
in a creed repugnant to the
religious convictions of the members of any church. It involves far less of
interference with legitimate parental authority than the regulations sustained
in
Prince v. Massachusetts and
City of Portland v. Thornton. The
“clear and present danger” in those cases was the injury to the health and morals of young
[***20] children which could be expected to result from permitting them to sell
papers on the public streets; in this case it is a children’s disease of
serious proportions. It is to be borne in mind that
“Laws are made for the government of actions, and while they cannot interfere
with mere religious belief and opinions, they may with practices.”
Reynolds v. United States, supra, 98 U.S. at p 166. Mr. Justice Cardozo, in his concurring opinion in
Hamilton v. Regents of the University of Southern California, supra, in which Justices Brandeis and Stone joined, called attention to the fact that
exemption from military service had been usually granted in this country to
[*235] conscientious objectors as an act of grace and was frequently
coupled with a condition that they supply the Army with a substitute or with
the money necessary to hire one.
“Never in our history,” he wrote,
“has the notion been accepted, or even, it is believed, advanced, that acts thus
indirectly related to service in the camp or field are so tied to the practice
of religion as to be exempt, in law or in morals, from
regulation by the state.”
293 U.S. at p 267.
Quite as indirect is the relationship between
[***21] the measure before us and so-called enforced medication and the practice of
religion. The argument respecting enforced medication has been in some cases
coupled with a claim that fluoridation of a community’s water supply amounts to
the practice of medicine or
dentistry by a municipality. Such a claim is found in the plaintiff’s
complaint, though at the argument it was expressly withdrawn by plaintiff’s
counsel. Upon this subject we agree with what the Oklahoma court said in
Dowell v. City of Tulsa, supra:
“* * * 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.”
273 P.2d at p 864.
We see no difference from a constitutional standpoint between introducing
chlorine into a water supply to remove impurities and thereby safeguard the
public health, and introducing
fluorides to reduce the
[***22] incidence of dental decay among children and thereby
promote the public health and general welfare. Yet today
[*236] chlorination seems to be accepted by everyone as a matter of course.
[**141] We conclude that the objections to the proposed action of the city of Bend,
while undoubtedly advanced in good faith, are, in the light of constitutional
principles, tenuous; that the measure bears only
remotely, if at all, upon the religious practices of any individual or the
authority of parents to rear their children and prepare them for citizenship;
that it was adopted for the accomplishment of an end, concededly legitimate, by
means which it would be extravagant to pronounce unreasonable or arbitrary. It
is, therefore, a valid exercise of the city’s police power.
The only other contention of the plaintiff which we are required to
notice is that fluoridation of the city’s water supply will constitute a
violation of the contractual rights of approximately 600 suburban water users
living in water districts with which the city has entered into contracts to
furnish pure, potable and palatable water. We think that it is sufficient to
say of this contention that the present plaintiff
[***23] has no
standing to raise it.
The decree of the circuit court is affirmed without costs to any of the
parties.
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