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417 P.2d 632;
1966 Wash. LEXIS 925
August 18, 1966
PRIOR HISTORY:
[***1]
Appeal from a judgment of the Superior Court for Snohomish County, No. 80111,
Charles R. Denney, J., entered December 10, 1964.
DISPOSITION:
Affirmed.
HEADNOTES:
[1] Municipal Corporations — Police Power — Limitations — Absence of Express
Grant. A city cannot exercise its police power outside its boundaries unless
authority to do so is expressly granted by charter or statute.
[2] Same — Police Power — Fluoridation of Water Supply — Fluoridation of
Water Beyond City
Limits. It was not an unlawful exercise of police power by a municipality to
fluoridate its water supply, and as a consequence fluoridate water consumed in
an area outside the city limits, where the city did not sell or distribute
water to such outlying areas, but merely redelivered the water through the
city’s
lines pursuant to a contract with the actual supplier, and did not intend to
furnish fluoridated water to persons residing outside the city, such
fluoridation resulting as an incident to the city’s fluoridation program.
[3] Appeal and Error — Review — Findings. A trial court’s findings of fact when supported by substantial evidence
will be accepted as correct on appeal.
SYLLABUS:
[***2]
Action for an alternative writ of prohibition. One plaintiff appeals from a
judgment of dismissal.
COUNSEL:
Hullin, Ehrlichman, Carroll
& Roberts, for appellant.
William F. Hennessey (of
Brumbach
& Hennessey), for respondent.
JUDGES: Donworth, J. Rosellini, C. J., Finley and Hamilton, JJ., and Barnett, J. Pro
Tem., concur.
OPINIONBY: DONWORTH
OPINION:
[*149]
[**632] Appellant Reese has appealed from the dismissal of his alternative writ of
prohibition with prejudice after a trial before the court sitting without a
jury. The facts were stipulated by counsel. Therefore, the only issues in the
case are questions of law. The basic question is whether the persons who are
not residents of the City of Mountlake Terrace
can obtain judicial relief to prevent the City of Mountlake Terrace from
fluoridating the city’s water supply when its so doing will inevitably result
in the fluoridation of the water of the nonresidents who wish to have their
water remain unfluoridated.
The facts are somewhat involved but are not in dispute. The stipulated facts
which were accepted verbatim
by the trial court as findings of fact are as follows:
2. That the City of Mountlake Terrace is
[***3] a city of the third class duly organized and existing in Snohomish County,
Washington, with a population of approximately 13,200 persons.3. That plaintiffs and the members of the class which they represent reside in
an unincorporated area of
Snohomish County, Washington, contiguous to the City of Mountlake Terrace, in
which said area reside approximately 300 persons. That plaintiffs are
electors, taxpayers, and customers of the Alderwood Water District.4. That prior to the 18th day of May, 1959, the Alderwood Water District
supplied water to the residents of the City of Mountlake Terrace all of whom
were then
customers and taxpayers of said district. On the 18th day of May, 1959, the
City of Mountlake Terrace entered into a contract with the Alderwood Water
District for the purchase by the city from the district of the water system
within the city limits, a true and correct copy of which said contract has been
admitted herein as defendant’s Exhibit 1.[**633]
5. That plaintiffs, and the class to which they belong,[*150] are served with water by the Alderwood Water District through pipes which run
through the defendant City of Mountlake Terrace. That said pipes are
[***4] common distribution lines, both for the City of Mountlake Terrace and for
plaintiffs and others similarly situated.6. That on or about the 15th
day of June, 1964, the duly elected, qualified and acting City Council of the
City of Mountlake Terrace, duly adopted an Ordinance No. 388 which purported to
authorize the addition of a
fluoride chemical to the municipal water supply of said city. That a true and correct
copy of said ordinance has been admitted herein as defendant’s Exhibit
3.7. That the only feasible method available to the City of Mountlake Terrace to
fluoridate its water supply, is by the introduction of the appropriate amount
of
fluoride at the point of delivery of water to the City of Mountlake Terrace by the
Alderwood Water District. That if
fluorides were introduced at said point, not only the municipal water supply of the
City of Mountlake Terrace would receive such
fluorides, but also the water delivered to plaintiffs and the class to which they belong.8. That the introduction of
fluorides pursuant to the aforesaid ordinance would be, if permitted, accomplished for
the purpose of reducing dental decay in the users of said water, and would not
be for the purpose
[***5] of eliminating or reducing harmful bacteria or organisms
in the water nor would it have any purifying effect on the said water.9. If
fluorides were introduced into the muncipal water supply of the City of Mountlake
Terrace pursuant to the aforesaid ordinance, said introduction would not render
the same unfit for human consumption according to the standards of the State of
Washington Department of Health.10. That plaintiffs object to the introduction of
fluorides into their water, inasmuch as they are not citizens, residents, nor taxpayers
of the City of Mountlake Terrace.
In addition to these stipulated facts, the trial court added the additional
finding which reads:
X. That the fluoridation of plaintiffs’ water supply would be a mere incident
to a legitimate sanitary regulation of defendant City of Mountlake
Terrace in the valid exercise of its police power.
[*151]
The only conclusion of law entered by the trial court reads as follows:
I. That defendant is entitled to judgment dismissing the alternative writ of
prohibition heretofore entered herein on the 25th day of June, 1964 and to
judgment for its costs and disbursements herein to be taxed.
The contract
[***6]
by which the water district sold the water distribution system to the City of
Mountlake Terrace was incorporated in the stipulated facts. It provided for
the sale of the water pipeline system within the city limits of Mountlake
Terrace to the city (except for certain specific exclusions not relevant to the
issues in this
case). The city agreed to pay a specific sum of money, and to purchase all the
water it found necessary for the use of its residents up to the amount which
the water district could supply for a period of 7 years.
In addition, the agreement contained the following provisions which are
pertinent to an understanding of this case:
V.
The
City shall permit the District to continue to serve areas outside the present
or future City limits which receive water service from lines running through
the City
. Meter readings shall be made of water consumed within said areas and shall
be deducted from the master meter readings in computing the amount of
water delivered to the City. The amount as near as may be determined of any
unmetered water used or water loss sustained in said areas shall also
[**634] be deducted in computing the amount of water delivered to the
[***7] City. If and when the City no longer purchases water from the District, the
City agrees to furnish water to said areas at rates to be
mutually agreed upon between the City and the District. This section shall not
apply to the 12 inch and 3 inch lines described in Section I hereof.
Any area served by the District lying within the City not served by water
delivered to the master meter by the District
shall be served and billed as follows: The City shall read meters and bill the
customer and add to the master meter reading the amount of water consumed by
those customers within the City. The City shall maintain the service line and
the meters. The amount as near as may be determined of any unmetered water
used or water
loss sustained in said areas shall also be added in computing the amount of
water delivered to the City.
[*152] VI. The District agrees to furnish to the City
good and wholesome quality of water approved by the State Department of Health at point of delivery.
All water supplied by the District shall be upon the express
condition that after it has passed the meter equipment the same becomes the
property of the City and the District shall not be liable for
[***8]
any damages or loss beyond said point, except as provided in Section V above.
. . . .
XVI. This agreement shall terminate on June 1, 1966 as to all provisions herein
except Sections V,
IX and X. (Italics ours.)
Appellant assigns as error the entry of the judgment by the trial court, and
the making of its finding of fact No. 10 and conclusion of law No. 1, quoted
earlier in this opinion.
We assume that the trial court’s reason or reasons for its dismissal of the
alternative writ of prohibition are based on the
finding and the conclusion of law as supported and explained by respondent
city’s arguments.
Appellant’s position can be clearly shown by quoting portions of his brief.
Appellant states therein:
The City of Mountlake Terrace admittedly intends to put a chemical medicine,
fluoride, in water furnished to it by the Alderwood
Water District, which water in turn passes through the City of Mountlake
Terrace to plaintiffs’ properties outside the city.
Appellant’s brief also contains the following statement:
Assuming, for the sake of argument only, that the City of Mountlake Terrace has
the police power to fluoridate its own water system, it is clearly apparent
[***9] that it has
no jurisdiction or authority to impose such fluoridation or chemical medicine
upon persons living outside the city.
[1] Appellant cites and quotes from many authorities which state in clear language
that, unless the authority is expressly granted by charter or statute, a city
cannot exercise its police power
outside its boundaries. In particular, appellant relies on
Brown v. Cle Elum, 145 Wash. 588, 261 Pac. 112, 55 A.L.R. 1175 (1927).
[2] We agree that appellant is correct in his abstract statement of the law, but
we are of the opinion that in this
[*153] case the City of Mountlake Terrace is
not proposing to exercise its police power outside the city limits. The city
does not distribute water to appellant. Under the contract, it redelivers
water received from the Alderwood Water District, a portion of which is then
delivered to appellant through the district’s mains. It is true that the city
will be the entity which will fluoridate appellant’s
water, but such fluoridation is not being done for the purpose of supplying
fluoridated water to him or to other persons in his class. These persons are
customers of the water district,
i.e.,
[***10] they buy water from the district, although that water has first passed through
the city’s water mains consistent with the provisions of the contract. The
fact that appellant’s
water will
[**635] contain
fluoride is the inevitable result of the city’s fluoridation program and the passage of
the ordinance which implemented the program. In a very meaningful sense, the
city is not exercising its police power for the purpose of fluoridating water
which it will deliver to persons residing outside the city. Its purpose is to
furnish fluoridated
water to its own inhabitants.
[3] To the extent that the trial court’s finding of fact X determines a factual
issue, we must accept it as correct, since there is substantial evidence to
support it. To the extent that this finding also may be a mixed finding of
fact and conclusion of law, we believe that it correctly states the legal
effect of the
ordinance. As stated above, the fluoridation of appellant’s water is the
incidental, although inevitable, result of the city’s exercise of its police
power in this respect.
Appellant does not claim that he is, in fact, harmed by this incidental result
of the fluoridation. Furthermore, the
[***11] trial court found that the fluoridation would not render the water unfit
for human consumption according to the standards of the State of Washington
Department of Health. This was one of the
stipulated facts in this case.
Since, under the contract between the city and the water district, the latter
is obligated to deliver to the former a good and wholesome quality of water,
approved by the State Department of Health, and
since the city further
[*154] agreed to permit the district’s customers residing outside the city to receive
water service from mains running through the city, it can only reasonably be
inferred that the parties contemplated that appellant and other persons
similarly situated were to receive the quality of water approved by the State
Department of
Health.
The trial court, having found on stipulation of the parties that fluoridation
will not render the water unfit for human consumption according to health
department standards, had no legal basis for holding that appellant will be
harmed.
Kaul v. Chehalis, 45 Wn.2d 616, 277 P.2d 352 (1954), and
Birnel v. Fircrest, 53 Wn.2d 830, 335 P.2d 819,
appeal dismissed
361 U.S. 10 (1959).
Brown v. Cle
[***12] Elum, supra, relied on by appellant, does not support his position. In that case (which
was twice
argued before this court), it was held that a city ordinance purporting to make
it unlawful for anyone to swim, fish, or boat on a certain lake situated in the
National Forest Reservation, about 6 miles outside the city limits, was an
invalid exercise of the city’s police power. The facts
in the present case, as stated above, make it readily distinguishable from the
Brown case. The trial court’s conclusion of law No. 1 is correct.
Respondent has argued,
inter alia, that appellant has no standing to bring this suit. The trial court reached
the merits and determined, in effect, that appellant was not
harmed. Since we affirm on that ground, there is no need to discuss the
standing issue.
The judgment of the trial court is hereby affirmed.
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