City of Canton v. Whitman

337 N.E.2d 766, 44 Ohio St. 2d 62, 73 Ohio Op. 2d 285, 1975 Ohio LEXIS 583
CourtOhio Supreme Court
DecidedNovember 19, 1975
DocketNo. 75-282
StatusPublished
Cited by63 cases

This text of 337 N.E.2d 766 (City of Canton v. Whitman) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Canton v. Whitman, 337 N.E.2d 766, 44 Ohio St. 2d 62, 73 Ohio Op. 2d 285, 1975 Ohio LEXIS 583 (Ohio 1975).

Opinion

StbrN, J.

The issue raised in this case is, generally, whether the state may require a municipality to fluoridate a municipally-owned-and-operated water supply, and, specifically, whether R. C. 6111.13, which requires fluoridation, is a valid exercise of the state police power.1

[64]*64The purpose of fluoridation is well-known. Fluorides help prevent and control the incidence of dental caries. Fluoridation has become a familiar public health measure [65]*65in the past two decades, and it is beyond questioning a proper subject for legislation pursuant to the police power. Kraus v. Cleveland (1955), 163 Ohio St. 559, 127 N. E. 2d 609; Alkire v. Cashman (S. D. Ohio E. D. 1972), 350 F. Supp. 360; Dowell v. Tulsa (Okla. 1954), 273 P. 2d 859; Paduano v. New York (1966), 17 N. Y. 2d 875, 218 N. E. 2d 339; Annotation, 43 A. L. R. 2d 453.

In Kraus, supra, we held that a municipality could fluoridate its municipally-owned water supply, as a proper exercise of the police power. Here, the city of Canton does not wish to fluoridate its water, and the issue is whether the state may order the city to do so.

The city contends that fluoridation is a matter of local self-government and of the operation of a municipal public utility, matters which are reserved for municipal control under the home-rule provision of the Ohio Constitution.

Section 3 of Article XVIII of the Ohio Constitution provides:

“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.”

This section, adopted in 1912, preserved the supremacy of the state in matters of “police, sanitary and other similar regulations,” while granting municipalities sovereignty in matters of local self-government, limited only by other constitutional provisions. Municipalities may enact police and similar regulations under their powers of local self-government, but such regulations “must yield to general laws of statewide scope and application, and statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations in the exercise by a municipality of the powers of local self-government.” State, ex rel. Klapp. v. Dayton P. & L. Co. (1967, 10 Ohio St. 2d 14, 225 N. E. 2d 230 (paragraph one of the syllabus); West Jefferson v. Robinson (1965), 1 Ohio St. 2d 113, 205 N. E. 2d 382; Cincinnati v. Hoffman (1972), 31 Ohio St. 2d 163, 179, 285 N. E. 2d 714 (Brown, J., dissent[66]*66ing); Leavers v. Canton (1964), 1 Ohio St. 2d 33, 37, 203 N. E. 2d 354.

Matters involving local self-government and those involving the police power often overlap. Even if a matter is of local concern, the local regulation may have significant extraterritorial effects, in which case it properly becomes a matter of statewide concern for the General Assembly. Cleveland Electric Illuminating Co. v. Painesville (1968), 15 Ohio St. 2d 125, 239 N. E. 2d 75; Beachwood v. Bd. of Elections (1958), 167 Ohio St. 369, 371, 148 N. E. 2d 921. Similarly, a matter which relates to exercise of the police power by a municipality, e. g., the appointment of officers to the police force, may essentially be an exercise of local self-government not subject to state authority. State, ex rel. Canada, v. Phillips( 1958), 168 Ohio St. 191, 151 N. E. 2d 722.

The power of local self-government and that of the general police power are constitutional grants of authority equivalent in dignity. A city may not regulate activities outside its borders, and the state may not restrict the exercise of the powers of self-government within a city. The city may exercise the police power within its borders, but the general laws of the state are supreme in the exercise of the police power, regardless of whether the matter is one which might also properly be a subject of municipal legislation. Where there is a direct conflict, the state regulation prevails.

The city contends further that the power to fluoridate is a “power of local self-government.” That argument is necessarily rejected by the decision of this court in Kraus v. Cleveland, supra. See, also, Beachwood v. Bd. of Elections, supra. The decision to fluoridate is intrinsically one involving public health. Whether it is decided by an exercise of local self-government is irrelevant, for its validity must depend upon whether it bears a substantial relationship to the public health. In Kraus, the court held that fluoridation is a proper subject for exercise of the police power when enacted by a municipality, and was not “in contravention of the general laws in relation to adultera[67]*67tion or the practice of medicine.” Fluoridation is equally a proper subject for the exercise of the state police power, and a municipal ordinance in contravention of a general state law requiring fluoridation is invalid. The public health is a matter of state as well as local concern (State, ex rel. Mowrer, v. Underwood [1940], 137 Ohio St. 1, 27 N. E. 2d 773; State, ex rel. Cuyahoga Heights, v. Zangerle [1921], 103 Ohio St. 566, 134 N. E. 686), and that concern extends to those ills which affect us individually, as well as those which we transmit to one another.

As this court stated in Kraus, supra, at page 562:

“* * * 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 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 the criteria which authorize the exercise of the police power in relation to public health.”

The city of Canton also contends that the fluoridation legislation interferes with the power to own or operate public utilities, granted by Section 4 of Article XYIII. That section reads:

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. # * *”

Those rights and privileges are derived directly from the people through the Constitution, and the G-eneral Assembly may not impose restrictions upon the power to operate a public utility granted to a municipality under Article XYIII of the Ohio Constitution. State, ex rel. McCann, v. [68]*68Defiance (1958), 167 Ohio St. 313, 148 N. E. 2d 221; Swank v. Shiloh (1957), 166 Ohio St. 415, 143 N. E. 2d 586; Euclid v. Camp Wise Assn. (1921), 102 Ohio St. 207, 131 N. E. 349.

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Bluebook (online)
337 N.E.2d 766, 44 Ohio St. 2d 62, 73 Ohio Op. 2d 285, 1975 Ohio LEXIS 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-canton-v-whitman-ohio-1975.