Kaul v. City of Chehalis

277 P.2d 352, 45 Wash. 2d 616, 1954 Wash. LEXIS 455

• Court: Washington Supreme Court
• Decided: December 2, 1954
• Docket: 32370
• Status: Published

Opinions

Weaver, J.

Appellant challenges the validity of ordinance No. 653-A adopted June 25, 1951, by the city commissioners of the city of Chehalis. The ordinance provides:

“That a source of fluoridation approved by the State Department of Health be added to the water supply of the City of Chehalis under the rules and regulations of the Washington State Board of Health, such addition to be administered in a manner approved by the State Director of Public Health.”

Appeal is taken from a judgment dismissing appellant’s suit to enjoin the respondent city from fluoridating the city water supply pursuant to the above ordinance. Appellant does not question the findings of fact entered by the trial court. The facts found, therefore, become “the established facts in the case.” Rule on Appeal 43, 34A Wn, (2d) 47, as amended, effective January 2, 1953.

In his memorandum opinion, the trial judge said:

“The questions to be determined by this court are purely legal and constitutional questions, and will be dealt with only from that standpoint. It is of no consequence or importance whether I personally approve or disapprove of fluoridation.”

With this we agree. Our discussion of the case will likewise be limited.

Appellant is a taxpayer and a registered voter. He has lived in Chehalis for fourteen years. For the past eight years, he has lived in a rented house which is connected to the municipal water system. He has paid for the use of all water billed to him.

Acting in its proprietary capacity (Russell v. Grandview, 39 Wn. (2d) 551, 553, 236 P. (2d) 1061 (1951)), the city owns and operates a municipal water system, originating eighteen miles southeast of the city. It furnishes water to the residents of Chehalis and to nonresidents living along the supply line.

If the water is fluoridated, it will be necessary for appellant and all other users “to use it for domestic purposes including drinking, because there is no other practical source of supply.” •

The trial court found:

“VI. That although fluoride is a deadly poison used commercially for the extermination of rats and other vermin, the addition to the municipal water supply of Chehalis of a source of fluoride ion, such as sodium silico fluoride, in the proportion of one part per million will not amount to a contamination and the water will continue to he wholesome. That chlorine is added to water to affect either bacteria or plant life in the water, while fluoride has no effect upon the water or upon the plant life in the water but remains free in the water and is artificially added solely for the effect it has on the individual drinking the water. (Italics ours.)

“VII. That dental caries, commonly referred to as tooth decay, is a very common disease of mankind. That tooth decay is neither infectious or contagious. That the addition of fluoride to the Chehalis water supply is intended solely for use in prevention of tooth decay primarily in children up to 14 years of age, and particularly between the ages of 6 and 14 and will prevent some tooth decay in some children.”

The- trial court entered judgment dismissing the action with prejudice. Seven assignments of error are directed to the conclusions of law; one is directed to entry of judgment.

Did the city council exceed its authority when it adopted ordinance No. 653-A providing for fluoridation of the water?

Article XI, §11, of the state constitution provides:

“Police and Sanitary Regulations. Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.”

The trial court found that Chehalis is “operating under the Commission Form of Government pursuant to RCW Chapter 35.17.” Therefore, Chehalis is governed by the statutes applicable to cities of the second class. Rem. Rev. Stat., §§ 9093, 9100 [cf. RCW 35.17.030].

Laws of 1907, chapter 241, § 29, p. 634 (Rem. Rev. Stat., § 9034 [cf. RCW 35.23.440]) provides:

“The city council of such city shall have power and authority: . . .

“(24) Water Supply: To adopt, enter into and carry out means for securing a supply of water for the use of such city or its inhabitants, . . .

“(27) Health Board: To establish a board of health; to prevent the introduction and spread of disease; . . .

“(56) To provide for the general welfare.” (Italics ours in text.)

(Note that the statute authorizes the city “to prevent the introduction and spread of disease” as contrasted to the charter powers of the city of Shreveport “to prevent the introduction and spread of contagious diseases.” We will refer to this later when discussing Chapman v. Shreveport (1954), No. 116282, First District Court, Caddo Parish, Louisiana.)

Laws of 1909, chapter 249, §§ 290, 291, p. 979 (Rem. Rev. Stat., § 2542 [cf. RCW 70.54.010]) (Rem. Rev. Stat., § 2543 [cf. RCW 70.54.020]) and Laws of 1899, chapter 70, p. 114 (Rem. Rev. Stat., §§ 9473, 9475, 9476, 9477 [cf. RCW 35.88-.010-020, RCW 35.88.050-070]) contain numerous provisions, both penal and otherwise, designed to insure the purity of water supplies.

Dental caries is neither infectious nor contagious. This, however, does not detract from the fact that it is a common disease of mankind. As such, its prevention and extermination come within the police power of the state. In State v. Boren, 36 Wn. (2d) 522, 525, 219 P. (2d) 566 (1950), this court said:

“The state, under its police power, has the right, and it is its duty, to protect its people in their health and general welfare. The very existence of government, as well as the security of the social order, depends upon this right. This is especially true as to the health of the people, which affects every man, woman, and child within the state.”

Laws of 1901, chapter 116, § 1, p. 236 [cf. Rem. Rev. Stat., § 6001; RCW 43.20.050], gives the Washington state board of health broad powers and duties for the “preservation of the life and health of the people of the state.” By regulation of the state board of health,

, “No water shall be provided or rendered available for use to the public for drinking or domestic use which is of unsatisfactory sanitary quality and is not approved by the State Department of Health.” Part 2, Book V, Rules and Regulations of the State Board of Health, § 7.

We note that the same regulation (§7, subsection 4.21) provides that:

“The presence of . . . fluoride in excess of 1.5 p.p.m. [parts per million] . . . shall constitute grounds for rejection of the supply.”

January 25,1950, the state board of health adopted section 19 of the rules identified supra. It was in force when the ordinance in question was passed. It provides:

“Sec. 19. Fluoridation of Public Water Supplies. An owner [which by definition includes a city] may participate in a program of fluoridation (the regulated application of a fluoride as sodium fluoride) of the public water supply, providing the procedures are followed as outlined herein: 5?

(This rule was amended July 25, 1952, but its purpose was not changed.)

We find nothing in the ordinance which is in conflict “with general laws” or which detracts from the constitutional and statutory grants to the city to make and enforce local police, sanitary, and other regulations. Nor do we agree that the fluoridation is ultra vires simply because the police power is exercised through a municipal agency operated by the city in its proprietary capacity.

Since the city acted in the exercise of its police power for the protection of public health to “prevent the introduction and spread of [this] disease” among its citizens, the subject matter of this exercise of power, and its expediency, are beyond judicial control, except as they may violate some constitutional right guaranteed to appellant. Dowell v. Tulsa, 273 P. (2d) (Okla.) 859 (1954) (fluoridation of water).

We fail to see, however, where any right of appellant, guaranteed by the constitution, has been invaded. The instant situation is vastly different from one where appellant is required to take affirmative action and is subject to punishment for failure to act. The ordinance under consideration does not compel him to do anything; it subjects him to no penalty. Liberty implies absence of arbitrary restraint. It does not necessarily imply immunity from reasonable regulations imposed in the interest of the community.

In some sections of the country, fluoride appears as a natural element in water. When it appears naturally in proportions not deleterious to health, would it be contended that the city could be forced to remove it?

The trial court’s finding is unchallenged that:

“. . . The addition to the municipal water supply of Chehalis of a source of fluoride ion, such as sodium silico fluoride, in the proportion of one part per million will not amount to a contamination and the water will continue to he wholesome.” (Italics ours.)

It is the duty of the city to furnish appellant with wholesome water, free from contamination. The court found that the city will continue to furnish wholesome water. This fulfills the city’s obligation to appellant and violates none of his constitutional rights.

This conclusion finds support in DeAryan v. Butler, 119 Cal. App. (2d) 674, 260 P. (2d) 98 (1953), Dowell v. Tulsa, 273 P. (2d) (Okla.) 859 (1954), and Kraus v. Cleveland, 116 N. E. (2d) 779 (1953), affirmed 121 N. E. (2d) 311 (1954).

Subsequent to the cited opinion of the DeAryan case, supra, it became final when the supreme court of California denied a petition for a hearing. June 7, 1954, the United States supreme court denied certiorari. 347 U. S. 1012, 74 S. Ct. 863. The California appellate court, in holding constitutional an ordinance providing for the fluoridation of a public water supply, said:

“The United States Supreme Court, in establishing and clarifying the constitutional right of religious and'other freedoms; has distinguished between the direct compulsions imposed upon individuals, with penalties for violations, and those which are indirect or reasonably incidental to a furnished service or facility. (Hamilton v. Regents of The University of Calif., 293 U. S. 245 [55 S. Ct. 197, 79 L. Ed. 343]; West Virginia State Board of Education v. Barnette, 319 U. S. 624 [63 S. Ct. 1178, 87 L. Ed. 1628, 147 A. L. R. 674]; Cantwell v. State of Connecticut, 310 U. S. 296, 303 [60 S. Ct. 900, 84 L. Ed. 1213, 128 A. L. R. 1352].)”

Thé supreme'court of Oklahoma, in holding constitutional an ordinance for the fluoridation of water, said:

“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 contágious disease or virus is directly involved. [Citing authorities.] Where such necessity is established, the Courts, especially in recent years, have adopted a liberal view of the health measures promulgated and sought to be enforced.” Dowell v. Tulsa, 273 P. (2d) (Okla.) 859 (1954).

It would extend this opinion unduly to analyze in detail each of the cases cited by appellant. It is sufficient to point out that they fall into two categories, neither one of which changes the opinion already expressed.

The first contains those cases where the courts have held it a valid exercise of the police power, for the protection of public health, to prevent the introduction or spread of contagious or communicable diseases. Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643, 25 S. Ct. 358, 3 Ann. Cas. 765 (1904) (compulsory adult vaccination with penalty for refusal) and Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 64, 80 Am. St. 195 (compulsory vaccination of children as a condition to entering or remaining in public school) are illustrative of appellant’s first category of authorities. In the main, the cases are based upon the theory of “the pressure of great danger.” From the cases of this type, appellant argues, that since the instant case involves a noncontagious disease, which does not present a grave and immediate danger to the public, an extension of the police power to the situation results in an invasion of his constitutional rights.

This conclusion depends upon a refinement we are unwilling to make. Protection of public health includes protection from the introduction or spread of both contagious and noncontagious diseases. There is a direct and significant relationship between dental health and general bodily health of individuals. We find nothing in this jurisdiction which limits the police power, exercised in the realm of public health, solely to the control of contagious diseases, as distinguished from noncontagious diseases. Further, under the police power, a health regulation may be an effective public measure, without the existence of some immediate public necessity.

State ex rel. Bolling v. Superior Court, 16 Wn. (2d) 373, 133 P. (2d) 803 (1943) (compulsory flag salute held unconstitutional); West Virginia State Board of Education v. Barnette, 319 U. S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (compulsory flag salute unconstitutional); and Pierce v. Society of Sisters and Hill Military Academy, 268 U. S. 510, 69 L. Ed. 1070, 45 S. Ct. 571, 39 A. L. R. 468 (1925) (compulsory attendance of all children at public schools held unconstitutional) illustrate the second class of cases upon which appellant relies. They are distinguishable from the instant case; they involve statutes requiring affirmative action by the individual, with a penalty for refusal to act. Such is not the instant case.

It is unfortunate that the case of Chapman v. Shreveport, (1954) No. 116282, First District Court, Caddo Parish, Louisiana, is unreported. On casual examination, it would appear to support a conclusion contrary to the one we have reached. In it, the trial judge said:

“The basic and, to our mind, the decisive issue in this case, is plaintiff’s contention that the City Council has no delegated authority to fluoridate the City water supply.”

After pointing out that the only specific reference to disease in the city charter is contained in the following language:

“To make regulations not in conflict with the laws of the state, for the maintenance of cleanliness and sanitary conditions within the city, and to prevent the introduction and spread of contagious diseases; . . . ” (Italics ours)

the trial court concluded that the city council had no delegated authority to fluoridate the water. The balance of the opinion, to our minds, is dictum not necessary to the decision in the case. The trial judge subtly adopts the arguments of the scientific opponents of fluoridation. Although the relevancy of that question is denied on the one hand, it is nurtured on the other. That there are two sides to this question (with which we cannot concern ourselves), appears in considerable detail in the opinion of Judge Artl in Kraus v. Cleveland, 116 N. E. (2d) 779 at page 790, under the heading, “Review of the evidence as to the efficacy and safety of the fluoridation program.” This decision of the court of common pleas of Ohio is a well-considered opinion, holding constitutional ordinances providing for the fluoridation of the Cleveland water supply. On appeal, the Kraus case was affirmed in 121 N. E. (2d) 311 (1954); the Chapman case, supra, was reversed in 74 So. (La.) (2d) 142 (1954).

Finally, neither the alliterative term “compulsory mass medication” nor reference to the fluoridated water as a “concoction” describes the situation before us; nor does the possible opprobrium, which may flow from their use, overcome the police power.

We are convinced by the reasoning of the Kraus, Dowell, Chapman, and DeAryan cases, supra. The trial court did not err in concluding that the ordinance was a valid exercise of the police power and violated no constitutional rights guaranteed to appellant.

Appellant’s remaining assignments of error are directed to the trial court’s conclusions: (1) that whether ordinance No. 653-A properly specified an emergency is immaterial since no referendum petitions were presented to the city clerk within thirty days after the ordinance was passed; (2) that the city is not engaged in selling drugs, practicing medicine, dentistry, or pharmacy as defined by statute; and (3) that the appropriation of funds under the ordinance to effect its purpose was valid under applicable state law.

We have considered these assignments of error. It would add nothing to discuss them in detail. They are not well taken.

The judgment is affirmed.

Mallery, Schwellenbach, Finley, and Olson, JJ., concur.