Alkire v. Cashman

• Decision Date: 11 October 1972
• Docket Number: Civ. No. 72-285.
• Citation: 350 F. Supp. 360
• Parties: Jack ALKIRE et al., Plaintiffs, v. Dr. John W. CASHMAN et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

350 F. Supp. 360

Jack ALKIRE et al., Plaintiffs, v. Dr. John W. CASHMAN et al., Defendants.

Civ. No. 72-285.

United States District Court, S. D. Ohio, E. D.

October 11, 1972.

Lyman Brownfield, Laurence E. Sturtz, Columbus, Ohio, for plaintiffs.

James J. Hughes, Jr., City Atty., Robert A. Bell, William J. Brown, Atty. Gen. of Ohio, Michael Grove, Asst. Atty. Gen., Columbus, Ohio, for defendants.

OPINION AND ORDER

CARL B. RUBIN, District Judge.

This matter is before the Court on plaintiffs' application for a temporary restraining order and on defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. See Rules 65(b) and 12(b)(1), (6), Fed.R.Civ.P.

In their complaint herein, in which jurisdiction is predicated upon 28 U.S.C. § 1331, the plaintiffs' have challenged the constitutionality of Section 6111.13 O.R. C. (hereinafter the Act) and have requested the convening of a three-judge court, pursuant to 28 U.S.C. §§ 2281 et seq. for the purpose of declaring that provision void. The statute in question requires that all public waterworks systems in Ohio serving more than 20,000 persons, fluoridate their water supplies to a specified range of fluoride content, by January 1, 1971; and that systems serving between 5,000-20,000 persons perform this duty by January 1, 1972. Systems serving fewer than 5,000 persons are not required to fluoridate their water under the Act. The Columbus Municipal Waterworks (hereinafter the City) supplies more than 20,000 persons, including persons living in incorporated communities beyond the corporate limits of the city. It appears that the city has not yet complied with the state statute but intends to fluoridate its water supplies by November, 1972, pursuant to authorization conferred upon it by Columbus City Ordinances Nos. 1739-71 and 1162-72 (hereinafter the ordinances).

Some confusion is present in the pleadings as to the city's motivation in fluoridating its water supplies. The plaintiffs assert that the municipal ordinances referred to above will merely implement the requirements imposed upon the city by the Act. They argue from this premise that what is really at issue at bar is a statute of statewide application which mandates fluoridation of municipal water systems and that this statute contains certain alleged constitutional infirmities. These statutory infirmities include alleged violations of plaintiffs' rights of privacy, due process and equal protection as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States; and of the rights of their respective communities to home rule, as provided for in Article XVIII, Section 7, of the Ohio Constitution. Plaintiffs further argue that the enactment of Section 6111.13 impaired the contractual obligations owing from the city to certain surrounding communities in Franklin County, Ohio, in violation of Article I, Section 10, of the United States Constitution.

The defendants dispute plaintiffs' contentions that the city adopted the ordinances by way of implementing the Act. They note, in support of this position, that the city is out of time under the deadlines imposed by the statute; that the State has taken no steps to force compliance by the city; and further that the ordinances make no reference to the duties, if any, that are imposed by the state. Under this theory, the city argues that it has the right under federal and state law, and under the doctrine of home rule, to fluoridate its water supplies. The Court will consider the disparate contentions of this matter alternatively under both the plaintiffs' and defendants' theories of the case, beginning with the latter.

If we assume that the ordinances were adopted pursuant to the general police powers of cities incorporated under the laws of Ohio, and in conformity with rules governing their respective political processes, then it is settled in this state that the fluoridation of a municipal water supply is a proper exercise of municipal police powers which does not violate either federal or state constitutional rights. See Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E.2d 609, 57 Ohio O. 1 (1955), appeal dismissed for want of a substantial federal question, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956).

If, on the other hand, we were to accept plaintiffs' theory of the case, we are still of the opinion that the petition fails to raise a justiciable issue. Courts, both state and federal, have held with virtual unanimity that the fluoridation of public water systems does not violate the due process clause or constitutional rights incorporated by that clause of the Fourteenth Amendment to the United States Constitution. See Kraus v. City of Cleveland, supra, appeal dismissed for want of a substantial federal question, 351 U.S. 935, 76 S.Ct. 833, 100 L.Ed. 1463 (1956); Crawford v. City of Detroit, 389 F.2d 1001 (C.A.6, 1968); Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (1956), appeal dismissed for want of a substantial federal question, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701 (1954); Readey v. St. Louis County Water Co., 352 S.W.2d 622 (Mo. 1961), appeal dismissed and cert. denied, 371 U.S. 8, 83 S.Ct. 20, 9 L.Ed.2d 47 (1962); Dowell v. City of Tulsa, 273 P. 2d 859 (Okl.1954), cert. denied, 348 U. S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955); also see, Opinion of Justices, 243 A.2d 716 (Del.1968); Schuringa v. Chicago, 30 Ill.2d 504, 198 N.E.2d 326 (1966); Miller v. Evansville, 247 Ind. 563, 219 N.E.2d 900 (1966); Baer v. Bend, 206 Or. 221, 292 P.2d 134 (1956); Birnel v. Fircrest, 53 Wash.2d 830, 335 P.2d 819 (1959). In addition, the Supreme Court of Ohio has held, with specific reference to Section 6111.13, that the writ of prohibition will not lie against the mayor of a city who acts to fluoridate a municipal water supply pursuant to the command of that statute. See State ex rel. Lehmann v. Cmich, 23 Ohio St.2d 11, 52 Ohio O.2d 32, 260 N. E.2d 835 (1970).

Plaintiffs present two additional questions which, to our knowledge, have not been raised in their precise terms in other actions similar to the present suit. Plaintiffs' first contention, that the act violates the Equal Protection Clause of the Fourteenth Amendment, requires little discussion. As noted earlier, Ohio with reference to the act in question, has chosen to classify differently public water systems serving fewer than five thousand persons from those serving more than that number of users. Plaintiffs contend that this legislation distinguishes unfairly between large and small water suppliers, is violative of Article II, Section 26, of the Ohio Constitution which requires that state laws of a general nature have a "uniform operation throughout the state", and further violates the federal Equal Protection Clause.

Considering first plaintiffs' state law contention, the Court notes that Article XVIII, Section 1, of the Ohio Constitution specifically classifies municipal corporations into villages, having fewer than 5,000 persons, and cities having 5,000 or more inhabitants. The statutory classification in this case is in conformity with and analogous to this constitutional provision, and in our view does not result in a non-uniform effect within the meaning of Ohio law. See Bucyrus v. State Dep't. of Health, 120 Ohio St. 426, 166 N.E. 370 (1929); State ex rel. Ramey v. Davis, 119 Ohio St. 596, 165 N.E. 298 (1929); State ex rel. Heffernan v. Serp, 125 Ohio St. 87, 180 N.E. 650 (1932).

Nor do we think that a substantial question is raised under the Equal Protection Clause to the Fourteenth Amendment. The Equal Protection Clause does not prohibit a state from drawing distinctions between groups and legislating differently for the various groups so designated. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed. 2d 577 (1966); Williams v. San Francisco Unified School District, 340 F. Supp. 438 (N.D.Cal.1972). However, "the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Heath v. Westerville Board of Education, 345 F.Supp. 501 (S.D.Ohio E.D. 1972).

In light of the provision of the Ohio Constitution cited above, which differentiates, as a matter of state constitutional law between villages and cities, and on its face, we do not believe that the act creates arbitrary classifications within the meaning of the Equal Protection Clause. The Ohio General Assembly, at least arguably, created this classification so as to reach an optimum number of citizens, at the least possible cost, utilizing the greatest efficiencies of scale. The fact that the legislature chose, at this time, not to include within the reach of the act public water systems serving less than 5,000 users does not invalidate the act as a whole. There is no federal constitutional requirement that a state exercise its police powers, to the fullest extent, at any given time; nor that a state law, from the point of view of equal protection necessity, have a uniform application. Because the statutory classification is parallel to the state constitutional provision and does not affect "preferred" constitutional guarantees, we do not think the State need justify the enactment under the heavier burden of "compelling state interest." See Shapiro v. Thompson, supra. For these reasons plaintiffs' foregoing contentions under the Equal Protection Clause are without merit.

Finally, plaintiffs argue that the act in question infringes on the contractual rights of their respective communities, under...