Baer v. City of Bend

• Decision Date: 11 January 1956
• Citation: 292 P.2d 134,206 Or. 221
• Parties: William J. BAER, Appellant, v. The CITY OF BEND (a Municipal Corporation), Richard W. Brandis, Mayor, and Hans Slagsvold, Gordon Randall, W. M. Loy, Sr., E. L. Nielsen, T. D. Sexton & Francis G. Gates, City Commissioners of the City of Bend, W. O. Cuthbertson, City Manager, City of Bend, W. P. Drost, Water Superintendent, City of Bend, Walter T. Thompson, City Treasurer, City of Bend, Respondents.
• Court: Oregon Supreme Court

Page 134

292 P.2d 134

206 Or. 221

William J. BAER, Appellant, v. The CITY OF BEND (a Municipal Corporation), Richard W Brandis, Mayor, and Hans Slagsvold, Gordon Randall, W. M Loy, Sr., E. L. Nielsen, T. D. Sexton & Francis G. Gates City Commissioners of the City of Bend, W. O. Cuthbertson City Manager, City of Bend, W. P. Drost, Water Superintendent, City of Bend, Walter T. Thompson, City Treasurer, City of Bend, Respondents.

Supreme Court of Oregon.

Argued and Submitted April 28, 1955.

Jan. 11, 1956.

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.

Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, LATOURETTE and PERRY, JJ.

LUSK, Justice.

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 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, 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, certiorari denied 323 U.S. 770, 65 S.Ct. 123, 89 L.Ed. 616.

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 water, and among children up to the age of 12 or 14 years it effects a reduction of dental decay by some 60 to 65 per cent. Although there is no direct benefit to adults, it is not alleged, not 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 challenges to similar legislation. According to the opinion in Chapman v. City of Shreveport, 225 La. 859, 74 So.2d 142 (appeal dismissed for want of a substantial federal question, 348 U.S. 892, 75 S.Ct. 216, 99 L.Ed. 701, '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 0.7 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, 612, 'Science has discovered a method whereby dental caries may be diminished' 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 an established method.' 163 Ohio St. at page 566, 127 N.E.2d at page 613. 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, Ohio Com.Pl., 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 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 by legislative enactment as will protect the public health and the public safety.' Jacobson v. Com. of Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 361, 49 L.Ed. 643. See, also, State v. Muller, 48 Or. 252, 255, 85 P. 855, 120 Am.St.Rep. 805, affirmed 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551; 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 A.L.R. 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, 570. 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 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 page 31, 25 S.Ct. 358; State v. Muller, supra, 48 Or. at page 255, 85 P. 855; Stettler v. O'Hara, 69 Or. 519, 530, 139 P. 743, L.R.A.1917C, 944, affirmed 243 U.S. 629, 37 S.Ct. 475, 61 L.Ed. 937; 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 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, Okl., 273 P.2d 859, 43 A.L.R.2d 445, certiorari denied 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. ----; DeAryan v. Butler, 119 Cal.App.2d 674, 260 P.2d 98, hearing denied by Supreme Court of California, certiorari denied 347 U.S. 1012, 74 S.Ct. 863, 98 L.Ed. 1135; Chapman v. City of Shreveport, supra; Kaul v. City of Chehalis, 45 Wash.2d 616, 277 P.2d 352; Kraus v. City of Cleveland, supra, 163 Ohio St. at page 559, 127 N.E.2d 609; 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 page 870, 74 So.2d 142; Dowell v. City of Tulsa, supra, 273 P.2d at page 863; and see State v. Muller, supra, 48 Or. at page 258, 85 P. 855.

Upon the general subject of the liberties protected by the Constitution it should be first observed 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. Com. of Massachusetts, supra:

'* * * But the liberty secured by the Constitution of the United States to every person within its jurisdiction 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. McQuire, 219 U.S. 549, 565, 31 S.Ct. 259, 55 L.Ed. 328; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57...