Board of Health of North Adams v. Mayor of North Adams

• Decision Date: 05 September 1975
• Citation: 334 N.E.2d 34,368 Mass. 554
• Parties: BOARD OF HEALTH OF NORTH ADAMS v. MAYOR OF NORTH ADAMS et al. (and a companion case between the same parties).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 34

334 N.E.2d 34

368 Mass. 554

BOARD OF HEALTH OF NORTH ADAMS

v.

MAYOR OF NORTH ADAMS et al. (and a companion case between

the same parties).

Supreme Judicial Court of Massachusetts, Berkshire.

Argued May 6, 1975.

Decided Sept. 5, 1975.

James A. Bowes, North Adams, for defendants.

Bernard Lenhoff, North Adams (John Lenhoff, Watertown, with him), for plaintiff.

Herbert H. Hershfang, Boston, amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

The board of health of North Adams (board) sought by the present action to require the mayor and city council of North Adams to make available funds to study, and later to accomplish, the fluoridation of the city's water supply in accordance with the board's order issued on the recommendation of the State Department of Public Health. On a bill for declaratory relief, the case was submitted to the Superior Court as a case stated, and the board prevailed. At the same time the Superior Court dismissed the board's companion bill in equity, on the same case stated, as being unnecessary. The defendants appealed from the decree against them, and the board filed a pro forma appeal from the dismissal. The matters were consolidated and we allowed direct appellate review pursuant to G.L. c. 211A, § 10(A).

In their attack on the judgment, the defendants argue (1) that the board's order was defective because it did not comply with the requirements of G.L. c. 111, § 8C, the basic statute governing water fluoridation in this State; (2) that the wording of the question put in a referendum held under the statute, following issuance of the board's order, was misleading and thereby deprived voters of due process; and (3) that in any event the board of health cannot compel the city council to appropriate funds.

We first summarize the background and purport of G.L. c. 111, § 8C.

Until 1958, there was no general State statute governing fluoridation. The usual language of the acts passed by the General Court to enable cities and towns to provide for the supply of water to their inhabitants gave the localities sufficient authority to fluoridate if the State Department of Public Health approved. See Rep.A.G., Pub.Doc. No. 12, 1953, pp. 33--34.

In 1958, a restriction was imposed. By St.1958, c. 254, codified at G.L. c. 40, § 41B, no locality could fluoridate unless 'the will of the voters . . . is first ascertained.' That will could be ascertained by action of the local board of water commissioners placing on the ballor the question, 'Shall the public water supply for domestic use in (this city) (this town) . . . be fluoridated?' The public vote, however, was purely advisory. See Scott v. Election Commrs. of Newton, 346 Mass. 388, 391, 193 N.E.2d 262 (1963).

By St.1962, c. 485, § 1, amending G.L. c. 40, § 41B, the advisory public vote above mentioned could only be taken if a petition requesting the vote was signed by five per cent of the voters of the locality. (The same legislation added § 41C, permitting a similar advisory ascertainment of the public will as to the discontinuance of fluoridation on petition by five per cent of the voters.) The requirement of the petition appears to have had the effect of reducing sharply the rate of adoptions of fluoridation by localities. ¹

Resolves 1966, c. 66, reflected dissatisfaction with the condition of dental health in the Commonwealth and established a special study commission. The report of the commission (1968 House Doc. No. 3902) ² strongly supported fluoridation of water as a means of reducing the incidence of tooth decay. The report specifically recommended '(t)hat sections 41B and 41C of chapter 40 of the General Laws be repealed and that instead water fluoridation be instituted at the discretion and recommendation of the State Commissioner of Public Health with the concurrence of the local board of health.' Id. at 22. The draft bill submitted by the commission to carry out this proposal stated: 'If the commissioner determines that the fluoride content of the public water supply . . . in any city, town or district is not at optimum level for sound dental health, he shall so notify the local boards of health . . .. Each such board of health . . . shall, if it considers doing so in the best interests of the inhabitants . . . order the upward adjustment of the fluoride content . . ..'

This draft bill was the basis of the legislation enacted, St.1968, c. 548, codified at G.L. c. 111, § 8C. Two material additions to the draft appeared in § 8C. First, fluoridation was not to occur where two or more localities were supplied from the same source if independent treatment of the water supply of one locality was not possible and 'the majority of the boards of health representing such cities and towns have voted not to accept . . . (the State commissioner's) recommendation.' Second, a procedure was provided for countermanding the order of the board of health by means of a popular vote. An order did not become effective until publication in a local newspaper, and opponents of fluoridation had ninety days following the publication to collect the signatures of ten per cent of the registered voters on a petition requesting that there be placed on the ballot at the next regular city or town election the question, 'Shall the fluoridation of the public water supply for domestic use in (this city) (this town) be continued?' If a majority voted no, fluoridation was to be discontinued. (By the same legislation, G.L. c. 40, §§ 41B--41C, were repealed. ³)

It was under § 8C, as just described, that the present case arose. On January 2, 1969, the State deputy commissioner of public health, Ernest M. Cook, sent a letter to the North Adams board of health, informing the board that 'analysis of your public water supply . . . shows the fluoride content to be substantially below the optimum level for sound dental health.' The board made no immediate response but on July 15, 1971, it approved unanimously an order 'to augment the fluoride content of the city's water supply to the optimum of 1.0 parts/million recommended by the State Department of Health.' Seven days later, a notice was published in the North Adams Transcript stating that '(t)he Board of Health of North Adams, after making sufficient inquiry into the matter, considers an upward adjustment of the fluoride content of the water supplies . . . to be in the best interest of the inhabitants of the city. Accordingly, it is hereby ordered that an upward adjustment to the optimum level . . . be made . . ..' Opponents of fluoridation, following the procedure of § 8C, collected within the statutory period the signatures of ten per cent of the registered voters. The statutory question, 'Shall the fluoridation of the public water supply for domestic use in the City of North Adams be continued?', was therefore voted on at the November 2, 1971, city election. A majority voted yes. On February 17, 1972, the board asked the mayor to place $2,500 in its budget for a study by a consulting firm of the equipment and procedures needed to fluoridate the water. On March 28, 1972, the mayor complied in presenting a supplemental budget to the city council. The council, however, refused to appropriate the funds. After a second request and refusal by the city council, the board of health commenced the present actions.

1. (a) The defendants say that the notice published in the local newspaper was bad because it differed from the board's order: the order had mentioned the specific fluoride level to be reached, but the notice did not. We think the statutory statement that the 'order' be 'published' does not require word for word identity. The notice contains the essentials of the board's order and only an expert in fluoridation would be interested in or understand the significance of the precise flouride concentration to be attained. The purpose of the publication was achieved in giving a notice sufficient to stimulate the opposition to collet signatures and present a petition.

(b) The defendants note that North Adams by agreement with Williamstown and Clarksburg provides water to about 228 service connections in the former locality and about fifty-two in the latter (the total of 280 was a very minor fraction of the connections served in North Adams), yet neither the Williamstown nor Clarksburg board of health was notified of the action of the North Adams board or agreed to it. Passing over the fact that no objection to fluoridation from Williamstown or Clarksburg users or the respective boards of health appears in the record, we think the statutory expression 'if two or more cities or towns are supplied water from the same source' does not apply to the present case; it refers to a case where two localities share a common supply, not to a case where, by agreement, one locality undertakes to provide water from its own supply as an accommodation to a limited number of users in adjoining communities. Here the water supply was that of North Adams and the use by Williamstown and Clarksburg residents was incidental. ⁴

2. The defendants argue, next, that the form of the question put before the voters, as specified by § 8C, namely, 'Shall the fluoridation of the public water supply for domestic use in the City of North Adams be continued?', suggested that physical fluoridation had already begun at the time of the vote, which was not the case; therefore, say the defendants, the voters must have been so far misled as to be deprived of due process. We would agree that the Legislature's wording of the question as applied to the particular case was not as felicitous as it might have been, but we do not think the statute prescribing the question can be struck down as unconstitutional. In response to the question, those in favor of fluoridation would vote yes, and those opposed, no. ⁵ The question quite properly assumes that when, after the State department...