City of Canton v. Whitman

• Decision Date: 19 November 1975
• Parties: , 73 O.O.2d 285 CITY OF CANTON, Appellee, v. WHITMAN, Dir. of Environmental Protection, Appellant. No 75-282.
• Court: Ohio Supreme Court

Page 62

44 Ohio St.2d 62

337 N.E.2d 766, 73 O.O.2d 285

CITY OF CANTON, Appellee, v. WHITMAN, Dir. of Environmental Protection, Appellant.

No 75-282.

Supreme Court of Ohio.

Nov. 19, 1975.

Syllabus by the Court

1. Prevention and control of dental caries, a common disease of mankind, is a proper subject, in relation to public health, for legislation enacted pursuant to the police power vested in the state, as well as in municipalities, by the general laws and the Constitution of the state of Ohio. (Kraus v. Cleveland, 163 Ohio St. 559, approved and expanded.)

2. Police and similar regulations adopted under the power of local self-government established by the Constitution of Ohio 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 of a municipality adopted in the exercise of its powers of local self-government. (State, ex rel. Klapp, v. Dayton P. & L. Co., 10 Ohio St.2d 14, paragraph one of the syllabus approved and followed.)

3. Legislation enacted by the state pursuant to the police power, in relation to the public health, is valid as applied to the municipal operation of a public utility under Section 4 of Article XVIII of the Ohio Constitution, where such legislation does not interfere with the ownership or operation of the utility.

4. The General Assembly has discretion to enact legislation subject to local option elections by those directly affected, and a local option provision does not violate the requirement of Section 26, Article II of the Ohio Constitution, that all laws of a general nature shall have a uniform operation throughout the state.

The city of Canton owns and operates a public waterworks and water supply system. The city does not add fluorides to the water supply and the level of natural fluorides in the water is less than eighttenths milligrams of fluoride per liter, the level of fluoridation required by R.C. 6111.13. On July 1, 1974, the then Ohio Director of Environmental Protection issued and order directing the city to begin fluoridating its water within 30 days.

The city appealed to the Environmental Board of Review, which upheld the order. An appeal was taken to the Court of Appeals, which reversed the orders of the Board and the Director, holding that R.C. 6111.13 was not reasonably related to the police power of the state.

The cause is now before this court pursuant to an allowance of a motion to certify the record.

Harry E. Klide, City Solicitor, and William J. Hamann, Canton, For appellee.

William J. Brown, Atty. Gen., and Christopher R. Schraff, Columbus, for appellant.

STERN, Justice.

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 The purpose of fluoridation is wellknown. Fluorides help prevent and control the incidence of dental caries. Fluoridation has become a familiar public health measure in 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 (Okl.1954), 273 P.2d 859; Paduano v. New York (1966), 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339; Annotation, 43 A.L.R.2d 453.

In Kraus, supra, we held that a municipality could fluoridate its municipallyowned 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., dissenting); 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 adulteration 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, 163 Ohio St. at page 562, 127 N.E.2d at page 611:

',* * * 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 veneral 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 XVIII. 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 General Assembly may not impose restrictions upon the power to operate a public utility granted to a municipality under Article XVIII of the Ohio Constitution. State, ex rel. McCann, v Defiance (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. It may, however, enact legislation under its general police power to protect the public health and safety. State, ex rel. McCann v. Definance, supra; Akron v. Pub. Util. Comm. (1948), 149 Ohio St. 347, 78 N.E.2d 890; Bucyrus v. Dept. of Health (1929), 120 Ohio St. 426, 166 N.E. 370.

The ownership and operation of a municipal...