Dowell v. City of Tulsa

• Decision Date: 15 June 1954
• Docket Number: No. 36068,36068
• Parties: , 1954 OK 194 DOWELL et al. v. CITY OF TULSA et al.
• Court: Oklahoma Supreme Court

Page 859

273 P.2d 859

43 A.L.R.2d 445, 1954 OK 194

DOWELL et al. v. CITY OF TULSA et al.

No. 36068.

Supreme Court of Oklahoma.

June 15, 1954.

Rehearing Denied July 13, 1954.

Syllabus by the Court.

1. An examination of the statutes enacted by the Oklahoma Legislature providing various regulations and standards to promote and protect public health renders it manifest that said body's policy of exercising such power of regulation is not restricted to measures for the prevention and control of contagious, infectious, or dangerous diseases.

2. To the extent that such power is delegated to it under this State's constitution and statutes, a municipality may by proper ordinance provide for the fluoridation of its water supply without contravening the First and the Fourteenth Amendments of the U. S. Constitution.

3. Record examined and Held: The City of Tulsa's Ordinance No. 6565 is a valid exercise of police power to promote the public health as against the contention that there was no sufficient proof of its public necessity; Further, Held: Said ordinance does not violate Title 59 O.S.1951 §§ 273, 333, 495b and 497, or Title 63 O.S.1951 § 196.

James B. Coppedge, Tulsa, E. O. Patterson, Tulsa, of counsel, for plaintiffs in error.

Harry M. Crowe, Jr., City Atty., A. M. Widdows, Tulsa, for defendants in error.

BLACKBIRD, Justice.

Plaintiffs in error commenced the present action, as plaintiffs, to enjoin defendants in error, as defendants, from enforcing and/or complying with Ordinance No. 6565, passed by the Board of Commissioners of the City of Tulsa, on March 3, 1953, authorizing fluoridation of said city's water supply by its Water Department and Commissioner of Waterworks and Sewerage. The purpose of such fluoridation, as indicated in the ordinance, was 'to aid in the control of dental caries' (tooth decay), and by reason of the emergency therein declared to exist for 'preservation of the public peace, health and safety', it was provided by Section 4 thereof that the ordinance would become effective upon its passage, approval and publication.

The parties appear here in the same order as they appeared in the trial court, and they will be referred to by their trial designations.

Plaintiffs are individual taxpayers of the city. Their effort to enjoin the enforcement of the Ordinance was based upon the alleged ground that it is invalid. The only alleged reasons for such invalidity which they apparently urged are that (1) the ordinance constitutes an 'unwarranted exercise of police power' in violation of the Fourteenth Amendment of the U. S. Constitution; (2) that it is an exercise of power beyond that delegated to the city by the State Legislature; (3) it violates the U. S. Constitution's First Amendment concerning freedom of religion; and (4) it violates Title 63 O.S.1951 § 196 forbidding the manufacture and sale of 'food' to which 'fluorine compounds' have been added as the term 'food' is defined in Section 183 to include 'articles of food, meat, drink * * * beverage * * *.'

After a trial at which plaintiffs introduced no evidence, but entered into a stipulation with defendants as to certain facts, the court made specific findings against plaintiffs on all of the issues above described and entered judgment denying them the injunction. From said judgment they have lodged this appeal.

With apparent reference to (1) and (3) above, plaintiffs contend under the first two propositions formulated in their briefs that our State Legislature has never established a policy of attempting to regulate or control any disease except those that are 'contagious, infectious or dangerous;' and that it could not constitutionally do so. In denying the first part of this contention, defendants point to various statutes enacted by the Oklahoma Legislature, particularly sections appearing under Title 63 O.S.1951, which they say plainly show that its policy in matters of public health and welfare has never been confined to seeking control, regulation and prevention of contagious, infectious, or dangerous diseases. Among these are provisions for safeguards pertaining to bedding and the germicidal treatment of secondhand materials, Section 51 et seq.; provisions requiring the injection of 'nitrate of silver or other proven antiseptic' into the eyes of newborn infants, for their protection against 'Inflammation of the eyes * * *' (ophthalma neonatorum), Sections 71-77, incl.; those pertaining to the regulation of milk production and marketing, Section 295 et seq.; and of hotels, etc., Section 331 et seq.; to the regulation of bakeries and other foodstuff factories, Section 151; to the regulation of bottling works, Section 27 et seq.; to the Section, 296.2, specifying the vitamin and mineral requirement for flour; and to the statutes creating the State Board of Health, Tit. 63 O.S.1951 § 1.1, and creating in the State Health Department a division to be known as the "Division of Preventive Dentistry." Tit. 63 O.S.1951 § 41. In fact, it was apparently in conformity with the provisions of the latter section that said State Department made its study of the fluoridation of public water supplies for controlling dental caries and promulgated certain rules and recommendations, or a policy to govern it in assisting municipalities considering such projects. A written statement of these was introduced in evidence as Defendants' Exhibit 3, and the parties' stipulation of facts as well as Ordinance No. 6565 shows that these recommendations were considered and were to be followed in the fluoridation of the water supply contemplated in the ordinance in accord with certain rules, standards and prerequisites (unnecessary here to set forth) prescribed by the State Board.

In view of the broad terms in which our Legislature has spoken on the subject we cannot believe that it has intended to restrict its enactment of measures designed to promote the public health and welfare to those designed to prevent the spread of infections, contagious or dangerous diseases. We think the mere reading of the statutes herein cited and others enacted by our Legislature is sufficient to show that it has not so restricted its policy, and that it has chosen to make many minimum requirements with reference to food, lodging and a myriad of subjects connected with the public health and/or welfare that have no direct connection with or relation to infectious, contagious or dangerous diseases.

The next question then is: Recognizing that such a thing is not against public policy as declared by our Legislature, can the police power delegated to a city by the Legislature be exercised to the extent of what in practical analysis amounts to a compulsory measure requiring people of the city to use or pay for water that is fluoridated in order to control a physical characteristic or weakness which is not an infectious, contagious or dangerous disease? Plaintiffs say that it cannot--that under the guarantees of freedom contained in the 1st and 14th Amendments to the U. S. Constitution the citizens of Tulsa have a right to be furnished city water not 'medicated' or treated with fluorides. We do not agree.

The tests by which such matters are to be governed in two of the cases quoting or expressing them in verbage most favorable to plaintiffs are Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 501, 38 L.Ed. 385, and Bowes v. City of Aberdeen, 58 Wash 535, 542, 109 P. 369, 372, 30 L.R.A.,N.S., 709. In the first of these it is said:

'To justify the state in thus interposing its authority in behalf of the public, it must appear--First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.'

In the Washington case, it was said:

"The questions which present themselves in the examination of a safety or health measure are: Does a danger exist? Is it of sufficient magnitude? Does it concern the public? Does the proposed measure tend to remove it? Is the restraint or requirement in proportion to the danger? Is it possible to secure the object sought without impairing essential rights and principles? Does the choice of a particular measure show that some other interest than safety or health was the actual motive of the Legislature?"

In suggesting negative answers to the above-quoted questions when propounded about Ordinance 6565, it seems to be plaintiffs' position that (1) since it is not contended that Tulsa's water is not pure, or that unless treated with fluorides it will tend to spread contagious disease or that an epidemic of an infectious or dangerous disease is threatened or imminent unless said water is so treated, the exercise of the police power to the extent of interfering with Tulsa citizens' freedom to purchase and use its water without such treatment cannot be justified; that (2) since the only direct evidence on the matter went no further than showing that drinking fluoridated water reduces caries in the lower-age group of minor persons, such treatment could not be justified as a measure to improve the health or welfare of the public generally; (3) that the evidence tended to show that the same object could be attained by leaving to individuals the treatment of their own drinking water with fluorides on an individual and voluntary basis, as could be attained by requiring the wholesale treatment of the City's entire water supply and therefore that the latter is not 'reasonably necessary' to attain that end, thus belying the Ordinance's announced representation or misrepresentation that it is necessary to preservation of the public health and safety. We do not...