McGurren v. City of Fargo

• Decision Date: 30 September 1954
• Docket Number: No. 7368,7368
• Citation: 66 N.W.2d 207
• Parties: J. J. McGURREN, both individually and on behalf of all others similarly situated, Plaintiff and Appellant, v. The CITY OF FARGO, a municipal corporation, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 207

66 N.W.2d 207

J. J. McGURREN, both individually and on behalf of all others similarly situated, Plaintiff and Appellant, v. The CITY OF FARGO, a municipal corporation, Defendant and Respondent.

No. 7368.

Supreme Court of North Dakota.

Sept. 30, 1954.

Syllabus by the Court.

1. The truth of all issuable, relevant, and material facts well pleaded in the complaint are admitted by a general demurrer.

2. In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed and the pleading given advantage of every intendment.

3. A complaint, when attacked by a demurrer on the grounds that it fails to state facts sufficient to constitute a cause of action, is sufficient when it contains allegations of fact which reasonably and fairly apprise the defendant of the nature of a justicable claim against him.

4. The complaint in the instant action is examined and it is held for reasons stated in this opinion that the allegations thereof are sufficient to constitute a cause of action against the defendant for an injunction.

J. F. X. Conmy, Fargo, for appellant.

Conmy & Conmy, Fargo, for respondent.

GRIMSON, Judge.

The plaintiff brings this action, both individually and on behalf of all others similarly situated, against the City of Fargo, a municipal corporation, for an injunction to prevent the addition of fluoride compounds to the municipal water supply. In his amended complaint alleges that he is a resident, freeholder and taxpayer in the City of Fargo, a municipal corporation; that the defendant, City of Fargo, acting in a proprietary capacity, and for compensation, furnishes water to the residents of the city; that on the 8th day of April 1952, the defendant, acting through the city commission, passed a resolution directing the city manager to take necessary steps in the water department to provide for the addition of sodium-silico-fluoride compounds to the water supply of the City of Fargo, for the avowed purpose of preventing dental caries in young children; that prior thereto the defendant had procured and installed the mechanical equipment for injecting fluoride compounds into the municipal water supply and plaintiff alleges on information and belief that that was now being done from day to day.

Plaintiff further alleges that there is an implied contract between the defendant and the customers of said water department that the water furnished shall be 'as reasonably pure and wholesome as possible;' that in reliance thereon plaintiff purchased property in the City of Fargo, procured water connections and is in all things conforming to the said implied contract on his part; that said fluoride is a toxic or poisonous substance and does not help in making the water pure or wholesome but on the contrary makes said water adulterated and dangerous to plaintiff's health causing him irreparable injury; that the amount of the charge by the city for water is necessarily increased by the expense involved in the operation and supervision of the machinery for the injection of the fluoride which expense was not in contemplation of the parties; that all this is in violation of the contractual rights of the plaintiff; that he receives no benefit therefrom as he is an adult; that in order to procure pure and wholesome water not adulterated with fluoride plaintiff would have to buy such water from other sources which would cause him, 'continual inconvenience, vexation, harassment, and expense,' on account of this breach by defendant of his contract to furnish pure water; that the defendant has no right 'either in governmental or a proprietary capacity to sell or dispense to the plaintiff and others similarly situated any medication or alleged thereapeutic agent;' that this medication is contrary to the state Food and Drug law, Sec. 19-0201, NDRC 1943, in that mixing fluorides with water, alleged to be food, injuriously affects its quality and renders it injurious to health, and contrary to the state Pharmacy Law, Chap. 43-15, NDRC 1943, in that it dispenses a medical compound by others than a pharmacist or physician. Then he finally alleges that this is mass medication, unreasonable and arbitrary, exceeds the police power, does not conform to due process, violates plaintiff's inherent right to care for his own body and health and invades his right of freedom of religion, all contrary to the First and Fourteenth Amendments to the Constitution of the United States and to Article I, Sections 1, 4, 11 and 16 of the Constitution of North Dakota.

It is repeatedly alleged that these results of the fluoridation cause plaintiff and all those similarly situated irreparable injury and 'that pecuniary compensation will not afford adequate relief and that restraint is necessary to prevent multiplicity of judicial proceedings' and prays that for those reasons he be granted an injunction to prevent fluoridation of the municipal water supply.

To this complaint the defendant demurred on the grounds, (1) that it did not state a cause of action; (2) that plaintiff has not legal capacity to sue; (3) that the court has no jurisdiction of the subject of the action; (4) that several causes of action have been improperly united. The district court sustained the demurrer. Plaintiff appeals from the order of the district court.

Since the case now is before us on the demurrer we must look to the complaint to see if the plaintiff has stated facts sufficient to entitle him to bring this action for an injunction.

For the purpose of testing the sufficiency of the complaint it is held that the demurrer admits the truth of all issuable, relevant, material facts well pleaded. Englund v. Townley, 43 N.D. 118, 122, 174 N.W. 755, 30 C.J.S., Equity, Sec. 283, p. 719. Sec. 28-0741, NDRC 1943, provides: 'In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.' In McCurdy v. Hughes, 61 N.D. 235, 237 N.W. 748, 754, it is held that 'this rule is applied where a complaint is attacked by a demurrer.' In Olsness v. State, 58 N.D. 20, 224 N.W. 913, 914, this court states: 'In considering the sufficiency of the allegations of the complaint we must, of course, give to the pleading the advantage of every intendment. See Northern Trust Co. v. First Nat. Bank, 25 N.D. 74, [at page] 79, 140 N.W. 705; Weber v. Lewis, 19 N.D. 473, 126 N.W. 105, 34 L.R.A.,N.S., 364.' Lamoure v. Lasell, 26 N.D. 638, 647, 145 N.W. 577; Milwaukee Trust Co. v. Van Valkenburgh, 132 Wis. 638, 112 N.W. 1083.

A demurrer however, does not admit inferences and conclusions unless they appear clearly drawn from the facts alleged.

'Legal conclusions or inferences of fact which are not presumed or which may not be reasonably or necessarily inferred from the facts alleged are not admitted by the demurrer.' Torgerson v. Minneapolis, St. P. & St. Marie R. R. Co., 49 N.D. 1096, 1102, 194 N.W. 741, 743; See also Tayloe v. City of Wahpeton, N.D., 62 N.W.2d 31, 38; Consolidated Freightways, Inc., v. Lamb, 73 N.D. 339, 15 N.W.2d 74; City of Fargo v. Sathre, 76 N.D. 341, 349, 350, 36 N.W.2d 39; McIntyre v. State Board of Higher Education, 71 N.D. 630, 3 N.W.2d 463; King v. Baker, 69 N.D. 581, 288 N.W. 565, 125 A.L.R. 730.

The complaint in the instant case is long, repetitious and rather indefinite. It is doubtful whether some of the conclusions can be inferred from the facts alleged. We must, however, construe it liberally and give it the advantage of every intendment to determine whether it states facts sufficient to fairly apprise the defendant of the nature of the claims made against it.

There are no allegations in the complaint to the effect that plaintiff's rights as a taxpayer are being violated. The City of Fargo operates the water supply system in a proprietary capacity. The mechanical equipment had been procured before the fluoridation was commenced. Charges are made against the consumers of the water for the cost and expense of operation. There is no allegation that public funds are being illegally expended. Under the complaint the fact that plaintiff is a taxpayer gives him no special rights in this action.

The plaintiff alleges 'That an actual, or in all events, an implied contract exists obligating the defendant in the conduct of the municipal water plant to furnish water that is as reasonably pure, wholesome as possible.' To support this conclusion he alleges that the defendant furnishes and sells water to the plaintiff and other residents of the City of Fargo in a proprietary capacity; that plaintiff has made the necessary service connections with the defendant's water main; that he is paying the charges made by defendant for the water and in all things conforming on his part to the alleged contract. These allegations seem to imply mutuality of obligations between the parties. It is alleged that the defendant is to furnish pure water and the plaintiff to pay therefor. That implies consideration on both sides.

It is true these allegations do not...