Paduano v. City of New York

• Decision Date: 15 February 1965
• Citation: 257 N.Y.S.2d 531,45 Misc.2d 718
• Parties: Dominick F. PADUANO, Kate F. Wheelan, Judith Weiner and Nicholas G. DeJoy, Plaintiffs, v. CITY OF NEW YORK, Robert F. Wagner, as Mayor of the City of New York, and Armand D'Angelo, as Commissioner of the Department of Water Supply, Gas and Electricity of the City of New York, Defendants.
• Court: New York Supreme Court

Page 531

257 N.Y.S.2d 531

45 Misc.2d 718

Dominick F. PADUANO, Kate F. Wheelan, Judith Weiner and Nicholas G. DeJoy, Plaintiffs, v. CITY OF NEW YORK, Robert F. Wagner, as Mayor of the City of New York, and Armand D'Angelo, as Commissioner of the Department of Water Supply, Gas and Electricity of the City of New York, Defendants.

Supreme Court, Special Term, New York County, Part I.

Feb. 15, 1965.

Kadel, Wilson & Potts, New York City, for plaintiffs.

Leo A. Larkin, Corp. Counsel of the City of New York, for defendants.

JOSEPH A. BRUST, Justice.

In this action wherein plaintiffs, as taxpayers, seek to enjoin pendente lite and permanently, the proposed program for the fluoridation of the municipal water supply of New York City, there are two applications before this Court, (1) plaintiffs' application for a temporary injunction, and (2) defendants' cross motion for an order dismissing the complaint.

Plaintiffs assert numerous causes which may be placed into two main categories. They assert that there were procedural defects in the manner in which the fluoridation program was adopted; specifically concerning the manner of appropriating monies for the implementation of the program and the alleged failure to comply with State law which requires, in plaintiffs' view, a local law before fluoridation can be adopted by the City. The second category concerns, primarily, constitutionally based objections to the program, and assertions that in the present posture of scientific knowledge in this area, fluoridation would be not only improper but unconstitutional.

The complaint sets forth three causes of action and in the second cause, which this Court will consider first, plaintiffs allege that the City may not lawfully expend funds for the proposed project because no local law has been passed authorizing such action.

The fluoridation program proposed for this City was formally authorized by a new section 141.08, of the New York City Health Code enacted by the New York City Board of Health on April 7, 1964, which provides as follows:

'Section 141.08 Fluoridation of public water supply

'The public water supply of the city of New York shall be fluoridated in the following manner:

'A fluoride compound shall be added which will provide in such water supply a concentration of approximately 1.0 part per million of the fluoride ion, provided, however, that the concentration of such ion shall not exceed 1.5 parts per million.'

This amendment was filed with the City Clerk of the City of New York on April 7, 1964 and took effect on that date in accordance with the provisions of Section 558 of the New York City Charter.

The authority of the Board of Health to act in this general area is derived from Sections 555-558 of the New York City Charter. Section 558, subdivision a, provides that the New York City Health Code 'shall have the force and effect of law.'

While the New York City Sanitary Code (the predecessor of the present City Health Code, which superseded the Sanitary Code as of October 1, 1959) was in effect, it was repeatedly declared that the Sanitary Code and amendments thereto, had the force of state law. Matter of Bakers Mut. Ins. Co. (Dept. of Health) 301 N.Y. 21, 27, 92 N.E.2d 49, 51 (1950). In Matter of Bakers Mut. Ins. Co. supra, in which the validity of an amendment to the New York City Sanitary Code was sustained, the Court of Appeals declared (p. 27, 92 N.E.2d p. 52):

'The intent of the Legislature in providing for such a statutory scheme seems to us to have been simply this: The Sanitary Code of the City of New York is to have within that city the force and effect of State law while elsewhere in the State the [State] Sanitary Code and Public Health Law of the State are to be supreme. Cf. People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7.'

In Metropolitan Ass'n of Private Day Schools Inc. v. Baumgartner, 41 Misc.2d 560, p. 564, 245 N.Y.S.2d 733, p. 738, the court affirmed the same proposition as to the New York City Health Code, stating:

'* * * the Health Code of the City of New York has the force and effect of state law within the city's boundaries. (Matter of Bakers Mutual Insurance Co. [Dept. of Health], 301 N.Y. 21, 92 N.E.2d 49.)'

Subdivision b of Section 558 authorizes the Board of Health to add to, alter, or amend any part of the health code and to publish additional provisions 'for the security of life and health in the city', and Section 556, subdivision a, empowers the Health Department to 'regulate all matters affecting health in the city'.

The power of the Board to enact provisions for the furtherance and protection of health has long been established as a constitutional exercise of power (Metropolitan Board of Health v. Heister, 37 N.Y. 661; People v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7; Matter of Conlon v. Marshall, 185 Misc. 638, 59 N.Y.S.2d 52 [Sup.Ct., Kings Co., 1945], affd. without opinion 271 App.Div. 972, 68 N.Y.S.2d 438 [Second Dept., 1947]; Quaker Oats Co. v. City of New York, 295 N.Y. 527, 538-539, 68 N.E.2d 593, 597, 598 [1946], affd. Hill Packing Co. v. City of New York, 331 U.S. 787, 67 S.Ct. 1314, 91 L.Ed. 1817).

Article 17, Section 3, of the State Constitution, effective January 1, 1939, provides:

'The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine.'

Concerning this provision, it is stated in the revised record of the 1938 Constitutional Convention, at page 2133, that it was to validate the police power as then 'practiced in the State of New York' and, when applied to public health, such police power is not merely the power to restrain and regulate the use of property, but is rather 'a constructive program for the promotion of positive health'.

In addition, the New York City Charter Revision Commission Report, dated August 17, 1936, indicates that the charter, effective January 1, 1938, is intended to confer 'extraordinary' and 'plenary' powers of legislators for the protection of health upon the Board of Health, and the Report further states at page 38:

'The Board of Health exercises extraordinary police powers affecting the health of the City. By its power to adopt a Sanitary Code the Board has plenary powers of legislation.'

In Matter of Stracquadanio v. Department of Health, 285 N.Y. 93, 97, 32 N.E.2d 806, 808 the Court stated:

'Clearly section 558 of the New York City Charter endows the Board of Health with a broad discretion in the selection of measures by which public health may be protected within the field of its jurisdiction.'

And, further, in People v. Blanchard, 288 N.Y. 145, 147, 42 N.E.2d 7, 8:

'* * * [T]he main business of safeguarding the public health has always of necessity been done by local boards or officers through sanitary by-laws or ordinances which have been accorded the force of law. Metropolitan Board of Health v. Heister, 37 N.Y. 661, 670; Polinsky v. People, 73 N.Y. 65.'

Regardless of its validity, the fluoridation program is obviously directed towards the 'security of the life and health' of the citizens of New York City, and is an attempt to cope with the serious and growing public health problem of tooth decay and dental neglect, particularly among children. To hold otherwise would require a finding that fluoridation, regardless of its merits, is a measure which has no direct bearing on a public health problem. Adopting plaintiffs' substantive arguments at face value arguendo, the most that could be said is that there is a strong difference of opinion as to the value of fluoridation and that it may not be the best means of attacking the problem of tooth decay and dental neglect. However the problem still remains fundamentally one of health and is therefore within the jurisdiction of the New York City Department of Health.

This Court finds that the aforementioned new Section 141.08 of the New York City Health Code offends no public policy of this State, contravenes no prevailing State statute or municipal ordinance and is not in excess of the Health Department's power (see Grossman v. Baumgartner, 40 Misc.2d 221, 242 N.Y.S.2d 910, revd. 22 A.D.2d 100, 254 N.Y.S.2d 335). Accordingly, the second cause of action is legally insufficient and must fall.

The first cause of action is based on an attack upon the procedures used, and to be used to appropriate monies for the implementation of the fluoridation program. After public hearings duly held by the Board of Estimate of The City of New York and the Finance Committee of the Council of the City of New York, a proposal was adopted by the Council modifying the expense budget for 1963-1964 and authorizing the expenditures of funds from the expense budget for the acquisition and installation of the necessary equipment and facilities.

Plaintiffs assert that this was illegal, claiming that the proper method of appropriating funds for this program should have been by an amendment to the City's capital budget, and that the City is without power to use expense budget monies for this particular purpose unless the capital budget is amended.

It appears that the fluoridation equipment will be installed in existing City structures and that about 90 per cent of the appropriated sum, exclusive of engineering costs, will be expended for acquisition and installation of equipment. A project need not be handled through the capital budget and capital budget appropriation if it is intended that the costs of the project be met wholly out of the expense budget appropriation and not by any City borrowing. The entire history of the capital budget provisions of the City Charter, as they were amended from time to time, establishes beyond doubt, that the capital budget, as an appropriation document, is concerned solely with capital improvements provided by the device of...