Kaul v. City of Chehalis , 45 Wash. 2d 616 ( 1954 )

Donworth, J.

(dissenting)—The issue in this case is whether the individual citizen is to be allowed to decide for himself what medicine he will or will not take, or whether the city council (or commissioners) and the state board of health are to decide this question for him and force the dosage down his throat by mixing it in the municipal water supply. For the reasons stated by Judge Hill in his dissenting opinion, I am convinced that the ordinance of the city of Chehalis deprives appellant of the liberty guaranteed him by the provisions of the Federal and state constitutions referred to therein.

It has been suggested that the proposed introduction of fluoride ion (such as sodium silico fluoride) into the municipal water supply in the proportion of one part per million is such a trivial matter that no one should be seriously concerned about it. On the contrary, it seems to me that the priniciple involved is of far-reaching consequence because, if the city council (or commissioners) may legally inject any such medicine into the water, they have the right to put into it any medicinal agent from patent medicines to antibiotics (so-called “wonder” drugs) which they may from time to time determine to be beneficial to the public health. The practical result is no different than if the municipal authorities forcibly compelled the water consumer to take a daily dosage of such medicine from a spoon because he must either consume it or cease to drink water from the municipal water system.

By so doing, the municipal authorities, instead of the individual citizen, arrogate to themselves the sole right to decide what medicine is good for the health of the water consumers, and thereby the municipal water system becomes a direct conduit for the transmission of medicine from the apothecary’s pestle to the mouth of the patient without the latter’s consent. Thus will the people be deprived of a very important part of their constitutional liberty under our republican form of government, and the police state will be substituted for the police power of the state.

I desire now to call attention to an additional reason which supports the conclusion reached by Judge Hill.

The city of Chehalis is operating a municipal utility in its proprietary capacity pursuant to statutory authority to maintain, conduct, and operate waterworks for the purpose of furnishing its inhabitants with an ample supply of water for all uses and purposes with full power to regulate and control the use, distribution and price thereof. Rem. Supp. 1947, § 9488 [c/. RCW 80.40.010]. Russell v. Grandview, 39 Wn. (2d) 551, 236 P. (2d) 1061, and cases cited.

It will be noted that the city has authority only to furnish its inhabitants with an ample supply of water. Fluoride is not water and has no effect upon either bacteria or plant life in the water (finding VI) and is intended solely for the prevention of tooth decay primarily in young children (finding VII). It is not used to make the water itself more healthful or to prevent its contamination by bacteria or other noxious matter. It is to be used solely for medicinal purposes, and, when mixed with water, the resulting mixture is a medicine.

The exercise of the city’s police power to protect the health of its inhabitants is a governmental function. Hutton v. Martin, 41 Wn. (2d) 780, 252 P. (2d) 581. But a city may not under the guise of exercising its police power arrogate to itself in its proprietary capacity the right to forcibly distribute medicine to its inhabitants through its municipal water system. Its statutory authority is to furnish water. It is in the same position as a private corporation operating a waterworks. Russell v. Grandview, supra. The fact that that municipal corporation is exercising two functions (one governmental and the other proprietary) does not change the situation nor increase its statutory authority to operate a waterworks so as to purvey medicine to its customers.

To illustrate, could a municipality operating a municipal transit system refuse to permit a person to become a passenger unless he produced a certificate that he has submitted to the topical application of fluorides? Could such a person be denied service by a municipal light and power system or by a municipal garbage collector except upon such conditions?

Assuming that a city under its police power may under proper circumstances compel the inhabitants to submit to certain treatment for the prevention of disease, such city has no authority in its proprietary capacity to perform any act not expressly or by necessary implication authorized by the statutes granting it the right to engage in a particular municipal business.

Here, the act of the city in furnishing its inhabitants with medicine instead of water (which is the only beverage which the legislature has empowered it to furnish) is ultra vires and the ordinance purporting to authorize such action is void. See Woodward v. Seattle, 140 Wash. 83, 248 Pac. 73, where this same municipal utilities statute was construed and the legislative grant of power to operate electric and “other railways” was held not to include the operation of motor busses by the city.

The majority opinion states that the ordinance is not in conflict “with general laws” under Art. XI, § 11, of the state constitution delegating to municipalities a portion of the state’s police power concerning matters of health. This view may be correct, but that fact does not make up for the lack of authority in the city in its proprietary capacity to furnish medicine instead of water only.

It is further stated in the majority opinion that no constitutional right of the inhabitants is invaded because the ordinance does not compel them to do anything and that no penalty is attached for refraining to drink the water with the medicine in it. No suggestion is made as to which beverage the inhabitants should drink in lieu of this concoction. Here the city’s water system is the sole source of drinking water which is necessary to sustain life. The penalty for not drinking the medicine is to compel the unwilling customer of the municipal water system to buy some bottled beverage or move to another city where only water is pumped through the water mains. Either alternative is as serious a penalty as a fine or imprisonment imposed by a police court.

The inhabitants of Chehalis have bought and paid for a municipal water system for the purpose of obtaining the ample supply of water which the legislature authorized, and those who do not wish to have medicine purveyed to them in their water are entitled to receive exactly what the legislature intended them to have, to wit, water.

For the additional reason that ordinance No. 653-A of the city of Chehalis is ultra vires and void because of the city’s lack of authority to sell medicine in the manner proposed, as well as for the reasons stated in Judge Hill’s opinion, I am of the opinion that the judgment should be reversed and the proposed fluoridation enjoined.

Hill, J., concurs with Donworth, J.