Petition for Writ of Certiorari — Dowell v. City of Tulsa

INDEX

PaGB

cs SWAN CAPES TEE RECORD UNSEEN SON ROO eNEeNeNs 1

Qu estions presented for review...........+++-.eeee 2

| Statement of the case...............seeeeeeceeeeeees 3

ons relied upon for allowance of the writ........ 5

Appendix A.—Opinion of Supreme Court of Oklahoma,

Ni TE NOG i ing aces ou cvceconw eee’ 11

Appendix B.—Oklahoma Statutes 1951, Sections per-

_ taining to conduct and operation of various kinds

SE ee MNOOD ooo sc hnc 0k 40 bb 440 cuss oan caeks Sasa 21

Appendix C.—Oklahoma Statutes 1951, Sections per-

taining to control and regulation of infectious and

eeiiniods Gineeens: 6. kas Fa Re ees 33

q TaBLe or Caszs.

DA seociated Industries of Oklahoma v. Industrial Wel-

2 fare Commission, 185 Okl. 177, 90 P. (2d) 899,904.. 7

| Atchley v. Board of Barber Examiners, et al., 257 P.

4 OO STEN Sa LE ar Rate 7

City of McAlester v. Grand Union Tea Company, 186

< ee Be Ren ror ee 7

| D. C. Weaver, et al., v. Palmer Bros. Co., 270 U. S. 402

3 EA, Wi, Rs Sccccddas cus dak Gad bewke i seawieunes 8

_ Ex parte Fowler, 85 Okl. Cr. 64, 184 P. (2d) 814, 820. . 7

' Herrin v. Arnold, 183 Okl. 392, 82 P. (2d) 977........ 7

- Lawson v. Steele, 152 U.S. 133, 38 L. ed. 385.......... 8

Liggett Co. v. Baldridge, 278 U. S. 105, 73 L. ed. 204 8

ugler v. Kansas, 123 U. S. 623, 31 L. ed. 205-210..... 8

Panama Refinery Co. v. Archie D. Ryan, et al., 293 U.

ey FO Mas WIS oo i eivive ii ckcs sees kes 8

Pierce v. Society of Sisters, etc., and Hill Military Acad-

emy, 268 U. S. 510, 69 L. ed. 1070 Tbe ae Bh Sa Es get 8

bert T. Meyer v. State of Nebraska, 262 U. S. 390,

Ae ME, Wa hss gh theo kbRinds sche eheatice 8

Straruts.

me. i, Vol. SB Bon. IM). 66S es 2

IN THE SUPREME COURT OF THE UNITED STATES.

October Term 1954.

No.

Martin L. Dowell, D. F. Gerstenberger, Mabel Gerstenberger,

C. R. Roberts, Bernice Roberts, H. M. Lundquist, J. W.

Klein, Mrs. J. W. Klein, Emil Lermy, Marguerite M. Miller,

Petitioners,

vs.

The City of Tulsa, a municipal corporation, C. M. Warren,

mayor, Glenver McConnell, J. L. Jones and W. W. Jenkins,

commissioners thereof, Respondents.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable The Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

Martin L. Dowell, D. F. Gerstenberger, Mabel Ger-

stenberger, C. R. Roberts, Bernice Roberts, H. M. Lund-

quist, J. W. Klein, Mrs. J. W. Klein, Emil Lermy and Mar-

guerite M. Miller, the petitioners herein, pray that a Writ

of Certiorari be issued to review final judgment of the Su-

preme Court of Oklahoma reported in 273 P. (2d) 859, en-

tered on June 15, 1954, and which became final on July 13,

_ 1954, upon which date an order was entered denying a time-

ly and duly considered petition for rehearing filed on June

30, 1954, a copy of the opinion of said court is hereto ap-

pended, marked Appendix A and made a part hereof.

"7

On October 11, 1954, the Honorable Tom C. Ciarx, As-

sociate Justice, signed an order extending the time for fil-

ing petition for writ of certiorari to and including October

25, 1954.

The ground on which jurisdiction of this Court is in-

voked is that petitioners were deprived of individual rights

and personal liberties granted them under the First and

Fourteenth Amendments to the Constitution of the United

States.

The jurisdiction of this Court to review the judgment

by writ of certiorari is conferred by 28 U. S. C. A, Sec.

1257(3).

Questions Presented for Review.

I. Did the court err in upholding the power of the

state to undertake the regulation and control of disease, re-

gardless of the nature of such disease and without regard

to whether it was contagious or infectious, or likely to en-

danger the health of the public unless regulated and con-

trolled only in the manner prescribed by a subordinate politi-

cal agency assuming to exercise exclusive jurisdiction, and

in sustaining the exercise of coercive measures to compel

acceptance of such treatment by all persons within the ju-

risdiction? Did such action, the effect of which was to deny

the right of any person to determine his course with respect

to the kind of treatment, if any, amount to an invasion of the

personal liberty guaranteed to every citizen by the Four-

teenth Amendment to the Constitution?

II. May a subordinate agency of the state, in the ab-

sence of a grant of express authority by the lawmaking

body of the state, under a claim of implied police power,

compel the individual citizens to take medical treatment for

— oe

the control of noncontagious maladies in the absence of a

public emergency endangering the health and safety of the

general public without violating the liberties guaranteed

such citizens under either the First or Fourteenth Amend-

ments to the Federal Constitution?

Ill. Is the enactment of statutes by the legislature

compelling individuals engaged in various lines of business,

such as, dairies, restaurants, bakeries, hotels, bottling works,

flour and other food stuff factories, to take necessary steps

to insure sanitary operations thereof, a sufficient declara-

tion of policy to authorize a subordinate agency of the state

to undertake the regulation and control of disease not of a

dangerous, infectious, or contagious nature? A copy of

such statutes is hereto appended, marked Appendix B and

made a part hereof.

IV. If question number three be construed to be such

a declaration of policy, is it not an unlawful delegation of

legislative power?

Statement of the Case.

The City of Tulsa enacted an ordinance authorizing

the Commissioner of Waterworks and Sewerage and the

Water Department to institute fluoridation of the water

supply of the City of Tulsa. Petitioners, individual tax-

payers, instituted an action in the District Court of Tulsa

County, Oklahoma, to enjoin the City of Tulsa and its of-

ficers and agents from introducing fluorine into the common

source of water supply which is owned, operated and con-

trolled by said city. In their said petition petitioners raised

the federal question by pleading the First and Fourteenth

Amendments to the United States Constitution. The cause

was submitted to the trial court largely upon an agreed set

of facts wherein it was stipulated that the ordinance in

—4a-

question was passed by the City of Tulsa after public hear-

ings and after being recommended by the Oklahoma State

Board of Health, Tulsa County Dental Society, Tulsa Coun-

ty Medical Society, The Board of Health of the City of

Tulsa and the Utility Board of the City of Tulsa; that the

application of fluorides would be subject to the control and

supervision by the Oklahoma State Department of Health.

That the purpose of fluoridation was to reduce dental caries

in children under twelve years of age; that tests show a sub-

stantial reduction of decay on the teeth of such children

after fluoridation has been conducted for several years;

that the effect of fluoridation on persons over twelve had

not been determined; that the amount of water consumed

by the inhabitants of Tulsa for drinking and cooking pur-

poses was a very small part of the total consumed; that

there was no other water company supplying water to the

citizens of Tulsa, but bottled water not containing fluorides

was available for purchase, that fluorides might be pur-

chased elsewhere by persons desiring to use them to pre-

vent tooth decay; that fluorides were present in the natural

water supply of some cities.

Dr. Paul Haney, Superintendent of Health of the City

and County of Tulsa, testified that purchasing fluorides

elsewhere was not practical as children would not be get-

ting fluorides while they were at school, did not consider it

mass medication but considered it mass feeding.

Upon hearing the matter, the trial court found that the

ordinance did not violate and impair the personal rights

and liberties guaranteed petitioners under either the First

or Fourteenth Amendment to the Constitution of the Unit-

ed States, and that the City of Tulsa had the power to en-

act the ‘ordinance in question as the same was necessary

for the public health of the inhabitants of the City of Tulsa

and entered judgment for the respondents denying petition-

ers’ prayer for an injunction. Upon appeal to the Supreme

Court of Oklahoma, the judgment of the trial court was

affirmed.

Reasons Relied Upon for Allowance of the Writ.

The decision of the Oklahoma Supreme Court involves

a federal question of substance not theretofore determined

by this Court in that this Court has never recognized the

right of a state to regulate or control diseases or maladies

not of an infectious, contagious or dangerous nature. This

Court has held that a state may control and regulate con-

tagious, infectious or dangerous diseases for the reason

that the welfare of the general public is involved and that

individual rights and liberties in such instances must yield

to the welfare of the general public. But in all such cases

the choice of treatment for such diseases as well as the

choice of whether to take any treatment at all, is left to the

individual citizen as a matter of personal right.

That the clear import of the language of the statutes

cited by the Oklahoma Supreme Court in its opinion as de-

claring a legislative policy to deal with noncontagious dis-

ease, appended hereto as Appendix B, indicates nothing

more than a purpose on the part of the state to compe] in-

dividuals engaged in the various lines of business to which

the statutes relate, to take necessary steps to insure sani-

tary operation thereof, or to prevent the imposition of

fraud in the conduct of such operations and that none of

said statutes even remotely suggest a purpose to require

the state to take any steps in its own behalf to bring about

the desired end.

Petitioners contend that the only legislative policy with

respect to the regulation and control of diseases is to be

found in other statutes declaring it, and that the same is

thereby restricted in its scope to the regulation and con-

trol of contagious and infectious diseases, and those which

from their nature would be dangerous to the public health

unless controlled. Said statutes are appended hereto as

Appendix C.

Municipalities have initiated and are placing in opera-

tion plans for the control or cure of noncontagious disease.

The movement is apparently gaining headway. Such plans

require the use of public facilities in their operation. The

action of respondents here, in initiating the project com-

plained of by petitioners, evidences the general plan of

operation. The questions presented here are certain to

arise wherever like activities are taken.

The objective is not, as in the case of epidemics, to pre-

vent the rapid spread of diseases by reason of their con-

tagious or infectious nature. The malady, if such it is, which

respondents would control, is admittedly not dangerous by

reason of any tendency to spread because contagious or in-

fectious. Any harmful effect is confined to the victim. No

claim is made that any public danger is present attribu-

table to spread of the disease through contact with those

suffering from it. It is self evident that if in the case of

noncontagious disease, like tooth decay, political agencies,

such as cities and towns, may employ their facilities to

deal with it, then under the same authority, they may un-

dertake like regulation, control or cure of any other dis-

ease, without regard to whether failure to regulate or to

control it would endanger the public health or safety.

Upon the record here, may respondents set up a non-

contagious disease as creating an emergency of such char-

acter as warrants them in undertaking the control of it by

—_-7—

prescribing an exclusive method of treatment thereof and

employing a public facility to compel the adoption of it, and

in justification invoke the doctrine of subordination of per-

sonal liberties, and justify the assertion of its authority

under a claim that a subordinate agency of the state is pos-

sessed of inherent or iiaplied police power, independent of

any grant of express authority by the lawmaking body of

the state?

The issue here is, may any citizen lawfully entitled to

receive water from the common source of supply, be limited

in his right by the imposition of the condition that he take

medical treatment of the kind prescribed, for the control

of a noncontagious malady and subordinate and surrender

the liberty to choose the kind of treatment, if any is desired,

or wholly reject it, if no treatment is desired?

No legal principles are more firmly settled than that

legislative powers may not be delegated to subordinate

agencies of the state and that subordinate agencies may not

lawfully establish legislative policy under a claim that they

possess inherent or implied police power. These principles

have heretofore been approved and followed by the Supreme

Court of Oklahoma and that court, in the decision here com-

plained of, in departing therefrom does not even by infer-

ence express a purpose to overrule the conflicting decisions.

—Herrin v. Arnold, 183 Okl. 392, 82 P. (2d) 977;

Associated Industries of Oklahoma v. Industrial Wel-

fare Commission, 185 Okl. 177, 90 P. (2d) 899, 904;

Atchley v. Board of Barber Examiners, et al., 257 P.

(2d) 302;

City of McAlester v. Grand Union Tea Company, 186

Okl. 487, 98 P. (2d) 924;

Ez parte Fowler, 85 Okl. Cr. 64, 184 P. (2d) 814, 820.

This Court has consistently followed the same principles.

—Panama Refinery Co. v. Archie D. Ryan, et al., 293 U.

S. 388, 79 L. ed. 446;

D. C. Weaver, et al., v. Palmer Bros. Co., 270 U. 8. 402,

70 L. ed. 654;

Lawson v. Steele, 152 U. S. 133, 38 L. ed. 385;

Liggett Co. v. Baldridge, 278 U. S. 105, 73 L. ed. 204;

Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205-210;

Pierce v. Society of Sisters, etc., and Hill Military

Academy, 268 U. 8S. 510, 69 L. ed. 1070;

Robert T. Meyer v. State of Nebraska, 262 U. S. 390, 67

L. ed. 1042.

Among other things the court in the last cited decision said:

‘That the state may do much, go very far, indeed,

in order to improve the quality of its citizens, physical-

ly, mentally, and morally, is clear; but the individual

has certain fundamenta] rights which must be respected.

The protection of the Constitution extends to all—to

those who speak other languages as well as to those

born with English on the tongue.. Perhaps it would be

highly advantageous if all had ready understanding of

our ordinary speech, but this cannot be coerced by meth-

ods which conflict with the Constitution—a desirable

end cannot be promoted by prohibited means.’’

In the event it should be decided that municipal corpo-

rations may undertake the general control of disease, the

source and limits of authority should be declared. It is ap-

parent the situation here presented holds within itself the

possibility of increasing complexity if the plans already

initiated for the control of one form of noncontagious dis-

ease are extended to other types of disease which may ap-

peal to political discretion as proper subjects of like con-

trol. Only by judicial declaration defining limits to contem-

plated action can this be avoided.

_— ASE BAS BANE HIRI R, eT MARTENS

Wherefore, petitioners respectfully submit that the

writ of certiorari should issue to the end that this Court

may review the decision of the Supreme Court of Oklahoma

and determine whether that Court has deprived petitioners

of rights guaranteed by either the First or Fourteenth

Amendments to the Federal Constitution.

Respectfully submitted,

E. O. Parrerson,

2704 East 13th Place,

Tulsa, Oklahoma,

James B. Coprepae,

815 Ritz Building,

Tulsa, Oklahoma,

Attorneys for Petitioners.

—11—

Appendix A.

Filed in the Supreme Court of Oklahoma, Jun, 15, 1954;

Andy Payne, Clerk.

In the Supreme Court of the State of Oklahoma.

No. 36068.

Martin L. Dowell, D. F. Gerstenberger, Mabel Gerstenberger,

C. R. Roberts, Bernice Roberts, H. M. Lundquist, J. W.

Klein, Mrs. J. W. Klein, Emil Lermy, Merguerite M.

Miller, plaintiffs in error, vs. The City of Tulsa, a mu-

nicipal corporation, C. M. Warren, mayor, Glenver Mc-

Connell, J. L. Jones and W. W. Jenkins, commissioners

thereof, defendants in error.

SyYLLaBus.

1. An examination of the statutes enacted by the Okla-

homa Legislature providing various regulations and stand-

ards to promote and protect public health renders it mani-

fest 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 Four-

teenth 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,

Secs. 273, 333, 495b and 497, or Title 63, O. S. 1951, Sec. 196.

Appeal from the District Court of Tulsa County; Hon. El-

mer Adams, Judge.

12

Action by certain taxpayers of the City of Tulsa, Oklahoma,

as plaintiffs against said City, its Mayor and the Mem-

bers of its Board of Commissioners as defendants to

enjoin enforcement of said City’s Ordinance No. 6565,

From a judgment for defendants denying said injunc-

tion, plaintiffs appeal.

Affirmed.

James B. Coppedge, E. O. Patterson, of Counsel, Tulsa,

for Plaintiffs in Error;

Harry M. Crowe, Jr., City Attorney, A. M. Widdows, Tulsa,

for Defendants in Error.

BLACKBIRD, J.:

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 fluorida-

tion, as indicated in the ordinance, was ‘‘to aid in the con-

trol 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 ap-

peared 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. 8. Constitution; (2) that it is an exer-

13

cise of power beyond that delegated to the City by the State

Legislature; (3) it violates the U. 8. Constitution’s First

Amendment concerning freedom of religion; and (4) it vio-

lates Title 63, O. S. 1951, Sec. 196, forbidding the manufac-

ture and sale of ‘‘food’’ to which ‘‘fluorine compounds’’

have been added as the term ‘‘food’’ is defined in Sec. 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 deny-

ing them the injunction. From said judgment they have

lodged this appeal.

With apparent reference to (1) and (3) above, plain-

tiffs contend under the first two propositions formulated

in their briefs that our State Legislature has never estab-

lished a policy of attempting to regulate or control any

disease except those that are ‘‘contagious, infectious or dan-

gerous’’; 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, par-

ticularly sections appearing under Title 63, 0. S. 1951, which

they say plainly show that its policy in matters of public

health and welfare has never been confined to seeking con-

trol, regulation and prevention of contagious, infectious, or

dangerous diseases. Among these are provisions for safe-

guards pertaining to bedding and the germicidal treatment

of secondhand materials (Sec. 51, et seg.); provisions re-

quiring the injection of ‘‘nitrate of silver or other proven

antiseptic’’ into the eyes of newborn infants, for their pro-

tection against ‘‘Inflammation of the eyes * * *’’ (ophthal-

ma neonatorum) (Secs. 71-77, incl.); those pertaining to

the regulation of milk production and marketing (Sec. 295,

et seq.) ; and of hotels, etc. (Sec. 331, et seq.) ; to the regula-

tion of bakeries and other foodstuff factories (Sec. 151) ;

to the regulation of bottling works (Sec. 27, et seq.) ; to the

Section (296.2) specifying the vitamin and mineral require-

ment for flour; and to the statutes creating the State Board

Appendiz

of Health (Tit. 63, O. S. 1951, Sec. 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,

Sec. 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 state-

ment of these was introduced in evidence as Defendants’ Ex-

hibit 3, and the parties’ stipulation of facts as well as Ordi-

nance 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 (unneces-

sary 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 was in-

tended to restrict its enactment of measures designated to

promote the public health and welfare to those designed to

prevent the spread of infectious, 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 refer-

ence 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 dan-

gerous diseases.

The next question then is: Recognizing that such a

thing is not against public policy as declared by our Legis-

lature, can the police power delegated to a city by the Legis-

lature be exercised to the extent of what in practical analy-

sis 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

—15—

Appendiz

say that it cannot—that under the guarantees of freedom

contained in the 1st and 14th Amendments to the U. S. Con-

stitution 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 verbiage

most favorable to plaintiffs are Lawson v. Steele, 152 U. 8.

133, 38 L. ed. 385, and Bowes v. Aberdeen, 58 Wash. 535

(542), 109 Pac. 369, 372. In the first of these it is said:

‘“‘To justify the state in 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 are not un-

duly 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 propor-

tion to the danger? Is it possible to secure the object

sought without impairing essential rights and prin-

ciples? 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 ques-

tions 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 fluo-

rides 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

Appendiz

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 justi-

fied 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 nec-

essary’’ to attain that end, thus belying the Ordinance’s an-

nounced representation or misrepresentation that it is nec-

essary to preservation of the public health and safety. We

do not find any of these arguments tenable for the reasons

hereinafter set forth. While most of the reported cases

that have arisen in the past involved the so-called ‘‘purity’’

or ‘‘purification’’ of municipal water supplies and the regu-

lations upheld with reference thereto were designed to pre-

vent contamination or pollution with consequent epidemics

or spread of disease (notice Annotations, 6 A. L. R. 228, and

8 A. L. R. 673; 23 A. L. BR. 228; 72 A. L. R. 673), we think

the weight of well-reasoned modern precedent sustains the

right of municipalities to adopt such reasonable and indis-

criminating measures to improve their water supplies as

are necessary to protect and improve the public health, even

though no epidemic is imminent and no contagious disease

or virus is directly involved. See Blue v. Beach, 155 Ind.

121, 56 N. E. 89, and the Annotations thereto, at 80 Am.

St. Rep. 212; 25 Am. Jur., ‘‘Health,’’ Secs. 21 and 25, in-

elusive; 56 Am. Jur., ‘‘Water Works,’’ Sec. 76. Where

such necessity is established, the Courts, especially in re-

cent years, have adopted a liberal view of the health meas-

ures promulgated and sought to be enforced. See McQuil-

lan, Municipal Corporations (3rd Ed.), Vol. 7, Sec. 24.224, As

said in 11 Am. Jur., ‘‘Constitutional Law,’’ Sec. 271, at

page 1023:

—17—

Appendiaz

‘‘The protection of the public health and safety is

the basis of much valid regulation over persons. This

broad field includes not only legislation relating to the

prevention and curtailment of disease through quar-

antine, when not in conflict with Federal regulations on

the subject, vaccination, and segregation in special hos-

pitals of persons suffering from contagious and infec-

tious illnesses, but also measures relating to eugenics

and the maintenance of a healthy, normal, and socially

sound populace.”’

As knowledge in both the medical and dental fields has in-

creased, the subject of health in both of these spheres has

become more important, and modern experience shows that

private convenience and individual freedom of action are

required to yield to the public good in instances where for-

merly there was observed no necessity for legislative inter-

ference. See Territory v. Hop Kee, 21 Haw. 206, Ann. Cas.

1915D, 1082, and other authorities cited in notes to 37 Am.

Jur., ‘‘Municipal Corporations,”’ Secs. 286 and 288. No

principle is better established in our system of jurispru-

dence than the one that ‘‘Liberty implies the absence of

arbitrary restraint, not immunity from reasonable regula-

tions * * * imposed in the interests of the community.’’

Chicago, B. é O. R. Co. v. McGuire, 219 U. S. 549, 565, 55

L. ed. 328, 21 S. Ct. 259, as quoted in West Coast Hotel Co.

vy. Parrish, 300 U. S. 379, 81 L. ed. 703, 57 S. Ct. 578, 108

A. L. R. 1330. Plaintiffs concede, as they must, that mu-

nicipalities may chlorinate their water supply (Common-

wealth v. Town of Hudson, 315 Mass. 335, 52 N. E. (2d) 566;

McQuillin, Municipal Corporations (3rd Ed.), Vol. 7, Sec.

24.265) and though they contend, under one proposition,

that a city’s treatment of its water supply with fluorides

is the unlicensed practice of medicine, dentistry and puar-

macy under our statutes, they here argue that such treat-

ment must be distinguished from treatment with chlorides,

because the latter will kill germs, purify water and accord-

ingly aid in the prevention and spread of disease, whereas

Appendiz

fluorides will not. We think that if the putting of chlorides

in public water supplies will in fact promote the public

health, the distinction sought to be drawn by plaititiffs is

immaterial. To us it seems ridiculous and of no consequence

in considering the public health phase of the case that the

substance to be added to the water may be classed as a

mineral rather than a drug, antiseptic or germ killer; just

as it is of little, if any, consequence whether fluoridation ac-

complishes its beneficial result to the public health by kill-

ing germs in the water, or by hardening the teeth or build-

ing up immunity in them to the bacteria that causes caries

or tooth decay. If the latter, there can be no distinction on

principle between it and compulsory vaccination or inocula-

tion, which, for many years, has been well-established as a

valid exercise of police power. See Blue v. Beach and other

authorities cited, supra, as well as the Annotations at 93

A. L. BR. 1434. See also De Aryan v. Butler (Ct. of App.

Cal. (260 P. (2d) 98)), in which some of the same arguments

made here were made and rejected concerning the fluorida-

tion of the water supply of the City of San Diego, Cali-

fornia. While the evidence in the present case did not pur-

port to establish fluoridation as a remedy or prevention for

any specific contagious disease, it did show, without con-

tradiction, that it will materially reduce the incidence of

caries in youth. The relation of dental hygiene to the health

of the body generally is now so well recognized as to war-

rant judicial notice. Accordingly, we hold that in estab-

lishing the fluoridation prescribed by Ordinance 6565, as

effective to reduce dental caries, the evidence also sufficient-

ly established it as a health measure to be a proper sub-

ject for exercise of the police power possessed by the City

of Tulsa.

We now come to plaintiffs’ argument that fluoridation

of Tulsa’s water supply cannot be justified as a public

health measure because the evidence went no further than

establishing it as an aid to the prevention of caries in per-

sons under sixteen years of age, and tended to show that

—-19—

Appendiz

consumption of such water is of no benefit to older persons.

The evidence did not reveal what proportion of Tulsa’s

population is under sixteen years of age, but under our

view this was not necessary. When it is borne in mind that

the children and youth of today are the adult citizens of

tomorrow, and that this one segment of the population un-

questionably benefited by the drinking of fluoridated water

now, will in a few years comprise all or a very large per-

centage of Tulsa’s population; and it is further realized

that reducing the incidence of dental caries in children will

also benefit their parents, the fallacy of plaintiffs’ argu-

ment is manifest.

We think the uncontradicted testimony of Dr. Paul

Haney, Superintendent of Health for the City and County

of Tulsa, who was the only witness used at the trial, is

sufficient answer to plaintiffs’ claim that on the basis of

the evidence, the same benefits to be obtained from fluorida-

tion of said City’s water supply could be obtained by leav-

ing individuals to fluoridate their own water on a voluntary

basis. Dr. Haney’s testimony shows not only that the treat-

ment of drinking water by individuals not directly under

the supervision of health authorities or as prescribed by a

private physician (whose services many families would be

financially unable to employ) may be dangerous, but also

that it is necessary that all or nearly all of the water con-

sumed by children in the age group involved be fluoridated

over a period of years in order for them to obtain the bene-

fits of such process. He explained that such total consump-

tion would not be likely to ovecur in children of school age,

if the fluoridation was left to be done individually or in

their homes, because they are at school or away from home

much of the time.

Plaintiffs do not elaborate on their contention that Or-

dinance 6565 is in violation of the ‘‘free exercise’’ of re-

ligion, which, in the First Amendment of the United States

Constitution, Congress is forbidden to prohibit, but we as-

sume this is based on the hypothesis that the fluoridation

prescribed in the Ordinance is a form of ‘‘medication’’ or

=

Appendis 5

‘tmedical treatment’? forbidden by the tenets of one or

more well-known churches or religious sects. This argu-

ment is closely allied to one phase of the plaintiffs’ ‘‘Prop-

osition 4’’ to the effect that fluoridation is treatment of a

disease and therefore that the Ordinance constitutes the

unlicensed practice of medicine as defined and forbidden in

Title 59, O. S. 1951, Sec. 495b, and 497. To what was said

concerning a similar argument in De Aryan v. Butler, supra,

which we hereby approve and adopt, we wish to add our

opinion that in the contemplated water fluoridation, the

City of Tulsa is no more practicing medicine or dentistry

or manufacturing, preparing, compounding or selling a

drug, than a mother-would be who furnishes her children a

well-balanced diet, including foods containing vitamin D and

calcium to harden bones and prevent rickets, or lean meat

and milk to prevent pellagra. No one would contend that

this is practicing medicine or administering drugs. This

conclusion also disposes of the contention that the Ordinance

constitutes a violation of Title 59, O. S. 1951, Secs. 273 and

333, wherein plaintiffs employ what a California Judge is

said to have termed an ‘‘over-refinement’’ in the applica-

tion of definitions to facts.

- With reference to plaintiffs’ contention that the pro-

posed fluoridation violates Title 63, O. S. 1951, Sec. 196,

forbidding, among other things, the manufacture and sale

of food to which ‘‘fluorine compounds’’ have been added,

defendants say that said Section, which was a part of the

Pure Food and Drug Act passed in 1910, was repealed by

implication in the Oklahoma Food Act passed in 1949 (Title

63, O. S. 1951, Secs. 180.1-180.19, incl.). No cases are cited

on either side of this argument and we think defendants’

contention goes too far. However, it must be noted that

despite the prohibition against the addition of certain named

acids and other substances included with ‘‘fluorine com-

pounds’’ in Sec. 196, supra, some of which must certainly

be deemed ‘‘poisonous or deleterious substances’’ (as de-

fined by Webster’s Dictionary), Sec. 180.13 referring to the

addition of such substances to foods, provides that when

it is necessary to use them, this can be done under reason-

able rules and regulations promulgated by the Board of

Health. It would thus appear that even though the latter

section might not accurately be said to entirely repeal the

former section by implication, it cannot be doubted that in

practical operation and effect it modified it to a certain ex-

tent ; and we so hold. It therefore follows that since the Board

of Health has promulgated rules and regulations prescrib-

ing the amount of, and manner in which, fluorides can be

added to a city water supply, and the ordinance in ques-

tion plainly provides that such rules and regulations be

complied with, we do not think the fluoridation involved

herein can correctly be considered a violation of Sec. 196,

supra, when construed in the light of, and as its application

is modified or limited by, Sec. 180.13, supra.

Since the filing of the original briefs in the present case,

an Ohio Court has reached similar conclusions on the same

questions involved herein and similar ones in the case of

Kraus v. City of Cleveland, (Ct. of Com. Pleas) 116 N. E.

(2d) 779.

As no ground for reversal has been found in any of

the arguments advanced by plaintiffs, the judgment of the

trial court is hereby affirmed.

Appendix B.

63 O. S. 1951:

8 27. Pollution or Obstruction of Water Supply—Pun-

ishment. Whoever wilfully and maliciously deposits excre-

ments, or foul or decaying matter, or in any manner cor-

rupts any spring or reservoir or other source of water used

for domestic purposes, or destroys or injures any pipe,

conductor of water, or other property pertaining to an aque-

duct, or aids or abets in such trespass, shall be punished by

a fine of not less than twenty-five dollars nor more than one

hundred dollars, or by imprisonment for not more than

thirty days in jail, or by both such fine and imprisonment.

R. L. 1910, Sec. 6810.

Appendiz

s 41. Division of Preventive Dentistry. Creation of

Division—Duties—Personnel. There is hereby created in

the State Health Department a division to be known as the

‘‘Division of Preventive Dentistry.’’ Through said division

the State Health Department shall administer a program of

dental care, consultation, research and health education de-

signed to improve the dental health of the people of the

State of Okl-h a. The State Health Department is hereby

authorized to employ such personnel, working under the

supervision of the State Commissioner of Health, as is

necessary to carry out the provisions of this Act. Laws

1947, p. 398, s 1.

s52. Labeling of Bedding Required. (a) All bedding

shall bear securely attached thereto and plainly visible, a

substantial white cloth tag upon which shall be indelibly

stamped or printed with black ink, in the English language,

a statement showing whether new materials or second-hand

materials have been used in filling such bedding, and type

or grade of cotton and all other materials used in filling

mattress to which attached when new materials are used,

what germicidal treatment, if any, has been applied to the

materials or to the bedding; the date of such germicidal

treatment, the number of the permit of the person manufac-

turing the bedding; and the number of the permit of the

person applying such germicidal treatment, if any.

(b) The terms used on the tag to describe materials

shall be restricted to those defined in the regulations of the

department, and no trade or substitute terms shall be used.

(c) It shall be unlawful to make any false or mislead-

ing statements on the tag required by this Section. It shall

be unlawful for any person to remove, deface, alter, or cause

to be removed, defaced or altered, any tag or statement

contained thereon for the purpose of defeating any of the

provisions of this Act. The placing of registration stamps

required in Section 7 of this Act over any lettering on the

tag, shall be construed to be defacement of the tag.

Ye

—23-- a

(d) The size of the tag to be affixed to new bedding

required by this Section shall not be less than six (6) square

inches, and the lettering thereon, covering the statement of

filling materials, shall be in plain type not less than one-

eighth (1/8) inch in height.

(e) Every article of bedding manufactured for resale

containing second-hand material, shall bear, securely sewn

thereto on all four sides of the tag, four (4) by eight (8)

inches in size, upon which shall be indelibly stamped or

printed in red ink, in the English language, in plain type

not less than one-half (1/2) inch in height, stating : ‘‘second-

hand material.’’ Laws 1945, p. 235, s 2.

s 53. Used Materials from Dwmp-Grounds and Hos-

pitals. No person shall manufacture, repair or renovate into

bedding or batting, using discarded materials obtained from

dump-grounds, junk yards, or hospitals within or without

the State of Oklahoma. Laws 1945, p. 236, s 3.

s 54. Germicidal Treatment of Materials. All second-

hand materials or portions thereof, for resale, shall be sub-

jected to a germicidal treatment that will render said sec-

ond-hand material safe for human use. Laws 1945, p. 236,

8s 4,

s 55. Enforcement of Act. The State Board of Health

is hereby charged with the enforcement of this Act, for the

protection of health and to prevent the spread of disease;

to make rules and regulations providing for examination

of bedding offered for sale; to embargo bedding suspected

of being improperly labeled; to regulate disposal of bedding

determined to be unsafe for human use, and to prescribe

means, methods, and practices to make effective such pro-

vision. Laws 1945, p. 236, s 5.

8 71. Ophthalmia Neonatorwm—Definition. That any

inflammation, swelling or unusual redness in either one or

both eyes of any infant, together with any unnatural dis-

charge from the eye or eyes of such infant, independent of

the nature of the infection, if any, occurring at any time

Appendiz

within four weeks after the birth of such infant, shall be

known as ‘‘Inflammation of the eyes of the new-born’’

(ophthalmia neonatorum). Laws 1921, ch. 4, p. 4, 8 1.

872. Physicians, etc—Duty to Report—Treatment, It

shall be the duty of any physician, surgeon, obstetrician,

midwife, manager or person in charge of a maternity home

or hospital or other public or private institution in the State

of Oklahoma, parent, relative and persons attendant on or

assisting in any way whatsoever any infant, or the mother

of any infant at childbirth or any time within twenty-four

hours after childbirth, knowing the conditions hereinabove

defined to exist, to report within six hours and confirm such

fact in writing within three days, to the local health officer

of the county, city, town, magisterial district or whatever

other political division there may be within which the infant

or the mother of any infant may reside.

In the event of there being no health officers in the

county, city, or town, in which the infant resides, midwives

and other persons as hereinabove defined, excepting phy-

sicians, surgeons and obstetricians, shall immediately re-

port such conditions to some qualified practitioner of med-

icine. On receipt of. such report the health officer, or the

physician notified, where no health officer exists, shall im-

mediately give to the parents or persons having charge of

such infant, a warning of the dangers to the eye or eyes, of

such infant, and shall for indigent cases provide the neces-

sary treatment at the expense of said county, city or town.

Laws 1921, ch. 4, p. 5, s 2.

8 73. Treatment—Duty to Administer Antiseptic. It

shall be unlawful for any physician or midwife, osteopaths

and chiropractics practicing midwifery to neglect, or other-

wise fail to instill immediately upon its birth, in both eyes

of the new-born child a one per cent solution of nitrate of

silver or other proven antiseptic, which shall be furnished

by the State Board of Health in individua] ampules con-

taining the proper solution and quantity for one treatment

in both eyes. Should a physician or the parents of said

child prefer to use a form of prophylaxis other than the

one prescribed by above, he may do so provided that he

states in writing his reasons for doing so to the local health

officer of the county, city, town, magisterial district or what-

ever political division there may be within which the infant

or the mother of any infant may reside, within three days

from the date of administering same. Should a physician

or the parents of said child deem it best for the interest of

his patient, not to use any prophylactic, he shall not be

required to do so provided that he states fully in writing,

to the local health officer of the county, city, town, magis-

terial district or whatever other political division there may

be within which the infant or the mother of any infant may

reside, within three days from the birth of said child, his

reasons for not doing so. Laws 1921, ch. 4, p. 5, 8 3.

s 74. Report of Use of Nitrate of Silver. Every phy-

sician or midwife shall, in making a report of a birth, state

whether or not the above solution was instilled into the eyes

of said infant. Laws 1921, ch. 4, p. 5, s 4.

s 75. Health Officer—Duties. It shall be the duty of

the local health officer :

1. To investigate, or have investigated, each case of

reported ophthalmia neonatorum as shall have been filed

with him in pursuance of the law, and such other cases as

may be brought to his attention.

2. To report to the State Board of Health all cases of

inflammation of the eyes of the new-born and the result of

all such investigations in such form as the State Board of

Health may prescribe and direct.

3. To conform to such other rules and regulations as

the State Board of Health shall designate and promulgate

for its further guidance. Laws 1921, ch. 4, p. 5, 8 5.

8 76. State Board of Health—Duties. It shall be the

duty of the State Board of Health:

1. To enforce the provisions of this Act.

2. To promulgate such rules and regulations as shall,

26

under this Act, be necessary to secure the purposes of this

Act, and which the Board may deem necessary for the fur-

ther and proper guidance of local health officers.

8. To provide for the gratuitous distribution of silver

nitrate outfits, in individual ampules, containing a one per

cent solution with proper directions for the use and ad-

ministration thereof, to all physicians and midwives as may

be engaged in the practice of obstetrics, or assisting at

childbirth. Such directions may also be printed in foreign

languages in the discretion of the State Board of Health.

4. To publish and promulgate such further advice and

information concerning the dangers of inflammation of the

eyes of the new-born as is necessary for the prompt and

effective treatment.

5. To furnish copies of this law to all physicians and

midwives as may be engaged in the practice of obstetrics, or

assisting at childbirth.

6. To report any and all violations of this Act as may

come to their attention to the prosecuting attorney of the

county wherein a misdemeanor as defined in Section 7 of

this Act shall have been committed, and to assist said of-

ficial in any way possible, by securing necessary evidence,

and otherwise.

7. To furnish birth certificates which shall include the

question ‘‘Did you instill in each eye of the infant a one

per cent solution of nitrate of silver, immediately after

birth?’’ and to require a written answer to this question.

Laws 1921, ch. 4, p. 6, s 6.

8 77. Violation of Act—Punishment. Whoever, being

a physician, surgeon, obstetrician, midwife, manager or per-

son in charge of a maternity home or hospital, or public or

private institution in the State of Oklahoma, violates any

of the provisions of this Act, shall be deemed guilty of a

misdemeanor and upon conviction thereof shall be fined a

sum of not less than $50.00 nor more than $1,000.00 for the

first offense, and not less than $100.00 nor more than

$2,000.00 for subsequent offenses. Laws 1921, ch. 4, p. 6,87.

s 78. Religious Beliefs—Persons Having When Ex-

cepted. Nothing in this Act shall be construed to compel

persons or parents to conform to same, who have religious

beliefs contrary to the use of medicines. Laws 1921, ch. 4,

p. 6, 8 8.

8 151. Bakeries and Other Food-Stuff Factories—Sam-

tary Regulations. Every room or building occupied as a

bakery or confectionery, canning, packing, pickling or pre-

serving establishment, or for the manufacture of any food

product, shall be drained and plumbed in a manner con-

ductive to its healthful and sanitary condition, and construct-

ed with air-shafts and windows or ventilating pipes suffi-

cient to insure ventilation, as the factory inspector shall

direct. No cellar or basement shall hereafter be used as a

bakery, and no cellar occupied by a bakery on or before

the passage of this Act, when once closed, shall be again

opened for such use. Every bakery shall be provided with

a washroom and a water closet apart from the bake room

and rooms where the manufacturing of such food products

is conducted; no water closet, earth closet, or privy shall

be within, or communicate directly with, a bake shop. Rooms

used for the manufacture of flour or meal food shall be at

least eight feet in height. The side walls of such room shall

be plastered or wainscoted, the ceiling plastered or ceiled

with lumber or metal, and, if required by the factory in-

spector, shall be whitewashed at least once in three months;

the furniture, utensils and floor of such room shall be kept

in a healthful sanitary condition. The manufactured flour

or meal products shall be kept in dry, clean and airy rooms.

The sleeping places for persons employed in a bakery shall

be separate from the rooms where food products are manu-

factured or stored. Laws 1910-11, ch. 125, p. 276, s 1.

8 152. Employment of Diseased Persons — Personal

Cleanliness — Conveniences for Employees. No employer

—28—

Appendiz

shall permit any person to work in his bake shop or other

institution in which food stuffs are manufactured who is

affected with pulmonary tuberculosis, scrofulous or venereal

diseases, or with a communicable skin affection, and every

employer shall maintain himself and his employees in a

clean and sanitary condition while engaged in the manu-

facture, handling or sale of such food products. Every own-

er, agent or lessee of any establishment where food products

are manufactured shall provide cuspidors or vessels to be

used for expectoration purposes by empl yees; chairs shall

also be furnished, and employees are hereby prohibited from

sitting on any dough boards or tables used for the purpose

of manufacturing, in any way whatever, any food products.

Laws 1910-11, ch. 125, p. 277, s 2.

s 295.2. Sale or Possession of Adulterated or Misbrand-

ed Milk or Milk Products. No person shall within the State

of Oklahoma produce, sell, offer or expose for sale, or have

in possession with intent to sell any milk or milk product

which is adulterated or misbranded. It shall be unlawful

for any person elsewhere than in a private home to have

in his possession any adulterated or misbranded milk or

milk product. Laws 1949, p. 11, s 2.

8 295.3. Labeling or Marking Containers. All bottles,

cans, packages, and other containers enclosing milk or any

milk product defined in this Act, except bottles, cans, pack-

ages, and other containers enclosing such milk or any milk

product for delivery to a pasteurization plant, shall be plain-

ly labeled or marked with (1) the name of the contents as

given in the definitions of this Act; (2) the grade of the

contents, if the contents are graded; and (3) the word ‘‘pas-

teurized’’ only if the contents are pasteurized; (4) the word

“‘raw’’ only if the contents are raw; and (5) the name and

address of the processor, producer, or distributor. No milk

or milk product shall be labeled and sold or offered for

sale bearing the grade designations A or B unless the milk

has been produced, processed, and distributed in compliance

with the provisions of ‘this Act and the use of the grade

—29—

labels as approved by the State Commissioner of Health.

Laws 1949, p. 12, s 3.

8 295.4. Access to Establishments—Statements of Quan-

tities—Sealing Containers—Records, (a) Every milk pro-

ducer and distributor shall, upon request of the State Com-

missioner of Health, or his authorized representative, per-

mit him access to all parts of the establishment, and every

distributor shall furnish the State Commissioner of Health,

or his authorized representative, upon his request, for offi-

cial use only, a true statement of the actual quantities and

weight of milk, either bottled, processed, or manufactured

into butter, cheese, and other milk products, of each grade

purchased and sold, together with a list of all sources, rec-

ords of inspections and tests, and recording thermometer

charts.

(b) Repealed. Laws 1951, p. 3, 8 1.

(c) Any person or distributor or processor receiving

fluid milk shall keep an accurate record of all such milk re-

ceived, showing the weight, grade, test, and source of origin

thereof, and make a complete report of all receipts of fluid

milk to the State Commissioner of Health and the State

Board of Agriculture at the end of each calendar month.

Law 1949, p. 12, s 4.

8 295.5. Bacteriological and Laboratory Tests. All bac-

teriological and other laboratory tests and all chemical and

physical determinations shall be made in accordance with

the methods prescribed by the rules and regulations pro-

mulgated by the State Board of Health. The latest stand-

ard methods of the American Public Health Association

shall be the basis of the methods prescribed under this sec-

tion. Laws 1949, p. 12, s 5.

8 296.2. Vitamin and Mineral Requirements for Flour

—Sales to Distributors, Bakers or Processors. It shall be

unlawful for any person to manufacture, mix, compound,

sell or offer for sale, for human consumption in this State,

flour (as defined in Section 1) unless the following vitamins

Appendiz ses

and minerals are contained in each pound of such flour; not

less than 2.0 milligram and not more than 2.5 milligram of

thiamine; not less than 1.2 milligram and not more than 1.5

milligram of riboflavin; not less than 16.0 milligram and not

more than 20.0 milligram of niacin or niacin-amide; not

less than 12.0 milligram and not more than 16.5 milligram

of iron (Fe) ; except in the case of self-rising flour which in

addition to the above ingredients shal] contain not less than

500 milligram and not more than 1500 milligram of calcium

(Ca); Provided, however, that the terms of this section

shall not apply to flour sold to distributors, bakers or other

processors, if the purchaser furnishes to the seller a certifi-

cate in such form as the Commissioner shall by regulation

prescribe, certifying that such flour will be (1) resold to a

distributor, baker or other processor, or (2) used in the

manufacture, mixing or compounding of flour, white bread

or rolls enriched to meet the requirements of this Act, or

(3) used in the manufacture of products other than flour.

white bread or rolls. It shall be unlawful for any such pur-

chaser so furnishing any such certificate to use or resell the

flour so purchased in any manner other than as prescribed

in this section. Laws 1947, p. 398, s 2.

s 296.3. Vitamin and Mineral Requirements for Bread

and Rolls. It shall be unlawful for any person to manufac-

ture, bake, sell, or offer for sale, for human consumption in

this State, any white bread or rolls (as defined in Section

1) unless the following vitamins and minerals are contained

in each pound of such bread or rolls; not less than 1.1 milli-

gram and not more than 1.8 milligram of thiamine; not less

than 0.7 milligram and not more than 1.6 milligram of ribo-

flavin; not less than 10.0 milligram and nor more than 15.0

milligram of niacin or niacin-amide; not less than 8.0 milli-

gram and not more than 12.5 milligram of iron (Fe). Laws —

1947, p. 399, s 3.

8 331. Definition of Hotel; Right to Use Name—Issu-

ance of License. Every building or other structure, kept, —

used, maintained, advertised or held out to the public to be

—31—

Appendis

a place where food is served and sleeping accommodations

are offered for pay to transient guests, in which eight or

more rooms are used for the accommodation for such tran-

sient guests and having one or more dining rooms or cafes,

where meals or lunches are served to such transient guests,

such sleeping accommodations and dining rooms being con-

ducted in the same building and under the same manage-

ment, together with any buildings in connection therewith,

shall, for the purposes of this act, be deemed a hotel, such

only shall have the right to the use of the name ‘‘hotel’’ in

connection with their business, and upon the proper appli-

cation the State Board of Health shall issue to such above

described business a license to conduct a hotel, Laws 1915,

ch. 227, 8 1.

s 332. Rooming House Defined—Sleeping Accommo-

dations for Automobile Transients—License, Every build-

ing or other structure kept, used, maintained, advertised,

or held out to the public to be a place where sleeping accom-

modations are furnished for pay for transient or permanent

guests in which eight or more rooms are used for the accom-

modation of such guests, but which does not maintain din-

ing rooms or cafes in the same building, and under the

same management together with any buildings in connec-

tion therewith, shall, for the purpose of this Act, be deemed

a rooming house and shall not have the right to the use of

the name ‘‘hotel’’ in connection with such business; and

every house, cabin or structure that is designed, used or in-

tended for rent or hire to automobile transients for sleep-

ing accommodations, irrespective of the number of rooms

therein, shall also be deemed a rooming house for the pur-

pose of this Act. Upon proper application, the State Com-

missioner of Health shall issue to such described business

a license to conduct a rooming house; provided, that nothing

in this Act shall be construed to prevent the use of any

name the proprietor of such rooming house may desire to

apply to his business, which name does not include the word

“hotel.’? Laws 1915, ch. 227, 8 2; Laws 1949, p. 430, s 1.

Appendiz wg

s 333. Apartment House Defined—License. Every

building or other structure kept, used, maintained, adver-

tised or held out to the public to be a place where accom-

modations for sleeping rooms, either single or in suites for

light housekeeping, or both, but where no dining room or

cafe is maintained in the same building or under the same

management, and where two or more families or tenants ag-

gregating 15 persons or more occupy said building, togeth-

er with any buildings in connection therewith, shall for the

purposes of this act, be deemed to be an apartment house

and shall not have the right to use the word ‘“‘hotel’’ or

‘‘rooming house’’ in such business. Upon proper applica-

tions, the State Board of Health shall issue to the above

described business a license to conduct an apartment house;

provided, that nothing in this act shall be construed to pre-

vent the use of any name the proprietor of a licensed apart-

ment house may desire to apply to his business, which name

does not include the words ‘‘hotel’’ or ‘‘rooming house.”

Laws 1915, ch. 227, s 3.

8 334. Restaurant Defined—License. Every building

or other structure kept, used, maintained, advertised, or

held out to the public to be a place where meals or lunches

are served without sleeping accommodations together with

all outbuildings in connection therewith, shall for the pur-

pose of this act be defined, a restaurant, and, upon proper

application to the State Board of Health, shall issue to such

above described business a license to conduct a restaurant;

provided, that nothing in this act shall be construed to pre-

vent the use of any name a proprietor of a licensed restau-

rant may desire to apply to his business, which name does

not include the word ‘‘hotel,’’ ‘‘rooming house’? or ‘‘apart-

ment house.’’ Laws 1915, ch. 227, s 4.

Appendix C.

Tit. 63, O. S. 1951:

8s 3. Powers and Duties of Commissioner. The State

Commissioner of Health shall have power to make and en-

force any and all needful rules and regulations for the pre-

vention and cure, and to prevent the spread of any con-

tagious, infectious, or malarial diseases among persons; to

establish quarantine and isolate any persons affected with

contagious and infectious diseases; to remove or cause to

be removed any dead, decaying or putrid body, or any de-

eayed, putrid, or other substance that may endanger the

health of persons or domestic animals; to condemn or cause

to be destroyed any impure or diseased article of food that

may be offered for sale; to superintend the several boards

of health in the counties, cities, villages, towns, and town-

ships ; to establish rules and regulations for the keeping and

reporting of all vital statistics, births, deaths, marriages,

and divorces as provided by this article. R. L. 1910, s 6787.

84. Duties of Board. It shall be the duty of the State

Board of Health, under the provisions of this Article, to

quarantine against outside territory known to be infected

with contagious or infectious diseases, to take charge of

districts or localities in the State infected with any con-

tagious disease and enforce such rules and prescribe such

measures as it may deem necessary to prevent the spread

of the same or to suppress it; to take proceedings to have

abated a nuisance, calculated to affect injuriously the health

of the public or any community; to take cognizance of the

interest of health and life among the citizens of the State,

make sanitary investigations and inquiries relative to the

cause of disease, and especially of epidemics, the source of

mortality and the effects of localities, employments, condi-

tions and circumstances on the public health, to investigate

the sanitary conditions of schools, prisons, public institu-

tions, mines, railroads and street cars and all buildings and

places of public resort, and to recommend, prescribe and

on i on

Appendiz

enforce such measures of sanitation for them as may be

deemed advisable; to advise the State and all local govern-

ments in all hygienic matters; to act in conjunction with

city, town and township boards of health; and to make a

report in writing to the Governor twenty days preceding

each regular and special session of the Legislature, upon

the sanitary condition, prospect and needs of the State, set-

ting forth the action of the Board, all its expenditures since

the last preceding report, and such other matters as it may

deem proper for the promotion of health or the prevention

of disease ; which said report shall be laid before the Legis-

lature by the Governor at its ensuing term. B. L. 1910, s

6788.

s. 541. Definition of Terms. For the purposes of this

Act the words ‘‘venereal disease’’ shall include any and ail

diseases commonly communicable from any person to any

other person of the opposite sex through or by means of

sexual intercourse and found and declared by medical

science or accredited schools of medicine to be infectious,

or contagious. All words or phrases using the male or fe-

male gender, in this Act, shall be construed to mean and

cover the gender of the opposite sex. ‘‘Infected person,”’’ as

used in this act, shall mean and apply to any person, of ei-

ther sex, who may be contaminated or afflicted with any

venereal disease. The word ‘‘dealer,’’ as used in this act,

shall mean and cover any person, firm or corporation who

or which may handle, for sale, any medicinal remedies or

supposed remedies for venereal diseases, and the agents,

clerks and employees of any such person, firm or corpora-

tion; and any person, firm or corporation who or which may

profess or claim to treat or cure, by the use of medicine or

otherwise, any such venereal disease, and their agents, clerks

and employees. The word ‘‘physician,’’ as used in this act,

shall include reputable physicians who have complied with all

the requirements of law regulating the practice of their re-

spective schools of medicine, and duly licensed by such law to

practice medicine in their respective schools, or surgery, —

Appendis

or both, and no other person. The word ‘‘keeper’’ as used

in this act, shall mean and cover any person or persons in

charge or control of any penal or eleemosynary institution

whether public or private who may be authorized either by

law or by the rules of such institution to receive or dis-

charge any person into or from such institution. Wherever

the words ‘‘Board of Health’’ or ‘‘ Health Officers’? appear

in this act they should be construed to include the Board of

Health and Health Officers of the State, County or Munici-

pality of the State. Laws 1919, ch. 17, p. 31, 8 1.

s 552.2. Rules and Regulations. The State Commis-

sioner of Health shall have power to make and amend any

and all rules and regulations for the prevention and cure, to

prevent the spread of the venereal diseases, which he deems

necessary for carrying out of this and all other legislation

for the control of venereal diseases, and such rules and reg-

ulations shall have the force and effect of Jaw. Laws 1945,

p. 243, 8 2.

INDEX

PAGE

OOMMOSY oo s-vousccgdvetvobeteds eNabaut vedives 1

NE 2 nc an cn vccgsceadndsvecacrstsaehinnel 2

os cited by Petitioners distinguished ............. 4

mepetiben: S . «.. .0cccdniienhuitadisstseeadncpuas bar : i

OP LODE ey EAP Nt Pe Oe Sa TS 13

Taste or CasEs.

D. Leon De Aryan v. John D. Butler, as Mayor of San

Diego, Calif., et al., No. 169974 in Superior Ct. of

' Calif., San Diego County (not officially reported). 7

‘Commonwealth v. Beiler, 168 Pa. Super. 462, 79 Atl.

NS TOES on svcadandin auacaccmaen ukaienis 11

istrict of Columbia v. Thompson Co., (U. 8.) 97 L. ed.

(Adv. Sh., p. 888, at pp. 893 and 894)............ 2

nm Ross McFarlane, et al., v. Mayor and City Council

of Baltimore City, et al., Cir. Ct. of Baltimore City

(not officially reported) ............--+-+eeeeees 8

lacobson v. Mass., 197 U. S. 11, 25 S. Ct. 302, 49 L. ed.

Oo owen e sues ehnvnbcosaneec sheen 10, 12

, 1953 issue of ‘‘Western City,’’ a municipal

TRAGABING 2.6. sci cde sc cecscnecssvecectensdeves 9

us v. City of Cleveland, (Ohio) 121 N. BE. (2d) 311.. 12

E. Chapman, et al., v. City of Shreveport, 74 So.

Me C0) 148... ne ncvscnccescacteceneactnrssingie

Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244.. 10

Rice v. Commonwealth, 188 Va. 224, 49 S. E. (2d) 342.. 11

Badlock v. Board of Education, 137 N. J. Law 85, 58 Atl.

Be PONY BIG iso eS coc nes shiva Mapdas Maasenetns 10

2» v. Bailey, 157 Ind. 324, 61 N. EB. 730............ 11

fe, ex rel. Holcomb, v. Armstrong, 38 Wash. (2d)

860, 239 P. oe OD ing vckaceeeedapeees- sans ll

bbs ihst cv cevevdsautepenbee ci tas cot vies 11

Srarurzs.,

PaGh

Oklahoma Constitution, Art. XVIII, Sec. 3 (a)........ 2

Okla. Stats. 1951, Title 11, Sec. 564.................0. 2

Okla. Stats. 1951, Title 11, Sec. 642................00. 3

Okla. Stats. 1951, Title 11, Secs, 665 and 672........... 4

Tulsa City Charter, Art. 2, Sec, 1, par. 2.............. 3

Text Booxs.

7 Food Drug Cosmetic Law Journal 128, 133 (1952),

‘*Improvement in Nutritive Value of Foods’’......

National Institute of Municipal Law Officers’ Report 140,

ME OO ins be tea Hen ene ied 6 Cibeecnseess ase

Public Health Service Publication No, 62 (1951), page

3, ‘*Better Health for 5 to 14 Cents a Year Through

I, ERE 6 hn ci u'e ehiwnee nde tinsecesesc ll

IN THE SUPREME COURT OF THE UNITED STATES.

October Term, 1954,

No. 420

Martin L. Dowell, D. F. Gerstenberger, Mable Gerstenberger,

C. R. Roberts, Bernice Roberts, H. M. Lundquist, J. W. Klein,

Mrs, J. W. Klein, Emil Lermy, Marguerite M. Miller,

Petitioners,

vs.

The City of Tulsa, a municipal corporation, C. M. Warren,

mayor, Glenver McConnell, J. L. Jones and W. W. Jenkins,

commissioners thereof, Respondents.

BRIEF IN RESPONSE TO PETITION FOR WRIT OF

CERTIORARI.

The Petition for Writ of Certiorari states (pages 2 and

3) four questions presented for review. These relate to

Ordinance No. 6565, enacted by the Board of Commission-

ers of the City of Tulsa, authorizing the fluoridation of that

City’s water supply by its Water Department and Com-

missioner of Waterworks and Sewerage. See opinion of

Oklahoma Supreme Court, page 12 of Petition for Writ of

Certiorari. In the first of three questions stated by Peti-

tioner, the City of Tulsa is designated a subordinate agency

ora political agency of the State of Oklahoma.

It is the position of Respondents, first, that Ordinance

No. 6565 of the City of Tulsa was enacted under the police

oe

power delegated to it by the State of Oklahoma and that

this power is as broad as the police power of the State itself.

Second, that Ordinance No. 6565 meets all the constitutional

standards set by this Court and that this ordinance does

not violate either the First or Fourteenth Amendments of

the United States Constitution. We designate these proposi-

tions as Propositions 1 and 2.

Proposition 1.

The authority contained in the Oklahoma Constitution

for the adoption of a city charter is to be found in Article

XVIL, Section 3 (a). The pertinent parts are as follows:

‘‘Any city containing a population of more than

two thousand inhabitants may frame a charter for its

own government, consistent with and subject to the Con-

stitution and laws of this State * * * Upon such ap-

proval it shall become the organic law of such city * * *.’’

Under such a constitutional provision, the Supreme

Court of the United States in District of Columbia v. Thomp-

son Co., (U. 8S.) 97 L. ed. (Advance Sheets, p. 888, at pages

$93 and 894), held that the delegated power of municipali-

ties is as broad as the police power of the state. (See note

6 at p. 894, citing above section of Oklahoma Constitution.)

Oklahoma Statutes 1951, Title 11, Section 564, is as

follows:

‘*When a charter for any city of this state shall

have been framed, adopted and approved according to

the provisions of this article, and any provisions of

such charter shall be in conflict with any law or laws

relating to cities in force at the time of the adoption

and approval of such charter, the provisions of such

charter shall prevail and be in full force, notwithstand-

ing sueh conflict, and shall operate as a repeal or sus-

pension of such state law or laws to the extent of such

conflict ; and such state law or laws shall not thereafter

be operative in so far as they are in conflict with such

charter: Provided, that such charter shall be consistent

with and subject to the provisions of the Constitution,

and not in conflict with the provisions of the Constitu-

tion and laws relating to the exercise of the initiative

and referendum, and other general laws of the state

not relative to cities of the first class. R. L. 1910, Sec.

539.’?

Article 2, Section 1, paragraph 2 of the Charter of the

City of Tulsa is as follows:

‘The City of Tulsa shall have power to enact and

to enforce ordinances necessary to protect health, life

and property and to prevent and summarily abate and

remove nuisances, and to preserve and enforce the good

government, order and security of the city and the in-

habitants of said city, and to enact and enforce any and

all ordinances upon any subject; provided that no ordi-

nance shall be enacted inconsistent either with the Con-

stitution or law of the State of Oklahoma, or inconsist-

ent with the provisions of this charter; and provided

further, that the specifications of particular powers

herein authorized shall never be construed as a limita-

tion upon the general powers herein granted, it being

intended by this charter to grant to and bestow upon

the inhabitants of the City of Tulsa full power of self-

government, and it shall have and exercise all powers

of municipal government not prohibited to it by this

charter, or by some general law of the State of Okla-

homa, or by the provisions of the Constitution of the

State of Oklahoma.’’

- In addition to the authority vested in the City of Tulsa

oy its charter, we cite certain Oklahoma Statutes as follows:

_ Oklahoma Statutes 1951, Title 11, Section 642, reads

in part:

‘The mayor and council shall * * * have the power

a Be

to enact * * * ordinances not repugnant to the laws of

the United States and the Constitution and laws of this

state, as they shall deem expedient and for * * * the

benefit of * * * the health of the inhabitants thereof,

and such ordinances, rules and regulations as may be

necessary to carry such power into effect * * *.””

Oklahoma Statutes 1951, Title 11, Section 665, reads

in part:

‘¢The council may * * * make regulations to secure

the general health of the city * * *.”’

Oklahoma Statutes 1951, Title 11, Section 672, reads

in part:

‘*For any purpose, mentioned in the preceding sec-

tions, the council shall have the power to enact and

make all necessary ordinances, rules and regulations,

and they shall, also, have power to enact and make all

such. ordinavces, by-laws, rules and regulations, not in-

ot... h the laws of the State as may be expedi-

eni for maintaining the peace, good government, and

welfare of the city * * *.’’

Cases Cited by Petitioners Distinguished:

The Oklahoma cases cited by Petitioner (Petition, p. 7)

with the exception of City of McAlester v. Grand Union Tea

Company, are cases in which the question involved was

whether legislative power could be delegated to administra-

tive boards. They are not in point because the question here

is whether the ordinance which the City of Tulsa enacted

in its legislative capacity is valid.

All that was decided in City of McAlester v. Grand

Union Tea Co. was that an ordinance making the going in

or upon private residences for the purpose of soliciting

orders for sale of goods without consent of the owner or >

occupant was invalid because it attempted to declare a pri-

e nuisance a public nuisance and that the solicitation of

itimate mercantile business or trade could not be resolved

> a health, safety or general welfare regulation by sup-

ssion through the medium of a town ordinance. Here the

inance involved is obviously a health measure.

Turning now to the decisions of this Court cited by

itioners, Panama Refining Co, v. Archie D. Ryan, et al.

tition for Writ of Certiorari, p, 8), involved an unlaw-

delegation of legislative power to the President. All that

3 decided in D. C. Weaver, et al., v. Palmer Bros. Co.

tition, p. 8) was that the prohibition of all use of shod-

new or old, even when sterilized in the manufacture of

ifortables for beds is unreasonable and arbitrary and de-

ves manufacturers of due process. The evidence showed

t the use of shoddy in the manufacture of comfortables

an sterilized was not injurious to health.

In the case at bar, none of the parties contended that

linance No. 6565 was not a health measure. Petitioners

tended that the Oklahoma Legislature never established

olicy of attempting to regulate or control any disease

ept those that are ‘‘contagious, infectious or dangerous’’

s admitting that Ordinance No. 6565 is a health measure

contending that dental caries, for the control of which

ridation of public water supplies was provided, was not

ontagious, infectious or dangerous disease. The Okla-

aa Supreme Court rejected these contentions and held

t the Oklahoma Legislature had not restricted its health

asures to those designed to prevent the spread of in-

ious, contagious or dangerous diseases. (Petition, pp.

and 14.)

Lawson v. Steele simply holds that the police power of

fate extends to everything essential to the public safety,

ERA AER AE SEE ARS TON SNP PEAR TERR RE TEA RMSE ES SSS eRe

— B-

health and morals and justifies the destruction or abatement

by summary proceedings of nets being used for fishing in

a manner detrimental to the interests of the public. It has

no bearing on the proposition in support of which it is cited.

Liggett Co. v. Baldridge holding that a state cannot re-

quire all owners of stock in a corporation operating a phar-

macy to be registered pharmacists, where by other laws it

has fully safeguarded the buying, compounding or selling

of drugs and medicine is not relevant to the issues in this

case, The same is true of Mugler v. Kansas holding that a

state has the power to declare that any place kept and main-

tained for the illegal manufacture and sale of intoxicating

liquor shall be deemed a common nuisance and be abated

and at the same time to provide for the indictment and trial

of the offender.

Pierce v. Society of Sisters, etc., and Hill Military Acad-

emy holding that requiring all children between the ages of 8

and 16 years to attend the public schools unconstitutionally

interferes with the liberty of parents and guardians to direct

the upbringing and education of children under their con-

trol, and Robert T. Myer v. State of Nebraska holding that

prohibiting the teaching in schools of any other than the

English language until the pupil has passed the eighth grade,

violates the guarantee of liberty in the Fourteenth Amend-

ment to the Federal Constitution in the absence of sudden

emergency rendering the knowledge of foreign law clearly

harmful, have no bearing on the paramount issue involved

here, which is whether the City of Tulsa, under the legisla-

tive power delegated to it by the State of Oklahoma, can

enact an ordinance as a health measure, requiring the use

of fluorine in water to protect the teeth of children and the

public generally from dental caries.

—_— Tm

Proposition 2.

As I understand Petitioners’ contention, it is that the

First Amendment to the United States Constitution provid-

ing that Congress shall make no law respecting an establish-

ment of religion or prohibiting the free exercise thereof,

made applicable to the states by the Fourteenth Amendment

to the United States Constitution, renders invalid Ordinance

No. 6565 enacted by the City of Tulsa. This argument is

based on a confusion of the meaning of religious freedom

as was stated by the Court in C. Leon De Aryan v. John D.

Butler, as Mayor of the City of Sam Diego, California, et al.,

No. 169974 in the Superior Court of the State of California

in and for the County of San Diego (not officially reported) :

‘*The next question is whether or not the program

if adopted will violate the fundamental right to freedom

of religion as guaranteed by the United States Consti-

tution and the Constitution of this State, of those cit-

izens of the City whose religious beliefs are opposed

to taking medicines.

‘Religious freedom embraces two concepts; free-

dom of belief and freedom to act. The first is absolute,

but in the nature of things the second cannot be, in that

all acts or conduct of our citizens must conform to all

reasonable regulations adopted by the respective gov-

ernmental agencies acting within the scope of their au-

thority. (Rescue Army v. Municipal Court, 28 Cal. (2d)

460, 470.)

‘*In this connection our State Supreme Court has

said:

‘There can be no question, therefore, that a

person is free to hold whatever belief his conscience

dictates, but when he translates his belief into ac-

- tion he may be required to conform to reasonable

regulations which are applicable to all persons and

are designed to accomplish a permissible objective.’

(Rescue Army v. Municipal Court, supra (citing

U. 8. Supreme Court cases). To the same effect

Hamilton v, Regents, 293 U. S. 245 (Calif.) ; Gab-

rielli v. Knickerbocker, 12 Cal. (2d) 85).

‘‘Therefore, no constitutional rights of any of the

citizens of San Diego to freedom of religious belief

would be invaded or violated by the adoption of the pro-

posed program.’’

In Jan Ross McFarlane, et al., v. Mayor and City Cou

cil of Baltimore City, et al., Circuit Court of Baltimore City,

(not officially reported) the Court said:

‘*‘The objection is also made by Harry C. Hoffman,

one of the complainants, that the introduction of fluorine

into the water supply would be an infringement of his

constitutional rights, he being a Christian Scientist, al-

leging that the introduction of fluorine into the water

supply of Baltimore City will compel him to violate one

of the basic principles of his religion. A letter was in-

troduced in evidence from the Committee on Publica-

tion of the Christian Science Publications for Maryland

in which it is stated that:

‘Adherents of Christian Science regard medi-

cation and medical examination of all sorts as meth-

ods of indoctrination which operate to teach them

to look to the physical body for health, whereas

Christian Science teaches that health comes from

God and true prayer makes that fact evident.’

*‘The argument is made that to require him to use

City Water after it has been ingested with fluoride,

which it is claimed is a drug, would require him to sub-

mit to something which is against the tenets of his

religion. However, the question as to whether this is

medication is a debatable one, because in the opinion of

Doctor Pincoffs he would not consider this as being

medication, so that irrespective of the merits of the

contention of Mr. Hoffman on broad constitutional lines,

as a question of fact it is debatable as to whether or

not the use by him of this water after fluoride has been

put into it would be a violation by him of the tenets

of his religion. It has been shown in the evidence that

in other large cities the water has been treated exactly

the same as it is proposed by the Water Engineer and

the Commissioner of Health to treat the water in the

City of Baltimore.’’

The last quoted paragraph answers the contention made

by the Petitioners about medication. It will be noted that

Dr. Haney’s testimony in this case coincides with that of

the doctor who testified in the Baltimore case.

I quote from the January 1953 issue of ‘‘ Western City,’’

a municipal magazine, the following reference to a decision

of Superior Judge Jonnw E. Murray of Lewis County, in

the State of Washington, dismissing an action to restrain

the City of Chehalis from adding fluoride to the water

supply :

‘*The decision categorically rejected the main points

contained in the action, which claimed: (1) that fiuori-

dation is compulsory medication; (2) that it violates

the Due Process of Law clause of the 14th Amendment

of the Federal Constitution and Article 1, Section 3 of

the State Constitution; (3) that it constitutes the un-

licensed practice of medicine, dentistry, and pharmacy;

and (4) that it was an unlawful expenditure of city

funds and an unlawful use of the police power.

‘Judge Murray found that fluoridation, as a meas-

ure specifically to prevent disease (dental decay), was

clearly within the scope of the city’s power. The city

council, he said, was ‘justified in concluding that the

addition of a limited amount of fluorine to the water

would constitute a public health measure and would ben-

efit the people in the community’.’’

The above decisions are the first to be decided by the

-10—

trial courts on the particular question. On the religious

question, they call attention to the fact that a person has

a right to believe in any particular religion or faith that

he cares to, but he does not have the absolute freedom to

act in accordance with the tenets of any of those religions,

but in his action he is bound to follow the laws duly en-

acted for the preservation of the health of citizens generally.

He cannot object on religious grounds to such laws enact-

ed either by national, state or city authorities, The courts

found that the constitutional rights of the plaintiff to free-

dom of religious belief would not be invaded or violated by

the adoption of the proposed program.

Thus, one may conceive it to be his religious duty to

practice polygamy but the state may punish the practice

as a crime. Reynolds v. United States, 98 U. 8. 145, 25

L. ed. 244. Some persons regard vaccination as something

forbidden by the tenets of their faith, but the state or mu-

nicipality may, consistently with the Constitution, compel

vaccination in order to combat smallpox. Jacobson v. Mass.,

197 U. S. 11, 25 S. Ct. 302, 49 L. ed. 643 (1905). The fol-

lowing extract from Justice Easrwoop’s opinion in Sadlock

v. Board of Education, 137 N. J. Law 85, 58 Atl. (2d) 218,

is of particular interest:

‘¢* At the outset we wish to observe that the ques-

tion of the desirability or efficacy of compulsory vacci-

nation * * *, and whether it is wise or unwise is strict-

ly a legislative and not a judicial question. It is not

the province of this court to pronounce that vaccina-

tion is or is not a suitable and satisfactory means of

combatting disease. Judicial notice however will be

taken that vaccination is commonly believed to be a

safe and valuable means of preventing spread of cer-

tain diseases, particularly smallpox, and that this be-

lief is supported by high medical opinion. * * *

' ‘* ‘So, too, with respect to the guaranty of religious

freedom, the constitutional guaranty of religious free-

dom was not intended to prohibit legislation with re-

spect to the general public welfare’.’’

Ordinances providing that no child shall be permitted to

attend a public school without first presenting a certificate

of vaccination have likewise been upheld. Zucht v. King,

260 U. 8. 174, 43 S. Ct. 24, 67 L. ed. 194 (1922). If the state

has decided that the incidence of dental caries is serious

enough to warrant action on its part, it is hardly for the

courts to enjoin such action on the ground that caries is a

less serious disease than smallpox. Dental caries is a rec-

ognized disease— according to the United States Public

Health Service it is ‘‘perhaps the most widespread of all

diseases.’’ (See Better Health for 5 to 14 Cents a Year

Through Fluoridated Water, Public Health Service Publi-

cation No. 62 (1951), page 3; citing National Institute of

Municipal Law Officers’ Report 140, pages 3 and 44.)

It is contrary to the religion of some persons to send

their children to school at all. Yet, the state may compel

_ them to do so. Commonwealth v. Beiler, 168 Pa. Super. 462,

79 Atl. (2d) 134 (1952) ; Rice v. Commonwealth, 188 Va. 224,

49 8. EB. (2d) 342 (1948); State v. Bailey, 157 Ind. 324, 61

N. E. 730 (1901). The Board of Regents of Washington

State University required every student, as a condition pre-

cedent to registration, to submit to X-ray examination for

the purpose of discovering possible tubercular infection, A

Christian Scientist was not permitted to register for her

senior year because she refused to submit to the examina-

tion; to do so would have been contrary to the doctrine of

her church and to her personal religious conviction. The

Court in State, ex rel. Holcomb, v. Armstrong, 38 Wash.

(2d) 860, 239 P. (2d) 545 (1952), upheld the Board of

Regents. Re

A very close analogy to fluoridation is to be found in —

the Compulsory Food Enrichment Laws. At page 39 of

Report No. 140, National Institute of Municipal Law Off-

cers, the following statement is quoted from Gunderson,

‘‘Improvement in Nutritive Value of Foods,’’ 7 Food Drug —

Cosmetic Law Journal 128, 133 (1952):

‘¢¢During most of the World War II period, all

family white flour and all bakery white breads and

rolls were required to be enriched under Federal War

Food Order Number 1. That order was terminated in

1946. At the present time enrichment of flour and bread

is voluntary in 22 states; it is mandatory by local law

in 26 states and three territories. Some of the 26 states

with flour and bread enrichment laws also require en-

richment of corn meal and grits’.’’

The Oklahoma Supreme Court in this case held in effect

that the ordinance in question has a real and substantial

relation to the protection of the public health (Petition for

Certiorari, p. 11). It comes within the rule announced by

this Court in Jacobson v. Commonwealth of Massachusetts,

supra, cited and followed by the Ohio Supreme Court in

Kraus v. City of Cleveland, 121 N. E. (2d) 311, a case in

all respects material here, similar to the instant case. This

Court in the Jacobson case said:

**Tf there is any such power in the judiciary to re-

view legislative action in respect of a matter affecting

the general welfare, it can only be when that which

the legislature had done comes within the rule that, if

_a statute purporting to have been enacted to protect

the public health, the public morals, or the public safe-

ty, has no real or substantial relation to those objects,

or is, beyond all question, a plain, palpable invasion —

of rights secured by the fundamental law, it is the duty

of the courts to so adjudge, and thereby give effect to

the Constitution.’’

We have already pointed out that the ordinance involved

does not invade any rights of the Petitioners secured by

the United States Constitution. It is scarcely necessary to

_add authorities in addition to the Jacobson case, supra. That

ease and other authorities to the same effect are cited on

the last page of Mark E. Chapman, et al., v. City of Shreve-

port, 74 So. (2d) 142, involving the identical questions in-

_ yolved here, which was appealed to this Court as Case No.

407, October term 1954, and dismissed for the want of a

substantial Federal question on December 6, 1954.

Conclasion.

In conclusion I believe that I have established that

Ordinance No. 6565 of the City of Tulsa was clearly within

_ the police power of that City; that it does not violate either

the First or Fourteenth Amendments to the United States

Constitution; that no constitutional rights of Petitioners

have been invaded and that the Petition for a Writ of Cer-

tiorari should be denied for the want of a substantial Fed-

eral question.

Respectfully submitted,

Epmunp LasHizy,

Tulsa, Oklahoma,

Solicitor for Respondents.