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Young v. Board of Health of Borough of Somerville

Decided: June 23, 1972.

RAYMOND A. YOUNG, ET ALS., PLAINTIFFS-APPELLANTS,
v.
THE BOARD OF HEALTH OF THE BOROUGH OF SOMERVILLE, ET ALS., DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Mountain, J.

Mountain

This case questions the validity of the proposed fluoridation of a public water supply, an issue which has apparently not hitherto come directly before the courts of this state.

Between May and September, 1970, the Boards of Health of the Boroughs of Raritan and Somerville and of the Townships of Branchburg and Bridgewater, all in Somerset County, adopted resolutions requesting their common supplier of drinking water, Somerville Water Company, henceforth to supply water containing one part fluoride to each one million parts of water (1 p.p.m.) Plaintiffs, all of whom are taxpayers and residents of one or other of the affected municipalities, instituted this suit seeking injunctive relief against the proposed action and an adjudication that the resolutions were invalid. Upon the return day of the order to show cause why a preliminary injunction should not issue, plaintiffs moved for summary judgment. The motion was denied. By stipulation of counsel, and with the consent of the trial judge, it was agreed that the court's decision would be given the effect of a summary judgment in defendants' favor.

Plaintiffs appealed to the Appellate Division and this Court certified the case upon its own motion. R. 2:12-1.

Studies and experiments made over the past quarter century have established with considerable scientific certainty that in communities where public drinking water contains controlled amounts of fluoride, the incidence of dental caries (tooth decay) is dramatically less than in communities where the drinking water lacks this ingredient. Apparently fluoride in drinking water tends to harden tooth enamel, making teeth more resistant to decay. This beneficial effect is far more noticeable in children than in adults. With the addition, in 1967, of New York City's eight million residents, the number of persons drinking fluoridated water in the United States reached a total of sixty-five million. Clark & Sophy, Fluoridation: The Courts and the Opposition, 13 Wayne L. Rev. 338 (1967).*fn1

Although no harmful results from fluoridation have been clearly proven and it has no effect upon the color, taste or odor of water and despite the health benefits that are clearly derived, proposals to fluoridate drinking water have encountered extraordinary opposition and antagonism. The generative forces of this hostility are not easily identified but have found expression in a variety of arguments. It is contended, variously, that there is a lack of statutory authority for the municipal action; that even if adequate statutory authority can be inferred, fluoridation is an abusive exercise of police power and as such is constitutionally offensive; that it prohibits the free exercise of religion by imposing medication upon those who would resist it; and that it otherwise constitutes a deprivation of personal liberties. The courts throughout the nation have [61 NJ Page 79] been virtually unanimous in resisting these as well as other arguments, and in upholding fluoridation of drinking water as a valid public health measure whenever a challenge has been presented. De Aryan v. Butler, 119 Cal. App. 2d 674, 260 P. 2d 98 (1953), cert. den. 347 U.S. 1012, 74 S. Ct. 863, 98 L. Ed. 1135 (1954); Opinion of the Justices, 243 A.2d 716 (Del. 1968); City Commission of City of Fort Pierce v. State ex rel. Alterhoff, 143 So. 2d 879 (Fla. App. 1962), app. dis. 154 So. 2d 208 (1963); Schuringa v. City of Chicago, 30 Ill. 2d 504, 198 N.E. 2d 326 (1964), cert. den. 379 U.S. 964, 85 S. Ct. 655, 13 L. Ed. 2d 558 (1965); Wilson v. City of Council Bluffs, 253 Iowa 162, 110 N.W. 2d 569 (1961); Graybeal v. McNevin, 439 S.W. 2d 323 (Ky. 1969); Chapman v. City of Shreveport, 225 La. 859, 74 So. 2d 142 (1954), app. dis. 348 U.S. 892, 74 S. Ct. 216, 99 L. Ed. 701 (1954); Attaya v. Town of Gonzales, 192 So. 2d 188 (La. App. 1966); Rogowski v. City of Detroit, 374 Mich. 408, 132 N.W. 2d 16 (1965); Readey v. St. Louis County Water Co., 352 S.W. 2d 622 (Mo. 1961), app. dis. and cert. den. 371 U.S. 8, 83 S. Ct. 20, 9 L. Ed. 2d 47 (1962), reh. den. 371 U.S. 906, 83 S. Ct. 203, 9 L. Ed. 2d 167 (1962); Paduano v. City of New York, 17 N.Y. 2d 875, 271 N.Y.S. 2d 305, 218 N.E. 2d 339 (1966), cert. den. 385 U.S. 1026, 87 S. Ct. 754, 17 L. Ed. 2d 674 (1967); Stroupe v. Eller, 262 N.C. 573, 138 S.E. 2d 240 (1964); Kraus v. City of Cleveland, 163 Ohio St. 559, 127 N.E. 2d 609 (1955), app. dis. 351 U.S. 935, 76 S. Ct. 833, 100 L. Ed. 1463 (1956); Dowell v. City of Tulsa, 273 P. 2d 859 (Okla. 1954), cert. den. 348 U.S. 912, 75 S. Ct. 292, 99 L. Ed. 715 (1955); Baer v. City of Bend, 206 Or. 221, 292 P. 2d 134 (1956); Hall v. Bates, 247 S. C. 511, 148 S.E. 2d 345 (1966); Kaul v. City of Chehalis, 45 Wash. 2d 616, 277 P. 2d 352 (1954); Birnel v. City of Fircrest, 53 Wash. 2d 830, 335 P. 2d 819 (1959), app. dis. 361 U.S. 10, 80 S. Ct. 71, 4 L. Ed. 2d 51 (1959), reh. den. 361 U.S. 904, 80 S. Ct. 204, 4 L. Ed. 2d 159 (1959); Froncek v.

City of Milwaukee, 269 Wis. 276, 69 N.W. 2d 242 (1955). The unanimity of appellate state court holdings is matched only by the frequency and persistent regularity with which the United States Supreme Court has declined review.

In the case before us it is initially urged that the local boards of health lacked authority to adopt the resolutions requesting fluoridation. We cannot agree.

The Legislature allocated to the State Department of Health the responsibility of formulating "comprehensive policies for the promotion of public health and the prevention of disease within the State." N.J.S.A. 26:1A-37. Specifically this statute directed the Department to "encourage, direct and aid in co-ordinating local programs concerning control of preventable diseases in accordance with a unified State-wide plan . . . .," to "administer or supervise a program of . . . child health services, encourage and aid in co-ordinating local programs concerning . . . infant hygiene" and "administer or supervise a program of dental health, [and] encourage and aid in co-ordinating local programs concerning dental health." Additionally the State Commissioner of Health was specifically authorized to do the following:

i. Cause studies to be made to determine whether the recognized public health activities of local health departments are being conducted and whether minimum standards of performance are being met in all municipalities of the State and for the purposes of this subsection, the commissioner shall recommend and the Public Health Council shall prescribe what are to be considered as "recognized public health activities" and "minimum standards of performance";

j. Require local boards of health to establish and maintain a program of recognized public health activities and to meet minimum standards of performance as prescribed by the Public Health Council in accordance with the ...


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