Opinion
No. 82-1042
Decided May 18, 1983.
Mandamus to compel fluoridation of water — Extraordinary history of delay in obeying lawful order — Power of Supreme Court not limited by R.C. 2731.16 to carry its order and judgment into execution, or to punish any officer named therein for contempt or disobedience of its order or writs — Municipal corporation and its officials sua sponte joined as essential parties — Contempt — Mandate to be obeyed without delay.
IN MANDAMUS.
On July 1, 1974, the then Ohio Director of Environmental Protection ("director") issued an order directing the city of Canton to begin fluoridating its water within thirty days, to bring it into compliance with R.C. 6109.20 (then numbered R.C. 6111.13), which requires a certain level of fluoridation of supplied water of a public water system. The city appealed, first to the Environmental Board of Review ("board"), which upheld the order, and then to the court of appeals, which reversed the orders of the board and the director and held that R.C. 6111.13 was not reasonably related to the police power of the state.
Upon further appeal, this court in Canton v. Whitman (1975), 44 Ohio St.2d 62 [73 O.O.2d 285], reversed the lower court and affirmed the orders of the board and the director. The issue was framed succinctly by Justice Stern: "* * * Here, the city of Canton does not wish to fluoridate its water, and the issue is whether the state may order the city to do so." Canton, supra, at 65. In upholding the enforceability of the statute, the court noted: "* * * Plainly, the General Assembly made a political compromise — it ordered fluoridation, but permitted users of particular water supplies to choose, by local option, to avoid that order under specified conditions. * * *
"The decision as to whether the benefits to the public health of fluoridation are sufficient to require it for all, notwithstanding the concerted opposition of many individuals, is within the discretion of the General Assembly. So, too, is the decision that those immediately affected by a local fluoridation program should have an option to decide that same question for themselves." Id. at 71.
The city of Canton did not take advantage of the local option law enacted by the General Assembly, such referendum being required within one hundred twenty days of the passage of the statute.
Following a denial of certiorari by the United States Supreme Court of our decision of November 19, 1975 ( 425 U.S. 956), a mandamus action against the city of Canton was brought by the director to enforce compliance with his order. In State, ex rel. Williams, v. Canton (1977), 51 Ohio St.2d 81 [5 O.O.3d 50], this court held that the forfeiture provision of former R.C. 6111.30 provided an adequate remedy in the ordinary course of the law, and the writ of mandamus was denied. R.C. 6111.30 authorized the levying of $10,000 fines on non-complying city officials, who could be held personally liable for the default. This court rejected the director's claim that the penalty was an illusory means of obtaining the enforcement of his order. Effective December 14, 1978, R.C. 6111.30 was repealed.
Following our decision in State, ex rel. Williams, supra, the then Attorney General filed an action in the court of appeals seeking a writ of mandamus directing the city to comply with the July 1, 1974 order. The court of appeals denied the writ, finding an adequate remedy in the ordinary course of the law under R.C. 6109.32, which authorizes the Attorney General to "bring an action for injunction or other appropriate action against any person violating or threatening to violate" the fluoridation statute.
On appeal, this court in State, ex rel. Brown, v. Canton (1980), 64 Ohio St.2d 182 [18 O.O.3d 401], reversed, finding that neither R.C. 6109.32 nor 6109.33 provided a plain and adequate remedy in the ordinary course of the law. In a per curiam opinion, this court noted: "It is more than three years after this court's denial of mandamus relief in State, ex rel. Williams, v. Canton, supra, and the appellees still refuse to obey the order to fluoridate the city's water system. The fact that * * * [former R.C. 6111.30] was for three years unable to secure compliance with the director's order leads us to the conclusion that a civil penalty will not afford the appellant either a complete or a speedy remedy." Id. at 185. Accordingly, this court allowed the writ to direct the city of Canton to comply with the July 1, 1974 order.
Our decision was announced on December 23, 1980, and a mandate addressed to the court of appeals was issued commanding that court "to proceed without delay" to execute our judgment. Relator then filed a motion in the court of appeals for issuance of a peremptory writ to require the city of Canton to fluoridate its water supply. Following oral argument on the motion, the court, on January 27, 1981, ordered the Attorney General to prepare judgment entries "in clear-cut language specifically" commanding named city officials to perform the acts necessary for compliance with the mandate. These entries were duly submitted and oral argument on the submissions followed. On May 14, 1981 the court of appeals rejected same "for want of chemical specificity" and ordered new proposed entries from the Attorney General. These entries were filed May 28, 1981 and included a chemical definition of "fluoride." On July 9, 1981, the court of appeals issued a judgment entry rejecting the new proposed entries "as being an unauthorized amendment of the mandate of the Supreme Court of Ohio filed with us pursuant to State, ex rel. v. Canton, 64 Ohio St.2d 182 [18 O.O.3d 401] [ sic]." The court of appeals then overruled relator's motion for a peremptory writ of mandamus. Relator's appeal to this court from this order (case No. 81-1154) was dismissed on the ground that it was non-appealable. Thereafter, relator's motion for "Clarification of Mandate" was denied.
On July 21, 1982, the then Attorney General filed a complaint in this court seeking a peremptory writ of mandamus to compel respondents, the court of appeals, to comply with the mandate of State, ex rel. Brown, v. Canton, and an alternative writ directing the court of appeals to appear for a hearing and show cause why they have not so complied. Respondents-judges answered, stating they stand "ready to comply immediately with any order the Supreme Court makes." On December 22, 1982, relator's motion for summary judgment was overruled.
Mr. Anthony J. Celebrezze, Jr., attorney general, Ms. Margaret A. Malone and Ms. Joan M. Cummings, for relator.
Mr. James R. Unger, prosecuting attorney, and Mr. Allan L. Krash, for respondents.
Almost nine years have elapsed since the city of Canton was first ordered to fluoridate its water supply "within thirty days." This court has reviewed and passed on this issue in one form or another on numerous occasions. It should be quite clear to all interested parties that the state law requiring fluoridation will be enforced in the city of Canton. That question was answered in 1975. It is also quite clear that a writ of mandamus will issue compelling said fluoridation. That question was answered in 1980. This court ordered the issuance of a writ of mandamus to compel the city of Canton to fluoridate its water supply and issued a mandate to respondents to carry that order into execution. To date, respondents have not complied with that mandate. The purpose of this action is to obtain compliance with that mandate and obtain execution of the writ this court allowed in State, ex rel. Brown, v. Canton, supra.
Pursuant to R.C. 2731.16, this court is not limited in its power "* * * to carry its order and judgment into execution, or to punish any officer named therein for contempt or disobedience of its order or writs."
Although it would have been more appropriate for relator to have initiated contempt proceedings in the 1980 action wherein the city of Canton was a party, we find that the extraordinary history of delay attendant to this matter requires extraordinary steps to be taken. We hereby allow the issuance of a writ to compel respondents to comply with the mandate issued in State, ex rel. Brown, v. Canton, supra.
We also find that the city of Canton and its officials are essential parties to the enforcement of this writ and compliance with our previous mandate. Accordingly, this court sua sponte joins the city and its officials, i.e., the mayor, city council, and all employees of the municipal water works, in this action. Given our prior holdings requiring fluoridation, we hereby issue a peremptory writ to compel the city and its officials to comply with the writ issued in State, ex rel. Brown, v. Canton, supra, without delay.
Failure to follow the mandate issuing from this court will result in contempt proceedings against any non-complying party.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.