APPEAL from the Court of Appeals for Hamilton County.
This is an appeal from an August 17, 1973, order by the Ohio Director of Environmental Protection, acting upon a complaint filed by one Harvey A. Immerman, directing the city of Cincinnati to add fluoride to its water system as required by R. C. 6111.13. In the case of Crotty v. Cincinnati (unreported, case No. A-244304, decided July 15, 1971), a declaratory judgment action in the Common Pleas Court of Hamilton County, R. C. 6111.13 was held to be unconstitutional, and the city of Cincinnati was permanently enjoined from fluoridating its water supply system under that statutory provision. The Attorney General of Ohio was given notice of the proceeding, but was not made a party and did not participate in the action. The Director of Health (predecessor to the Director of Environmental Protection's enforcement responsibilities under R. C. 6111.13) was also not made a party.
The Environmental Board of Review affirmed the order of the Director, and the Court of Appeals affirmed that order of the Board.
The cause is before this court pursuant to the allowance of a motion to certify
DISPOSITION: Judgment affirmed [***2] .
HEADNOTES: Environmental protection -- Director's order to fluoridate municipally-owned water supply -- Upheld, when -- Declaratory judgment action -- Adjudicating constitutionality of R. C. 6111.13 and 6111.30 -- Necessary parties.
SYLLABUS: 1. The absence of a necessary party constitutes a jurisdictional defect which precludes a Court of Common Pleas from properly rendering a declaratory judgment. (Zanesville v. Zanesville Canal & Mfg. Co., 159 Ohio St. 203, followed.)
2. The Director of Environmental Protection is a
necessary party in a declaratory judgment action brought to adjudicate the
constitutionality of R C. 6111.13 and 6111.30.
COUNSEL: Mr. Thomas A. Luebbers, city solicitor, and Mr. Philip S. Olinger, for appellant.
Mr. William J. Brown, attorney general, and Mr. Christopher R. Schraff, for appellee Director of Environmental Protection.
Mr. Harvey A. Immerman, for appellee Harvey A.
JUDGES: STERN, J. O'NEILL, C. J., HERBERT, W. BROWN and P. BROWN, JJ., concur. CORRIGAN and CELEBREZZE, JJ., dissent.
OPINION: [*59] [**774] The sole assignment of error in the Court of Appeals was that "[t]he Environmental Board of Review [***3] erred in ordering the appellant to fluoridate its water supply because it placed a burden on appellant to extricate itself from a perilous situation." The city contends that to obey the orders of the Board and the Director, it must act in contempt of the permanent injunction issued by the Court of Common Pleas of Hamilton County. Because we conclude that the Court of Common Pleas lacked jurisdiction to issue the injunction, and therefore that the injunction is void, we agree that the assignment of error was properly overruled by the Court of Appeals.
One of the requisites to the rendition of a declaratory judgment is that all necessary parties be before the court, and the absence of an interested and necessary party "constitutes a jurisdictional defect which precludes the court from properly rendering a declaratory judgment." Zanesville v. Zanesville Canal & Mfg. Co. (1953), 159 Ohio St. 203, 111 N. E. 2d 922.
The issue presented in the declaratory judgment action, supra, was the constitutionality of R. C. 6111.13 and 6111.30. R. C. 6111.13 provides that "[t]he Environmental [*60] Protection Agency shall exercise general supervision of the operation and maintenance [***4] of the public water supply and water-works systems throughout the state," and requires the fluoridation of supplied water of a public water system, if it does not contain a certain level of fluoride. [**775] The actual costs of equipment necessary for purposes of fluoridation would be reimbursed from funds available to the Environmental Protection Agency. R. C. 6111.30 provides for penalties to be imposed for failure to obey an order of the Director of Environmental Protection to perform an act required by R. C. 6111.12 to R. C. 6111.30. The Director is also required, by R. C. 6111.12, to inquire into and investigate complaints that a public water supply does not contain the level of fluoride required by R. C. 6111.13.
The provisions of those statutes impose clear duties upon the Director to investigate and enforce compliance with the fluoridation requirement of R. C. 6111.13. The General Assembly has delegated to him the authority to monitor the level of fluorides in public water systems, reimburse the costs of equipment, adopt and enforce rules and regulations, hold hearings, and issue orders requiring compliance with the fluoridation directives of R. C. 6111.13. The effect [***5] of holding R. C. 6111.13 and R. C. 6111.30 unconstitutional would be to remove all those duties and obligations from the Director. In particular, it would render ineffective any order of the Director in pursuance of his statutorily mandated duty to enforce R. C. 6111.13.
It is apparent that the issue in the declaratory judgment action, supra, affected both the city and the Director. That action's practical effect was to interpose a bar to any proceeding by the Director against the city. It is also apparent that, in the absence of the Director as a party, the judgment would not terminate the uncertainty or controversy, for the judgment would not prejudice the right of the Director to issue compliance orders or to perform his other duties. The anomalous result would be that the Director would retain the right and duty to order compliance with R. C. 6111.13, and that the object of that order would have the right and duty to disobey it.
[*61] Properly, when declaratory relief is sought which involves the validity or construction of a statute and affects the powers and duties of public officers, such officers should be made parties to the action or proceeding in which the [***6] relief is sought. Langer v. State (1939), 69 N. D. 129, 284 N. W. 238; Harvey Payne, Inc., v. Slate Co. (1961), 342 Mass. 368, 173 N. E. 2d 285; Mobile v. Gulf Development Co. (1965), 277 Ala. 431, 171 So. 2d 247; Aerated Products Co. v. Godfrey (1943), 263 App. Div. 685, 35 N. Y. S. 2d 124, reversed on other grounds, 290 N. Y. 92, 48 N. E. 2d 275.
Joinder of such officers assures that the parties will be properly adverse, that the issues involved will be fully presented, that the uncertainty or controversy will be terminated, and that the public interest will be adequately protected without a multiplicity of suits.
In Crotty, supra, the Director was an interested and necessary party to the proceeding and the failure to join him in the suit deprived the court of jurisdiction to render an enforceable declaratory judgment.
The state also claims that the Court of Common Pleas of Hamilton County lacked jurisdiction because of R. C. 6111.27. That argument was rejected by the Court of Common Pleas, and that statute has since been repealed. Our holding that the court lacked jurisdiction because of failure to join a necessary party renders this issue [***7] moot.
The constitutional issues raised in the declaratory judgment action in the Court of Common Pleas are not properly before us, not having been assigned as error in the Court of Appeals. See our decision in Canton v. Whitman, 44 Ohio St. 2d 62, also rendered this day.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
APPEAL from the Court of Appeals for Hamilton County.
On November 19, 1975, this court decided the case of Cincinnati v. Whitman, 44 Ohio St. 2d 58, 337 N. E. 2d 773, affirming an order by the Ohio Director of Environmental Protection directing the city of Cincinnati, a respondent herein, to add fluoride to its water supply system, and decided further the case of Canton v. Whitman, 44 Ohio St. 2d 62, 337 N. E. 2d 766, which held generally that statutes requiring fluoridation of municipal water supplies are valid as an exercise of the state police power. On February 26, 1976, the relators, as taxpayers and water users of the city of Cincinnati, filed a complaint in the Court of Common Pleas, pursuant to R. C. 733.59, alleging that the respondents' contemplated addition of fluoride to the drinking water of the city as directed in the order affirmed in Cincinnati v. Whitman, supra, would deprive relators of certain constitutional rights. Relators sought, inter alia, temporary and permanent injunctions barring the addition of fluoride to the city's water supply, and sought, further, declaratory judgments that such addition constitutes a violation of due [***2] process, an interference by the state with relators' free exercise of religion, and a violation of equal protection. Appended to the complaint were affidavits asserting that the sodium fluoride to be added to the water is a carcinogen. The court allowed a temporary restraining order to prevent the respondents from taking any action which would result in the addition of fluorides to the water.
On March 5, 1976, the respondents moved to dismiss the complaint on the grounds that the court lacked jurisdiction over both the subject matter and the persons of the respondents and that the complaint failed to state a cause of action upon which relief could be granted. The trial court found that the relators were not entitled to any relief and dismissed the complaint. The Court of Appeals reversed and remanded the cause to the trial court for further proceedings.
A motion to certify the record was granted by this court upon the sole issue of
the jurisdiction of the trial court to hear the complaint and the applicability
Canton v. Whitman, supra.
DISPOSITION: Judgment reversed.
HEADNOTES: Environmental protection -- Director's order to fluoridate municipally-owned water supply -- Review [***3] procedure -- Claims of danger to health.
COUNSEL: Mr. Robert E. Manley, for appellees.
Mr. Thomas A. Luebbers, city solicitor, Mr. Philip S. Olinger and Ms. Patricia W. Morrison, for appellants City of Cincinnati et al.
Mr. William J. Brown, attorney general, and
Mr. Bruce E.
Cryder, for appellant Director of Environmental Protection.
JUDGES: O'NEILL, C. J., HERBERT, STERN, SWEENEY and LOCHER, JJ., concur. CELEBREZZE and W. BROWN, JJ., dissent. STERN, J., retired, assigned to active duty under authority of Section 6(C), Article IV, Constitution, sitting for P. BROWN, J.
OPINIONBY: PER CURIAM
OPINION: [*28] [**1341] It is a generally accepted rule that in absence of fraud or collusion, a judgment for or against a governmental body, such as a municipal corporation, is binding and conclusive as res judicata on all residents, citizens and taxpayers with respect to matters adjudicated which are of general and public interest, n1 except where the proceedings were not of an adversary character. n2 This rule [*29] is in accordance with the general policy favoring finality of judgments where a matter has been litigated upon the merits. Where, as here, the [***4] case involves a single cause of action, the prior judgment is conclusive not only as to what was determined in the prior action, but also as to all material facts or questions which properly might have been litigated in the case. n3 The claims that fluoridation infringes upon religious freedom and upon equal protection are matters which properly could have been litigated in the prior action and which also were dismissed by this court in Canton v. Whitman, supra (44 Ohio St. 2d 62), and Kraus v. Cleveland (1955), 163 Ohio St. 559, 127 N. E. 2d 609.
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n1 Thoms v. Greenwood (1878), 6 Ohio Dec. Rep. 639, affirmed 3 W. L. B. 1057; Cincinnati Union Stock Yards Co. v. Cincinnati (1913), 1 Ohio App. 452; Griffin v. Roseburg (Ore. 1970), 464 P. 2d 691; Greenberg v. Chicago (1912), 256 Ill. 213, 99 N. E. 1039; 1 Freeman on Judgments 956 (5 Ed. 1925); 50 Corpus Juris Secundum 337-40; 46 American Jurisprudence 2d 742.
n2 Lakewood v. Rees (1937), 132 Ohio St. 399, 8 N. E. 2d 250.
Schimke v. Earley (1962), 173 Ohio St. 521, 184 N. E. 2d 209;
Quinn v. State, ex rel. Leroy (1928), 118 Ohio St. 48, 160 N. E. 453.
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A more difficult question is raised by the claim that
fluoride is a carcinogen based on statistics that the cancer death rate has increased
in certain cities with fluoridated water, while remaining the same in certain
other cities which do not fluoridate. The evidence for this claim has not been
tested by litigation and is disputed by other authorities. This evidence has
also been submitted to federal agencies and to the Congress. n4 If
[**1342] these claims could raise
legitimate questions as to the constitutionality of fluoridation as a public
health measure, and, since these claims are based upon very recent studies, the
purposes underlying the principle of
res judicata would probably not be served by barring litigation to determine the validity
of the claims. However, in the present cause, the complaint was properly
dismissed by the
Court of Common Pleas for a different reason.
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n4 Congressional Record, Dec. 16, 1975, Page H12732; Hearings before a
Subcommittee of the Committee on Appropriations House of Representatives,
Ninety-Fourth Congress, Second Session, Part 7, pages 1018-21 and 1063-70 (1976).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***6]
The claim which was presented is in actual effect a claim that the order of the Director of Environmental Protection, affirmed in Cincinnati v. Whitman, supra, should now be reversed because the presence of fluorides in public water [*30] supplies is a danger to health. Under R. C. 6111.12, the statutory procedure for claims that a public water supply is impure and dangerous to health is by complaint to the Environmental Protection Agency. Further, under R. C. 3745.04, an appeal "for an order vacating or modifying the action of the Director of Environmental Protection" may be brought before the Environmental Board of Review and "the Environmental Board of Review has exclusive original jurisdiction over any matter which may, under * * * [R. C. 3745.04], be brought before it." Appeal thereafter may be taken only "to the Court of Appeals of Franklin County, or, if the appeal arises from the alleged violation of a law or regulation, to the Court of Appeals of the district in which the violation was alleged to have occurred." R. C. 3745.06.
It is apparent that this statutory scheme for review of actions by the Director of Environmental Protection is exclusive, and that [***7] the Court of Common Pleas of Hamilton County accordingly lacked jurisdiction over the complaint at bar, which seeks to have an order issued by the director set aside. For that reason, the complaint was properly dismissed by the trial court, and the judgment of the Court of Appeals must be reversed.