Illinois Pure Water Committee, Inc. et al., Plaintiffs-Appellants, v. Dr. Franklin Yoder, Director of Department of Public Health et al., Defendants-Appellees, 6 Ill. App. 3d 659

Mr. PRESIDING JUSTICE GEORGE J. MORAN delivered the opinion of the court: This action for injunctive and declaratory relief was brought against the defendant, Dr. Franklin Yoder, Director of the Illinois Department of Public Health and the Alton Water Company. The defendant filed a motion to strike and dismiss the complaint and the lower court, upon consideration of the pleadings, granted defendant’s motion and ruled that the complaint failed to state a cause of action. An appeal was taken from the order. The plaintiffs are the Illinois Pure Water Committee, Inc., Ruby N.

Hale, individually and as an officer of the corporation plaintiff, J. O. Bear, mayor and chief executive officer of the Village of Pesotum, Illinois, and George Edward Hiscott, IV, a Christian Scientist and resident of Highland Park, Illinois. The plaintiffs brought the action individually and as representatives of all citizens of the State of Illinois and all users of public water supplies in the State. The plaintiffs sought the following relief:

(1) A temporary injunction pending the outcome of the litigation; (2) a declaration that

Chapter 111½,

Section 121(b)(1) which provides for compulsory fluoridation of water supplies, is unconstitutional, or in the alternative; (3) a declaration that Dr. Yoder and his department have failed to adopt rules and regulations in accordance with statutory mandate; (4) a declaration that the defendants have usurped legislative function by adopting rules which do not conform to the statutory mandate; and (5) after a hearing on the cause a permanent injunction restraining defendants from (1) introducing fluorine into the water supplies and (2) enforcing or complying with the provisions of

Chapter 111½,

Section 121(g)(1). Motions to dismiss or strike a pleading admit facts well pleaded, but not conclusions of law or conclusions of facts unsupported by allegations of specific facts upon which such conclusions rest and when constitutional issues are involved, facts relied upon to rebut the presumption of constitutionality must be specifically set forth. Pierce v. Carpenter, 20 Ill.2d 526, 169 N.E.2d 747; Heyman v. Mahin, 49 Ill.2d 284, 275 N.E.2d 421. In amended Count I the plaintiffs allege the following: 1. That fluorine is being injected into the water system pursuant to

Chapter lll½, Sec. 121, and it is a poisonous, noxious and deleterious element; 2. That the defendant has not promulgated any rules nor provided for any facilities which will assure all of the citizens of the State of Illinois that poisonous or noxious substances, dangerous to the health of the citizens will not be introduced into the water supply of this State —

Section 121(g)(1) requires all public supplier of water in this State to introduce the element “fluorine” into the water supply of this State under conditions which render the consumption of public water supply by tire citizens of this State, potentially hazardous and dangerous to the lives, health and welfare of the citizens consuming said water; 3. That there are no provisions for trained technicians who have ability to watch the system; 4. That there are no safe tests to regulate the level of fluorine and testing on a monthly basis is inadequate. 5.

That the compulsory introduction of fluorides into the water supplies of this state is so hazardous by reason of its poisonous nature to the human body, that the level of concentration must be held to less than 1.2 milligrams per liter under the provisions of

Chapter IIIV2,

Section (gl), but neither said statute nor the regulations of the Department of Public Health attempt to take into consideration the environmental exposure of citizens of this state to fluorides from sources other than the levels provided to be maintained in the water supplies hereof and by reason thereof, citizens of this state will be forced to submit their bodies to hazardous and dangerous levels of fluorides, if the water supplies of the State are polluted by the introduction of this noxious substance purportedly under the provisions of said statute and the regulations of the Department of Public Health. 6.

That scientific knowledge has greatly expanded since 1964. (In this year the Illinois Supreme Court in Shuringa v. City of Chicago, 30 Ill.2d 501, 198 N.E.2d 326 (1964) ruled that fluoridation was not unhealthy and was a proper exercise of the police power of the municipality) which evidences that fluorides are harmful and injurious.

As a result of this the plaintiffs contend that (1) the statute is unconstitutional because it denies plaintiffs due process of law and places their lives and health in jeopardy without due process of law by forcing the plaintiffs to consume the tainted water; (2) the statute is so vague and uncertain and lacks requisite safeguards as to render it unconstitutional; (3) that the statute is an unconstitutional delegation of authority. The merits of the case may prove the well pleaded portions of these contentions to be false, but this case was decided on the pleadings and one must assume these facts as true.

Making such an assumption, one must conclude that the plaintiffs did state a cause of action and it was error to dismiss their complaint. Plaintiff Bear, as mayor, alleges only that the fluoridation requirement would necessitate great investments that would be financiaHy ruinous to his vfflage. There are no allegations of specific facts alleged which support this claim. The motion to strike and dismiss pointed out that in such capacity he has failed to aHege his authority in his official capacity to join his village in this action.

Therefore as to plaintiff Bear as mayor, the action was properly dismissed, and paragraph eight of amended Count I should be stricken. In Count II of the amended complaint the plaintiff George Edward Hiscott IV alleged that he is a member of the Christian Science Church and that the compulsory introduction of fluorides into the water supplies forces him to subject himself to therapeutic treatment by the uses of medicine in direct contradiction to the tenets of his faith. He further aHeged that this prohibits him and others of his faith from the free exercise of his refigion.

This question has not been determined in this jurisdiction and if this case had been decided on the merits, the court might well find that fluoridation is not medication as courts in other jurisdictions have. (See Graybeal v. McNevin (Ky.Ct.App. 1969), 439 S.W.2d 323 and the compHation of cases therein.) But this question was decided on the pleadings and assuming the facts are true, then the plaintiff has stated a cause of action. Plaintiffs, Illinois Pure Water Committee, Inc., Ruby N. Hale, George Edward Hiscott IV and J. O.

Bear individually, did aHege sufficient facts to state a cause of action and the order of the lower court dismissing their complaint is reversed. Plaintiff J. O. Bear as mayor did not allege facts sufficient to state a cause of action and the order of the lower court as to him in that capacity is affirmed. Affirmed in part and reversed in part. EBERSPACHER, J., concurs.