(dissenting)—I repeat, for ready reference, findings of fact VI and VII:
“VI. That although fluoride is a deadly poison used commercially for the extermination of rats and other vermin, the addition to the municipal water supply of Chehalis of a source of fluoride ion, such as sodium silico fluoride, in the proportion of one part per million will not amount to a contamination and the water will continue to be wholesome. That chlorine is added to water to affect either bacteria or plant life in the water, while fluoride has no effect upon the water or upon the plant life in the water but remains free in the water and is artificially added solely for the effect it has on the individual drinking the water.
“VII. That dental caries, commonly referred to as tooth decay, is a very common disease of mankind. That tooth decay is neither infectious or contagious. That the addition of fluoride to the Chehalis water supply is intended solely for use in prevention of tooth decay primarily in children up to 14 years of age, and particularly between the ages of *6266 and 14 and will prevent some tooth decay in some children.”
Fluoridation has been and continues to be a highly controversial issue; however, in the absence of any assignment of error to finding No. VI, we must accept, for the purposes of this case, the finding that fluoridation such as here contemplated “will not amount to a contamination and the water will continue to be wholesome.” Nor is it any concern of ours, in this case, whether the city of Chehalis would be liable for the consequences of contamination of the water supply if the fears and misgivings of the appellant’s experts should prove something less than groundless.
The principal contention raised by the appellant is that the ordinance deprives him of “liberty . . . without due process of law,” in violation of the constitution of the United States, amendment 14, and of the constitution of the state of Washington, Art. I, § 3.
What, then, is the liberty of which appellant is deprived? It is argued that the ordinance does not compel him to do anything; it subjects him to no penalty; and the city’s obligation to appellant is fulfilled by the furnishing of water which is wholesome and free from contamination.
The deprivation of liberty involved in the enactment of the ordinance in question stems from the following facts:
(1) That appellant will be compelled to drink the water because there is no other practical source of supply (finding of fact No. V);
(2) That fluoridation has no effect upon the water or the plant life in the water, but fluorides are added solely for the effect they have on the individual who drinks the water (finding of fact No. VI);
(3) That the addition of fluorides is intended solely for use in the prevention of tooth decay, primarily in children up to fourteen years of age (finding of fact No. VII);
(4) That fluorides are readily available by prescription for topical application to teeth and for use in milk, water, and salts (no finding on this point, but testimony to that effect is undisputed).
*627We are not here concerned with any question as to appellant’s right to be furnished wholesome water, or with any other rights which he might have in connection with the city’s duty to furnish water. The significant circumstances are that the ordinance is designed solely for the purpose of effecting the application of fluorine to the teeth of the residents of Chehalis in order to minimize tooth decay in some children. The use of the city water system as a means of accomplishing this purpose means that the aforesaid “treatment” becomes compulsory for any person who has to rely upon the city water supply as his source of drinking water. Thus the liberty of which appellant is deprived is the right to decide of his own free will whether he desires to apply fluorine to his teeth for the purpose of preventing tooth decay, based upon his own opinion as to whether it would be advantageous or disadvantageous to his personal health—a matter, incidentally, on which there is marked and bitter divergence of opinion within the medical and dental professions.
It must be conceded that this is a personal liberty which falls within the constitutional protection of due process. In Mott on Due Process of Law 590, § 236, it is stated:
“There seems to be a deep-seated conviction in the Anglo-Saxon mind that a certain independence of action is valuable for social and political progress, and this can only be sacrificed when social considerations make it imperative to do so. Since it arose out of this conviction, due process has always been a social guarantee. It has always stood for the proposition that freedom of action as well as private property has a social value as well as an individual. It is, consequently, very closely related to the doctrines of natural law and inalienable rights.”
In Interests of Personality, 28 Harv. L. Rev. 343, 356 (1915), Professor Roscoe Pound classifies the interests in the physical person that are entitled to recognition and enforcement by the state:
“Secondly and closely related [to immunity from bodily injury] is the preservation and furtherance of bodily health. Third and hardly less important is immunity of the will *628from coercion, freedom of choice, and judgment as to what one will do.”
The question of fluoridation involves a combination of these two elements, namely, “freedom of choice” as to measures to be adopted for “the preservation and furtherance of bodily health.”
What, then, is respondent city’s justification for this encroachment on personal liberty? The ordinance is sought to be upheld as a valid exercise of the city’s police power as authorized by the state constitution, Art. XI, § 11, and as delegated by RCW 35.23.440 (27).
The precise issue involved in this case is succinctly stated in a comment in 3 Hastings L. Journal 123, 129 (1952):
“Correlative with the rights of police power in the state are inherent individual rights. The Constitution secures to each individual the right to life and liberty. The state cannot infringe upon nor deprive an individual of these rights. These rights, too, must be reasonably exercised. They are not absolute rights. Rather they are subject to reasonable restraint—‘liberty regulated by law.’ An exercise of police power depriving an individual of any of these rights must conform to due process. To answer what is due process, we look back to our definition of police power. It is a reasonable and unarbitrary restraint or deprivation brought about to accomplish a legitimate public purpose. In the case of fluoridation, the asserted right of the state is protecting and promoting the public health against dental caries. The right of the individual is the right to liberty.”
In Freund on Police Power 116, § 123, it is said:
“Measures directly affecting the person in his bodily liberty or integrity, represent the most incisive exercise of the police power. Only the emergency of present danger therefore can justify quarantine, isolation or removal to hospital and compulsory treatment, and it is at least doubtful whether vaccination can be made compulsory apart from such necessity.”
In the same text, p. 133, § 143, it is pointed out that ofie of the tests to be applied to a proposed health regulation is the question: Is it possible to secure the object sought without impairing essential rights and principles? Applying *629that test question to the present case, the answer must be in the affirmative because it appears in the record, and is nowhere denied, that anyone who wants or needs fluorine can secure fluorides on prescription for topical application or to be taken into the system with milk, water, salt, or in other ways.
The supreme court of the United States laid down a test of the validity of compulsory health regulations which invade bodily liberty (vaccination) in Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643, 25 S. Ct. 358 (1904). Mr. Justice Harlan, in the course of the opinion, used the following quotation from Crowley v. Christensen, 137 U. S. 86, 89, 34 L. Ed. 620, 11 S. Ct. 13 (1890):
“ ‘Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law’ ” (Italics mine);
and later said:
“There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” (Italics mine.)
The proposed infringement of the individual’s constitutional right of freedom of choice in matters relating to his own bodily care and health certainly is not justified by “conditions essential to the equal enjoyment of the same right by others,” suggested as the basis for the restriction of individual freedom in Jacobson v. Massachusetts, supra. Nor is it justified by “pressure of great dangers” to the public health.
*630While dental caries may be termed a “disease” which is prevalent in the teeth of almost everyone, it is not contagious or communicable in any way. Dental caries in no way endangers the public health in the sense that its existence in the teeth of one individual might adversely affect the personal health of any other individual. To thus extend the concept of “public health” would open the door to compulsory mass medication or preventive treatment for any disease, solely on the ground that it is for the individual’s own good, without regard to his inherent right to determine such matters for himself.
We are in accord with the language of Judge Galloway in the very recent case of Chapman v. Shreveport, No. 116, 282, First Dist. Court, Caddo Parish, La. (1954):
“Under the facts of this case as we understand and have stated them, it is our opinion that fluoridating the City water supply bears no reasonable relation to the public health. . . .
“We advert to the scientific evidence concerning the nature and cause of dental caries, or tooth decay. It is not contagious and cannot be transmitted from one person to another. No person or segment of the population having that condition can, on that account, have any adverse effect on the health, dental or otherwise, of the general public or any member or segment thereof. We repeat, in our opinion this is not a matter of the public health. It is strictly within the realm of individual and personal dental health and hygiene within which each person should be free to choose his course for himself and those for whom he is responsible in the family relation. To this field the just powers of the government do not extend.”
Nothing that was said by the supreme court of Louisiana in reversing Judge Galloway (Chapman v. Shreveport, 74 So. (2d) (La.) 142 (1954)) has changed my opinion as to the soundness of the statement I have just quoted.
Respondent city and its expert witnesses protest against the use of the phrase “compulsory mass medication.” It would seem, in Shakespearean phraseology, that they “protest too much.” They concede that fluoridation has no effect upon the water and they urge it solely for the effect it has *631upon the individual who drinks the water. But they say it is not medication because it does not cure anything; it is intended merely to prevent dental caries.
Medication, in lay understanding, includes prophylaxis or preventive measures when applied to the individual. We hear much of preventive medicine. “The practice of medicine . . . consists of the use of drugs or medical preparations in or upon human beings, ...” RCW 18.71.010. The Federal food, drug and cosmetic act defines the term “drugs” as “. . . articles intended for use in the diagnosis, cure, mitigátion, treatment, or prevention of disease in man. ...” (Italics mine.) 21 U. S. C. A. (Sup.), § 321 (g). I do not believe that respondent city would seriously contend that the prescribing of drugs for preventive purposes does not constitute practicing medicine. If, however, it is the position of respondent city and its experts that, while giving a preventive prescription is practicing medicine, the prescription, when filled, is not medicine and, when used, is not medication, they are dealing in refinements which escape the lay mind and which are not reflected in current terminology.
The foray into semantics by each of respondent city’s experts, all of whom deplore the use of the phrase referred to, and even the statement in the majority opinion that that phrase does not describe “the situation before us,” fail to convince me that “compulsory mass medication” is not an accurate and concise expression of both the purpose and the effect of fluoridation.
The majority cites cases approving fluoridation, each making a plausible case for it. They all say, in effect, as the majority says here: “We fail to see, however, where any right of appellant, guaranteed by the constitution, has been invaded.” It would, of course, be easier to see if the ordinance under question required every resident of Chehalis (or even every child under fourteen years of age resident therein) to present himself or herself for topical application of fluorides by public health authorities. On the showing here, it would not even be contended that such an *632ordinance would be constitutional; yet the instant case is no whit different. What the residents of Chehalis could not be compelled to do one by one, it is now sought to compel them to do en masse; a treatment to which they individually could not be compelled to submit is here sought to be applied by more subtle but no less compulsory means. This smacks more of the police state than of the police power.
We were meticulously careful, in the recent case of State ex rel. Holcomb v. Armstrong, 39 Wn. (2d) 860, 239 P. (2d) 545 (1952), to make it clear that no specific treatment was prescribed by the regulation there in question. In that case, on the basis of the existence of a clear and present danger, we upheld the right of the regents of the state university to require all students to have chest X-ray examinations for the purpose of discovering possible tubercular infection. We said that the “primary concern is not for the possibly infected student, but is for those jeopardized by contact with such an individual.”
Up to now, the basis for the restriction of the liberty of the individual has been that he would not be permitted to jeopardize the health or safety of others. It has been generally stated that the state, under its police power, has the right and duty to protect the health and welfare of its people; that the legislature (or municipality to which exercise of the police power has been delegated) is vested with a wide discretion, not only to determine what the public interest requires, but also to determine what measures are necessary to protect that interest; and that the inquiry of this court is limited to determining whether the object of the statute is one for which the police power may legitimately be invoked and, if so, whether the act bears a reasonable and substantial relation to the object sought to be attained. State ex rel. McBride v. Superior Court, 103 Wash. 409, 174 Pac. 973 (1918); McDermott v. State, 197 Wash. 79, 84 P. (2d) 372 (1938); State v. Sears, 4 Wn. (2d) 200, 103 P. (2d) 337 (1940); State v. Boren, 36 Wn. (2d) 522, 219 P. (2d) 566, 20 A. L. R. (2d) 798 (1950).
*633It is urged that inasmuch as the protection of dental health is an object for which the police power may legitimately be invoked, and fluoridation reasonably tends to promote that object, the limits of judicial inquiry are thereby satisfied. With this I cannot agree, at least in so far as the proposed regulation attempts to achieve such an object by compulsory treatment and consequent invasion of bodily liberty. I do not mean to infer that the protection of dental health can never under any circumstances be a proper subject of the exercise of the police power. There is a great difference between saying, as we did in State v. Boren, supra, that the state has a right to control who shall practice dentistry because the state has a duty to people who choose to go to dentists to protect them from incompetents and charlatans, and saying that people can be compelled to have their teeth treated whether they need treatment or want it, which is what the respondent city is attempting to do here. In short, I think that prevention of dental caries by compulsory treatment of the teeth does not fall within the scope of protection of the public dental health for which the police power may be invoked.
If fluorine is indeed the key to dental health and the application of fluorides is readily available to all who desire it, then education and persuasion, not compulsion, seem to be called for. Compulsion is justified on occasion for the protection of the public when dealing with contagious disease, but when we.search for the “pressure of great dangers” in the instant case, it simply is not there. The ordinance providing for fluoridation is unconstitutional on the ground that it is an unwarranted and unjustified invasion of the liberty guaranteed the appellant by the United States constitution, amendment 14, and by our state constitution, Art. I, § 3.
No reference has been made to the first amendment of the United States constitution. Appellant apparently has no religious scruples against fluoridation or, if he has, he does not urge them. He does argue, however, that there is no distinction between the “pressure of great dangers” test laid *634down in Jacobson v. Massachusetts, supra (a fourteenth amendment case) and the “clear and present danger” test first laid down in Schenck v. United States, 249 U. S. 47, 63 L. Ed. 470, 39 S. Ct. 247 (1919) (a first amendment case), which test we recently recognized and applied in State ex rel. Holcomb v. Armstrong, supra.
If appellant’s contention be limited to a situation like the present, I can agree. However, the supreme court of the United States has pointed out on several occasions that there is a distinction, and that the rights guaranteed by the first amendment rest upon a firmer, or at least a broader, foundation than does the liberty protected by the fourteenth amendment. West Virginia State Board of Education v. Barnette, 319 U. S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A. L. R. 674 (1943); Thomas v. Collins, 323 U. S. 516, 89 L. Ed. 430, 65 S. Ct. 315 (1944). The former are concrete, the latter abstract, hence more vague and difficult of definition. However, since the liberty with which we are concerned is neither vague nor uncertain, this distinction is a matter of no concern in the present case except to indicate that an equally strong, if not a stronger; case could have been made by a proper party plaintiff for the unconstitutionality of the ordinance in question as a violation of the first amendment of the United States constitution.
I dissent. The judgment should be reversed.
Hamley, J., concurs with Hill, J.