(dissenting). I am unable to agree with the conclusion in point 3 of the court’s opinion to the effect that the board of health of the city of North Adams has the power to compel the mayor and city council to appropriate the funds necessary to carry out the board’s decision to fluoridate the city’s water supply. This decision is tantamount to a holding that as to fluoridation the board is not subject to the fundamental provision of the municipal finance law (G. L. c. 44, § 31, as amended through St. 1969, c. 505, § 7) that “ [no] department financed by municipal revenue, or in whole or in part by taxation, of any city or town, except Boston, shall incur a liability in excess of the appropriation made for the use of such department . . . except in cases of extreme emergency involving the health or safety of persons or property, and then only by a vote in a city of two thirds of the members of the city council, and in a town by a majority vote of all the selectmen.” The court’s decision in this case does not rest on any claimed emergency.
It is unquestionable that the Legislature has the power to authorize the State Department of Public Health to compel municipalities to fluoridate their public water supplies. It is equally unquestionable that, if the Legislature gave the department that authority and the department exercised it against a municipality, the order could not be thwarted by the municipality’s failure or refusal to appropriate the funds necessary therefor. That was decided by this court in Commonwealth v. Hudson, *570315 Mass. 335 (1943), where the department, acting under express authority granted to it by St. 1942, c. 8, ordered the town of Hudson to provide treatment equipment for chlorinating its water supply. That statute authorized the department to enter such an order directly against a municipality, leaving the latter no choice or discretion in the matter.
By contrast, the statute relating to fluoridation (G. L. c. 111, § 8C, inserted by St. 1968, c. 548, § 1, and amended by St. 1971, c. 1024, §§ 1, 2) limits the power of the department to the making of recommendations of “such methods as in its opinion are advisable to reduce or limit the prevalence of dental caries and other dental diseases and defects,” and to notifying a municipality that “the fluoride content of . . . [its public water supply for domestic use] is not at optimum level for sound dental health.” However, the statute gives to the local board of health, and not to the department, the power of ultimate decision whether to fluoridate the water supply. In my opinion there is nothing in the statute which should be construed to exempt the local board’s exercise of that power from the provision of G. L. c. 44, § 31, which prohibits each “department financed by municipal revenue, or in whole or in part by taxation, of any city or town . . . [from incurring] a liability in excess of the appropriation made for the use of such department.”
I do not believe that the fact that G. L. c. 111, § 8C, authorizes a local board of health to exercise its power thereunder by the issuance of an “order” that the water supply be fluoridated is of any material significance on the applicability of the prohibition contained in G. L. c. 44, § 31. The word “order” is often used to identify or indicate the means by which municipal boards, commissions or officers exercise the powers vested in them by statute, but the use of that word or title has never been held to authorize an expenditure of public funds in excess of the limitations imposed by G. L. c. 44, § 31.
*571The court’s opinion in this case gives to a municipal board of health desiring to order the fluoridation of the public water supply substantially the same degree of fiscal autonomy which has long been enjoyed by school committees in submitting their annual budget requests. The school committees’ autonomy is based on the express command of G. L. c. 71, § 34, as appearing in St. 1939, c. 294, that “ [e]very city and town shall annually provide an amount of money sufficient for the support of the public schools as required by this chapter.” By contrast, the statute relating to fluoridation, G. L. c. 111, § 8C, contains no express statutory command to municipalities to provide the funds therefor when requested by boards of health, and, in my opinion, the statute should not be interpreted as including an implied command to that effect. Decatur v. Auditor of Peabody, 251 Mass. 82, 88-89 (1925).