The Colorado Lawyer
Vol. 43, No. 6 [Page 47]
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“Medicinal” Alcohol and Colorado’s Local Option Law
by Frank Gibbard
About the Author
Frank Gibbard is a staff attorney with the Tenth Circuit Court of Appeals and Secretary of the Tenth Circuit Historical Society—(303) 844-5306, email@example.com. The views expressed are those of the author and not of the Tenth Circuit or its judges. Gibbard thanks Stephanie Noble of the Tenth Circuit Library for her research assistance. Readers are encouraged to contact Gibbard with topic suggestions or to volunteer to write Historical Perspectives articles. A collection of Historical Perspectives articles published in The Colorado Lawyer is available for purchase from CBA-CLE. Visit www.cobar.org/cle/pubs.cfm?ID=20166 for complete information.
In November 2000, Colorado voters rang in the new millennium by amending the state constitution to legalize the medical use of marijuana.1 In 1937, Colorado had witnessed the first federal sentence for selling marijuana.2 Sixty-three years later, a major exception to the state’s drug prohibition had been carved out that eventually would lead to outright legalization. But this was not the first time that the Centennial State had made a provision for medicinal use of a controlled substance. Nearly a century earlier, when the Colorado Legislature permitted municipalities to ban the sale of alcohol, it created a specific exception for medicinal alcohol. The story of Colorado’s Local Option Act and its "pharmaceutical" exception sheds an interesting light on the history of alcohol prohibition in Colorado.
The Anti-Saloon League
As a rule, 19th-century Americans drank heavily. In fact, they imbibed alcohol to an extent that is hard to imagine today. Many people literally drank all day long, from the time they got up until the time they went to bed. Even children were given alcohol to drink. Employers learned to expect their employees to be absent on Mondays, as they recovered from hard drinking bouts over the weekends. Workingmen often left their wives and children impoverished by spending a large portion of the family budget on drink.
Not everyone was content with this state of affairs. The same Victorian-era impulse toward reform that led to the abolition of the slave trade and to efforts to secure more rights for women soon led to a crusade to do something about the alcohol problem. Many early efforts emphasized personal reform. People were asked to take a pledge not to use alcohol, but reformers quickly realized that the temptations posed by saloons and bars were too strong to be overcome by individual efforts alone. They began to vilify saloons as evil places harmful to society as a whole, an attitude that eventually was reflected in decisions of the Colorado Supreme Court.
On March 20, 1874, a "Temperance Alliance" was organized in the town of Oberlin, Ohio.3 Oberlin had been founded by two Presbyterian ministers who "discovered a shared dissatisfaction with what they saw as the lack of strong Christian morals among the settlers of the American West."4 Oberlin played a strong role in the movement for the abolition of slavery, and was a well-known stop on the "Underground Railroad" by which slaves escaped to freedom. It was also a hotbed of temperance, and eventually would become the birthplace of one of the most powerful and successful organizations leading the push for alcohol prohibition.
In 1888, spurred by efforts of the Oberlin Temperance Alliance, the state of Ohio passed what became known as a "local option law."5 Local option laws permitted communities and their subdivisions—often as small as a single precinct—to forbid the sale of alcohol within their borders. These laws were based on a sound strategic insight. Rather than attempt to ban the sale of alcohol outright on a statewide basis, local option statutes took a gradual approach by permitting smaller subdivisions to go "dry." Once a significant portion of a state had enacted prohibition in this piecemeal fashion, an effort would then be made to enact a statewide ban on alcohol.
Flush with success in its Ohio "local option" effort, the Oberlin Temperance Alliance decided to create a new organization to attempt to get local option laws passed in other states. This new organization was known as the Anti-Saloon League. Its first state branch, in Ohio, opened for business in 1893.6 The Colorado branch was founded just six years later, in 1899.7
Local Option Comes to Colorado
By the turn of the century, several localities in Colorado had prohibited the sale of alcohol within their borders, and in 1907, the Colorado Legislature passed a statewide local option law.8 This statute, similar to those in other states, permitted cities, towns, wards, ward subdivisions, districts, and precincts to vote themselves "anti-saloon territory," in which "the keeping and sale of intoxicating liquors is prohibited, except as provided in this act."9
In 1908, twenty municipalities had voted themselves dry under the local option law.10 Portions of Denver also went dry.11 By 1910, 112 municipalities reportedly had gone dry, and it was estimated that two-thirds of Coloradans lived in dry territory.12
The Challenge of Schwartz v. People
The new law soon drew a court challenge. In Schwartz v. People, a saloon-keeper named N.L. Schwartz was convicted of violating the local option law by selling intoxicating liquor in Denver’s Ward 12, which had been voted anti-saloon territory.13 Schwartz did his saloon-keeping in Precinct 4, which was located within Ward 12. Interestingly, Precinct 4’s voters had voted down a referendum to make the precinct anti-saloon territory. Even so, this did not save Schwartz from being convicted and fined for selling liquor in a dry ward. The district court reasoned that "wet" Precinct 4 was actually part of dry Ward 12, and that it was the local option status of the larger subdivision that controlled.
On appeal, Schwartz raised one big issue, and one narrower one. The big issue was whether the local option law was valid and constitutional. The narrower issue was whether a precinct could remain wet if it was located within a dry ward.
The Colorado Supreme Court considered the larger constitutional issue first. Schwartz had claimed a "common-law right . . . to traffic in intoxicating liquors,"14 but the Court rejected any claim to the existence of such a right. It noted that "police control over [the sale of alcohol] is today exercised, as a matter of public necessity and prohibition, because of the well-known undeniable and indescribable evils attending [its] misuse or excessive use," and "affirm[ed] as a fact, generally recognized, that liquor in its very nature is an article dangerous in its use, to the morals, good order, health and safety of the people."15 The Court concluded that "[i]n this state there never has been, and is not now, an inherent, natural or common-law right in the citizen to sell intoxicating liquors."16
In an argument that would be employed throughout the next century against a broad range of vices, the Court rejected the assumption that the abuser of alcohol harms only himself, thereby creating a "victimless crime":
There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But, as it leads to neglect of business and waste of property and general demoralization, it affects those who are immediately connected and dependent upon him. By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dramshop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying.17
Given the dangers of alcohol, the Court concluded, the legislature was empowered to regulate it, even to the point of prohibition.
Turning to Schwartz’s narrower issue, the Court again began with a broadside against the evils of drink:
[I]t may . . . safely be affirmed, that the traffic in intoxicating liquors is generally recognized and regarded as an undesirable and obnoxious business, one of the gravest evils of the age, a constant menace to society, not alone from a moral standpoint, but from an economic one as well, and not to be favored or encouraged.18
The Court determined that the anti-saloon law "gives to each political subdivision mentioned, small or large, a chance to bespeak for such division, anti-saloon territory, and to make of every subdivision so speaking, anti-saloon territory throughout its entire extent."19 Thus, "[t]here can be no wet precinct in a dry ward, or town, or city."20 Moreover, the Court continued:
[O]nce any subdivision becomes anti-saloon territory the only way to restore it to its original status of license or saloon territory is to secure a favorable vote to that end in the identical territory. No vote of reversal, in any other territory, although it be in a ward including such precinct, can affect the status of anti-saloon territory once erected.21
Accordingly, the Court upheld Schwartz’s conviction.
The "Medicinal" Exception
The ruling in Schwartz seemed a devastating blow to those who wished to drink but who found themselves in a dry subdivision of the state. Tipplers soon found that the legislature had left them an out, however. Under the local option act, even in dry portions of the state, the sale of medicinal alcohol was still permitted. The "medicinal" provision provided that
it shall be a good defense in any prosecution under this act, to show that the sale in question was at retail, by a regularly licensed pharmacist, for exclusively known medicinal purposes, and that it was sold only in good faith upon written prescription issued, signed and dated in good faith by a duly licensed physician in active practice, and that the prescription was used but once.22
The result was predictable. Drugstores had long been involved in selling alcoholic products for medicinal purposes. Now, in many areas of Colorado, their saloon-based competition had been removed. Like Jay Gatsby, who found drugstores to be a convenient means of peddling illegal hooch during the Prohibition Era,23 drugstore owners soon found themselves tempted to stretch the law and provide intoxicating liquors to drinkers with dubious medical need.24
Alcohol as Medicine
What sort of "legitimate medicinal uses" did alcohol have during this time period? In fact, there were a number of them. Particularly in the 19th century, many doctors considered alcohol to be a general tonic, believing that it "stimulated and supported the system, prevented fevers and infectious diseases, and furnished the stamina necessary for hard physical labor."25 Small doses were believed to be "therapeutically beneficial in stimulating the ‘vital powers’ essential to the natural healing processes."26 Orthodox medical science—borrowing a page from "irregular" medicinal schools such as homeopathy—had concluded that patients were suffering from depleted energy and enfeeblement brought on by the technological overstimulation of the Industrial Age.27 Alcohol—especially whiskey, brandy, and wine—was considered a stimulant that could remedy these conditions by strengthening the body and promoting natural healing.28
Other forms of stimulants or narcotics also were used as medicine. Patent medicines were popular even with temperance advocates,29 though they "contained significant quantities of alcohol as well as opiates, cocaine, strychnine, arsenic, and/or chloral hydrate."30 Given the popularity of such intoxicant-fortified nostrums, it is not surprising that an exemption for medicinal use of alcohol found its way into Colorado’s local option statute.
To be sure, not everyone during this period agreed that alcohol was good medicine. To give one example, in 1900, Martha M. Allen, Superintendent of the Department of Non-Alcoholic Medication for the National Woman’s Christian Temperance Union, published a book in England on the subject, in which she advocated strict abstinence from the use of medical alcohol.31 In her 429-page tract against medicinal alcohol, Allen confronted the reader with a "parade of horribles" concerning the toxic effects of alcohol on the human body. She cited at length the opinion of numerous medical experts who had concluded that alcohol was "more harmful than beneficial, and that medical practice would be upon a higher plane, were it driven entirely from the pharmacopoeia."32 From a less scientific standpoint, during the later period of national alcohol Prohibition, when it was revealed that Indiana government officials had covertly obtained whiskey for relatives who were severely ill, a fundamentalist minister in New York opined that "[t]hey should have permitted members of their families to have died and have died themselves rather than violate their oaths of office."33
Medicinal Alcohol in the Colorado Courts
A couple of cases dealing with medicinal alcohol during this period illustrate the challenges it posed for the Colorado courts. Clayton v. People34 involved an interesting overlap between the local option laws and statewide liquor licensing and taxing authority. In 1902, the legislature had passed a law requiring that each place where alcohol was sold, including drug stores, pay an annual license fee of $25 to the State Treasurer to receive a state license to sell alcohol. Under the local option act, however, no license to sell alcohol could be issued in anti-saloon territory (which, incidentally, was also known as "no-license territory").
Charles J. Clayton was a pharmacist who operated a retail drug store at 1775 Humbolt Street in Denver (within anti-saloon territory), where he sold medicinal liquor. He challenged his conviction for selling without a license from the State Treasurer. He claimed that because he was selling alcohol for medicinal purposes only, he did not need a State Treasurer’s license. The Colorado Supreme Court disagreed. The 1902 act requiring a state license was amended in 1911, after the passage of the local option act. Because the amendment did not exempt druggists who sold prescription alcohol in anti-saloon territory from obtaining licenses, the Court reasoned, no such exemption existed. Clayton and other druggists were therefore subject to the state licensing requirement.35
In Fehringer v. People,36 defendant Adolph Fehringer was convicted of selling intoxicating liquor within anti-saloon territory—specifically, the city of Colorado Springs. He moved to quash the information against him, which did not specify the particular place where he sold the liquor, the type or quantity of liquor he sold, or to whom he sold it. Here, the Colorado Supreme Court ruled that these deficiencies were fatal to the judgment against him. Fehringer was a licensed pharmacist, "and by the production of a prescription from a duly licensed physician, as required by the act, upon which the sale was made, he could secure immunity against any groundless prosecution. But how could he know what prescription to produce unless furnished with the name of the purchaser of the liquor, the sale of which constitutes the alleged offense?"37 Given the medicinal exception, the pharmacist charged with unlawful sale had to be notified of the identity of the alleged buyer. Accordingly, his conviction was overturned.
Colorado Enacts Statewide Prohibition
The local option act did not last for long. In 1916, Colorado enacted statewide alcohol prohibition. Nationwide Prohibition went into effect four years later. Both Colorado’s law and the Volstead Act, which implemented nationwide Prohibition, contained exceptions for medicinal alcohol. Both exceptions were quickly and widely abused.
Colorado poet laureate Thomas Hornsby Ferril reported, for example, that after statewide prohibition was approved in 1916, "long lines of lame, halt and blind citizens at [the] county recorder’s office [in Denver were] seeking[ing] permits to have liquor shipped to them."38 Of course, the Volstead Act led to a proliferation of illicit "drugstores," whose profits came from the dispensing of "medicinal" alcohol to thirsty patrons. Abuses such as these no doubt contributed to the demise of Prohibition nationally and in Colorado less than two decades later.
1. Colo. Const. art. XVIII, § 14.
2. Ingold, "Marijuana in Colorado has a long history and an uncertain future," The Denver Post (Dec. 31, 2013), www.denverpost.com/news/ci_24825864/marijuana-colorado-has-long-history-and-an-uncertain.
3. Cherrington, History of the Anti-Saloon League 10 (American Issue Pub. Co., 1913).
4. See en.wikipedia.org/wiki/Oberlin,_Ohio.
5. Cherrington, supra note 3 at 13.
6. Id. at 19-20.
7. Id. at 54.
8. Mills’ Colo. St. 1912, Ch. 100, §§ 4660-4676.
9. Id. § 4660.
10. Longley, What Measure Ye Mete: The Life and Times of Judge Halstead Ritter 16 (iUniverse, 2003).
12. Id. at 20.
13. Schwartz v. People, 104 P. 92, 93 (Colo. 1909) (en banc).
14. Id. at 95.
17. Id. at 96.
18. Id. at 104.
19. Id. at 105.
21. Id. at 106.
22. Mills’ Colo St. 1912, Ch. 100, § 4673.
23. Fitzgerald, The Great Gatsby 133 (Scribner, 2004). F. Scott Fitzgerald’s fictional account was not far from reality. "[F]aux pharmacies that were really just liquor retailers" were a serious problem for law enforcement during the national Prohibition period. Okrent, Last Call: The Rise and Fall of Prohibition 197 (Scribner, 2010).
24. This unintended expansion of the law was not unique to Colorado. A month after Washington State went dry, in Spokane alone 34,000 prescriptions were issued for medicinal liquor—in a town with 44,000 registered voters. Watman, Chasing the White Dog: An Amateur Outlaw’s Adventures in Moonshine 102 (Simon & Schuster, 2010).
25. Fahey, Ed., Alcohol & Drugs in North America: A Historical Encyclopedia 12 (ABC-CLIO, 2013).
26. Id. See also, e.g., Miller, Alcohol: Its Place and Power 46 (Lindsay & Blakiston, 1859) ("What is the alcohol doing? Not feeding the man in reality, as one might be apt to suppose; but stimulating the nervous system; spurring the nerves and nerve-centres, and keeping them awake, when otherwise they would go to sleep, and leave the vital functions, first to flag, and then to fail utterly.")
27. Id. at 13; Miller, supra note 26 at 54-55 ("The clerk, the shopman, the sewing girl, the factory worker, the merchant, the minister, the teacher, the student, the statesman—every laborer by hand and head is, in these days of rivalry and competition, prone to overwork. He sets himself to a daily task beyond what his natural powers can overtake without help; and . . . he bethinks himself of a remedy.") However, Miller did not feel that use of alcohol was an effective remedy, particularly over the long term, for excessive work-based stress. See id. at 56.
28. Id. at 13-14.
29. "The Victorian woman who pushed for temperance during the day but took to her tonics at night is something of a stereotype. Still the material record can be indicative of just such a scenario." Nelson, Denver: An Archaeological History 202 (Univ. of Pa. Press, 2001).
30. Fahey, supra note 25 at 13-14.
31. Allen, Alcohol: A Dangerous and Unnecessary Medicine: How and Why (Chas. C. Haskell & Son, 1900).
32. Id. at 6.
33. Okrent, supra note 23 at 200.
34. Clayton v. People, 123 P. 662 (Colo. 1912).
35. Id. at 664.
36. Fehringer v. People, 147 P. 361 (Colo. 1915).
37. Id. at 364.
38. Longley, supra note 10 at 22 (quoting Ferril & Ferril, The Rocky Mountain Herald Reader 184 (William Morrow, 1966)).
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