"Medicinal" Alcohol and Colorado's Local Option Law, 0614 COBJ, 2014, June, Pg. 47
| Author | Frank Gibbard. |
Columns Historical Perspectives
"Medicinal" Alcohol and Colorado's Local Option Law
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, frank_gibbard@ca10.uscourts.gov. 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.
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...
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