Part I: Subnational Actors, Narcotics, and the Scope of the States' Powers
II. Exceeding the Late-Nineteenth-Century Limits of the State’s Police Power
“break up opium dens.”31 Municipal policymakers, then, began the work of using opium criminalization to shrink the state’s Chinese population. On that foundation, state-level legislation and even more aggressive municipal ordinances would soon follow.
II. Exceeding the Late-Nineteenth-Century Limits of the State’s Police Power
Lawmakers in Stockton pushed their early response to opium furthest. In October 1883, they passed an anti-opium ordinance that, while aimed at dens, featured language broad enough to criminalize smoking opium much more generally.33 The new ordinance declared opium smoking “injurious to the public health, contrary to public morals, and against the peace and good order of the city.” Like the California law that preceded it, the ordinance proscribed maintaining or visiting a room or place for the purpose of smoking opium. It also prohibited remaining in a place or room while others smoked opium; remaining in the “vicinity of” any place “where two or more persons [had] assembled for the purposes of smoking opium;” and the assembling of two or more people in any place for the purpose of smoking opium. As the state supreme court aptly put it when it reviewed the law, the ordinance was “broad enough to prohibit opium-smoking under all circumstances, except when the person ke[pt] moving.”34
Nearly four years later, in March 1887, police arrested two Chinese Californians, Sic and Sam Lee, for violating the Stockton anti-opium statute. According to police, the two men had met to smoke opium in a room at the intersection of El Dorado and Washington Streets, in the center of Stockton’s then-thriving Chinatown. Convicted in the local police court, Sic appealed his conviction, first to the Superior Court of San Joaquin County and later to the California Supreme Court.35
San Francisco attorney Lyman Mowry represented Sic. Born in Rhode Island in 1848 to parents who moved to California six years later, Mowry received his law degree at Harvard and began practicing in San Francisco in 1871. By 1887, he had earned a reputation in California for
33 Stockton’s city leaders appear to have acted in the aftermath of a publicized effort by local police to break up opium dens within the city. See Sacramento Daily Union, June 2, 1883.
34 Charter and General Ordinances of the City of Stockton (1885), 80-81; Cal. Stats. (1881) 34; In re Sic, 73 Cal. at 144 (internal punctuation omitted).
35 Certification of Sheriff Thomas Cunningham at 1-2, In re Sic, 73 Cal. 142 (1887); In re Sic, 73 Cal. at 143. On Stockton’s Chinatown, see Sylvia Sun Minnick, The Chinese Community of Stockton (Chicago: Arcadia Printing, 2002), 12.
representing Chinese clients on matters ranging from criminal appeals to contract actions to habeas proceedings. Beginning in the 1880s, Mowry’s public profile increased as he represented Chinese immigrants threatened with deportation under the federal exclusion acts. He was
increasingly accused of being a “crooked Chinese lawyer” whose “principal professional practice” was “the devising of schemes to evade the laws for the exclusion of the Chinese.36
Mowry honed in on Stockton’s use of the state police power in Sic’s appeal. He made two principal arguments. First, he argued that the city derived its authority from the state’s police power, which he saw as too limited to pass the Stockton ordinance. Second, Mowry pointed to state-level opium legislation and argued that municipalities like Stockton could only legislate on matters already criminal under state law when granted express permission to do so by the state legislature.37 To the latter argument, the city’s attorney responded by claiming that only municipal laws that conflicted with state law were impermissible. To rebut Mowry’s argument concerning the limits of state power, Stockton’s attorney maintained that the state’s police power was capacious enough to “prohibit all things hurtful to the comfort and welfare of society.” He described opium smoking as having “evil effects,” and posited that opium smoking constituted a sufficient menace to justify this exercise of the police power.38
36 For criminal appeals, see, e.g., People v. Ah Lee, et al., 60 Cal. 85 (1882); People v. Lee Chuck, 74 Cal. 30 (1887);
People v. Tarm Poi, 86 Cal. 225 (1890); People v. Chun Heong, 86 Cal. 329 (1890). For contract matters, see Ah Jack v. Tide Land Reclamation Co., 61 Cal. 56 (1882); and Quan Wye v. Chin Lin Hee, 123 Cal. 185 (1898). For another habeus proceeding, see Ex parte Young Ah Gow, 73 Cal. 438 (1887). For challenges to exclusion findings, see, e.g., In re Tung Yeong, 19 F. 184 (N.D. Cal. 1884); In re Tom Yum, 64 F. 485 (N.D. Cal. 1894); In re Gee Hop, 71 F. 274 (N.D. Cal. 1895); Lee Kan v. United States, 62 F. 914 (9th Cir. 1894); Ong Mey Yuk v. United States, 113 F. 898 (9th Cir. 1902); Ow Yang Dean v. United States, 145 F. 801(9th Cir. 1906). For three statements of Mowry’s reputation as an attorney for Chinese Californians, see Daily Alta California, July 28, 1888; October 19, 1888;
November 26, 1889.
37 Pet’r’s Br. at 4, 6, In re Sic, 73 Cal. 142 (1887).
38 Resp’t’s Br. at 1, 3, 6-8, In re Sic, 73 Cal. 142 (1887). “Upon the evil effects of smoking opium,” he contended,
“it seems hardly necessary to enlarge.” He continued: “It is too well known to all that a [persistence] in the habit results in the complete moral, mental, and physical ruin of the smoker.” As for Mowry’s argument concerning what ordinances municipal governments might enact, Stockton’s attorney appears to have accurately described the letter of the law. According to the California Supreme Court, the state constitution permits “any county, city, town, or
The court sided with Mowry. In so doing, it proclaimed the state’s police power to be too limited to prohibit opium smoking.39 In sweeping language, the court averred that prohibiting vice, absent some direct harm to the rights of another, “is not ordinarily considered within the police power of the state.” “The object of the police power,” it contended, “is to protect rights from the assaults of others, not to banish sin from the world or make men moral.” Concern over personal freedoms drove the court’s pronouncement. “There seems to be an instinctive and universal feeling,” the court explained, “that this is a dangerous province to enter upon, and that through such laws individual liberty might be very much abridged.” And, in a move from which later decisions would diverge, the court analogized the anti-opium law to proposed temperance statutes and claimed that both represented impermissible infringements on personal liberty.40
The question of the state’s power to regulate the private use and possession of opium came before the court in an era when legal attention to the police power ran high. According to the Sic court, the state could only use its police power to address harms visited on the rights of others. It could not, in other words, dictate private behavior incapable of directly injuring another. In so maintaining, the Sic decision reflected one of the widely accepted boundaries of police action during the second half of the nineteenth century. In his influential 1886 treatise on the subject, Christopher Tiedeman concluded that the maxim sic utero tuo, ut alienum non laedas—the principle that one must use his her property so as not to injure others—defined the limits of the states’ police power.41 Thomas Cooley, another authority on the subject, also
township” to “make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws.” Ex parte Cheney, 90 Cal. at 620.
39 Importantly, the court rested its decision on its finding that Stockton’s ordinance conflicted with the state’s Poison Law. In re Sic, 73 Cal. at 148.
40 In re Sic, 73 Cal. at 143-48.
41 Christopher Tiedeman, A Treatise on the Constitutional Limitations of the Police Power in the United States (St.
Louis: The F. H. Thomas Law Book Co., 1886), vi-viii.
described the states’ power as bounded by this maxim.42 Under such a conception of the police power, prohibitions on what one did privately, absent some injury to another, could not stand.
That principle, derived from nuisance law, guided many of the California Supreme Court’s decisions during the second half of the nineteenth century. Thirty-one years before its decision in Sic, in striking down a California Sabbath law in Ex parte Newman, the court had defined the limits of the state’s police power by turning to this nuisance principle. To distinguish between legitimate government acts and those that usurped “the reserved rights of the citizen,”
the court intoned, the “true rule of distinction would seem to be that which allows to the Legislature the right so as to restrain each one, in his freedom of conduct, as to secure perfect protection to all others from every species of danger to person, health, and property.” That view of the state’s power continued to have purchase in California as the nineteenth century drew to its close. In an 1896 decision on another so-called “Sunday Law,” the court proclaimed that
“every individual citizen is to be allowed so much liberty as may exist without impairment of the equal rights of his fellows.”43
That view of the state’s authority, though, coexisted in the second half of the nineteenth century with another conception of the police power that might allow the legislature to act in the absence of specific, identifiable harms. Only three years after it had invalidated the Sabbath law in Newman, for instance, the California Supreme Court upheld a second Sabbath law as a valid exercise of the police power. In so doing, the court declared: “The general duty of legislation is
42 Thomas Cooley, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the Union, 6th ed., (Boston: Little, Brown, and Company, 1890), 704-746. I cite the sixth edition to make clear that, as late as 1890, legal scholars continued to hold and teach this view of the police power. That limitations existed on state legislative action premised on its police power did not mean that it represented a nugatory power before the last decades of the nineteenth century. On the contrary, Cooley catalogs just some of the voluminous laws and regulations properly founded on the police power in earlier periods.
43 Ex parte Newman, 9 Cal. 502, 507-08 (1858); Ex parte Jentzsch, 112 Cal. 468, 472-73 (1896). Newman involved a state law that, “for the better observance of the Sabbath,” forbade merchants from conducting business on
Sundays. Jentzsch involved a law that prohibited barbers from working or opening their shops on Sundays.
cast upon [the Legislature,] and that duty is to be exercised for the general welfare.” As early as 1861, then, the court had described the state’s police power as a basis for positivist legislation to enhance the general welfare, and not simply as the authority to address public harms.44 This broader view of the police power underwrote a number of acts in California, including municipal gambling ordinances, as the nineteenth century neared its end.45
Tiedeman’s treatise, in fact, reveals his recognition that state lawmakers had begun to forge this more expansive view of the police power. Tiedeman acknowledged a then-recent trend for parties complaining of one “social evil” or another to raise a call for legislation or, as
Tiedeman called it, “governmental interference.” Indeed, his treatise was intended to contain this trend and to persuade jurists, legislators, and the public that all state constitutions, the police power notwithstanding, contemplated limits on legislative powers. 46 His very effort at proscription betrayed the widening of the police power then under way.
Though the court offered no guidance concerning how the two conceptions of the police power fit together, Sic makes clear that, as late as the 1880s, California courts continued to hinder lawmaker attempts to use the police power to encroach on long-cherished personal freedoms. Even as the bounds of the police power began to expand, judges in California
frequently refused to allow lawmakers to regulate beyond acts they could link to an affirmative public harm—even when lawmakers acted to make life more difficult for Chinese Californians and, they hoped, reduce their numbers. In fact, at least in the nineteenth century, the court often went to great lengths to describe a particular behavior as inflicting a public harm even after it had started to develop a view of the police power that would have permitted action untethered from
44 Ex parte Andrews, 18 Cal. 678 (1861).
45 See, for instance, the California Supreme Court’s decisions upholding two different San Francisco gambling ordinances, in Ex parte Tuttle, 91 Cal. 589 (1891); and Ex parte McClain, 134 Cal. 110 (1901).
46 Tiedeman, A Treatise on the Constitutional Limitations, vi-viii.
such harms.47 When the court decided Sic, it was unable to see in opium possession such a public harm and was unwilling to set aside the nuisance-based view of the police power that still had considerable purchase in the state.
Nonetheless, the broader view of the police power that gained traction over the second half of the century presaged the greater restrictions the court would soon countenance. The court’s resolve to protect Californians’ individual liberties from state encroachment, in other words, would wane in the years ahead, As that resolve weakened, the Chinese Californians who bore the brunt of municipal and state anti-opium laws were left with one fewer place to turn to fight the narcotic legislation that targeted them. Within 25 years, the California Supreme Court would find that the state had the power to criminalize possession—the very act for which it found state authority lacking in Sic.