Part I: Subnational Actors, Narcotics, and the Scope of the States' Powers
IV. Expanding the State’s Response to Opium to Reach New Groups and Drugs
a fifty year period beginning in 1883, “judges saw equal protection arguments as unserious” and did little to address “discriminatory treatment under formally neutral laws.”63
Before Congress began adding its own criminal statutes to police narcotics, then, federal jurists immunized local and state anti-narcotic laws—and, indeed, nearly all local and state laws, criminal or otherwise—from invalidation on federal constitutional grounds. With the threat of federal intervention into questions of state politics lower after the 1870s, lawmakers acted with increasing confidence that they had found in opium restriction a means to target Chinese Californians that would survive attack in the federal courts. They would soon begin expanding their anti-narcotic efforts, criminalizing additional practices and substances. Law enforcement officers would continue, through subsequent expansions to anti-narcotics law, to police Chinese Californians more than any other group in the population. Equal protection no longer worked to stop them.
IV. Expanding the State’s Response to Opium to Reach New Groups and Drugs
and set out to ensure that only licensed pharmacists sold controlled drugs. The latter placed a number of restrictions on the selling and dispensing of drugs, including a prohibition on doling out narcotics to customers not in possession of a valid prescription. It also brought a number of new substances under state control, including morphine, codeine, heroin, and cocaine.
Importantly, both focused in large part on commerce in drugs, placing restrictions on the
individuals permitted to sell narcotics and the circumstances under which they could do so.64 The Board promulgated an official interpretation of the statute in August, and two months later its Legal & Complaint Committee drafted a letter to explain the new Poison Law.65
California passed these, its first broad control statutes, at the same time that many other state legislatures also enacted similar laws. The first decade of the twentieth century proved something of a heyday for narcotics control, with more than 35 states passing legislation of this type during the ten-year period. Although they differed as to substances covered, with a fair number of states first addressing cocaine and then later adding opiates to their laws, they resembled each other in forbidding the sale of controlled drugs absent a valid prescription.
Notably, relative to its immediate neighbors, California’s Poison Law came late. Nevada prohibited the sale or dispensing of opium without a prescription thirty years before California, and Oregon did so twenty years earlier.66
64 Cal. Stats. (1907) 765-72. In that regard, they only called on the police power in the same way that the San Francisco Board of Supervisors had when it enacted the 1889 ordinance challenged in Hong Shin.
65 Board of Pharmacy Minutes, January 16, 1907; Board of Pharmacy Minutes, August 3, 1907; Board of Pharmacy Minutes, October 19, 1907. The Board’s self-described “interpretation” of the Poison Law was little more than a parsing out of the law’s provisions into separate rules concerning when a patient must have a prescription to receive a drug.
66 United States Public Health Service, State Laws Relating to the Control of Narcotic Drugs and the Treatment of Drug Addiction (Washington: Government Printing Office, 1931). Arkansas, Colorado, Illinois, Maine, Montana, Nevada, Ohio, and Oregon, plus the Territory of Arizona, were the only states to pass a control law prior to 1900.
The Board took charge of enforcing the new laws, and it hired a group of investigators for this purpose.67 The Board’s early enforcement record underscores one way that concern over narcotics use had shifted since lawmakers in San Francisco, Stockton, and Sacramento first considered the issue. As a function of the laws’ focus on restricting the sale of drugs and also of the pharmacists who comprised the Board, a considerable share of its efforts focused on retail druggists and their clerks. To explain its interest in these professionals, the Board invoked its duty to ensure Californians a safe supply of drugs.68
The Board immediately brought its power to bear against retail druggists and their clerks.
It brought a large number of cases against druggists who allowed an unlicensed clerk to serve customers. It also brought cases against pharmacists it accused of doling out morphine, cocaine, and laudanum without valid prescriptions.69 Such cases required little in the way of investigative work: A Board envoy needed only to enter a pharmacy and either observe sales being made by unlicensed clerks or endeavor to buy a narcotic without a prescription.
Even as the Board turned its attention to drug store purveyors and their employees, its investigators continued to police Chinese Californians and smoking opium. When the Board’s investigators turned their focus away from retail pharmacies during the early months of
enforcing the new Poison Law, Chinese Californians operating opium dens were the only other group that drew their attention.70 And, it is worth noting, state investigators’ efforts augmented,
67 The Poison Law anticipated a build-up in the Board’s inspection force. It required that sellers of controlled substances keep a detailed record of all such transactions, which record book must “always be open for inspection by the proper authorities.” Cal. Stats. (1907), 771.
68 San Francisco Call, July 11, 1907. Charles Whilden, then secretary of the Board, called its drive to identify and prosecute druggists violating the two laws a “matter of life and death:” Without the Board’s intervention, the
“customer has no means of knowing whether the clerk to whom he hands his prescription knows how to fill it.”
69 See generally Investigation and Violation Log Book 1906-1909, Department of Consumer Affairs - Board of Pharmacy Records, R126.F3888-110, California State Archives [hereinafter Log Book].
70 During the first three months the Board enforced the new laws, the Board prosecuted four cases against Chinese Californians in Los Angeles for maintaining opium dens. These four were the only defendants who neither owned nor worked at a retail pharmacy. Ibid. See also Board of Pharmacy Minutes, Oct. 23, 1907 (indicating that the
but did not replace, other law enforcement efforts in California. Police officers continued to enforce municipal ordinances and state laws relating to opium against Chinese Californians with the same dedication they had before the state expanded its response to California’s narcotic problem.71 As early as the first decade of the twentieth century, in other words, the overlapping capacities of local and state officials had already become a fixture of California’s emerging penal state.
The Pharmacy and Poison laws also made opium restriction a subject of interest to a new group of Chinese Californians—the merchants involved in the wholesale opium trade. Several meetings between the Board and representatives of the Chinese Six Companies, in October 1908, drove home the consequences of the two laws for Chinese merchants.72 One of these meetings, at the Six Companies’ headquarters, counted the Companies’ presidents, representatives of the
“various drug and mercantile interests of the Chinese quarter,” as well as an interpreter and O.P.
Stidger, an attorney, among its audience members. According to the Board, the meeting was intended to discuss “the restriction of the trade in opium,” especially its wholesale sale “by Chinese in California.”73 If only licensed pharmacists could lawfully dispense opium, and only pursuant to a valid physician’s prescription, Chinese merchants faced a difficult situation. Their customers—opium den keepers and unlicensed Chinese druggists, prominent among them—
Board’s inspectors visited 177 drug stores and 170 general stores during the first quarter after the legislature passed the Poison and Pharmacy Laws); San Francisco Call, July 11, 1907.
71 The California press continued to cover instances where local police officers arrested Chinese Californians for opium-related infractions. See, e.g., Los Angeles Herald, May 20, 1908; July 11, 1908; San Francisco Call,
December 3, 1908. It also carried reports where police arrested non-Chinese suspects. See, e.g., Los Angeles Herald, March 15, 1907; San Francisco Call, May 26, 1908.
72 See Board of Pharmacy Minutes, October 24, 1908; Board of Pharmacy Minutes, October 27, 1908. For a recent study of the Chinese Six Companies, see Yucheng Qin, The Diplomacy of Nationalism: The Six Companies and China’s Policy Toward Exclusion (Honolulu: University of Hawai’i Press, 2009). The first part of the conference involved the Board describing the source of its authority to regulate opium in California. Tellingly, before the Chinese attendees asked a single question, a member of the Board had to explain to them who comprised the Board of Pharmacy and had to elaborate on its duties. Even as their invitation to the Board suggests they understood something had shifted in their former freedom to traffic in opium, these representatives of San Francisco’s Chinese merchants still saw the basis and scope of the Board’s authority as obscure.
73 Board of Pharmacy Minutes, October 27, 1908.
could no longer lawfully sell opium. The Poison and Pharmacy laws thus raised the possibility that these wholesalers would be left without a licit customer base.
The Board’s meeting demonstrated that a sense of confusion concerning the state’s opium strictures could be counted as one byproduct of California’s multi-jurisdictional approach to anti- narcotic legislation and enforcement. Neither of the state’s 1907 laws attempted to reach private use or possession of opium but instead targeted parties who sold narcotics illicitly.74 The
distinction between commercial and non-commercial activities remained opaque to many Californians, though, including the merchants who met with the Board. Through an interpreter, one of the meeting attendees asked, in a possible reference to smoking opium without inhaling the fumes, whether it would be a violation of the Poison Law for “a Chinaman to smoke opium when he did not take it into his system.” The question suggests that Chinese Californians
believed it unlawful to smoke opium and sought a means of continuing to do so without running afoul of the law. Without clarifying the precise practices the law condemned, a Board member responded that the Board had “no jurisdiction over the smoking of opium, only over the sale of it.”75 The attendee’s question indicates that the overlapping laws to which Californians were subjected may have had a chilling effect on still-lawful practices; the Board’s response suggests policymakers’ comfort with that consequence.
Policymaker concern with Chinese-caused white demoralization also crept into the Board’s conversation with the leaders of the Six Companies. Board members asked only a small number of questions at the conference, but the few matters they raised revealed a continuing anxiety that Chinese Californians might yet be selling opium to whites. One member queried:
“What percentage of the people who trade in Chinese drug stores are white people?” The Board
74 See Cal. Stats. (1907) 766-72.
75 Board of Pharmacy Minutes, October 27, 1908.
sought to learn, that is, how many white Californians secured opium from Chinese druggists.
When the Board’s audience replied that but few customers of the Chinese drug stores were white, the Board responded that such “sales would be contrary to California law.”76 Despite the Board’s correct pronouncement of the law, its answer suggested that the customer’s race had relevance in determining whether a specific transaction ran afoul of the state’s narcotic laws.
Neither the Pharmacy Law nor the Poison Law contained any provision for such a consideration;
all sales by unlicensed druggists violated the law. Nevertheless, the discussion reveals that the prospect of white users consuming Chinese-provided drugs continued to irk lawmakers.
The 1907 laws, then, reflected the state’s broadening view of which persons and what practices comprised the core of its drug problem, even as Chinese Californians continued to bear special notice. Neither the initial impetus behind opium den ordinances nor lawmakers’ original focus on Chinese Californians suggested the need for so wide or aggressive a regulatory
apparatus. Drug laws’ utility in policing vulnerable groups, a budding consensus that narcotics had primarily negative consequences, and a shifting of view of what the state was empowered to do, though, coalesced to make an expansion of the state’s response to narcotics appear a
foregone conclusion.