The Drift Away From Prohibition

FIFTY years ago, it seemed probable that the policy of state prohibition of the liquor traffic would prevail in most states in which any serious effort was made to deal with the evil. Maine led the way in 1846, and its initiative was so generally recognized that for a long time state prohibition, wherever adopted, was known as “the Maine law.” Prohibitory laws were enacted in Massachusetts and Vermont in 1852, and in New Hampshire in 1855; and Rhode Island, Connecticut, Delaware, Indiana, Kansas, Nebraska, Michigan, Illinois, Iowa, and North and South Dakota, at different times and for varying periods, adopted the same system, enacted into laws or embedded in their constitutions. But of these fifteen states which at one time or another have tried state prohibition, all but three — Maine, Kansas, and North Dakota — have abandoned it.1

It would be hasty to conclude that this drift away from state prohibition points to a diminished sense of the evils of intemperance or a deadening of the public conscience. Rather, it is the result in part of the development of new conditions, and in part of a deepening conviction that the problem cannot be dealt with by general enactments or at long range. If the abandonment of prohibition had been attended by an increase of drunkenness, both might be attributed to a lowered moral tone in the population. But the reverse is true. Whatever fluctuations may appear in short periods of time or in some localities, there can be no doubt that during the last half century there has been a great improvement in the habits of the American people at large as regards intemperance. The excessive use of intoxicating liquors is not so common as it was fifty years ago. It carries with it a deeper social stigma. It is taken into account in life insurance tables and premium rates; and to an increasing extent it is discouraged in a highly practical way by the regulations of corporations and other large employers which require strict temperance if not actual total abstinence of their employees. We have therefore to explain a change from a more rigorous to a less rigorous form of legislation against the liquor traffic, which is coincident with a deepening detestation of intemperance and a general improvement in sobriety.

One explanation of this phenomenon is the growth of the population and the change in its character wrought by immigration. The population of the United States in 1900 was more than three times as great as in 1850. The average annual increase by immigration in the decade prior to 1850 was 142,733; in the decade prior to 1900 it was 385,115. The communities over which the system of prohibition was extended in New England fifty years ago, and later in other states, were not only smaller but more homogeneous than they are to-day. The three states which have retained prohibition have to-day a population of only thirteen to the square mile; while the states which have abandoned prohibition have a population of ninety-eight to the square mile. Moreover, in the first group of states only fourteen per cent of the population is urban, while in the other group thirty-six per cent is urban. The weak point in the enforcement of state prohibition has always been its application to cities. As the population grows, therefore, and especially as it becomes increasingly concentrated in cities, it is to be anticipated that there will be a revolt against a system which takes no account of the different conditions of city and rural life, but imposes upon the cities through the votes of rural representatives restrictions which are repugnant to local sentiment. As these conditions continue and are intensified, one of two things is reasonably sure to follow: either the state prohibitory law is repealed, or its enforcement is practically suspended in the centres of population.

If the repeal of prohibitory laws signified the abandonment of the attempt legally to restrict the liquor traffic, it would be an occasion for grave concern. But it does not. It has resulted in every instance in the substitution of a local option system under which each local community is given power to prohibit the sale of liquor within its borders, and by the exercise of this power furnishes the support of local sentiment which is essential to the thorough enforcement of the prohibition. It is to be noticed, as affording ground for encouragement to those who deplore the existence of the legalized saloon as a promoter of intemperance, that not only has local option, direct or indirect, been adopted in 39 of the 45 states, but that the “dry” or nolicense area under its operations is steadily increasing. This is especially true in the Southern states. There usually the county is the voting unit. At last accounts, Alabama had 20 prohibition counties, 11 under the dispensary system, and 35 under license; Arkansas had 44 prohibition counties, 29 license, and 2 divided; Florida had 32 prohibition counties and 13 under partial prohibition; Georgia had 104 prohibition counties, and 33 license and dispensary; Kentucky had 47 prohibition counties, 35 with one license each, 19 with two licenses each, and 18 under license; Louisiana had 20 prohibition counties and 39 license; Maryland had 15 prohibition and 9 license counties; Mississippi had 65 prohibition and 10 license counties; Missouri had 12 prohibition counties out of 115; Tennessee had 84 prohibition and 12 license counties; Texas had 136 prohibition counties, 46 license counties, and 62 counties under partial prohibition; and West Virginia had 40 prohibition and 14 license counties.

In an article, “A Study of Local Option,” in the Atlantic Monthly for October, 1902, it was remarked: “It is significant that, while in each of the three New England states which have adopted prohibition there is increasing restiveness under the exactions of that system and the scandals which arise from it, there are no manifestations of discontent in the local option states.” Within six months after the publication of that article the restiveness in the prohibition states which had been noticed culminated in Vermont and New Hampshire in the repeal of the prohibitory law and the substitution of local option. In Vermont, the proposed change was submitted to a referendum February 3, 1903, and was adopted by a vote of 29,711 to 28,982, a majority of 729. The law went into effect at once, and the first elections under it were held four weeks after the referendum. The slender majority by which the law was adopted grew into a license majority of 5151 in the total vote at the first elections under it. Ninety-one towns voted for license; one hundred and fifty towns voted against it. In New Hampshire the law was not submitted to the people. It was enacted March 27, 1903, and special elections were held under it May 12. Fifty-seven towns and eleven cities voted in favor of license, and one hundred and sixty - three towns voted against license. The total license vote was 34,330; the vote against license was 26,630,— a license majority of 7700.

The simultaneous change of policy in these two conservative New England states is the most significant incident in the recent history of temperance legislation. It furnishes the most conspicuous illustration of the drift from state prohibition to local option; and from every point of view, economic, political, and moral, it is so important as to justify a somewhat careful study of the particular form of local option adopted in each state, and its practical workings, so far as the lapse of time has permitted a test of them. The fact that in each state there has been a second chance to test public sentiment at the local option elections, and that in Vermont the time is at hand for a third expression, lends interest to such a study.

In both states, the size of the license majorities at the first opportunity which the people had had for nearly or quite fifty years to express their views upon the question shows the strength of the revulsion against the system previously enforced. It is not surprising that this revulsion was greater in New Hampshire than in Vermont, for the urban population is larger in the former state. Nor is it surprising that the new system in New Hampshire should be less strict than in Vermont. The greater the tension under an obnoxious law, the greater the reaction when the law is repealed.

A comparison of these statutes discloses sharp differences between them. The Vermont law is the strongest and most consistent local option law in force in any state. It is modeled upon the Massachusetts law, but in nearly every particular in which it differs from that, it is in the direction of greater stringency. The vote is taken annually and automatically, as in Massachusetts. But a second option is provided. After a town has voted for license, a special town meeting may be called, upon the application of only six voters, at which must be submitted the question whether the licenses to be issued shall be for the sale of all kinds of liquor, or of beer and malt liquors only. Where the anti-saloon sentiment, therefore, is not strong enough to secure complete local prohibition, it is given a second chance to minimize the traffic.

Where license is voted, the licensing powers are not vested in the selectmen, but in a local board of license commissioners, appointed for a term of six years, and secured by the length of their tenure from the influences of politics. The drugstore nuisance, which has proved so great a plague in Massachusetts no-license communities, is reduced to a minimum. Pharmacists are put under $1000 bonds not to violate the law, and their bonds are forfeited upon a third conviction. They are allowed to sell only for medicinal purposes, and then only upon the written prescription of a properly qualified physician, valid for only a single sale,—instead of promiscuously upon the mere signature of the purchaser attesting the purpose for which he buys, as in Massachusetts. Moreover, in no-license communities, pharmacists’ licenses, instead of being granted to any applicants at the discretion of the licensing authorities, cannot be granted at all except at the petition of five per cent of the voters and a majority of the resident physicians. A physician who prescribes intoxicating liquor when he has reason to believe that it is not required for medicinal use is liable to a fine of $200 for the first and of $500 for each subsequent offense.

Saloons are under much the same restrictions as in Massachusetts as regards hours of sale, selling on Sundays or election days, sales to minors, habitual drunkards, or persons to whom sale has been forbidden by the written notice of parents, guardians, children, husbands, wives, or employers. Saloon-keepers are forbidden, not only to obstruct a view of their premises by screens, shutters, or curtains, but even to expose in their windows any bottle, cask, or other vessel in such a way as to advertise their business. Right of civil action is given to any husband, wife, child, parent, guardian, or employer who is in any way injured by an intoxicated person, against any person who by selling or giving liquor has helped to cause such intoxication, and the owner or lessor of the building is made jointly liable in such cases. A unique section of the law strikes at a practice admittedly provocative of intemperance by providing that “no intoxicating liquor shall be sold or furnished to a person for another person or any number of persons, to drink on the licensed premises, in the way commonly known as ‘treating.’”

The evil chain which in Massachusetts and some other local option states enables brewers and wholesale dealers to control the retail trade by going upon the bonds of saloon-keepers is snapped in Vermont, where no person directly or indirectly engaged in the liquor traffic is accepted as surety, and no person can be surety upon the bond of more than one applicant. The number of licenses is limited to one for each thousand of the population, and the fee for a license which permits the sale of all kinds of liquor to be drunk on the premises ranges from $500 to $1200. As to the enforcement of the law, every policeman, constable, and sheriff is required, under a penalty of $200, to “report forthwith” to the License Board any violation of the law which he has observed, or which has been called to his attention, and at intervals of not more than three months all such officers are called before the board and required to make report under oath as to any indication they have observed or information they have received tending to show violations of the law. The License Board, under penalty of $300, must investigate all such reports, and prosecute every complaint, if well founded.

Very different is the New Hampshire law. There are the usual restrictions upon the business of licensed dealers, but in less drastic form than in Vermont. The most remarkable feature of the law is the creation of a state board of License Commissioners consisting of three members, not more than two of whom may belong to the same political party. The commissioners hold office for a term of six years. They are placed under bonds, and they must have no interest, direct or indirect, in the liquor business. This board holds the liquor traffic of the state in the hollow of its hand. There is almost no limit to its discretion. In license towns and cities it may grant any number of licenses, and it may revoke any license after a hearing. In the case of innholders’ licenses, which are of great importance in a state like New Hampshire, where the summer boarder figures so largely, the board may fix the license fee at any point it pleases, from $25 to $1000, and it may revoke any such license at its discretion, with or without notice, and with or without cause. Nor is this the limit of its powers. Even in places which have voted against license, the board may license innholders and keepers of railroad restaurants. The latter are allowed to sell only malt liquor, cider, or light wines, but there is no restriction as to those to whom they may sell. Innholders are allowed to sell all kinds of liquor to be drunk on the premises, but in no-license towns and cities they are forbidden to sell to residents of the town or city in which their hotels are located, or to any other than duly registered guests.

Here are very serious loopholes in the law. A community which wants to stop the liquor traffic within its borders may vote to do so by an overwhelming majority, but a distant board may nevertheless inflict liquor-selling hotels and liquorselling railroad restaurant keepers upon it. And in towns and cities which vote for license, the issue and the revocation of licenses, the selection of locations, the detection of violations, the discipline of offenders, — these and all other details are under the control and at the caprice of the same distant board, totally removed from local influence, unrestrained by considerations of local welfare, and exercising its large discretion without review or appeal. It is clear that a board of License Commissioners composed of two robust members of one party and a pliant representative of another might become, through its absolute control of the liquor traffic, a dangerous political machine. If the board created by the New Hampshire law does not become such a machine, it will be because its members are of the incorruptible type. The security of the state depends upon their personal qualities, not on safeguards provided by the law. As a matter of fact, the evils which were apprehended from this feature of the law have not been realized up to the present time. The board has administered the law with such fidelity that, according to the New Hampshire Issue, the organ of the state Anti-Saloon League, the leaders of the no-license movement favor the principle of state control, and would like to see it extended to the enforcement of the law in cases of violation. The Issue mentions particular instances in which the board has revoked hotel licenses purely on the merits of the cases and in opposition to strong local and political influences.

Light is thrown upon the conditions in both states, under the prohibitory law and under the present system, by a comparison of the number of persons who pay special taxes to the United States government as wholesale and retail liquor, dealers. The tax receipts of the United States internal revenue collectors are often loosely called United States licenses. They are not that, for the federal government does not license the liquor traffic, it taxes it. But liquor dealers stand in such awe of the federal authority that few of them venture to sell liquor without paying the United States tax. To avoid prosecution in the federal courts, they must be able to produce the internal revenue receipt. But in Vermont and New Hampshire and some other local option states, the mere possession of such a receipt is sufficient evidence that the person holding it is engaged in the sale of liquor. The luckless dealer is therefore between the devil and the deep sea. If he cannot show the receipt, he is subject to prosecution by the federal authorities; if he has such a receipt, he provides all the evidence necessary to convict him in the state courts.

Using initial letters to designate retail and wholesale dealers in all kinds of liquor and in malt liquors respectively, the official returns show the number of persons in Vermont and New Hampshire paying special taxes in 1902 under the prohibitory law, and in 1904 under the local option law: —

K. L. D. W. L. D. R. D. M. L. W. D. M. L. Total.
1902 240 318 14 572
1904 258 40 298
1902 1348 14 326 70 1758
1904 1043 26 50 70 1189

This comparison puts it beyond question that in both states more persons sold liquor under the prohibitory law than are now selling it under license. In Vermont, this difference is occasioned by the large number of persons paying taxes in the earlier year for the sale of malt liquors. Eliminating these, and considering only the taxes upon a general retail liquor business, it appears that there were eighteen fewer dealers carrying on this business in Vermont under prohibition than under license; but the change is so slight as to indicate that the prohibitory law did not impose a serious check upon the liquor traffic except in those communities which, of their own option, under the new law have shut out the saloons. Of the 240 dealers taxed in 1902 in Vermont, 84 were town agents; but the remaining 156 were carrying on an illegal business. In New Hampshire, the contrast is striking and significant. So far as conditions may be read in these returns, there were 276 more persons selling malt liquors at retail, and 305 more persons carrying on a general retail liquor business, in New Hampshire under the prohibitory law than there are now under the license law.

But there is another test of the working of the two systems, namely, the convictions for intoxication. Here are some figures from Vermont, the comparison beingmade in each case between the twelve months from May, 1901, to April, 1902, under prohibition, and the twelve months from May, 1903, to April, 1904, under the present law:

1901-02. 1903-04.
Rutland city court 95 469
Burlington city and justice courts 129 343
St. Albans city and justice courts 207 274
Commitments to county jails :
Addison County 6 17
Bennington County 7 49
Caledonia County 14 16
Chittenden County 126 508
Orange County 6 12
Rutland County 84 302
Washington County 57 198
Franklin County 136 210
Lamoille County 3 34

It will be observed that in every instance there has been an increase, and in most instances a considerable increase, in the convictions for intoxication under the present law. Comparing the totals, we find that convictions and commitments for intoxication have risen from 870 in the prohibitory year to 2432 in the license year. This is an appalling change for the worse; and it seems impossible to account for this threefold increase except on the theory that, whatever the number of persons engaged in the business under the two systems, the more open traffic has swollen the volume of intemperance.

As might have been expected, the effect of these excesses is apparent in the vote of the towns at the second elections under the law, in March, 1904. The pendulum swung far out toward license in the first year. It swung back again at the next trial of public sentiment. The most remarkable change was in Rutland, where the transition from prohibition to license had resulted in a kind of orgy which, as shown by the above table, multiplied the convictions for intoxication nearly fivefold. Rutland city in 1903 voted for license by 1737 to 542. In 1904 it voted for no-license by 1211 to 1109. Changes scarcely less marked took place in most communities where the excesses under the new system had been greatest. Thus in Chittenden County the license majority was cut down from 2690 to 755; in Bennington County it was reduced from 1132 to 235; and in Rutland, Washington, and Franklin counties it was wiped out altogether. In 1903,91 towns voted for license and 155 against it. In 1904 only 40 towns voted for license and 206 voted against it. In the aggregate vote in the state the license majority of 5151 in March, 1903, was changed to a no-license majority of 7071 at the elections in March, 1904.

The following table shows arrests for drunkenness in four New Hampshire cities in twelve months under the old law, compared with arrests for the same cause in twelve months under the new: —

Prohibition. License.
Berlin 419 1146
Dover 257 468
Franklin 72 198
Keene 167 410
915 2222

In these four cities drunkenness, tested by arrests, has more than doubled under the new order of things. But in Manchester and Portsmouth, two cities in which the former prohibitory law was tempered and practically abrogated under the socalled ‘ ‘ Healy system ’ ’ of local connivance at its violation, the number of arrests has dropped, in the former from 1121 to 953, and in the latter from 874 to 799. This indicates that, in cities where drastic liquor laws are repugnant to local sentiment, enforced license may be more promotive of sobriety than unenforced prohibition.

The New Hampshire law, as originally drafted and reported to the legislature of 1903, gave the cities of the state no option, but condemned them permanently to license. Public sentiment compelled a remodeling of the measure so as to provide for a vote on the license question in the cities every fourth year, beginning with 1906. We shall have to wait nearly two years longer, therefore, to know whether any of the eleven cities which adopted license in 1903 are weary of it. But the towns voted for the second time November 8, 1904. The number of license towns was reduced from fifty-eight to forty-seven. Thirteen towns changed from no-license to license; twenty-four from license to no-license. But the actual change was more important than these figures indicate, for the towns which changed from “no” to “yes” are small places with an aggregate population of 9581, while the towns which changed from “yes” to “no” have a total population of 48,606. The actual result, therefore, is to make a net addition of about 39,000 to the population living under voluntary local prohibition.

This hasty survey of conditions in the two states indicates that in neither has public sentiment yet crystallized into full approval of the change. The old system worked ill, but the new is not working well. The revulsion against state prohibition was so strong that even some of the smallest towns, with only a handful of voters—for example, Glastonbury and Norton in Vermont, the former casting only ten and the latter only twentytwo votes, and Dummer and Lincoln in New Hampshire, the one casting only twenty-four and the other forty-three votes — were swept away by it. But the force of this revolt has spent itself, as is shown by the diminished number of places voting for license. It is now local option which is on trial before the bar of public opinion. If it continues to make so bad a showing in Vermont, regarding increase of drunkenness, as is disclosed in the figures which have been quoted, it will scarcely maintain itself. If the referendum in that state were to be taken over again to-morrow, probably the result would be the reverse of what it was in 1903. But if the new system is given a fair trial, it may be found that the legalized liquor traffic can be restricted under it within extremely narrow limits, and that where public sentiment tolerates its existence, it will be able to regulate its excesses more effectively than was possible under a system which ignored local sentiment.

In New Hampshire, the heavy license majority in the aggregate local option vote shows how irksome were the old restrictions. Conditions are as yet too unstable to admit of assured prediction, but there seems little doubt that, in that state at least, local option will be retained indefinitely, and that the efforts of opponents of the saloons will be directed chiefly toward extending the nolicense area, and from time to time strengthening the law at points where it is found defective.

  1. Iowa is still nominally a prohibition state, but the so-called “ Mulct ” law, enacted in 1894, taxes the traffic and is practically a system of license and local option.