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Making the Law Work: Alberta's Liquor Act and the Control of Medicinal Liquor from 1916 to 1924*

Published online by Cambridge University Press:  02 January 2013

Sarah E. Hamill
Sarah E. Hamill
Affiliation:
Faculty of Law, University of Alberta, Edmonton, AB T6G 2H5Canada, [email protected]
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Abstract

This paper uses the example of the control of medicinal liquor during prohibition in Alberta to explore how the methods of control altered during the eight years of prohibition. This paper argues that the system used to control medicinal liquor changed from a prosecutorial system to a regulatory system. This shift from prosecution to regulation was essential in ensuring that medicinal liquor was actually controlled and allowed medicinal liquor to become an alternative as well as an exception to prohibition. This paper focuses on explaining the success of administrative control rather than the courts' attempts to control administrative action and thus examines administrative law and practice from the ground up. Consequently, this paper uses a broad definition of administrative law which includes the regulations, policies and practices created and used by the provincial state in its attempt to control medicinal liquor.

Résumé

Cet article examine comment les méthodes de contrôle ont changé au cours des huit années de prohibition en Alberta en prenant l'exemple de l'alcool utilisé à des fins médicinales. L'auteure soutiens que le contrôle de ce type d'alcool est passé d'un système judiciaire à un système réglementaire. Cette évolution vers la réglementation s'est avérée essentielle afin d'assurer que l'alcool utilisé à des fins médicinales soit effectivement contrôlé et de permettre que cette substance devienne une alternative ainsi qu'une exemption dans le contexte de la prohibition. Cet article se penche sur le succès du contrôle administratif et non sur les efforts des tribunaux de contrôler les mesures administratives, examinant ainsi les fondements du droit administratif ainsi que des pratiques connexes. Par conséquent, cet article utilise une définition large du droit administratif qui inclut la réglementation, les politiques ainsi que les pratiques créés et utilisés par le gouvernement provincial dans ses efforts visant à contrôler l'alcool utilisé à des fins médicinales.

Keywords

administrative lawAlbertalegal historyregulatory statemedicine and the lawsocial controlprohibitiondrug controldroit administratifhistorique du droitÉtat réglementairela médecine et le droitcontrôle socialprohibitionlutte contre le trafic des stupéfiants
Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 27 , Issue 2 , August 2012 , pp. 249 - 265
Copyright
Copyright © Canadian Law and Society Association 2012

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References

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26 The CMA did keep its members informed of the news surrounding medicinal liquor, however: “Congress Interferes with Physicians' Prescriptions,” Canadian Medical Association Journal 14, 9 (1924), 755Google Scholar; Johnson, Arthur Jukes, “Report of the Ontario Medical Council in Relation to the Ontario Temperance Act,” Canadian Medical Association Journal 8, 8 (1918), 746Google ScholarPubMed.

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28 Finlay, ibid.; Alberta WCTU: Story of the Years 1913–1963, Glenbow Alberta Institute Archives (GAIA), RG M-1708-2; Ontario Six Years Dry, 1916 to 1922 (September 17, 1922), GAIA, RG M-1708-181.

29 Letter from H.A. Switzer to Attorney General J.E. Brownlee (July 4, 1923), PAA, RG 75.126, file 2824. Concern about undue interference in medical judgement was also seen in Ontario and Nova Scotia: Johnson, “Report of the OMC”; “The Nova Scotia Temperance Act and the Profession,” Canadian Medical Association Journal 16, 9 (1926), 1125Google Scholar.

30 Heron, , Booze, 237–39Google Scholar; Okrent, , Last Call, 194Google Scholar; For the American experience of medicinal liquor see Jones, “Prohibition Problem.”

31 See, e.g., Letter from Deputy Attorney General Johnson of BC to Deputy Attorney General A.G. Browning (July 10, 1919), PAA, RG83.192, file 412.

32 Letter from Deputy Attorney General Browning to Dr Harvey W. Wiley, Washington, DC (29 December 1919), PAA, RG75.126, file 2795.

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34 “Attorney General Says Liquor Law Strictly Enforced,” Lethbridge Herald (November 11, 1920)Google Scholar; Letter from Attorney General Brownlee to W.H. Erant (November 1, 1923), PAA, RG75.126, file 3728.

35 Letter from Browning to Chairman Leech, Saskatchewan Liquor Commission (March 14, 1922), PAA, RG75.126, file 2564b.

36 Liquor Act, s 14.

37 Ibid., ss 17–19; Liquor Act, SA 1916, c 4, as amended by SA 1917, c 22, s 4.

38 Following the Spanish Flu epidemic of 1918, Browning lamented that “if it had not been for the ‘Flu’ epidemic the [liquor] records would have been of great assistance to us. As it is, proceedings against Druggists and others will have to stand until later.” Letter from Deputy Attorney General A.G. Browning to A. Phimester (November 18, 1918), PAA, RG75.126, file 3395.

39 For the railway scandal see Palmer, Howard and Palmer, Tamara, Alberta: A New History (Edmonton: Hurtig, 1990), 14–15Google Scholar; for the agricultural crisis see Jones, David C., Empire of Dust: Settling and Abandoning the Prairie Dry Belt (Calgary: University of Calgary Press, 2002)Google Scholar.

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42 The APP deployed 155 officers where the RNWMP had deployed 312; ibid., 53.

43 Liquor Act, at s 17.

44 Letter from Deputy Attorney General A.G. Browning to Dr F.A. McCord (September 7, 1917), PAA, RG66.166, file 12401.

45 Letter from Deputy Attorney General A.G. Browning to Dr Revell of the Alberta Medical Association (September 7, 1917), PAA, RG66.166, file 12401.

46 Ibid.; “Doctors Accused of Failing to Report Sales of Liquor,” Edmonton Journal (October 30, 1917)Google Scholar.

47 Letter from Deputy Attorney General Johnson of BC to Deputy Attorney General A.G. Browning (luly 10, 1919), PAA, RG83.192, file 412; “The Nova Scotia Temperance Act,” 1125; Lin, , Policing the Wild North-West, 124, 137Google Scholar; Carstairs, , Jailed for Possession, 115–21Google Scholar.

48 Letter from the Attorney General to H. Quarterman (April 26, 1920), PAA, RG75.126, file 2795.

49 Letter from the Superintendent of the APP to Deputy Attorney General A.G. Browning (February 11, 1919), PAA RG75.126, file 1173b.

50 Letter from Deputy Attorney General AG Browning to Deputy Attorney General Johnson of BC (July 16, 1919), PAA, RG83.192, file 412.

51 Memo from Chief Inspector Simpson to Deputy Attorney General Browning (November 25, 1921), PAA, RG75.126, file 2799.

52 Letter from Deputy Attorney General A.G. Browning to Mrs Collins (August 12, 1919), PAA, RG75.126, file 3244b; Memo from Deputy Attorney General A.G. Browning to Mr Simpson (October 24, 1921); Memo from Deputy Attorney General Browning to Mr Simpson (October 25, 1921), PAA, RG75.126, file 2799.

53 Many of the early prohibition letters were dealt with by the deputy attorney general, but as prohibition progressed the letters were delegated to departmental solicitors. The increased delegation suggests that the number of responsibilities and the size of the attorney general's department had increased.

54 “Who Wouldn't Be an Alberta Doctor?” Lethbridge Herald (February 2, 1920)Google Scholar.

55 Letter from Deputy Attorney General A.G. Browning to Dr J.D. Harrison (October 4, 1918), PAA, RG 75.126, file 3395 (“[i]t may be that such prescriptions were entirely bona fide, and as to this I do not express any opinion, but your attention is being called to the matter in order that there may be no reason for criticism in the future”); Letter from Deputy Attorney General A.G. Browning to Dr Sylvain (June 15, 1920), PAA, RG75.126, file 2795.

56 For examples of such reports see PAA, RG75.126, file 2813.

57 “Ask to Have RNWMP Patrol Restored,” Red Deer News (January 9, 1918)Google Scholar; Lin, , Policing the Wild North-West, 140–43Google Scholar.

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59 Letter from Inspector Gold to Deputy Attorney General A.G. Browning (May 18, 1917), PAA, RG66.166, file 1240j; Lin, , Policing the Wild North-West, 138Google Scholar.

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62 Suspected Irregularities re Liquor Prescriptions (April 2, 1924), PAA, RG75.126, file 4574.

63 Letter from Deputy Attorney General Browning to Mr Langfeldt (March 28, 1923), PAA, RG83.192, file 402.

64 Letter from Chief Inspector Fairley to J.B. MacLean of Manitoba's Liquor Commission (November 12, 1920), PAA, RG75.125, file 2795; Memo from Inspector Downey to Mr Bishop (November 3, 1922), PAA, RG75.126, file 3321b.

65 Letter from APP Superintendent to Deputy Attorney General Browning (February 11, 1919), PAA, RG75.126, file 1173b; Letter from APP Superintendent to Attorney General Boyle, (January 3, 1919), PAA, RG 83.192, file 412.

66 Memo from Inspector Downey to Commissioner Bishop (November 3, 1922), PAA, RG75.126, file 3321b; Letter from Chief Inspector Fairley to APP Superintendent W.C. Bryan (29 December 1920), PAA, RG75.126, file 2795.

67 Memo from Acting Deputy Attorney General R.A. Smith to Chief Vendor Douglas (September 1, 1923), PAA, RG75.126, file 3321b.

68 A total of 499 doctors received prescription pads for the month of October 1921; assuming the number of doctors remained stable throughout the year, this would allow a maximum of 598,000 legal liquor prescriptions. Only 242,570 liquor prescriptions were issued for the whole of 1921, however, which works out at about 40 per month per doctor. In reality, some doctors issued far more liquor prescriptions than others. Memo from Chief Inspector Simpson to Deputy Attorney General A.G. Browning (November 15, 1921), PAA, RG75.126, file 2799; Liquor Prescriptions Dispensed by Druggists and Returned to Vendor's Store (undated); Classification of Physicians According to Number of Liquor Prescriptions Issued (June 1923-March 1924); Liquor Prescription Record (undated), PAA, RG69.289, file D1.

69 Ibid. (Memo, Simpson to Browning, November 15, 1921; Liquor Prescriptions Dispensed; Classification of Physicians; Liquor Prescription Record). Heron notes that in 1920, Alberta's doctors issued more than 500,000 liquor prescriptions, but he omits to mention that such a number would be in keeping with the liquor prescription quota and was much lower than the number issued by doctors in other provinces. The greater number of liquor prescriptions in 1920 might also be a response to the recent closing of the private-importation loophole, which left medicinal liquor as the only legal exception open to ordinary Albertans. See Heron, , Booze, 238Google Scholar; Gray, , Booze, 190–95Google Scholar.

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72 Letter from A.G. Browning to the APP Superintendent (February 13, 1919), PAA, RG75.126, file 1173b (“there is considerable complaint throughout the Province of the violation of the Liquor Act. These complaints may or may not be well founded, but the fact remains that they are quite general”); APP Crime Report, Athabasca Detachment (May 19, 1917), PAA, RG66.166, file 1240i.

73 Letter from Deputy Attorney General A.G. Browning to Miss Maude L. Smith, Secretary of Leduc's Women's Institute (April 16, 1921), PAA, RG75.126, file 3252a.

74 Arthurs, H.W., “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985), 125Google Scholar, notices a similar phenomenon in his study of nineteenth-century English administrative law.

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85 Government of the Province of Alberta Liquor Branch Supplementary Report (October 31, 1921), PAA, RG69.289, file 120B. Chief Inspector Forster had looked upon the government's liquor activities as a business as early as 1918, but evidently this view was not shared by the government's accountants: Memo from Chief Inspector Forster to Deputy Attorney General A.G. Browning (May 21, 1918), PAA, RG75.126, file 735a.

86 An Act to Amend the Liquor Act, SA 1922, c 5.

87 OC 358-23, AGaz1923I137 (Liquor Act); OC 357-23, AGaz1923I138 (Liquor Act).

88 “Stop Sale of Liquor in Alberta Drug Stores,” Lethbridge Herald (January 21, 1922)Google Scholar. The amendments described here made the 1923 orders-in-council possible.

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94 “Liquor Referendum - Notice to Voters,” Lethbridge Herald (October 25, 1923)Google Scholar.

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96 Heron, , Booze, 273–74Google Scholar.

97 The first-choice votes were as follows: Clause A—61,647; Clause B—3,936; Clause C—3,078; Clause D—93,680. 78,268 voters did not rank their preferences. Statement of Votes Polled, November 5, 1923 (undated), PAA, RG76.2.

98 Government Liquor Control Act, SA 1924, c 14, ss 19–26 [Liquor Control Act].

99 Ibid., ss 101–2. The Liquor Control Act revived the interdiction provisions previously seen in Alberta under the Liquor License Ordinance, 1891-1892, No 18 s 92.

100 Liquor Control Act, ss 33–37; ALCB Club an d Hotel Inspection Reports, PAA, RG74.412.

101 Alberta Prohibition Campaign Committee, “The Failure of Government Sale of Alcoholic Liquors” (1923)Google Scholar, PAA, RG69.289, file 207.

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105 Carstairs, , Jailed for Possession, 118–24Google Scholar.

106 In 1949 the provincial government received $11,045,256.85 from the ALCB and $12,906,634.11 from the Department of Mines and Minerals. Alberta, Legislative Assembly, “Public Accounts,” Sessional Papers, No 1 (1949), 231, 253Google Scholar. The previous year the ALCB provided $9,820,587.50 in revenues while the Department of Mines and Minerals provided only $1,464, 057.39. Alberta, Legislative Assembly, “Public Accounts,” Sessional Papers No 1 (1948), 227, 251Google Scholar.