The History of Beer Litigation in California: The Case of Would-be Reformers Nelly Smith and Annie Keating

It is not specifically “beer litigation,” but it is the earliest case from California that I have come across concerning laws relating to beer consumption.

In 1869, two “pretty waiter girls,” Nelly Smith and Annie Keating, remained on purpose beyond midnight in a drinking saloon in violation of a city ordinance that banned women  (and live music) from bars or “beer cellars.” They were duly arrested and fined for their violation. The article below, printed in the Dec. 3, 1869 edition of a Sacramento Daily  Union, reveals it was a “test case”: it was intended that the conviction would be challenged on Constitutional Grounds.


The California Supreme Court opinion was not favorable to women or bar owners, upholding in Ex Parte Smith, October Term 1869, the ordinance as applied to women.

It was challenged on grounds of impinging upon the inalienable right to the pursuit of happiness, as well as the equal protection clause of the 14th Amendment.

The court allowed that perhaps females could gain enjoyment or happiness from being “at such places” after midnight. However, it had no problem dispensing with the “inalienable right” argument, finding that there are many legitimate reasons for governments to interfere with the right to pursue life, liberty, property, and happiness, including laws designed to promote public peace and good order, and public decency and morality.. The Constitution prevents only legislation that injures natural rights in a destructive or unreasonably restrictive manner. Judge Sanderson was willing to defer to the judgment of the Board of Trustees of Sacramento: that the presence of females in saloons after midnight was “of a vicious and immoral tendency.”

Judge Sanderson was likewise untroubled by the law’s uneven effect on men and women. <Side note for fun: the Judge describes military service and jury duty as burdens placed only upon men while showing that the law acts differently upon different categories of people in many acceptable ways>. Satisfied that where a law seeks to prevent a wrong  of a “character which permits of its being done … by one sex and not by the other,” Sanderson refused to countenance an equal protection violation so long as the law is reasonable. After all, in this case, the evil was “exclusively due” to females.

This ruling is of course an artifact that predates the heightened scrutiny a high court would now give to a law discriminating on the basis of gender. Justice Scalia likes morality legislation though–I wouldn’t be surprised if he backed a law like this one.



Origins of National Lager Day, Lack of

When I heard the news today, I first thought: I’ve no lagers at home. I second thought, since when? As declared by whom? One can find it repeated throughout the web today as though it had always been so. Curiously, no mention of the original proponent of declaring this 10th of December the day, or why this day. One might think the National Lager Foundation but alas, there is none.

An Occam’s Razor-type guess is that it comes from someone hoping people will buy more lagers; thus, someone who trades heavily on lagers. AB announced a survey in time for commemorating this holy day. Sam Adams (I think they have a lager…) released survey results too and an infographic and Jim Koch gave his “top 10” reasons to drink a craft lager (not included was “so that we’ll sell more lager”).

I have put as many minutes into historical google and news searches as I am willing and turned up nothing. It is definitely a recent invention, with the earliest mention I found in 2009.

A 2011 post in the Examiner reported the origins of the “holiday” to be unknown. (their written finger quotes). Perhaps it will stay that way. It is now marked on “food holidays” lists in various places and people love a reason to quaff a beer, even if that means celebrating non-lagers under the auspices of celebrating lager day. Those who are fizzy on lagers and ales should take advantage of the many posts taking the opportunity to explain the difference between ale and lager.

In any case,  a day to celebrate lager cannot be a bad thing. I will try a new one (to me) from Schmaltz (or is it Sam Adams/Alchemy and Science now? I’ll have to check the bottle)–Coney Island Albino Python.

What’ll you have?

*Note: The Albino Python is a great hybrid. I do not dislike wits, but I am not always excited about the banana/clove factor. This beer gets the light and smooth body and the citrus peel/spices of a wit, but has a much cleaner flavor overall with muted (yet present) esters/phenols.

Repeal Day in Los Angeles: 1933

With many today a-twitter about the anniversary of the 21st Amendment, I thought I would take a glance at how the day was received in Los Angeles before any anniversaries had come:

The headline read: Liquor Sale Way Clear: State Prepared for Flow Today. 

First, it was before the advent of the California Department of Alcoholic Beverage Control; so it was the State Board of Equalization that “worked frantically to put California in readiness for the return of hard liquor.” Over 54,000 applications for licenses had been sent.

Draught beer would be limited to 3.2%, anything stronger had to be bottled for home consumption or to go with “bona fide meals.” Hotels were already pushing for the ability to serve hard liquor in dining rooms, as then-attorney general Webb advocated for a policy keeping hard liquor out of public eating places.

Faced with criticism regarding regulations, secretary Dixwell Pierce of the equalization board deflected back at the people, “the rigors of regulation are not due to action by the board of Equalization or the Legislature. The people voted the liquor-control amendment of the constitution. If you don’t like it, don’t blame us.” Take that!

Dixwell Pierce further warned that “sneak clubs” would not be tolerated–hard liquor could be consumed at “bona fide” clubs as if it were being consumed at home, but clubs formed for the fraudulent purpose of being able to evade the law booze it up with the hard stuff  would “not be countenanced.”

Wineries were not happy either. Edmund Rossi, of Sonoma, voiced an objection to the requirement of bottling be done in a separate facility.

Ordinary folks, for their part, were up in arms about liquor licenses being issued near schools and churches. Equalization board member Frank Stewart attempted to allay these concerns: “Where complaint is made that a license is being issued for location close to schools or churches, such licenses will be denied.” So began, apparently, the saga of well-meaning businesses negotiating the sea of resident complaints.

Stewart was not amused at one county official, who accused the equalization board of putting “what should be a clean industry” in the “hands of bootleggers, rumrunners and racketeers.”

Stewart suspected motives behind local officials’ criticism of the statewide board’s authority to issue license: “Such deliberate falsehoods as these must be inspired by some motive and if that motive is founded on a desire by certain local officials to regain absolute control of the licensing and revoking of licenses of liquor establishments I can promise them it is doomed to failure.”

Frank Stewart was right about that; the power to regulate licensing would become even more centralized with creation of the ABC. But ABC law continues to recognize local zoning ordinances in the issuance of licenses.

By way of New York Tribune, Walter Lippmann wrote in the Dec. 5 Los Angeles Times:

“They concluded that an appetite which had caused so much misery should be suppressed, that a trade which had caused so much dishonesty should be outlawed. What they overlooked was the conscience of the great mass of people who did not drink immoderately and had no part in the political corruption.”

Not everyone welcomed the repeal. In the Dec. 6 Los Angeles Times: “Plans for continuing the war against alcohol will be discussed at a meeting of the Los Angeles County Woman’s Prohibition Club tomorrow at 1:30 p.m. at the Young Men’s Christian Association Building, 715 South Hope Street.” The group would discuss plans to “support at all elections only those parties and candidates which give a definite pledge to enact and enforce a national prohibition law.”

Fortunately, those war efforts failed. Cheers!