How the Cultivation Began and Ended
The Pre-war Situation
Legal Situation when Commercial Cultivation Began
A Case of Narcotic Use of the Capsules
Investigations in 1941
Situation in California in 1942
The Opium Poppy Control Act of 1942
Effect of the Opium Poppy Control Act
The Granting of State Permits
Propaganda for Poppy Cultivation
"The Opium Poppy and Other Poppies"
Enforcement Measures Taken by the Narcotics Bureau
Analyses
Final Stages of the Campaign
The Poppy Growers' Case
Progress of the Case
An Affidavit
Decision of the Court
Aftermath
Conclusion
Pages: 9 to 21
Creation Date: 1950/01/01
The poppy cultivated in many parts of the world, and especially in Europe, for its edible and oil-bearing seeds, is the very same species- Papaver somniferum-as the poppy cultivated for opium in many other parts of the world. In fact, the same poppy plant can be used to obtain both opium and edible seeds. In the United States there has never been much commercial cultivation of this plant. Poppy-seed for food has been imported from Europe, 3,000 tons or more a year; in 1938 nearly 4,400 metric tons, chiefly shipped from the Netherlands, Poland and Danzig. This importation was almost entirely cut off by the war, and the price of poppy-seed soared from 7 cents a pound to 50 cents a pound and even more. Many farmers saw the possibility of enormous profit, and plantings of the poppy rapidly increased, especially in California. Although there was no immediate question of opium production, the occasional abusive use of the capsules had already attracted attention, and in any case the Narcotics Bureau of the United States was quite unwilling to see the cultivation of the opium poppy extended far and wide over the country, with the potentiality of narcotic evils in its wake. In response, Congress passed the Opium Poppy Control Act of 1942, making it unlawful for any person to produce the opium poppy except under licence, and licences were to be issued only if necessary to supply the medical and scientific needs of the United States for opium or opium products. The California growers, on the plea that their crop had been planted in the early winter of 1942, just before the law was passed, were allowed to harvest their crop of poppy-seed in the summer of 1943. The understanding of the Narcotics Bureau was, of course, that this concession would never be repeated nor even asked for again. But some of the growers did not stop. Under California law any person of good moral character could obtain a state permit to cultivate the opium poppy. With tremendous profits envisaged and their state permits as at least a talking-point, some of the growers again planted poppy-fields in the fall of 1943. In the following spring, the authorities of the Narcotics Bureau first attempted by persuasion to have the poppies ploughed up, and finally moved to have the remaining crops seized and destroyed. The growers, who were still resisting, then brought the case to Federal Court, alleging that the Opium Poppy Control Act was unconstitutional, that control over a food plant rested solely with the state. The case was heard by a statutory emergency court composed of a Circuit Judge and two District Judges. The Narcotics Bureau and the District Attorney based their argument for constitutionality of the law squarely upon the treaty-making power of the Federal Government; in particular, the right of Congress to legislate, even contrary to state laws, in furtherance of the International Opium Convention of 1912. On 28 August 1944 the three judges handed down a unanimous decision holding the Opium Poppy Control Act constitutional. Soon after, the growers decided not to appeal to the Supreme Court of the United States. Thus ended the California "Poppy Rebellion".
These events will now be reviewed with many more details given; however, personal names are in general omitted.
From 1935 to 1940, the files of the Narcotics Bureau showed only a scattering of letters regarding the cultivation of the poppy, most of them inquiring what regulations would have to be complied with. Some inquirers thought that the United States ought to produce its own opium; others were desirous of producing poppy-seed.
The Narcotics Bureau tried to discourage both. The Bureau, at this time, held that anyone growing the opium poppy for any purpose would have to register as a producer of narcotics, and perhaps have to comply with many other regulations. So far as known, all who actually corresponded with the Bureau during this period were effectively discouraged from taking up poppy culture.
Many immigrants from Central Europe, however, especially from Czechoslovakia, grew poppies in their own kitchen gardens without ever thinking about the possibility that the narcotics enforcement authorities might object. An investigation of the situation in Minnesota had been made, but no action was taken: the Narcotics Bureau preferred to ignore these non-commercial kitchen-garden plots, rather than call attention to the possibilities of cultivating the opium poppy in this country.
The situation changed when commercial production of poppy-seed began, but still no action was taken to register the growers as narcotic producers. Some legal experts thought this was not within the intent of the Harrison Act of 1914, and in any case the requirement of registration of producers and payment of an annual occupational tax would have done little good. The tax was only $24 per year; the provision, if rigidly enforced, would have ended the cultivation in home gardens but would have only given governmental sanction to large scale commercial cultivation. The Narcotics Bureau, therefore, at first tried to discourage growers or appealed to them to discontinue poppy cultivation; and when these measures were no longer effective, sought new legislation from Congress and, in some cases, in the states.
In April 1941 the Bureau was notified, by a California seed company which had asked for official permission to grow the poppy and been dissuaded from it, that a number of their competitors and other seed growers were already producers of poppy-seed, and that the cultivation was rapidly increasing. The Commissioner of Narcotics at once ordered an investigation, and directed his District Supervisor of Narcotics to confer with the Chief of the Division of Narcotics Enforcement of the State of California, and if possible arrange for the destruction of the crops of the opium poppy.
The State of California had its own narcotics law, but the state authorities considered that no provisions in it covered the cultivation of the opium poppy. At the time, the state legislature was reconsidering some aspects of the law, and the Narcotics Bureau suggested an amendment requiring a licence for any grower of the opium poppy. The California legislature adopted an amendment on the subject in 1941, but it required only a "permit" instead of a "licence". The state authorities later considered themselves bound to issue these permits to any applicants who were qualified under the state law. This soon made the situation worse than before enactment of the legislation.
In May 1941, a narcotics inspector and a customs officer investigated a report that a Hindu near Holtville, California, was growing the opium poppy. They at first reported that the poppies were only a floral variety, but they were sent back to get some pods for analysis. After analyses showed the presence of morphine, they went back again and now they discovered that the grower had been boiling the pods with his coffee, in the belief that they gave him greater strength for work in the fields. He was a farm labourer of good repute and had no idea he was violating any law; he had learned the custom of drinking an infusion of poppy pods in India. No action was taken against him except that the poppies and the harvested pods were destroyed.
This case made the officials of the Narcotics Bureau more determined than ever not to permit an enormous increase in the cultivation of the opium poppy in California, even though most growers were interested only in the seed. Some years earlier, the abusive use of poppy capsules had spread amongst the addicts farther north, in the State of Washington and in British Columbia, Canada. These abuses had been suppressed under the narcotics laws of the United States and Canada, but it seemed only too likely that they would spring up again in California, if unrestricted poppy cultivation were permitted there.
The investigation in the summer of 1941 showed that most of the poppy growing was in the Santa Maria Valley, not far from the well-known port of San Luis Obispo. Here is a district about twenty-five miles long, two to ten miles broad, one of the richest and most fertile parts of agricultural California, devoted almost entirely to the growing of vegetables and flowers for seed. A number of seed companies obtained their supplies here, the seeds being packaged and sold to gardeners all over the United States. Here, floral varieties of Papaver somniferum and other poppies had been grown for many years. These experienced growers, attracted by the high price, had begun growing the "Holland Blue" or "Dutch Edible" Poppy (kitchen-garden varieties of Papaver somniferum) to meet the demands of bakeries for poppy-seed, a demand no longer met by imports.
These highly reputable growers collaborated willingly with the investigators of the Narcotics Bureau. Nothing was taken for granted as to the character of the poppies: samples were secured and chemical analyses made. Not only the kitchen-garden variety "Holland Blue" (which is a blue-seeded, not a blue-flowered poppy), but also such floral varieties as "Tall Paeony Flowered Double" and "Mikado Carnation" were analysed and found to contain morphine. A "Persian Poppy" was also found to contain morphine. These are all varieties of Papaver somniferum. The "Flanders Poppy" or "American Legion Poppy" was examined without any morphine being found: this is a variety of Papaver rhoeas. Later, other varieties and species were examined, including of course the California Poppy, the state flower of California ( Eschscholzia californica). Morphine was not found in any other species than Papaver somniferum.
There were a little over six acres of poppies grown in the valley for flower seeds, and 175 acres for the commercial production of edible poppy-seed.
At the request of the Narcotics Bureau, the flower-seed companies agreed to discontinue their listing of morphine-containing poppies, varieties of Papaver somniferum generally listed as "Tall Annual Poppies" in the seed catalogues. These plants were destroyed and the seeds were not saved.
The seed intended for the bakery trade was allowed to be sold. The residual plant material was destroyed under supervision of state and Federal narcotics officers. The growers were asked not to save any seed for future crops. They were also notified that new legislation was being sought. The Commissioner of Narcotics wrote to his District Supervisor: "We should make all proper effort to discourage and if possible prevent the production of the opium poppy because of the dangerous potentiality incident to such a widespread supply of source material for morphine, which may, of course, lead to correspondingly extensive abuses".
At this same time-July 1941-an Oregon newspaper editor wrote enthusiastically of the beginning of poppy culture there. It had been introduced by a former resident of Czechoslovakia, who sowed eighty acres in poppies on his Oregon farm, forty in the spring and forty in the autumn. The Commissioner of Narcotics wrote pointing out the dangers inherent in increased poppy cultivation; the editor replied that they had not thought of any but agricultural possibilities. The Commissioner asked that no further encouragement be given to poppy growing and said that the Narcotics Bureau wanted no publicity on the subject until proposed legislation was further along.
This last point was apparently not well understood in California. The state narcotics enforcement office prepared a Press release publicizing the destruction of the morphine-containing plant material and the representatives of the Federal Narcotics Bureau even co-operated in allowing photographs and publicity information to be given to the newspapers. Considering the lack of real legal control over poppy cultivation for seed, the publicity obtained was unfortunate, dangerous, and potentially very harmful. The newspapers seized the opportunity for sensation. Here are some headlines that appeared:
"Bakers, Not Dope Peddlers, Get State's Poppyseed Crop"
"Worry On Opium Poppy Crop Ends"
"State Harvests 'Opium Crop'-Under Law's Eyes"
"State Smashes Opium Supply"
The Narcotics Bureau hoped that the worst was now over, but this was not the case.
In August 1941, the Narcotics Bureau in Washington was paid a visit by the Executive Director and General Counsel for the American Seed Trade Association. The Association wished to provide for legal or acknowledged cultivation of the poppy. The imported poppy-seed had been commercially handled in the United States by the spice trade. In December it was found that the president of a wholesale spice company in Chicago, who was also Director of the American Spice Trade Association, had been very energetically propagandizing for domestic poppy cultivation. He had directly induced twenty-two growers in different parts of the country to plant poppies for sale of the seed to his company. At this time, growers in California were planting or preparing to plant for their 1942 crop.
Later claims that the seed-producing poppy was not really an opium poppy, that it had only an insignificant amount of morphine, etc., seem to have developed from the propaganda for poppy growing rather than to have been present in the minds of the farmers from the start.
In California, a division of the state government, Drug and Oil Plant Development, was, at this time, urging California farmers to grow the poppy. Planting of 6,000 acres was advocated, which it was claimed would produce 6 million pounds of poppy-seed.
Actually, the State Division of Narcotics Enforcement, toward the end of 1941 or early in 1942, issued permits for the planting of 2,000 acres to opium poppy. This was apparently done without consulting or notifying the Federal authorities, and the United States Narcotics Bureau in Washington did not become aware of it until May 1942. The United States Commissioner of Narcotics had understood that a tacit agreement existed that the state would not "license" growers except by agreement with the Federal Government. The state Chief of Narcotics Enforcement explained:
"After the enactment of the amendment to the Health and Safety Code of this state, enabling us to issue permits to growers of poppies, I asked the opinion of the Attorney-General of this state as to how far we could go to curtail the planting of these poppies. I was informed that the amendments which had been proposed and enacted into law in this state legalized the growing of poppies bearing opium and that we had no recourse other than to inquire into the good moral character of the grower and satisfy ourselves that the individual was not a trafficker in narcotics."
He also pointed out that nothing further had been heard relative to pending Federal legislation to outlaw poppy growing. Actually this legislation was being prepared but the Narcotics Bureau did not wish advance publicity on it.
The poppy growers were not the same men as in the preceding-year. Previously they had been seed growers for the companies marketing flower and vegetable seeds; in 1942 they were "practical farmers who are in the business for just as much money as they can get out of it." Most of them were now located in northern California, especially in the vicinity of Chico. A number had not had any previous experience with poppies. Some of these latter, after securing permits, did not even plant poppies, others had crop failures. It is said that only 378 acres, registered under state permits, were actually grown in this year. To these growers, however, the crop was enormously profitable.
The Commissioner of Narcotics issued an order to "warn all persons concerned of the danger, inseparably connected with the cultivation of the opium poppy for any purpose, of providing a new source of supply of contraband morphine to drug peddlers and addicts".
The poppy growers were not much impressed. They were not interested in possible narcotic dangers but in the high price of poppy-seed. Their fields were unguarded and sometimes quite open to the public road.
Capsules obtained for analyses showed, on the dry basis, from 0.25 per cent to 0.78 per cent morphine; the average was about 0.35 per cent morphine.
The Federal poppy control bill was passed by both Houses of Congress and was signed by the President on Saturday, 12 December 1942. It was headed:
"AN ACT
"To discharge more effectively the obligations of the United States under certain treaties relating to the manufacture and distribution of narcotic drugs, by providing for domestic control of the production and distribution of the opium poppy and its products, and for other purposes."
Some of the provisions were:
" Sec..2 (c). The term 'opium poppy' includes the plant Papaver somniferum, any other plant which is the source of opium or opium products, and any part of any such plant.
" Sec. 3. It shall be unlawful for any person who is not the holder of a license authorizing him to produce the opium poppy, duly issued to him by the Secretary of the Treasury in accordance with the provisions of this Act, to produce or attempt to produce the opium poppy, or to permit the production of the opium poppy, in or upon any place owned, occupied, used, or controlled by him.
" Sec. 6 (d). All licenses issued under this Act shall be limited to such number, localities, and areas as the Secretary of the Treasury shall determine to be appropriate to supply the medical and scientific needs of the United States for opium or opium products, with due regard to provision for reasonable reserves: Provided, however, that nothing contained in this Act shall be construed as requiring the Secretary of the Treasury to issue or renew any license or licenses under the provisions of this Act.
" Sec. 8 (a). Any opium poppies which have been produced or otherwise obtained heretofore, and which may be produced or otherwise obtained hereafter in violation of any of the provisions of this Act, shall be seized by and forfeited to the United States.
" Sec. 17. The Act may be cited as the 'Opium Poppy Control Act of 1942'."
In most states the Opium Poppy Control Act immediately ended commercial poppy cultivation, but in California it only produced protests and demands that the cultivation be licensed.
The law was misunderstood by some at first, and was interpreted in the same sense as the California state law, which had resulted only in expansion of the poppy culture. Thus a "United Press" dispatch published in some papers even had the heading "Opium Poppy to be grown", and went on to say: "President Roosevelt has signed legislation designed to promote production of the opium poppy in the United States, under close supervision of the Treasury and Agriculture Departments, to furnish a domestic source of supply of the narcotic for medical purposes".
The real purpose of the law was the exact opposite-not to "promote production of the opium poppy" but to end it. The Narcotics Bureau replied to inquiries as follows:
"The Opium Poppy Control Act, which was recently enacted, permits the licensing of opium poppy production only for the purpose of supplying the medical and scientific needs of the Nation for narcotic drugs. There is no immediate or presently prospective need for the growth of the opium poppy to supply medical and scientific needs, and, therefore, it is not now anticipated that any licenses will be issued."
The California growers contended that their situation had not been sufficiently taken into consideration by Congress: the law, they said, was all right for mid-western or northern growers, but their seed was already in the ground when the law was passed 11 December 1942, to say nothing of its effective date, 9 February 1943. The officials of the Narcotics Bureau had to admit some justice to this view. Privately, they blamed the state authorities who had issued permits for poppy growing, even when the legislation was before Congress. Moreover, it was now learned that the United State Department of Agriculture had approved the poppy cultivation! Because of the war, the farmers were required to file, with this Department, their plans for the year's crop; when these plans included the production of poppy-seed for food purposes, they had been approved by the local representatives of the Department of Agriculture, without any question having been raised.
A conference was held at the Office of the Bureau of Narcotics in San Francisco on 27 January 1943. Those present were two local officials of the Bureau, the state Chief of Narcotics Enforcement, the attorney for the California Farm Bureau Federation, the Chairman of the Committee of California Poppy Growers, and sixteen growers. Nine permit-holders were not present; two wrote that they had not planted, two that they could not attend that day, and five had not been heard from at that time. The rather casual attitude of the farmers is illustrated by the explanation of one grower, without a permit, who attended the conference. He said he had not asked for the state permit as he was very busy and wished to see first whether the seed would sprout or not.
It was finally decided that the growers would be permitted to harvest their crop, under state and Federal supervision, and with destruction, as before, of all plant residues left after obtaining the seeds. Of course, neither the Federal nor the state officials anticipated that poppies would again be planted without Federal licences. The Federal officials also expected that the state permits would henceforth be refused. Both these assumptions proved to be incorrect, leading to an apparent conflict between state and Federal authority, and to the so-called "Poppy Rebellion" of California.
Under date of 6 July 1943, the Commissioner of Narcotics received a letter from the California Chief of the Division of Narcotics Enforcement (no longer the same man as the one who had held this office when the cases began), stating:
"You may be assured that there will be no further permits issued by this department for the growing of poppies in California, at least until the matter is entirely clarified by your department."
This promise was not destined to be fulfilled. The last clause may have indicated a hope that the Narcotics Bureau would relent and license poppy cultivation: there was considerable political pressure toward this, but the Bureau remained adamant.
Early in December 1943, the Chief of the Division of Narcotics Enforcement of California informed the Federal officials that the Attorney General of the state had handed down a decision which obliged him to issue state permits for the growing of opium poppies in California.
This decision, which led to a conflict between state and Federal authority, was not addressed to the Division of Narcotics Enforcement, but was contained in a letter to the State Director of Agriculture, in reply to an inquiry of the latter. The letter cast doubt on the Federal law:
"While the Act may be open to question in some respects as to its validity and applicability to the situation described in your letter, we do not feel that it is necessary at this time to pass on such questions... You state that for some years growers have been engaged in the State in the production of blue poppy seeds for edible use pursuant to the provisions of Chapter 1, Division 10, of the Health and Safety Code. It appears from your letter that the variety so grown is distinct from that grown for the production of opium. It is suggested that while such poppy may come within the classification of Papaver Somniferum, it is actually not suitable for producing opium... licenses could not be issued under the Federal law... the foregoing reasons do not seem to be sufficient under the provisions of said sections for denying the issuance of a state permit."
The state Narcotic Enforcement Office decided that they were obliged to issue state "permits", but attached the following warning to them:
"WARNING: In issuing this permit, attention is called to the fact that you are in no way absolved from the provisions of Public Law No. 797, known as the "Opium Poppy Control Act of 1942", which Act makes it unlawful to grow the opium poppy plant in the United States except under license from the United States Treasury Department, and provides penalties for violations thereof."
The office of the Attorney-General of California attempted to get this "warning" clause left off the permits, because it might seem to make a. permit "conditional", but apparently it was retained. At any rate, the growers were also warned by the United States Narcotics Bureau, as will shortly be related.
As of 5 February 1944, the state Division of Narcotic Enforcement bad issued twenty-three permits to grow a total of 1,310 acres of opium poppies.
Heretofore the growers had generally conceded that their poppies were opium poppies, i.e., capable of producing opium, though not actually used for that purpose. The statement in the Attorney-General's letter, that the seed-producing poppy "is actually not suitable for producing opium", though not originating in his office, marked the inauguration of an intensified campaign to convince the public and Congress of the complete harmlessness of the seed-producing poppy-even in defiance of the facts-and to force the Narcotics Bureau to withdraw its opposition to poppy cultivation.
Some of the propagandists were self-deceived; some of the growers were undoubtedly convinced because they were now being told what they wanted to believe. The letter to the Attorney-General in November 1943 from the state Department of Agriculture had actually stated, "Apparently, under California climatic conditions, the morphine content is practically non-existent". Already, in December 1943, an official of the state Department of Agriculture admitted; "We might have been a little over optimistic as to the lack of morphine content in said poppies"-but the campaign kept on.
In February 1944, one of the growers wrote to the local office of the Narcotics Bureau: "We were advised by our State Attorney-General's Office, by the State Department of Agriculture and by the University of California, that, because of recent analyses, it is questionable (owing to the lack of opium products in our California adapted edible blue-poppy seed) [ sic] whether we need any permit of any nature".
The issue, really a straight-out one of law observance, was being confused in many ways. Of course, the narcotics officials had not claimed that the poppy seed was narcotic, only that narcotics were inevitably produced in producing the poppy-seed. Even this was now being denied: a commercial chemical laboratory was found in San Francisco, which, with no previous experience in analysing for morphine, made a perfunctory examination of poppy capsules and stems, and was then willing to report, "we can find no trace of morphine".
Poppy growers wrote to their Congressmen, and several wrote to Henry Wallace, then Vice-President, whose interest in agricultural subjects was well known, asking them to intervene in favour of poppy cultivation. One letter to the Vice-President declared:
"Men in both the Federal and State Narcotic Bureau personnel have admitted that, under the most favourable conditions conceivable, it would not be possible to extract opium or morphine profitably from the Edible Blue Poppy Seed plants grown in California".
"The U. S. Narcotics Bureau was, of course, unaware of any such "admissions". So far as the contention had any basis in fact, it may have referred to statements that the legal commercial production of opium could not profitably be made, for the legitimate market; but what was feared was illicit production for the illicit market, in which narcotics commanded prices many times higher than the values in the legal trade.
In 1943, by direction of the Commissioner of Narcotics, a scientific study was made, chiefly, though not entirely, from the published literature, on Papaver somniferum and other poppies. It was shown that all varieties of Papaver somniferum that have been examined produce morphine, while no other plant is known to do so. The reported isolation of morphine in the guise of "hopeine" from hops, in the last century, was a fraud and a myth. A few erroneous analyses of some plants of the poppy family were made in the early days, but these were later corrected. It is probable that Papaver setigerum-the closest relative of Papaver somniferum-does produce morphine, but no record of a careful botano-chemical study was found. In any case, Papaver setigerum is only a rather rare wild flower, found in the Mediterranean region, occasionally grown in gardens but not grown commercially even for floral purposes. Other poppies, such as the California poppy ( Eschscholzia californica), the Mexican poppy ( Argemone mexicana), the Oriental poppy ( Papaver orientale), and the common "corn poppy" or "field poppy" of Europe, the progenitor of the Shirley poppies ( Papaver rhoeas), have been analysed and other kinds of alkaloids found in them, but not morphine. By original work it was shown that the Tulip poppy ( Papaver glaucum), though listed as a close relative of Papaver somniferum, is chemically more closely related to Papaver rhoeas, and contains no morphine.
The study was published by the United States Treasury Department, Bureau of Narcotics, in 1944, under the title of "The Opium Poppy and Other Poppies".
In the beginning the Narcotics Bureau had proceeded largely by suasion, because there was not a firm legal basis for more vigorous action. Even after the Opium Poppy Control Act came into effect, the California farmers had been allowed to harvest their poppy-seed, because cultivation had been started before the law was enacted, and the violations were not wilful. Now the violations were wilful-though supported, to a degree, by some state officials-and it was evident that effective action must be taken or the law acknowledged to be a complete failure.
Beginning early in January 1944, registered letters began to go out to the growers, warning them that they were in violation of the Federal law, regardless of state permits. Some ploughed up their poppy-fields and planted something else; but others replied with form letters claiming that they had a right to produce poppyseed. They were banding together to fight the law.
The growers now left were chiefly well-to-do men who were willing to gamble on having their poppy crop destroyed by the Government, in the hope of enormous profits in case they were able, to bluff out the Narcotics Bureau, or defeat the law in a court case. They insisted on their "right" to produce a food crop regardless of narcotic dangers. What they refused to take into consideration was the fact that the reason the price of poppy-seed remained so high was that all other farmers were obeying the law-while they proposed to profit immensely by disobeying it.
Early in March 1944, the Commissioner of Narcotics recommended that the poppy plants in several fields be destroyed by narcotic agents, as a test case. Largely because of the state permits, it was decided to act more slowly, through the Department of Justice.
In this month the Secretary of the Treasury found it necessary to say, in reply to poppy propaganda sent to the Vice-President:
"A great deal of erroneous information to the effect that the poppies grown for seed did not contain opium or morphine was deliberately circulated by persons promoting their growth".
He added:
"No step should be taken by way of permitting opium poppy production in this country, which would, render our Government's traditional position inconsistent, and give aid and comfort to the enemies of effective international control of narcotic drugs".
On 22 March 1944, the Commissioner of Narcotics wrote to the known growers:
"I understand that information has been circulated that the blue poppies which have been grown in California are not opium poppies. This is incorrect. We have caused analyses to be made by both government and private chemists and have abundant proof that the blue poppies grown in California are opium poppies. If you insist on growing poppies this year, I shall be compelled to report you to the United States Department of Justice for prosecution".
At the same time the Commissioner issued instructions that an agent be sent to inspect the fields. The narcotic inspector who was sent reported, on 1 April 1944, that thirty-three fields aggregating 1,072 acres had been planted. A few to whom permits had been issued had not planted, and one grower had ploughed his plants under on about 16 March. Even after the several years of controversy, it was found that two or three farmers were growing poppies without state permits; they had applied for permits but had gone ahead without having received them. The plants at this time were only about 1 to 1½ inches high.
A narcotic agent was sent to join the inspector; the two were to keep continuous watch over the situation until it was finally settled. (The narcotic "agents" usually worked on enforcement cases, while the "inspectors" chiefly supervised the legal sales and use of narcotics.)
By the beginning of May, the growers had received their letters from the Commissioner of Narcotics and a number of them had decided to give up On 4 May1944, the two narcotics officers reported as follows: Poppy fields ploughed under, 10; in process of disking, 5; did not plant, 3; verbal promise to disk, 3. On 5 May, they reported that twenty-five growers had not yet ploughed under their fields, but ten of them were about to do so, leaving fifteen growers who had 725 acres in poppies.
The earliest analysis of the current poppy crop. was made in March. A land-owning company wrote to the Commissioner reporting that a farmer leasing some of its land was growing poppies; the officials of the company inquired about their own responsibilities in such cases. The District Supervisor of Narcotics was directed to obtain samples and find out if these were opium poppies. This he did although he found that the cultivation was under state permit and the plants, at the time, were very small-approximately two inches in height and having only 2 to 4 leaves. Not much was known about the morphine content of such very small plants but it was thought to be minute, consequently the chemist asked for a sample of five pounds. He got two pounds, and to secure this amount almost an eighth of an acre was denuded of plants. He had no difficulty in proving the presence of morphine in this material.
As soon as it appeared that some cases would be fought in court, the narcotic officers began systematically gathering samples in triplicate. They were sent to three government chemists who were experienced in narcotics work; one in San Francisco, California, one in St. Paul, Minnesota, and one in Washington, D. C. At first, whole young plants were pulled up; later the green capsules were cut off. No attempt was made to make the three samples identical, but in each case three samples were taken from the same field at the same time.
|
Washington chemist |
Saint Paul chemist | |||
|---|---|---|---|---|
|
Case No. |
Exhibit no. |
Morphine (per cent) |
Exhibit no. |
Morphine (per cent) |
|
Young plants |
|
|
|
|
| 3327 | 5 | 0.051 | 6 | 0.043 |
| 3330 | 5 | 0.062 | 6 | 0.047 |
|
|
8 | 0.058 | 9 | 0.040 |
| 3343 | 2 | 0.072 | 3 | 0.040 |
| 3344 | 2 | 0.052 | 3 | 0.040 |
| 3345 | 2 | 0.048 | 3 | 0.039 |
| 3346 | 2 | 0.056 | 3 | 0.035 |
| 3350 | 2 | 0.056 | 3 | 0.052 |
|
Capsules |
|
|
|
|
| 3327 | 13 | 0.18 | 14 | 0.19 |
|
|
16 | 0.16 | 17 | 0.17 |
|
|
19 | 0.21 | 20 | 0.20 |
| 3330 | 14 | 0.18 | 13 | 0.27 |
| 3343 | 8 | 0.17 | 9 | 0.23 |
| 3344 | 8 | 0.18 | 9 | 0.23 |
| 3345 | 5 | 0.25 | 6 | 0.19 |
| 3346 | 8 | 0.24 | 9 | 0.23 |
| 3350 | 8 | 0.17 | 9 | 0.19 |
There were no fundamental differences in the methods of analysis, nor in the results, though it will be noted that one set of results was consistently a little higher than the other on the young plants.
The agreement of analyses for capsules from the same field was good. Many of these capsules were quite immature and none had reached full maturity and ripeness. This probably accounts for the fact that none of them .ran as high as 0.3 per cent morphine. About 0.25 per cent to 0.5 per cent would be expected of most mature capsules (on the dry basis, of course).
In examining the dried plant material it was discovered that alcohol would extract only about half the morphine. This was unexpected, as some methods of examining plant material for alkaloids call for extraction of the powdered, dried material with alcohol. It was found that alcohol could be used to take out all the morphine from fresh, green material, but in this case, of course, the moisture of the leaves was also abstracted, presumably carrying the rest of the morphine with it. A satisfactory procedure for the dried material was found to be continuous extraction with warm or hot water for a number of hours.
It was found that the capsules contained about nine-tenths of the average United States Pharmacopoeia dose of morphine per capsule. This was an understandable way of expressing the content regardless of whether the capsules were green or dried.
In several of the most important cases, the green pods, shipped by air express to Saint Paul, would still yield the milky juice when incised. Although no more than a few centigrams of opium could be collected in each case, the chemist wished to complete the proof as to the identity of these "opium poppies". The droplets of juice were collected on one of a pair of balanced weighing glasses ("watch glasses") and dried at 60 degrees centigrade. The very accurately weighed opium was then assayed by extraction methods, the separated morphine being titrated with hundredth normal acid. The morphine percentages on the dry opium in four different cases were: 10.1, 10.93, 15.66, 17.35. In the last case it was also determined that 4.77 per cent of codeine was present and 9.36 per cent of combined narcotine and papaverine, in addition to the 17.35 per cent of morphine.
In Canada, in the spring of 1944, another case of abusive use of poppy capsules was discovered and prosecuted.
In California the poppy plants grew with great rapidity during April Early in May, the District Supervisor conferred with the District Attorney on a procedure to seize the crops.
On 10 May 1944, one of the California Congressmen asked that action be deferred, but the Commissioner of Narcotics replied, "Arrangements have been made to proceed under the law to forfeit the crops". At the same time he sent instructions to his District Supervisor to begin destroying poppies at once. On 11 May, the latter objected that the United States Attorney had proposed a different procedure.
On 12 May, the Commissioner sent an emphatic message to his District Supervisor:
"The procedure outlined, by the District Attorney should have been worked out months ago and decided upon instead of waiting until this late date. We want these crops taken out of circulation, either through the District Attorney's method, or through our own efforts... You have the entire responsibility from now on whether to follow the District Attorney or to plow under, whichever is going to be effective. Both or either have our approval".
In the meantime the District Attorney had prepared papers for seizing the poppy crops. At the same time he sent a final registered letter, to each grower:
"If steps are not taken immediately by you to plow under or otherwise destroy this crop under the supervision of the Federal Bureau of Narcotics, prosecutive steps will be instituted for the Enforcement of the Act."
The facts were given to the Press; one paper headlined "Opium Poppies Grown in Defiance of U.S. Law", another commented editorially on the "Opium Rebellion" and condemned the "recalcitrant farmers". At this time (17 May) the score stood:
Permits issued, acreage not planted, 398;
Acreage disked, 6351;
Acreage not disked, still growing, 580.
Most of the remaining growers would not budge, and the District Supervisor wrote asking for more explicit written instructions. On 19 May he was given explicit instructions by teletype:
"Bureau did not agree to non-prosecution of those growers who defied the law and refused to destroy poppies. You are instructed personally to arrest and file complaints against all growers who have not destroyed poppies".
The District Supervisor then went to the poppy locality-Chico and vicinity-and on 22 May personally arrested seven growers. Three of them promptly retaliated, through their attorneys, by filing a complaint against the Bureau of Narcotics, the Commissioner of Narcotics, the United States Attorney, the District Supervisor of Narcotics, and the narcotic officers who had been active, alleging that the Opium Poppy Control Act violated the Constitution of the United States. The newspaper headlines (23 May )read as follows:
"Opium Poppy Row in Court. Seven Growers Arrested, Three Seek Injunctions" ( San Francisco Examiner
"Poppy Growers Battle to Save $70,000 Planting. Seven Farmers are Arrested for Growing Poppies" ( The Sacramento Bee)
Notices of seizure were posted for 575 acres of poppies. According to a short article in Business Week, on the "Poppy Rebellion", the pre-war price of seeds was 7 cents a pound, currently it was 75 cents retail, and the growers stood to realize a return of about $750 an acre-if they won. (Apparently the return is somewhat exaggerated: in 1942 the average yield was 510 pounds per acre, but in the best fields it went 700 to 1000 pounds.)
Some of the growers now decided to destroy their crops, but on 27 May three of them changed their minds and joined the others, in spite of the fact that they had already destroyed a considerable part of their crops.
On 31 May, the United States Attorney directed his assistant to present the cases to the Grand Jury which convened at Sacramento on 2 June 1944. Only those were to be indicted who had not ploughed up, disked in, or destroyed their poppies.
Nine growers were indicted in seven distinct cases. It was not the Government's case against them which came to trial, however, but the complaint of six of the growers and their appeal for an injunction against the government officers.
The Tenth Amendment, by invading the reserved right of the State of California to provide for and regulate the production, cultivation, and growing of agricultural crops within its borders, When the growing and production were conducted solely for intrastate transactions;
( b) The Fifth Amendment, by depriving the plaintiffs of their property without due process of law.
They also alleged that the officers were endeavouring to apply the Act in such a way as to deprive the plaintiffs of their property without just compensation, and that the enforcement of the Act did not come within the police powers of the United States so far as the growing and production of edible blue poppy-seed was concerned.
The plaintiffs asked:
"1. That it be decreed that edible blue poppies raised solely for poppy seeds are not an opium poppy, nor a plant which is the source of opium or opium products,and that the production of edible blue poppies does nor come within the purport or application of the Opium Poppy Control Act of 1942;
"2. That said Opium Poppy Council Act of 1942 be declared unconstitutional...;
"3. That the defendants, and each of them, be permanently enjoined and restrained from entering the real property of the plaintiffs herein and from seizing, forfeiting, and/or destroying the edible blue poppy crops now growing upon said real property..."
On 3 June 1944, Federal Judge Martin I. Welsh granted a temporary restraining order against the Government, to protect the crops from destruction until the case could be heard.
Although the Press generally favoured the Narcotics Bureau, the farmers who had been growing poppies or wanted to do so had considerable influence. In addition, some state officials, especially of the state Department of Agriculture and the Attorney-General's office, had, from the start, put the state in the position, of favouring poppy cultivation. Under these influences the state legislature made a move which was doubtless intended to help the poppy growers in their case, though actually it could not legally affect what they had already done contrary to existing law, Headlined "Poppy Growing Approved by State Legislature", the news item of 8 June 1944 read: "An unanimous vote in the assembly today completed the adoption of a joint resolution by Senators Gordon, Crittenden, and Denel, asking Congress to enact legislation recognizing the importance of blue poppy seed for food uses and permitting its production".
Because of its urgency, it was decided that the case should be heard by a Statutory Emergency Court, consisting of two District Judges, Martin I. Welsh and Louis R. Goodman, and a Judge of the Circuit Court of Appeals, Clifton Mathews. From this Court an appeal could be taken directly to the Supreme Court of the United States. This procedure was adopted in order to get action, promptly, in regard to the existing poppyseed crop-which was ready for the harvest-and to dear the way for a final decision on the constitutionality of the Opium Poppy Control Act.
The three-judge Court decided to make its decision primarily from briefs and affidavits, without requiring oral testimony of witnesses. In the meantime, several hearings were held before the District Judge.
On 19 June, the growers made a motion asking that they be permitted to harvest their crop. This was denied. On 7 July they filed a new motion to the same effect. At the hearing on 10 July it was shown that three of the growers had mowed some of their poppies anyway, preparatory to clearing the ground for other crops. The18 poppy plants were, however, apparently just left lying in the fields at this time. The motion of the growers was again denied and they were strictly ordered not to touch any of the poppies in the field again, until the Court had made a decision.
On 27 July, the attorney for the growers suggested that the crop be harvested and sold and the proceeds impounded, and in the event the litigation resulted unfavourably to the growers that the entire proceeds be turned over to the American Red Cross. But this offer came too late and was unacceptable anyway, because, for two years past, the recalcitrants had been harvesting poppy-seeds, while those more willing to obey the law, or the wishes of the Narcotics Bureau, had destroyed their plants or given up the cultivation.
Extravagant claims were made by the growers that their agricultural poppies produced only insignificant amounts of morphine in the capsules at a late stage of growth; that all poppies produce opium and morphine, including the California poppy ( Eschscholzia californica), the state flower of California; and that innumerable other agricultural plants produce poisons in some part of the plant or at some stage of growth, so that there was no more reason to prohibit the cultivation of poppies for food purposes than of tomatoes, potatoes, lima beans, rhubarb, lettuce, tapioca, apricots, and cherries !
The analytical results of course showed plainly the amount of morphine in the poppies under attack. To further combat the claims of the growers, an affidavit was prepared by one of the government chemists, part of which will be quoted here:
"Affiant states that he is familiar with methods for the extraction and identification of morphine, and has on numerous occasions extracted morphine from Papaver somniferum (opium poppy) plants or parts thereof (as capsules, leaves, or petals, or seedling whole plants) and positively identified the extracted morphine.
"Affiant states that he has personally examined plants of the species Papaver rhoeas, Papaver glaucum, and Papaver orientale, species grown for their flowers in the gardens of the United States, and that no morphine whatever could be detected in the plants examined belonging to these species.
"Affiant further states that he has made a detailed examination of the scientific literature concerning poppies and the question of morphine in plants, and that there are no reliable reports of morphine being found in any species other than Papaver somniferum; that a few scattered reports made in the early days of alkaloidal chemistry of its occurrence in other species have been disproved by later investigators. The absence or morphinehas been established by examinations made and published: for Papaver rhoeas (the Corn Poppy, Field Poppy, Shirley Poppies) by Hesse (1865, 1867, and 1890) and by Awe (1941); for Papaver orientale (the Oriental Poppy of the flower gardens) by Klee and Gadamer (1914) and by Konolova, Yunusov, and Prekhov (1935); for Eschscholzia californica (the California Poppy) by Reuter (1869), Danckwortt (1890), Wintgen (1898), Schmidt (1901), Fischer (1901), and Fischer and Tweeden (1902); and for Argemone mexicana (the Mexican Poppy) by Schmidt (1901), Schlotterbeck (1902), Bloemendahl (1906), La Prince (1909), Santos and Adkilen (1932), and Almeida Costa (1935).
"Affiant further states that poppies other than Papaver somniferum have a milky latex, but that since the latex in other cases does not contain morphine these other species do not contain or yield any true opium nor are their dried juices known to be used by any drug addicts.
"Affiant further states that he has personally examined the agricultural variety of Papaver somniferum grown for its edible seeds, and that narcotics are obtainable therefrom without chemical processing...
"Affiant further states that such plants as tomatoes, potatoes, lima beans, rhubarb, lettuce, tapioca, apricots, and cherries, and castor oil plants, contain no narcotics sought after by drug addicts, and that such poisons as are contained in or capable of being obtained from such plants are in no way comparable to opium, morphine, or the dried capsules of Papaver somniferum in their capability of abuse by reason of drug addiction."
The basic question, of course, was simply whether or not the Opium Poppy Control Act was constitutional: there was no question but that the poppy growers were violating it. There is no need to quote the brief for the "defendants"-the United States Attorney and the District Supervisor of Narcotics-as the views of the government attorneys were substantially accepted by the Court.
On 28 August 1944, the Court handed down its decision unanimously affirming the constitutionality of the Opium Poppy Control Act. The latter part of the decision will be quoted here:
"The competency of the United States to enter into treaty stipulations with foreign Powers designed to establish, through appropriate legislation, an internationally effective system of control over the production and distribution of habit-forming drugs is not questioned. The obligations of the United States incurred as a party to the two Conventions heretofore mentioned were lawfully undertaken in the proper exercise of its treaty making power. And Congress is constitutionally empowered to enact whatever legislation is necessary and proper for carrying into execution the treaty making power. And Congress is constitutionally empowered to enact whatever legislation is necessary and proper for carrying into the treaty-making power of the United States...
"By the terms of the International Opium Convention of 1912, the United States obligated itself to control the production and distribution of raw opium. The provisions of the Opium Poppy Control Act express the determination of Congress that effective control of opium production and distribution necessitates legislation limiting the proximate source of yield of the raw opium-the opium poppy-whatever the purpose for which its cultivation is undertaken. The constitutionality of the measures thus chosen by Congress to give efficacy to the treaty stipulations of the Convention is not dependent upon the wisdom or success of the choice. Nor is it significant that the Conventions contain no stipulation expressly committing the signatory Powers to the obligations of exercising control over the cultivation of the opium poppy. The power of Congress to enact such legislation as is necessary or proper to carry into execution powers vested by the Constitution in the United States, of which the treaty-making power is one, includes the right to employ any legislative measures appropriately adapted to the effective exercise of those powers... So long as a rationally sound basis exists for the congressional determination that particular legislation is appropriately related to the discharge of constitutional powers, the validity of such legislation is unassailable.
"It is apparent to this Court that efficacious control over the production and distribution of raw opium can well depend upon the limitation of the cultivation of the opium poppy within the United States to legitimate medical and scientific needs only. The appropriate relationship of the means adopted by Congress to the ends thereby sought to be attained is evident. The opium poppy is the immediate source from which the raw opium is obtained; its cultivation may be undertaken without difficulty, without detection, and for illicit purposes even under the guise of legitimate pretenses; the process of extracting the raw opium from the opium poppy is a simple one; the growth of the opium poppy, wherever undertaken, can reasonably be said to afford attractiveness to those seeking a source of opium supply either for the satisfaction of their own cravings or for the profits offered by the contraband market; and this attractiveness can be expected to increase as suppression of the drug evil becomes progressively more effective and other sources of drug supply become more scarce. In view of these considerations alone, this Court is fully satisfied with the appropriate relativity of measures limiting the cultivation of the opium, poppy to the objectives of the treaty stipulation to control the production and distribution of raw opium.
"We hold the Opium Poppy Control Act of 1942 constitutional."
It was at first thought that the poppy growers might appeal to the Supreme Court of the United States. It was obvious, however, that their chance of overturning thelaw would be exceedingly small, and, on 6 September 1944, the narcotics officers still observing the situation were informed by the local attorney for the Poppy Growers Association that the growers had decided not to appeal. By 16 September each of the growers had requested permission from the Court to destroy his poppies.
The destruction of the poppies was duly carried out, and the indictments against the growers were dropped. Although not finally prosecuted, their defiance of the law had brought them nothing in the end but heavy expense.
A check-up in the following year, 1945, revealed that one of the poppy growers had harvested approximately a ton of poppy-seeds from "volunteer" plants, which had sprung up from the seed scattered in 1944, although the ground had. been planted to peas. The Commissioner of Narcotics wrote, "It is the Bureau's opinion that the grower should be indicted and prosecuted". This was not done but the seed was placed under seizure in September 1945. With the usual delays, it was not until 1 March 1946 that a libel of seizure was finally filed.
The defendant's attorney now tried to apply a method sometimes used in food and drug cases-that the government should sell the seed, deduct the costs of seizure and sale, and turn the balance of the proceeds over to the grower! After this was rejected, a default decree of destruction was finally entered, 22 January 1947. This was later modified and the seed sold for $262.50, on 18 April 1947, to a dealer in seeds. The quantity was 2,100 pounds; it analysed 84.43 per cent poppy-seed, 3.13 per cent inert matter, and 12.44 per cent weed seeds, so the dealer bid for it only 12 cents per pound. By this time his company was purchasing pure imported poppy-seed at 17 cents per pound, and no one had much interest in the matter any longer.
Thus, ingloriously, the "Poppy Rebellion" trailed out and finally ended.
Should it be necessary for the United States, in a time of crisis, to produce its own opiates, it is thought that about 600 pounds of poppy-seeds could be obtained per acre, and about 400 pounds of dried capsule chaff. At 0.5 to 0.3 per cent morphine content in the chaff, a little over some 13,000 to 22,000 acres would be needed to fill the needs of the United States for morphine, codeine, etc.,-425,000 ounces in terms of morphine. The minimum area needed, 13,000 acres, would yield about 7,800,000 pounds of poppy-seed, as compared with normal imports of 6 million to 8 million pounds. More seeds could be used for oil. The requirements of the United States for the two products of the poppy plant could therefore very well be brought into balance, on perhaps 15,000 to 20,000 acres, if domestic cultivation should ever be necessary.20
The United States, however, has no present intention of entering the field of poppy cultivation. On the contrary, this field was abandoned as a matter of national policy, and commercial poppy cultivation suppressed even during the war: for it is the conviction of the narcotics authorities of the United States that only by striking at the source can the opium evil finally be overcome. It may be that in some countries the poppy can be grown for seed alone, or for seed and alkaloids, without the danger of narcotic addiction spreading among the popu lation. Certain it is, however, that, in some countries, opium is produced far in excess of legitimate needs. It is the belief of the United States that the only way to conquer the opium evil is by restricting, and, where necessary, completely abolishing, the cultivation of the opium poppy plant itself. The narcotics authorities of the United States have expressed their satisfaction that the United States can contribute, by its own sacrifice and example, to this end
