The bar that Henry Scherf ran at 463 Pennsylvania Ave. NW was called the Concordia. The name comes from the word “concord,” which means “in harmony.”
St. Clair Davis did not find the Concordia very harmonious.
On a Saturday in early August 1872, Davis — a hotelier — entered the Concordia and ordered a lager beer, for which he was charged 10 cents. This struck him as excessive, given that a glass of beer typically cost 5 cents.
Scherf explained that it was imported beer. From England.
Davis inspected the cask and saw it bore an internal-revenue stamp, indicating it was domestic, not foreign. He then looked around for a price list, which since the passage of a District equal rights law earlier that year was required to be posted in a conspicuous place by bars, restaurants and “ice cream saloons.”
It struck Davis that African Americans such as himself were being overcharged in an attempt to keep them away. His suit against Scherf wound up later that month in the court of Judge William B. Snell. It was one of the first times the 1872 Equal Services Act — later dubbed one of the city’s “Lost Laws” — would be tested.
Scherf’s attorney, a man named Hine, raged against the law, which, he said, forced business owners to “recognize” people — black people, in other words. According to the Evening Star, Hines argued that “instead of depending upon their manhood and independence for recognition, this class of people had resorted to the expediency of having an act passed forcing dealers to place a price list in their places of business.”
Snell was unmoved. He ordered that Scherf forfeit his license and be fined $100. The prosecutor, Mr. Miller, said he prosecuted the case “with more pleasure” than any he had been involved with.
Later that month, an African American man named William H. Foote entered the restaurant of Sebastian Aman at 316 Ninth St. NW and, accompanied by his brother Charles, ordered a whisky. The barkeep, who, like Foote, was black, said his orders were not to serve “colored” people.
In court, Aman’s attorney argued that it was “detrimental to the public that the legislature should compel restaurant keepers to sell whisky to the human family.” Besides, he said, the Footes looked white (which seems an odd point to make). And it wasn’t a bartender who refused to serve them, it was a waiter.
To the prosecutor, Mr. Cook, the case was clear. “There was devilishness and nothing of heaven in this disposition to keep up caste,” he said. He denounced the petty system of distinction and closed by saying, “Come, let us clasp hands over this business.”
Judge Snell fined Aman $100 and demanded the forfeiture of his license. “Well-behaved persons have the right to be served,” the judge said.
Snell was fast becoming the judge who heard cases involving violations of the city’s nascent equal rights law. Another came his way in November 1872. R.W. Thompkins, a clerk at Freedmen’s Bank, had gone with some colleagues to a confectionery run by Frederick Freund at 11th and Pennsylvania NW.
Thompkins was handed a price list. The item he wanted — peach ice cream — was $2. He was told he would have to pay in advance.
This was exorbitant. The cost for a bowl of ice cream in Washington was typically 15 to 30 cents. Thompkins went to the counter and asked whether this was the way they treated all their customers. Those were the rules, he was told. He and his friends left, ice-creamless.
In court, Freund’s attorney called witnesses who testified that one of the black bank clerks had entered smoking a cigar and wearing a hat, “both of which were contrary to the rules and custom of the house.” The men had spoken to Mrs. Freund in a “loud and boisterous” manner. One had called the waiter “a tool.”
In his ruling, Judge Snell called the high price a “pretext” for subverting the law. In his opinion he was careful to explain his reasoning. “It is clearly manifest that the defendant was attempting to evade the law by insisting upon something so absurd and oppressive as to compel these parties to withdraw from his restaurant unserved,” he said.
The Equal Services Act, Snell said, was in harmony with the Constitution of the country and the law of the land. If communities or individuals, misled by prejudice, “fail to recognize the logic of events, it is quite certain the logic of events will not fail to recognize them. Rights which have cost a revolution will not stand aside for pretexts.” Snell found Freund guilty and rendered the prescribed penalty: a $100 fine and forfeiture of his license.
All three defendants — Henry Scherf, Sebastian Aman and Frederick Freund — vowed to appeal.
And all three did. In December 1872, Judge Arthur MacArthur ruled that the prosecution had failed to prove that the plaintiffs’ treatment was due to the color of their skin. He threw out all three cases. The restaurants remained open for business.
Tomorrow: African American attorneys take aim at the famed Harvey’s restaurant.
For previous columns, visit washingtonpost.com/people/john-kelly.