USA > Ohio > Cuyahoga County > History of Cuyahoga County soldiers' and sailors' monument. Scenes and incidents from its inception to its completion.--Description of the memorial structure, and roll of honor > Part 19
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"Major Gleason said it was clear that the Monument was a desirable thing, since citizens of all parts of the city were clamoring for its location in their vicinity. In the Public Square it would benefit all, and the desire to have it there was not prompted by persons or corpora- tions with axes to grind. He opposed the City's propo- sition to compromise, and said it was not a fair or a inanly one.
"George A. Groot said: 'In the words of Perry, ' Don't give up the ship.' We are standing on land wrested from the enemy, and we should not give up an inch. A mob has been stirred up by the editor of a local paper, but we shall not yield a particle. The people who are doing the objecting have been imported from Europe, and Tuckerman is a sample.'
"Rev. Dr. John Mitchell said he was proud of the Soldiers, and proud to see how they stood under the fire of adverse criticism. He said that he attended the meeting of the Board of Trade when the matter was discussed there, and went away disgusted. Instead of its being a meeting of business men, he thought it was that of a hired crowd of mnen. 'I only want to say,' he
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continued, 'if you give up your rights and accept an- other section of the Square, the Monument will never go in the Public Square at all. If you take the other section of the Square, you will deprive the people of their only public meeting place, and will jump from the frying-pan into the fire.'
"The question was then put upon the adoption of the resolutions and they were carried with enthusiasnı.
"The meeting adjourned with three rousing cheers for the Monument."
A meeting of the Commission was at once called in Captain Scofield's office. Eleven meinbers were pres- ent, the absent one being Dr. Walters. The proposi- tion from the City for a compromise on the northeast section of the Square was presented. The action of the Soldiers' and Sailors' Union was also communicated. The opinions of the Commission's counsel were also read. General Leggett then offered a resolution which recited that in view of the action of the Soldiers' and Sailors' Union, and acting upon the advice of their at- torneys, the Commission minist and would respectfully decline to entertain the compromise. The resolution stated that in the opinion of the Commission the peo- ple were in favor of the present site, and that further discussion of the matter be dispensed with. It was also advised to push the work as rapidly as possible. The resolution was adopted unanimously. It was or- dered to send copies of the following resolution to the City Council, the Board of Control and the Board of Trade Committee :
·
"GENTLEMEN: WHEREAS, The City of Cleveland has by reso- lution of its Council and the action of its other officials refused to remove the Perry statue, or change the water main, or remove other obstructions from the southeast section of the Public Square, prepar- atory to the erection of the Monument thereon, which is provided for by the act of April 16th, ISSS, and the acts supplementary and amendatory thereto, it is hereby
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" Resolved, That the Executive Committee of this Board is here- by authorized, on behalf of this Board, to take all necessary steps, and make all necessary contracts, for the removal of the said Perry statue and other obstructions, and to change the water main so as not in any way to interfere with the erection of the Monument, at the expense of this Board, and to accomplish the work of such removal and change at as early a time as practicable, and that the Committee confer with the proper City officials, with the view of securing their friendly co-operation in this matter. Adopted."
The Commission then adjourned, subject to the call of the President.
The truce was ended. The battle must now be fought to a finish.
The Cleveland World, of the 15th, had the following :
" Major Gleason said Wednesday that the Monument Commission will consider no further proposals to com- promise on any other site than the southeast corner.
"'The Soldiers of the county have declared them- selves,' said lie, 'and we now propose to abide by their decision. The members of the Commission, with the exception of two or three, have left the city.'
"Mayor Rose said he was surprised at the action of the County Soldiers' and Sailors' Union. The case, so far as the City was concerned, was entirely in General Meyer's hands, he continued.
" The Law Director stated emphatically that he did not intend to let the matter drop.
"'We shall prosecute the case in Court to the end,' said he. 'When the Circuit Court opens in October we will be there, and if the decision is against us, it will be carried to the Supreme Court of the State.'"
Brave words, wordy General. Great Cæsar's ghost ! He will see us again ; aye, at Philippi! "The Ides of October " have come and gone, and the grimn General is still in hiding.
CAPTAIN W. H. HUTCHINSON.
XVIII.
F `OR some time past hints had been frequently mnade that Judge Williamson would appeal his case to the United States Court. It was several times alleged, in print, that this action would be taken, the wish be- ing father to the thought. These fairy tales did not at all frighten the Commission. When these rumors were first set afloat, the junior counsel of Judge Williamson, William F. Carr, Esq., met the President of the Com- mission and said to him :
" You may quietly say to the Monument Commission that we have got through. The Supreme Court decis- ion settled our case. We know when we are whipped. The old Soldiers have knocked us out, and we sur- render. The decision is correct, the site is settled, and we gracefully bow to the law laid down by the highest tribunal in the State. The outcome will eventually be a blessing in disguise."
The Commission, knowing this, did not borrow any trouble from that source, but the kickers continued to fondly hug their delusion.
It now looked like fairly clear sailing for the Co111- mission, but soon the clouds began to gather. Judge W. W. Boynton, attorney, stockholder and director of the East Cleveland Street Railroad Corporation, who went into a trance after the Supreme Court decision, again " bobbed up serenely." The objections of every interested and disinterested citizen had been met and overcome. A happy thought now entered the mind of the street railroad attorney. Way down East, nestled amidst the granite hills of New Hampshire, lived a
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pair of descendants of early Clevelanders whose sun- light might be obscured and whose breathing space might be contracted by the erection of the Soldiers' Monument in the southeast section of the Public Square. They must be " seen," and mnade to go to law about it. What a flimsy pretext ! Whipped and ut- terly routed in all of the local Courts and the State Supreme Court, the United States Court was now held as a coup de grâce. This Napoleonic strategy of the street railway corporations, engineered by Judge Boyn- ton, in which he was urged on by the City officials and the organ of the cranks was to be a coup de maître. Now, verily, the Monument Commission would quake, swap sites, throw up the sponge, or do anything asked of them to stop further proceedings. Our "friends" Mayor Rose, Director Herrick, Law Director Meyer, the "Constitutionalists," the cranks, were falling on each other's necks in their ecstatic bliss.
We let the Leader, of September 15th, show the "line up" for the last part of the desperate game :
" At 2 o'clock, Wednesday afternoon, application was made to Judge A. J. Ricks, of the United States Circuit Court, for a federal injunction against the Monument Commissioners.
"The controversy over the location of the Soldiers' Monument was taken into the United States Court by Mrs. Emma A. Hoyt, and William D. Hoyt, her hus- band, residing in Manchester, New Hampshire, who own the property on the Public Square occupied by the Forest City House. They filed a bill of complaint against the Monument Commissioners and McAllister & Dall, the contractors who are engaged in laying the foundations for the Monument. They asked for an in- junction restraining them from taking possession of the Square, from enclosing any portion of it, from removing the statue of Commodore Perry, and from proceeding
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to erect the proposed Monument on any portion of the Square. They claim that the Square was originally deeded to the public by the Connecticut Land Com- pany, and that their property was deeded from the Connecticut Land Company, with the understanding that no building or structures of any kind were to be placed upon the Square. The suit is practically upon the same ground as the original suit brought in the Court of Common Pleas and which went to the Su- preme Court and was there decided in favor of the Monument Commissioners. Judge Boynton, one of the attorneys for Mr. and Mrs. Hoyt, said that there was practically no difference between the present suit and the one which was decided by the Supreme Court, and that precisely the same questions were involved. He said that they believed that the Federal Courts would look at the matter in a different light from the State Courts, however.
"Among those present when the arguments were commenced were General Leggett, of the Monument Commission ; General Ed. S. Meyer, Judge Boynton, his associate, J. H. Webster, for the complainants ; Judge Jones, Loren Prentiss, Esq., and several inter- ested listeners, besides the government officials. By general consent Mr. Prentiss was allowed the first speech in opposing the application for an injunction. He objected to the proceedings on the ground that the points involved had already been decided by other Courts. He said that the City had investigated the inatter very thoroughly; that it had looked into every point and had taken advantage of every possible ques- tion that could be brought up in opposing the location of the Monument in the Square. He thought that the same rule applied in the United States Court as in the State Court as to the right of action and right of in- junction, and that inasmuch as all these questions had
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been decided, the action could not be continued. Mr. Prentiss spoke for a great part of the afternoon in re- viewing the questions and taking issue with the aver- ments in the bill of complaint, and insisted that the parties had no standing in the United States Courts upon those questions.
"Mr. Prentiss was succeeded by Judge Boynton, who spoke in favor of the application for an injunction. He stated that the action was brought for the purpose of showing to the Court that there were many points in the decision of the Supreme Court in the Williamson suit which were wrong. He insisted that the decision of the Supreme Court of Ohio was no bar to the action in the Federal Courts, even if the same questions were involved. Judge Ricks stopped the arguments and stated that he would grant a temporary restraining or- der until such time as he could hear the full arguments. He stated that Judge Taft, of Cincinnati, would be here in a few days and would sit with him in the case. It is probable that the case will come up for hearing next Monday, and possibly earlier than then if Judge Taft arrives this week. The bond of the complainants was fixed at $1,000. It was furnished by Lee McBride and R. M. Cobb. In the meantime all work on the Monument foundation has been suspended by order of the Court."
Thus again was the advance of the Commission temporarily checked. Safely entrenched, we patiently awaited this, the last and most desperate charge of the very light brigade. We were not long kept in suspense. The United States Government, through its Courts, as well as through its armies, moved with a dash and cer- tainty that completely annihilated the enemy. The corporations, the cranks, the real estate jobbers were knocked down and pounded beyond all recognition. Law, order and justice prevailed.
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The case was argued before Judges Ricks and Taft, at Cincinnati, the latter part of September. The de- cision was rendered by Judge Ricks, in Cleveland, on October 9th, 1892. We copy from the World, of Octo- ber Ioth :
" It looks very much as if the Soldiers' Monument would be erected in the Public Square.
"Once again the opposition to the site chosen by the Monument Commission gets a black eye.
"Judge A. J. Ricks, in the United States Circuit Court, Tuesday morning, denied the application of Emma J. Hoyt, one of the owners of the Forest City House, for a temporary injunction restraining the Con- missioners from proceeding with their work.
" The room was crowded with interested spectators. Major Gleason, President of the Commission, was there, smiling and confident. Close to the Judge's bench sat Director Meyer, Judge J. M. Jones, Gen. Elwell, At- torney Loren Prentiss, Capt. James Hayr, Capt. Levi T. Scofield, Capt. E. H. Bohm, Capt. Dewstoe, Gen. M. D. Leggett, Capt. Molyneaux, Justice Bauder, and inany other notables.
" When Judge Ricks ascended his bench, silence quickly prevailed. His decision in full was as follows :
" The complainant as a tenant in common owns a part of the property known as the Forest City House, which abuts upon the Public Square in the City of Cleveland. She has filed a bill and seeks as such property owner to enjoin the defendants from erect- ing in the southeast quarter of the Public Square a monument or mausoleum to commemorate the services of the Soldiers from Cuy- ahoga County who died in the army during the late Civil War. She avers that the Public Square when the City thereafter to be incor- porated was platted was dedicated by the Connecticut Land Com- pany, the original owners in fee of the land, as a common for the enjoyment, use and benefit of the public of the City when duly or- ganized.
"She avers that the dedication gave to her as a joint owner of property abutting said Square by mesne conveyance from said original grantor and dedicator a vested right to have said common
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or Public Square forever applied for such public uses as the people of tlie City to be organized thereafter miglit determine, providing such uses were within the terms of the dedication. She further avers that the defendants who are organized under the Statutes of Ohio as a Board of Monument Commissioners, propose to erect upon said quarter of the Public Square a structure called a Soldiers' Monument, which is in fact a stone building 44 feet square and 20 feet high, constructed upon an elevated stone esplanade about 100 feet square, out of which a stone shaft arises 125 feet high, and that this structure is of such proportions and shape as to monopolize the greater portion of that quarter of the Square, and is to have such rules and regulations as to its control when completed, as to limit and curtail the public in their right to its use and enjoyment, and therefore the said Public Square is to be applied to a use not a public one within the spirit and scope of the dedication.
" She avers that the City has never legally given said defendants any authority to occupy said Square for the purposes named and that the sole power to grant the use of any part of the Square for public purposes is vested in the Park Commissioners, who are a branch of the Municipal Government, and that said Commissioners have repeatedly refused to allow the Square to be occupied or used by the defendants for said Monument.
" This misapplication of the use to which said common was dedi- cated by the legislative enactment authorizing said Monument Commissioners to occupy it for the purposes named, and their at- tempted use of the same for such purposes, the complainant avers is in violation of her contract and vested rights by State authority, and is therefore in contravention of the Constitution of the United States.
" The defendants answer that they are acting under the authority conferred by the legislative enactment of April 16, ISSS, and that the power to determine the public uses to which the Public Square in Cleveland is to be applied is vested in the State Legislature, which is the creator of Municipal Corporations in Ohio, and vested with the power to define the limit of their municipal powers. The validity of the act under which they were appointed and are 110w exercising their powers has been affirmed by the Supreme Court in a suit involving substantially the same issue now presented for our consideration. It is contended that the decision of the Supreme Court construing the scope and validity of this act of the Legisla- ture is the voice of the highest judicial tribunal of the State, affirm- ing the authority of the Legislature to prescribe the public uses to which the Public Square of a city may be applied, and that the Court sitting within the State of Ohio to administer the laws of the
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State when not in conflict with the Constitution and Laws of the United States, must follow such decision.
" The principle claimed is undoubtedly correct. The Supreme Court of the United States, in repeated decisions, has well defined the class of cases in which the Courts of the United States may con- strue the law for themselves, and in as many decisions lias as clearly held that as to the scope and application of State laws, when not in conflict with the Constitution and Laws of the United States, the construction given to them by the highest Courts of the State is binding upon us.
" It is, therefore, important to determine how far the rights of the complainant in this case are fixed and controlled by the statutes of Ohio. At the time the dedication of the common, or Public Square, was made, in 1796, the City of Cleveland was not yet created. The fee to the Public Square so set apart for public uses was hield in abeyance until the act of Dec. 6, 1840, when it was vested in the County in which the land was then located. 'In trust to and for the purposes therein named, expressed or intended, and for 110 other use or purpose whatever.' (First Chase Statutes, 211.) There was nothing upon the map or plat defining the use intended, except that the space denoting the present Public Square and streets about it was to be used as a 'common.' This was the word used in the statute. The dedication was for the City of Cleveland, to be there- after organized under the authority of the Legislature, and for its inhabitants. But to what uses was this dedication made? If the grantors had made the nature of their grant specific in written terms, there is no doubt that the City of Cleveland (or even the Legislature of Ohio if vested with supreme authority over the trust, as claimed ) would be held by the Courts to strictly apply the com- mon to the uses defined and to 110 otlier.
" But 10 such written terins were stated. The grant was made as a common or Public Square and the uses to which it was dedicat- ed are the uses to which the Courts have held that property similar- ly dedicated in other cities in Ohio can be applied. We have then a dedication of the Public Square to public use, with the people of the City of Cleveland claiming to be sole trustee to determine in what manner and to what public use it should be applied. If we grant that the complainant has a vested right as an abutting owner of valuable property on the Square to have it applied to the uses in- tended by the grantors, what is the nature and extent of this vested right? It cannot be to her or hier grantors the right to say what shall constitute a public use of the Square. Her grantors, as the original donors of the Square, did not see fit to clearly define the extent and character of the uses to which it should be applied, as they might have done if they intended or expected the uses to be
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limited or specific. They simply set apart an open space on the plat and marked it 'common.' This leaves the nature and extent of the uses to which the common may be applied to be determined by the trustees under proper legal principles, provided such uses are public uses. What are 'public uses' within the meaning of a dedication so made, is well settled by repeated decisions in Ohio, beginning with the earliest reports of the Supreme Court and fol- lowing down to the latest. It has been held that a Court House was a public use to which such space or common might be applied.
"In the case of Langley vs. Gallipolis, 20 S., the Supreme Court has said : 'Such a place (a common) thus dedicated to the public may be improved and ornamented for pleasure grounds and amuse- ments, for recreation or health, or it may be used for the public buildings and place for the transaction of public business of the people of the village or city, or it may be used for purposes both of pleasure and of business.'
"It appears from the stipulation as to facts filed in this case that two Court Houses were once placed on this Square, one on the northwest quarter and one on the southwest quarter. These public buildings have been removed, and the Square, with streets running through it, has for years been open and unobstructed.
"We think it fairly established, then, by the decision of the Su- preme Court of Ohio and other States, that a public Monument may properly be erected on a Public Square, and that such appro- priation of public ground is a public use for public purposes. The size of the Monument, its artistic merit, as well as the judgment ex- ercised in the selection of the site, are not matters for the consider- ation of this Court.
"They are within the discretion of public authority, to whom by law the control of the Public Square is entrusted. In this case no dedicated public street is to be obstructed by the Monument. The diagonal paths through the southeast quarter of the Square are not highways, in which the public has acquired a vested right, but they are like the walks of a park, subject to change at will of the lawful authorities in control. The access to complainant's property will not be interfered with in the slightest degree.
"We, therefore, conclude that the use proposed is within the uses to which the Square was dedicated. As before stated, the Supreme Court of Ohio has decided that the Soldiers' Monument Commission is a public authority lawfully constituted by act of the Legislature to control the public uses of the Public Square to the extent of erecting thereon the Soldiers' Monument. This decision deter- mines finally the right of the Legislature of Ohio, so far as the limitations imposed by the State Constitution are concerned, to provide for the appointment of the Commission, and to confer on
LIEUTENANT - COLONEL MERVIN CLARK.
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it the powers given in the act. That decision is final as to the va- lidity of that statute. The only question, therefore, left to us upon which we can exercise an independent judgment is, as before stated, whether the act of the Legislature under which the defendants are about to proceed, violates the Federal Constitution by impairing the obligation of the contract of dedication from which the com- plainant has derived rights in the Public Square as an abutting property owner. The claim that the contract is impaired by an im- proper use of the Square, not within the scope of the original pur- pose, we have already found to be untenable. It remains only to consider the second claim, i. e., was the City of Cleveland, by the contract of dedication, made the irremovable trustee to manage and control the uses of the Public Square, so that an attempt by the Legislature to substitute another trustee is a breach of contract ?
" The dedication was made originally in 1796, and by subsequent records in ISor, by town plot recorded under the territorial statute, in what was then Trumbull County, and in ISI4, by record in the present Cuyahoga County. The plat was designated on its face as the plat of the City of Cleveland. By virtue of the statute the pub- lic ground marked on the plat was vested in fee in the County for the uses therein specified and none other. The present Public Square, as shown on the face of the plat, bears no name or descrip- tive title, but is described in the survey recorded with the plat as ' the Square.'
"It may be conceded that this constituted a dedication of the land as a Public Square to the public uses of the inhabitants of the future City of Cleveland and the neighborhood, i. e., to the uses of the local public as distinguished from those of the State at large. But from this no implication arises that the future Corporation of Cleveland was to be the sole and irremovable trustee. The grant was not to the City of Cleveland. The fee was in the County and is probably there still. After Cleveland was incorporated in IS26, control over the Square was vested in the Common Council. The City would never have acquired any control over the Square but for an act of the Legislature subsequent to the dedication. If so, may not the Legislature of the State again change that control ? The dedication was made before there was a State Constitution, a State Legislature, or an incorporated City. The dedicators must be held to have known that the whole people of Ohio had it in their power to impose such systems of local government as they saw fit upon any part of the State, including that part where it was intend- ed the City of Cleveland should be.
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