USA > Ohio > Cuyahoga County > History of the Cuyahoga County soldiers' and sailors' monument > Part 11
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" This is the document that was filed at 6:10 o'clock
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Wednesday evening by Michael P. Mooney, second as- sistant Corporation Counsel, and is brought to enjoin the further levy and collection of the tax and the pay- ment to the Monument Commission of the balance 110w in the treasury, and the issuing of any county bonds in anticipation of the collection of such a tax.
"With this case pending, Gen. Meyer held that it was impossible to come to a decision in the first case and he asked the Court to allow the hearing of that case first.
"Judge Jones inost emphatically objected to any further postponement and insisted that the hearing of the first case be continued. 'We have had enough of this delay,' he said. 'We have been struggling for twelve years to put up this Monument. There is not a single thing in this petition that has not been adjudi- cated. They have constantly shifted their position. They told your honor that they were going to make a strong point against Leggett, knowing that that point had been worn threadbare. After begging, alinost on their knees, to have this hearing postponed in order to give them time to bring in testimony, they now come here without any testimony and seek to present entirely different grounds for action. This is a nice way to fight a battle ; to be constantly shifting their position in the face of the enemy. We have had enough of this delay and nothing to warrant it. The only thing that has not been litigated in the Supreme Court is the mat- ter of the water pipes, and they were there when the first suit was begun. Then was their time to mention them, and not now.
"'To-day they abandon all this and bring forward en- tirely different grounds. They say that they have one ground. 'You have not a great deal of money, and we are going to stop your getting any more.' You ask that this hearing be stopped because you are going to
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stop our money. You want the cover of darkness to keep you away from fighting this case. Does he inean to say that this can not go forward because another suit has been brought forward ? They have been try- ing to bring some John Smith forward to try the legality of the tax. Why not let us proceed? They began the suit and it was carried to the Supreme Court and decided against them, and in face of that they seek to try it all over again.
" You (to Gen. Meyer) abandoned your position to ar- rest these venerable men, and well for you that you did. It has not got to such a point where any Director of Public Works or any satellite of the Board of Direct- ors dare defy the Supreme Court. I hope never again to see such another defiance of the Supreme Court. If the Court dissolves this injunction, I will go out with my gun to resist the arrest by the police of anyone working at the Monument.
"Gen. Meyer here remarked to the Judge that he was not responsible for the remarks he was making.
"'I am responsible,' said Judge Jones, 'for what I say, and will meet you on any battlefield and will put a hole through you, too, and the City will have to have a new City Solicitor.'
"'They want to beat ns by hook or by crook,' said Judge Jones. 'They have already invented two scheines since the last hearing, and if it is postponed again they will have another. I hope they will be compelled to come forward and make their defense. The law forbids his bringing this suit. We think we ought to be allowed to go forward.'
" The reasons for asking for a delay were again stated by Gen. Meyer and Mr. Kelley. If the case was to go on, they wished time to prepare an answer to the cross- petition.
"Judge Noble finally granted them until Friday
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morning to prepare their answer and gather their testimony.
"Gen. Meyer, then in behalf of the City, asked for a temporary restraining order in the injunction against the county officers and Monument Commission. The Court held that as all the defendants had not been served with notices, he could not grant such order. They were given until 2 o'clock, and at that time the hearing was postponed and will be heard in connection with the other case Friday morning."
A private conference was held by the attorneys at the residence of Commissioner Barnett, and is herewith given, simply to show how anxious the City authorities were to compromise. Attorney Prentiss communicated the following to the Leader on August Ist.
"To the Editor of the Leader :
"Your paper of Saturday contains the version of Gen. Meyer or Director Herrick of an interview at Gen. Barnett's house, among these three gentlemen, at which I was present. I attended the con- ference at the instance of Gen. Meyer, and expressly stated that I had no authority to represent the Monument Commission in that matter, and could attend simply as an individual, with the under- standing that if anything practical should be suggested by him and Mr. Herrick on the subject of the location of the Monument, Gen. Barnett would call the attention of the Commission to it. I do not know whether he regarded the suggestions made such as to make it worth while to call the attention of the Monument Commission to it or not. I mentioned the fact of the interview to the President of the Board, and explained the substance of what was proposed by the Directors of Law and Public Works. They proposed that a vote of the County should be taken at the November election simply for and against the Square, and that if the majority favored that site all opposition should be withdrawn, but if against it, that the Monu- ment should not be placed there, and that the City would, in that event, bind itself to provide a satisfactory site. I replied that such a vote, if adverse to the present site, would leave the Commission entirely at sea; and furthermore that, on such a vote, everybody who wanted it on the West Side, or South Side, or East Side, or out in the country, would vote against the present site. That, if any- thing were to be submitted to a vote, it should be between some two sites to be agreed upon for that purpose, so that the vote would
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finally decide the location ; for instance, between two different sec- tions of the Square. Gen. Meyer had suggested the location at the foot of Ontario Street, between Lake and Summit Streets, and stated that, if that would be a satisfactory location, the City would appropriate about one hundred and fifty feet of land on each side of Ontario Street, between Lake and Summit Streets, and vacate Ontario Street between those two streets so that the Monument could be placed in the vacated part of the street. Gen. Barnett and myself expressed the opinion individually that, while we regarded the Square as the best location, that would be the next best ; but I insisted that as Ontario Street was laid out in the original allotment, it could not be changed from its use as a street, and that a good title could not be made ; and, besides that, I did not believe the peo- ple would be willing to be taxed for the expense of a site. Gen. Meyer claimed that a good title could be made, and that a binding agreement could be made with the City for it, and it could be paid for out of the sinking fund, as it would be an addition to Lake View Park, and within the original seven wards. Gen. Meyer asked what other section of the Square would be next in desirability, and Gen. Barnett and I both expressed the opinion that the southwest sec- tion would be the next best location.
" During the conversation, I stated that the Monument Commis- sion believed that the main opposition to the southeast section of the Square for the Monument arose from the fact that very many of the property owners on Euclid Avenne and the East Cleveland Street Railway Company wanted Euclid Avenue continued diagonally through that section of the Square, which the Monument would de- feat if erected there, and that Director Herrick was reported a few days ago in a morning newspaper as saying that the City might some time want to run Euclid Avenue down through that section of the Square. He replied that he did say that the City might want to do so some time, but did not use the language reported in the paper. Both he and Gen. Meyer stated that personally they were not in favor of doing that. I did not ask Gen. Meyer to postpone filing his amended petition. That was his suggestion and not mine, and I simply assented, as I had a copy of it to prepare our answer and notified him to file it as soon as I have prepared the answer.
" After the interview, Gen. Meyer walked with me up to Sterling Avenne, Mr. Herrick going in the other direction, and he then stated that if the Monument Commission would be willing to take the southwest section of the Square, he thought that Mr. Herrick could be induced to consent to it, and that they could have it, and that this could be done without a vote of the people. This is the substance of the conversation, and considering that Gen. Meyer
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now insists that the City will not consent to the placing of the Monument on any section of the Square, nor to any vote on any other basis than the one he suggested, the friends of the Monument can judge whether there is any want of a fair and conciliatory dispo- sition on the part of the Monument Commission or anything relia- ble or practicable in the clamor inspired by the gentlemen on the other side about compromise and harmony.
" The Monument Commissioners were empowered and charged with the duty of selecting the site, and the Supreme Court decided that the law is constitutional and valid, and that they had the right to enter upon the site and erect the Monument ; and, in our view, the Directors of Law and Public Works are simply trying to find sonie ground or pretext for evading or nullifying the judgment of the Supreme Court, and are making all the trouble there is made about it. On the one side is simply acquiescence in the final judg- ment of the Supreme Court, and on the other an endless diversity of opinion as to location, and a large amount of taxation for another site if one could be agreed upon.
" L. PRENTISS."
When the trial was resumed it was heard by Judge William E. Sherwood. The Plain Dealer, of August Ist, reported it as follows :
"The Soldiers' Monument war was waged again, in Judge Sherwood's Court,. Monday morning. On Friday, when Court adjourned, it was decided that on Monday morning the hearing should proceed upon affidavits un- less the City, being unable to prepare its affidavits, would be given further time.
"When Court opened, Gen. Meyer announced that he was still in arrears by two affidavits, but intimated that if he could put those affidavits in during the hearing, he would proceed. After some cross-talk and wrang- ling, the hearing proceeded. Gen. Meyer read his amended petition once again in full, probably because there was a new judge on the bench.
"Mr. Prentiss read the cross-petition, commenting as he read. He said that the true animus of the opposi- tion to the southeast corner of the Square in contra- distinction to its other sections was the wish of the Euclid Avenue property owners and the East Cleveland
QUARTERMASTER EMBLEM IN CAPITAL.
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Railroad Company to extend the avenue through the southeast section straight down town.
"Gen. Meyer : 'Do you mean to say that I am the tool of the street railway company ?'
" Mr. Prentiss: 'No, I don't; I merely state the fact.'
" Judge Jones: 'We only say that you are doing the work of the railroad company for nothing.'
"Gen. Meyer (to Mr. Prentiss): 'Counsel for the railroad company is your associate' (indicating Judge Jones).
"Mr. Prentiss continued his reading and when he had concluded, Mr. Kain read the petition to enjoin the tax.
"It was after 12 o'clock when the reading of the affidavits was beg1111. The first one to be read was that of Col. John W. Gibbons, the Director of Police. Col. Gibbons made affidavit as to the notice that had been served upon him by the Commission, that it was about to begin construction work in the Square. Another affidavit was by Squire Bander, the only one of the twelve Commissioners opposed to the selected site. Its principal point was to demonstrate that when Gen. M. D. Leggett was appointed a Monument Commissioner he had not been by any act of the Soldiers' and Sailors' Union constituted a member of the Momument Com- mittee of that organization.
" After dinner, the first affidavit read was that of Eben L. Pardee, the Recording Secretary of the Soldiers' and Sailors' Union. Mr. Pardee produced the record showing the confirmation of Gen. Leggett as a Mont- ment Commissioner in June, 1887, at a date later than the passage of the act constituting the Commission. Secretary Kingsley of the Waterworks Department fur- nished an affidavit relative to the water pipe running through the southeast section of the Square and the
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difficulty, expense and time involved in moving the same. Director Herrick also swore to one showing the difficulties attending the removal of Perry and the re- construction of the water main.
"Gen. Meyer introduced in evidence the special statutes relating to the Monument Commission and fund and the decision of the Supreme Court in the former case; a decision in favor of the Commission. He stated that as soon as he could get the figures he would offer the tax duplicate of the County for 1891 and 1892.
"With the understanding that the City could intro- duce further affidavits when access could be had to the plans and specifications of the Monument Commission, Col. A. T. Brinsinade then proceeded to the reading of defendant's affidavits. These affidavits were two, sworn to by W. J. Gleason, and a number of others furnished by various members of the Commission."
The closing arguments in the case were given as follows in the Leader of August 3d :
" The Monument case was submitted to Judge Sher- wood at 5 o'clock last evening. The Judge will spend to-day in considering it, and will not hold court. Per- haps a decision will not be rendered for several days. There is much speculation as to the probable outcome of the case. Those who have expressed themselves most freely have been friends of the Monument Com- missioners, and they boldly asserted that the City had lost their case. It was the general opinion, however, that both sides had made a strong showing, and that every possible argument had been resorted to by each of the contestants.
"The arguments proceeded quietly and attracted but little attention. The attorneys were content to submit the case to the Court upon the merits of the affidavits and by simply calling attention to the points of law
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and fact involved. They went into detail, however, and argued at length upon every possible point to be considered. There was a slight misunderstanding as to which side should have the opening speech, on Tues- day morning. George S. Kain, Esq., Assistant Cor- poration Counsel, was finally accorded that privilege and he spoke until about 11:30 o'clock. He was fol- lowed by Loren Prentiss. Esq., for the Momument Com- mission.
"Mr. Prentiss spoke for an hour and a half, and was followed by Judge Jones. He commenced his argument at 2:30 o'clock. More interest was shown while Judge Jones was speaking than at any other time during the case. He became greatly excited at times, and used the strongest invective in denouncing the City authori- ties for what he called defiance of the Supreme Court. He said it was the most amazing thing he had ever seen in a court of justice. He said it was no wonder that common men took the law into their own hands, when the heads of the City Government and their satraps defied law and order. He said that it was the duty of the City authorities to surrender cheerfully when they were beaten. The public looked to them to obey the law as well as to execute it. Judge Jones was followed by Director of Law Meyer, who made the closing argument.
"During his speech, General Meyer referred to the utterances of Judge Jones concerning himself, when the hearing was commenced before Judge Noble last week. He said : 'Suppose a man has what he thinks is a lawful claim to a piece of property occupied by another. Is he justified in using force and violence in defiance of law and the public peace to maintain that claim? Vet hear the counsel on the other side urging the use of force and violence.' Turning towards Judge Jones, he continued : `One of them went so far as to
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say across the table the other day that he would shoul- der his gun and go into the Square and put a bullet through mne.' General Meyer also spoke of insinuations which he said had been made against him by other attorneys as to his working in the interest of the street railway companies and the Euclid Avenue property owners under the pretense of looking after the City's interests. The General said that such charges against an officer of the City coming from men who stood as the embodiment of honor and Christian gentility were base and contemptible and showed the character of the men who mnade theil.
"Judge Sherwood informed the attorneys that he would not pay the slightest attention to their opinions of each other in deciding the merits of the case, and he asked General Meyer to proceed. The remainder of his speech was upon the points at issue."
Judge Sherwood rendered his decision on August 9th, the full text of which we copy from the Leader of the following date :
" Judge Sherwood announced his decision in the Sol- diers' Monument cases Tuesday morning in the presence of an audience that completely filled his court room. He refused the City's application for an injunction to restrain the Monument Commission from erecting the Monument in the Square, but granted the City's appli- cation to enjoin a portion of the tax levied for the Mon- ument. The effect of the decision is to enjoin the collection of a tax of 1-10 of a mill, amounting, it is said, to $13,000. General Meyer, for the City, filed notice of appeal in both cases, and the appeal bond of $200 was given in each case.
" The first case decided was that of the City against the Monument Commissioners, to restrain them from interfering with or obstructing any part of the south- east section of the Public Square, from moving or inter-
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fering with the statue of Commodore Perry, from moving or interfering with the water main and from expending any public funds for purposes other than the purchase of a suitable site for the proposed Monument.
" The Court reviewed the pleadings and the proof disclosed by them, and the previous case which was decided against the City by the Supreme Court.
"Judge Sherwood stated that the Monument Commis- sioners insisted that the decision of the Supreme Court constituted a complete bar to the present action and was conclusive between the parties. On the other hand, the City claimed that the former action was not a bar, for the reason that the relief sought and the grounds upon which it was predicated were different.
" He said the Supreme Court had decided that when a judgment or decree was relied upon by way of evi- dence, as conclusive per se, between the parties in a subsequent suit, that the particular controversy sought to be precluded was therein necessarily tried and determined.
"'Our inquiry then is,' he stated, 'first, what is the particular controversy in this case? Second, was such controversy necessarily tried and determined in the former case? The controversy now before us is as to the right of the Commissioners at this time to enter upon the southeast section of the Square, remove ob- structions, and erect the Soldiers' Monument thereon, and use certain money now in the Monument fund for that purpose. From doing these things the City seeks to enjoin them. Was this controversy involved in the former suit? The relief prayed for in this action differs from that sought in the former only in the additional request to enjoin the use of Monument funds for any other purpose than that of purchasing a site. In the other respects the relief sought, as determined by the prayers of the petitions in the two cases, is to all intents
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the same. The City contends, however, that the object of the present suit is to enjoin the occupation of the Square until such time as sufficient funds may be accumulated to enable the erection of the Monument without unreasonable delay, whereas the object of the former suit was to secure an injunction against the use of the Square at any time for the location of the Mont- ment. This distinction, however, is one made in argu- ment and does not appear on the face of the papers, nor does such temporary relief any more flow from the nature of the opposition in the one case than in the other.
"'It is true that certain allegations are made in the pe- tition and proof offered which, it is claimed, show that there is not sufficient money on hand to enable the Commissioners to prosecute the work to completion without unnecessary delay, and that such funds cannot be procured for several years. But all the facts upon which such allegations are predicated existed at the time of the beginning of the former suit and were then equally available and might have been introduced to secure the same relief. The grounds or reasons urged in the foriner suit were not in all respects the same as those urged in the present case. A number of addi- tional grounds for relief are now presented, but so far as I have been able to observe there are none which might not have been presented in the former action, except the grounds that a motion for a rehearing in the former case is pending, and that the City has instituted a suit to have the tax levies made for the purpose of raising funds for the erection of the Monument declared illegal and void. It is specifically declared by our Supreme Court that when a matter is finally determined in an action between the same parties it is considered at an end, not only as to what was determined, but also as to every other question which the parties might have liti- gated in the case, and that a subsequent suit cannot be
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maintained between the same parties for reasons exist- ing at the time and not stated in the former action.
"'The points here raised not actually presented in the former suit are : First, that a water pipe exists be- neath the south-east section of the Square ; (a) that pipe has been there for thirty years and might have been made a ground for complaint in the prior suit. They did not interpose the removal of Perry's statue as a ground. Second, that the acts authorizing levies are invalid and hence they have no money. (a) The acts were all passed at the time of the other suit, and were as invalid then as now. Third, the taxes authorized by the act of 1891 cannot be collected in full until 1895. Fourth, by section of an act of 1888 cannot expend more than 8-10 of a mill for construction and erection of Mon- minent, the balance for a site. Fifth, motion for re- argument pending (a) not good ground. Sixth, proper notice not given. Seventh, suit pending to enjoin col- lection of the taxes under acts referred to.
"'The application for injunction is denied.'
"The second case was the City of Cleveland against W. H. King and others. This action was brought by the City to enjoin the County Commissioners from levy- ing any further taxes under certain acts of the Legisla- ture, and from issuing any bonds or notes in anticipa- tion of the collection of any such taxes, and from delivering such bonds or notes to the Soldiers' and Sailors' Monument Commission ; also to enjoin the County Auditor from drawing his warrant upon the Treasurer for any drafts drawn upon him by the Monu- ment Commissioners ; and from placing on the duplicate any tax portended to be authorized by any of the legislative acts; also to enjoin the County Treas- urer from paying out any money now in his hands or that may come into his hands or under his con- trol by virtue of any of the acts. The Court said :
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' The relief sought by the City is predicated upon the claimed unconstitutionality of the laws purporting to authorize the levying of the taxes which it asks to have enjoined. The defenses interposed are : First, a denial of the unconstitutionality of the acts, and second, that the case has already been decided. The adjudication which is plead in bar is the suit heretofore mentioned of the City of Cleveland against William J. Gleason and others, in which the City sought to restrain the Monu- ment Commissioners from entering into and erecting a Soldiers' Monument upon the southeast quarter or sec- tion of the Public Square. Upon this point it is suffi- cient to say that we do not think the ‘particular controversy' involved in the case was 'necessarily tried and determined ' in the other. For first, the parties are not the same. In that case the action was against the Monument Commissioners. In this it is against the County Commissioners, Auditor and Treasurer. True, the Monument Commissioners are made parties in this case with the County Commissioners, Auditor and Treas- urer, but no relief whatever is asked as to them. Second, the relief sought is different in that case. An injunction was prayed for restraining the Monument Commission from taking possession of the Public Square and erect- ing a Monument thereon. In this case the tax for Monument purposes is sought to be enjoined, and the appropriation for such purpose and of money raised under former levies prevented. While the invalidity of the tax laws might be assigned as one of the reasons or grounds for the relief asked for in the former case, the same as in the suit against Scofield and others now before us, still we apprehend that the determination of it was not essential in passing upon the question of the right of the Monument Commissioners to enter upon and use the Park for Monument purposes, for the rea- son that such right does not depend upon the validity
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