USA > Ohio > Cuyahoga County > History of the Cuyahoga County soldiers' and sailors' monument > Part 12
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SIGNAL SERVICE EMBLEM IN CAPITAL.
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SOLDIERS' AND SAILORS' MONUMENT.
of the acts, or portions of the acts, authorizing the taxes. This is evident from the fact that even if the right to levy the tax were denied, the Monument Commission might proceed to erect the Monument on the Square with money derived from donations, which they are authorized to receive, or from any other source. Hence, we say in the absence of any disclosure in the record that the question was actually before the Court and passed upon by it, that the validity of the acts purport- ing to confer authority upon the County Commissioners to levy this tax was not necessarily tried and deter- mined by the Court in coming to the conclusion that it did.
"'We come, therefore, directly to the question as to the unconstitutionality of the laws authorizing the levy of the taxes complained of. The first act of the Gen- eral Assembly to which reference is made was passed April 2, 1880, and is entitled, 'An act to authorize the County Commissioners of Cuyahoga County to build a Monument or Memorial Tablet in commemoration of the deceased Soldiers and Sailors of said county, and to purchase a site therefor.' By this act the County Com- missioners were authorized to levy three-tenths of a mill upon the property of the county, not more than one-tenth of which should be collected annually for the purpose of erecting a Monument or Memorial Tablet commemorative of the bravery and valor of all the Sol- diers and Sailors from said county who were killed in any of the battles fought in the service of the Republic of the United States, or who died from wounds received or contracted in such service, and to purchase a site therefor. Section No. 2 provided that 'all plans and specifications for such Monument or Tablet, and the site thereof, together with the contract for the erection of which, shall be approved by the Commissioners and the Committee on Monument of the Soldiers' and Sailors'
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Association of said county, but the building thereof shall be supervised by and the expenses paid upon vouchers approved by said Commissioners, provided, however, that the cost and expense of such Monument or Tablet and site shall not exceed the amount of the levy.
"'By this act it will be observed the Legislature un- dertook to authorize the County Commissioners both to levy a tax for and build a monument. There does not appear to be anything imperative about it. So far as the language of the act is concerned, it seems simply to vest power or authority coupled with a discretion to exercise it or not. This and the succeeding acts to which reference will be made are claimed by the City to be unconstitutional, invalid and void for two reasons : First, because the purposes for which the tax is all- thorized to be levied are not such public purposes as are permitted by the constitution of the State. Second, because they contravene sections No. 5 and No. 7 of article No. 12 of the Constitution. Upon the first ground we are inclined to hold with the Superior Court of Cincinnati, where the question was as to the uncon- stitutionality of an act authorizing the levy of a tax for the erection of a monument to William Henry Harri- son. The Court said : 'We are of opinion that the pur- pose for which the tax under the act is to be levied is a public purpose. The erection of a monument in honor of a man who has rendered valuable service to his country is an enduring acknowledgment of the country's gratitude, which will be a strong incentive to patriotic service by other citizens.'
"'Section 7, article 10, of the Constitution, provides that the Commissioners shall have such power of local taxation for police purposes as may be prescribed by law. The legislative acts in question are said to con- travene this section, for the reason that they seek to in- vest the County Commissioners with the power of local
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taxation for other than police purposes ; the erection of a Soldiers' Monument not being a police purpose. The Commissioners intend, first, that the purposes of the levy are police purposes within the contemplation of this section of the Constitution ; second, that the Legis- lature may authorize under the general taxing power the County Commissioners to levy the tax independent of section 7, article 10 ; third, that these acts, especially the later ones made, particularly involved in this case, vest no discretion whatever in the County Commis- sioners, but are mandatory in their character and con- stitute the Commissioners agents or instruments of the Legislature in carrying out a clearly constitutional power.
"'We consider the original act first, as all the subse- quent ones are either amendatory or supplementary to it and may be more or less affected by it.
"'Our first inquiry then is: Does the erection of a Soldiers' Monument come within the police purposes for which County Commissioners as such may levy taxes under section 7, article 10, of the Constitution ?
" 'By police purposes, as here used, we understand are meant such purposes as are legitimate and proper to be provided for under the police powers of the State. This police power looks to the regulation of relative rights, privileges and duties as between individuals, to the con- servation of order in the political society, to the encour- agement of industry, and the discouragement of perni- cious employment.
"' This section of the Constitution was obviously in- tended to limit the power of the Legislature in delegat- ing the power of local taxation to County Commissioners.
"'There must be purposes for which taxation may be had, public in their nature, and vet not included among police purposes. The erection of a monument to the memory of those who have fallen in our country's
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HISTORY OF THE CUYAHOGA COUNTY
cause is a patriotic public object most commendable in its character, but intended to express a sentiment rather than to promote the health, convenience or wel- fare of a community. We think the tax cannot be sus- tained as being authorized for police purposes.
"'May the Legislature under the general taxing power vested in it authorize the County Commissioners to levy the tax regardless of section 7, article 10, of the Constitution ?
"' We are of the opinion that the General Assembly might use the County Commissioners as an instrument for levying and collecting this tax, notwithstanding the provisions of the Constitution. Having itself the power to impose that tax, and having determined to impose it, it might require the levy and collection thereof by the County Commissioners as its representative. But it cannot delegate to the Commissioners the power to de- termine whether or not there should be a tax for the purpose named, and to levy it or not at their discretion. By simply authorizing but not requiring them to levy a tax for monument purposes, it seeks to vest them with the power of local taxation for other than police pur- poses, and so contravenes section 7, article 10. Such we understand to be the import of the holding of the Superior Court of Cincinnati in the case before referred to. By the second section of the act the Commissioners of Hamilton County were authorized to levy a tax to defray the expenses for the monument. The language was in substance identical with that of the act before us. The third section, however, required that before the tax was levied the question of making the levy should be submitted to the vote of the qualified electors of tlie county.
"'The act before us of April 2, 1886, clearly vested a discretion in the County Commissioners not only as to levying the tax, but as to constructing the Monument
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as well. The Commissioners were under no obliga- tions to proceed in the matter at all unless they saw fit. We can see no escape from the conclusion that this act was unconstitutional and void. The amendatory acts of February 4, 1881, and April 22, 1885, made no such modifications as to relief against this objec- tionable feature. By the latter act an additional levy of five-tenths of a mill was authorized, and together with the three-tenths of a mill authorized by the orig- inal act, has been collected. On the 16th day of April, 1888, an act was passed supplementary to the original and amendatory acts, by which all the power and an- thority over the Monument theretofore vested in the County Commissioners, except the authority to levy the taxes, was taken from them and vested in a board called the 'Monumental Commissioners,' to be appointed by the Governor. This Board was by this act to have full power to select a site for the proposed Monument, to have exclusive control of the plans and building of the same, to locate the same in the southeast quarter or section of the Public Square if they saw fit, or if not, to pur- chase or procure any other site within the county. They were authorized to contract for the whole or any part of the work, or within discretion, to contract for the same by days' work or piece. With the law in this con- dition, the County Commissioners continued to levy or collect the taxes therefor authorized, receiving the last installment with the general taxes of 1889. The Board of Monument Commissioners took charge of all other matters pertaining to the Monument, and proceeded with their labors, selected a site, secured plans and de- signs for the Monument, and expended a considerable portion of the fund for the construction of different parts thereof.
"'On January 30, 1890, an act was passed amending section I of the original and amendatory acts, and au-
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thorizing the County Commissioners to levy an addi- tional tax of not exceeding three-tenths of a mill for the same purpose. This was again amended April 2, 1891, so as to authorize a levy of not exceeding six- tenths of a mill in addition to any tax theretofore levied for the same purpose. The first installment of the tax authorized by the act of 1890 has been collected. The second installent has been levied, also the first install- ment of that authorized by the act of 1891, but neither of the last two has been collected. The City contends, first, that both of these acts are obnoxious to the same constitutional objection ; second, that if not, then the power to levy granted by the act of 1890 was repealed by the act of 1891 as to so much of the tax as had not been levied prior to the passage of the latter act. This would affect the last two installments. As to the act of 1890, we see no reason why it is not open to the same constitutional objection as the preceding acts. But whether so or not, it seems clear that all unexecuted power therein conferred was withdrawn by the act of 1891. The latter act was both amendatory and supple- mental to the former, and upon its passage entirely sup- planted and wiped it out. It was not necessary that the act of 1890 should be repealed in terms, for by the very terms and nature of the amendatory act it takes the place of and is to be read and construed as if it had so existed from the beginning. The act of 1891, however, presents much difference in its phraseology. The first section reads as follows : 'Be it enacted
% that the County Commissioners of Cuyahoga County be and they are hereby authorized to levy a tax upon all the taxable property in said county, not exceeding six- tenths of a mill on the dollar of the valuation of said property, in addition to any tax heretofore levied under said acts, to be levied and collected as follows : For the year 1891, one-tenth of a mill; for the year 1892, one-
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tenth of a mill ; for the year 1893, two-tenths of a mill ; and for the year 1894, two-tenths of a mill; which amounts shall be levied and collected annually as afore- said.' By section 2 the Commissioners are authorized and directed to issue bonds and notes in anticipation of the collection of the tax, and by section 3 are required to place the proceeds of the sale of the bonds at the dis- posal of the Monument Commissioners. We see in this act, therefore, not only authority given the County Com- missioners to levy the tax, but imperative words requir- ing specific amounts to be levied and collected in certain years ; the language is, 'which amounts shall be levied and collected annually as aforesaid.' There appears in this act no discretion left to the County Commissioners in the matter of levying the tax, and hence under the rule heretofore referred to as the cri- terion for determining the character of the act, we con- clude that it constitutes the County Commissioners in- struments of the Legislature for the exercise of the broad favor of taxation placed by the Constitution in that body.
"'As to the taxes already collected under the acts by ns deemed invalid, we are not disposed to interfere with their use for the purposes for which they have been levied and voluntarily paid by the City and other tax- payers of the county.
"'The City may take a decree enjoining the further levy and collection of taxes under all acts authorizing such levy for monument purposes, except the act of April 2, 1891.'"
The clear and able decision of Judge Sherwood on all legal questions involved was received with delight by the Monument Commissioners, by the Soldiers of the county and all of their friends. The prevention of the collection of one-tenth of a mill of the tax, equal to about $13,000, could be easily and legally supplied
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by future action of the Legislature. It was through no fault of Director Meyer, Mayor Rose or Director Her- rick that all of the remainder of the tax levies provided for the Monument Fund was not knocked out. The facts herein set forth clearly exhibit their purposes and desires. They were not satisfied with their attempt to deprive the Soldiers and Sailors of the county of the best and most appropriate site for the Monument, but they would, if they could, utterly destroy the Memorial. Their words were loud, but their actions were louder. After the sum of one hundred and fifty thousand dol- lars had been paid into the treasury by the patriotic people of the county, and had been expended by the Commission for the work so far done on the Monument, the dastardly attempt to enjoin the further collection of taxes would have the effect, if successful, of completely destroying and preventing the erection of the Monu- ment. This action was hinted at, and threatened for some time, as a dernier ressort. But the threats, like the attempt, proved abortive. Still, Director Meyer, Mayor Rose and Director Herrick were "friends" of the Mon- ument. How some schemers in this world imagine they can cover up their deception! The Commission, however, were "onto the pitching" of the curves of the City's hired men, and could easily bat it all over the Square !
A Wl'orld editorial of August 10th scores the City authorities' foolishness in the following vigorous man- ler :
"By the carefully worded and duly considered decision of Judge Sherwood in regard to the Soldiers' Monu- ment case, the City again suffers a serious defeat.
" This result was inevitable. The Monument Com- mission was acting under a plain statute of the State. The Legislature that passed this law created the City government. The attempt to set aside this law was that of the creature to become greater than its creator.
ONS
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ENGINEER EMBLEM IN CAPITAL.
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SOLDIERS' AND SAILORS' MONUMENT.
"In addition to the plain statute there was a decision of the Supreme Court on this matter for the guidance of Judge Sherwood.
" The fact of the matter is, the City authorities are not disingenuous in this attempt to set aside the law. Their only idea is to get the matter into court and pro- long it till the meeting of the Legislature next Winter, and then try and get some legislation annulling what has already been done. Such proceedings could hardly result otherwise than in defeat."
XIV.
T 'HE Leader of the 11th chronicled the further action of the City :
" The next move in the Soldiers' Monument case will be made by the City. Next Monday, General Meyer will appear in the Circuit Court to ask for an injunction restraining the Commissioners from proceeding with the erection of the Monument, until the case can be tried on its merits in the Circuit Court. Attorney Loren Prentiss and Judge Jones will be on hand to fight the injunc- tion. When the decision of the Court has been rend- ered, the case will be appealed to the Supreme Court.
" Mr. Prentiss was asked, yesterday, how much time would probably be required to finally end the proceed- ings, and he said : 'We have arranged for a hearing of the case on its merits, before two of the Circuit Court judges next week. It will then be appealed to the Supreme Court. A constitutional question is involved, and the Supreme Court will, therefore, take up the case out of its order. We should, therefore, be able to get a final decision in October.'
"' Will it be possible for the City to delay the consid- eration of the case in the Supreme Court ? ' was asked.
"'No, the case will be taken up on mnotion of either of the parties,' replied Mr. Prentiss. 'It is the policy of the City to delay matters as much as possible, with the hope that the Legislature may amend the Monu- ment law next Winter. Judge Sherwood has granted us an injunction, restraining the City from interfering with the Commissioners.'
"On behalf of the City, it was said, yesterday, that only the application for a temporary injunction would
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be heard in the Circuit Court next week. It was stated that the hearing on the merits of the case would take place during the regular terin of the Court in the Fall."
Quiet reigned for a few days, awaiting the decision of the Circuit Court. The application for a temporary in- junction by the City was decided by the Judges of said Court on August 19th. The Plain Dealer, referring to it, said :
" Again the Monument Commission are on top.
" Judge C. C. Baldwin, of the Cuyahoga Circuit Court, in Chambers, Judge H. J. Caldwell, concurring, decided the Soldiers' Monument cases Friday afternoon.
" Judge Baldwin first said he would be very brief, so as to handicap himself as little as possible when the case should be finally heard. Then he said :
"' In the matter of the Monument, it is claimed that substantially the same matter has been heretofore de- cided by both this and the Supreme Court. There are two cases here, both begun by the City ; the one to en- join the work of putting the Monument on the Square, at all events for the present, and the other to prevent the County Commissioners from levying a tax provided for in the act passed in 1891 authorizing a tax for Monument purposes.
"'As to the first case, every one of the facts urged ex- isted when we heard the case before, and with the excep- tion of the water main they were all set up in the former case. The Supreme Court overruled us in the former case and gave assent to the erection of the Monument. To say that a new injunction may issue after the Supreme Court has spoken finally, merely because par- ties try again to do what has been determined they can do, is to say in the boldest way that a thing can be liti- gated again and again. Since the Supreme Court has said the Monument can go there, we cannot presume be- forehand to say that this is not the time for them to go
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there, or that the Monument Commissioners will do the thing improperly and wrongly. We do not think that by refusing to remove the statue of Commodore Perry the City can prevent the act. The Commissioners can do it, providing it is done in a proper way and manner.'
" Judge Baldwin then held as to the tax enjoined by Judge Sherwood, under the act of 1890 and previous acts, that no application having been made to him to modify that injunction he would not disturb it. This enjoins the one- tenth of a mill still to be levied under the act of 1890, and leaves the matter just where Judge Sherwood left it.
" The act of IS91 was mandatory, and left no discre- tion with the County Commissioners. Judge Baldwin declined to enjoin the tax of six-tenths of a mill under it. He denied the temporary injunction. His decision leaves both parties just where Judge Sherwood left them, till October ISth, which is the earliest date at which the Circuit Court can hear the case on its merits.
"So far as is apparent there is nothing to prevent the Commissioners from going right ahead with their work on the Public Square."
The effect of the decision on Director Meyer was given as follows in the Plain Dealer of the 21st :
"'The Monument Commissioners can trample all over the Square,' said General Meyer smilingly, yester- day afternoon. 'They can plow up the sod. They can tear up the trees by the roots. They can pluck all the flowers; they can do anything they please, and the City is powerless to prevent. They can take the Perry statue and dump it into the lake for all we can do. Until the October terin of the Circuit Court, the City is without power to resist.'
" That is how General Meyer talked after the decision of the Circuit Court. He was asked whether he pro- posed to appeal the case to the Supreme Court.
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"'I cannot appeal at present,' said he. 'Understand that the Circuit Court is not now in session, and is with- out power of jurisdiction until its October term. The Common Pleas Court recently enjoined the City from interfering with the Monument Commission and like- wise enjoined the County Commissioners from levying a tax of some $13,000 for the Commission. Both these injunctions were lifted bodily into the Circuit Court. The Circuit Court is not now in session, but the law provides that two of the judges may at their discretion act temporarily during vacation. I asked for a suspen- sion of the restraining order until the October term. This the judges have refused to grant. They took no action upon the injunction relating to the levy. Now, I cannot appeal the case, because it is still in the Cir- cuit Court and will be heard upon its merits at the October term. The Court has agreed to advance it up- on the docket. Now, if the Monument Commission decides to take possession of the Square between now and October we are powerless to prevent it. It can tear down the Perry Monument and begin the construc- tion of its own, and the City will not say anything, for it is law abiding and will obey the injunction. But if the Circuit Court finally decides against the Commis- sion, all the work that it may have done on the Square will have to come out. In such an event, I suppose the Commission will appeal to the Supreme Court. If the case goes against us we certainly shall appeal to the Supreme Court.'
"'If the Commission invade the Square, will you make any further resistance ?' was asked.
"'None, whatever,' replied the General."
A meeting of the Commission was held on August 22d, at which action was taken to provide for the pay- ment of outstanding bills. This action was rendered necessary, owing to the fact that the Law Director had
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scared the county officers by saying to them that it would be "at their peril if any further drafts of the Monument Commission were honored." Commissioners Elwell and Gleason, with Attorney Prentiss, were ap- pointed a Committee to confer with the county author- ities to bring about an amicable understanding. Their work was successful, as the following action indicates :
"AUGUST 22, 1892.
"T. K. DISSETTE, Esq.
" DEAR SIR :- We have had presented to us this morning, various bills for payment amounting to $3,750.50, against the Monument Fund. The City has renewed its order as before the hearing of the Soldiers' Monument case in the Circuit Court. Are there, in your opinion, any legal obligations to the payment of the same, under the present situation of the case, or any liabilities that the Auditor and Treasurer are liable to incur by said payment ?
" Respectfully submitted, " A. E. AKINS,
" Auditor Cuyahoga County."
" AUGUST 23, 1892.
" A. E. AKINS, Esq.
"DEAR SIR :- Yours of August 22 before me, referring to the various bills presented to you for payment against the Soldiers' Monument Fund, and asking whether since the hearing of the Soldiers' Monument case in the Circuit Court, there are any legal objections to the payment of the same, under the present situation of the case, or any liabilities that the Auditor and Treasurer are liable to incur by said payment.
"In reply, allow me to say that there is no order of Court re- straining the County Auditor from drawing his warrants, or the County Treasurer from paying any claims against the Soldiers' Monument Fund, when vouched for agreeably to the provisions of the statute. The Common Pleas and Circuit Courts have each re- fused to make such an order after a pretty full hearing. I see no legal objection to the payment of said claims.
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