USA > Ohio > Cuyahoga County > History of the Cuyahoga County soldiers' and sailors' monument > Part 6
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"I claim that the use of this section of the Square for the Monunient is perfectly consistent with the use for which it was intended.
"We find in the public squares, public commons and parks the world over, monuments are erected. We find inomtuinents in Union and Madison Squares in New York, Soldiers' Monument in the Public Commons of Boston. In Philadelphia, Gen. Reynolds' Monument in front of the Public Building. In Baltimore, Washing- ton Monument, Battle Monument, and other large monuments in the most important parts of the public streets and squares in the heart of the city. In Washı- ington, at all the principal parks and streets, here and there you will find beautiful monuments, notably, the statue of Gen. Thomas, right in the center where five or six streets radiate. In Richmond, the Washington Monument, a very stately one immediately in front of the State House. Buffalo Soldiers' Monument occupies the most prominent place in the heart of the city. In Detroit, Soldiers' Monument directly in front of the City Hall.
"In Trafalgar Square, London, which is spoken of as one of the finest open places in London, and a great center of attraction, you find a monument dedicated to Lord Nelson, commemorating his glorious death at the battle of Trafalgar in 1805. This is a massive granite column 145 feet in height ; is crowned with the statue of Nelson, 17 feet in height, with four colossal bronze lions, modeled by Sir Edwin Landseer, couched upon pedestals running out from the column in the form of a cross.
" This monument cost over $200,000, yet I venture the assertion that our proposed Monument will be more beautiful and more grand than that. In this same square you will find two fountains, a statue of Sir Henry Havelock, the deliverer of Lucknow-a statue of Sir
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Charles James Napier, the conqueror of Scinde. Also in another corner of the square is an equestrian statue of George IV., in bronze.
"All of the other squares in the heart of this great City of London are filled with monuments.
"In Edinburg, in one of the principal streets, is the magnificent, lofty monument of Sir Walter Scott, 200 feet high. In Paris, in Place de la Bastile, is the column of July, 154 feet high ; Column Vendome, 135 feet high. Port St. Dennis, Port St. Marten, all the principal places in the heart of the City of Paris are filled with magnificent monuments, fountains and triumphal arches, and so likewise in all the principal cities of France. In Brussels, the National Monument of God- frey de Bouillon. In Berlin, the monument of Fred- erick the Great is in the principal street. Unter den Linden and other public monuments and arches are in the principal thoroughfares.
"Vienna and Stuttgart have numerous monuments and fountains and lofty columns in the central places in the city. And so the Arne fountain at Nuremberg, Christopher Columbus' Monument at Genoa, Gutenberg Monument at Frankfort, King Ludwig's Monument at Munich, Napoleon I. at Ronen, the Column of Victoria at Naples. In all prominent cities in the public squares, and commmons, and streets, these monuments are placed, and so in our own country. Indianapolis, Painesville, Geneva and numerous other places-in fact, nearly all the prominent monuments of the large cities of the world are placed in central locations, where the public and strangers from without the city can see them at all times.
"And yet the Williamsons, plaintiffs in one of these cases, say that this magnificent work of art-this Mon- minent in the Square-would spoil the view from Euclid Avene. As' my friend, Capt. Scofield, very aptly re-
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marks, 'It would be a tough looking monument that would spoil any view in the business part of Cleveland.'
" The Commission are eleven to one in favor of such site; that one, I suppose, is like the obstinate juror who characterized the other jurors as 'eleven - fools.'
"It is not a private building or a private scheme, but a Monument with a Memorial Room, to be erected with the public funds-to be erected from the entire public -to be forever free to the public, and under the law, to be forever controlled by the Municipal author- ities of this city. Yet it is said we are to erect a private building, and this statement comes from the parties who are the owners of land on which stands a building from which a considerable income is derived, solely by reason of the encroachinents of five feet upon the street fronting upon this very Square, using the public street for their own private purposes, and the City permitting this unlaw- ful and continuing nuisance.
" We hold, therefore, that these defendants, the Mon- minent Commission, have absolute authority from the Legislature of the State to place the Monument upon the section designated. We hold that the City, acting within its powers and exercising a reasonable discretion, has given its full and free consent to its occupancy. We hold that the placing of the Monument in that sec- tion is but in furtherance of the use to which the Square may properly be put to by law, by usage and by custom.
" We confidently assert that there is no valid and legal objection to the use of the Square as contemplated, and, therefore, that no restraining order should be allowed in this case.
"And, your Honor, when this Monument shall be erected in this most appropriate and public place, and shall there stand, grand and beautiful, we will be reminded of the words of the poet Whittier, when he wrote relative to the Washington Monument: . Surely
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it will not have been reared in vain if, on the day of its dedication, its mighty shaft shall serve to lift heaven- ward the voice of a united people, that the principles for which the fathers toiled and suffered shall be main- tained inviolate to their children.'"
Upon the conclusion of the hearing, the Judge took the case under advisement, promising to give a decision as soon as he had an opportunity of looking into its merits. The result of his deliberation was made known on June Ist, 1891, and was published in the Leader of the following date, as follows:
" The controversy over the location of the Soldiers' and Sailors' Monument was brought to a close yesterday afternoon so far as the Court of Common Pleas is con- cerned, by Judge Stone deciding adversely to the Com- mission. At the appointed hour, the attorneys for the various parties to the well-known injunction suits met in room 1, and anxiously awaited the result. The Mon- ument Commission was well represented, and upon the brow of each member was settled a look of hopeful confidence. At a few minutes before 2 o'clock, Judge Stone took his seat and read his decision from manu- script. As he proceeded, a blank expression overspread the faces of the Commissioners, and at the turning point broad smiles played over the features of Judge William- son and the attorneys of the City.
" Judge Stone commenced by giving a careful resume of the famous cases, stating the facts accepted by both sides, and concisely reviewing the points at issue. He gave the history of the Public Square from the time it was owned by the Connecticut Land Company, and called attention to the various changes that it had undergone. He quoted the acts of the General Assembly and the ordinances of the Councils of Cleveland bearing upon the case, and reviewed the controversy between the Monument and Park Commissioners.
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"Coming to the law in the matter, Judge Stone first considered the rights of the plaintiffs in both cases to bring suit. In the Williamson case, it was shown by the citation of authorities that individual owners of adjacent lots may proceed in equity to enjoin the appro- priation of a Square dedicated to public purposes. It was the opinion of the Court, that upon general equit- able principles the plaintiffs in the Williamson case had a right to maintain the action if it was found that the uses contemplated to be made of the Public Square were not within the terms of its dedication. The tech- nical objections to the City of Cleveland being a plain- tiff were not insisted upon during the trial, and the case was considered and decided upon its merits. It was held by the attorneys for the Monument Commission, that the City, by its resolution of consent to the use of the Square for the Monument and its subsequent silence, was estopped from making any objection. The Court held, that if the use of the Square that was proposed was not a lawful one, the City had no right to give con- sent, and the case was as though a resolution of consent had never been passed. The case was found to ulti- mately depend upon the lawfulness of the contemplated use. With reference to the status of the Monumental Commissioners, it was held that they were the agents of the County, employed for local and temporary purposes, and were not officers within the meaning of the Cousti- tution. The proposition of the plaintiffs, that the act of the General Assembly in 1888, authorizing the Com- mission to locate the Monument in the southeast corner of the Public Square, was inoperative, the Court hield to be well taken. Such a provision of law directed the use of the Square for a Monument, the Court said, regardless of the will or rights of the City of Cleveland. The proposition of the attorneys for the Monument Commission that neither the consent of the City Council
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nor of the Park Commission was necessary, and that the will and direction of the Legislature was all-suffi- cient, the Court held to be untenable. A Municipal corporation had a twofold nature, one governmental, and the other quasi-private. In the latter capacity and not in the former, the City held the Square in trust for the purposes for which it was dedicated, and the State could not interfere with its control, nor could it direct as to its use or method of adorminent. The statute was held to be inoperative, unauthorized, and void, as far as it would serve to be compulsory on the City, and it cre- ated no obligation or duty upon the municipality either to give its consent to the use of the Square, as proposed, or to remove the Perry Monument from its present site.
"We are now brought to the most important question of the case," continued Judge Stone. "Is the use that is proposed within the terms of the dedication ? We have then two propositions established. The Square is a place to be kept open and unobstructed, for the pur- poses of free passage, for pleasure grounds and amuse- ments, for recreation and health ; it may be beautified and ornamented -or it may be used for the public buildings for the transaction of the public business. It cannot be lawfully used for any other purpose than that named, expressed, or intended by the dedicator.
" Is this Monument within the uses intended ? It is transparently clear that it is to be permanent in its character, and not a place for the transaction of the public business. If then, it may be properly placed in the Square, it is because it is suitable by way of orna- menting, beautifying, or adorning it and in harmony and keeping with its use for pleasure grounds for recre- ation or health. The space now composing the south- east quarter of the Square within the sidewalk sur- rounding it is 184 feet square (33,856 square feet). The Monument is to be 95 feet square, located in the center
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(covering 9,025 square feet). If the Monument is placed there, it is apparent that one-quarter of the Square is thus devoted permanently and practically for all time to this object. It can, in the nature of the case, contain nothing else, since it will cover some- thing more than one-fourth of the space described. The Memorial or Tablet Room is 40 or 46 feet square, and 20 feet high and something more than that, in- cluding ornamentation. This section of the Square would certainly no longer be open and suitable for pleasure ground and for the purposes of unobstructed passage. Does this constitute so important a part of the whole Square as to make the use proposed an abridgment of the rights and uses for which the Square was intended ? We think it does, and that the erection of so large and permanent a structure is not within the lawful, contemplated, and intended uses of the grant. We are not unmindful that in all civilized countries these public places or squares in cities and towns have ever been regarded as appropriate and suitable places for the erection of monuments, commemorative of great national or local events, and statues in honor of the world's heroes and eminent men. We have no doubt that within certain lines this Square may be so used, and be consistent with the dedication, but we ventitre the opinion that the structures must be such as shall not, in any appreciable degree, interfere with the free, open, and unobstructed use of the Square by the public, but shall be incident to its use and more complete en- joyment. This Monument, magnificent and beautiful in its proportions, if erected on the site proposed, will not be an incident to that section of the Square, but that section will have become an incident to it. If this structure may be erected upon one section, by the same token, for reasons and purposes equally meritori- ous, may there not be another structure, still larger in
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size, erected on the northwest quarter, and still another on the southwest quarter? There is still left another quarter upon which to erect a building for the transac- tion of the public business. When this is all done the city may thereby be greatly beautified and adorned, but we inquire, what has become of the Public Square ? The place is beautified and adorned, but the Square has disappeared ; it is no longer open, unobstructed for the free use and enjoyment of the people. It is no longer open, where great masses of our people may as- semble to listen to public discussion, or take part in public celebrations, or witness great military or civic demonstrations. It is no longer an open breathing place in the heart of a great city. The case supposed, of a large structure on each quarter of the Square, is of course extreme and improbable, 'but sometimes to sup- pose an extreme case is the best method of demonstrat- ing the danger of false doctrines.' But we affirm that under this dedication, no section or quarter of the Square can be lawfully used as a site for a large and permanent structure (saving possibly and only a build- ing for the transaction of the public business) that in effect would amount to the permanent appropriation of such section. And such, we think, would be the prac- tical result in this case, if the Monument be placed where proposed. It is urged that the plans and design for this Monument were made with special reference to this site, and that the Monument is not adapted to any other. The facts, we think, do not warrant this claim. The affidavit of Mr. Scofield, the artist and designer of the Monument, is to the effect that 'said Monument was designed and planned in March, 1887, and was of the same size as the present plans of the same, including the esplanade, the building for the Memorial Tablet room, the shaft, and every other part of the Monument,' etc. This was more than a year before the law was
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passed authorizing the use of the Square as a site, and a year and a quarter before the City Council adopted its resolution giving consent. In March, 1887, no law or resolution had been passed, so far as the proof shows, indicating the Square as a site, but all the State legis- lation on the subject authorized the 'purchase of a site therefor.'
"We have sought to examine and determine these cases along purely legal lines and upon legal principles, wholly apart from sentiment; and the conclusions reached are not born out of any desire we have to see this beautiful Monument, in which all our people will take great pride, kept out of the Public Square; and should the views held by this Court be sustained, the gentlemen composing this Commission, in whose wis- dom, judgment and fidelity the public have great con- fidence, we doubt not will find and secure a site for this Monument that will meet with public approval. For the reasons already expressed, perpetual injunctions are awarded."
" The attorneys of the Commission immediately gave notice of an appeal of the case, under a bond of $200."
Thus we had met our Bull Run! Subsequent pro- ceedings in the higher Courts clearly demonstrated that the learned Judge erred.
" To err is human, to forgive divine."
The preliminary judicial opinion of Judge Stone did not eventually stand in law, but it served the pur- pose of interested and misguided individuals, and the few honest opponents of the selected site. It goes with- out saying, that the Monument Commissioners were disappointed, but they were not disheartened. Re- pulsed in the first skirmish, they re-formed their lines and moved forward, knowing their cause was just and would ultimately end in victory.
IX.
"TO continue the historical sequence of events, we here record that with the advent of the new City gov- ernment which came into power on the third Monday of April, 1891, pursuant to the new Municipal law, the board of Park Commissioners became officially extinct. They left behind them the memory of work undone, of achievements long cherished but unaccomplished. Nevertheless the Parks will be extended, and better cared for in the future, and the Soldiers' Monument will adorn and grace the southeast section of the Public Square. City Solicitor Burns, who had faithfully served the Park Commissioners, shared the fate of the son of Jacob, when there arose a new king which knew not Joseph.
The new form of Municipal government was originally contemplated and represented to be an imitation of the plan of the Federal government, conducted with indi- vidually responsible heads of departments, their official designation being Directors. In practical administra- tion, however, it is but a slight apology for its assumed original pattern; the Mayor, and the Directors, face- tiously called the Mayor's "Cabinet", being therein unfortunately constituted a Board of Control, with practically legislative, as well as executive functions, thus depriving the system of individual responsibility and efficiency, as contemplated by its honest and earnest originators. It has been with the two most important members of the "Cabinet" the Monument Commission has been necessitated officially to deal-the Directors of Law and of Public Works.
ADVANCE GUARD
BRONZE PANEL IN FACE OF PEDESTAL-CAVALRY GROUP.
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At the first election under the Federal Plan Municipal law, in April, 1891, Hon. William G. Rose succeeded to the mayoralty. He appointed R. R. Herrick Director of Public Works, and General Edward S. Meyer Director of Law ; the former succeeded to the duties of the old Board of Park Commissioners. These three officials went into office as the supposed friends of the Soldiers' Monument and the members of the Commission. A lit- tle experience with them, however, forcibly reminded us that this is truly a world of disappointment. We had confidently expected that the "amicable" law snit that had been commenced by the late Park Commissioners would be at once withdrawn by the Director of Law. As a private citizen, he was our professed friend, and, if need be, a volunteer defender of our rights; but as an official, he was compelled to follow the instructions of " his chief," the Mayor. As time went on, however, his former professed friendship seemed gradually to lose its ardor. We soon observed the changed condition, but went serenely on our way, feeling that time at last would set all things right.
Work was continued in the studio on the several groups of the Monument during the Summer of 1891, but no work was done on the site, pending the appeal to the Circuit Court.
At the Fall term of the Court the case came up for hearing. The City's interests were in charge of General Meyer, who showed by his grave solemnity the weighty responsibilities that were thrust upon him by his chief. Judge Boynton, of the East Cleveland Street Railroad Company, was on deck for Judge Williamson's inherit- ance. The Circuit Court rendered its opinion on De- cember 3d, 1891, its decision being published in the Leader of the following date, as follows :
" The Soldiers' Monument will not be erected in the Public Square, unless the Supreme Court of the State
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reverses the decision of the Circuit Court rendered Friday morning. The decision which was delivered by Judge Caldwell was a very lengthy one, and covered all the points involved. After reciting the course of events which led to the application by the City and the Messrs. Williamson for an injunction restraining the Monument Commission from erecting the Monument in the Public Square, Judge Caldwell proceeded as follows : 'The issues before us are these: First, it is contended that the Commission is not a legal one, for the reason that it was not constitutionally appointed, as there was no number of persons to select from, but it was necessary to appoint all the members of the Soldiers' Committee. There is no dispute as to the facts regarding this point. The Commission consisted of the same number of persons as did the old Commit- tee, and it was provided in the act that they should be named as Commissioners, thus allowing no room for selection. The Commission was therefore illegally ap- pointed. The second point in dispute is as to the character of the proposed Monument, and the effect it would have upon that section of the Square, and, further, whether or not the property of the Williamsons would be injured by its location at that point.'
" The base of the Monument, as proposed, is of such a size, continued the Court, that it would be necessary to divert the straight walks now across that section of the Square, and make them pass around the Monument. This would necessitate the formation of two grades- one from Euclid Avenue to the Monument, and the other from the Monument to the corner of Ontario and Superior Streets. These grades would have to be at least one and one-half inches to the foot, and would be altogether too steep for the safety of pedestrians in wet or icy weather. The course of travel would therefore be diverted from that section of the Square, and conse-
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quently the number of persons passing the Williamson property would be diminished, and its value for rental purposes would undoubtedly fall. There was, therefore, no question that the Monument would cause injury to the Williamson property. It was contended by the Commission that the Williamsons could not complain of any improvements placed in the Park, as long as such improvements were within the purposes for which the land was originally given. The City would have an undoubted right, said Judge Caldwell, to entirely enclose the sections of the Square for the purpose of ornamentation, but the walks as now arranged are of such convenience that they have almost become a public necessity, and the public would demand that they be retained in such terms that the representatives of the public would hardly dare close them up.
" The attorneys for the Commission relied to a great extent upon the resolution passed by the Council au- thorizing the Commission to place the Monument in the Square, but the City contended that the ordinance was illegal, because it was passed on the same night on which it was introduced, and without the necessary suspension of the rules. The Court upheld the latter contention, and said the Council's action was null and void. But the Commission contended that even if the Council's action was illegal, such action was not neces- sary, as the Legislature had the right to take the Square for county purposes, as the Monument was for the ben- efit of Cuyahoga County, and not of the City alone. This was met by the contention on the part of the plaintiff, that the State had no jurisdiction to undertake the ornamentation of the Square. The whole matter could, therefore, be resolved into three questions, con- tinued Judge Caldwell. First, has a Municipal corpora- tion two natures, one public, the other private? Second, if the Square comes under the private nature of the
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Municipal corporation, has the State the right to step in and dictate how the City shall ornament the Square ? Thirdly, does the action taken by the State fall under the private business of the corporation, or under its public business ?
" The Court held that the Municipal corporation has two distinct functions. As to the second proposition, it was held that while the State has authority to say what officers shall exercise authority over the private affairs of a corporation, it has no right to prescribe the mode and manner in which those affairs shall be carried out. As to the third proposition, the Court held that the care of the Square was part of the City's private business, and that the State had, therefore, no right to interfere with it. The City has a right to enclose the Square, but it lias no right to enclose any street, because every citizen of the State has an interest in the public highways. Continuing, Judge Caldwell asked : 'How much con- cern is it to the people of other counties how the Public Square in this City shall be ornamented ? It is perfectly inconsistent to presume that the State can say to this City, 'you must put a flower-bed here, and plant a tree there, and build a mound over yonder.' Who has asked that Perry's Monument be removed? Have any cit- izens of Cleveland requested its removal ? Who's going to pay for the work of removing it ? The money would certainly come out of the pockets of the citizens of Cleve- land, and the Legislature has no right to say to the citi- zens, 'you must go to this expense, although you haven't asked to be allowed to do so.' The Legislature has no riglit to dictate to the City of Cleveland how its Parks shall be ornamented. The assent of the City was not obtained to this disposition of that part of the Square, and the Legislature had no authority to order the Mon- ument to be placed there. The injunction restraining its erection at that point is therefore made perpetual.'"
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