USA > Ohio > Cuyahoga County > History of the Cuyahoga County soldiers' and sailors' monument > Part 7
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SOLDIERS' AND SAILORS' MONUMENT.
Well, well! BULL RUN continued ! Again repulsed ! Quite a strong decision, that ! While we had hoped for a different result, we were now speedily becoming convinced that judicial judgments and decrees are alike subject to error, as the opinion of common humanity. Knowing, however, that our opponents had no reserve to bring up, or fall back upon, we felt that, in the general engagement soon to follow, we would win the field.
Loren Prentiss, Esq., in behalf of the Commission, excepted to the Circuit Court's decision, and the case was carried to the Supreme Court.
X.
T HE Winter of our discontent and disappointment was made glorious Summer by the receipt of the decision of the Supreme Court, handed down June 21st, 1892. The Plain Dealer, of June 22d, describes our feeling :
" The happiest people in town yesterday were the members of the Soldiers' Monument Commission, when the news was received that the Supreme Court had over- ruled the decisions of the Common Pleas and Circuit Courts and decided that the Soldiers' Monument might be placed in the Public Square. Major Gleason's face was beaming with joy, and Gen. Barnett shook hands with everybody. Major Gleason said he thought there soon would be a meeting to arrange for beginning work on the foundation.
" The Common Pleas Court granted an injunction more than a year ago, on the petitions of the City and of Judge S. E. Williamson and his two broth- ers, who own a business block on the Square. The Court held that the placing of the big Monument on the Square would be to divert it from the public purposes for which it was intended and dedicated. The Circuit Court of this judicial district sustained that decision. The Supreme Court reverses both lower Courts."
The full text of the decision of the Supreme Court is as follows :
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SOLDIERS' AND SAILORS' MONUMENT.
"[Copied from the 49th volume Ohio State Reports, pages 431 to 437.]
"DECISION OF THE SUPREME COURT. "GLEASON et al. v. CLEVELAND.
" Soldiers' and Sailors' Monument, Cuyahoga County : Act of the General Assembly, passed April 16, ISSS, (85 Ohio Laws, 564,) authorizing the selection of the southeast quarter of the Public Square in Cleveland as the site for its erection, held constitui- tional.
" (Decided June 21, 1892.)
"ERROR TO THE CIRCUIT COURT OF CUYAHOGA COUNTY.
"The plaintiff in error, defendants below, were appointed by the Governor of the State, Commissioners, under the act passed April 16, 1888, (85 Ohio Laws, 564,) for the erection of a Monument to the Soldiers and Sailors of Cuyahoga County in the late War; and, in pursuance of the power conferred on them by that Act, have se- lected the southeast corner of the Public Square in the City of Cleveland, as the site for the Monument, and propose to build the same thereon. The City of Cleveland objects, and claims that, without its consent, which has not been given, the site selected cannot be appropriated to that use; and furthermore, that the act of the Legislature is unconstitutional. The case having been de- termined in the Common Pleas, was appealed to the Circuit Court, where, upon the trial, the Court stated its conclusions of fact and of law separately, and rendered judgment for the plaintiff. The findings are as follows :"
(Parts deemed immaterial being omitted.)
"I. That the Connecticut Land Company was in 1796, and for some time prior thereto, the owner in fee simple of all the lands now comprised within the limits of the City of Cleveland.
"2. That on or about the first day of October, 1796, the Connect- icut Land Company caused a survey and plat and allotment of what was theu intended by said company to be the City of Cleveland to be made, designating as shown upon said plat the location of streets, alleys and public places, and the boundaries and number of lots ; that said survey and map were made for the purpose of selling lots designated and numbered as aforesaid with reference to said plat and allotment, and to dedicate to the public the streets, public highways and public places as shown by said allotment, survey and map-a copy of which map is attached to plaintiff's petition and made a part of these findings of fact.
"That afterwards, on the 6th day of November, 1801, the Connect- icut Land Company, being still the owner of said lands, caused a
v
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HISTORY OF THE CUYAHOGA COUNTY
resurvey of all the lands included in the first plat and survey to be made, differing in no essential particular from the first survey and plat, and recorded in the office of the Recorder of Trumbull County, the premises at that time being within the limits of that county.
"This resurvey and record were made in compliance and in con- formity with the act of the Territorial Legislature of December 6, 1Soo. (Ist Chase's Statutes, 291-292.) That said last map, minutes and survey were subsequently recorded in the records of Cuyahoga County, on the 22d day of November, 1814, Cuyahoga County having been organized in ISIo.
"That upon the said map and by said survey and resurvey, there is marked and designated a square space at the intersection of Supe- rior and Ontario Streets, and in said survey the following language is used as to each square space : 'The Square is laid out on the in- tersection of Superior Street and Ontario Street, and contains ten acres. The center of the junction of the two roads is the exact cen- ter of the Square.' There is no other provision in reference to said Square on said map or on said survey.
"3. When this original allotment was made, no streets extended into the Square except Superior and Ontario Streets, which two streets extended through its center, or nearly so, at right angles. In 1816, when the village of Cleveland was incorporated, Euclid Road was extended where Euclid Avenue now is, from its intersec- tion with Huron Street to the southeast corner of said square space known as the Public Square.
"For many years after this allotment was made, the Public Square was kept or permitted to be an open space, and free to the public to walk or drive upon, and to cross it as they saw fit.
"A traveled roadway existed across the southeast quarter of the Square, and teams and stage coaches to and from Buffalo to Cleve- land, coming along the Euclid Road, passed diagonally across this section of the Square into Superior Street near the center of the Square, and this roadway was so used until about IS38, when the four sections of the Square were enclosed with fences, leaving a roadway around, and Superior and Ontario Streets extending through the Square. This condition continued until about 1857, when fences were placed across Ontario and Superior Streets, and around the whole space known as the Square, except so much thereof on the four sides of the same as was necessary for the pur- pose of streets ; and about ten years later, on order of the Court of Common Pleas of this county, the City of Cleveland was ordered to remove so much of the fences as interfered with the use of Superior and Ontario Streets as public streets through the Square.
"From the year 1812 to 1830 there was a County Court House upon the northwest corner of the Square, used as a Court House and
IO7
SOLDIERS' AND SAILORS' MONUMENT.
Jail; and in the year 1828 a two-story brick Court House was erected by the County on the southwest quarter of the Square, about the center thereof, which remained until 1858 or 1860, when it was taken down and removed. During the War of the Rebellion, temporary 'Sanitary Fair' buildings were erected on those portions of the Square now designated as Superior and Ontario Streets, and re- mained about a year, when they were taken down and removed. These are the only buildings ever erected upon the Public Square, and ever since the removal of the Court House in 1858 or 1860, this space has been wholly under the control of the City of Cleveland, used as a public ground and improved and beautified after the man- ner of a park, having a rostrum or speaker's stand in the northeast quarter, and latterly the 'Moses Cleaveland Statue ;' and the 'Com- modore Perry Monument,' erected in the center of the Square in 1860, by direction of the City Council, but subsequently removed to its present site on the southeast quarter of the Square, where it has remained for many years and still remains.
"For many years past, public walks have been maintained diago- nally across the southeast section, as well as the other sections of the Square, excepting that there is no diagonal walk from the south- west corner of the southwest quarter.
"That said walks diagonally across the southeast section of the Public Square are daily used to a great extent by a great many peo- ple ; and in the northwest quarter of the Square the walk goes around the fountain 48 feet in diameter. For ten years and more prior to February 26, 1891, the Park Commissioners of the City have had charge of the beautifying and improving of the parks of said City, and of the parks themselves, including this open space or Square, and that such Park Commissioners were duly appointed and constituted, and continued in office from the time of their ap- pointment until the reorganization of the City of Cleveland under the act passed March 16, IS91, and the charge and control of said city parks were devolved upon said Park Commissioners by ordi- nances of the City in addition to such control as was conferred upon them by statute, in the following language: 'Said Commissioners shall take charge, and have the entire management, control and reg- ulation of all public grounds and parks belonging to the City, sub- ject to the city ordinances, and shall lay out such grounds and parks, with avenues, walks and paths, and make such other improvements and embellishments therein as they may deem proper, and shall pro- tect and preserve the same.'
"4. That the defendants, the Board of Monument Commis- sioners, were appointed by the Governor, with the advice and con- sent of the Senate, and qualified and organized and entered upon the performance of their duties. That at the time of said appoint-
IOS
HISTORY OF THE CUYAHOGA COUNTY
ment, and at the time of the passage of the act of April 16, ISSS, under which they were appointed, the Monumental Committee of the Cuyahoga County Soldiers' and Sailors' Union consisted of only twelve members, eleven of whom only were appointed by the Gov- ernor as members of the said Board of Monumental Commissioners, the membership of which also consisted of but twelve, who were not all residents of Cleveland. The Court further find that said Monu- mental Commissioners so composed selected the southeast corner of the Square as the site for the proposed Monument.
"That the amount of money provided by the said tax levies is sufficient only for the erection and completion of the Monument as designed by the Commissioners on said site, without any expendi- tures for a site.
"7. The Court further find that the Park Commissioners of the City of Cleveland never gave any consent or authority to said Monu- mental Commission to occupy this section of the Public Square for the purpose of erecting said Monument, but upon application therefor refused their consent.
"That the Monument would be of a public character and of a highly ornamental and worthy character as such and as a work of art.
"That in the forepart of April, IS91, but prior to the reorganiza- tion of the City Government under said act of March 16, 1891, the said Monument Commissioners were forcibly prevented by the Park Commissioners of said City from taking possession of said section of the Square for the purpose of erecting thereon said Monument, and that the reorganization of the said City Government under said act took place on the 21st day of April, 1891, and some time after the commencement of this action."
The Court thereupon also states its conclusions of law as follows :
" I. That said survey aud map, made and recorded as aforesaid, operate as a dedication of the said Square to the public, for the uses contemplated and intended by the donors at the time of the dedi- cation.
"2. That upon the incorporation and organization of the City of Cleveland, the said Public Square became subject to the exclusive control of the proper City authorities for the purposes so intended, and to be used for such purposes.
"3. That the City has not conferred upon said Monument Com- mission any right to occupy said section of said Square for the pur- pose of erecting said Monument thereon.
"4. That upon the facts above found, the said Monument cannot legally be placed on said section of the Public Square.
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"5. That the clause in the Act of the Legislature of April 16, 1888, attempting to confer upon the Monument Commissioners the right to select the southeast quarter of the Square as the place for such Monument, would not confer such right without the consent of the City of Cleveland.
"And thereupon rendered judgment perpetually enjoining the defendants from constructing the Monument on the site selected.
"The plaintiff in error alleges that there is error in the conclui- sions of law and the judgment of the Circuit Court, and asks that its judgment be reversed.
"L. Prentiss, J. M. Jones and A. T. Brinsmade, for plaintiffs in error.
"Edward S. Meyer, Corporation Counsel, Boynton, Hale & Horr, and Estep, Dickey, Carr & Goff, for defendant in error.
" BY THE COURT.
"The donation of the "Public Square" in the City of Cleveland by the Connecticut Land Company was not made to the City of Cleve- land, but to the public generally ; and the Court erred in so hold- ing. It was, therefore, competent to the Legislature to authorize the erection of a Soldiers' Monument upon this Square without the consent of the City, as done by the act passed April 16, 1888. (85 Laws, 564.)
"The objection that the persons composing the Commission created for the erection of the Monument are officers virtually appointed by the Legislature, and that the act is therefore uncon- stitutional, is, we think, untenable. If they are officers, within the meaning of the Constitution, the direction for their appointment by the Governor from 'the present Monumental Committee of the Cuyahoga County Soldiers' and Sailors' Union' is impersonal, and does not require the appointment of specific persons; whoever at the time the appointment is made compose that Committee may be appointed by the Governor, whether they were such members at the passage of the act or not.
"But it also seems clear from the previous decisions of this Court that the members composing this Commission are not officers within the meaning of Sec. 27, Art. 2, of the Constitution, denying to the Legislature the power of appointment to office. Walker vs. Cincinnati, 21 Ohio St., 14, 50.
"They are created for the accomplishment of a particular purpose -the erection of a monument, and their functions end with the accomplishment of that purpose. It was held in the case just cited, that persons clothed with such temporary functions are not re- garded as officers within the meaning of the Constitution.
"Judgment reversed, and petition of the plaintiff below dis- missed."
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HISTORY OF THE CUYAHOGA COUNTY
The turning-point had arrived. Our GETTYSBURG had been fought and won! The faith and confidence of the Moment Commission in the justice and merits of their cause had been judicially confirmed. Their able counsel, Loren Prentiss, Esq., Judge James M. Jones, and Comrade Allen T. Brinsmade, were congrat- ulated on every side on the result of their careful prep- aration and forcible and effective argument of the case. Unawed by public clamor, unmoved by local prejudice, purely on its legal merits, the Supreme Judicial tribu- nal of the State pronounced its judgment and decree. Would the opponents of the Monument site abide the result ? We shall presently see.
MORTAR PRACTICE
BRONZE PANEL IN FACE OF PEDESTAL-NAVY GROUP.
XI.
T HE changing panorama of events now begins to
move so swiftly on that the pen-and scissors- of the historian find it difficult to keep step to the music of the procession.
A meeting of the Commission was held July 6, at which action was taken as follows:
" Resolved, That the President aud Secretary be and they are hereby authorized aud instructed to officially notify the City Coun- cil and Board of Control that the time has come for the removal of the Perry statue, the water pipes and all other obstructions from the southeast section of the Public Square, so that ground may be broken at once for the erection of the Monument."
The resolution was adopted, and the officers desig- nated carried out their duty.
On July 9th, the Mayor materialized long enough to be interviewed in the newspapers as follows :
"Mayor Rose, although opposed to the occupancy of the Square or any part of it by the Soldiers' or any other big monument, said Saturday morning that he knew of no way by which the Commissioners could be prevented from erecting their Monument on the proposed site. . The decision of the Supreme Court, as I understand it,' said the Mayor, 'relieves the Commission from the necessity of even obtaining the Council's permission to occupy the Square. Further, it compels the City to remove all obstructions, and if it refuses to do this the Commissioners can compel the removal by mandamus proceedings. Under the Supreme Court decision, such proceedings could be maintained. The Monument should not go there, but I guess there is no way of pre- venting it.'"
II.4
HISTORY OF THE CUYAHOGA COUNTY
The City Council took action on the Commission's request at its meeting held on July 11th, as follows :
" Resolved, That it is the sense of this Council that the proposed Soldiers' Monument should not be placed upon the Public Square of this city ; that said Square is not a suitable place for said Monu- ment ; that the statue of Commodore Perry, now occupying a part of the southeast section of said Square, ought not to be removed therefrom ; that this Council will not, unless compelled thereto by order of Court, authorize or require the removal of said statue therefrom, nor appropriate any public money to meet the expense of such removal ; and that the resolution heretofore adopted by the Council of this city assenting to the erection of said proposed Mon- ument upon said southeast section of said Square be and that the same is hereby rescinded and such assent withheld."
This resolution was adopted.
On the same date, a special meeting of the Board of Control was held. The Director of Law, General Meyer, submitted the request of the Soldiers' and Sailors' Mon11- ment Commission that the City clear the southeast sec- tion of the Public Square for the Monument. Attached to the request was a copy of the Supreme Court decision giving the Commission authority to place the Monu- ment in the Public Square. General Meyer said that the Court had not passed upon the question of the validity of the Board except in an indirect manner. He could not bring himself to believe that the Supreme Court would decide that the Commission was legally appointed. As the Court did not pass upon that ques- tion, it could be made the subject of another suit if the City so desired. He was prepared to take any action recommended by the Board or the City Council. So far as his personal views were concerned, he did not believe that the Square was the proper site for the Monument. The documents were sent to the Council.
Immediately after the action of the City Council be- came known, supplemented by the report of General Meyer to the Board of Control, a meeting of the Com- mission was called. It was held on the 12th of July, at
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which the following action was taken-introduced by Commissioner Elwell, seconded by Commissioner Hayr, and unanimously adopted :
" Resolved, That whereas the Supreme Court has decided that the statute of April 16, 1888, is constitutional and valid, and that the Board of Monument Commissioners is a legal and valid board under the statute to locate and erect the proposed Monument in the southi- east section of the Public Square, the Executive Committee is hereby directed to take the proper steps to commence and prosecute the work of the erection of the Monument, and as preliminary to such work to have the necessary fence erected around the site.
"That in the prosecution of the work, such portion of the work as will not interfere with the Perry statue or water main be first done, giving the City time to procure funds for that purpose as directed by law."
On the evening of July 13th another meeting of the Commission was held, which was reported in the Plain Dealer of the following date as follows :
"An intensely interesting meeting of the Soldiers' and Sailors' Monument Commission was held in Major Gleason's office in the City Hall last evening. Attorney Loren Prentiss talked in strong terms to the members. He advised them of their legal rights in the matter, told them that the case could not well be appealed to the United States Supreme Court, gave it as his opinion that the City was playing a big game of bluff, and urged them to go ahead, as no legal obstacle stood in their way. The Commission thereupon decided to build a fence around the Square on Friday morning, and if not then on Monday morning. They will have a large force of men on hand to build the fence-1,000 old Soldiers, if necessary, taking part in the work-and it will be erected by sheer force. Words will not stop them ; fee- ble physical resistance will not stop them; they will only desist when it becomes apparent that the fence cannot be erected without bodily injury to someone. Policemen will be thrust aside and treated as ordinary citizens, unless they display warrants. If the Commis-
II6
HISTORY OF THE CUYAHOGA COUNTY
sioners are forcibly withheld from building a fence, they will appeal to the Court to restrain the City from interfering.
"In the beginning, the Commission discussed the matter informally. Mr. Dewstoe said that a Council- man had admitted to him that its action on Monday night in rescinding permission to occupy the Square was of no legal effect.
"'After that Monument is located in the Square,' said Dewstoe, 'you will not be able to find a man who opposed it.'
"'I will guarantee that the Monument will be 110 ob- struction to travel,' said Capt. Scofield. ‘People liave a mistaken notion of the size.'
"Attorney Loren Prentiss was questioned closely as to the Commission's right in the case, and particularly as to whether the other side intended appealing to the Supreme Court of the United States.
"'I have received 110 information that Judge William- son intends going to the Supreme Court,' said he. 'I have looked over the entire ground, and I cannot see upon what ground they can base an appeal. I under- stand that Judge Williamson intends to re-appeal to tlie Supreme Court of Ohio in September, but that will not deter our acting at once.'
"'That's what I want,' said Mr. Hayr. 'I want to act at once.'
"'In my opinion,' said Mr. Prentiss, 'I think the City is playing a big game of bluff and nothing more. Their policy is purely delay until the Legislature meets, wlien a big effort will be made to rescind all former legisla- tion on the subject.'
"'Mr. Herrick says that there is nothing in the law which authorizes us to build a fence,' said Capt. Moly- neaux. 'Is there anything in that ?'
"'Nothing at all,' said Mr. Prentiss, 'the fence is
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SOLDIERS' AND SAILORS' MONUMENT.
merely incidental to the actual construction of the Monument.'
"'What course would you advise?' asked Mr. Dew- stoe.
"'I would advise you to go right ahead,' said Mr. Prentiss, 'and build the Monument. You have the authority. If anyone attempts to stop you, go right on until you are compelled to desist through sheer force. You have the right to brush a person aside if he is in your way. What I mean is, that they must use actual force before you stop. Then there are several remedies for you. You can have them arrested for assault and battery, or you can apply to the Common Pleas Court for an injunction to restrain them from interfering with you.'
"'I don't want to arrest a poor policeman who is urged on by someone in the City Hall,' said Mr. Hayr. 'I had rather get out an injunction.'
"'So would I,' said Mr. Dewstoe.
"'As a lawyer, Mr. Prentiss, do you think that that injunction could be denied?' asked Mr. Hayr.
"'I think it would be a judicial outrage if it was,' re- plied Mr. Prentiss.
"'Well, then,' said Capt. Scofield, 'the best thing to do is to have Mr. Prentiss draw up a paper to-night ad- vising the City that we propose to go to the Square on Friday morning and begin work. They certainly can- not claim that we are trying to steal a march on them.'
"'That is a good idea,' said Mr. Prentiss ; 'we want to brush aside all technicalities. I will prepare that notice to-morrow morning.'
"'Wouldn't it be a good idea to have the Police Prosecutor notified, too?' asked Mr. Dewstoe.
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