USA > Ohio > Cuyahoga County > History of the Cuyahoga County soldiers' and sailors' monument > Part 9
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Square. I believe it will stand there, and I believe we will dedicate it next Spring.'
"Major W. J. Gleason was loudly called for. He said that he wanted the talking to be done by members of the Union outside of the Commission. 'The Com- mission have done a great deal of talking lately,' he continued; 'but all our talk and all our work have been fully and solely for the Soldiers and Sailors of this county. We have no personal ends to serve. We are doing a labor of love. We went along peacefully and quietly for eleven years, and then, when we were ready to build, we were stopped. It is well known that Soldiers are law-abiding citizens. We therefore sub- mitted to the law, and the law has sustained us. Now we find a City Government that is doing all in its power to evade the law. General Meyer was with us until he got his $5,000 job from Mayor Rose. Since then he has been the worst enemy we have had in the whole business, and now, when he has been fairly whipped, he tells Director Gibbons to arrest any one who goes on with the work. You all know the truth about the picayune newspaper that is trying to create sentiment against the Commission. As an old journalist said : 'They're raising - to sell a few papers.' If General Meyer said that five-sixths of the Soldiers of the county are not in favor of placing the Monument on the Square, I don't believe he told the truth. I know he hasn't told the truth in other instances. We have representatives here to-day from all over the county. If you will back us up, we'll do our duty, and carry out the work with which we have been entrusted, despite all of General Meyer's efforts.'
"There were calls for W. B. Higby when Major Gleason concluded. 'The man who said that five-sixths of the Soldiers don't want the Monument on the Square,' said Mr. Higby, 'never knew one-sixth as much as the
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men of his own regiment knew on any one subject. He never had anything in common with his men.' The speaker said that there were 'two colored gentlemen in the woodpile,' as far as the City Government was con- cerned. One was the street railroad interest, which wanted the Monument put where it would cost money to reach. The other was another branch of the street railroad interest, which, sooner or later, according to the speaker, intended to ask the City for permission to run its cars diagonally across the Square. 'Don't bother about the newspapers,' continued the orator. They always give us more - than they do news. I want to say that I'm with the Commission now, hence- forth, and forever, amen.'
"The tall form of George A. Groot, Esq., was next recognized by the Chairman. Mr. Groot's remarks were chiefly directed against the City Government. 'If the City authorities undertake to prevent the Commission from occupying the Square,' he said, 'they will be flying in the face of the law, and will be no better than rioters. The resolution passed by the Council, the other day, isn't worth the paper it was written on. I want to say, here and now, that if this Commission is made of the material I think it is, the Monument will go in the Square in spite of -, or, in other words, of the City Government. [Applause.] Go on and remove Perry's statue and the water pipe ; put them where they ought to be, and sue the City for the bill. Then you will stand on the neck of the City of Cleveland. Go forward ! If a policeman dares lay his hand on you, the City will be responsible for damages for his unlawful act.'
"Hon. J. Dwight Palmer was the next speaker. 'What is insurrection,' he said, 'if it isn't opposition to the action of our Courts? The honorable position taken by the Commission crowns its success with the
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almost unanimous sympathy of the people of Cuyahoga County. I hope no further interruption will impede the rapid growth of this structure, and that by next Spring it will stand on the Square in all its grandeur and glory.'
"At this stage, the Committee on Resolutions pre- sented their report, which was read by Mr. Phillips. It was as follows:
"First. We hail with satisfaction the decision of the Supreme Court of our State, affirming in unmistakable language, in our favor, all the various points involved in the erection and location of our Soldiers' and Sailors' Monument, thus effectually and forever closing the discussion as to the location of said Monument.
"Second. We heartily approve and endorse the quiet, manly, law-abiding, and patient course of our Monument Commission, in carrying out our wishes and desires on this, to us, momentous question, and promise them our united support in their conscien- tious efforts to proceed upon the impregnable position accorded them.
"Third. We view with apprehension and indignation the attitude of the present Government of the City of Cleveland, in its undigni- fied attempt to nullify the plain decree of the highest tribunal of our State.
"Fourthı. We insist as law-abiding citizens, who in the past years freely and willingly risked their health, their limbs, and their lives for the purpose of upholding the Constitution and laws and their expounders, that this attempt to frustrate the dictates of the law, to jeopardize all the work done, and all the money expended, cease forthwith, believing in the doctrine that such a creation of the law as a City Corporation should be the first to zealously uphold laws and courts, its creators and preservers."
"The ayes and noes were called for on the adoption of the resolutions. There was a mighty shout in favor of their adoption, and one stentorian voice shouted 'no.' 'The resolutions were declared unanimously carried."
An occasional assertion was made in public and pri- vate, by those opposed to the Monument site, that the Soldiers of the county were divided in their sentiment. To prove this to be utterly false, action was taken by
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every Grand Army Post and every other Soldier organ- ization in Cuyahoga County. The result was a univers- al and unanimous approval of the site selected, and a vigorous endorsement of the work of the Commission. This action effectually spiked the strongest battery of the opposition.
On July 18th, the Leader published the following :
" The necessary preparations for the advance on the Public Square have been completed by the Soldiers' Monument Commission. Since the City shows a dispo- sition to leave the statue of Commodore Perry undis- turbed, the Commissioners have said that they will attend to its removal. In anticipation of such action on the part of the Commissioners, the City has stationed a policeman on the Square with orders to prevent en- croachment on the public domain. It has been decided by the Commissioners to send a notice to the City au- thorities announcing that they are about to proceed with the erection of the Monument, and then begin the work without further ceremony. The notice is awaited with great interest by the City officials, as it is expected to mark the beginning of actual hostilities. It has been arranged that the notice shall be served to-day and about the time it is delivered lumber will probably be hauled to the Square. Then there will be an appeal to the Courts and the judges will decide whether the City can be required to remove the Perry statue and the water main extending through the Square.
" Mr. Loren Prentiss, and Judge J. M. Jones, attorneys for the Monument Commission, have prepared the 110- tice. Mr. Prentiss yesterday gave a reporter a copy of the following legal opinion, drawn at the request of the Commission, which will be submitted to the City au- thorities with the notice :
- " First. The Supreme Court having held the act of April 16, 18SS, constitutional and valid, and the Board of Monument Commissioners
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appointed under it a legal and valid Board ; and also, as hereinafter shown, that the Board, as such, have the right to locate and erect the Monument upon the southeast section of the Square, without the consent of the City, the Board have now the full right to take possession of that site and proceed with the work of erecting a Monument. Having such right, neither the Mayor, Director of Public Works, nor of Law, nor of Police, nor any part of the police force of the City, has any right or authority to forcibly interfere with the Board, or any of its employes or contractors, to hinder, de- lay, or prevent the doing of the work ; and anyone so interfering, or advising, aiding or abetting the same, will be civilly and crimi- nally liable, the same in all respects as any private person would be under the same circumstances. They would have no official anthor- ity or character in such a case, and would simply unlawfully array themselves against the State and its laws, as private individuals, as interpreted by the Supreme Court. In this we have assumed that the parties were not acting under a warrant issued by any proper Court ; and no such warrant could be legally issued without a proper affidavit containing such statement of facts as would, if true, constitute a criminal offense.
" If any such Court should be applied to for a warrant, it would be bound to take notice of the statute under which the Commis- sioners are acting, and also the decision of the Supreme Court con- firming the rights and powers to so locate and erect the Monument, and an affidavit which should ignore these facts, and charge those acting under the Commissioners as wrong-doers, would be both false and illegal.
"Second. Should there be any such forcible interference with- out a writ, the Board and those employed under them would have full right to use so much force as may be necessary to remove all persons so interfering from the place where the work is being done.
"Third. The fact that a motion has been filed for a rehearing in one of the cases in no way affects the rights and powers of the Board, or anyone acting under them. Nor does the misapprehen- sion, if any, of the Court, in its opinion, as to whether one member of the Commission was or was not a member of the old Committee, affect the rights of the Board or those acting under thein. The reasons of the Court for its decision are no part of the record, and do not change or lessen its force and effect. The Court may give a pårt or all of its reasons for a judgment rendered, or simply render the proper judgment without giving any reason, as is done in the Supreme Court in a large number of cases every year.
"The judgment, however, in all cases is supported by all the reasons which may be gathered from the record, and all the pre- sumptions are in its favor, and all questions actually involved and
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decided in the case, and also all points or questions necessary to the judgment rendered, are conclusively settled and adjudicated and cannot again be called in question between the same parties or those claiming under them.
" Fourth. Some of the points and questions, among others, so con- clusively settled in these cases are the constitutionality and validity of the statute, the legal validity of the Board of Commissioners, and their right and power to so locate and erect the Monument on the southi- east section of the Square. All these points and questions were ex- pressly made in the case, and were necessary to a judgment in favor of the Commissioners. It was averred by the City and admitted by the Commissioners that unless restrained by the injunction of the Court they would take possession of that section of the Square, and remove the Perry statue and erect the Monument there; and the vital question was whether they had the right and power to do so. If they had not, the City was entitled to the permanent injunction asked; but if they had such right, the judgment would be in their favor and against the City, as it was in the Supreme Court, and this decision, therefore, settles the law that the Commissioners have the right to remove the Perry statue as one of the essential steps to- wards the erection of the Monument. All this appears from the record. But the power to remove the Perry statue, as well as any other obstruction, is plainly conferred upon the Commissioners by the statute, for it gives them full general power to so locate and erect the Monument, and it is a fundamental principle that 'When- ever the provision of the statute is general, everything which is necessary to make such provision effectual is supplied by common law or implication.' South. Stat. Con. Sec. 337.
"The power of the Monument Commissioners to remove the Perry statue does not, therefore, depend upon the provision giving them the right to require the City to remove it; but, on the con- trary, the right to require the City to do it in no way lessens but, on the contrary, recognizes the power of the Commissioners to remove it; nor does their right to remove it in any way interfere with the right of the City to place it in such new location as the City may see fit. In short, the City having brought suit against the Monument Commissioners denying their right to remove the Perry statue and erect the Monument, and having been defeated in the Supreme Court, cannot legally disregard the judgment by forcibly preventing the doing of the work.
" Fifth. The talk about taking the cases to the Supreme Court of the United States is entirely groundless. It cannot be taken there without the allowance of a citation by some judge of that Court, nor would it then interfere with work on the Monument un- less a supersedeas bond should be given to cover all damages from
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delay in case the suit should be dismissed. Besides, a motion to dismiss could be filed at once, and we doubt not but that it would be promptly dismissed on motion, for the reason that there is no possible ground in the record for jurisdiction by the Supreme Court.
" L. PRENTISS, "J. M. JONES, "Attorneys." The Leader of the 19th published as follows :
"The ultimatum of the Soldiers' and Sailors' Monu- ment Commission was sent to the City officials yester- day. Timely notice was given that an advance on the Public Square would be made at 9 o'clock this morn- ing. Since the question has arisen whether they have the right to enclose the section of the Square to be de- voted to the Monument, the Commissioners have decided upon other tactics. Unless a change is made at the last moment, no lumber wagons will cut a figure in the ranks of the advancing hosts. They will attempt to assert their authority to the Square by having an en- gineer survey the ground. An interesting feature of the program is a call for a meeting of the Commis- sioners to be held on the Square at 9:30 o'clock this morning. The idea is that if arrests are made the pris- oners should include all the Commissioners.
" Director Gibbons has notified the police to arrest all persons trespassing on the Square.
" The line of action has therefore been fully deter- mined by each side and it only remains to carry out the program.
"The following is a copy of the notice sent to the City officials :
" CLEVELAND, July 18, 1892.
"To the Mayor, Director of Public Works, of Law, and of Police of the City of Cleveland.
" The Board of Monument Commissioners have been informed that you have advised and propose to interfere with and prevent by force the commencement of the work for the erection of the pro- posed Monument by them as such Commissioners ou the southeast section of the Public Square, and you are hereby furnished with a
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ARTILLERY EMBLEM IN CAPITAL.
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copy of the legal opinion of their attorneys on the subject, denying your right to thus interfere ; and they earnestly protest against any such interference. To avoid any excuse for any such interference, and to give you ample time for any legal action in the premises, you are hereby notified that such work will be commenced on said south- east section of the said Square by the direction and authority of the Board of Monument Commissioners, at 9 o'clock A. M., to-morrow, Tuesday, by Levi T. Scofield, W. J. Gleason, E. H. Bohin, James Hayr, L. F. Bauder, C. C. Dewstoe, E. W. Force and J. J. Elwell.
" THE BOARD OF MONUMENT COMMISSIONERS,
"By L. PRENTISS and J. M. JONES, " Their Attorneys.
" The call for the meeting of the Commissioners is as follows :
"The Cuyahoga County Soldiers' and Sailors' Monument Com- mission will meet on the southeast section of the Public Square at 9:30 A. M., July 19, 1892. By order of
"W. J. GLEASON, President. "LEVI F. BAUDER, Secretary.
"The members of the City Council lined up in battle array last evening and determined to fight for the Public Square to the end. No quarter (not even the southeast one) is to be given, and the figlit is to be waged, if nec- essary, with all the resources of the City. At last even- ing's meeting of the Council, Mr. Wilhelm submitted a declaration in behalf of the City, in the form of a resolui- tion, which read as follows :
"Resolved, That the Corporation Counsel be and he is hereby authorized and directed to institute and prosecute such proceedings at law or in equity in the proper court or courts, as shall, or in his judgment may, prevent the occupation of the southeast section of the Public Square as a site for the proposed Soldiers' Monument, and to prevent any interference with the water inain or the statue of Commodore Perry, now located and remaining therein, until such time as the said water main and statue shall have been removed therefrom by the Director of Public Works in due course of law. Nothing, however, in this resolution contained shall be held to au- thorize the Director of Police to permit any interference with the said southeast section of the Public Square, or the placing of any obstructions whatever thereon until the said Director of Public Works shall have so removed the said water main and statue there- from.
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"Dr. Beeman was on his feet at once. 'The Coun- cil,' he said, 'has no business to interfere with the erec- tion of the Soldiers' Monument, and the Supreme Court has said so. It is buncombe, and I fail to see why we should give it any attention.'
" Mr. Wilhelm-' It is not buncombe. We are threat- ened with an invasion of the Public Square, and it is our duty to resist it.'
" Mr. Straus-' I am, and have been, opposed to plac- ing the Monument in the Square, and I favored the appeal to the Supreme Court. The Court has passed upon the case, and I do not believe that we are taking the part of good citizens or representatives of good citi- zens in now opposing that decision. We were not long ago decrying the acts of strikers in disregarding the law, and now we are strikers against the law of the land.'
"Mr. Herbert-' Is the City in a position to legally keep the Monument off the Square ?'
"General Meyer-' The Supreme Court, in deciding the case, says that the Legislature has the right, inde- pendent of the City, to authorize the placing of the Monument on the Public Square. The statute author- izes the use of the Square, and says that on the written demand of the Monument Commissioners, when duly organized, on the Board of Park Commissioners, whose authority has passed to the Director of Public Works, the statue of Commodore Perry and all other obstruc- tions shall be removed from the southeast section of the Square. No authority is given for the removal of the Perry statue or other obstructions by the Monument Commissioners or anyone else except the Director of Public Works. The excavation for the Monument will require a shutting off of the water main, thus depriving a large number of people of their water supply and sub- jecting the most valuable part of the City to destruction
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by fire. Since the Monument Commission was created, the Legislature has passed a law making it a penal offense for a City Director to expend any money except for the purpose for which it was expressly appropriated. Before the Director of Public Works can remove the statue it will be necessary for the Council to provide money for that purpose. It rests with the Council to say what shall be done in that regard. It is the duty of the Directors of Public Works and of Law to protect and maintain the Perry statue until, by due process of law, it can be removed from the Public Square. It cer- tainly was never contemplated that the safety of this City should be jeopardized by the hasty action of the Monument Commission. If the Council sees fit to re- scind the action of last week and orders the Director of Police to withdraw police protection from the Square, I have nothing to say. I have given my professional opinion and am ready to make it good.'
" Dr. Beeman-'According to General Meyer's opin- ion, there is nothing for us to do except to appropriate money to remove the obstructions in the Square. I can- not see what this resolution has to do with it.'
"Mr. Herbert-' I voted for the resolution to keep the Soldiers' Monument off the Public Square with my eyes wide open. I do not believe that the Monument could be shown there to good advantage. I believe that General Meyer should be authorized to keep the Monn- ment off the Square.'
" Mr. Straus-' I would like to hear from the Director of Public Works about the removal of the water main.'
"Director Herrick-' Hasty action on the part of the Monument Commissioners might seriously discommode a large number of people. The removal of water mains is attended with danger, and this one has been in the ground since 1857. The lowest amount for which we can remove the main, provided the Monument Commis-
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sioners permit us to use part of the southeast quarter of the Square, will be $2,000. If we have to take it around Bond Street the cost will be $7,000. It will require at least five weeks to do the work. Unless care is taken there may be serious results.'
"Clerk Burgess read the notice of the Commissioners that they would occupy the Square at 9 o'clock this morning.
" Mr. Wilhelmn-'And it was to prevent them that this resolution was presented.'
"A vote was taken on the resolution and it was adopted. Yeas, 12; nays, 7."
We call particular attention here to the statement of Director Herrick as to the difficulty and cost of remov- ing the water main, and the time it would take. We shall truthfully show later on that he was throwing sand in the eyes of the members of the Council, or he was prevaricating, and further, that he did not know what he was talking about. The members of the City Coun- cil and Board of Control, pursuant to law, took an oath "to support the Constitution and Laws of the United States and of the State of Ohio," but they seemed to forget or ignore that fact when they were acting on the Statutes of Ohio as to the rights, under the law, of the Monument Commission.
We reproduce a Cleveland World editorial of July 17th, clearly condemning the illegal proceedings of the City officials:
"The by-play between the City authorities on one side and the Soldiers' Monument Commission on the other is interesting as a spectacle, but its result is worry and bitterness, without any corresponding gain.
" The City granted the use of the Square to the Com- mission once, and objection to such use was not raised until too late to amount to anything. The City has no legal right to interfere after the Supreme Court has de-
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cided in favor of the Commission, nor has it ethical right to withdraw the permission given years ago, and under which a great amount of money has been ex- pended. The City administration has been beaten in this, as in nearly everything else which it has under- taken, and its attempt to blind the public eye to the fact can only result in making the defeat more ap- parent.
"Under the Supreme Court's decision, it appears that the City has no jurisdiction over the Square, which was given to the general public by the original owners for public purposes. The general public was not consulted except through its representatives in the Legislature when the site was given to the Monument Commission. No protest was made at the time of the passage of the act by the Legislature, and the general public thus lost its right to object for all time."
After a few days' rest, the contest was again renewed. We quote from the Plain Dealer of July 20th :
" The warriors invaded the sanctified southeast section of the Public Square at 9:30 o'clock, Tuesday morning, and daringly trampled all over Mr. Herrick's green grass and scornfully brushed against his lovely flower beds. They boldly surveyed the section-actually mneas- ured its length and breadth and depth before the eyes of fifty paralyzed policemen-and drove one stake in the sod, but like the king of France, who, with 40,000 men marched up a hill and then marched down again, they immediately pulled it up again, for at that moment Attorney Loren Prentiss appeared upon the scene and announced that Gen. Meyer had applied to the Court for a restraining order, and added that by mutual con- sent hostilities would cease until Thursday morning, when a hearing will be had.
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