
    Gleason et al. v. Cleveland.
    
      Soldiers' and Sailors’ Monument, Cuyahoga county: Act of the General Assembly, passed April 16,1888, (85 Ohio Laws 56l¡), authorizing the selection of the southeast quarter of the public square in Cleveland, as the site for its erection, held constitutional.
    
    (Decided June 21, 1892.)
    Eeros, 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 Raws, 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 selected 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 determined 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.)
    
      “ 1. That the Connecticut Hand 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 Connecticut Hand Company caused a survey and plat and allotment of what was then 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 Connecticut Hand Company, being still the owner of said lands, caused a re-survey 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 re-survey and record were made in compliance and in conformity with the act of the Territorial Eegislature of December 6, 1800. (1 Chase’s Statutes, 291-292.) That said last map, minutes and survey were subsequently recorded in the records of Cuyahoga county, on the 22nd day of November, 1814, Cuyahoga county having been organized in 1810.
    “That upon the said map and by said survey and re-survey, there is marked and designated a square space at the intersection of Superior and Ontario streets, and in said survey the following language is used as to such square space: ' “The square is laid out on the intersection of Superior street and Ontario street, and contains ten acres. The center of the junction of the two roads is the exact center of the Square.” There is no other provision in reference to said square on said map or on said survey.
    
      3d. 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 intersection 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 Cleveland, 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 1838, 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 purpose of streets; and about ten years later, by 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 jail, and in the year 1828 a two-story brick court house was erected by the county on the south-west quarter of the Square, about the center thereof, which remained until 1858 or 1860, when it was taken down and rernoved. 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 remained about a year wben tbey 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 manner of a park, having a rostrum or speaker’s stand in the northeast quarter, and latterly the Moses Cleveland statue and Commodore Perry monument, the latter erected in the center of the Square in 1860 by direction of the city council, but subsequently removed to its present site in 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 diagonally across the southeast section as well as the other sections of the Square, excepting that there is no diagonal walk from the southwest corner of the southwest quarter.
    “That said walks diagonally across the southeast section of the Pubic Square are daily used to a great extent by a great many people; 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 appointment until the re-organization of the city of Cleveland under the act passed March 16, 1891, and the charge and control of said city parks were devolved upon said Park Commissioners by ordinances 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 regulation of all public grounds and parks belonging to the city, subject 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 protect and preserve the same.”
    “4. That the defendants, the Board of Monument Commissioners, were appointed by the Governor, with the advice and consent of the Senate, and qualified and organized and entered upon the performance of their duties. That at the time of said appointment, and at the time of the passage of the act of April 16, 1888, 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 Governor 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 Monumental 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 expenditures 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 Monumental Commission to occupy this section oi 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 fore part of April, 1891, but prior to the re-organization of the city goverment 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 re-oganization 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:
    “1. That said survey and 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 dedication.
    
      “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 Commissioners any right to occupy said section of said Square for the purpose of erecting said monument thereon.
    •'4.. That upon the facts above found, the monument cannot legally be placed on said section on the Public Square.
    “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 conclusions of law and the judgment of the circuit court, and asks that its judgment be reversed.
    
      L. Prentiss, J M. Jones and A. T. Brinsniade, 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 Band Company, was not made to the city of Cleveland, but to the public generally; and the court erred in so holding. It was therefore competent to tbe 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 Raws 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 there-, fore unconstitutional, 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 $ec, 27, art. 2, of the constitution, denying to the legislature the power of appointment to office. Walker v. 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 regarded as officers^ within the meaning of the constitution.

Judgment reversed, and petition oj the plaintijp below dismissed.  