State ex rel. Vexler v. Hyman

10 Ohio Cir. Dec. 235

Opinion

-Caldwell, J.

The “federal plan law’’ provides for a fire department of the city ■of Cleveland under the same. The director of fire and the mayor of the ■city formulate rules to govern the department, and, when approved by the council, they become the rules governing the department and* have the force of law, and the director has no authority to conduct his office •contrary to such regulations. **

Rule 3 provides that persons appointed shall be not less than nineteen years nor more than twenty-eight years of age.

Frank Vexler was appointed when over twenty-eight years of age, but less than twenty-nine, and was afterwards removed without cause assigned in writing, whereupon he brought this action to be reinstated.

Under rule 3, he was ineligible to the office when he was appointed, as he was then more than twenty-eight years old.

The director of the fire department has no authority to change the rules governing his department by custom, unlesssuch custom is known •to the mayor and the city council for such length of time that they will be considered essential.

As the director had no authority to appoint Vexler, he (Vexler) never lawfully held the office, and could be removed informally.

The director alone can not give a practical construction to rule 3,' different from its plain meaning.

The plaintiff’s petition is dismissed.

Marvin, J., is inclined to think that Vexler might be regarded as only twenty-eight years old until he was twenty-nine.