
    (Eighth Circuit — Cuyahoga Co., O., Cir’t Court,
    Oct. Term, 1899)
    Before Caldwell, Hale, and Marvin, JJ.
    THE STATE OF OHIO on relation of FRANK VEXLER v. HERBERT H. HYMAN, Director of Fire.
    
      Buies of Fire Department of Cleveland under “Federal Plan Law” — Must be observed by Director of Fire—
    
    (1) . Under the “Federal Plan Law” for the city of Cleveland, the rules adopted by the mayor and the director of fire and approved by council, for the management of the Are department, have the force of law, and the director has no authority to conduct the department in disregard of them. Custom in derogation of such rules — When admissible— (2) . These rules can not.be changed unless by a custom which is known to the mayor and the city council for such length of time that they will be considered assented to.
    Appeal from the Court of Common Pleas of Cuyahoga county.
   Caldwell, J.

The “Federal Plan Law” provides for a Are department of the city of Cleveland under the same. The director of Are 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.

McKissen & Boyd, for Plaintiff.

Hogsett, Beacon, Excell & Gage, for Defendant.

Buie 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 unless such custom is known to the mayor and the city council for such length of time that they will be considered assented to.

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 ^lain meaning.

The plaintiff’s petition is dismissed.

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