#### The State, ex rel. Crabtree, *v.*Eichelberger, City Mgr. and Director of Public Safety.

(No. 1839

Decided February 23, 1945.)

*Mr. Irvin G. Delscamp,*for relator.

*Mr. Herbert 8. Beane,*city attorney, and *Mr. Maurice J. Gilbert,*for respondent.

Miller, J.

This is an original action in mandamus brought by the state of Ohio on the relation of Frank *109Crabtree against F. 0. Eichelberger, who is city manager and director of public safety of the city of Dayton, Ohio.

The question of law involved in this action is presented by a demurrer to the answer. The facts essential to the consideration of the legal question presented may be very briefly stated.

On August 20, 1943, the relator, Prank Crabtree, was selected by the respondent from an eligible civil service list and appointed to the position of captain in the department of safety, division of fire of the city of Dayton, Ohio, at a salary of $225 per month, next six months.

On or about the 18th day of February 1944, the relator was reduced from the rank of captain to that of lieutenant, which position he had held prior to this, promotion. The letter of reduction is as follows:

> “Captain Prank Crabtree:

> “I regret to inform you that your services in the capacity of captain in the division of fire during your probationary period have not measured up to the standard required for that position and you are therefore reduced to your former rank of lieutenant, division of fire, effective February 19, 1944.

> “(Signed) P. 0. Eichelberger,

> “City Manager.”

This matter was presented to the civil service board and the reduction was approved on the same- date.

It is claimed by the relator that these charges are not definite and certain and, therefore, do not come within the requirements of the General Code or of the charter of the city of Dayton. We agree that these charges are general only and do not inform the relator of any definite reason for his reduction in rank. The respondent contends that under the provisions of Section 99 of the charter of the city of Dayton no spe*110cific charges are required. This section reads as follows :

> “An appointment or promotion shall not be deemed complete until a period of probation not to exceed six months has elapsed, and a probationer may be discharged or reduced at any time within the said period of six months, upon the recommendation of the head of the department in which said probationer is employed, with the approval of the majority of the board.”

-. Section 486-13, General Code, differs from Section 99 of the Dayton charter in that the probationary period shall not exceed three months. It provides in part:

> : “All original and promotional appointments shall be for a probationary period of not to exceed three months to be fixed by the rules of the commission.”

Respondent relies upon the case of *State, ex rel. Jackson,*v. *Dayton City Commission,*30 Ohio Law Abs., 378, which holds that specific provisions in a city’s home rule charter fixing the manner and method of promotions under the civil service law take precedence over state law, as long- as such local provisions do not conflict with the Constitution. The court in arriving at this conclusion was of the opinion that regulations of the police and-fire departments are of purely local concern, and that, under Section 3, Article XVIII of the Constitution of Ohio, this power is granted to the cities.

• But the Supreme Court of Ohio has placed a different interpretation upon the nature of the work performed by the police and fire departments of the cities. In *State, ex rel. Daly,*v. *City of Toledo,*142 Ohio St., 123, 50 N. E. (2d), 338, the court said, at page 128:

> “The next step in the solution of our problem is whether fire protection is a matter of purely local *111concern. This is no longer an open question in Ohio. Two pronouncements of this court will suffice to demonstrate the established law of this state upon that subject.

> “In *State, ex rel. Strain, Dir.,*v. *Houston, Chief,*138 Ohio St., 203, 34 N. E. (2d), 219, this court held:

> “ ‘Fire protection is a matter of concern to the people of the state generally, * * V

> “In *City of Cincinnati*v. *Gamble et al., Trustees,*138 Ohio St., 220, 34 N. E. (2d), 226, paragraph four of the syllabus reads as follows:

> “ ‘In general, matters relating to- police and fire protection are of state-wide concern and under the control of state sovereignty.’ ”

Therefore, since the nature of the work of the relator is of state-wide concern and there is a conflict between Section 99 of the Dayton charter and Section 486-13, General Code, we hold that the state law must prevail. The demotion was illegal in that over three months had elapsed since the appointment and no specific charges were preferred as required by Section 486-17, General Code. This section provides:

> “In all such eases of reduction, lay-off or suspension of an employee or subordinate, whether appointed for a definite term or otherwise, the appointing authority shall furnish such employee or subordinate with a copy of the order of lay-off, reduction or suspension and his reasons for the same, and give such employee or subordinate a reasonable time in which to make and file an explanation.”

We do not adopt the theory of the relator that he was entitled to a statement setting forth the reasons for his reduction because of any status assured to him by the provisions of the charter of the city of Dayton, but solely by reason of the conflict of the charter with the state provision as to the time within *112which an appointee was under probationary appointment.

The demurrer searches the record and, in our opinion, the petition, setting out fully the facts of relator’s appointment and the time during which he served, in' conjunction with his civil service status, states a cause of action.

The demurrer to the answer is sustained and unless respondent desires to plead further the writ will be allowed.

*Demurrer sustained.*

Hornbeck, P. J., and Geiger, J., concur.