of Bethlehem" in accordance with the charter of the said borough herein before referred to.

The respondents further allege that under the consolidation as above set forth there is no vacancy in the office of justice of the peace to be filled at the next spring election and for which the relator has filed certificate of nomination.

The respondents therefore submit that their action in revoking the filing of the certificate of Victor E. Tice, the relator, and refusing thereafter to file said nomination paper, and also in refusing the demands and request of the petitioner, was for just cause, and under authority of law, as they are advised and believe.

Your respondent therefore being desirous of avoiding any and all irregularity in the printing of the ballot and the consequent results upon the election, submit this their answer to the Court for decision, being ready and willing to comply with any and all orders or directions that the Court may make relative to the matters contained herein. The relator demurred to the answer, averring its insufficiency.

M. C. Henninger for Relator.

Erdman & Diefenderfer, County Solicitors, for Defendants.

Trexler, P. J., February 17, 1905. In the matter of the application of Victor E. Tice for a mandamus against above named defendants directing them to place his name upon the election ballot for an election to be held February 21, 1905, in what is known as West Bethlehem, Lehigh County.

The relator in his petition represents that he was duly nominated for the office of justice of the peace in the Borough of West Bethlehem; that he filed his proper certificate of nomination with the commissioners of the County of Lehigh and that they refused to print his name upon the ticket to be voted for.

The commissioners in their answer, admitting the facts set forth in the relator's petition, state that upon proceedings duly had under the Act of June 16, 1893, and supplements, the Borough of West Bethlehem, in the County of Lehigh, was consolidated with the Borough of

Bethlehem in Northampton County; that a charter was duly issued to the consolidated borongh; that what was formerly known as West Bethlehem constitutes a part of the Borough of Bethlehem, being the Fifth, Sixth and Seventh Wards of said borough; that no vacancy exists in the office of justice of the peace in said Fifth, Sixth and Seventh Wards of the Borough of Bethlehem, said Borough of West Bethlehem not being now existing.

Upon the argument of the case, counsel for the relator attacked the formation of the consolidated Borough of Bethlehem by the union of the Borough of Bethlehem, in Northampton County and the Borough of West Bethlehem in Lehigh County; asserting that the Act of 1893, supra, does not authorize the erection of a borough by the union of two or more boroughs located in different counties.

The union of two boroughs of this character produces a number of inconveniences and absurdities and it may well be questioned whether the Act of 1893 was intended to apply to such a state of facts and were the matter squarely before me, as at present advised, I would incline to doubt very much the validity of the consolidated borough but to my mind that is not determinable in the present case. The Borough of Bethlehem is not a party to this suit, nor are its officers or counsel present to maintain its rights.

The charter of the corporation of the Borough of Bethlehem in my opinion cannot be inquired into in this proceeding. The same principle applies as to any other corporation.

I need not cite any of the large number of cases in which this principle has been declared.

See Pepper & Lewis Dig. of Dec., Title-Corporations, Vol. 3, pp. 4859 and 4870.

This matter is presented to the court and a decision requested at once, as the ballots for the coming election are to be placed in the printer's hands to-morrow, February 17th, the case being heard to-day, February 16th.

Time does not permit for an extended discussion of the matters involved but I am convinced that the relief sought for cannot be granted in the present proceeding and the mandamus must be refused.

Now, February 16, 1905, the prayer of the petitioner

is refused, the mandamus is not allowed and judgment is given for the defendants, with costs to be paid by the plaintiff.

CARVER US. BOROUGH OF NORRISTOWN.

Board of Health-When it must supply subsistence, in case of quarantine-Boarders in a quarantined house.

Where a house is quarantined by a board of health, it is the duty of the board to provide subsistence for the family where a necessity arises by reason of the confinement or restraint; but if the householder has property, money or credit to provide all needed supplies, then all that can be demanded of the board of health is a reasonable opportunity to send out and purchase such supplies.

Where the householder keeps a boarding-house, and the board of health promises to furnish the needed supplies for the boarders, the keeper of the boardinghouse can supply the needs of the boarders without subjecting herself to the inference that she furnished the supplies as a gratuity; but if the boarders are able to pay for the food and maintenance, they can not escape liability the efor.

In the Court of Common Pleas of Montgomery County. Lavina H. Carver vs. the Burgess and Town Council of the Borough of Norristown. No. 170 June Term, 1904. Demurrer to the sufficiency of the Plaintiff's statement.

1905.

E. F. Slough, Esq., for Plaintiff.

Irvin P. Knipe, Esq., for Defendant.

Opinion of the court by Swartz, P. J., February 20,

The plaintiff's statement alleges that she kept a boarding-house in the Borough of Norristown. One of the inmates was attacked with small-pox, and the house was quarantined. The inmates of the house were plaintiff's family, consisting of five persons and a servant. Some ten boarders were also quarantined within the house.

The statement sets out that the health officer of the board of health, upon application to him, promised to maintain and support the family and boarders during their confinement under quarantine.

She alleges further that she was poor and dependent upon the payment from her boarders for her maintenance and living; that the boarders were also poor and dependent upon their daily wages to pay their board. She provided for all the inmates of the house during their confinement. She declares that the board of health failed to pay for the support that she provided during the quarantine.

She presents an itemized bill for groceries, meats and provisions used in the house. She also claims for coal, rent, and clothing burned.

She alleges that these bills "were contracted and paid by her" during the two weeks that the quarantine continued.

That she had property, money or credit to provide subsistence for herself and family is manifest, for she was able, according to her statement, to supply not only her own family but some ten boarders in addition. She had the means of support at the time of the quarantine. She was not in want-the necessities of her case did not require help from the borough. A board of health is organized to prevent the spread of infectious diseases. It is not a body invested with the right to take care of the poor of the town except so far as it may become necessary to provide subsistence to carry out the main purpose of the organization-to wit, to stamp out contagious or infectious diseases. The power to arrest and separate persons implies a power and duty to furnish food and subsistence, but only where a necessity arises by reason of the confinement or restraint. We think the demurrrer is good as to any claim presented by the plaintiff for money expended in behalf of her own family.

Can she recover for the provisions furnished to the persons other than her family?

She had a contract to furnish them board in consideration of the money to be paid by them. When they said they had no money to pay for future board she was under no obligation to continue the agreement. Because they were boarders she was under no obligation to furnish them, gratuitous board after they stated they could no longer compensate her for future subsistence. When the borough neglected to furnish the provisions which it had promised to supply to the inmates of the

house, the plaintiff could come to the relief of the boarders without subjecting herself to any implication that she intended to furnish the groceries as a gratuity. If the boarders were in need she was not bound to see then suffer before she came to their rescue.

Of course, if the boarders were able to pay or had credit to buy their needed supplies, they can not escape liability for their subsistence. Any one who has property, money or credit which he can use to support himself can not complain if the board of health refuses to do more than afford him a reasonable opportunity to send out and purchase what is needed: Com. ex. rel. Ziegler vs. Guy et al., 34 P. L. J., 275.

If the boarders paid the plaintiff she can not recover from the borough, nor can she enter into a valid agreement with the boarders to bring this suit in their behalf.

The statement is not as clear upon this point as it should be. The plaintiff says the boarders were poor and unable to pay for their board. We think the fair inference is that they did not pay her at any time for the two weeks. It, however, would have been a simple matter to say so if it is a fact. They may not have been able to pay at the time of the quarantine, and yet the payment may have been made afterwards.

The demurrer is clearly good as to a part of this claim, as already shown. The amount demanded includes the supplies used by the members of the plaintiff's family. We can not separate the claim. There is nothing upon the face of the statement which will enable us to fix the amount of the compensation due the plaintiff for the maintenance given to the boarders. The plaintiff is not in a position to demand judgment even if an insufficient affidavit of defence should be filed. She must first file a supplemental statement.

The demurrer to that part of the claim based upon the amount of money expended for her family, is sustained, and is overruled so far as it relates to money expended in maintaining her boarders. The plaintiff has leave to file a supplemental statement if she desires to do

So.