In re Petition of Citizens of Hazel Dell to Oust Councilmen

as clear that neither Kennedy nor Wright were duly elected for the reason that the ballot on which they claim to have been elected did not state that two persons were to be elected for four years and two for two years.

Where several persons are to be elected for different terms the tickets must designate the terms for which each is voted for.

Wier's case 13 Phila. 579.

Milligan's Appeal 96 Pa., 222.
Gilleland's Case 96 Pa., 224.

Lykens Twp., Election 15 Dist., 832.

But if Kennedy had not been duly elected at the November election in 1911 he would still have the right to participate in the organization of council for the reason that no successor to him had been duly elected and qualified, and he would therefore hold over until a successor was duly elected and qualified.

The 19th section of the Act of April 3, 1851, P. L. 320, provides that the officers elected shall serve until others are duly elected and qualified. And in the case of Commonwealth v. O'Neal, 203 Pa. 132, it is held that until there is a duly constituted successor he is an officer de jure as well as de facto. Kennedy had been elected or appointed a member of council during the summer of 1911, and his successor had not been duly elected or qualified on January 1, 1912, and he was therefore a member of council both in law and in fact. He, then, being a member of council, together with Barron, Houk, and Marshall, constituted a quorum. A quorum being present an organization was effected within ten days after the time fixed by law. An organization having been effected within such time, the Court is without authority to oust the members of council under these proceedings.

In re Petition of Citizens of Hazel Dell to Oust Councilmen

Under these proceedings we cannot determine by what right the several members hold their offices, but simply whether an organization was effected within the time required by law. The other question can be determined only under a mandamus or quo warranto proceeding.

Now, June 3, 1912, the rule to show cause why the motion to quash should not be granted is made absolute.

Commonwealth ex rel. Anthony Waitaucky v. Patrick Granaham, George Petro, Poor

Directors of Exeter Poor District

There is no authority, under the law, authorizing justices of the peace to regulate the amount of the relief to be paid to persons certified by them as being entitled to relief from the poor district.

Justices have no power to incorporate in their order the amount of relief which the overseers shall extend. That must necessarily be left to the sound discretion of the overseers.

No. 81, June Term, 1912, C. P. of Luzerne County.

Mandamus.

Petition, Answer and Demurrer to Answer.

D. J. Glennon, Attorney for Relator.

A. L. Walsh, Attorney for Respondent.

Opinion by Strauss, A. L. J., May 20, 1912.

OPINION.

Anthony Waitaucky, the relator, on the 19th of April, 1912, made an application to two justices of the peace of Exeter Borough to be declared a pauper, and on the following day the justices issued a certificate in good form, finding all the requisites for a case requiring relief by the Poor District, and followed it with an order to the directors to pay the said Anthony Waitaucky "the sum of five dollars ($5.00) weekly for the support and maintenance of him and his three minor children, and to furnish him with other and medical relief as his distressed condition may call for, charging your

Commonwealth ex rel. Anthony Waitaucky v. Patrick Granaham, George Petro, Poor Directors of Exeter Poor District.

expense herein against the Poor Dstrict of Exeter Borough." The Poor District refusing to comply, he has made application to the court for a writ of mandamus to compel the compliance.

The defendants reply that they have investigated the case, giving the details of their investigation and the conclusions at which they have arrived, that by virtue of a former order for relief issued by the same justices in 1910, the plaintiff has been a charge upon the Poor District and has been receiving relief to the amount of fifteen dollars ($15) per month substantially to the date of this proceeding. That the plaintiff in this year demanded more than fifteen dollars. ($15) a month, and that thereupon the defendants caused two physicians to examine him, who reported that he was suffering from miners' asthma, and that while he could not work in the mines, he could perform light work outside of the mines. That thereupon the defendants offered to procure him such light work but that he refused it, saying that he would not perform any kind of work. The defendants further set out in their answer the amount of relief paid to each person chargeable upon the district at this time, and allege that they pay to this plaintiff as much as they do to any other pauper whose circumstances are similar.

The case resolves itself to the simple question whether the justices who issued the order for relief have the power to fix the amount of the relief to be awarded. The duty of the poor directors is to provide work according to his ability for a pauper who cannot find work, and if the pauper by reason of age, disease, infirmity or other disability is unable. to work, to provide him with the necessary means of subsistence. Sections 2 and 4, Act 1836 P. L. 541. Purdon's Dig., Vol. 3, p. 3554, Pl. 35 and 37.

The power of the justice is regulated by the same Act, Section 6, which prevents the poor directors from entering

Commonwealth ex rel. Anthony Waitaucky v. Patrick Granaham, George Petro, Poor Directors of Exeter Poor District.

upon the poor book of the district any person before such person shall have procured an order from two magistrates of the county for relief. Purdon's Dig., Vol. 3, p. 3559, Pl. 54.

There is no authority in Pennsylvania authorizing the justices to regulate the amount of the relief. The purpose of vesting the magistrates with authority in the matter was stated by the Supreme Court in Directors of the Poor vs. Worthington, 38 Pa. 160, "to be for the protection of the community so that it shall not be defrauded by their official agents in the extension of relief to those who are not proper objects for public bounty *** Its purpose was to protect the community against misappropriation of their funds."

'An instructive note to Delaware Township Overseers vs. Zerbe Township Overseers, 3 Pa. County Court Rep. 652 touches the very point as follows: "In England under the peculiar system of collections which lay at the root of the poor laws, the order (of the justice) fixed the amount which the pauper was entitled to receive per week. This, however, has not been the practice in Pennsylvania. The amount and nature of the relief is left to the overseers."

Therefore the justices had no power to incorporate in this order the amount of relief which the overseers were to extend. That must necessarily be left to the sound discretion of the overseers who seem to have investigated this case, and to have given relief which in their judgment was justified by the circumstances.

Now, 20th day of May, 1912, the demurrer is sustained and petition for mandamus is dismissed.

Reported by G. Fred Lazarus, Wilkes-Barre, Pa.