
    COMMONWEALTH vs. BOARD OF HEALTH.
    The discretionary power of the Board of Health of Philadelphia in granting licenses to clean privies is not reviewabie.
    Error to Common Pleas No. 3, of Philadelphia County, No. 126 July Term, 1882.
    
      This was a petition filed by the Commonwealth ex. rel. Azel Ames, Jr., trading as the National Odorless Excavating Company, for an alternative mandamus to the Board of Health, requiring them to issue a license to clean privies, &c., upon payment of the license fee. The Board of Health made answer "that relator’s apparatus consisted of barrels instead of tanks, and that the pump used by relator did not have a valve four inches in diameter, as provided by their regulations. The relator demurred to the return, but the Court overruled the demurrer and refused the mandamus; and this writ of error was "then taken.
    
      H. T. Fenton, Esq., for plaintiff in error,
    argued that the answer was insufficient and frivolous. The barrels used by the relator were of good material and held 45 gallons each. That the pump of relator did not pass the material through the valve at all, and consequently that was wholly immaterial; but that the passage through which it actually went was fully large enough for the purpose. That the relator had complied with the requirements of the Act of Assembly of March 16, 1855, P. Laws, 89. It is true that the act says that the Board ■may license, &c., but when a proper case is made out it should be made to read shall; Supervisors vs. United States, 4 Wallace, 446; Shaeffer vs. Jack, 14 S. & R., 429.
    
      C. E. Morgan, Jr., and W. N. West, Esqs., contra,
    
    argued that the Board of Health in its discretion refused the license to the relator; and the action.of the Board of Health is not reviewable either in the Court below, or in the Supreme Court; Kennedy vs. Board of Health, 2 Penna., 366.
   The Supreme Court affirmed the judgment of the Common Pleas on February 28th, 1881, in the following opinion:

Per Curiam.

The Board of Health under the provisions of the. Act of March 16,1855, P. Laws, 89, had full power to make, such rules and regulations in regard to granting licenses to privy cleaners as they might deem expedient, “both as to their ‘own protection from fraud and imposition by the licensees, and as to their supervision and control of such person in his said vocation.” The rules and regulations which are set forth in the return to the alternative mandamus, were within this power; and the judgment of the Court below was therefore entirely right.

Judgment affirmed.  