saic, and to open it upon other lines, in pursuance of law and the power conferred in section 57 of the city charter. P. L. 1873, p. 507. The proposed change involves only the shifting of the lines of the street a few feet to the south.

there was a lawful ordinance fixing the sal- | tral and Main avenues, in the city of Pasaries which they were entitled to receive, and any change in the amounts which a subsequent ordinance might establish could only relate to their successors. Nor does the argument that a preceding council might from improper motives reduce the salaries of those who were to be their successors require a different conclusion upon any ground of public policy, for an evil as great, if not greater, might arise if the successors be permitted to fix their own compensation.

Section 57 of the charter of the city of Passaic (Act April 2, 1873; P. L. pp. 484, 507) authorizes the alteration of street lines only where the street is one already laid out.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 720; Dec. Dig. 8 269.*]

2. MUNICIPAL CORPORATIONS ($ 269*)
(§
STREETS-ALTERATION-"LAID OUT."

A street delineated on a map made pursuant to section 23 of the amendment of the charter of the village of Passaic (Act March 21, 1871; P. L. pp. 619, 638), which authorizes the council to prescribe and adopt the location of streets and sewers, is not a street "laid out," within the meaning of section 57 of the charter of the city of Passaic (P. L. 1873, p. 507).

[Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. § 720; Dec. Dig. § 269.*

For other definitions, see Words and Phrases, vol. 5, pp. 4037-4039.]

3. MUNICIPAL CORPORATIONS (§ 269*)

STREETS-ALTERATION.

-

An ordinance of the city of Passaic, which purports to vacate a part of a street and to open it on other lines, but in fact merely alters the side lines, cannot be sustained, where it appears that the portion of the street to be altered has never in fact been laid out.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 720; Dec. Dig. § 269.*]

(Syllabus by the Court.)

Certiorari by the Erie Railroad Company to review an ordinance of the City of Passaic. Ordinance set aside.

Argued June term, 1909, before SWAYZE,

TRENCHARD, and MINTURN, JJ.

Gilbert Collins and George S. Hobart, for prosecutor. Michael Dunn and A. D. Sullivan, for defendant.

SWAYZE, J. The ordinance brought up seeks to vacate Madison street, between Cen

Section 57 confers upon the council power "to lay out, open or vacate any street," and "to order and cause any street, road, highway or alley already laid out, or which shall hereafter be laid out, to be vacated, straightened, altered or widened." It is not contended by the city that this ordinance is an original laying out and opening of this section of the street. Such a contention would expose the city to the argument that the council was without jurisdiction to act, because of the lack of an application in writing, signed by the owners of at least one-third of the lineal feet of land fronting on the proposed improvement. P. L. 1875, p. 573, § 9. We think it clear that what the ordinance really seeks to do is to change the lines of an existing street. The language of the ordinance naturally leads to that view. The words "vacate" and "open on other lines" are only applicable to an already existing highway. Counsel for the city recognize this in their brief, and take the position that Madison street has long been in existence. To establish this position, they rely upon a map made pursuant to the authority conferred by section 23 of the amendment to the village charter. P. L. 1871, p. 638. The only question, therefore, which it is necessary for us to determine, is whether the delineation of a street upon that map suffices to make an actual street. The act authorizes the council be made as may be necessary to enable them "to cause such surveys, maps and returns to to prescribe and adopt either for the whole or any part of said village the location of streets and sewers, or either, and the width and grade thereof hereafter to be opened or constructed therein." Provision is then made for recording the surveys, maps, and returns in the village clerk's office, and "thereafter no street or sewer shall ** * be opened or constructed except in conformity therewith, as to location, width and grade." The power thus given is merely a power to prescribe and adopt the location of streets and sewers in advance of actual need, for the evident purpose of securing the future development of the village upon a consistent plan. It is not even as broad as the power given by the charter of Newark, which included a power to "lay out" streets. to "lay out" streets. P. L. 1857, p. 492. The distinction, under that charter, between laying out a street upon the map and opening it so as to make an actual street, was pointed out by this court in State (Grant, Prosecutor) v. Newark, 28 N. J. Law, 491, in Justice Vredenburgh's opinion at page 495, and in Justice Whelpley's at page 499.

was meant by the Legislature to be different and distinct from the power to lay out.

The ordinance finds no support in the city charter. It cannot be supported under the act of 1896 (P. L. 1896, p. 42), nor under the act of 1901 (P. L. 1901, p. 76). Both acts limit the power to alter street lines to streets already laid out, and the arguments above stated are applicable. Moreover, this object is not expressed in the titles of either act. The title of the act of 1896 makes it relate only to the opening, regulating, and accepting of streets, highways, and alleys; and the title of the second adds only the word "vacate." Neither title refers to an alteration of lines.

The ordinance should be set aside, with costs.

BOARD OF HEALTH OF ASBURY PARK

V. HAYES.

(Supreme Court of New Jersey. Oct. 25, 1909.) 1. HEALTH (§ 43*)-CRIMINAL PROSECUTIONSFORM OF JUDGMENT.

The distinction is an important one; for, if the action of the council under section 23 was equivalent to the creation of a street, it amounted to a taking of the property of the owner, immediately upon the filing of the maps, without any provision for compensation until such time as the city chose to open the street by proceedings under section 19 of the same act. P. L. 1871, p. 632. This contention, if correct, would in effect take the property of the owners in the land covered by the prospective streets, many of which might never be opened, so that the owners would never be compensated. The statute was passed after the adoption of the fourteenth amendment to the federal Constitution, and if it means what the city now claims it not only contravenes the constitutional rights of the prosecutor under the federal Constitution (C., B. & Q. R. R. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979), but his rights under our own Constitution (article 1, pl. 16), which only permits the taking of land for highways without compensation until the Legislature shall direct compensation to be made, as it has done in section 19 of the very act appealed to. judgment to be entered upon the conviction of a Where a statute prescribes the form of a Simmons v. Passaic, 42 N. J. Law, 619. By defendant for the violation of a health ordithus evincing a design to require compensa-nance, a judgment following the words of the tion for land taken for streets, and failing to provide compensation for the acts of the city authorities under section 23, the Legislature has made that section ineffective as a method of taking the land for a street. Mulligan v. Perth Amboy, 52 N. J. Law, 132, 18 Atl. 670; Paterson, etc., R. R. v. Nutley, 72 N. J. Law, 123, 59 Atl. 1032. No such construction of section 23 is necessary. It serves its purpose by providing a consistent scheme of urban development in advance of actual needs. Another construction would not comport with the fact that the Legislature has coupled streets and sewers in section 23. It would be absurd to say that the location of sewers upon a map made actual sewers. It is equally inadmissible to contend that the location of streets on the same map under the same statutory authority makes actual streets. Nor can it be said that the making of the map was a dedication which the city might afterwards accept. The map is made by the city authorities themselves, and they are without right to dedicate land that belongs to others.

statute is sufficient without setting forth the particular act or acts which it is alleged con

stitutes a violation.

[Ed. Note. For other cases, see Health, Dec. Dig. § 43.*]

2. HEALTH (§ 32*)-ORDINANCES-PLUMBING. Section 1 of the health ordinance of Asbury be constructed in any building, a plan and dePark requires that, before any plumbing shall scription of the proposed work must be filed with the board of health before its execution, either by the owner, or by the plumber, or by which plans are to be signed by the plumber and some other person authorized by the owner, approved by the board of health before the plumbing is installed. Held, that it was the duty, of the plumber to sign the plans and to see that they were filed and approved before proceeding with the work, and that his neglect to do so subjected him to the penalty imposed by the ordinance for its violation.

[Ed. Note. For other cases, see Health, Dec. Dig. § 32.*]

(Syllabus by the Court.)

Certiorari by Samuel Hayes to review his conviction for violation of the sanitary code of the board of health of Asbury Park. Conviction affirmed.

Argued June term, 1909, before REED, BERGEN, and VOORHEES, JJ.

To go a step further: Section 57 authorizes the alteration of lines of streets only Wesley B. Stout and John E. Lanning, for when they are already "laid out." This lan-prosecutor. Paterson & Rhome, for defendguage is not used in section 23 of the act of ant. 1871. It is, however, used in section 19 of that act, which in terms authorizes the counBERGEN, J. The prosecutor was convictcil to "lay out" streets and provides for com- ed for violating an ordinance of the city pensation to the landowner. The use of the of Asbury Park, adopted by the board of words "lay out" in section 19, and the failure health of that city, regulating the plumbing, to use them in section 23, is convincing that drainage, ventilating, lighting, and heating the power to prescribe and adopt a location of buildings. A complaint under oath was

duly filed charging that prosecutor and one The next point argued is that the plumber Harry Glashon constructed certain plumbing is not liable under the ordinance, and that, work in a building in the city of Asbury therefore, these defendants, as plumbers, are Park without filing in the office of the board of health of that city a plan or drawing signed either by the owner or some person authorized by him, or by either of the defendants, who were the plumbers doing the work. The complaint also set forth with par-nance claimed to have been violated there ticularity the character of the work done.

road by a county, the jury may consider the condition of the road, the amount of tolls received, or which would be received under judicious management, the market value of the stock, and the value of the road for use by an electric railway.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 348; Dec. Dig. § 127.*]

Appeal from Court of Common Pleas, Dauphin County.

Action by the Harrisburg, Carlisle & Chambersburg Turnpike Road Company against Cumberland County. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Filmore Maust, Millard F. Thompson, Co. Sol., and Frank B. Wickersham, for appellant. Lyman D. Gilbert, Walter K. Sharpe, and William R. Johnston, for appellee.

PER CURIAM. This appeal is from a judgment obtained in the common pleas in proceedings under the act of June 2, 1887 (P. L. 306), to assess damages for the condemnation of a part of the plaintiff's turnpike road. The main argument for the appellant is intended to show error on the part of the court in refusing to grant a new trial because of an alleged excessive verdict. The power conferred by the act of May 20, 1891 (P. L. 101), was first exercised in Smith v. Times Publishing Co., 178 Pa. 481, 36 Atl. 296, 35 L. R. A. 819, decided six years after the passage of the act, and in which it was said: "It is a new power, a wide departure from the policy of centuries in regard to appellate courts, and so clearly exceptional

the roadbed, the net amount of tolls received, or that would be received under a better management, and the market value of the stock, were all elements to be considered. Mifflin Bridge Co. v. Juniata County, 144 Pa. 365, 22 Atl. 896, 13 L. R. A. 431; West Chester, etc., Plank Road Co. v. Chester County, 182 Pa. 40, 37 Atl. 905. It was also competent for the plaintiff to show the value which the road might have for use by an electric railway company, if there was a reasonable prospect of such use. The owner of property taken under condemnation proceedings is entitled to have the value of the property considered for any use to which it may be adapted. Cox v. Phila., etc., R. R. Co., 215 Pa. 506, 64 Atl. 729, 114 Am. St. Rep. 979.

The judgment is affirmed.

ROTTMUND v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. June 22, 1909.)

1. RAILROADS (§ 350*)-ACCIDENTS AT CROSSING SUFFICIENCY OF EVIDENCE.

in a railroad crossing accident, held sufficient to Evidence, in an action for injuries received send the case to the jury on the question of defendant's negligence, notwithstanding its witnesses' testimony that the whistle was blown and the bell rung.

Cent. Dig. §§ 1152, 1160-1165; Dec. Dig. § [Ed. Note. For other cases, see Railroads, 350.*1

2. RAILROADS (§ 350*)-ACCIDENTS AT CROSSING-ACTIONS-QUESTIONS FOR JURY.

Whether a person injured in a railroad ligence held for the jury. crossing accident was guilty of contributory neg

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1166-1189; Dec. Dig. § 350.*] 3. TRIAL (§ 322*) — VERDICT - WHAT CONSTI

TUTES.

in character that no case has been presented until now in which we have felt called upon to exercise it." It has not since been exercised, and it has been repeatedly said, in a line of cases extending from Wolf v. Traction Co., 181 Pa. 399, 37 Atl. 555, to Murtland v. English, 214 Pa. 325, 63 Atl. 882, 112 Am. St. Rep. 747, that it will not be exercised, except in extreme cases, where the injustice of allowing an excessive verdict to stand is 4. TRIAL (§ 339*)-VERDICT-CORRECTION.

The verdict announced orally in court, acnot that stated in the written formula sent cepted by it, and entered on the minutes, and out with the jury, is its verdict.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 8 758; Dec. Dig. § 322.*]

so manifest as to show a clear abuse of dis-nounced orally in court, accepted by it, and enIt being immaterial that a verdict, ancretion by the court in which the case was tered on the minutes, was not in accord with tried. The verdict rendered was not without the written formula sent out with the jury and support in the testimony; but the learned returned by it, the former constituting the verdict trial judge, upon a review of the whole case, of the jury, a subsequent attempt by the court to reassemble the jury after discharge, to make was of opinion that it should be reduced, and the "written verdict" conform to the oral verordered that a new trial be granted unless dict did not affect the verdict as orally ana remittitur should be filed by the plaintiff. nounced and entered upon the minutes. In this we find, not an abuse, but a wise ex

ercise, of discretion by the court.

Dig. 793; Dec. Dig. § 339.*]
[Ed. Note.-For other cases, see Trial, Cent.

5. TRIAL (§ 325*)-VERDICT-POLL OF JURY.
A motion to poll the jury comes too late
after the verdict has been announced, affirmed by
the jury collectively, and recorded on the min-
utes.

The nature of the property taken and the effect of a partial taking on the remaining portion of the road made the assessment of damages exceptionally difficult; but we find no error in the rulings of the court on the admission of testimony or in the instructions to the jury. In ascertaining the value of the property taken, the physical condition of

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 765; Dec. Dig. § 325.1

Appeal from Court of Common Pleas, Lancaster County.

Action by John Rottmund against the Penn- | railroad track when he stopped the second sylvania Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. W. U. Hensel, for appellant. B. F. Davis, for appellee.