This complaint was instituted under the third section of the city ordinance in relation to sidewalks. City Ord. p. 182. The former part of the section declares that "no awning shall be placed or continued over any sidewalk, unless the same shall be constructed of cloth or canvas and supported by iron rods, and every part of such awning and of the supports thereof shall be at least eight feet above the sidewalk," but no penalty is attached to any breach of this clause. It then continues "and every person who shall spread or suffer any person or persons in his employment to spread any awning contrary to the provisions of this section, shall forfeit and pay the sum of ten dollars." The respondent is charged with a breach of this clause of the ordinance. His plea clearly shows that he has not broken the same. When he erected and put up his awning, he had full legal right so to do. No city ordinance was in existence forbidding it. Since September 1, 1854, he has neither spread or authorized to be spread any awning against the ordinance of the city. He has continued an awning over a sidewalk, other and different from the awnings prescribed by that ordinance and against its provisions, but no penalty is affixed to that act, and the complaint is not prosecuted for a breach of that clause of it.
The judgment of the Police Court was erroneous, and the proceedings must be quashed. *Page 119