
    State (Hudson, Com.) v. George E. Cleaveland.
    To continué a tvooden awning, erected prior to the passage of the ordinance of the city of Providence, in relation to sidewalks, Held, not a violation of that ordinance.
    This case came up on certiorari from tbe Police Court of tbe city of Providence. Tbe defendant, Cleaveland, was complained against in that Court for that “ be did spread or suffer some person in bis employ to spread an awning over one of tbe sidewalks in said city? tbe same not being of clotb or canvas.” The complaint was made on tbe 7th day of February, 1855. To this charge be pleaded that tbe awning referred to was erected and put up, as it was at tbe entering of this complaint against him, on tbe first day of July, 1848, and before tbe passage of tbe city ordinance for tbe breach of which this complaint was made. Tbe ordinance went into effect on tbe first day of September, 1854. Tbe complainant demurred to this plea, which demurrer was sustained by tbe Police Court and tbe respondent adjudged guilty.
    
      Lapham, for tbe defendant,
    contended first, that tbe acts of tbe defendant, as set forth in the pleadings, were not a violation of tbe ordinance upon which tbe complaint was grounded; and secondly, that if those acts were a violation of it, tbe ordinance was in fact a law ex ypost facto, and therefore unconstitutional and void.
    
      Ciarle, City Solicitor of Providence, for tbe State, contra.
   Staples, C. J.

— This complaint was instituted under tbe third section of tbe city ordinance in.relation to sidewalks. City Ord. p. 182. Tbe former part of tbe section declares that no awning shall be placed or continued over any sidewalk, unless tbe same shall be constructed of cloth or canvass and- supported by iron rods, and every part of such awning and of tbe supports thereof shall be at least eight feet above tbe 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.  