(dissenting).
I am obliged to dissent. That the city council endeavored to pass an. ordinance which would do away with the smoke nuisance is obvious from the title, from the language found in section 1, which declares that any person who permits or allows the emission of dense smoke from a smokestack or chimney shall be deemed guilty of ■creating a nuisance, and from the wording of section 3, which provides for the punishment. It is true that section 2 is more specific in its terms, referring specially to the owners of boat and locomotive engines, and to persons employed in working such engines, as well as to the proprietors, lessees, and occupants of buildings; but this, it seems to me, is the result of an industrious attempt on the part of the council to make the ordinance effective,- — to bring about the very *187desirable result. I am of the opinion that the rule that a construction is never to be adopted which will defeat the purpose of an enactment, if any other reasonable construction can be found which its language will fairly bear, should be applied to this ordinance. This rule applies as well to penal as to other statutes. I do not want to attribute an intention to the city council which would materially aid in defeating the purposes for which the ordinance was passed, and, at the same time, place that body in the surprising position of having gone out of its way to provide for the punishment of men engaged in working the moving boat or locomotive engine, the smokestack of which is, because of its capacity, and the locality in which it is found, not often offensive when emitting smoke, for the express purpose of excusing and protecting from punishment men engaged in operating or managing chimneys in buildings, — chimneys always stationary, usually, because of locality and capacity, extremely offensive and objectionable when emitting smoke, and, if we are not to disregard what-everybody knows, most pronounced nuisances, and the very objects which have induced and brought about the enactment of ordinances of this nature in nearly all of our cities. I do not think it was the intention of the council to make the distinction attributed to it in the main opinion.
I think the conviction should be upheld.