
    The State of Ohio v. Cleveland.
    
      Statute may include by inference — Case not originally contemplated, when — Statute making it unlawful to throw stone at railroad car — Includes interurban or traction car — Interpretation of statutes.
    
    A statute may include *by inference a case not originally contemplated when it deals with a genus within which a new species is brought. Thus a statute making it unlawful to willfully throw a stone at a railroad car includes an interurban or traction railway car, although such cars were not known or in use at the time the statute was enacted.
    (No. 12525
    Decided October 25, 1910.)
    Exceptions to the Court of Common Pleas of Champaign county.
    The facts are stated in the opinion.
    
      Mr. George Waite prosecuting attorney, for the exceptions.
    The question that we desire the court to determine in this case is, whether it is unlawful for a person to throw a stone at a car of the character described' above?
    In order to determine this question it will be necessary for the court to construe Section 6862, Bates’ Revised Statutes, or Section 12497, General Code, which are the same.
    The first count in the indictment in this case charges the defendant with throwing' a stone at a railroad car. The second count charges the defendant with throwing a stone at a street railway car.
    If we take the term “railroad car” in its ordinary and generic sense, it certainly means a car which runs or is propelled on rails, and the evidence in this case clearly shows that the car in question is a car of that character.
    Street railwajrs in civil matters are classified by the statutes and by decisions of the courts as a different class from railroads or railways, the law meaning steam railways. This is done for the purpose, as we said, of eminent domain, applying the rules of negligence and. also for taxation purposes. „
    To convince us that this classification is made, it is only necessary to see Sections 9117 to 9122, General Code, and also Section 5488, General Code, and also that the courts have so construed these sections. Bridge Co. v. Iron Co., 59 Ohio St., 179; Electric St. Rd. Co. v. Lohe, Admr., 68 Ohio St., 101; Railway Co. v. Traction Co., 26 C. C., 1, reversed on another question, 72 Ohio St., 429.
    
      Mr. E. E. Cheney and Mr. Frank A. Zimmer, against the exceptions.
    
      The defendant claims he is not amenable to Section 6862, Bates' Revised Statutes, or Section 12497, General Code, for throwing a stone at an interurban car, when such car is without the corporate limits of a municipality, as was the car in this case at the time of the alleged offense.
    It is significant to note that “interurban” cars have been invented and have come into general use, altogether, since March 12, 1887, the time when the statute reaches its present embodiment. At that time “interurban” cars were unknown, and it can scarcely be contended that they were included in the terms street car, “by contemplation.” It is beyond the scope of human reason that the legislature by contemplation could enact laws for the protection of anything not in existence.
    The term railroad car in the act is not used in its generic sense to include all cars running on fixed iron or steel rails, for particular kinds of cars running on fixed rails are also mentioned in the act. So that the term “railroad car” has a special meaning, viz.: one of the cars which usually are operated upon steam railroads and propelled by steam locomotives in trains of greater or less length.
    The legislature has always distinguished between roads, commonly operated by steam and those operated by electricity, or other motive power, for many purposes and the term “railroad” is used by the legislature to mean only steam railways as the same are commonly known and used. Sections 9117 to 9122, General Code; Bridge Co. v. Iron 
      
      Co., 59 Ohio St., 179; Electric St. Rd. Co. v. Lohe, Admr., 68 Ohio St., 101.
    Neither from force of necessity can Section 12497 be construed to cover “interurban cars,” for interurban cars are not the only public conveyances not protected by this sort of legislation in Ohio, e. g, omnibuses, cabs, taxicabs, auto cabs, rubber-neck wagons, etc.
    It seems that the legislature has not seen fit to protect those conveyances whose occupants can quickly stop the conveyance and go after the stone thrower. It is known that the courts of Ohio have referred to the case with which interurban cars can be started and stopped and as one of the noticeable distinctions between them and other kinds of cars. Commissioners v. Traction Co., 75 Ohio St., 560.
    A car in making a transit of the road would be a “street railway car” while within the limits of a municipality, and the same car would be an “interurban car” on an interurban railroad when in the open country.
    It is certainly a well settled rule in Ohio that persons can not be made subject to such statutes by implication, and all doubts in the interpretation of such statutes are to be resolved in favor of the accused. Shultz v. Cambridge, 38 Ohio St., 659; Thalls v. State, 21 Ohio St., 233; Hagar v. State, 35 Ohio St., 268; In re McDonough, 49 Fed. Rep., 360.
    It is true that all the evidence shows that the car in question was an interurban car and not any such car as is designated by the statute or indictment. The statutes and the courts have so clearly defined the question involved in this controversy that under the most liberal interpretation the car in question cannot be classified as either a railroad car or a street railway car.
   By the Court.

The Ohio Electric Railway Company operates interurban or traction railways. In April of the present year the defendant was a passenger in a car that left Urbana for Springfield; he asked to be let off the car at one of the streets in the city of Urbana; he had a controversy with the conductor in charge of the car, and the conductor ejected him at. a point outside of that city. This angered the defendant and he picked up a stone about the size of a man’s fist and hurled it at the car in the direction of the conductor. The stone struck on the inside of the rear vestibule, just missed striking several passengers and struck a window breaking it.

The defendant was indicted under Section 12497, General Code, which reads as follows: “Sec. 12497.' Whoever wilfully throws a stone or other hard substance or shoots a missile at a railroad car, train, locomotive, cable railway car or. street railway car, or at a steam vessel or water craft used for carrying passengers or freight, or both, on any of the waters within or bordering on this state, shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned in the penitentiary not more than three years or in the county jail not more than six months.”

The first’ count in the indictment charged the defendant with throwing a stone at a railroad car, and the second count charged him with throwing a stone at a street railway car.

The court, on motion, excluded the evidence from the jury and instructed the jury to bring in a verdict of not guilty, and the prosecutor files exceptions in this court.

It is said that the court directed the verdict on the ground that an interurban car does not come within the terms of the statute.

The first act was passed in 1879 (76 O. L., 11), and provided: “That whoever wilfully throws'any stone , or other hard substance, or shoots any missile at any railroad car, train or locomotive, shall be fined,” etc.

The law was amended in 1884 (81 O. L., 125), by adding steam vessels or water craft, and in 1887 (84 O. L., 81), by adding “or at any cable railway car or street railway car.” It is contended that interurban cars were not known at the' inception of the statute, and that, therefore, they could not have been intended to be .comprised in its terms, and that under the maxim exclusio unius est exclusio alterius such cars are clearly excluded from the' terms of the statute.

"We do not think either contention is sound. The rule is well settled “that a statute may include by inference a case not originally contemplated when it deals with a genus within which a new species is brought by a subsequent statute.” The cases illustrating this rule are numerous: People v. Kriesel, 136 Mich., 80; 4 A. & E. Ann. Cas., 5 (note); U. S. v. Nihols, 4 McLean (U. S.), 23; State v. Becton, 7 Baxt. (Tenn.), 138; Reg v. Cottle, 16 Q. B., 412; Collier v. Worth, 1 Ex. D., 464; Taylor v. Goodwin, 4 Q. B. D., 228; Parkyns v. Preist, 7 Q. B. D., 313.

The rule applies also to new species that come into existence otherwise than by statute. And when the new species is clearly within the mischief intended to be prevented the rule is not inapplicable because of the rule of strict construction of penal statutes. Endlich on Interpretation of Statutes, Secs. 112 and 335.

The maxim referred to is not of universal application, but is to be applied only as an aid in arriving at intention and not to defeat the apparent intention. The statute as originally enacted unquestionably was broad enough to comprise any kind of a railroad car. The amendments were not intended to narrow the statute, but to add other things, and the subsequent enumeration of cable railway cars and street railway cars was not the addition of new things, but was intended to remove any question as to such cars being within the terms of the statute.

Exceptions sustained.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.  