Ashtabula County Circuit. the property of the plaintiff, which had been brought in to the state of Ohio from a neighboring state without his knowledge or consent, and devoted to a business made illegal by the laws of Ohio? We must answer this question in the negative. The claim of the right of the defendants to sell this boat regardless of the rights of the plaintiff is founded on language found in Sec. 436412, R. S. (Sec. 6078 G. C.). Without quoting the entire section which provides the course to be pursued when property has been levied upon for the payment of a Dow tax, the statute reads: "Nor shall any claim of property by any third person to such goods and chattels so used in carrying on such business avail against such levy so made by the treasurer. On the one hand it is urged that this section absolutely precludes the owner of property used in an unlawful sale of intoxicating liquors from asserting any claim thereto even though he had no knowledge of such sales or his property be brought from another state without his consent. And on the other hand it is claimed that the quoted portion of Sec. 4364-12 is unconstitutional in that it deprives an owner of his property arbitrarily, and without due course of law, or that if not unconstitutional it can have no extra-territorial application, and can not affect the rights of a citizen of another state where the property is brought within the state of Ohio without the owner's knowledge or consent. The simple question here is, where a resident of the state of Pennsylvania gives to another, by contract or otherwise, the right to use his property within the state of Pennsylvania, and the renter without the knowledge of the owner brings the property into the state of Ohio and devotes it to an illegal purpose, can the property itself be taken to discharge a tax or fine imposed upon the wrongdoer who has taken it away? The act of taking the property out of the state of Pennsylvania and bringing it into the state of Ohio was an act of trespass (20 Am. & Eng. Enc. L. 571). It is said that the levy upon this property while an exercise of the taxing power, is also an exercise of the police power of the state, made necessary in dealing with the traffic in intoxicating liquors in consequence of the great evils that flow from that traffic and the difficulty in enforcing the law. Haas v. Remick. We do not question that the dealing with the traffic in intoxicating liquors is a proper subject of the exercise of the police powers of the state but the exercise of that power must not be unreasonable and oppressive, and it must be viewed in the light of those constitutional provisions which protect and safeguard the rights of the individual citizen, especially if that citizen be innocent of wrongdoing. In any event the police laws of a state have no extra-territorial effect. If the plaintiff had brought his property voluntarily within the state of Ohio, or had permitted it to be brought here, then it would at once become amenable to the police laws of the state, but that is not the case here. The property was brought within the state of Ohio without the owner's consent. The situs of the property at the time it was taken from the plaintiff, was the state of Pennsylvania. The plaintiff granted the right to Doering to use it within the state of Pennsylvania. Can it be said that when the plaintiff made his contract with Doering that the police laws of the state of Ohio entered into and formed a part of that contract? Certainly not unless that contract was to be performed within the state of Ohio. He was only bound to take notice of the laws of the state where his contract was made and to be performed. A contract is made with reference to the laws of the place where it is to be performed, and those laws enter into and become a part of it. So that the laws of the state of Ohio, which deal with the traffic in intoxicating liquors, enter into every contract which a man makes with reference to his property within the state of Ohio, and this is the basis on which the cases dealing with questions relating to priority of liens or the priority of the tax over the rights of lessors and lienholders rests. In Simpson v. Serviss, 2 Circ. Dec. 246 (3 R. 433) it is said: "The lien for the assessments and penalties prescribed by the act entitled 'an act providing against the evils resulting from the traffic in intoxicating liquors' attach to the real property on and in which the business of such traffic is conducted by a lessee, although the lease forbids sales on the premises; ** it is a universally recognized principle that laws which exist at the time of making a contract and in the place where it is made and is to be performed enter into and make a part of it." Ashtabula County Circuit. In Mullen v. Peck, 49 Ohio St. 447 [31 N. E. 1077] the lessor of premises was held for the payment of damages caused by unlawful sales of intoxicating liquors without her knowledge or consent, where the sale was made contrary to an express stipulation in the lease, but "where the premises on which the liquors were sold were occupied by the seller under a lease from the owner of a life estate therein, the estate in remainder can not be held for the damages caused by such sales." On page 462 the court say: "We are satisfied it is only her (Mrs. Peck's) estate in the property that can be subjected to the payment of the plaintiff's judgment and that the estate in remainder can not be taken nor can it with propriety be said that the owners of the estate in remainder permitted the premises to be used for the sale of liquors, for during the continuance of the life estate they had no control over them and their estate in the property could not be made liable by any act of the owner of the estate for life." In Pioneer Trust Co v. Stich, 71 Ohio St. 459, 563, [73 N. E. 520] the court say: "The laws in force at the time and place where a contract is made and where it is to be performed which in their nature are applicable, enter into and become a part of the contract. And the contract as well as subsequent legislation is to be construed with respect to its efficacy as well as its meaning in the light of all such statutes as are applicable." So in this case the contract of the plaintiff with Doering which permitted the latter to use his property in the state of Pennsylvania was made with reference to the laws of that state and not Ohio, and the act of Doering in bringing the boat into Ohio was not anticipated in the contract with Haas nor was it in accordance with its terms; and the unlawful act of a trespasser in bringing the property into Ohio and using it for an illegal purpose would not affect the right of the owner to reclaim it. We are not going so far in this case as to say that the clause in Sec. 4364-12 above quoted is unconstitutional. Such a holding is unnecessary. We simply say that it has no application in this case, that it can not apply where the property is brought by a trespasser from another state into this state. While we may Strang v. Toledo Trac. Co. sympathize with what has been said by distinguished counsel in this case about the necessity for drastic measures in enforcing the laws relating to the liquor traffic, yet zeal for the enforcement of righteous laws should not override the rights of the citizen who is innocent of wrongdoing. Arriving at this conclusion we deem it unnecessary to discuss other questions in the case arising from the former holding of this court on demurrer to the petition. The decree in this case must be entered for the plaintiff. Fillius and Marvin, JJ., concur. MASTER AND SERVANT. [Lucas (6th) Circuit Court, February 24, 1908.] Haynes, Parker and Wildman, JJ. *GEORGE W. STRANG V. TOLEDO TRAC. Co. AND TOLEDO RYS. & L. Co. 1. Liability Arising from Unequivocal Specific Order so Understood by Servant not Released by other Possible Construction. If by a fair construction of an order given by a superior to a servant, a person acting with ordinary prudence and exercising ordinary care would, under the circumstances, have considered it an unequivocal specific order to do a certain thing, the master can not escape liability for the consequences by showing that the order was open to another construction, and was not in fact intended to be understood as the servant understood it in acting, as he supposed, in obedience thereto. 2. Interpretation of Order by Servant Question for Jury. Whether the servant failed to exercise ordinary care in interpre ting the order in the manner in which he did interpret it is a question for determination by the jury in the light of all the surrounding circumstances. ERROR. C. A. Thatcher, for plaintiff in error. *Dismissed in Supreme Court, February 23, 1909. Lucas County Circuit. PARKER, J. George W. Strang was a conductor on one of the cars of the traction company in this city. On February 23, 1901, the car upon which he was acting as conductor became disabled, and it became his duty to take it to the car barn, on Water and Monroe streets. There he and his motorman, Mr. Lorenz, left the car upon the street and proceeded over to the barn to take out another car, which was in readiness for them and which they had been directed to take. As they approached the front of the car barn, the doorway from which the cars issue onto the street, the car which they were to board and manage was being brought out from the car barn onto the street by a Mr. Struck, who was a superintendent and who was the superior of Strang and Lorenz in authority. Mr. Struck was upon the front of the car, managing it, but it appears that there was no one at the rear of the car to manage the trolley. As the car came out of the barn and came toward Strang and Lorenz, and while Strang and Lorenz were proceeding toward the car barn, Struck, on the front of the car, came near to where Strang and Lorenz had, for the time being, paused, and as the front of the car upon which Struck stood passed by Lorenz and Strang, Strang says that Struck, looking toward him, and, as he supposed, addressing him, said: "Look out for the trolley back there." Lorenz states the matter in nearly the same way, but does not put exactly the same words into the mouth of Struck; he says that the words used were: "Take care of the trolley." There appears to be no dispute but what the duty of looking after the trolley and managing it-taking care of it-devolved upon the conductor, and that the duty to take care of this particular trolley on this car did then, or would have soon thereafter devolved upon Strang. Strang seems to have understood the direction, according to his testimony, as one to him to proceed immediately to the rear of the car and board it and take care of the trolley. In his third amended petition, he says, among other things: "It was necessary in the operation of the said car from said barn that some person should be at the trolley rope so as to govern and control said trolley, so that no damage would be done |