by fire occasioned by an explosion." And, continuing, the court said, "In construing such policies, wherever the exception embraces any loss or damage occasioned by or resulting from any explosion whatever, the exemption must be taken to embrace all loss or damage occasioned by any fire of which an explosion was the efficient cause." There is an apparent conflict between the two, or, if not so, the distinguishing features of the facts causing the difference are too shadowy to be

ing no particulars, it is impossible to know what he meant. Others state the damage to be as stated above. From the testimony of all of them, we gather that the accident, if such it might be called, was produced by some person setting off a fuse connected with dynamite or other explosive on the sidewalk in front of the building. The claim was for $100, and judgment was accordingly against the company, and it excepted and appealed.

There are two grounds presented in the testimony and the argument upon which the claim of recovery is based,-the one, that the injury to the building was caused by fire following the explosion; and the other, that it was caused by fire, indirectly at least, in this way: that, while it is true it was the direct result of the explosion, yet, as the explosion itself must have been caused by fire, in the shape of a lighted match or the like, the injury must therefore be attributed to fire. There are two lines of decisions on the subject of loss by fire which is the result of explosion, under stipulations such as the one contained in this policy, and they seem to be somewhat irreconcilable. Thus, in Insurance Co. v. Robinson, 64 Ill. 265, where the policy provided that the company should not be liable for any loss or damage caused by the explosion of gunpowder, camphine, or any explosive substance, or explosion of any kind, it was held that, by a proper construction of the latter clause, the company was not thereby exempted from liability for losses by fire caused by explosion, but only exempted from liability for losses caused by the explosion; that is to say, the company is exempt from liability only when the explosion itself is shown to be the proximate cause of the damage, and not the remote cause, as when the loss is by fire which itself was caused by the explosion. On the other hand, in Insurance Co. v. Foote, 22 Ohio St. 340, where the policy excepted any risk by explosion, the court said: "In an action upon the policy, it appeared that an explosive mixture of whisky, vapor, and atmosphere had come in contact with the flame of a gas jet, from which it ignited and immediately exploded, whereby a fire was set in motion which destroyed the insured property." "Held that in such case it cannot be said that the destruction was caused by a fire, within the meaning of the policy, but on the contrary, that the loss was

fore of little use practically. But these cases are cited more to show the run of decisions on the subject than to conclude the matter in hand; for we think that the stipulation in the exemption clause of the policy under consideration makes it plain that if the loss was directly caused by fire the company is liable, although the fire may have been the mere result of the explosion, for the language is plainly to that effect. But the controversy here in this respect goes off on a question of fact only; for this consequent fire does not appear to have been a fire at all, except such as is confined to the ignition of gunpowder,-a mere flash, that leaves only discoloration, and can in no sense be denominated the destructive force capable of doing damage to any building. The damage does not appear to have been done by the slower process of fire, but rather by the undue exertion of force such as is the accompaniment of an explosion. The contention that fire, in the shape of a lighted match, brought in contact with the explosive, was the cause of the injury, is equally without foundation, in the light of reason and of the authorities. In such case the fire may be the first cause in the train of causes, but that might receive attention among some philosophers, and in some departments of thought; but the law is more practical, and for that reason attributes injuries to proximate, and not to remote, causes. To illustrate the trend of the authorities on this subject, we cite one or two: In Heuer v. Insurance Co. (Ill. Sup.) 33 N. E. 411, the court said (quoting from the syllabus): "Where an insurance policy provides that the insurer shall not be liable for loss caused by explosion of any kind, unless fire ensues, and then for the loss or damage by fire only [just as in this case stipulated], no liability exists for damages done by an explosion produced by the ignition of a match in a room filled with illuminating gas, since the explosion of the gas, and not the lighting of the match, is the proximate cause of the loss." In Insurance Co. v. Dorsey, 56 Md. 70, the court said: "A lighted match coming in contact with a keg of powder would certainly produce an explosion, and, as the explosion would be produced by fire, all the injury caused thereby might well be said to be directly caused by fire, or be the result thereof [exactly appellee's contention here]; and yet the burning match could no more bę

said to be the fire insured against, than the burning lamp or gas jet in the cases to which we have referred." This, we think, is sufficient to show the trend of the authorities, and they seem to be in accord with the better reason on the subject, also. The judgment of the court below is therefore reversed, and judgment here for defendant.

BATTLE, J., did not participate in the consideration of this cause.

POWERS v. ARKADELPHIA LUMBER CO.

(Supreme Court of Arkansas. Jan. 18, 1896.) VENUE IN CIVIL CASES JURISDICTION BY SERVICE OF SUMMONS-PRIVILEGE OF LITIGANT.

Under Sand. & H. Dig. § 5696, permitting certain actions to be "brought in any county in which the defendant, or one of several defendants, resides or is summoned," jurisdiction cannot be obtained of a defendant, in a county other than that of his residence, by service of summons on him while in such county in attendance on the taking of depositions in a pending action to which he is a party.

Appeal from circuit court, Clark county; Rufus D. Hearn, Judge.

Action by the Arkadelphia Lumber Company against Patrick Powers. From the overruling of a motion to quash the summons, the defendant appeals. Reversed. Blackwood & Williams, for appellant. C. V. Murry, for appellee.

BUNN, C. J. A suit in chancery was pending in the Clark circuit court, wherein the appellant, Powers, was plaintiff, and the Arkadelphia College was defendant, for a balance of $700 or $800 claimed by Powers to be still due him on his contract for erecting the college buildings. By agreement of counsel representing the respective parties, they met at Arkadelphia, and took depositions in the case on the 17th day of August, 1893. On the same day the complaint in this cause was filed by counsel for plaintiff herein, who were also counsel for defendant in the chancery cause in which the depositions were being taken, as stated; and summons at once issued, and was served upon appellant, to be and appear in the Clark circuit court to defend herein. At the following term of said circuit court defendant, Powers, appeared for the sole purpose of moving the court to quash the summons served upon him, as aforesaid, showing by affidavit that he was, at the time of the service of said summons, and continued to be, a resident of the city of Little Rock, in Pulaski county, as he had been for a long time previously, and that he was present in Arkadelphia on the 17th day of August, 1893, for the sole purpose of attending the taking of the depositions aforesaid, and that the same was necessary, and that advantage of attendance was taken to compel him to

defend his said suit in another jurisdiction than that of his residence. He therefore prayed that the summons be quashed. His motion to that effect, however, was overruled, he saved exceptions, judgment was rendered against him, and he appealed.

There is really no controversy as to the facts, at least, none that could affect the issue. We think the judgment ought to be reversed. After several sections immediately preceding, designating where civil actions are to be brought, according to the nature of the subject-matter and the relative situation of the parties, section 5696, Sand. & H. Dig., reads thus: "Every other action may be brought in any county in which the defendant, or one of several defendants resides, or is summoned." Similar statutes are found in all, or nearly all, the states. The appellee contends that the privilege of defendant should be restricted to the rule

held by some of the courts, as in Illinois, for example, that is, to cases of arrest on civil process,--and that the exemption does not extend to a nonresident suitor in ordinary cases, temporarily present in the state and county, or in the county, for the mere purpose of attending a suit to which he is a party, unless his presence has been procured by some artifice, trick, or fraud of plaintiff or of his counsel; citing Greer v. Young, 120 Ill. 184, 11 N. E. 167. We think, however, that the weight of authority is against that view of the subject. See Works, Jur. pp. 258-260. One line of authorities rests the privilege solely on the familiar constitutional ground of freedom from arrest on civil process, but we prefer to rest it also on the ground of a sound public policy, so aptly expressed by the supreme court of Ohio in the case of Andrews v. Lembeck, 46 Ohio St. 41, 18 N. E. 483, thus: "The question is one which profoundly concerns the free and unhampered administration of justice in the courts. That suitors should feel free and safe at all times to attend, within any jurisdiction outside of their own, upon judicial proceedings in which they are concerned, and which require their presence, without incurring the liability of being picked up and held to answer to some other adverse judicial proceeding against them, is so far a rule of public poliey that it has received almost universal recognition wherever the common law is known and administered,"-citing many authorities. And, continuing, say that court: "The contention that the application of this principle should be or is confined to cases where the suitor is served with process while attending upon judicial proceedings without his state is not supported by sufficient force of reason to justify the distinction." The statute of that state is similar to ours. In Lamkin v. Starkey, 7 Hun, 479, the supreme court of New York said: "The court has power, independently of the statute, to protect its suitors, officers, and wit

nesses." And the same is substantially said | by the same court in Matthews v. Tufts, S7 N. Y. 568. And it further appears, from the great weight of authorities, that the privilege is not only assured while one is attending upon strictly judicial proceedings, but upon any tribunal whose business has reference to or is intended to affect judicial proceedings. In Larued v. Griffin, 12 Fed. 590, the court said: "It has long been settled that parties and witnesses attending in good faith any legal tribunal, with or without a writ of protection, are privileged from arrest on civil process during attendance, and for a reasonable time in going and coming," and, further, "that this protection extends to attendance of parties and witnesses before arbitrators, commissioners, and examiners." That was a case of arrest, it is true; but it is cited to show the nature of the tribunal an attendance upon which will come under the rule. In the case of Mulhearn v. Publishing Co., 21 Atl. 186, the supreme court of New Jersy said that the vice president of a foreign corporation, attending as a witness before a commissioner of that court, which testimony is to be used in a cause therein pending, is privileged from service of summons to appear in another action against said corporation. The weight of authority is decidedly with the appellant, and the judgment is reversed, and the case is dismissed, without prejudice.

HUBMAN v. STATE. (Supreme Court of Arkansas. Jan. 11, 1896.) INTOXICATING LIQUORS-STATUTES-REPEAL.

Act April 3, 1889, providing "that it shall be unlawful for any person to sell wine at any place in this state, except as authorized in this aet," and authorizing its sale, in quantities not less than one quart, on the premises where the fruit from which it is made is grown, and in any place where the sale of intoxicating liquors is licensed and authorized, impliedly repeals Sand. & H. Dig. §§ 4851, 4868, in so far as they authorize the sale of wine in original packages containing not less than five gallons; and therefore, since the provision authorizing the sale of wine on the premises on which the fruit is grown is unconstitutional, the manufacturer of wine from fruit grown by him can only sell the wine in places where the sale of intoxicating liquors is licensed. Hughes, J., dissenting.

Appeal from circuit court, Lonoke county; James S. Thomas. Judge.

John Tubman was convicted of a crime, and appeals. Affirmed.

Tom M. Mehaffy, for appellant. Kinsworthy, Atty. Gen., for the State.

E. B.

BATTLE, J. The sale of wine in this state without license is regulated by an act entitled "An act to regulate the sale of wine in the state of Arkansas," approved April 3, 1889, which, as enacted, is in part as follows:

"Section 1. That it shall be unlawful for any person to sell wine at any place in this state except as authorized in this act.

"Sec. 2. Any person who grows or raises grapes or berries may make wine thereof, and sell the same upon the premises where such grapes or berries are grown and the wine made, in quantities not less than one quart; such person may also sell the wine of his own make in any place where the sale of intoxicating liquors is licensed and authorized by law, in quantities not less than one quart. Provided, this act shall not authorize the sale of wine in any district or locality where its sale is prohibited under special act of the general assembly.

"Sec. 3. Nothing in this act shall prevent regularly licensed liquor dealers from selling wine at the same places they are authorized to sell liquors."

Under this act any person who grows or raises grapes or berries, and makes wine thereof, is permitted to sell the same, in any quantities not less than one quart, without license, upon the premises where the grapes or berries are grown and the wine made, and in any place where the sale of intoxicating liquors is licensed and authorized by law.

The constitutionality of the act was contested in State v. Deschamp, 53 Ark. 490, 14 S. W. 653. The indictment against Deschamp in that case. omitting caption, was as follows: "The grand jury of Scott county, in the name and by authority of the state of Arkansas, accuse Line Deschamp of the crime of selling wine unlawfully, committed as follows, viz.: The said Line Deschamp, on the 3d day of August, 1889, in the county of Scott aforesaid, unlawfully did sell one quart of wine, the said sale not being made upon the premises where the grapes and berries were grown and the wine made, and said sale not being made in any place where the sale of intoxicating liquors are licensed and authorized by law, against the peace and dignity of the state of Arkansas." A demurrer to the indictment was filed and sustained, and the defendant was discharged.

The indictment was based upon the act of April 3, 1889. In passing upon its sufficiency, it became necessary to determine whether the act upon which it was based was constitutional. The court held that the effect of it was to allow any person growing or raising grapes or berries, and making wine thereof, to sell the same within the three-mile districts formed under section 4524, Mansf. Dig., if the premises upon which such grapes or berries were grown and the wine made were in such districts, and to prohibit the sale in the same districts of wine made of grapes or berries grown out of this state. This was the joint effect of the act and section 4524; the act having been passed subsequently to section 4524, which prohibited the sale of wines, spirituous, or intoxicating liquors by any one within such districts.

The result was, we found the act was unconstitutional, to the extent the joint effect of it and section 4524 was as stated, and eliminated so much of the act as produced

this effect by striking out the words, "at any place," in the first section, and the words, "upon the premises where such grapes or berries are grown and the wine made," in the second section, and held the remainder of the act constitutional.

The judgment of the circuit court sustaining the demurrer to the indictment was affirmed by this court, but upon what grounds was not stated. But they are apparent. But they are apparent. In the first place, the indictment was based on the second section of the act, and did not show that the wine sold was made out of grapes or berries grown by defendant, or, if it was, that the sale of intoxicating liquors was not licensed and authorized by law at the time it was sold. Wilson v. State, 35 Ark. 414, 416. In other words, it failed to show that he was affected by the second section; and, in the second place, did not allege that he sold the wine without license, and therefore was not entitled to the benefit of the third section of the act. State v. Keith, 37 Ark. 96.

In Galloway v. State, 60 Ark. 362, 30 S. W. 349, Chief Justice Bunn, in delivering the opinion of the court, said: "The case really turns upon the construction to be given to the act entitled 'An act to regulate the sale of wine in the state of Arkansas,' approved April 3, 1889. *** Certain words have been eliminated from the first and second sections of the act, to conform to the decision of this court in the case of State v. Deschamp, 53 Ark. 490, 14 S. W. 653; the eliminated words having a reference solely to the place of sale, and therefore not affecting the issues in this case. The state contends that this act of 1889 repeals, or takes the place of, all other acts on the special subject of wineselling in this state, especially the fifteenth section of the special act approved March 8, 1879; and its contention seems to us to be well founded, notwithstanding the repealing act contains no repealing clause."

In Boldt v. State, 60 Ark. 600, 31 S. W. 460, Mr. Justice Hughes, in delivering the opinion of the court, said: "If the act of April 3, 1889, had not been repealed, as above shown [that is to say, so far as it relates to the sale of wine in local option districts], still this case is settled by the decision in State v. Deschamp; for the effect of that decision is that wine made of grapes and berries grown by the maker of the wine can be sold, in quantities not less than one quart, only where the sale of intoxicating liquors is licensed and authorized by law."

The opinions in these three cases, it seems, ought to decide the question as to what places a manufacturer can sell, without license, wine made from grapes or berries grown by himself, and to restrict this right to places where the sale of intoxicating liquors is licensed and authorized by law. But it is contended that he has the right to sell such wine "anywhere in this state, except in localities where the sale of in

toxicants is prohibited either by special act. of the legislature, or by the three-mile law." This contention is based on section 4851, Sand. & H. Dig., which reads as follows: "It shall not be lawful for any person to sell alcohol or any spirituous, ardent, vinous, malt or fermented liquors in this state, or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors, or intoxicating spirits of any character which are used and drank as a beverage in any quantity or for any purpose whatever, without first procuring a license from the county court of the county in which such sale is to be made authorizing such person to exercise such privilege. Provided, manufacturers of alcohol, vinous, ardent, malt or fermented liquors can sell in original packages without license. Provided, further, such original packages shall not contain less than five gallons." Under this statute, and section 4868 of the Digest, it is said the manufacturers mentioned in section 4851 can sell in original packages, containing not less than five gallons, without license, in any place in this state, except in local option districts, and localities where the sale of intoxicating liquors is prohibited by a special act of the legislature. How can this be true as to the manufacturers of wine? The act of April 3, 1889, was enacted subsequently to both the statutes named. The first section of it is explicit and comprehensive. As enacted, it says, "It shall be unlawful for any person to sell wine at any place in this state except as authorized in this act." The persons who can sell without license are those who grow grapes or berries, and make wine thereof; and they were authorized to sell only in quantities not less than a quart, and upon the premises where the grapes or berries were grown and the wine made, and in places where the sale of intoxicating liquors is licensed and authorized by law. The act declares it shall be unlawful for them to sell wine without license except in the quantities and at the places named. When amended to conform to the opinion of the court in State v. Deschamp, no change is made, except to restrict the right to sell to places where "the sale of intoxicating liquors is licensed and authorized by law."

The word "licensed" has a well-settled meaning. Black on Intoxicating Liquors says: "A license is essentially the granting of a special privilege to one or more persons, not enjoyed by citizens generally, or at least not enjoyed by a class of citizens to which the license belongs. A common right is not the creature of a license law. In a general sense, a license is permission granted by some competent authority to do an act which without such permission would be illegal. The popular understanding of the word 'license' is undoubtedly a permission to do something which without the license would not be allowable. This is also the legal meaning. The object of a license is to confer a right which does not exist without a license. A license is a privi

lege granted by the state, usually on payment of a valuable consideration, though this is not essential. To constitute a privilege, the grant must confer authority to do something which without the grant would be illegal; for, if what is to be done under the license is open to every one without it, the grant would be merely idle and nugatory, conferring no privilege whatever. But the thing to be done may be something lawful in itself, and only prohibited for the purposes of the license; that is to say, prohibited in order to compel the taking out of a license. From these definitions, which are among the best to be found in the books, it will be apparent that three leading ideas are involved in the definition of a 'license,' under the liquor laws: First, it confers a special privilege or franchise, upon selected persons, to pursue a calling not open to all; second, it legalizes acts which, if done without its protection, would be offenses against the statute; third, it is a privilege granted as part of a system of police regulations, and herein is distinguishable from taxation." Section 117.

As used in the liquor laws of this state, a license is a privilege granted by the county court, or other competent authority, to sell liquor. In this sense it was doubtless used in the act of April 3d. Construed in this sense, in the connection it is used in the act, the manufacturer cannot sell wine made out of grapes or berries grown by himself, without license, under the act regulating the sale of wine in this state, except in places where the county court, or other competent authority, can, in conformity with "the statutes in such cases made and provided," grant the privilege of selling intoxicating liquors.

But it is said that it has been the policy of the legislature to encourage the manufacture of native wine, and that "it would be absurd to suppose that the legislature intended to permit the sale of all other intoxicating liquors in original packages, and prohibit the sale of wine." While the supposition may be absurd, the truth is it has not been done. The manufacturer of native wine can sell in quantities of not less than one quart. The legislature probably thought it was favoring him when it authorized him to sell in such quantities, when other manufacturers were prohibited from selling their liquors, without license, except in original packages containing not less than five gallons.

The language of the act of April 3d is plain and unambiguous. We cannot give it a meaning different from that it clearly conveys, to subserve some particular policy. As said by Mr. Justice Hughes in Railway Co. v. B'Shears, 59 Ark. 244, 27 S. W. 2, "It might be very just and reasonable and right that the statute should make an exception such as is contended it does make, or ought to be construed to make, but this was within the power of the legislature, and its exercise of the power cannot be restrained or varied by the courts to subserve convenience, to relieve from hardships or from requirements that seem un

reasonable, or even absurd, when the lauguage is plain and unambiguous."

Our conclusion is, the manufacturer cannot lawfully sell wine made out of grapes or berries grown by himself, without license, except in places where the sale of intoxicating liquors can be licensed according to law.

This opinion, of course, has no reference or application to special acts of the legislature governing the sale of wine in particular localities.

Judgment affirmed.

BUNN, C. J., and WOOD, J., concur.

HUGHES, J. (dissenting). I am unable to yield my assent to the opinion just delivered by Mr. Justice BATTLE in this case, for the following reasons: It is conceded, and cannot be denied, that the act of March 8, 1879 (section 4851, Sand. & H. Dig.), provides that manufacturers of alcohol, vinous, malt, or fermented liquors, can sell the same, in original packages, without license, provided such original packages do not contain less than five gallons. So far as the sale of all such liquors as alcohol, ardent, malt, or fermented liquors, are concerned, this act is still in force, and they may be sold in original packages of five gallons without license. It cannot be reasonably supposed that the legislature would allow the sale of alcohol, whisky, and brandy in original packages of five gallons without license, and require that manufacturers of wine should pay a license tax before they can sell. Though there may be dicta to the contrary, I am of the opinion that when the acts of the legislature governing the sale of liquors and wines in this state are construed together, as they should be, it will be found the act above referred to was not intended to be, and was not, repealed, so far as the sale of wine is concerned.

Different statutes upon the same subject must be construed in pari materia. The repeal of statutes by implication is not favored. In Bowen v. Lease, 5 Hill, 221, it is held that "where two statutes are passed, inconsistent with and repugnant to each other, the one last enacted will operate as a repeal of the other by implication. Otherwise if they be not plainly repugnant, unless in the one last enacted some notice is taken of the other indicating an intent to repeal it; for the law does not favor the repeal of statutes by implication." In Chesapeake & O. Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. 1, it is said: "Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention, which may be collected from the cause or necessity of making the act, or from foreign circumstances; and, when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute. That, therefore, which is in the letter of the statute, is sometimes not within the statute, not