(230 P.) Adhering to the foregoing rule, this court, in the case of Eby v. City of Lewistown, 55 Mont. 113, 173 P. 1163, in construing an act requiring the filing of written objections to improvement district proceedings within 60 days, said: "By many of the courts these provisions are classed as special statutes of limitation, in that the giving of the required notice is a preliminary step necessary to be taken to enforce the claim. Schmidt v. Fremont, 70 Neb. 577, 97 N. W. 830; Belkin v. Iowa Falls, 122 Iowa, 430, 98 N. W. 296; Van Auken v. City of Adrian, 135 Mich. 534, 98 N. W. 15. In our opinion, the better view is that the giving of the notice is of the essence of the right of action itself, without allegation and proof of which no recovery can be had. Dolenty v. Broadwater County, 45 Mont. 261, 122 P. 919." Pierson v. Davis, 224 P. 235. Illustration of the rule is found in Franklin v. Franklin, 40 Mont. 348, 106 P. 353, 26 L. R. A. (N. S.) 490, 20 Ann. Cas. 339, wherein this court approved of the following: "The statute on which the court below refused the decree in this case is not a mere statute of limitations. It enters into, and is a substantive part of, the right or cause of action, and the party seeking the relief for which it provides must affirmatively establish, before the decree of divorce can be granted, that the action was brought within the two years specified by the statute." Similarly, in actions to recover for death by wrongful act, where the right to sue is not of common-law origin, but solely the creature of the "Lord Campbell's Acts" of the several states, which contain conditional provisions requiring that suits be instituted within a given time, it has been almost universally held that such provisions are not simply statutes of limitations which affect the remedy, but conditions upon which the right to sue depends. McRae v. New York, etc., R. Co., 199 Mass. 418, 85 N. E. 425, 15 Ann. Cas. 489; Anthony v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 219, 157 S. W. 394; De Martino v. Siemon, 90 Conn. 527, 97 A. 765; Negaubauer v. Great Northern Ry. Co., 92 Minn. 184, 99 N. W. 620, 104 Am. St. Rep. 674, 2 Ann. Cas. 150; Wood on Limitations of Actions (4th Ed.) par. 9, p. 41; Tiffany on Death by Wrongful Act (2d Ed.) par. 121. General statutes of limitations were at one time regarded as statutes of presumption, upon the theory that the cause of action was presumed to have been disposed of upon the merits, or that it was originally invalid. The modern doctrine, however, is that they are statutes of repose, enacted to suppress stale and fraudulent claims, and intended for the relief and quiet of defendants by putting at rest controverted questions of fact. 3 Parsons on Contracts, c. 6; Anaconda Mining Co v. Saile, 16 Mont. 8, 39 P. 909, 50 Am. St. Rep. 472; Kerrigan v. O'Meara, 70 Mont., 227 P. 819; 25 Cyc. 983. The principles underlying this later doctrine were forcibly expressed by Mr. Justice Story, in Bell v. Morrison, 1 Pet. 351, 7 L. Ed. 174, thus: "It is a wise and beneficial law, not designed. merely to raise a presumption of payment of a just debt, from lapse of time, but to afford security against stale demands, after the true state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of witnesses." [1, 2] To take advantage of the general statutes of limitations as a defense, they must be pleaded specially. Grogan v. Valley Trading Co., 30 Mont. 229, 76 P. 211; State ex rel. Kolbow v. District Court, 38 Mont. 415, 100 P. 207; American Min. Co., Ltd., v. Basin & Bay State Min. Co., 39 Mont. 476, 104 P. 525, 24 L. R. A. (N. S.) 305; Cullen v. Western Title Co., 47 Mont. 513, 134 P. 302. The rule is otherwise in the case before us, where the sole and exclusive right with the 60-day limitation of time so closely of plaintiff to sue is found in section 5099, interwoven with that right as to make it an integral part of it, and a condition precedent to the maintenance of the action. In such cases the complaint must show affirmatively that the action was brought within the time fixed by the statute. Plaintiff, not having commenced the action within the statutory period, has failed to disclose any right to relief under the statute. [3] Plaintiff suggests that section 9054 of the Revised Codes of 1921 extended the time within which he was required to bring the action one year from the termination of the proceeding in mandamus. That section provides that, if an action commenced within the time limited by law shall fail for specified causes, the plaintiff may bring a new action within a year after the termination of the original action. It extends the time fixed by the general statutes of limitations for the commencement of the ordinary actions. It does not apply to a cause of action created by a statute which prescribes a special limitation period, where the time within which the suit must be brought operates as a limitation of the liability itself, and not of the remedy alone. It is a condition attached to the right to sue. Dowell v. final product are raw materials in primary sense or manufactured articles immaterial in determining liability for manufacturer's license fee; "manufacture." Cox, 108 Va. 460, 62 S. E. 272; Norton v. 4. Licenses 12-Whether Ingredients of Erie R. Co. (Sup.) 167 N. Y. S. 177; Partee v. St. Louis & S. F. R. Co., 204 F. 970, 123 C. C. A. 292, 51 L. R. A. (N. S.) 721; Cavanaugh v. Ocean Steam Nav. Co. (Sup.) 13 N. Y. S. 540 Section 9054 had its origin in the Bannack Statutes of 1864, where it appears in part as section 17, p. 469, and by amendment in 1895 it was enacted as it is now written. Section 5099 was passed in 1921, at which time the Legislature, doubtless cognizant of the multiplicity of lawsuits and dilatory proceedings which theretofore had involved the right of removal of police officers in this state, and which form a part of the records of this court, made the 60-day limitation of the essence of the right to sue, and made that time limit final. When the Legislative Assembly enacted section 5099, it did not intend that by the application of section 9054 an extension of a year should be granted to a litigant who had slept on his rights, as a reward for inadvertence or laches. The judgment is affirmed. CALLAWAY, C. J., and HOLLOWAY, GALEN, and STARK, JJ., concur. STATE v. HENNESSY CO. (No. 5519.) (Supreme Court of Montana. Oct. 1, 1924.) 1. Licenses 8(1)-Derivative and broadest meanings of word "manufacture" held not in conformity to approved usage, by which license act must be interpreted. Neither definition of word "manufacture" as "to make by hand," nor as signifying performance of labor resulting in articles assuming new form, possessing new qualities or new combinations, conforms to popular meaning, by reference to which court is required by Rev. Codes 1921, § 15, to interpret language of section 2441, requiring fee of certain manufacturers. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Manufacture.] 2. Evidence 16-Common knowledge of changes in popular usage of words. It is matter of common knowledge that even proper usage of words varies from time to time, as new conditions arise or new or improved methods of doing things are discovered. Popular meaning of "manufacture" being operation of making goods or wares of any kind, production of articles from raw or prepared materials by giving them new forms, qualities, properties, or combinations, whether by hand labor or machinery, and more especially production in large way by machinery or by many hands working collectively, it is imaterial, in determining liability for manufacturer's license fee, under Rev. Codes, 2441, whether ingredients of final product are raw materials in primary sense of materials in natural state, or are themselves manufactur ed articles. 5. Licenses 12-Bakery held "manufactur. ing plant," and company operating it "manufacturer," within manufacturer's license act. Bakery is "manufacturing plant," and company operating it "manufacturer," within Rev. Codes, 2441, requiring payment of manufacturer's license fee, provisions of section 2589 not being pertinent. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Manufacturer; Second Series, Manufacturing Plant.] 6. Licenses 7(4)-Act imposing tax on manufacturers doing business in excess of certain amount not void as discriminatory. Rev. Codes, § 2441, requiring license fee of manufacturers doing business of more than $15,000 per year, held not void as discriminating in favor of manufacturers doing smaller business, in violation of Const. art. 12, § 11, in view of section 1, authorizing imposition of license tax on persons and corporations doing business in state. Appeal from District Court, Silver Bow County; Wm. E. Carroll, Judge. Action by the State against the Hennessy Company. Judgment for plaintiff, and defendant appeals. Affirmed. John K. Claxton, of Butte, for appellant. George Bourquin, Ed. Fitzpatrick, and H. A. Tyvand, all of Butte, for the state. HOLLOWAY, J. The Hennessy Company, a domestic corporation, is now and for several years has been engaged in conducting a general mercantile business in Butte, and in connection therewith has operated a bakery in which it makes various kinds of bread, biscuits, crackers, and other bakery products, of which flour is the principal ingredient. These products are sold at retail, and the business of the bakery exceeds $15,000 per year. The county treasurer of Silver Bow county demanded that the company pay a manufacturer's license, and upon refusal this action was instituted. The [Ed. Note. For other definitions, see Words cause was tried upon an agreed statement and Phrases, First and Second Series, Raw.] of facts, and resulted in a judgment in favor 3. Licenses 12-"Raw material" defined. "Raw material," as used in definitions of "manufacture," denotes merely material from which final product is made, not necessarily material in its natural state. (230 P.) of the state, from which the defendant com- Two questions are presented: (1) In conducting its bakery business, is the company a manufacturer? (2) Is section 2441 a valid legislative enactment? [1, 2] 1. According to its derivation, the word "manufacture" means to make by hand. In its broadest significance the process of manufacturing occurs whenever labor is performed upon an article which results in its assuming a new form, possessing new qualities or new combinations (2 Cooley on Taxation [4th Ed.] § 762), but neither of these definitions conforms to the popular notion of the meaning of the term, and we are required to interpret the language of a statute by reference to its approved usage (section 15, Rev. Codes 1921). The first definition is altogether too restricted, whereas the second is probably too comprehensive; and it is a matter of common knowledge that even the popular usage of words varies from time to time as new conditions arise, or new or improved methods of doing things are discovered. [3] In the early editions of the dictionaries the lexicographers by their definitions apparently limited the meaning of the term "manufactured article" to one formed directly from raw material, employing the term "raw material" in the sense of material in its natural state, and to such extent was that idea prevalent that as late as 1871 the Supreme Court of New York held that castings were not manufactured articles because made from pig iron, itself a manufactured product. People v. Holdridge, 4 Lans. (N.. Y.) 511. But, though the term "raw material" is retained in many definitions of "manufacture," it denotes merely the material out of which the final product is made. It is obvious that what is raw material to one is a finished product to another. To the tanner leather is a manufactured or finished product, but to the shoemaker it is raw material. In Tide Water Oil Co. v. United States, 171 U. S. 210, 18 S. Ct. 837, 43 L. Ed. 139, the Supreme Court said: cesses facture, each one of which is complete in itself, but several of which may be required to make the final product. Thus, logs are first manufactured into boards, planks, joists, scantlings, etc., and then by entirely different prodoors, window sashes, trimmings, and the are fashioned into boxes, furniture, thousand and one articles manufactured wholly or in part of wood. The steel spring of a watch is made ultimately from iron ore, but by a large number of processes or transformations, each successive step in which is a distinct process of manufacture, and for which the article so manufactured receives a different name. The material of which each manufacin section 3019, is not necessarily the original ture is formed, and to which reference is made raw material-in this case the tree or logbut the product of a prior manufacture; the finished product of one manufacture thus becoming the material of the next in rank." [4] In the Century Dictionary the noun "manufacture" is defined as follows: "The operation of making goods or wares of any kind; the production of articles for use from raw or prepared materials by giving to those materials new forms, qualities, properties or combinations, whether by hand labor or by machinery; used more especially of production in a large way by machinery or by many hands working collectively." This definition has been approved in many cases, among them: Dolese & Shepard Co. v. O'Connell, 257 Ill. 43, 100 N. E. 235; State v. Tichenor Antiseptic Co., 118 La. 685, 43 So. 277; Bank v. Wm. R. Trigg Co., 106 Va. 327, 56 S. E. 158. Under this definition, which appears to comport with the popular meaning of the term, it is altogether immaterial whether the ingredients of a final product are raw material in the primary sense of the term or whether they are themselves manufactured articles. Louisville v. Louisville Tin & Stove Co., 170 Ky. 557, 186 S. W. 124; Planters' Fertilizer & Chemical Co. v. Board of Assessors, 116 La. 667, 40 So. 1035; Dolese & Shepard Co. v. O'Connell, above. The following citations fairly illustrate the views of the courts in the application of the definition of the term "manufacture" or one of its derivatives to particular cases: & "Manufacturing" is held to include making arches. bridges, and buildings from concrete: Friday v. Hall, 216 U. S. 449, 30 S. Ct. 261, 54 L. Ed. 562, 26 L. R. A. (N. S.) "The primary meaning of the word 'manu- 475; Commonwealth V. Filberg Pav. facture' is something made by hand, as dis- Constr. Co., 229 Pa. 231, 78 A. 104. Maktinguished from a natural growth; but as ma- ing bags from burlap: State v. Bemis Bros. chinery has largely supplanted this primitive Bag Co., 135 La. 397, 65 So. 554. House method, the word is now ordinarily used to de- construction: In note an article upon the material of which (D. C.) 157 F. 296. re Rutland Realty Co. labor has been expended to make the finished Fruit canning: Nixa product. Ordinarily, the article so manufacCanning Co. v. Lehmann-Higginson Grocery tured takes a different form, or at least sub-Co., 70 Kan. 664, 79 P. 141, 70 L. R. A. 653. serves a different purpose from the original Fish packing: In re Alaska American Fish materials; and usually it is given a different Co. (D. C.) 162 F. 498. Ship building: Coname. Raw materials may be and often are lumbia Iron Works v. National Lead Co., subjected to successive processes of manu- 127 F. 99, 62 C. C. A. 99, 64 L. R. A. 645; 230 P.-5 In re Marine Construction & Dry Dock Co., 130 F. 446, 64 C. C. A. 648. Sugar refining: State v. American Ref. Co., 108 La. 603, 32 So. 965. Electrotyping and lithographing: State v. State Board, 47 N. J. Law, 36. "Manufactured products": Paving compound: People v. Knight, 99 App. Div. 62, 90 N. Y. S. 537. Mixed paints: People v. Roberts, 51 App. Div. 77, 64 N. Y. S. 494. Sewer pipe: Appeal of Iowa Pipe & Tile Co., 101 Iowa, 170, 70 N. W. 115. Packing products: Engle v. Sohn, 41 Ohio St. 691, 52 Am. Rep. 103. Sarcophagus: Crier v. Innes, 170 F. 324, 95 C. C. A. 508. Coke: Commonwealth v. Juniata Coke Co., 157 Pa. 507, 27 A. 373, 22 L. R. A. 232. Animal charcoal: Schriefer v. Wood, 5 Blatch. 215. "Manufacturing establishments" are held to include electric light plants: Lamborn v. Bell, 18 Colo. 346, 32 P. 989, 20 L. R. A. 241; Beggs v. Edison & Co., 96 Ala. 295, 11 So. 381, 38 Am. St. Rep. 94; Angola Ry. & Power Co. v. Butz, 52 Ind. App. 420, 98 N. E. 818; Kentucky Electric Co. v. Buechel, 146 Ky. 660, 143 S. W. 58, 38 L. R. A. (N. S.) 907, Ann. Cas. 1913C, 714; The United States Bureau of Engraving and Printing: Harley v. United States. 39 Ct. Cl. 105. Steam heating plants: Wells v. Christian, 165 Ind. 662, 76 N. E. 518. Gas plants: Nassau Gaslight Co. v. Brooklyn, 89 N. Y. 409. Bottling works: Carlsbad Water Co. v. New, 33 Colo. 389, 81 P. 34. Shingle mills: In re Arkansas Cypress Shingle Co., 74 Ark. 28, 84 S. W. 1029. Sawmills: Graham v. Magann Fawke Lumber Co., 118 Ky. 192, 80 S. W. 799, 4 Ann. Cas. 1026. Flour mills: Carlin v. Western Assurance Co., 57 Md. 515, 40 Am. Rep. 440. Ice plants: Ballard v. Kentwood Ice Mfg. & Bottling Works, 147 La. 583, 85 So. 598. In Kohlsaat & Co. y. O'Connell, 255 Ill. 271, 99 N. E. 689, it was held that one engaged in making bakers' goods and restaurant supplies is engaged in manufacturing, and in United States v. Thomas Meadows & Co. (C. C.) 147 F. 757, it was held that wafers, biscuits, and other bakery products are manufactured articles. [5] Counsel for defendant has not directed our attention to any authority which holds that a baker is not a manufacturer, but he relies for a reversal of this judgment upon New Orleans v. Mannessier. 32 La. Ann. 1075, which holds that one engaged in making ice cream for sale is not engaged in manufacturing, and State v. Johnson, 20 Mont. 367. 51 P. 820, which holds that a merchant tailor who merely cuts and fashions a suit of clothes as ordered by a customer is not a manufacturer within the meaning of the statute now under consideration. In the first citation counsel was unfortunate, for the same court 36 years later decided that one who makes ice cream for sale is a manufacturer. Collector v. Brown, 140 La. 928, 74 We do not find fault with the conclusion reached in State v. Johnson, but much that is said in argument and by way of illustration would not be accepted as applicable today. In view of the reasoning which underlies the decided cases above, and the definition of the term "manufacturer," as that definition is popularly understood at the present time, and as it was understood generally when section 2441 was incorporated into the laws of this state, we conclude that defendant's bakery is a manufacturing plant, and in operating it the defendant is a "manufacturer," within the meaning of the statute. We have not overlooked the provisions of section 2589, Revised Codes of 1921, but we do not deem them pertinent to the present inquiry. [6] 2. The second contention advanced by defendant's counsel merits but slight consideration. It is argued that a statute which imposes a license upon a manufacturer doing a business exceeding $15,000 per year, but relieves the one whose business does not exceed the stated amount, is discriminatory and void as violating the provisions of section 11, article 12, of our state Constitution, which declares that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the same. Section 11, however, is to be read in connection with section 1 of the same article, which latter section, after providing for a uniform system of taxation, declares that "the legislative assembly may also impose a license tax, both upon persons and upon corporations doing business in the state." The license imposed by section 2441 is the license or occupation tax referred to in the last sentence of section 1, article 12 above, and that it is not controlled by the uniform clause of section 11 but may be graduated according to the amount of business done are propositions now too well settled for further discussion. State ex rel. Sam Toi v. French, 17 Mont. 54, 41 P. 1078, 30 L. R. A. 415; Quong Wing v. Kirkendall, 39 Mont. 64, 101 P. 250; State v. Hammond Packing Co., 45 Mont. 343, 123 P. 407; Equitable Life Assurance Co. v. Hart, 55 Mont. 76, 173 P. 1062. The fact that a bakery doing a business of $15.000 or less per year is relieved from paying the license tax does not render the statute open to attack. Gelsthorpe v. Furnell, 20 Mont. 299, 51 P. 267, 39 L. R. A. 170. The judgment is affirmed. CALLAWAY, C. J., and GALEN and STARK, JJ., concur. RANKIN, J., being disqualified, takes no In re JOHNSON. (230 P.) (No. 25803.) proceeding in habeas corpus. In Re Gano, 90 Kan. 134, 132 Pac. 999, this court said: "Ordinarily an error committed in overruling a plea of former jeopardy does not entitle the prisoner to a discharge in habeas corpus, but it must be corrected on appeal." Syl. par. 1. On page 135 (132 P. 999) the court used the following language: "The petitioner is not entitled to a discharge in habeas corpus for two reasons. If a mistake had been made in overruling his plea of former jeopardy it could not be corrected in habeas corpus. It has been decided that if error is committed in overruling such a plea it must be corrected on appeal." In Re Terrill, 90 Kan. 138, 49 Pac. 158, the court said: ardy, or in the matter of change of venue, can"Error in overruling a plea of former jeopnot be considered on habeas corpus." T. W. Bell, of Leavenworth, for petitioner. ent. MARSHALL, J. On the defendant's plea of guilty, he was sentenced to the penitentiary for embezzlement of money belonging to J. R. Ely. The petitioner asks his release on the ground that more than two years had elapsed between the time the warrant was issued and the time of his arrest, although he had been within the state during most of that time, and the officer having the warrant knew at all times where the petitioner was, and that the latter had requested the officer to arrest the petitioner in order that he might be brought to trial. As a further ground for his release, the petitioner shows that more than two terms of court had gone by after the issue of the warrant before the term of court at which he pleaded guilty, and that he had not consented to such postponement. The respondent argues that the petitioner was confined in the penitentiary during most of the time after the issuance of the warrant until the arrest, and that the petitioner had not been out of the penitentiary for two years after the warrant was issued and before the arrest was made. The respondent also urges that the petitioner cannot in a proceeding in habeas corpus raise the question of the validity of the judgment sentencing him to the penitentiary on his plea of guilty to the charge of embezzlement contained in the information filed against him. If the last proposition urged by the respondent is correct, it is unnecessary to examine any other proposition presented. The pleas of the statute of limitations and of former jeopardy in criminal actions are closely analogous and are governed by the same principles of law. Both are defenses, and they are defenses of the same general character. This court has had occasion to pass on the right of one convicted to present the question of former jeopardy in a Syl. In these cases, the plea of former jeopardy was interposed but not sustained. Here, the plea of the statute of limitations was not interposed, but that does not change the rule; it could have been interposed, and if pleaded and not sustained, the error could have been corrected on appeal, if error had been committed. That plea was not interposed and for that reason the statute was not relied on. The principle declared in the two cases cited was followed in Re Terry, 71 Kan. 362, 80 Pac. 586, and in Re Wallace, 75 Kan. 432, 89 Pac. 687. The conclusion to be drawn from these decisions of this court is that a defense in a criminal prosecution must be presented to the court on the trial of the case and if error is committed therein, the matter must be presented to the Supreme Court on appeal and cannot be raised in this court by habeas corpus. No analogous case has been cited from this state involving the statute of limitations, but there are authorities to sustain the view that the question is one that must be presented on the trial, and cannot be raised in an application for a writ of habeas corpus. In 12 R. C. L. 1206, it is said that: "Accordingly, it has been held that the operation of a statute of limitations, barring a prosecution for a criminal offense, is not ground for the release of the accused on habeas corpus." In 29 C. J. 44, this language is found: "The existence of a defense, which would have been good if pleaded, is not ground for habeas corpus to secure release from imprisonment under the judgment, whether such defense is in abatement or in bar and whether upon the evidence, or one of law for the court, the question raised is one of fact dependent where such defense does not go to the jurisdiction. The statute of limitations is mere matter of defense and is not a ground for dis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |