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(230 P.) Adhering to the foregoing rule, this court,, on Death by Wrongful Act (2d Ed.) par. 121. in the case of Eby v. City of Lewistown, 55 General statutes of limitations were at Mont. 113, 173 P. 1163, in construing an act one time regarded as statutes of presumprequiring the filing of written objections to tion, upon the theory that the cause of acimprovement district proceedings within 60 tion was presumed to have been disposed of days, said:
upon the merits, or that it was originally in
valid. The modern doctrine, however, is "By many of the courts these provisions are claseed as special statutes of limitation, in that that they are statutes of repose, enacted to the giving of the required notice is a prelimi- suppress stale and fraudulent claims, and innary step pecessary to be taken to enforce the tended for the relief and quiet of defendants claim. Schmidt v. Fremont, 70 Neb. 577, 97 by putting at rest controverted questions of N. W. 830; Belkin v. Iowa Falls, 122 Iowa, fact. 3 Parsons on Contracts, c. 6; Anacon. 430, 98 N. W. 296; Van Auken v. City of da Mining Co v. Saile, 16 Mónt. 8, 39 P. 909, Adrian, 135 Mich, 534, 98 N. W. 15. In our 50 Am. St. Rep. 472; Kerrigan v. O'Meara, opinion, the better view is that the giving of 70 Mont, - 227 P. 819; 25 Cyc. 983, The the notice is of the essence of the right of ac principles underlying this later doctrine were tion itself, without allegation and proof of | forcibly expressed by Mr. Justice Story, in which to recovery can be bad. Broadwater County, 45 Mont. 261, 122 P. 919." Bell v. Morrison, 1 Pet. 351, 7 L. Ed. 174,
thus: Pierson v. Davis, 224 P. 235.
"It is a wise and beneficial law, pot designed Illustration'of the rule is found in Frank- merely to raise a presumption of payment of a lin v. Franklin, 40 Mont. 348, 106 P. 353, 26 just debt, from lapse of time, but to afford seL R. A. (N. S.) 490, 20 Ann. Cas. 339, where-curity against stale demands, after the true in this court approved of the following:
state of the transaction may have been for
gotten, or be incapable of explanation, by rea"The statute on which the court below re son of the death or removal of witnesses." fused the decree in this case is not a statute of limitations. It enters into, and is a [1, 2] To take advantage of the general substantive part of, the right or cause of ac statutes of limitations as a defense, they tion, and the party seeking the relief for which must be pleaded specially. Grogan v. Valley it provides must affirmatively establish, before Trading Co., 30 Mont. 229, 76 P. 211; State the decree of divorce can be granted, that the ex rel. Kolbow v. District Court, 38 Mont. action was brought within the two years speci- 415, 100 P. 207; American Min. Co., Ltd., v. fied by the statute.”
Basin & Bay State Min. Co., 39 Mont. 476,
104 P. 525, 24 L. R. A. (N. S.) 305; Cullen v. In Vanderpool v. Vanderpool, 48 Mont.
Westero Title Co., 47 Mont. 513, 134 P. 448, 138 P. 772, in construing section 7525, 302. The rule is otherwise in the case beRevised Codes of 1907, which provided, "All fore us, where the sole and exclusive right claims arising upon contracts must be presented within the time limited in of plaintiff to sue is found in section 5099,
with the 60-day limitation of time so closely the notice, and any claim not so presented interwoven with that right as to make it an is barred forever," this court said:
integral part of it, and a condition precedent "These statutes of nonclaim are special in to the maintenance of the action. In such character; they supersede the general statutes cases the complaint must show affirmatively of limitations, and compliance with their re- that the action was brought within the time quirements is essential to the foundation of fixed by the statute. Plaintiff, not having any right of action against an estate upon a commenced the action within the statutory cause of action which sounds in contract."
period, bas failed to disclose any right to re
lief under the statute. Similarly, in actions to recover for death  Plaintiff suggests that section 9054 of by wrongful act, where the right to sue is the Revised Codes of 1921 extended the time not of common-law. origin, but solely the within which he was required to bring the creature of the "Lord Campbell's Acts” of action one year from the termination of the the several states, which contain conditional proceeding in mandamus. That section proprovisions requiring that suits be instituted vides that, if an action commenced within within a given time, it has been almost uni- the time limited by law shall fail for specversally held that such provisions are not ified causes, the plaintiff may bring a new simply statutes of limitations which affect action within a year after the termination the remedy, but conditions upon which the of the original action. It extends the time right to sue depends. McRae v. New York, fixed by the general statutes of limitations etc., R. Co., '199 Mass. 418, 85 N. E. 425, 15 for the commencement of the ordinary acAnn. Cas. 489; Anthony v. St. Louis, I. M. & S. tions. It does not apply to a cause of acRy. Co., 108 Ark. 219, 157 S. W. 394; De tion created by a statute which prescribes Martino v. Siemon, 90 Conn. 527, 97 A. 765; a special limitation period, where the time Negaubauer v. Great Northern Ry. Co., 92 within which the suit must be brought opMinn. 184, 99 N. W. 620, 104 Am. St. Rep. erates as a limitation of the liability itself, 674, 2 Ann. Cas. 150; Wood on Limitations and not of the remedy alone. It is a condiof Actions (4th Ed.) par, 9, p. 41; Tiffany tion attached to the right to sue. Dowell v.
Cox, 108 Va. 460, 62 S. E. 272; Norton V., 4. Licenses em 12-Whether Ingredients of Erie R. Co. (Sup.) 167 N. Y, S. 177; Partee final product are raw materials in primary V. St. Louis & S. F. R. Co., 204 F. 970, 123
or manufactured articles immaterial C. C. A. 292, 51 L. R. A. (N. S.) 721 ; Cav in determining liability for manufacturer's anaugh v. Ocean Steam Nav. Co. (Sup.) 13 N.
license fee; "manufacture." Y. S. 540
Popular meaning of “manufacture" being Section 9054 had its origin in the Bannack operation of making goods or wares of any Statutes of 1864, where it appears in part as kind, production of articles from raw or presection 17, p. 469, and by amendment in 1895 pared materials by giving them new forms, it was enacted as it is now written. Section er by hand labor or machinery, and more espe
qualities, properties, or combinations, wheth5099 was passed in 1921, at which time the cially production in large way by machinery Legislature, doubtless cognizant of the multi- or by many hands working collectively, it is plicity of lawsuits and dilatory proceedings imaterial, in determining liability for manuwhich theretofore had involved the right of facturer's license fee, under Rev. Codes, $ removal of police officers in this state, and 2441, whether ingredients of final product are which form a part of the records of this raw materials in primary sense of materials court, made the 60-day limitation of the es- in natural state, or are themselves manufactur
ed articles. sence of the right to sue, and made that time limit final. When the Legislative Assembly 5. Licenses Ow12_Bakery held “manufacturenacted section 5099, it did not intend that ing plant," and company operating it "manby the application of section 9054 an exten ufacturer," within manufacturer's license sion of a year should be granted to a litigant
act. who had slept on his rights, as a reward for Bakery is “manufacturing plant,” and cominadvertence or laches.
pany operating it "manufacturer," within Rev.
Codes, Š 2441, requiring payment of manuThe judgment is affirmed.
facturer's license fee, provisions of section
2589 not being pertinent. CALLAWAY, C. J., and HOLLOWAY, GA (Ed. Note.--For other definitions, see Words LEN, and STARK, JJ., concur.
and Phrases, First and Second Series, Manufacturer; Second Series, Manufacturing Plant.] 6. Licenses Om7(4)-Act imposing tax on
manufacturers doing business in excess of certain amount not void as discriminatory.
Rev. Codes, $ 2441, requiring license fee of STATE v. HENNESSY CO. (No. 5519.) manufacturers doing business of more than
$15,000 per year, held not void as discriminat(Supreme Court of Montana. Oct. 1, 1924.) ing in favor of manufacturers doing smaller
business, in violation of Const. art. 12, § 11, in 1. Licenses 8(1)-Derivative and broadest view of section 1, authorizing imposition of li
meanings of word "manufacture" held not incense tax on persons and corporations doing conformity to approved usage, by which li- business in state. cerse act must be interpreted. Neither definition of word "manufacture"
Appeal from District Court, Silver Bow as "to make by hand,” nor as signifying per
County; Wm. E. Carroll, Judge. formance of labor resulting in articles assum Action by the State against the Hennessy ing new form, possessing new qualities or new Company. Judgment for plaintiff, and decombinations, conforms to popular meaning, fendant appeals. Affirmed. by reference to which court is required by Rev. Codes 1921, § 15, to interpret language of sec
John K. Claxton, of Butte, for appellant. tion 2441, requiring fee of certain manufac George Bourquin, Ed. Fitzpatrick, and H. turers.
A. Tyvand, all of Butte, for the state. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Manu HOLLOWAY, J. The Hennessy Company, facture.)
a domestic corporation, is now and for sev. 2. Evidence 16-Common knowledge of
eral years has been engaged in conducting a changes in popular usage of words.
general mercantile business in Butte, and It is matter of common knowledge that in connection therewith has operated a even proper usage of words varies from time bakery in which it makes various kinds of to time, as new conditions arise or new or bread, biscuits, crackers, and other bakery improved methods of doing things are discor- products, of which flour is the principal inered.
gredient. These products are sold at re3. Licenses w12_"Raw material" defined. tail, and the business of the bakery exceeds
“Raw material,” as used in definitions of $15,000 per year. The county treasurer “manufacture," denotes merely material from of Silver Bow county demanded that the which final product is made, not necessarily company pay a manufacturer's license, and material in its natural state.
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
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
self, but several of which may be required to
are fashioned into boxes, furniture, quarter."
thousand and one articles manufactured wholly Two questions are presented: (1) In con or in part of wood. The steel spring of a ducting its bakery business, is the company watch is made ultimately from iron ore, but by a manufacturer? (2) Is section 2441 a valid a large number of processes or transformalegislative enactment?
tions, each successive step in which is a dis[1, 2] 1. According to its derivation, the tinct process of manufacture, and for which word “manufacture” means to make by hand. the article so manufactured receives a different In its broadest significance the process of ture is formed, and to which reference is made
The material of which each manufac-
raw material-in this case the tree or log-
 In the Century Dictionary the noun
or by machinery; used more especially of pro-
many hands working collectively."
This definition has been approved in many
“Manufacturing" is held to include mak-
Ct. 261, 54 L. Ed. 562, 26 L. R. A. (N. S.)
Commonwealth "The primary meaning of the word 'manu
Filberg Pav. &
In re Marine Construction & Dry Dock Co., We do not find fault with the conclusion 130 F. 446, 64 C. C. A. 648. Sugar refining: reached in State v. Johnson, but much that State v. American Ref. Co., 108 La. 603, 32 is said in argument and by way of illustraSo. 965. Electrotyping and lithographing: tion would not be accepted as applicable toState v. State Board, 47 N. J. Law, 36. day.
“Manufactured products": Paving com In view of the reasoning which underlies pound: People v. Knight, 99 App. Div. 62, the decided cases above, and the definition 90 N. Y, S. 537. Mixed paints: People v. of the term “manufacturer," as that definiRoberts, 51 App. Div. 77, 64 N. Y. S. 494. tion is popularly understood at the present Sewer pipe: Appeal of Iowa Pipe & Tile Co., time, and as it was understood generally 101 Iowa, 170, 70 N. W. 115. Packing prod- when section 2441 was incorporated into the ucts: Engle v. Sohn, 41 Ohio St. 691, 52 laws of this state, we conclude that defendAm. Rep. 103. Sarcophagus: Crier v. Innes, ant's bakery is a manufacturing plant, and 170 F. 324, 95 C. C. A. 508. •Coke: Common- in operating it the defendant is à "manufacwealth v. Juniata Coke Co., 157 Pa. 507, 27 | turer," within the meaning of the statute. A. 373, 22 L. R. A. 232. Animal charcoal : We have not overlooked the provisions of Schriefer v. Wood, 5 Blatch. 215.
section 2589, Revised Codes of 1921, but we “Manufacturing establishments" are held do not deem them pertinent to the present to include electric light plants: Lamborn inquiry. v. Bell, 18 Colo. 346, 32 P. 989, 20 L. R. A.  2. The second contention advanced 241; Beggs v. Edison & Co., 96 Ala. 295, 11 by defendant's counsel merits but slight conSo, 381, 38 Am. St. Rep. 94; Angola Ry. & sideration. It is argued that a statute which Power Co. v. Butz, 52 Ind. App. 420, 98 N. E. imposes a license upon a manufacturer doing 818; Kentucky Electric Co. v. Buechel, 146 a business exceeding $15.000 per year, but Ky. 660, 143 S. W. 58, 38 L. R. A. (N. S.) relieves the one whose business does not ex907, Ann. Cas. 1913C, 714; The United States ceed the stated amount, is discriminatory Burenu of Engraving and Printing: Harley and void as violating the provisions of secv. United States. 39 Ct. Cl. 105. Steam heat- tion 11, article 12, of our state Constitution, ing plants: Wells v. Christian, 165 Ind. which declares that taxes shall be uniform 662, 76 N. E. 518. Gas plants: Nassau Gaslight Co. v. Brooklyn, 89 N. Y. 409. Bottling upon the same class of subjects within the works: Carlsbad Water Co. v. New, 33 Colo. territorial limits of the authority levying
the same. 389, 81 P. 34. Shingle mills: In re Arkansas
Section 11, however, is to be Cypress Shingle Co., 74 Ark, 28. 84 S. w. read in connection with section 1 of the 1029. Sawmills: Graham v. Magann Fawke same article, which latter section, after proLumber Co., 118 Ky. 192, SO S. W. 799, 4 viding for a uniform system of taxation, deAnn. Cas. 1026. Flour mills: Carlin v. West-clares that "the legislative assembly may ern Assurance Co.. 57 Md. 515, 40 Am. Rep. also impose a license tax, both upon persons 440. Ice plants: Ballard v. Kentwood Ice and upon corporations doing business in Mfg. & Bottling Works, 147 La. 583, 85 So. the state." 598.
The license imposed by section 2441 is the In Kohlsaat & Co. y. O'Connell, 255 Ill. license or occupation tax referred to in the 271, 99 N. E. 689, it was held that one en- last sentence of section 1, article 12 above, gaged in making bakers' goods and restau- and that it is not controlled by the uniform rant supplies is engaged in manufacturing, clause of section 11 but may be graduated and in United States v. Thomas Meadows according to the amount of business done are & Co. (C. C.) 147 F. 757, it was held that propositions now too well settled for further wafers, biscuits, and other bakery products discussion. State ex rel. Sam Toi v. French, are manufactured articles.
17 Mont. 54, 41 P. 1078, 30 L. R. A. 415 ;  Counsel for defendant has not di- Quong Wing v. Kirkendall, 39 Mont. 64, rected our attention to any authority which 101 P. 250; State v. Hammond Packing Co., holds that a baker is not a manufacturer, | 45 Mont. 313, 123 P. 407; Equitable Life but he relies for a reversal of this judg- Assurance Co. v. Hart, 55 Mont. 76, 173 P. ment upon New Orleans v. Mannessier. 32 1062. The fact that a bakery doing a busiLa. Ann. 1075, which holds that one engaged ness of $15.000 or less per year is relieved in making ice cream for sale is not engaged from paying the license tax does not render in manufacturing, and State v. Johnson, 20 the statute open to attack. Gelsthorpe v. Mont. 367. 51 P. 820, which holds that a mer- Furnell, 20 Mont. 299, 51 P. 267, 39 L, R. A. chant tailor who merely cuts and fashions a 170. suit of clothes as ordered by a customer is The judgment is affirmed, not a manufacturer within the meaning of the Affirmed. statute now under consideration. In the first citation counsel was unfortunate, for the same court 36 years later decided that one CALLAWAY, C. J., and GALEN and who makes ice cream for sale is a manufac-STARK, JJ., concur. turer. Collector v. Brown, 140 La. 928, 74 RANKIN, J., being disqualified, takes po So. 253.
part in the foregoing decision.
proceeding in habeas corpus. In Re Gano,
90 Kan. 134, 132 Pac. 999, this court said:
a plea of former jeopardy does not entitle the
prisoner to a discharge in habeas corpus, but
On page 135 (132 P. 999) the court used
the following language:
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:
"Error in overruling a plea of former jeop-
In these cases, the plea of former jeop-
In 29 C. J. 44, this language is found:
"The existence of a defense, which would The pleas of the statute of limitations and have been good if pleaded, is not ground for of former jeopardy in criminal actions are habeas corpus to secure release from imprisonclosely analogous and are governed by the ment under the judgment, whether such de
fense is in abatement or in bar and whether same principles of law. Both are defenses, the question raised is one of fact dependent and they are defenses of the same general upon the evidence, or one of law for the court, character. This court has had occasion to where such defense does not go to the jurispass on the right of one convicted to pre- diction. The statute of limitations is mere sent the question of former jeopardy in a matter of defense and is not a ground for dis
em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes