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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 [3] 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.

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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






(230 P.)
of the state, from which the defendant com- , facture, each one of which is complete in it-
pany appealed.

self, but several of which may be required to
Section 2441, Revised Codes, provides that make the final product. Thus, logs are first
"every * * * manufacturer doing a business manufactured into boards, planks, joists, scant-
of more than fifteen thousand dollars per lings, etc., and then by entirely different pro-
year, must pay a license of ten dollars per doors, window sashes, trimmings, and the

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-
manufacturing occurs whenever labor is in section 3019, is not necessarily the original
performed upon an article which results in

raw material-in this case the tree or log-
its assuming a new form, possessing new but the product of a prior manufacture; the
qualities or new combinations (2 Cooley on finished product of one manufacture thus be-
Taxation [4th Ed.) $ 762), but neither of coming the material of the next in rank.”
these definitions conforms to the popular
notion of the meaning of the term, and we

[4] In the Century Dictionary the noun
are required to interpret the language of "manufacture” is defined as follows:
a statute by reference to its approved usage “The operation of making goods or wares
(section 15, Rev. Codes 1921). The first def- of any kind; the production of articles for
inition is altogether too restricted, whereas use from raw or prepared materials by giving
the second is probably too comprehensive; to those materials new forms, qualities, prop-
and it is a matter of common knowledge erties or combinations, whether by hand labor
that even the popular usage of words varies duction in a large way by machinery or by

or by machinery; used more especially of pro-
from time to time as new conditions arise,

many hands working collectively."
or new or improved methods of doing things
are discovered.

This definition has been approved in many
[3] In the early editions of the diction- cases, among them: Dolese & Shepard Co.
aries the lexicographers by their definitions v. O'Connell, 257 111. 43, 100 N. E. 235;
apparently limited the meaning of the term State v. Tichenor Antiseptic Co., 118 La. 685,
"manufactured article" to one formed di- 43 So. 277; Bank v. Wm. R. Trigg Co., 106
rectly from raw material, employing the Va. 327, 56 S. E. 158.' Under this definition,
term “raw material” in the sense of material which appears to comport with the popular
in its natural state, and to such extent was meaning of the term, it is altogether im-
that idea prevalent that as late as 1871 material whether the ingredients of a final
the Supreme Court of New York held that product are raw material in the primary
castings were not manufactured articles be- sense of the term or whether they are them.
cause made from pig iron, itself a manu- selves manufactured articles. Louisville v.
factured product. People v. Holdridge, 4 Louisville Tin & Stove Co., 170 Ky. 557, 186
Lans. (.. Y.) 511. But, though the terms. W. 124; Planters' Fertilizer & Chemical
“raw material” is retained in many def-Co. v. Board of Assessors, 116 La. 667, 40 So.
Initions of “manufacture,” it denotes merely 1035; Dolese & Shepard Co. v. O'Connell,
the material out of which the final product above.
is made. It is obvious that what is raw The following citations fairly illustrate the
material to one is a finished product to an- views of the courts in the application of the
other. To the tanner leather is a manufac- definition of the term "manufacture" or one
tured or finished product, but to the shoe- of its derivatives to particular cases :
maker it is raw material.

“Manufacturing" is held to include mak-
In Tide Water Oil Co. v. United States, ing arches. bridges, and buildings from con-
171 U. S. 210, 18 S. Ct. 837, 43 L. Ed. 139, crete: Friday v. Hall, 216 U. S. 449, 30 S.
the Supreme Court said:

Ct. 261, 54 L. Ed. 562, 26 L. R. A. (N. S.)

Commonwealth "The primary meaning of the word 'manu


Filberg Pav. &
facture is something made by hand, as dig- Constr. Co., 229 Pa. 231, 78 A. 104. Mak-
tinguished 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 re Rutland Realty Co.
note an article upon the material of which (D. C.) 157 F. 296. Fruit canning: Nixa
labor has been expended to make the finished Canning Co. v. Lehmann-Higginson Grocery
product. Ordinarily, the article so manufac-
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: Co-
name. 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. O. A. 99, 64 L R, A. 645;

230 P.-5

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. [6] 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 ; [5] 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.

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(230 P.)

proceeding in habeas corpus. In Re Gano,
in re JOHNSON. (No. 25803.)

90 Kan. 134, 132 Pac. 999, this court said:
(Supreme Court of Kansas. Nov. 8, 1924.) "Ordinarily an error committed in overruling

a plea of former jeopardy does not entitle the
(Syllabus by the Court.)

prisoner to a discharge in habeas corpus, but
Habeas corpus c22(1)-One pleading guilty it must be corrected on appeal.” Syl. par. 1.
cannot by habeas corpus secure release on

On page 135 (132 P. 999) the court used
showing that prosecution barred at time of

the following language:
One who pleads guilty to a charge of em “The petitioner is not entitled to a discharge
bezzlement cannot by proceedings in habeas in habeas corpus for two reasons. If a mis-
corpus secure his release by showing that the take had been made in overruling his plea of
prosecution was barred by the statute of limi- former jeopardy it could not be corrected in
tations at the time he was arrested.

habeas corpus. It has been decided that if

error is committed in overruling such a plea it
Original proceeding in habeas corpus on

must be corrected on appeal."
petition of Volney O. Johnson. Petitioner

In Re Terrill, 90 Kan. 138, 49 Pac. 158,

the court said:
T. W. Bell, of Leavenworth, for petitioner.
Charles B. Griffith, Atty. Gen., Frank C. ardy, or in the matter of change of venue, can-

"Error in overruling a plea of former jeop-
Baldwin, Asst. Atty. Gen., and Braden C. not be considered on babeas corpus." Syl.
Johnston, Co. Atty., of Marion, for respond- par. 2.

In these cases, the plea of former jeop-
MARSHALL, J. On the defendant's plea ardy was interposed but not sustained.
of guilty, he was sentenced to the peniten- Here, the plea of the statute of limitations
tiary for embezzlement of money belonging was not interposed, but that does not change
to J. R. Ely. The petitioner asks his release the rule; it could have been interposed, and
on the ground that more than two years had | if pleaded and not sustained, the
elapsed between the time the warrant was could have been corrected on appeal, if er-
issued and the time of his arrest, although ror had been committed. That plea was not
he had been within the state during most interposed and for that reason the statute
of that time, and the officer having the war was not relied on. The principle declared in
rant knew at all times where the petitioner the two cases cited was followed in Re Ter-
was, and that the latter had requested the ry, 71 Kan, 362, 80 Pac. 586, and in Re
officer to arrest the petitioner in order that Wallace, 75 Kan. 432, 89 Pac. 687. The con-
he might be brought to trial. As a further clusion to be drawn from these decisions of
ground for his release, the petitioner shows this court is that a defense in a criminal
that more than two terms of court had gone prosecution must be presented to the court
by after the issue of the warrant before the on the trial of the case and if error is com-
term of court at which he pleaded guilty, mitted therein, the matter must be presented
and that he had not consented to such post to the Supreme Court on appeal and cannot
ponement. The respondent argues that the be raised in this court by habeas corpus.
petitioner was confined in the penitentiary No analogous case has been cited from
during most of the time after the issuance this state involving the statute of limitations,
of the warrant until the arrest, and that the but there are authorities to sustain the view
petitioner had not been out of the peniten- that the question is one that must be pre-
tiary for two years after the warrant was sented on the trial, and cannot be raised
issued and before the arrest was made. The in an application for a writ of habeas cor-
respondent also urges that the petitioner pus. In 12 R. C. L. 1206, it is said that:
cannot in a proceeding in habeas corpus "Accordingly, it has been held that the oper-
raise the question of the validity of the ation of a statute of limitations, barring a
judgment sentencing him to the penitentiary prosecution for a criminal offense, is not
on his plea of guilty to the charge of em- ground for the release of the accused on ha-
bezzlement contained in the information filed beas corpus.”
against him. If the last proposition urged by
the respondent is correct, it is unnecessary to

In 29 C. J. 44, this language is found:
examine any other proposition presented.

"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

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em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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