State v. Hennessy Co.

• Decision Date: 01 October 1924
• Docket Number: 5519.
• Citation: 230 P. 64,71 Mont. 301
• Parties: STATE v. HENNESSY CO.
• Court: Montana Supreme Court

230 P. 64

71 Mont. 301

STATE v. HENNESSY CO.

No. 5519.

Supreme Court of Montana

October 1, 1924

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by the State against the Hennessy Company. Judgement 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 cause was tried upon an agreed statement of facts, and resulted in a judgment in favor of the state, from which the defendant company appealed.

Section 2441, Revised Codes, provides that "every * * * manufacturer doing a business of more than fifteen thousand dollars per year, must pay a license of ten dollars per quarter."

Two questions are presented: (1) In conducting its bakery business, is the company a manufacturer? (2) Is section 2441 a valid legislative enactment?

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.

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:

"The primary meaning of the word 'manufacture' is something made by hand, as distinguished from a natural growth; but as machinery has largely supplanted this primitive method, the word is now ordinarily used to denote an article upon the material of which labor has been expended to make the finished product. Ordinarily, the article so manufactured takes a different form, or at least subserves a different purpose from the original materials; and usually it is given a different name. Raw materials may be and often are subjected to successive processes of manufacture, 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 processes are fashioned into boxes, furniture, doors, window sashes, trimmings, and the 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 manufacture is formed, and to which reference is made in section 3019, is not necessarily the original raw material-in this case the tree or log-but the product of a prior manufacture; the finished product of one manufacture thus becoming the material of the next in rank."

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.) 475; Commonwealth v. Filberg Pav. & Constr. Co., 229 Pa. 231, 78 A. 104. Making bags from burlap: State v. Bemis Bros. Bag Co., 135 La. 397, 65 So. 554. House construction: In re Rutland Realty Co. (D. C.) 157 F. 296. Fruit canning: Nixa Canning Co. v. Lehmann-Higginson Grocery Co., 70 Kan. 664, 79 P. 141, 70 L. R. A. 653. Fish packing: In re Alaska American Fish Co. (D. C.) 162 F. 498. Ship building: Columbia Iron Works v. National Lead Co., 127 F. 99, 62 C. C. A. 99, 64 L. R. A. 645; 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 A.D. 62, 90 N.Y.S. 537. Mixed paints: People v. Roberts, 51 A.D. 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....