dissenting.
This is a proceeding brought in 1973 to establish paternity in a third person in a case where it was stipulated that the wife at the time of conception of the child in 1967 was married to and living with her husband and her husband was not impotent.
The applicable statutes regarding the conclusive presumption of legitimacy and paternity in effect in 1967 were:
OES 41.350:
“The following presumptions, and no others, are conclusive:
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“(6) The issue of a wife cohabiting with her husband, who is not impotent, is legitimate.
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OES 109.070:
“The paternity of a person may be established as follows:
• “(1) The child of a wife cohabiting with her hus*341band, who is no.t impotent, shall be conclusively presumed to be the child of her husband, whether or not the marriage of the husband and wife may be void.
(Í -X: -t'? # # 99
These statutes were amended in 1971 to add as a qualification in addition to impotence, “or sterile at the time of conception of the child.”
The trial court by order ruled, in effect, that if the elements of marriage, potency and cohabitation coexist at the time of conception, no other evidence could be admitted to rebut the conclusive presumption and plaintiff appealed this order.
Neither party suggested that the law in effect in 1967 was not applicable to this case, but the majority opinion asserts sua sponte that the 1971 amendment which added the “[who was not] * * * sterile at the time of conception of the child” has retroactive effect and that the trial court was in error in restricting the admission of evidence.
A conclusive presumption is a rule of substantive law rather than a rule of evidence. 31A C3S 197, Evidence § 115.
“* * * Wherever from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that, where the first fact is shown to exist, the second fact’s existence is wholly 'immaterial for the purpose of the proponent’s case; and to provide this is to make a rule of substantive law, and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence. * * *” (Footnote omitted.) (Emphasis supplied.) 9. Wigmore, Evidence 292, §.2492 (3d ed 1940).
*342See also, McCormick, Evidence 804, § 342 (hornbook series, 2d ed 1972).
“The weight of present-day opinion is that£* * * conclusive presumptions do not establish a rule of evidence, but declare a rule of substantive law.’ * * United States v. Davio, 136 F Supp 423, 429 (ED Mich 1955).
There is a presumption that statutes promulgating substantive law are to be construed and applied prospectively unless a contrary intent is manifested in clear and unambiguous terms. Shwab v. Doyle, 258 US 529, 42 S Ct 391, 66 L Ed 747, 26 ALR 1454 (1922); Hiatt v. Hilliard, 180 F2d 453 (5th Cir 1950); United States v. Davio, supra.
When OBS 109.070 (1) was enacted in 1957 (Oregon Laws 1957, ch 411, § 2), it was, at least by its terms, made retroactive. It read:
“* * * [OBS 109.070] shall apply to all persons irrespective of whether they [were] bora before or after [August 20, 1957] # * *.”
When OBS 109.070 (1) and 41.350 (6) were amended in 1971 to add the words “or sterile at the time of conception of the child,” no attempt was made by the legislature to make the statutes retroactive. There being no “contrary intent manifested in clear and unambiguous terms,” I have to conclude that the new enactment was not intended to have retroactive effect.
The remaining question is whether the court was in error in not allowing evidence to dispute the conclusive presumption. Provision for conclusive presumptions in this field of human relations is one of legislative policy. As one writer said:
* [They rest] on grounds of expediency í¿4i* *343or policy so compelling in character as to override the generally fundamental requirement of law that fact questions must be resolved according to proof; and evidence of certain kinds of facts is excluded because its admission would injure some other cause more than it would help the cause of truth, and because avoidance of that injury is considered of more consequence than possible harm to the cause of truth.” (Footnotes omitted.) 31A CJS 197, Evidence § 115.
The legislative policy in 1967, if the parents were married, living together, and the husband not impotent at the time of conception, was that the protection of the family and the protection of a child born to the family was so important that no evidence contradicting the parentage could be received. Case law in Oregon is consistent with this policy. Burke v. Burke, 216 Or 691, 340 P2d 948 (1959); Westfall v. Westfall, 100 Or 224, 197 P 271, 13 ALR 1428 (1921). Since the parties stipulated to the facts which bring the case within the terms of the statute in effect in 1967,1 would affirm the trial court.