dissenting:
I do not concur in the conclusion in the foregoing opinion that the legislature cannot, under the circumstances provided by the statute here in question, make the weights of the shipper conclusive under the facts shown on this hearing. I agree, of course, with the statement in the opinion as to the general power of the legislature to prescribe rules of evidence and methods of proof and that such power must be exercised within constitutional limitations. What those constitutional limitations are, as can be readily seen on examination of the authorities, it is somewhat difficult precisely to define, (io R. C. L. 863.) Judge Cooley, perhaps, has laid down the general rule in as clear a way as anyone, and his rule is generally followed. He says on this subject: “But there are fixed bounds to the power of the legislature over this subject which cannot be exceeded. As to what shall be evidence and which party shall assume the burden of proof in civil cases its authority is practically unrestricted so long as its regulations are impartial and uniform, but it has no power to establish rules which, under pretense of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting his rights. Except in those cases which fall within the familiar-doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it.” (Cooley’s Const. Lim.— 7th ed.—526.) Thus, under this doctrine of estoppel it has been held that the fixing of the amount of weight or value of articles may depend upon the elements of estoppel, and that statutes may constitutionally create conclusive rules of law limiting the rights of the parties to prove such amounts incorrect. For example, in the case referred to in the foregoing opinion, (Orient Ins. Co. v. Daggs, 172 U. S. 557,) it was held that a statute compelling fire insurance companies, in case of total loss, to pay the amount for which the property was insured, less depreciation between the time of issuing the policy and time of loss, was constitutional, as not depriving "the insurer of property without due process of law, because it left the parties to fix the valuation of the property as they chose, merely making their action conclusive after they had voluntarily entered into it. (6 R. C. L. 466.) “Presumptions of law are generally divided into two classes: conclusive and disputable. 'Conclusive, or absolute, presumptions of law are rules determining the quantity of evidence requisite for the support of any averment which is not permitted to be overcome by any proof that the fact is otherwise.’ * * * Instruments under seal were once regarded as conclusive evidence of a consideration unless the instrument was impeached for fraud. Receipts under seal were conclusively presumed to import the payment of money. But few of the numerous presumptions formerly called conclusive can now be so classified. At common law, infants under seven are presumed to be incapable of committing crime; a boy under fourteen is conclusively presumed incapable of committing a rape; a female of tender age is conclusively presumed incapable of consenting to sexual intercourse. This age, not having been precisely determined in the common law, was fixed by statute in the reign of Queen Elizabeth at ten years.” (Jones on Evidence,— 2d ed.—sec. 11, p. 12.) It has been held that the legislature has no power to make'tax deeds conclusive evidence of any jurisdictional fact or fact vital to the exercise of the power of taxation or sale, divesting the title of property for the non-payment of taxes. At the same time, power is confirmed in the legislature to make tax deeds conclusive evidence of compliance with all the requirements of the law which are merely directory and which pertain to the regulation of the manner of exercising the taxing power, and which requirements it might, in the exercise of its discretion, dispense with entirely, (io R. C. L. 867.) And it is also conclusively presumed, on grounds of public policy, that common carriers have been negligent if goods entrusted to their care have been lost or damaged. (Jones on Evidence,—2d ed.—sec. 15.) So, too, the great weight of authority holds that a conclusive presumption of negligence may be established, resulting from the killing of animals by railroad companies, where the statute requires such companies to erect a fence but where none has been erected. (6 R. C. L. 463.) The rule is generally recognized that when a matter has been adjudicated and finally determined by a competent tribunal the determination is conclusive as between the parties and their privies. Whether the judgment is, in fact, right or erroneous, just or unjust, it can not be collaterally attacked. In such matters the maxim controls, Interest reipublicce ut sit finis litium. (Jones on Evidence,—2d ed.—sec. 585.)
Realizing the evils arising from small losses in the shipment and storing of grain in bulk, the constitutional convention of 1870 inserted article 13 in the constitution for the purpose of guarding against and remedying such evils. Section 4 of that article provides: “All railroad companies and other common carriers on railroads shall weigh or measure grain at points where it is shipped, and receipt for the full amount, and shall be responsible for the delivery of such amount to the owner or consignee thereof, at the place of destination.” The other sections of that article provide, among other things, that it is the duty of the General Assembly to pass all necessary laws to prevent the loss of grain in shipment and adopt remedies for such loss. The statute here in question was clearly passed under the authority granted by this article of the constitution. It is the duty of railroad companies, under said section 4, to weigh or measure all grain at the point of shipment and be responsible for the delivery of the full amount at the place of destination. It seems to me that the holding of the majority opinion will result in making it difficult, if not impossible, to enforce practically these provisions of the constitution. The authorities directly in point on this subject are not numerous. They have practically all been cited in the foregoing opinion. In Missouri, Kansas and Texas Railway Co. v. Simonson, 64 Kan. 802, it was held by a divided court of four to three, that a statute was unconstitutional which made the specifications of weight in bills of lading issued by a railroad company for goods shipped over its lines conclusive evidence of the correctness of such weights. The Supreme Court of Mississippi, in Yazoo and Mississippi Valley Railroad Co. v. Bent, 94 Miss. 681, held that such a statute was constitutional, arguing, that making the acknowledgment of the receipt of property for transportation contained in the bill of lading conclusive evidence of the fact so stated was constitutional under the common law doctrine of estoppel, citing and relying upon, as authority in so holding, Orient Ins. Co. v. Daggs, supra.
The legislature may not compel a contract between parties, but may it not declare that a contract which the parties themselves have made should conclusively be presumed to express the obligation which they have entered into ? Does this not merely enlarge the rules of contract by creating an estoppel in compelling the common carrier to be bound by the sworn statement of the consignor or consignee as to the weight of the grain shipped or delivered if it does not choose to weigh the grain itself ? The constitution and this statute say to the common carrier: You may weigh the grain if you desire; if you do not, you are bound by the provisions of this statute and must take the sworn statement of the consignor or consignee, or his agent, as being correct as to the weight of the grain. Of course, this provision of the statute cannot be held a conclusive presumption as to the weight of the grain and enforced as against a claim for fraud. (See Orient Ins. Co. v. Daggs, supra.) The late Justice Brewer, of the Federal Supreme Court,"said: “We do not mean that it ■ [the legislature] may, by the mere machinery of rules of evidence, override or set at naught the restrictions of the constitution, or that it could arbitrarily make conclusive evidence of the number of voters any list or roll which in the nature of things has no connection with the fact and does not reasonably tend;to prove it; but when it adopts as conclusive evidence of the fact anything which, according to the ordinary rules of human experience, reasonably tends to prove the fact, the courts are not at liberty to ignore or go behind such evidence.” In re County Seat of Linn County, 15 Kan. 500.
Appellant had the opportunity of weighing the grain here in question when it was shipped. Did it not, in effect, agree, under this statute, that if it failed to do so it would be bound by the sworn statements of the consignor and its agent? The majority opinion says that the reasoning o'f this court in holding the Workmen’s Compensation act constitutional in Deibeikis v. Link-Belt Co. 261 Ill. 454, and Crooks v. Tazewell Coal Co. 263 id. 343, is in no way similar to the question here involved. I fully concur that those decisions are not conclusive, but I think the constitutionality of this statute on the question here involved could be upheld by reasoning analogous to that which was adopted in upholding the constitutionality of the Workmen’s Compensation act. It is said in this opinion that that act is based upon a voluntary election and in no way upon- a penalty. A penalty is enforced by the Workmen’s Compensation act if the employer fails to adopt the act. That act, in terms, says that if the employer fails to adopt the act, he or it waives the right thereafter to urge as a defense assumed risk or contributory negligence or the negligence of a fellow-servant as against the injured employee. The depriving of these defenses is placed upon the employer as a penalty for not electing to come under the act, and under the decisions of this court the law, as to such penalties, has been held constitutional.
As I understand the decision in the case at bar, it holds this statute unconstitutional as depriving appellant of property without due process of law. In Holden v. Hardy, 169 U. S. 366, the court, in discussing the question of due process of law, says: “This court has never attempted to define with precision the words ‘due process of law.’ * * * It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice and an opportunity of being heard in his defense.” “These principles were extended to the right to acquire property and to enter into contracts with respect to property, but it was said ‘this right of contract, however, is itself subject to certain limitations which the State may lawfully impose in the exercise of its police powers.’ ” (Orient Ins. Co. v. Daggs, supra, on p. 563.) In Holden v. Hardy, supra, an act of the State of Utah as to the employment of workingmen in all underground mines and workings, and in smelters and all other institutions for the' reduction and refining of ores or metals, and limiting, with certain exceptions, the working day to eight hours, was held constitutional. It was said that that statute was undoubtedly a limitation on the right of contract of the employer and of the employed, enforced by a criminal prosecution and penalty on the former and on his agents and managers, but that it was a valid exercise of the police powers of the State. So, too, it was held by similar reasoning in St. John v. New York, 201 U. S. 633, that the due process of law provision of the Federal constitution was not violated by a provision of the New York statute which prohibited the sale of adulterated milk, even though the seller of the milk offered to prove that it was delivered to him at his creamery or factory in exactly the same condition as when taken from the cows, the argument being that to forbid the seller of the milk to malee this proof was contrary to the constitutional rule of due process of law, the opinion saying (p. 637) : “Not only the final purpose of the law must be considered, but the means of its administration,—the ways it may be defeated. Legislation, to be practical and efficient, must regard this special purpose as well as the ultimate purpose. * * * As the standard established can be proved in the hands of a producing vendor, he is exempt from the penalty; as it cannot certainly be proved in the hands of other vendors so as to prevent evasions of the law, such vendors are not exempt.”
It was not necessary in this case for appellant to take appellee’s weights. It could weigh the grain itself if it complied with the provisions of the constitution in the statute touching this question. But the law presents an alternative to appellant. It says, Weigh the grain, or take as final the shipper’s and consignee’s sworn statements of weight. In order to make this law enforceable there must be some penalty attached to it. What difference is there, as to the penalty in question, between considering these affidavits of the shipper and consignee as conclusive proof, and a conclusive presumption of negligence arising from the killing of live stock by a railroad company if it fails to fence its railroad as required by statute? (Little Rock and Ft. Smith Railroad Co. v. Payne, 33 Ark. 816.) I cannot see any distinction, either in principle or under the authorities. It seems to me that there is ample justification, both in reason and in authority, to hold this statute constitutional in the respects here considered.
Mr. Justice; Farmer, also dissenting.