The opinion of the court was delivered by
Doster, C. J.:This was an action against the Missouri, Kansas & Texas Railway Company to recover for a shortage of hay shipped over its line. *803Judgment went against it, to reverse which, it has prosecuted error to this court.
The action was brought under chapter 100 of the Laws of 1893 (Gen. Stat. 1901, §§5938-5947). The statute requires railroad companies to provide track scales for weighing car-load lots of hay, grain, etc., and to issue duplicate bills of lading for the shipment. It makes the companies responsible for the full amount of such shipment, less one-fourth of one per cent, of its weight, and it concludes its sixth section (Gen. Stat. 1901, § 5943) with the following provisions :
“And in any action hereafter brought against any railway company, for or on account of any failure or neglect to deliver any such grain, seed or hay to the consignee, or his heirs or assigns, either duplicate of such bill of lading shall be conclusive proof of the amount of such grain, seed or hay so received by such railway company.”
In defense to the action, the railway company offered a deposition which tended to prove that the full amount of hay receipted for in the bills of lading had not been in fact received by it. This deposition was rejected, and its rejection constitutes the principal claim of error. A majority of the court are of the opinion that it was wrongly rejected so far as the question now to be noticed is concerned, and we are all of the opinion that it was wrongly rejected so far as another question presently to be noticed is concerned. The argument against its admission is based on the statutory provision above quoted which makes the bill of lading, in the cases stated, conclusive evidence of the amount received.
Is it in the power of the legislature thus to create a conclusive presumption in a matter of private con*804tract? We are constrained to believe that it is not; Every suitor is entitled to his day in court and to have his case determined on such evidence as legal policy will allow. It is doubtless competent for the legislature to prescribe many of the rules of evidence. The subjects of the competency of witnesses, the order of trial, the burden of proof, the effect of public records, the certification of copies of official documents, the prima facie character of certain evidence, and other like matters which pertain to the practice rather than the right of proving causes are lawfully within the sphere of legislative regulation ; but it is not within the power of the legislature to exclude from the courts that which proves the truth of a case, nor, on the other hand, to compel them to receive that which is false in character.
A bill of lading contains two parts — one a receipt for the goods, the other a contract for their carriage. As to the latter, it, as other written engagements, may not be contradicted by parol, but as to the former it stands on the same footing as other kinds of receipts —it may be shown to be incorrect. It may be shown to have been written by mistake or induced by fraud. (Hutch. Carr. [2d ed.], §122.) From time immemorial the mutual mistake of both parties to an instrument or the fraud of one of them have been admitted as valid defenses to actions. The allowance of such defense is a part of the substantive justice of all actions on contracts. It inheres in the very right of such cases, and it cannot be denied by the legislature under the guise of a rule of evidence.
In Cooley on Constitutional Limitations, 5th ed., 453, it is said :
“But there are fixed bounds to the power of the legislature over this subject which cannot be exceeded. *805As 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 pretence 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. In judicial investigations the law of the land requires an opportunity for a trial; and there can be no trial if only one party is suffered to produce his proofs. The most formal conveyance may be a fraud or a forgery; public officers may connive with rogues to rob the citizen of his property; witnesses may testify or officers certify falsely, and records may be collusively manufactured for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law.”
In Arkansas a statute was enacted which, according to a certain theory of construction, imposed upon railroad companies an absolute liability to pay for stock killed by their trains, and withdrew from the jury all considerations of negligence of the owner of the stock or due care on the part of the company. The court held that such theory of construction could not be applied, notwithstanding the language of the act lent some countenance to it, for the reason following:
“It is not within the province of the legislature to divest rights by prescribing to the courts what should be conclusive evidence. . . . ‘The legislature may declare what shall be received as evidence, but it cannot make that conclusively true which may be *806shown to be false; at all events, if such facts are necessary to show that the substantial rights of property are to be affected,- and he is made to lose his property.’ ” (L. R. & F. S. R. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55.)
In Minnesota a statute was enacted which made the fact that a person who performed labor or furnished material in the erection of a house on another’s land conclusive evidence that the labor was performed or the material furnished with the owner’s consent, unless the latter had, by suit in the courts, enjoined the act as a trespass. Of this act the court said :
“A man cannot be thus deprived of his property without his consent. The legislature may doubtless establish rules of evidence ; but to enact a law making evidence conclusive which is not so necessarily in and of itself, and thus preclude a party from showing the truth, would be nothing short of confiscation of property and a destruction of vested rights without due process of law.” (Meyer v. Berlandi, 39 Minn. 438, 40 N. W. 513, 1 L. R. A. 777, 12 Am. St. Rep. 663.)
An act of congress in 1862, in relation to enlistments in the military service of the United States, provided that “the oath of enlistment taken by the recruit shall be conclusive as to his age.” In an action of habeas corpus brought by the parent or guardian of a minor recruit, it was held that the statute was not binding on the petitioner as establishing a conclusive presumption of age, for the reason that the declaration as to age was a “judicial act,” a matter for judicial inquiry, from entering on which the courts could not be precluded. (Wantlan v. White, 19 Ind. 470.)
The legislature of Minnesota enacted a statute providing that the schedule of rates for the transportation of property over the railroads of that state, made and published by the board of railroad and warehouse *807commissioners, should be final and conclusive as to what were equal and reasonable charges. The supreme court of the United States held the act void. (Chicago &c. Railway. Co. v. Minnesota, 184 U. S. 418, 10 Sup. Ct. 702, 33 L. Ed. 970.)
A statute of this state assuming to authorize counties to pay bounties for the killing of gophers was held unconstitutional for the reason that the subject had not been expressed in its title. Later, a statute was enacted, probably intended to be curative of the authority exercised under' the former one, but which was so worded as to validate the mere ministerial act of issuing the warrants in payment of the bounty only, and not the original authority to issue them. The warrants so issued were declared “hereby legalized, and hereby made county charges and payable out of the general fund of the county.” This so-called curative act was held to be in the nature of a legislative judgment against the county in favor of the holders of the warrants, an endeavor to preclude investigation into the rightfulness of their issuance, and, therefore, an usurpation of the judicial function to- try and determine causes, and consequently void. (Felix v. Wallace County, 62 Kan. 832, 62 Pac. 667.)
The theory on which all these cases proceed is that an act of the legislature which undertakes to make a particular fact or matter in evidence involving the substantive right of the case conclusive upon the parties, and which precludes inquiry into the meritorious issues of the controversy, is an invasion of the judicial province and a denial of due process of law. The legislature may regulate the form and the manner of use of the instruments of evidence — the media of proof — but it cannot preclude a party wholly from making his proof. A statute which declares what *808shall be taken as conclusive evidence of a fact is one which, of course, precludes investigation into the fact, and itself determines the matter in advance of all judicial inquiry. If such statutes can be upheld there is théh little use for courts, and small room indeed for the exercise of their functions.
It will be observed that the statute in question by it terms shuts out all proof as to the occurrence of fraud or mistake in the making of the bill of lading. Admitting, however, that of necessity there must be read into the act an exception against fraud, why should there not be an exception in favor of mistake as well, for if the bill of lading was executed by the mutual mistake of both parties, it does not evidence the contract of either one? In order to constitute a contract, the minds of the parties thereto must have met. If by reason of mutual mistake no such concurrence has been had, it follows that no contract has been entered into, notwithstanding the fact that written evidence of one may have been executed. Therefore, to give effect to the act in question, we must say that the legislature has the power to force contracts upon parties by making indisputable that which in reality is only evidence of their contract. It is hard to see where this would end were its entrance admitted. Of course, the contracts of parties are binding on them. It does not require an act of the legislature to make them so. It is the function of the court and not of the legislature to determine when contracts exist and what they are. To shut out proof that what purports to be a contract is not really such, by reason of mutual mistake of the parties thereto, is in effect to require the performance of an act which was never agreed on between them; or, in other words, it is to *809allow the legislature to make for parties a contract which they never made for themselves.
It is claimed that this sort of legislation is defensible and proper under the law of estoppel, and that, where the parties have entered-into the seeming-contract, they may be prohibited by the terms of their act from denying its effect as written. The trouble, however, lies in the application of the rule of estoppel and in the assumption that the bill of lading speaks the contract of 4he parties. Whether it does is the very question at issue, the very question on which the plaintiff in error sought to offer evidence. If the writing was not the expression of the contract of the parties to it by reason of mutual mistake or fraud, then how could either be estopped by it? Estoppel is only predicated of contracts which parties have,really made. We do not intend to rule that there are no classes of acts or contracts that may not be made conclusive upon the parties thereto by the legislature, but we do intend to hold that it is incompetent for the legislature to make that conclusive of the fact and character of a contract which does not in reality express a contract because of fraud or mistake that may inhere therein.
There was error, also, for another reason, in rejecting the deposition. The evidence offered was to the effect that the cars in which the hay was shipped were sealed at the loading point, and that the seals were found unbroken at the point of destination. Had this evidence been admitted, it would have tended to prove that whatever hay the company received it safely transported, and, inasmuch as the plaintiff claimed that the company received the amount receipted for in the bills of lading, the evidence tended to prove that the same amount was transported and *810delivered. For this reason the deposition should have been admitted, and, therefore, its rejection was error.
The claim is made that the statute heretofore discussed is in violation of the interstate-commerce clause of the federal constitution. This claim is untenable. It does not regulate rates, levy taxes or impose restrictions of any kind on commerce between the states. It is a police regulation designed to promote accuracy in dealings between shippers and carriers, by compelling the latter to furnish facilities for ascertaining the weight of products offered for shipment.
A statute in Texas imposed a penalty on railroad companies for refusing to deliver freight on demand of the consignee and tender of the charges. It was contended that, as to shipments originating in other states, the act was a regulation of interstate commerce and could not have effect. The contention was overruled. (G. C. & S. F. Rly. Co. v. Dwyer, 75 Tex. 572, 12 S. W. 1001, 7 L. R. A. 478, 16 Am. St. Rep. 926.)
A statute of Iowa required railroad companies to post their schedules of transportation rates in their station-houses, and affixed penalties to the non-performance of the duty. The act, although applying to interstate as well as local rates, was held not to be a regulation of interstate commerce. (Railroad Co. v. Fuller, 17 Wall. 560, 21 L. Ed. 710.) The principle on which these cases rest, that such enactments were police regulations, likewise underlies the statute in question.
The statute allows an attorney’s fee for the successful prosecution of a case under its provisions. The reason for this is the negligence of- the carrier in failing safely to transport and deliver the goods committed to its charge. The case in that respect comes fully within the principle of Railroad Co. v. Matthews, *81158 Kan. 447, 49 Pac. 602, affirmed by the supreme court of the United States in 174 U. S. 96, 19 Sup. Ct. 609, 43 L. Ed. 909. See, also, Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335.
Por error in rejecting the deposition for the reasons above given, the judgment of the court below is reversed and a new trial is ordered.
Johnston, Cunningham, Gkeene, Pollock, JJ., concurring. Smith, Ellis, JJ., dissenting from the first paragraph of the syllabus and corresponding portion of the opinion.