(dissenting) : I dissent from the judgment of the majority of the court, that the legislature may not give to the receipt contained in a bill of lading issued by a common carrier a conclusive effect as evidence of the weight of the thing receipted for, and am authorized to say that Justices Smith and Ellis likewise dissent. A proposition in denial of the legislative power in the case stated is incomprehensible to me. There is not a case in the books which, in prim ciple or in similarity of facts, affords ground for the majority opinion.
The instances in which the exercise of the power in question has been atttempted are not numerous. Nearly all of them were cases in which the legislature sought to give tax deeds a conclusive effect to establish the substantive rightfulness of tax-sale proceedings. This class of cases was not adverted to by the majority because of the obvious fact that in them the act from which it was sought to derive a conclusive effect was clearly that of an adversary party, and the effort was to find those in which the legislature had exceeded its authoritv by undertaking to found a pre*812sumption of conclusiveness upon the act of the party himself. This could not be done. There are no such cases ; that is, there are no cases in denial of the legislative right to found an estoppel upon' the contract act of a party, and that — and it alone — is the case in hand.
There are, however, decisions of a different character which my associates have mistakenly regarded as authority for their holding. For instance, in one of them, as cited in the majority opinion, it appeared that the legislature had declared a conclusive presumption of negligence from the killing of live stock. (L. R. & F. S. R. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55.) In another it declared a conclusive presumption of assent to a trespass from a failure to apply to the courts to enjoin it. (Meyer v. Berlandi, 39 Minn. 438, 40 N. W. 513, 1 L. R. A. 777, 12 Am. St. Rep. 663.) In another it declared an officially published schedule of railway rates conclusive evidence of their reasonableness. (Chicago &c. Railway Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 702, 33 L. Ed. 970.) In another it sought to make a minor’s declaration as to his age conclusive on his legal guardians. (Wantlan v. White, 19 Ind. 470.) It must be observed that, in the cases of the tax deeds and the schedule of railway rates and the minor’s enlistment oath, the legislature sought to bind interested parties by the adversary action of others, not by any action of their own ; and, in the cases of the imputed negligence and the imputed assent to the trespass, sought to bind them by accidental circumstances involving them in no manner of contractual relation. Manifestly, all such cases are to be governed by a principle different from that to be applied when it is sought to found the presumption on the conventional act or agreement of *813the party himself. I may well object to a law which from the hostile act of another seeks to-raise against me a conclusive presumption, and I may well object to a law which seeks to found an estoppel against me upon some undesigned and easily explicable circumstance ; but I can have no objection to a law which' merely seeks to give to my own deliberate business engagement a conclusive and irrevocable effect.
Judge Cooley notes the distinction between the two classes of cases in the very quotation made from him in the majority opinion. In discussing the subject of the power of the legislature over the rules of evidence he says:
“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.”
The legislature, therefore, in this case, has rested its enactment on the very exception noted by Judge Cooley — estoppel or like reasons.
The general doctrine upon which the exceptional - class of cases rests was stated in another form by this court in the case of County Seat of Linn Co., 15 Kan. 500. A question in that case was as to the conclusiveness as evidence of the number of votes cast at a county-seat election to prove the total number of electors in the county. The constitution, article 9, section 1, declares that “no county-seat shall be changed without the consent of a majority of the electors of the county.” The statute regulating county-seat elections enacted that the place receiving the majority of the votes cast at the election should become the county-*814seat. In view of the fact that the total of the votes cast at a county-seat election might not be equal to the whole number of electors of the county, the question as to what should be regarded as controlling evidence of the' total number arose. It was held that ' the act providing for the change of county-seats on a majority of the votes cast at the election declared a conclusive presumption as to the total electorate, and was a competent exercise of legislative power. The court said;
“While a legislature may not by the mere machinery of rules of evidence override and set at naught the restrictions of the constitution, or arbitrarily make conclusive evidence of a fact anything which in the nature of things has no connection with that fact, nor reasonably tends to prove it, yet it may make that which, according to the ordinary rules of human experience, reasonably tends to prove a fact, conclusive evidence of it.”
The case of Felix v. Wallace County, 62 Kan. 832, 62 Pac. 667, is more nearly in support of the majority decision than any other case to be found. There is, however, a radical difference between that case and this one. In that case the legislature undertook to validate a particular specified class of instruments, contract in form, but which were wholly without binding force or legal existence. It undertook by legislative fiat to create a debt altogether and entirely out of that which possessed the mere semblance of a contract, but which lacked all the elements of an obligation. The act under discussion in this case undertook no such legally impossible thing; it did not undertake to create a debt; it did not undertake to make a contract between the parties ; it only declared that the contract which they themselves had made should *815be conclusively presumed to express the obligation into which they had entered.
So far as decisions are concerned, the only one sufficiently close in point of fact to bear directly on the question is opposed to the theory of limitation on the legislative power in the special class of cases mentioned. It declares, I think, the correct principle, and is entirely applicable to the present controversy. It is Orient Insurance Company v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552. A statute of Missouri declared:
“In all suits brought upon policies of insurance against loss or damage by fire, hereafter issued or renewed, the defendant shall not be permitted to deny that the property insured was worth at the time of the issuance of the policy the full amount insured therein on said property; and in case of total loss of the property insured, the measure of damages shall be the amount for which the same was insured, etc.”
This provision, it will be observed, is the ordinary “valued-policy law” of this and other states. In the case cited, the objections to the statute were the same as those urged against the one now under consideration. The court stated them as follows :
“The specific objections which, it is claimed, bring the statute within the prohibition of the constitution, in the last analysis, may be reduced to the following : That the statute takes away a fundamental right and precludes a judicial inquiry of liability on policies of fire insurance by a conclusive presumption of fact.”
Replying to this, the court, among other things, said:
“It (the statute) makes no contract for the parties. In this it permits absolute freedom. It leaves them to fix the valuation of the property upon such prudence and inquiry as they choose. It only ascribes *816estoppel after this is done — estoppel, it must be observed, to the acts of the parties, and only to their acts in open and honest dealing. Its presumptions cannot be urged against fraud. . . . The cases cited by plaintiff in error which hold that the legislature may give the effect of prima facie proof to certain acts, but not conclusive proof, do not apply. They were not of contract nor gave effect to contracts. It is one thing to give effect to the convention of parties, entered into under the admonition of the law, and another thing to give to circumstances, maybe accidental, conclusive presumption and proof to establish and force a result against property or liberty.”
The above decision was rendered on error to the supreme court of Missouri, which had made a similar holding (Daggs v. Ins. Co., 136 Mo. 382, 38 S. W. 85, 58 Am. St. Rep. 638, 35 L. R. A. 227), and I think it well declares and elucidates the proposition that it is within the power of the legislature to give to the written declaration of a party, made as a basis for mutual engagement between himself and another, a conclusive and irrevocable character.
An objection to the statute is the generality of its terms. It does not state any exception, and it is said that fraud and mistake constitute necessary exceptions, which it is beyond the power of the legislature to exclude. This objection does not seem to me to possess weight. As to fraud, I think it may be said that statutes, however general their language, are never to be so construed or enforced as to deny relief to any one who, without fault on his part, has been entrapped into a seeming submission to their terms.
“When statutes are made, there are some things which are exempted and foreprized out of the provisions thereof, by the law of reason, though not expressly mentioned; thus, things for necessities’ sake, *817or to prevent a failure of justice, are excepted out of statutes. (Dwarris, rule 5, page 123.)”
To the same effect, and with citation to instances, is Endlich on Interpretation of Statutes, section 258. In Orient Insurance Co. v. Daggs, supra, it was expressly held that a conclusive presumption of fact, declared by statute, as in this case, could not be enforced as against a claim of fraud.
As to mistake, the legislature has done no more than the courts themselves have done in like cases without the aid of statutes — declared a rule of estoppel by deed. It is true, the courts have not elevated a mere receipt to the grade of an estoppel, but they have often held other like written engagements and declarations of the existence of facts to be such. This has been especially true when one of the contracting parties has done or paid something as a consideration or equivalent for the engagement or declaration. This case,, for aught we know, may be one falling within the rule, because here the shipper may have paid freight money on the basis of weight specified in the bill of lading. But admitting, as should be done, that the courts have not advanced the doctrine of estoppel to cover such class of cases, ought it to be said that the legislature is constitutionally powerless todo so — that is, powerless to make that conclusive evidence which the courts themselves hold to be presumptive evidence —powerless for the sole reason that some instances of meritorious defense on the ground of mistake will be shut out ?
If we were required to search for reasons for the enactment in question we would not have to go far. The reason is to be found in the character of railways as common carriers. The relations existing between the public and the carriers make the regulation of the *818latter in many particulars not merely advisable but highly important. It cannot be said, therefore, that a statute forbidding the carrier to dispute in court a written admission made by it as a basis of contract liability is an unwarranted exercise of legislative power. It must be borne in mind that the business of a common carrier is one which is “clothed with a public interest.” That was pithily remarked by Sir Mathew Hale nearly 400 years ago. It was quoted by the supreme court of the United States in Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, and made the basis of the decision in that case and in many subsequent ones decided by that and other courts.
Now, pretermitting the question as to the power of the legislature to found a conclusive presumption upon the admissions of private individuals, it cannot be doubted, in my judgment, that it possesses the power to declare that a receipt for goods, given by a transportation company in the conduct of its public business as a common carrier, shall be conclusively deemed -and held to express the measure of the liability incurred. In denying that the legislature possesses such power I think my associates have grievously erred.