The Missouri v. Simonson

• Decision Date: 05 April 1902
• Docket Number: 12,346
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. S. SIMONSON AND E. E. SIMONSON, as Partners, etc

68 P. 653

64 Kan. 802

THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. S. SIMONSON AND E. E. SIMONSON, as Partners, etc

No. 12,346

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Error from Labette district court; A. H. SKIDMORE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Bills of Lading Conclusive Evidence--Act Unconstitutional. The provision of chapter 100 of the Laws of 1893 (Gen. Stat. 1901, §§ 5938-5947) which makes the specification of weights in bills of lading issued by railroad companies for hay, grain, etc., shipped over their lines, conclusive evidence of the correctness of such weights, is unconstitutional because denying to the companies due process of law, and because wrongfully depriving the courts of the judicial power to determine the weight and sufficiency of evidence.

2. RAILROADS--Act a Police Regulation--Attorney's Fee. The statute cited is a measure in exercise of the police power of the state, and does not assume to regulate commerce between the states. It is not, therefore, repugnant to the commerce clause of the federal constitution, and being a police regulation, the provision contained in it allowing an attorney's fee for the successful prosecution of a case within its terms is constitutional.

3. RAILROADS--Evidence Improperly Rejected . When the issue is whether a railroad company has delivered to the consignee all the goods it received from the consignor, it is error to reject evidence tending to show that the car in which the goods were shipped was sealed at the loading point and remained under seal until delivery of the goods to the consignee.

T. N. Sedgwick, for plaintiff in error.

Kimball & Osgood, for defendants in error.

DOSTER C. J. JOHNSTON, CUNNINGHAM, GREENE, POLLOCK, JJ., concurring. SMITH, ELLIS, JJ. DOSTER, C. J., dissenting.

OPINION

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. Judgment 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 carload 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 contract? 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. 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 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 shown 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 commissioners, 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, 134 U.S. 418, 10 S.Ct. 462, 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...