(dissenting).
T deprecate as much as my associates do the fact that appellee, a trusted employee of appellant and well represented by counsel, has welshed on his agreement, deliberately and thoughtfully entered into on advice of counsel, and in the name of the law is profiting thereby. But I cannot agree that appellant may in law be allowed to have the service performed without paying the statutory rate it agreed, and the law compelled it to pay. I think it clear that the district judge was right in the view he took, that the authorities in Texas leave in no doubt that rates prescribed by the Texas Railroad Commission are the only proper rates which may be charged and that a cause of action arises out of the statute in favor of any person who performs the services for which the rates are prescribed. The Railroad Commission’s general order of 1931, therefore, prescribing common carrier rates as minimum rates was applicable to Steele’s permit and was valid and enforceable. The supplemental contract for a less rate which was never approved by the Commission was not a valid contract of carriage, and though the parties acted, and payments were made, under it, this constitutes no defense to an action for the statutory rate. Herrin Transp. Co. v. Marmion, Tex.Civ. App. 113 S.W.2d 291; Pittsburgh v. Fink, 250 U.S. 577, 40 S.Ct 27, 63 L.Ed. 1151. On the authority of Texas cases which apply the same doctrine to insurance rates that they do to carrier rates, we held in Bowen Motor Coaches v. New York Casualty Co., 5 Cir., 139 F.2d 332, that no contract could change the statutory rates and that they must be collected. To the suggestion made there that because the parties were in pari delicto in making an unlawful *376contract, plaintiff could not recover, we said, "There was here no corrupt agreement to violate the law. No crime was to be committed.” In Battles v. Braniff, 5 Cir., 146 F.2d 336, we held that no matter how illegal an agreement, to pay a less premium than the statute, was, or how illegally it was entered into, it would be ineffective to prevent recovery in a suit on the policy for the premiums the law fixed as due.
I cannot, therefore, agree with the view of my associates, that the appellant should be permitted to have its freight hauled for a less charge than others were under the law compelled to pay, and appellee, because in pari delicto with appellant, may not recover, In the first place, I do not agree that the evidence supports the view the majority opinion expresses that the parties entered into their .arrangements with the deliberate purpose of defeating the law. Their letters and their conduct, I think, show beyond question that they thought they were not evading but complying with the law. From the letters of Christopher and the attorneys for General Mills no other view may be gathered than that they thought that the services to be performed by Steele would not be similar services to those performed by common carriers, and the Commission’s 1931 general order, making common carrier rates minimum for contract carriers performing similar services did not therefore apply. I am of the opinion, therefore, that when the agreement was made, they did not intend to commit a crime, that is, to violate the law and subject themselves to a penalty of $200 a day each. If this is the correct view of the facts, and I think it is, then clearly the pari delicto doctrine does not apply. Bowen v. New York Casualty Co., supra.
But if I could agree that there was a deliberate intent to defraud the statute, I still could not agree with the majority, whether plaintiff’s suit is to be regarded as on the written contract which was exhibited to and filed with the Commission, or on the right arising out of the statute to recover the legal charges for the services rendered, for the right to recover the legal charges and no other rests on an overriding public policy. This policy is so imperative that it may not be defeated by the conduct of the parties in entering into legal and evasive arrangements which it is the very purpose of the policy to strike down. It remains to consider only whether the suit was on the contract signed by the parties and exhibited to the Commission as a basis for the permit, and, therefore, the defense of limitation is unavailable, or was on the statutory obligation arising from the performance of the service, and, therefore, limitation has barred a part of the recovery. It seems clear to me that plaintiff’s suit is on the contract, which the parties made and exhibited to the Commission, and in which they agreed to pay the legal rates, and that the case is ruled by Central Freight Lines v. C & S Motor Freight Lines, Tex.Civ.App., 125 S.W.2d 615. There the court held ineffective a private agreement which, as here, was not submitted to the Commission. I think the judgment should be affirmed, and I respectfully dissent from its reversal.