The following opinion was filed November 7, 1911:
Maeshall, J.{dissenting). I care not to go into the subject, as an original -proposition, of whether the court’s construction of the boom charter is correct. As I view the case-that is not material. Therefore what I may say on that point will be of a somewhat incidental character. If there were a. legal contract, in respect to the services respondent performed,, involving an agreement as to a disputable question regarding-whether it was permissible under the boom charter to make-some reasonable classifications of the logs and make the rates, for service within the charter limitations uniform between, the members of each class, then defendant, upon principle and precedent, is liable upon such contract as the trial court held.
That the boom charter is ambiguous, is conceded. That it *575is 'quite so, is demonstrated "by the conduct of proprietors and patrons, the expensive litigation in respect thereto, the great difficulty the painstaking circuit judge, — who tried the case and decided it with commendable care and clearness, — found in solving, the uncertainty, ending in the case being decided -without it, the decision being grounded on competency of the parties to recognize such difficulty and settle by treaty for current business, and, finally, by the trouble here in reading out of the charter the legislative idea, and failure to do that with unanimity. I fully agree with the learned trial court that, — in the face of such troublesome uncertainty as to whether the theory of a uniform rate per thousand feet of all logs handled, is the one written into the charter, as claimed by appellant, or the theory of classification according to essential differences, and a differential uniform rate accordingly, is so written, as charged by respondent, — it was within the competency of the parties to settle the matter by treaty. Principle supports that. Public policy to favor settlements supports it. Judicial condemnation of it, in my judgment, is subversive of both, is unjust to the parties here, afid pro-motive of litigation and uncertainty in similar situations.
True, in general, if the legislature fixes a rate for services which the owners of a public franchise may charge, such owners cannot lawfully contract for a greater rate. But, when there is uncertainty as to such rate, which the proprietors and patrons cannot solve, rendering necessary a choice of modes of conduct between treaty and litigation, the same sound public policy which condemns contracts in violation of a statutory rate which is certain, approves and gives high dignity to fair contractual adjustments of such differences. So far as the decision here overrules that of the trial judge, guided by this ^salutary doctrine, I most respectfully dissent.
I do not care to spend time demonstrating that there was good ground for the classification. That was very largely a question of fact. The trial judge should not be overruled *576on that on the basis of disputable construction, and from a viewpoint which, in the very nature of the case, does not enable one here to understand the situation as clearly as he did. He was not only personally familiar with the situation, but had other legitimate opportunities for understanding it, much superior to those enjoyed by a person who, without technical knowledge of the business, must take a view through a vista of mere printed records and some diagrams. Looking at the picture made thereby in the light of my own experience in such matters, which, I am warranted in taking the liberty of saying, has not been small, there was good ground for a classification for differential rates. In any event, I cannot see my way clear’ to condemn the decision of the trial court on that subject, in face of the undisputed evidence that many able business men, — men whose judgment was of an expert order in a high degree, men including those whose interests were on one side of the matter fully as strongly as those on the other,— by their conduct pronounced judgment years ago in the matter, to the effect that a sound basis for classification existed, and, with practical unanimity, adhered thereto down to the happening of the circumstances of this case. Here, we may well say, in passing, that the tacit agreement between patrons and proprietors, as to the meaning of the boom charter, should be taken as an efficient construction thereof by the familiar rule of practical construction.
If the situation were such that the plaintiff and defendant were competent to contract for the boomage and other services according to the rates complained of, as I think they were under the circumstances, and as the trial court held, then that they did so contract, and that the decision of the lower court in finding according thereto should be supported, seems quite clear.
A rate of eighty cents per thousand feet of the log scale for all the services, which includes much more than the boomage charges, was made. The contract as to the rate was entire, in *577terms. Tbe parties intended it to be entire in fact. That is evident from their conduct before, at the time of and after it was made. The proposal for rendering the services was at a meeting at which appellant was represented. No objection was then made. It requested the service, — the whole service, that of a public utility character and that which was not, without any separation, — knowing, or under the circumstances being bound to know, that plaintiff would expect compensation according to the proposal. Later a meeting was held at which plaintiff was represented and took part in the discussion respecting the rate for service. A determination was then made, — defendant presently protesting, — that the rates would be charged as they had been for many years before and customarily submitted to as legal and just. All the services as to defendant’s logs were covered by the single rate of eighty cents per thousand. Thereafter it was competent for defendant to have notified plaintiff that it would expect and only submit to boom charges at the average rate charged for all. It did not do so. Only a little of the season’s work had been done. In that situation it gave in its list of logs, as if submitting to the aforesaid proposal and determination. Láter the services were all performed, bills were rendered and payments made on account, without objection. In addition to the foregoing appellant gave defendant a written request to handle its logs upon the conditions therein stated, which were the same as had been theretofore proposed and, to its knowledge, determined upon. That the trial court read out of the undisputed facts not only an implied but a solemn written contract to pay the eighty-cent rate, seems to me to be jmost natural.
I have not taken time to point my statements as to legal principles by citation of authorities because none of such statements, in my judgment, are doubtful. The case does not deal with an intentional contractual violation of a fixed and certain legislative rate. There was no intention, constructive *578or otherwise, to violate the law. It was not a case where the respondent did, or could have known the law as this court has now determined it. So, authorities on that subject seem to me not to have any hearing. No authority was cited to the court, or by the court, or in my judgment exists, condemning settlements by treaty as to the meaning of a law of the character of that in question, good as to current or past transactions, or the making, as to such transactions, of a rate covering the statutory element and others.
After carefully examining the numerous citations in the court’s opinion, referred to as pointing the suggestion that the agreement here falls within the principle that courts will not lend their aid to enforce a contract made in violation of law, — candor compels me to say, I cannot discover that any of them fit this case. If the character of the citations appeared by a statement of each case, what I feel called upon to say in respect to them, would be appreciated. They all deal with contracts characterized by some criminal element, either malum in se or malum prohibitum, or with contracts in violation of prohibitory statutes, or contracts of an immoral, vicious, or corrupting character, and the rule goes no further as indicated, particularly, in one of the cases cited, and the general character of all of them. Bishop v. Palmer, 146 Mass. 469, 16 N. E. 299.
How can the rule as to contracts compounding crimes, or contracts for influencing public officers, or contracts expressly prohibited by law, or those of a vicious or immoral character, or even contracts intended, actually or constructively, to be in violation of law, — and this covers the whole field, — have anything to do with a contract made in good faith, according to a custom of years, in conformity with the judgment of business men in general as to the meaning of the law involved,— illustrated by their conduct with reference to it, — a contract, at the worst, in compromise of an uncertainty, avoiding expensive litigation, and without prejudice to future operations, *579or involving any element criminal or immoral or vicious,-— one involving only tbe right of a good-faith, dispute as to the proper charge for a public utility service, determinable only by agreement, or expensive and perplexing litigation, detrimental to private and public interests ?
As courts have often said in dealing with the rule in question, it is one of public policy, in the absence of a statute expressly voiding the contract. When the reason for the rule-ceases, the rule no longer applies. Further, when there is a public policy requiring support of a contract, which is equal to or paramount to that condemning it, or there is nothing in the' law indicating a legislative intent to render the contract, void, it should be held enforceable. That is well illustrated in Lester v. Howard, Bank, 33 Md. 558; Bowditch v. New Eng. Mut. L. Ins. Co. 141 Mass. 292, 4 N. E. 798; Deming v. State ex rel. Miller, 23 Ind. 416; Laun v. Pac. Mut. L. Ins. Co. 131 Wis. 555, 111 N. W. 660. The court in Lester v. Howard Bank, supra, as to some contracts though within prohibitory statutes, said:
“Cases may arise under contracts not inherently immoral, but prohibited by statute, in which the public interest will better be promoted by granting, rather than denying, the relief sought, since public policy lies at the base of the law in regard to illegal contracts, and the rule is not adopted for the benefit of parties but of the public.”
In Deming v. State, supra, the court, speaking on the same-subject, said:
“The rule is properly applied only where the reason upon which it is founded exists. The law ceases with the reason thereof. It is a grave error to regard it as a merely arbitrary-rule, applicable to all contracts which are prohibited by statute.”
-Thus, it will' be seen, that if the contract in question were-prohibited, — instead of allowed and favored in the law, — at the worst, one in settlement, for the time being, of a good-*580faith business controversy, — still, the rule should not be applied to this case. As before stated, the public policy which favors settlements as to such controversies is, under the circumstances, paramount to any public demand for judicially condemning such openly had good-faith transactions as occurred here.
I should say, in closing, it is conceded in the opinion, as I understand, that had appellant paid respondent’s demand, voluntarily, it could not have recovered back the money. Cases to that effect are cited, particularly Ill. G. Co. v. Chicago T. Co. 234 Ill. 535, 85 N. E. 200, and an assertion made that they are distinguishable from this. I cannot appreciate that. If distinguishable at all, it is in favor of the judgment below. It seems to me payment was made, to all intents and purposes. How can the court legitimately say respondent’s application of payments received on the account in general, shall be changed? , No legal principle requires it. Equity does not demand it. The eighty-cent rate was inseparable, as respondent supposed, to appellant’s knowledge. Bills were rendered, — at monthly intervals as the work proceeded, — all at the supposed rate. Appellant paid, generally, and in the aggregate, some seventy-five per cent, of the total. It made no application or communication to lead respondent to suppose there was any difficulty impending. Some of the communications seem to have been intended to direct a general application. All payments were so applied, discharging the indebtedness to respondent in the order of its having been incurred, thus covering the greater part of the matters which, according to the judgment, are now to be gone over again. The learned trial court thus found the facts, or they so clearly appear by the evidence, satisfying fully, .it seems, the rule applied in the Illinois and other cases.
Now in such a transaction as this, one involving, at the best, only a technical violation of a mere legislative public utility rate, and that discovered by ultimate construction, the whole *581contract, including the public utility element, fully executed on the part of respondent and largely and in general executed hy appellant, before notice of any insistent objection on the part of appellant; should the court not only apply the rule in question, but so arbitrarily as to change the application of voluntary payments made as to save, or rather create or revive, a cause of action in favor of appellant to avoid its agreement ? It does not seem so, but rather a bad, an inequitable and unnecessary, application of a rule which is very beneficial in its proper place, an application out of harmony with any precedent I am able to find and with the principle upon which the rule is founded.
In my judgment the findings of fact made by the trial court are supported by the evidence. The law was properly applied thereto and the judgment should be affirmed.