On Rehearing.
FOSTER, Justice.Our attention is called to the fact that there is an exclusion from the requirements of 49 U.S.C.A. § 309, and the penalties of section 322, so that they do not apply to casual, occasional or reciprocal transportation of property by motor vehicles in interstate commerce. This is a part of the Motor Carrier Act. 49 U.S.C.A. § 303(b) (9). Whereas section 309, to which we referred supra, applies to persons engaged in the business of a contract carrier. It would appear therefore that section 303(b) (9) provides an exception to section 309. It is rather an exclusion than an -exception. Section 309 -only applies to one engaged in the business of a contract carrier. Section 303(b) (9) provides an exclusion from the -up-eration of that chapter of casual, occasional or reciprocal carriers by motor vehicles, not so engaged as a regular occupation or business. So that the latter is not, precisely speaking, an exception from section 309, because it rather describes an operation not covered by section 309. But it is referred to as an exception in State of California v. Thompson, 313 U.S. 109, 61 S.Ct. 930, 85 L.Ed. 1219.
We go to pleas 8, 21 and 25 to see if they are sufficient measured by a principle of pleading that, “If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there is an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party.” McBride v. Baggett Transp. Co., 250 Ala. 488, 35 So.2d 101, 103; Clinton Mining Co. v. Bradford, 192 Ala. 576, 69 So. 4. This principle also applies to pleading exceptions from the -operation of a contract. Life & Casualty Ins. Co. v. Garrett, 250 Ala. 521, 35 So.2d 109.
If section 303(b) (9) is an exception to section 309, it should be pleaded by plaintiff by replication if the pleas are free from the demurrer interposed to them.
Flea 8 alleges that plaintiff was “engaged in the operation as a carrier in interstate commerce.”
Plea 21 alleges that “plaintiff was engaged in hauling said lawnmowers in interstate commerce as a contract carrier.”
Plea 25 alleges th-at “p-laintiff was engaged in hauling or carrying said lawnmowers in interstate commerce.”
If those p-leas do not sufficiently allege that in carrying the lawnmowers plaintiff was engaged in the business of hauling as a contract carrier, the theory was not made the basis of a ground of demurrer so far as we can find, and no such ground was pointed out in brief on original submission. In fact the contention was made for the first time by supplemental brief on this application for rehearing. To engage in business has been defined by-this Court as “that which occupies the time, attention, and labor of men, for the purpose of a livelihood or profit.” One act may *368be sufficient if the circumstances show a purpose to continue the business. Abel v. State, 90 Ala. 631, 8 So. 760. That definition we think is not local in its application. The language of the plea, supra, may not strictly speaking be a positive allegation that defendant was at the time engaged in the business of a contract carrier in interstate commerce. But they allege that he was engaged in hauling in interstate commerce, without a permit and that it was illegal and in violation of the laws of the United States. If plaintiff contends that they do not exactly allege as they should that he was then engaged in such business, the contention should be properly pointed out in the demurrer so as to allow an amendment if necessary.
We are also requested to review our former holding that the Motor Carriers Act of Congress, 49 U.S.C.A. §§ 301 to 327, is not wLhin the principle to which we applied it, whereby one who has violated it may not maintain a suit when his right is dependent upon the contract which is thus violative of an act which is not one for revenue but for regulation in the public interest. It is said in State of California v: Thompson, supra, that a statute of California relating to motor carriers is not a revenue measure, but that “It is not shown to be other than what on its face it appears to be, a measure to safeguard the members of the public desiring to secure transportation by motor vehicle, who are peculiarly unable to protect themselves from fraud and overreaching of those engaged in a business notoriously subject to those abuses. [313 U.S. 109, 61 S.Ct. 932.]" The Federal Motor Carrier Act does not contain a clause making void a contract of transportation without a compliance by one engaged in that business. But section 322, supra, makes it a crime to do so knowingly and willfully, and authorizes an injunction. We think it is subject to the comment made in State of California v. Thompson, supra, that it was enacted to safeguard the public desiring to use that form of transportation peculiarly unable to protect themselves from fraud and overreaching.
It is said in many cases that the contract must have been against public policy to deny its enforcement by one who has performed it against the other interposing that defense. The theory is that no one can lawfully do that which tends to injure the public or is detrimental to the public. This principle has been the dominant factor in, such cases both in this Court and that of the United States Supreme Court. Knight v. Watson, 221 Ala. 69, 127 So. 841; Lowery v. Zorn, 243 Ala. 285, 9 So.2d 872; Steele v. Drummond, 275 U.S. 199, 48 S.Ct. 53, 72 L.Ed. 238; Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 51 S.Ct. 476, 75 L.Ed. 1112; A. C. Frost & Co. v. Coeur D’Alene Mines Corp., 312 U.S. 38, 61 S.Ct. 414, 85 L.Ed. 500; Bement & Sons v. National Harrow Co., 186 U.S. 70, 22 S.Ct. 747, 46 L.Ed. 1058.
In the case of A. C. Frost & Co. v. Coeur D’Alene Mines Corp., supra, the suit was by the holder of a contract for the purchase of stock from a corporation. The corporation before making the contract of sale ■had not complied with the Securities Act of the United States,'15 U.S.C.A. § 77a et seq. The petitioners so-called, or plaintiffs, charged that the respondent corporation had repudiated the contract and asked judgment for damages for its breach. The corporation defended upon the ground that the contract was entered into in violation of the Securities Aot of Congress and was void and, therefore, the defendant was not liable in damages for its breach. The court observed that the legislative purpose was protection of innocent purchasers of securities, observing that “They (innocent purchasers) are given definite remedies inconsistent with the idea that every contract having relation to sales of unregistered shares is absolutely void”. [312 U.S. 38, 61 S.Ct. 417.] The court gave further expression to the views above expressed by us with respect to the enforcibility of contracts which are made in violation of law and public policy, citing the above cases, and observing: “No one can lawfully do that which tends to injure the public or is detrimental to the public good. If it definitely appears that enforcement of a con*369tract will not be followed by injurious results, generally, at least, what the party has agreed to ought not to be struck down. * * * the end which Congress intended to accomplish was treated as the controlling factor.” The effect of the opinion is to justify a suit by an innocent purchaser of securities against a corporation making a contract for the sale of such securities to the purchaser at a time when the corporation had not complied with the Securities Act of Congress, and when the contract is subject to the penalties of such Act. That conclusion is based upon the fact that plaintiff in that case was within the protection of the legislative purpose sought to be accomplished and as the controlling factor in the Act of Congress. Therefore, to deny him relief on such a contract, it was said, wou'd defeat the purpose sought to be ac-. comp'ishcd by it. It was in no sense a suit by the corporation which violated the Act in an effort to enforce the terms of the Act and whose rights are dependent upon a contract prohibited by the Act. Whereas such is the nature of the instant suit.
In the case of Twin City Pipe Line Co. v. Harding Glass Co., supra, the plaintiff was a pipe line company which had entered into an agreement with the defendant which was a consumer of gas. The contract provided that the glass company, as consumer, would take all its requirements of gas so long as the pipe line company could adequately supply them, and to pay the rate prescribed by public authority, and in the event of a shortage of gas the pipe line company might discontinue serving the glass company upon condition that the same character of service be given to it that was given to other industries. The plaintiff in the suit sought to enjoin the glass company from taking gas from another pipe line company in violation of that contract. The glass company in defense of that suit contended that the contract violated the public policy of Arkansas, which prohibited perpetuities and monopolies. With reference to such a contract the court asserted the general principles to which we have referred above. It referred to the meaning of public policy in that connection, saying there is no fixed rule by which to determine what contracts are repugnant to it and that contracts should be stricken down upon the basis of that principle with caution and only in cases plainly within the reason on which the doctrine rests, and that it is only because of the dominant public interest that one who has had the -benefit of the performance by the other party will be permitted to avoid his own promise. In conclusion the court held: “The contract does not subject the glass company to, or tend in any manner to impose upon the public, any wrong, disadvantage, or evil attributable to monopoly or restraint of trade.
“The glass company has failed to show that the contract has any tendency to injure the public, and no reason appears why it should not be enforced accord'ng to its te,ms.” [283 U.S. 353, 51 S.Ct. 478.]
It is our view that when a transportation company engages in the business of interestate commerce as a contract carrier without comp'ying with the requirements of the Motor Carrier Act, as to which there are criminal sanctions provided in the Act, such carrier has put himself in a position which contravenes the policy of that Act which was provided, as said in the case of State of California v. Thompson, supra, to enable shippers to “protect themselves from fraud and overreaching of those engaged in a business notoriously subject to those abuses.” It is our view that the Federal Motor Carrier Act was distinctly for that purpose.
We think one primary purpose is to protect the public against irresponsible carriers who do not have adequate facilities, financial backing and personal integrity to render to the public adequate service. It is not a question of whether the particular carrier did have adequate facilities, financial backing and personal integrity sufficient to protect the shipper on that particular occasion, or shippers generally; but it is a question of his complying with the law which is applicable to him and for the protection of the public. We know of no case or authority which would permit such a carrier, in violation of law, to found a claim upon the basis of such a contract.
*370In our case of White v. Henry, 49 So.2d 779,1 cited by appellee on rehearing, the suit was not by the carrier violating the law ibut by the shipper not doing so. The rule does not apply to him when it is not shown that he intentionally participated in the violation of the law.
In this case plaintiff had not completed his part of the contract. But he is predicating an insurable interest in property not his own on the theory that he has the interest of a bailee, to support an insurance contract which will protect him in the collection of charges whose basis is solely by virtue of an illegal contract which he has not performed. True, he can collect also, if he can recover his personal claim, the value of the property lost for the benefit of his shipper and owner of the property.
We believe it would be contrary to dominant public policy for one to engage in the business of a contract carrier in interstate commerce without a permit required by law and enforce a transportation insurance contract to protect his rights against accidents, although he thereby may sustain no liability, and his only interest to be protected is that which arose by virtue of such contract. Until we learn better that will be our opinion in that respect.
The application for rehearing is overruled.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.