Only under circumstances of peculiar hardship - as, for example, where a person's solvency is endangered - will a mere refusal by a private individual to discharge his legal duty to another be held to constitute duress (ante, Sec. 218). But in the case of a refusal by a public officer to perform a duty, the courts, recognizing the inherent advantage of his position and the importance of protecting those who deal with him, require no additional evidence that the act is coercive. It is therefore a general rule that illegal or excessive fees exacted by a public officer, colore officii, as a condition to the performance of his duty, may be recovered:
Morgan v. Palmer, 1824, 2 Barn. & Cr. 729: Assumpsit to recover a fee illegally charged by a mayor for renewing a publican's license. Abbott, C.J. (p. 734): "It has been well argued that the payment having been voluntary, it cannot be recovered back in an action for money had and received. I agree that such a consequence would have followed had the parties been on equal terms. But if one party has the power of saying to the other, 'that which you require shall not be done except upon the conditions which I choose to impose,' no person can contend that they stand upon anything like an equal footing. Such was the situation of the parties to this action."
American Steamship Co. v. Young, 1879, 89 Pa. St. 186; 33 Am. Rep. 748: Action to recover excessive shipping fees paid to a United States Shipping Commissioner. Sterrett, J. (p. 191): "We think that sound public policy requires us to hold that a public officer who, virtute officii, demands and takes as fees for his services, what is not authorized or more than is allowed by law, should be compelled to make restitution. He and the public who have business to transact with him do not stand upon an equal footing. It is his special business to be conversant with the law under which he acts, and to know precisely how much he is authorized to demand for his services; but with them it is different. They have neither the time nor the opportunity of acquiring the information necessary to enable them to know whether he is claiming too much or not; and as a general rule, relying on his honesty and integrity, they acquiesce in his demands." 1
1 Hackley v. Headley, 1881, 45 Mich. 569; 8 N. W. 511.
If it appears that the officer's refusal to perform his duty would not have resulted in any injury or hardship to the plaintiff,2 or that the money sought to be recovered was not paid to the officer until after the expiration of his term of office,3 restitution will not be enforced. On the other hand it is not a defense that the officer collected the illegal or excessive fee in good faith and for the public benefit,1 or that the money has been turned into the public treasury,2 although in the latter event the municipality is also liable.3
1 Also: Lovell v. Simpson, 1800, 3 Esp. 153, (excessive fee charged by sheriff's officer for bail bond); Dew v. Parsons, 1819, 2 Barn. & Ald. 562, (sheriff for issuing warrants); Hills v. Street, 1828, 5.Bing. 37, (broker holding goods on a distress); Steele v. Williams, 1853, 8 Exch. 625, (parish clerk for extracts from records); Ogden v. Maxwell, 1855, 3 Blatchf. (U. S. C. C.) 319; Fed. Cas, No 10,458, (collector of port for permission to land baggage); Cook County v. Fairbank, 1906, 222 111. 578; 78 N. E. 895, (clerk of court for letters testamentary); Clinton v. Strong, 1812, 9 Johns. (N. Y.) 370, (clerk of court); Robinson v. Ezzell, 1875, 72 N. C. 231, (register of deeds); Hooker v. Gur-nett, 1858, 16 U. C. Q. B. (Ont.) 180, (clerk for striking special jury); Alston v. Durant, 1847, 2 Strobh. (S. C.) 257; 49 Am. Dec. 596, (sheriff for capturing slave); Hays v. Stewart, 1852, 8 Tex. 358, (county surveyor for services). And see Laterrade v. Kaiser, 1860, 15 La. Ann. 296, (excessive fee demanded by lessee of market house for use of stalls); Marcotte v. Allen, 1897, 91 Me. 74; 39 Atl. 346; 40 L. R. A. 185, (illegal fee paid city clerk for burial permits; decision on ground of fraud); Niedermeyer v. Curators of the University of Missouri, 1895, 61 Mo. App. 654, (excessive tuition fees paid under protest to the treasurer of State University); Ford v. Holden, 1859, 39 N. H. 143, (abated tax paid in order that payer's name might be put on register of voters); Soderberg v. King County, 1896, 15 Wash. 194; 45 Pac. 785; 33 L. R. A. 670; 55 Am. St. Rep. 878, (commission illegally retained by sheriff out of proceeds of foreclosure sale).
2 Taylor v. Hall, 1888, 71 Tex. 213; 9 S. W. 141.
3 Sheibley v. Cooper, 1907, 79 Neb. 232, 236; 112 N. W. 363. "It is not a case of official extortion or oppression, but an ordinary transaction between two men dealing on equal terms."