Common carriers and some other public service corporations usually enjoy an advantage of position not unlike that of public officers. It is accordingly held that illegal freights, tolls, or other charges exacted by corporations enjoying such an advantage may be recovered as money paid under compulsion:
Great Western R. Co. v. Sutton, 1869, L. R. 4 H. L. 226; Lord Chelmsford, (p. 263): "Now if the defendants were bound to charge the plaintiff for the carriage of his goods a less sum, and they refused to carry them except upon payment of a greater sum, as he was compelled to pay the amount demanded, and could not otherwise have his goods carried, the case falls within the principle of several decided cases, in which it has been held that money which a party has been wrongfully compelled to pay under circumstances in which he was unable to resist the imposition, may be recovered back in an action for money had and received. In the language of the Court of Common Pleas, in the case of Parker v. The Great Western Railway Company [1844, 7 Man. & G. 253], 'the payments made by the plaintiff were not voluntary, but were made in order to induce the company to do that which they were bound to do without them.'"4
1 Steele v. Williams, 1853, 8 Exch. 625; Ogden v. Maxwell, 1855, 3 Blatchf. (U. S. C. C.) 319; Fed. Cas., No. 10,458; American Steamship Co. v. Young, 1879, 89 Pa. St. 186; 33 Am. Rep. 748.
2 Ogden v. Maxwell, 1855, 3 Blatchf. (U. S. C. C.) 319; Fed. Cas., No. 10,458. And see Snowden v. Davis, 1808, 1 Taunt. 359; Ripley v. Gelston, 1812, 9 Johns. (N. Y.) 201; 6 Am. Dec. 271.
3Soderberg v. King County, 1896, 15 Wash. 195; 45 Pac. 785; 33 L. R. A. 670; 55 Am. St. Rep. 878.
4Also: Parker v. Great Western R. Co., 1844, 7 Man. & G. 253; Tutt v. Ide, 1855, 3 Blatchf. (U. S. C. C.) 249; Fed. Cas., No. 14,275 b., (detention of goods); Mobile, etc., R. Co. v. Steiner, 1878, 61 Ala. 559; Chicago, etc., R. Co. v. Chicago, etc., Coal Co., 1875, 79 111. 121; Lafayette, etc., R. Co. v. Pattison, 1872, 41 Ind. 312; Heiserman v. Burlington, etc., R., 1884, 63 la. 732; 18 N.W. 903 ; McGregor v. Erie R. Co., 1871, 35 N. J. L. 89; Harmony v. Bingham, 1854, 12 N.Y. 99; 62 Am. Dec. 142, (detention of goods); Peters, Rickers & Co. v. R. Co.,
In many of the reported cases, as might be expected, conditions of peculiar hardship appear, and to a greater or less extent are emphasized by the court. This does not necessarily mean that in the absence of such conditions relief would not have been granted. But there are a few decisions in which it is insisted that there must always be evidence not only of an illegal demand, but of special circumstances showing "an added element of compulsion." 1 These cases, it is submitted, indicate a failure fully to appreciate the inequality of the normal conditions under which one deals with a public service corporation - an inequality which makes it unnecessary for the corporation to resort to threats and futile for the individual to protest or complain, - as well as the importance, as a matter of public policy, of discouraging the violation of rate laws.2 The better rule, in the case of public service corporations, as in that of public officers, is that the exaction of the illegal charge is itself sufficiently coercive to raise an obligation to make restitution.
An exception should perhaps be noted where the illegal charge is not demanded by the corporation until the service has been performed. In such a case the demand can hardly be said to be coercive,1 unless, as must frequently be true, it creates a fear in the mind of the shipper or consumer that a failure to comply will prejudice his interests in future dealings with the corporation.2
1884, 42 Oh. St. 275; 51 Am. Rep. 814; Lehigh Coal & Nav. Co. v. Brown, 1882, 100 Pa. St. 338; Monongahela Nav. Co. v. Wood, 1899, 194 Pa. St. 47 ; 45 Atl. 73. See Pine Tree Lumber Co. v. Chicago, etc., R. Co., 1909, 123 La. 583; 49 So. 202, to the effect that the Interstate Commerce Act has not deprived the shipper of his common law right to restitution.
Where the illegal charge is paid in ignorance of its illegality, restitution might be enforced upon the ground of mistake and without reference to the question of duress. See Evershed v. London, etc., R. Co., 1877, 3 Q. B. D. 134, 147. But the mistake is generally one of law, which in most jurisdictions does not constitute a basis for relief.
1 Arnold v. Georgia R. & B. Co., 1873, 50 Ga. 304; Illinois Glass Co. v. Chicago Telephone Co., 1908, 234 111. 535; 85 N. E. 200; 18 L. R. A. (N. S.) 124; Potomac Coal Co. v. Cumberland, etc., R. Co., 1873, 38 Md. 226. And see Killmer v. New York, etc., R. Co., 1885, 100 N. Y. 395; 3 N. E. 293; 53 Am. Rep. 194. For an excellent criticism of Illinois Glass Co. v. Chicago Telephone Co., supra, see 3 Illinois Law Rev. 235.
2 Statutory penalties, it is true, are generally provided, but they are sometimes inadequate and in any case should not deprive one of his common law right to enforce restitution. Mobile, etc., R. Co. v. Steiner, 1878, 61 Ala. 559; Heiserman v. Burlington, etc., R. Co., 1884, 63 la. 732; 18 N. W. 903.