In nearly all of the cases cited in the preceding section the fact that the payment of the illegal charges was made under protest is shown. It is natural, of course, that a protest should be made. And in jurisdictions in which "an added element of compulsion" must be established, the fact of a protest at the time of payment is of evidential value, though not always essential to the plaintiff's case.3 But where the rule is adopted that the exaction of an illegal charge is itself sufficiently coercive to raise an obligation to make restitution, a protest is superfluous:
Heiseman v. Burlington, etc., R., 1884, 63 la. 732; 18 N. W. 903: Beck, J. (p. 736): "Nor need the plaintiff, in a case brought to enforce such an obligation [the obligation to repay excess charges], show objection or protest prior to the payment made in excess of a reasonable compensation. These rules are founded upon the consideration that railroad companies are public carriers, and those who employ them are in their power, and must bow to the rod of authority which they hold over consignors and consignees of property transported by them. . . . The law does not require objection or protest to the payment of unjust charges, for the reason that they would be vain, being addressed to those who occupy the commanding position of power to enforce obedience to their requirements." l
1 Knudson, etc., Co. v. Chicago, etc., R. Co., 1906, 149 Fed. 973; 79 C. C. A. 483 ; Kenneth v. So. Car. R., 1868, 15 Rich. L. (S. C.) 284 ; 98 Am. Dec. 382. And see Killmer v. New York, etc., R. Co., 1885, 100 N. Y. 395; 3 N. E. 293; 53 Am. St. Rep. 194. But see Steele v. Williams, 1853, 8 Exch. 625, 631, which was an action to recover fees paid a parish clerk for the privilege of making abstracts from the register of burials and baptisms. The plaintiff's clerk was informed of the amount of the fee before he made the abstracts, but he was not required to pay until afterward. The court allowed a recovery, saying that "it would have been most dishonorable for the party, after having got the extracts, to refuse to pay."
2 Peters v. R. Co., 1884, 42 Oh. St. 275 ; 51 Am. Rep. 814. And see West Va. Transp. Co. v. Sweetzer, 1885, 25 W. Va. 434, 461-2.
3 Illinois Glass Co. v. Chicago Telephone Co., 1908, 234 111. 535; 85 N. E. 200; 18 L. R. A. (N. S.) 124.
Under this rule, indeed, the plaintiff's ignorance of the illegality of the charge, at the time of payment, should not prevent a recovery. For one who is compelled to pay a charge, whether it is legal or illegal, has no incentive to question its legality before making payment, and is none the less under compulsion because of his failure so to do.