although by arrangement the payments were made monthly.15 But if the excessive charges are paid after delivery, in order to secure future services, they may be recovered.16 The reason for the rule lies largely in the situation of the parties. The nature of the business considered, the shipper does not stand on equal terms with the carrier in contracting for charges for transportation; and if the shipper pays the rates established in violation of law by the carrier rather than forego his services, such payment is not voluntary in the legal sense, and the shipper may maintain his action for money had and received to recover the illegal charge.17 It is not necessary that the unlawful charges be made so by statute, for where statutes do not define a maximum lawful rate for the services of a public corporation, if prices are exacted which, in the light of all the facts to be considered, are unreasonably high, one who pays such prices under protest, or under such circumstances as do not amount to acquiescence in the charge, may, by suit, recover the excess over a reasonable price. 18 Where at the time of paying the charges the shipper is unaware that such charges are excessive he may on ascertaining such fact sue for and receive the excess. Accordingly it has been held that payment by a shipper to a common carrier of a sum in excess of what it was charging his competitors in the same business cannot be regarded as being voluntarily made by him, when he was without knowledge that the exaction was not lawful, and was in belief of the truth of the assertions of the agents of the carrier that the rate paid by him was the same as that charged to all other shippers.19 183. Excessive Charges by Other Public Service Corporations; Protest. The principle stated in the foregoing paragraph has been recognized in the case of public service corporations other than carriers. Thus, the payment of overcharges for water to a water company or city water department, to prevent the shutting off of water, which was necessary in carrying on the customer's business, has been held to be involuntary.20 But payments made for telephone service in excess of the rates which the company's charter authorizes it to exact, under a contract entered into without fraud, misrepresentation, Ann. Cas. 796, 12 L.R.A. (N.S.)_711. 19. Cook v. Chicago, etc.. R. Co., 81 Ia. 551, 46 N. W. 1080, 25 A. S. R. 512, 9 L.R.A. 764. 20. Chicago v. Northwestern Mut. L. Ins. Co., 218 Ill. 40, 75 N. E. 803, 1 L.R.A. (N.S.) 770; Panton v. Duluth Gas, etc., Co., 50 Minn. 175, 52 N. W. 527, 36 A. S. R. 635; Westlake v. St. Louis, 77 Mo. 47, 46 Am. Rep. 4. Note: 18 L.R.A. (N.S.) 125. or mistake of fact, and not as a condition of continued services, cannot be recovered.1 There is a difference of opinion as to whether it is necessary that protest be made before payment of excessive charges in order that they may be recovered. In some jurisdictions protest is considered necessary, while in others it is considered unnecessary. 184. Seizure and Sale of Property Generally. It may be stated generally that whenever the demandant is in position to seize or detain the property of him against whom the claim is made without a resort to judicial proceedings, in which the party may plead, offer proof, and contest the validity of the claim, payment under protest, to recover or retain the property, will be considered as made under compulsion, and the money can be recovered, at least where a failure to get or retain immediate possession and control of the property would be attended with serious loss or great inconvenience. To constitute compulsion of legal process it is not essential that the officer has seized, or is immediately about to seize, the property of the payer by virtue of his process. It is sufficient if the officer demands payment by virtue thereof, and manifests an intention to enforce collection by seizure and sale of the payer's property at any time. In such cases the parties cannot treat on equal terms, and the one on whom the demand is made is not bound to submit to the seizure of his property, and then seek his remedy for trespass, but he may pay the illegal demand and then recover it back. But payment made when the demandant was not in a position to seize or detain the 1. Illinois Glass Co. v. Chicago Spalding v. Lebanon, 156 Ky. 37, 160 Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A.(N.S.) 124. 2. Hilton Lumber Co. v. Atlantic Coast Line R. Co., 141 N. C. 171, 53 S. E. 823, 6 L.R.A. (N.S.) 225; Peters v. Marietta, etc., R. Co., 42 Ohio St. 275, 51 Am. Rep. 814. Note: 18 L.R.A. (N.S.) 127. 3. Louisville, etc., Consol. R. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L.R.A. 105; American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129, 2 Ann. Cas. 821. Note: 18 L.R.A. (N.S.) 127. 4. Atchison, etc., R. Co. v. O'Connor, 223 U. S. 280, 32 S. Ct. 216, 56 U. S. (L. ed.) 436, Ann. Cas. 1913C 1050; Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A.(N.S.) 124; Dickerman v. Lord, 21 Ia. 338, 89 Am. Dec. 579; S. W. 751, 49 L.R.A. (N.S.) 387; Notes: 51 Am. Rep. 821; 94 A. S. 5. Joannin v. Ogilvie, 49 Minn. 564, 52 N. W. 217, 32 A. S. R. 581, 16 L.R.A. 376. 6. Parcher v. Marathon County, 52 Wis. 388, 9 N. W. 23, 38 Am. Rep. 745. Note: 45 Am. Dec. 160. 7. Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285. property to enforce payment is not under compulsion and cannot be recovered.s 185. Seizure and Sale for Taxes.-The largest class of cases to which the doctrine stated in the last paragraph as to recovery of involuntary payments is applied is that of illegal taxes. It is clearly settled doctrine that where an illegal and void tax is paid to prevent a seizure and sale of the taxpayer's property to one having apparent colorable or formal authority to make such seizure and sale, if the danger is imminent and the payment is made under protest, the money so paid may be recovered back. But when no attempt is made by the officer to seize and sell the property, if the owner pays the illegal tax it will be held to have been paid voluntarily.10 Likewise the payment of taxes under a written protest that they were illegal and that a suit would be brought to recover them back, without any demand therefor or effort to collect the same, does not make the payment a compulsory one in such sense as to give the party paying the right to recover the amount thereof. However, it has been held that the payment of a tax was made under duress where the circumstances were that after the plaintiff had commenced proceedings against the county treasurer to enjoin the collection of an illegal tax, his clerk, in the absence of the plaintiff, paid the same, on the false representation made to him by the treasurer that the supreme court had decided that the tax was legal, and the notification that unless paid a seizure would be made of the plaintiff's stock of goods therefor.12. In -ome cases, unlike the great majority, the fact that a municipality may resort to summary remedies to enforce its demand is regarded as an engine of duress. The result is that, in such cases, the courts say or intimate that the threats or acts of a public officer may constitute duress where it would not were he a private person.18 8. Brunson v. Crawford County Levee Dist., 107 Ark. 24, 153 S. W. 828, Ann. Cas. 1915A 493, 44 L.R.A. (N.S.) 293 and note; Elston v. Chicago, 40 Ill. 514, 89 Am. Dec. 361; Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535, 85 N. E. 200, 18 L.R.A.(N.S.) 124; Jackson v. Newman, 59 Miss. 385, 42 Am. Rep. 367. Note: 45 Am. Dec. 165. 9. Union Pac. R. Co. v. Dodge County Com'rs, 98 U. S. 541, 25 U. S. (L. ed.) 196; Atchison, etc., R. Co. v. O'Connor, 223 U. S. 280, 32 S. Ct. 216, 56 U. S. (L. ed.) 436, Ann. Cas. 1913C 1050; Greenabaum v. King, 4 Kan. 332, 96 Am. Dec. 172; Louisville v. Becker, 139 Ky. 17, 129 S. W. 311, 28 L.R.A.(N.S.) 1045; Spalding v. 10. Union Pac. R. Co. v. Dodge County Com'rs, 98 U. S. 541, 25 U. S. (L. ed.) 196. Note: 51 Am. Rep. 821. 11. Union Pac. R. Co. v. Dodge County Com'rs, 98 U. S. 541, 25 U. S. (L. ed.) 196. 12. Greenabaum v. King, 4 Kan. 332, 96 Am. Dec. 172. 13. Marshall v. Snediker, 25 Tex. 460, 78 Am. Dec. 534. Note: 22 L.R.A. (N.S.) 873. 186. Regaining Possession of Goods Illegally Held.--If a person has in his possession property belonging to another, and refuses to deliver it to the owner without the payment to him of a sum of money which he has no right to receive, and the owner, in order to obtain possession of his property, pays that sum, the money so paid is a payment by compulsion; 14 and especially is such the case where the wrongful detention is connected with circumstances of hardship or serious inconvenience to the owner.15 Thus payment of excessive duties to avoid an onerous penalty and secure possession of perishable goods may be recovered.16 When a payment is made to emancipate property from an actual and existing duress imposed on it by an attachment by the person to whom the money is paid, the payment is to be regarded as compulsory; 17 and the money may be recovered without proof of the termination of the suit in which the attachment was made.18 187. Money Paid on Judgment or Execution.-As a general rule money collected or paid on execution cannot be recovered back while the judgment remains in force. If such suit could be maintained, then another might be brought to recover the money paid on the judgment and execution in it, and so on ad infinitum.19 And even where the judgment has been signed, or the execution issued fraud 14. United States v. Norton, 97 U. S. 164, 24 U. S. (L. ed.) 907; Lonergan v. Buford, 148 U. S. 581, 13 S. Ct. 684, 37 U. S. (L. ed.) 569; Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 A. S. R. 26; Cobb v. Charter, 32 Conn. 358, 87 Am. Dec. 178; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285; Baltimore v. Lefferman, 4 Gill (Md.) 425, 45 Am. Dec. 145; Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512; Joannin v. Ogilvie, 49 Minn. 564, 52 N. W. 217, 32 A. S. R. 581, 16 L.R.A. 376; David City First Nat. Bank v. Sargeant, 65 Neb. 594, 91 N. W. 595, 59 L.R.A. 296; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Alston v. Durant, 2 Strob. L. (S. C.) 257, 49 Am. Dec. 596; Kenneth v. South Carolina R. Co., 15 Rich. L. (S. C.) 284, 98 Am. Dec. 382. Notes: 54 Am. Dec. 719; 51 Am. Rep. 822; 94 A. 3. R. 419; 15 L.R.A. (N.S.) 183; 8 U. S. (L. ed.) 300. 15. Cobb v. Charter, 32 Conn. 358, 87 Am. Dec. 178; Chase v. Dwinal, 7 Greenl. (Me.) 134, 20 Am. Dec. 352; R. C. L. Vol. XXI.-11. David City First Nat. Bank v. Sargeant, 65 Neb. 594, 91 N. W. 595, 59 L.R.A. 296. 161 16. Robertson v. Frank Bros. Co. 132 U. S. 17, 10 S. Ct. 5, 33 U. S. (L. ed.) 236. 17. Cleaveland v. Richardson, 132 U. S. 318, 10 S. Ct. 100, 33 U. S. (L. ed.) 384; Chandler v. Sanger, 114 Mass. 364, 19 Am. Rep. 367. 18. Chandler v. Sanger, 114 Mass. 364, 19 Am. Rep. 367. 19. Elston v. Chicago, 40 Ill. 514, 89 Am. Dec. 361; Kaufman v. Dickensheets, 30 Ind. 258, 95 Am. Dec. 694; Hunt v. Boyeir, 1 J. J. Marsh. (Ky.) 484, 19 Am. Dec. 116; First Presbyterian Church v. New Orleans, 30 La. Ann. 259, 31 Am. Rep. 224; Footman v. Stetson, 32 Me. 17, 52 Am. Dec. 634; Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627; Ogle v. Baker, 137 Pa. St. 378, 20 Atl. 998, 21 A. S. R. 886; Kirklan v. Brown, 4 Humph. (Tenn.) 174, 40 Am. Dec. 635 and note; Beard v. Beard, 25 W. Va. 486, 52 Am. Rep. 219. Note: 45 Am. Dec. 153, 157. ulently, if the execution and judgment are both regular on their face, money paid thereunder while the judgment is subsisting cannot be recovered.20 Likewise money voluntarily paid in compliance with an award of arbitrators cannot be recovered, because an award performed will be a sufficient bar to an action for the matters submitted and passed on, until it is regularly set aside, and in a collateral action its validity cannot be attacked, by alleging fraud in the party obtaining it. The payment of a judgment on execution is not voluntary and does not operate as a waiver of the right to restitution. A person under such circumstances is not required to submit to seizure or distress of his property to preserve his right to compel restitution.2 And when the judgment is reversed, it is then a nullity, and the matter stands as if no judgment had ever been rendered, and not having been paid under mistake of law by the person paying it may be recovered, unless perhaps the one to whom it was paid in equity and good conscience was entitled to it, as where a judgment is reversed for some technical error not going to the merits of the case. Still it has been held that money paid on a decree of court is not paid voluntarily, and on its reversal the person paying the money is entitled to restitution, regardless of the final determination of the rights of the parties." 188. Payment under Unconstitutional or Void Statutes.-The courts are not agreed as to whether money paid under an unconstitutional or void statute may be recovered. On the one hand the rule is followed that money thus paid may be recovered. Accordingly it has been held that when money is paid under an unconstitutional statute, as a condition of doing or continuing business, it is paid under duress and may be recovered. And if a state officer, acting under 20. Note: 45 Am. Dec. 157. 1. Bulkley V. Stewart, 1 Day (Conn.) 130, 2 Am. Dec. 57. And see ARBITRATION AND AWARD, vol. 2, p. 386. 2. Chambliss v. Hass, 125 Ia. 484, 101 N. W. 153, 3 Ann. Cas. 16, 68 L.R.A. 126; Gregory v. Litsey, 9 B. Mon. (Ky.) 43, 48 Am. Dec. 415; Perkins v. Grobben, 116 Mich. 172, 74 N. W. 469, 72 A. S. R. 512, 39 L.R.A. 815 (payment enforced by garnishment proceeding); Little v. Bunce, 7 N. H. 485, 28 Am. Dec. 363; Knox County Bank v. Doty, 9 Ohio St. 505, 75 Am. Dec. 479; Beard v. Beard, 25 W. Va. 486, 52 Am. Rep. 219. Note: 18 Am. Dec. 443. 3. Duncan v. Ware, 5 Stew. & P. '(Ala.) 119, 24 Am. Dec. 772; Ex parte Walter, 89 Ala. 237, 7 So. 400, 18 A. S. R. 103; McJilton v. Love, 13 Ill. 486, 54 Am. Dec. 449; Haebler v. Myers, 132 N. Y. 363, 30 N. E. 963, 28 A. S. 589, 15 L.R.A. 588; Fleming v. Riddick, 5 Grat. (Va.) 272, 50 Am. Dec. 119; Beard v. Beard, 25 W. Va. 486, 52 Am. Rep. 219. Notes: 45 Am. Dec. 157; 4 A. S. R. 608. 4. Teasdale v. Stroller, 133 Mo. 645, 34 S. W. 873, 54 A. S. R. 703. 5. See APPEAL AND ERROR, vol. 2, p. 291 et seq. 6. Johnson v. Grand Forks County, 16 N. D. 363, 113 N. W. 1071, 125 A. S. R. 662. Notes: 49 L.R.A. (N.S.) 388; 2 Ann. Cas. 825. |