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article as the authorities on that subject have been carefully collated and reviewed in the Central Law Journal of July 11, 1884, (see page 22 of vol. 19). The case of State v. Stewart in that article is incorrectly cited. It is reported in 19 N. W. Rep, 429, and not in 11 N. W. Rep. 430.

It is not necessary that a warrant for the arrest of the fugitive should have been issued in the de

they be disputed, or is the statement in the warrant conclusive upon the court? That the recitals are at least prima facie evidence that the facts are true is conceded by all the authorities. People v. Pinkerton, 77 N. Y. 245; Davis's case, 122 Mass. 324; Brown's case, 112 id. 409; Kingsbury's case, 106 id. 223. The majority of the cases goes even fur.ther and hold that the recitals in the warrant are conclusive upon the court and cannot be contro-manding State. Tullis v. Fleming, Adm'r., 69 Ind. verted. People v. Pinkerton, 17 Hun, 199; State v. Burgine, 4 Har. (Del.) 572; In re Leary, 10 Ben. 197; People v. Donohue, 84 N. Y. 438. Where the offense with which the fugitive is charged was not at common law a crime, the courts of the State upon which the demand is made can have no evidence of its constituting a crime unless it is declared to be a crime in the indictment or affidavit, or unless the statute law making it a crime is proved before the court as any other fact. In such a case, the court having no proof before it that the party had committed a crime, would of course be compelled to discharge the prisoner. State v. Swoop, 72 Mo. 399. But if the offense is described in the papers as a crime this will be sufficient. In re Hooper, 52 Wis. 699; Tullis v. Fleming, Adm'r., 69 Ind. 15. It is not necessary that the party should have left the demanding State for the purpose of escaping prosecution in order to constitute him a fugitive within the meaning of the Constitution. It is sufficient that he has actually left the State in which the offense was committed. This renders him a fugitive even though the State to which he goes is the State in which he resides, and he returns to it for the sole purpose of returning to his home. People v. Pinkerton, 17 Hun, 199; Adam's case, 7 Law Rep. 386; Kingsbury's case, 106 Mass. 227. Until the most extraordinary decision of the United States Circuit Court for the district of California (In re Robb, 19 Fed. Rep. 26) it had been supposed by both bench and bar that the right of the State courts to pass upon the legality of the arrest under an inter-State extradition warrant was not open to discussion. The State courts had in many instances discharged parties held under such warrants when brought before them on habeas corpus. In not one of the reported cases has the want of power to inquire into and determine the lawfulness of the detention under such a warrant ever been even remotely hinted at by counsel. And the doctrine is now authoritatively settled in accordance with the uniform practice and almost universal opinion on the subject. Robb v. Connolly, 4 Sup. Court Rep. 544. In referring to the case in the Circuit Court, the court say; "It is proper to say that we have not overlooked the recent elaborate opinion of the learned judge of the Circuit Court of the United States for the district of California in In re Robb, 19 Fed. Rep. 26. But we have not been able to reach the conclusion announced by him."

To what extent the fugitive who has been extradited under the provision of the Constitution can be held by the demanding State and tried for other offenses it would be supererogatory to state in this

15. In this case the prisoner claimed that he should have been discharged because it did not appear that a warrant had been issued in the demanding State upon the charge contained in the affidavit. This claim was adjudged by the court to be untenable, the court saying: "There is nothing either in the act of Congress or in the act of this State upon the subject of fugitives from justice which requires that a warrant shall be issued for the fugitive upon the charge against him before his return can be demanded from the State or Territory to which he may have fled." The District Commissioner for the western district of Michigan held, In re Jackson, 2 Flip. C. C. 183, that the mere statement by the executive of the demanding State that the party is a fugitive from justice is not sufficient to authorize the governor of the State on which the requisition is made to arrest and surrender the alleged fugitive. The court very properly decided that the fact of fleeing must be established by competent evidence. Judge Withey, in his opinion, says: "Now it is manifest that before the executive of Michigan is authorized to issue his warrant to cause to be arrested and secured a person charged in another State with a crime, it should be shown by evidence making a prima facie case that such person has fled from the demanding State. This should be shown by competent evidence, as the fact of fleeing lies at the foundation of the right to issue a warrant of extradition. The certificate of the demanding governor is no evidence of the fact. Neither the act of Congress nor any rule of evidence makes his certificate evidence of such fact. The mere fact that a citizen of Michigan has been charged with crime and indicted in another State is not legally sufficient to authorize the arrest and extradition of such citizen. He may be charged with crime and indicted in a State into which he has never entered, or was never in and from which therefore he never fled. It is as essential to the right of arrest and extradition to prove to the satisfaction of the governor of Michigan that the person charged with crime has fled from justice as to prove that he is charged with crime in such other State. * * * No provision is made as to the method of proving that the person demanded as a fugitive has fled from justice. * * * The evidence that the person has fled from justice must be not only satisfactory to the governor but must be legally sufficient before the executive authority can be exercised. We cannot act upon rumor nor upon the mere representation of a person, nor upon the demanding governor's certificate. It should be sworn evidence such as will authorize a warrant of arrest

in any other case." To same effect Hartman v. Aveline, 63 Ind. 344. The court, in this case of Jackson's seems to have inclined to the opinion that the arrest would have been legal even though the governor had acted on the mere statment of the executive of the demanding State, provided the warrant had recited that it had been satisfactorily shown that the person arrested was a fugitive from justice from the demanding State. This opinion was of course based on the cases which decide that where the governor sees fit to withhold the requisition papers, the recitals in his warrant are not open to contradiction on habeas corpus. On this point the court says: "Had the Governor of Michigan stated in his warrant of arrest and removal that it has been satisfactorily shown to him that Jackson had fled from justice, or was a fugitive from justice from Massachusetts, such statement would be prima facie sufficient and possibly conclusive. There are judgments, which seem well considered, holding the warrant would, if prima facie sufficient, be conclusive, and that courts will not go behind it in such cases."

Neither the executive nor the judiciary will try the question of guilt if the fugitive is legally charged with a crime in the demanding State, the requisition will be granted and the courts will not on habeas corpus pass upon the truth of the charge. Hartmann v. Aveline, 63 Ind. 344; Nichols v. Cornelius, 7 id. 611; Robinson v. Flanders, 29 id. 10; People v. Brady, 56 N. Y. 182.

The constitutionality of the act of 1792 and the power of Congress to legislate generally on the subject of inter-State extradition was settled in the case of Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539. The Constitution and laws of the United States being the supreme law of the land, all State legislation repugnant to the Constitution or the act of Congress on this subject will of course be void. Indeed Judge Story, in the case above cited, asserts the invalidity of all State legislation on the subject whether repugnant to the Constitution and laws of the United States, or not, provided Congress has in some manner regulated the matter. He says at page 617: "For if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner and in a certain form, it cannot be that the State Legislatures have a right to interfere, and as it were by way of complement to the legislation of Congress to prescribe additional regulations and what they may deem auxiliary provisions for the same purpose. In such a case the legislation of Congress in what it does prescribe manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognized by the court in the case of Houston v. Moore, 5 Wheat. Rep. 1, 21, 22; where it was expressly held that where Congress had exercised a power over a particular subject given them by the Constitution it is not competent for State leg

islation to add to the provision of Congress upon that subject; for that the will of Congress upon the whole subject is as clearly established by what it had not declared as by what it has expressed." This question however was not before the court and the decided weight of authority is against Judge Story's dictum and it would seem to be indefensible on principle. Commonwealth v. Tracy, 5 Metc. 536; Ex parte Cubreth, 49 Cal. 436; Robinson v. Flanders, 29 Ind. 10; Ex parte Smith, 3 McLean, 121; Ex parte White, 49 Cal. 433; Ex parte Rosenblat, 51 id. 285. See also Commonwealth v. Hall, 9 Gray, 262. It appears that all the justices who concurred with Judge Story in reversing the judgment of the Supreme Court of Pennsylvania did not agree with him on this question. See opinion of Chief Justice Taney at page 632; of Mr. Justice Thompson at page 635; of Mr. Justice Wayne at page 637, and of Mr. Justice Daniels at page 672.

In Ex parte Morgan, 20 Fed. Rep. 298, the United States District Court for the western District of Arkansas decided that the governor of Arkansas had no authority to issue a warrant for the arrest and extradition of a fugitive from justice from the Territory of the Cherokee Nation, for the reason that the executive of a State derives all his authority to grant such a warrant from the Constitution and laws of the United States, and that they did not authorize the issuing of a warrant in such a case. GUY C. H. CORLISS.

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PETERS V. MARIETTA & CIN. R, Co.*

A shipper has a right to have his goods transported at legal rates over the usual line of a common carrier of such goods; and if, to procure the services of such carrier, the shipper is compelled to pay illegal rates established by the carrier, the payment is not such a voluntary payment as will preclude recovering back the illegal charge; nor will it preclude such recovery if the payments, by arrangement of parties, are made at the end of each month. RROR to the District Court of Scioto County.

ERROR

This case is one of twelve cases, each of which has similar facts and questions of law.

The plaintiffs owned iron blast furnaces for the manufacture of pig iron, and the furnaces were located along the line of the Scioto and Hocking Valley rail-road between Portsmouth and Hamden. All but five were built after the construction of the road, and after that time all the furnace companies exclusively relied upon it for transportation.

This part of the S. & H. V. R. was purchased about December 1, 1863, by the defendant and possession taken. By the act of February 11, 1848 (S. & C. 281), the C. & H. V. R. Co. was limited in its rate of charges for the transportation of freight to five cents per ton per mile, as a maximum charge for distances of thirty miles or more, and for distances of less than thirty miles to "reasonable rates." This limitation was not on the defendant as to its original road, but it might *To appear in 42 Ohio State Reports.

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charge for the transportation of property "such rates
of toll as the corporation may determine."

After this purchase the defendant claimed the right
to charge the same rates over the purchased road that
were charged over its own road, and advanced the
rates under dates of January 26, 1864, March 7, 1864,
March 28, 1864, August 1, 1864, September 12, 1864,
December 12, 1864, and March 16, 1865. This caused
objection and remonstrance, and in 1867 the suits were
commenced.

The petition further avers that plaintiffs were entitled to have their freight carried at rates limited to be charged by the S. & H. V. R. Co., but that the defendant has disregarded plaintiffs' rights and has taken advantage of plaintiffs' necessities, and has required unlawful and unjust rates, which plaintiffs have been compelled to pay by the necessities of their business, and that plaintiffs remonstrated against the unjust exactions and protested against the payment of the same, and that the defendant, although requested so to do, has neglected and refused to account with the plaintiffs as to the payments in excess of legal rates, and that defendant has so received to and for the use of the plaintiffs the several sums of money set forth in the exhibit, and prays judgment.

The answer has three defenses: The first denies that the defendant is restricted in charging freight and fare to the charter of the S. & H. V. R. Co., and claims, as purchaser of that road, to be authorized to charge any "fair and reasonable rates;" the second alleges that all sums paid were so paid voluntarily, after the services for which the same were demanded had been fully rendered, and when defendant's demand for the same could not have been enforced without giving plaintiffs a day in court, with full knowledge, or the means of knowledge, of the change in the ownership of said railroad, and of the charges demanded by the defendant for the transportation of the property upon its said purchased road, and of all other facts connected with said demand; and that said sums were not exacted as a condition of the performance of said service, nor as an inducement of such performance; and denies all allegations which charge that the same were paid involuntarily or by coercion; and the third denies that the sums charged were in excess of amounts authorized by the charter of the S. & H. V. R. Co., and says the charges so made included compensation for warehouses, grounds and facilities furnished, storage, handling, etc.

The reply to the first defense denies, that as purchaser of the said road, the defendant has any other right or power to charge fare or freight otherwise than as prescribed for the original owner, the S. & H. V. R. The reply to the second defense denies that the payments were voluntary, and avers that they were coerced and illegally exacted by defendants. The reply to the third defense denies defendant's right to charge for any thing but transportation.

The defendant demurred to the first defense. The demurrer was sustained in the Court of Common Pleas and in the District Court, and came to this court on the question whether the M. & C. R. Co. is restricted on this purchased branch in charging for freight; and the judgment below was reversed for error in sustaining the demurrer. Campbell v. M. & C. R. Co., 23 Ohio St. 168. This court held that section 12 of the act of February 11, 1864, applied to the case, and sent it back to the court below for further proceedings.

The cases were then sent to a special master to take testimony and report. The master took the evidence and reported it, and found and reported certain rates "to be reasonable rates for the distances named during the period covered by the report;" and that from and after March 28, 1864, the defendant had charged

plaintiffs rates in excess of legal rates allowed by the charter of the S. & H. V. R., and that from March 28, 1864, to February 1, 1867, the plaintiffs paid defendant excessive and illegal charges, and "that the payment of such excess was compulsory in the sense that plaintiffs and defendant did not stand on a footing of equality, that said sums exacted were illegal and unauthorized, and that plaintiffs were required to pay the same to procure the transportation of their property, without which the plaintiffs in each of said cases, by reason of their manufacturing business, would have suffered great loss."

The Court of Common Pleas from the report and evidence, also found "that said payments in excess of rates authorized by law, and inclusive of interest to the first day of the present term, amount to the sum of $, but that the payments were voluntarily made and under such circumstances that they cannot be recovered back," and rendered judgment for the defendant. Plaintiffs excepted, and the cases are here on their bill of exceptions.

Edward F. Hunter, W. A. Hutchins and M. A. Daugherty, for plaintiff in error.

McClintick & Smith and Harrison, Olds & Marsh, for defendant in error.

FOLLETT, J. The plaintiffs aver that the defendant from time to time has received to and for the use of the plaintiffs several sums of money specified and set forth in tabular statements; and that the several sums so received were for freight charges in excess of legal rates. It is admitted that the amounts charged were paid.

The matters set up in the first defense were disposed of by this court in Campbell v. M. & C. R. Co., 23 Ohio St. 168, by holding: "Where the railroad of one com. pany is purchased by another railroad company, in pursuance of a statute authorizing the purchase, in the absence of any provision of law to the contrary the road passes to the purchasing company subject to the same restrictions and limitations as to rates chargeable for transportation as attached to it in the hands of the vendor." And section 12 of the act of February 11, 1848, governs this case.

"Where a

In that case this court also held that: railroad company is authorized to demand and receive compensation for transportation of property 'not exceeding five cents per ton per mile, where the same is transported a distance of thirty miles or more, and in case the same is transported for a less distance than thirty miles, such reasonable rate as may be from time to time fixed by the company,' it is unreasonable as a matter of law, that the company should fix a greater sum for a less distance than thirty miles than the maximum allowed for full thirty miles."

In Smith v. P., Fl. W. & C. Ry. Co., 23 Ohio St. 10, this court also held: "Whether the rate of passenger fare fixed by a railroad company under section 12 of the act of February 11, 1848 (S. & C. 271), for distances less than thirty miles, be reasonable or not, is a question of fact for the jury to be determined under such instructions by the court as the circumstances of the particular case may require."

In that case McIlvaine, J., said: "Whenever therefore the determination of the question whether the rate be reasonable involves the necessity of hearing testimony, it falls within the province of the jury." We think the reasonableness of the freight fare may be determined in the same manner.

In this case the special master heard the testimony and found the facts, and also reported the evidence, and from the peculiar facts of the case the master found a certain amount due for “the payments in excess of rates authorized by law; " and the court below, from the same evidence, found the same facts,

and added interest to that amount, and found a definite sum. These findings seem conclusive; and whether or not these particular findings be before this court for review, the majority of the court think there was no error in finding that such payments were for charges in excess of rates authorized by law. The defendant should have known what were legal rates and should have charged no more.

The plaintiffs have paid to defendant these illegal charges-money unjustly obtained; and the remaining question is, can the plaintiffs recover back the same?

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The defendant denies the plaintiffs' right to recover back, on the ground that these illegal charges were so paid voluntarily after the services for which the same were demanded had been fully rendered and performed," etc.

The plaintiffs paid the charges for each month at the end of the month, and as the plaintiffs and defendant did not stand on terms of equality, they so paid to secure transportation for the succeeding month. The defendant prescribed its own rates, and would carry the plaintiffs' freight only at the established rates, though these rates were illegal and unreasonable, and when as a common carrier it should have carried this freight at legal rates. The special master found that "the sums exacted were illegal and unauthorized, and plaintiffs were required to pay the same for the transportation of their property, without which the plaintiffs in each of said cases, by reason of the character of their manufacturing business, would have suffered great loss."

The defendant did not require the payments to be made in advance of carrying each shipment of freight, but the charges of each month were required to be paid at the end of the month or future freight would not be carried.

Plaintiffs could compel the defendant to carry their freight only by a resort to the courts and at the end of litigation. The history of these suits began in 1867, and just ending in 1884, shows that plaintiff's could not obtain speedy and adequate redress-such as would save their business and prevent loss-simply by a resort to the courts to enforce legal rights. And as defendant would not accept the payment of legal rates, and required the full payment of its illegal charges, the plaintiffs complaining and objecting to the fincreased and illegal charges, were forced to pay them. Their choice and volition were compelled. Such payments are not voluntary.

We will refer to some authorities and reasons of this position. "The common principle is that if a man chooses to give away his money, or to take the chance whether he is giving it away or not, he cannot afterward change his mind; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice." Pol. Prin. Cont. 523. These plaintiffs "really had no choice." In 1760, in Moses v. Macferlan, 2 Burr. 1005, Lord Mansfield said: "This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendants ought to refund. * * * But it lies for ** * money got through * * * an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances." The plaintiffs paid this money in like situation.

In Parker v. Great Western Ry. Co., 7 M. & Gr. 253, the court held that payments made to a common carrier to induce it to do what by law, without them, it was bound to do, were not voluntary, and might be recovered back. Add. Cont. *1043, approves this principle. Mr. Justice Matthews, in Swift Co. v. United States, 111 U. S. 29, approves the doctrine, and calls

it a "wholesome principle." And in Baker v. City of Cincinnati, 11 Ohio St. 538, Gholson, J., approves the same authority. In Maxwell v. Griswold, 10 How. 242, the court said: "Now it can hardly be meant in this class of cases that to make a payment involuntarily it should be by actual violence or any physical duress."

In the case of Railroad Co. v. Lockwood, 17 Wall. 379, Mr. Justice Bradley says: "The carrier and his customer do not stand on a footing of equality. The latter is only one of a million. He cannot afford to higgle or stand out and seek redress in courts. His business will not admit of such a course. He prefers rather to accept any bill of lading, or sign any paper the carrier presents; often indeed without knowing what the one or the other contains. In most cases he has no alternative but to do this or abandon his business."

In Beckwith v. Frisbie, 32 Vt. 559-566, it was said: "To make the payment a voluntary one the parties should stand upon an equal footing."

This is not a case of individuals dealing with each other on terms of equality; nor a case of payment of illegal charges to obtain possession of property; nor payment of illegal taxes to prevent the sale of prop. erty. Here the defendant was a common carrier of such freights as plaintiffs had for transportation; the State had given the defendant, through its purchase of this part of the road, its right to use this road, and had limited its rate of charges. The plaintiffs' business was dependent on transportation by the defendant, and they were entitled to have their freight carried at legal and reasonable rates. The defendant prescribed rates illegal and unreasonable, and required its agents to demand and receive such rates or not to carry the freight. Plaintiffs, objecting and protesting against the basis and the amount of the charges, paid them at the end of each month, and they so paid the illegal charges to procure the future transportation of their freight.

The case of Swift Co. v. United States, 111 U. S. 22, is very much like this. There the commissioner of internal revenue had acted upon a wrong basis in charg ing stamps for friction matches. The Swift Co. gave orders for stamps, and paid for each purchase within sixty days from the delivery of the stamps; and thus dealt from 1870 to 1878. No protest had been made by the company, though years before, in 1866, a member of the company "made repeated protests to the officers of the Internal Revenue Bureau against the methods of computing commissions" in similar cases.

The court held: "A course of business and a periodical settlement between the commissioner of internal revenue and a regular periodical purchaser of revenue stamps, entitled by statute to commission on his purchases, payable in money, which shows that the commissioner asserted and the purchaser accepted that the business should be conducted upon the basis of payments of the commissions in stamps at their par value instead of in money, does not preclude the purchaser from asserting his statutory right, if he had no choice, and if the only alternative was to submit to an illegal exaction or discontinue his business." And the court also held: "When the commissioner of internal revenue adopted a rule of dealing with purchasers of stamps which deprived them of a statutory right to be paid their commissions in money, and obliged them to take them in stamps, and made known to those interested that the rule was adopted and would not be changed, the rule dispensed with the necessity of proving in each instance or complying with it that the compliance was forced."

Mr. Justice Matthews said: "No formal protest made at the time is by statute a condition to the present right of action, as in cases of action against the

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collector to recover back taxes illegally exacted;" and
the court did not require any protest. The rule was
adopted by the commissioner, and would not be
changed on further application; and business could be
transacted only on that footing; and they paid within
sixty days. Here the rates were fixed by the defend-
ant, and the shipper must pay or forego shipment, and
plaintiffs paid within thirty days. In principle the
cases are alike.

In McGregor v. Erie Ry. Co., 35 N. J. L. 89-113,
plaintiff recovered back from defendant certain mon-
eys unlawfully demanded and taken for transporta-
tion of merchandise from Paterson to Jersey City.
Bedle, J., said: "In these cases there was no express
refusal, but I do not consider it necessary that the re-
fusal should be express. It is sufficient if the person
has just and reasonable ground to apprehend that un-
less the money is paid his goods will not be carried, or
will be withheld. Where a corporation or person has
the power to refuse a right to which a party is entitled,
unless he complies with an unjust demand, they do not
stand on an equal footing." And the court held:
"But when they are not on an equal footing, and
money is paid not by compulsion of law, but by com-
pulsion of circumstances--as when it is paid to release
goods from illegal restraint, which cannot otherwise
be reasonably effected, or to compel the performance
of a duty by others in order to enjoy or obtain a right
-it may be recovered back. Under this head may be
classed moneys paid under color of title or charges on
turnpikes and railroads."

"Courts will not be illiberal in allowing a person to act upon his reasonable apprehension of such refusal, where the circumstances fairly show that unless he does so submit to the demand, his right will be withheld."

In Lafayette & Indianapolis R. Co. v. Pattison, 41 Ind. 312, the excessive charges were recovered back. The syllabus contains the following: "During the rebellion A. had a contract to furnish the government with a certain number of beef cattle during two months, and for the purpose of filling such contract, went to Chicago and made a contract with a railroad company to ship cattle for him to Indianapolis at $65 per car; and leaving an agent to ship, he returned to Indianapolis to receive the cattle. The cattle of the first shipment of two car loads were sent to the cattle yard of A., and after a few days a bill for $201.02 was sent to A., which he refused to pay, and informed the agent of the railroad company that he had a contract for the shipment at $65 per car; the agent denied knowledge of any such contract, and insisted that the bills must be paid as presented, and that he would not deliver any future car loads of cattle until the freight was paid, as he made it up from the way bills, and that the bills included other things besides freight, which he could not itemize. It was agreed that A. should pay under protest, and also future freight, and the cattle should be delivered as they arrived, and A. should reserve the right to recover any sum so paid unjustly. In pursuance of this agreement the agent delivered the cattle at the yard of A. as they arrived from time to time, and as soon as the bills were prepared they were paid by A.

"Held, that the payments were not voluntary, and that A. could recover all sums so paid in excess of his contract price."

And Buskirk, J., says: "We are of opinion that the money so paid could be recovered back if there had been no valid agreement that it might be. While the appellants were not in the actual possession of the cattle of the appellee, they possessed such power and control over the shipment and delivery thereof as gave them an undue advantage over the appellee, and the

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necessity of the appellee was so great and pressing as to deprive him of the freedom of his will."

The case of Chicago & Alton R. Co. v. C., V. & W. Coal Co., 79 Ill. 121, is as follows: "Certain individuals constructed a railroad twelve miles long, extending from a coal mine, belonging to a coal company, to a station on the Illinois Central Railroad, and on the 30th of April, 1869, they sold the same to a railroad company, and turned it over to them, and on the same day the company purchasing it turned it over to another railroad company. The last-named company operated the road in pursuance of the contract of sale between the first owners and the purchasers from them for three years, complying with the terms of said contract as to the rates of freight to be charged to the coal company for the transportation of its coal. The individuals building and selling the road and the coal company were the same. Held, that the railroad company last purchasing, by taking the road and recognizing the rates of freight established by the contract of sale, adopted the contract, and were bound by its terms, and that the coal company could maintain an action against them for a breach of it."

"In such a case, where the coal company had no other outlet for its coal, and the railroad company exacted more freight than by the terms of the contract they were entitled to, the coal company should be considered as under a kind of moral duress, and the payment by them of the freight demanded under such circumstances could not be considered voluntary, and they would have the right to sue upon the contract, and recover back the excess of freight paid over the contract rate."

Mr. Justice Breese said: "It can hardly be said these enhanced charges were voluntarily paid by appellees. It was a case of life or death' with them, as they had no other means of conveying their coals to the markets offered by the Illinois Central, and were bound to accede to any terms appellants might impose. They were under a sort of moral duress by submitting to which appellants have received money from them which in equity and good conscience they ought not to retain."

In Mobile & Montgomery Ry. Co. v. Steiner, 61 Ala. 559 illegal charges for transporting cotton were recovered back. The court held: "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 back the illegal charge."

To the objection that the payments were voluntarily made, and therefore could not be recovered back, Stone, J., said: "Railroads have so expedited and cheapened travel and transportation; have so driven from their domain all competing modes of transportation, that the public is left no discretion but to employ them, or suffer irreparable injury in this age of steam and electricity. They have their established rates of charges, and these the shipper must pay or forego their facilities and benefits. To object or protest would be an idle waste of words. The law looks to the substance of things, and does not require useless forms or ceremonies. The corporation and the shipper are in no sense on equal terms, and money thus paid to obtain a necessary service is not voluntarily paid, as the law interprets that phrase."

The above citations are sufficient.

The foregoing principles and authorities show that the payments made in this case should not be regarded as voluntary, and that no principle of equity shown by

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