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they be disputed, or is the statement in the warrant article as the authorities on that subject have been conclusive upon the court? That the recitals are at carefully collated and reviewed in the Central Law least prima facie evidence that the facts are true is Journal of July 11, 1884, (see page 22 of vol. 19). conceded by all the authorities. People v. Pinker- The case of State v. Stewart in that article is incorton, 77 N. Y. 245; Davis's case, 122 Mass. 324; rectly cited. It is reported in 19 N. W. Rep, 429, Brown's case, 112 id. 409; Kingsbury's case, 108 and not in 11 N. W. Rep. 430. id. 223. The majority of the cases goes even fur- It is not necessary that a warrant for the arrest of .ther and hold that the recitals in the warrant are the fugitive should have been issued in the deconclusive 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. 15. In this case the prisoner claimed that he should Burgine, 4 Har. (Del.) 572; In re Leary, 10 have been discharged because it did not appear that Ben. 197; People v. Donohue, 84 N. Y. 438. Where a warrant had been issued in the demanding State the offense with which the fugitive is charged was upon the charge contained in the affidavit. This not at common law a crime, the courts of the State claim was adjudged by the court to be untenable, upon which the demand is made can have no evi- the court saying: “There is nothing either in the dence of its constituting a crime unless it is declared act of Congress or in the act of this State upon the to be a crime in the indictment or affidavit, or unless subject of fugitives from justice which requires that the statute law making it a crime is proved before a warrant shall be issued for the fugitive upon the the court as any other fact. In such a case, the court | charge against him before his return can be dehaving no proof before it that the party bad com- manded from the State or Territory to which he mitted a crime, would of course be compelled to dis

may have fled." The District Commissioner for the charge the prisoner. State v. Swoop, 72 Mo. 399. western district of Michigan held, In re Jackson, 2 But if the offense is described in the papers as a Flip. C. C. 183, that the mere statement by the excrime this will be sufficient. In re Hooper, 52 Wis.

ecutive of the demanding State that the party is a 690; Tullis v. Fleming, Adm'r., 69 Ind. 15. It is fugitive from justice is not sufficient to authorize not necessary that the party should have left the the governor of the State on which the requisition demanding State for the purpose of escaping prose

is made to arrest and surrender the alleged fugitive. cution in order to constitute him a fugitive within The court very properly decided that the fact of the meaning of the Constitution. It is sufficient fleeing must be established by competent evidence. that he has actually left the State in which the Judge Withey, in his opinion, says:

"Now it is manoffense was committed. This renders him a fugitive ifest that before the executive of Michigan is authoreven though the State to which he goes is the State

ized to issue bis warrant to cause to be arrested and in which he resides, and he returns to it for the sole secured a person charged in another State with a purpose of returning to his home. People v. Pinkerton, crime, it should be shown by evidence making a 17 Hun, 199; Adam's case, 7 Law Rep. 386; Kings- prima facie case that such person has fled from the bury's case, 106 Mass. 227. Until the most extraor- demanding State. This should be shown by comdinary decision of the United States Circuit Court petent evidence, as the fact of fleeing lies at the for the district of California (In re Robb, 19 Fed.

foundation of the right to issue a warrant of extraRep. 26) it had been supposed by both bench and

dition. The certificate of the demanding governor is bar that the right of the State courts to pass upon

no evidence of the fact. Neither the act of Congress the legality of the arrest under an inter-State extra- nor any rule of evidence makes his certificate evidition warrant was not open to discussion. The

dence of such fact. The mere fact that a citizen of State courts had in many instances discharged par

Michigan has been charged with crime and indicted ties held under such warrants when brought before

in another State is not legally sufficient to authorthem on habeas corpus. In not one of the reported ize the arrest and extradition of such citizen. He cases has the want of power to inquire into and de- may be charged with crime and indicted in a State termine the lawfulness of the detention under such

into which he has never entered, or was never in a warrant ever been even remotely hinted at by coun

and from which therefore he never fled. It is as sel. And the doctrine is now authoritatively settled essential to the right of arrest and extradition to in accordance with the uniform practice and almost

prove to the satisfaction of the governor of Michigan universal opinion on the subject. Robb v. Connolly, that the person charged with crime has fled from 4 Sup. Court Rep. 544. In referring to the case in justice as to prove that he is charged with crime in the Circuit Court, the court say; " It is proper to

such other State.

No provision is made as say that we have not overlooked the recent elaborate to the method of proving that the person demanded opinion of the learned judge of the Circuit Court of as a fugitive has fled from justice.

The the United States for the district of California in evidence that the person has fled from justice must In re Rob), 19 Fed. Rep. 26. But we have not been be not only satisfactory to the governor but must be able to reach the conclusion announced by him." legally sufficient before the executive authority can be ex

To what extent the fugitive who has been extra- ercised. We cannot act upon rumor nor upon the dited under the provision of the Constitution can mere representation of a person, nor upon the debe held by the demanding State and tried for other manding governor's certificate.

It should be sworn offenses it would be supererogatory to state in this

evidence such as will authorize a warrant of arrest



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in any other case.” To same effect Hartman v. Ave- islation to add to the provision of Congress upon that line, 63 Ind. 344. The court, in this case of Jackson's subject; for that the will of Congress upon the whole seems to have inclined to the opinion that the arrest subject is as clearly established by what it had not would have been legal even though the governor declared as by what it has expressed.” This queshad acted on the mere statment of the executive of tion however was not before the court and the dethe demanding State, provided the warrant had re- cided weight of authority is against Judge Story's cited that it had been satisfactorily shown that the dictum and it would seem to be indefensible on person arrested was a fugitive from justice from the principle. Commonwealth v. Tracy, 5 Metc. 536; demanding State. This opinion was of course based Exc parte Cubreth, 49 Cal. 436; Robinson v. Flanders, on the cases which decide that where the governor 29 Ind. 10; Ex parte Smith, 3 McLean, 121; Ex parte sees fit to withhold the requisition papers, the re- White, 49 Cal. 433; Ex parte Rosenblat, 51 id. 285. citals in his warrant are not open to contradiction See also Commonwealth v. Hall, 9 Gray, 262. It apon habeas corpus. On this point the court says: pears that all the justices who concurred with “ Had the Governor of Michigan stated in his war- Judge Story in reversing the judgment of the rant of arrest and removal that it has been satisfac- Supreme Court of Pennsylvania did not agree with torily shown to him that Jackson had fled from him on this question. See opinion of Chief Justice justice, or was a fugitive from justice from Massa- Taney at page 632; of Mr. Justice Thompson at page chusetts, such statement would be prima facie suffi- 635; of Mr. Justice Wayne at page 637, and of Mr. cient and possibly conclusive. There are judgments,

Justice Daniels at page 672. which seem well considered, holding the warrant In Ex parte Morgan, 20 Fed. Rep. 298, the United would, if prima fucie sufficient, be conclusive, and States District Court for the western District of that courts will not go behind it in such cases.” Arkansas decided that the governor of Arkansas

Neither the executive nor the judiciary will try had no authority to issue a warrant for the arrest the question of guilt if the fugitive is legally charged and extradition of a fugitive from justice from the with a crime in the demanding State, the requisition Territory of the Cherokee Nation, for the reason that will be granted and the courts will not on habeas the executive of a State derives all his authority to corpus pass upon the truth of the charge. Hartmann grant such a warrant from the Constitution and V. Aveline, 63 Ind. 344; Nichols v. Cornelius, 7 id. laws of the United States, and that they did not 611; Robinson v. Flanders, 29 id. 10; People v. Brady, authorize the issuing of a warrant in such a case. 56 N. Y. 182.

GUY C. H. CORLISS. The constitutionality of the act of 1792 and the power of Congress to legislate generally on the sub

CARRIER-FREIGHT CHARGES-PAYMENT OF ject of inter-State extradition was settled in the

ILLEGAL RATES NOT VOLUNTARY. case of Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539. The Constitution and laws of the United

OHIO SUPREME COURT, OCT. 21, 1884. States being the supreme law of the land, all State legislation repugnant to the Constitution or the act

PETERS V. MARIETTA & CIN. R, Co.* of Congress on this subject will of course be void. A shipper has a right to have his goods transported at jegal Indeed Judge Story, in the case above cited, asserts rates over the usual line of a common carrier of such the invalidity of all State legislation on the subject

goods; and if, to procure the services of such carrier, the

shipper is compelled to pay illegal rates established by the whether repugnant to the Constitution and laws of

carrier, the payment is not such a voluntary payment as the United States, or not, provided Congress has will preclude recovering back the illegal charge; nor will in some manner regulated the matter.

He says at

it preclude such recovery if the payments, by arrangepage 617: “For if Congress have a constitutional

ment of parties, are made at the end of each month.

RROR to the District Court of Scioto County. actually regulate it in a given manner and in a cer. tain form, it cannot be that the State Legislatures

This case is one of twelve cases, each of which has

similar facts and questions of law. have a right to interfere, and as it were by way of

The plaintiffs owned iron blast furnaces for the complement to the legislation of Congress to pre- manufacture of pig iron, and the furnaces were located scribe additional regulations and what they may along the line of the Scioto and Hocking Valley rail-deem auxiliary provisions for the same purpose. In

road between Portsmouth and Hamden. All but five such a case the legislation of Congress in what it

were built after the construction of the road, and after

that time all the furnace compavies exclusively relied does prescribe manifestly indicates that it does not

upon it for transportation. intend that there shall be any farther legislation to This part of the S. & H. V. R. was purchased about act upon the subject-matter. Its silence as to what December 1, 1863, by the defendant and possession it does not do is as expressive of what its intention taken. By the act of February 11, 1848 (S. & C. 281), is as the direct provisions made by it. This doctrine

the C. & H. V. R. Co. was limited in its rate of charges

for the transportation of freight to five cents per ton was fully recognized by the court in the case of

per mile, as a maximum charge for distances of thirty Houston v. Moore, 5 Wheat. Rep. 1, 21, 22; where it miles or more, and for distances of less than thirty was expressly held that where Congress had exer- miles to “reasonable rates." This limitation was not cised a power over a particular subject given them on the defendant as to its origiral road, but it might by the Constitution at is not competent for State leg.

*To appear in 42 Ohio State Reports.

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power to regulate a particular subject, and they do ERROR

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charge for the transportation of property “such rates plaintiffs rates in excess of legal rates allowed by the of toll as the corporation may determine."

charter of the S. & H. V. R., and that from March 28, After this purchase the defendant claimed the right 1864, to February 1, 1867, the plaintiffs paid defendant to charge the same rates over the purchased road that excessive and illegal charges, and “that the payment of were charged over its own road, and advauced the such excess was compulsory in the sense tbat piaintiffs rates under dates of January 26, 1864, March 7, 1864, and defendant did not stand on a footing of equality, March 28, 1864, August 1, 1864, September 12, 1864, that said sums exacted were illegal and unauthorized, December 12, 1864, and March 16, 1865. This caused and that plaintiffs were required to pay the same to proobjection and remopstrance, and in 1867 the suits were cure the transportation of their property, without commenced.

which the plaintiffs in each of said cases, by reason of The petition further avers that plaintiffs were enti- | their manufacturing business, would have suffered tled to have their freight carried at rates limited to be great loss." charged by the S. & H. V. R. Co., but that the defend- The Court of Common Pleas froin the report and ant has disregarded plaintiffs' rights and has taken ad- evidence, also found "that said payments in excess of vantage of plaintiffs' uecessities, and has required un- rates authorized by law, and inclusive of interest to lawful and unjust rates, which plaintiffs have been the first day of the present term, amount to the sum compelled to pay by the necessities of their business, of $m, but that the payments were voluntarily made and that plaintiffs remonstrated against the unjust and under such circumstances that they cannot be reexactions and protested against the payment of the covered back," and rendered judgment for the desame, and that the defendant, although requested so fendant. Plaintiffs excepted, and the cases are here on to do, has neglected and refused to account with the their bill of exceptions. plaintiffs as to the payments in excess of legal rates,

Edward F. Hunter, W. A. Hutchins and M. A. and that defendant has so received to and for the use

Daugherty, for plaintiff in error. of the plaintiffs the several sums of money set forth in the exhibit, and prays judgment.

McClintick & Smith and Harrison, Olds & Marsh, for

defendant in error. The answer has three defenses : The first denies that the defendant is restricted in charging freight and fare FOLLETT, J. The plaintiffs aver that the defendant to the charter of the S. & H. V. R. Co., and claims, as from time to time bas received to and for the use of purchaser of that road, to be authorized to charge the plaintiffs several sums of money specified and set ang "fair and reasonable rates;" the second alleges forth in tabular statements; and that the several bums that all sums paid were so paid voluntarily, after the so received were for freight charges in excess of legal services for which the same were demanded had been rates. It is admitted that the amounts charged were fully rendered, and when defendant's demand for the paid. same could not have been enforced without giving The matters set up in the first defense were disposed plaintiffs a day in court, with full knowledge, or the of by this court in Campbell v. M. & C. R. Co., 23 Ohio means of knowledge, of the change in the ownership | St. 168, by holding: “Where the railroad of one comof said railroad, and of the charges demanded by the pany is purchased by another railroad company, in defeudant for the transportation of the property upon pursuance of a statute authorizing the purchase, in the its said purchased road, and of all other facts con- absence of any provision of law to the contrary the nected with said demand; and that said sums were road passes to the purchasing company subject to the not exacted as a condition of the performance of said same restrictions and limitations as to rates chargeservice, nor as an inducement of such performance; able for transportation as attached to it in the hands of and denies all allegations which charge that the same the vendor." And section 12 of the act of February were paid involuntarily or by coercion; and the third | 11, 1848, governs this case. denies that the sums charged were in excess of In that case this court also held that:

· Where a amounts authorized by the charter of the S. & H. V. railroad company is authorized to demand and receive R. Co., and says the charges so made included com- compensation for transportation of property ‘not expensation for warehouses, grounds and facilities fur- ceeding five cents per ton per mile, where the same is nished, storage, handling, etc.

transported a distance of thirty miles or more, and in The reply to the first defense denies, that as pur

case the same is transported for a less distance than chaser of the said road, the defendant has any other thirty miles, such reasonable rate as may be from time right or power to charge fare or freight otherwise than to time fixed by the company,' it is unreasonable as a as prescribed for the original owner, the S. & H. V. R. matter of law, that the company should fix a greater The reply to the second defense denies that the pay- sum for a less distance than thirty miles than the ments were voluntary, and avers that they were co

maximum allowed for full thirty miles." erced and illegally exacted by defendants. The reply In Smith v. P., Fl. W. & C. Ry. Co., 23 Ohio St. 10, to the third defense denies defendant's right to charge

this court also held: “Whether the rate of passenger for any thing but transportation.

fare fixed by a railroad company under section 12 of The defendant demurred to the first defense. The the act of February 11, 1848 (S. & C. 271), for distances demurrer was sustained in the Court of Common Pleas less than thirty miles, be reasonable or not, is a quesand in the District Court, and came to this court on

tion of fact for the jury to be determined under such the question whether the M. & C. R. Co. is restricted instructions by the court as the circumstances of the on this purchased branch in charging for freight; and particular case may require." the judgment below was reversed for error in sustain- In that case McIlvaine, J., said: * Whenever thereing the demurrer. Campbell v. M. & C. R. Co., 23

fore the determination of the question whether the Ohio St. 168. This court held that section 12 of the rate be reasonable involves the necessity of hearing act of February 11, 1864, applied to the case, and sent

testimony, it falls within the province of the jury." it back to the court below for further proceed

We think the reasonableness of the freight fare may ings.

be determined in the same manner. The cases were then sent to a special master to take In this case the special master heard the testimony testimony and report. The master took the evidence

and found the facts, and also reported the evidence, and reported it, and found and reported certain rates and from the peculiar facts of the case the master “to be reasonable rates for the distances named dur- found a certain amount due for “the payinents in exing the period covered by the report ;” and that from cess of rates authorized by law;" and the court beand after March 28, 1864, the defendant had cbarged | low, from the same evidence, found the same facts,

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and added interest to that amount, and found a defi. it a "wholesome principle." And in Baker v. City of nito sum. These findings seem conclusive; aud Cincinnati, 11 Ohio St. 538, Gholson, J., approves whether or not these particular findiugs be before this the game authority. In Maxwell v. Griswold, 10 How. court for review, the majority of the court think there 242, the court said: “Now it can hardly be meant iu was no error in finding that such payments were for this class of cases that to make a payment involuncharges in excess of rates authorized by law. The de- tarily it should be by actual violence or any physical fendant should have known what were legal rates and

duresa." should have charged no more.

In the case of Railroad Co. v. Lockwood, 17 Wall. The plaintiffs have paid to defendant these illegal 379, Mr. Justice Bradley says: “The carrier and his charges--money unjustly obtained; and the remain- customer do not stand on a footing of equality. The ing question is, can the plaintiffs recover back the latter is only one of a million. He cannot afford to same?

biggle or stand out and seek redress in courts. His The defendant denies the plaintiffs' right to recover business will not admit of such a course. He prefers back, on the ground that these illegal charges “ were rather to accept any bill of lading, or sign any paper so paid voluutarily after the services for wbich the the carrier presents; often indeed without knowing same were demanded had been fully rendered and what the one or the other contains. In most cases he performed,” etc.

has po alternative but to do this or abandon his busiThe plaintiffs paid the charges for each month at the ness." end of the month, and as the plaiutiffs and defendant In Beckuith v. Frisbie, 32 Vt. 559-566, it was said: did not stand on terms of equality, they so paid to be- “To make the payment a voluntary one the parties cure transportation for the succeeding mouth. The should stand upon an equal footing." defendaut prescribed its own rates, and would carry This is not a case of individuals dealing with each the plaintiffs' freight only at the established rates, other on terms of equality; nor a case of payment of though these rates were illegal and unreasonable, and illegal charges to obtain possession of property; nor when as a common carrier it should bave carried this payment of illegal taxes to prevent the sale of prop. freight at legal rates. The special master found that erty. Here the defendant was a common carrier of "the sums exacted were illegal and unauthorized, and such freights as plaintiffs had for transportation; the plaintiffs were required to pay the same for the trans- State had given the defendant, through its purchase portation of their property, without which the plaints of this part of the road, its right to use this road, and iffs in each of said cases, by reason of the character of had limited its rate of charges. The plaintiffs' busitheir manufacturing business, would have suffered ness was dependent on transportation by the defendgreat loss.”

ant, and they were entitled to have their freight carThe defendant did not require the payments to be ried at legal and reasonable rates. The defendant made in advance of carrying each shipment of freight, prescribed rates illegal and unreasonable, and required but the charges of each month were required to be its agents to demand and receive such rates or not to paid at the end of the month or future freight would carry the freight. Plaintiffs, objecting and protesting not be carried.

against the basis and the amount of the charges, paid Plaintiff's could compel the defendant to carry their them at the end of each month, and they so paid the freight only by a resort to the courts and at the end of illegal charges to procure the future transportation of litigation. The history of these suits began in 1867, their freight. and just ending in 1884, shows that plaintiffs could not The case of Swift Co. v. United States, 111 U. S. 22, is obtain speedy and adequate redress—such as would very much like this. There the commissioner of inBare their business and prevent loss-simply by a re- ternal revenue had acted upon a wrong basis in charge Bort to the courts to enforce legal rights. And as de- ing stamps for friction matches. The Swift Co. gave fendant would not accept the payment of legal rates, orders for stamps, and paid for each purchase within and required the full payment of its illegal charges, the sixty days from the delivery of the stamps; and thus plaintiffs complaining and objecting to the lincreased dealt from 1870 to 1878. No protest had been made by and illegal charges, were forced to pay them. Their the company, though years before, in 1866, a member choice and volition were compelled. Such payments of the company “made repeated protests to the officers are not voluntary.

of the Internal Revenue Bureau against the methods We will refer to some authorities and reasons of this of computing commissions" in similar cases. position. “The common principle is that if a man The court held: “A course of business and a period chooses to give away his money, or to take the chance ical settlemeut between the commissioner of internal whether he is giving it away or not, he cannot after- revenue and a regular periodical purchaser of revenue ward change his mind; but it is open to him to show stamps, entitled by statute to commission on his purthat he supposed the facts to be otherwise, or that he chases, payable in money, which shows that the comreally had no choice." Pol. Prin. Cont. 523. These missioner asserted and the purchaser accepted that plaintiffs “really had no choice.” In 1760, in Moses the business should be conducted upon the basis of V. Macferlan, 2 Burr. 1005, Lord Mansfield said: “This payments of tho commissions in stamps at their par kind of equitable action to recover back money, which value instead of in money, does not preclude the purought not in justice to be kept, is very beneficial, and chaser from asserting his statutory right, if he had no therefore much encouraged. It lies only for money choice, and if the only alternative was to submit to an which, ex aequo et bono, the defendants ought to re- illegal exaction or discontinue his business." And the * But it lies for

money got court also held: “When the commissioner of internal through * an undue advantage taken of the revenue adopted a rule of dealing with purchasers plaintiff's situation, contrary to laws made for the pro- of stamps which deprived them of a statutory right to tection of persons under those circumstances.' The be paid their commissions in money, and obliged them plaintiffs paid this money in like situation.

to take them in stamps, and made known to those inIn Parker v. Great Western Ry. Co., 7 M. & Gr. 253, the terested that the rule was adopted and would not be court held that payments made to a common carrier changed, the rule dispensed with the necessity of to induce it to do what by law, without them, it was proving in each instance or complying with it that the bound to do, were not voluntary, and might be recov. compliance was forced.” ered back. Add. Cont. *1043, approves this princi. Mr. Justice Matthews said: “No formal protest ple. Mr. Justice Matthews, in Swift Co. v. United | made at the time is by statute a condition to the presStates, 111 U. S. 29, approves the doctrine, and calls | ent right of action, as in cases of action against the


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collector to recover back taxes illegally exacted;" and ) necessity of the appellee was so great and pressing as the court did not require any protest. The rule was to deprive him of the freedom of his will." adopted by the commissioner, and would not be The case of Chicago & Alton R. Co. v. C., V. & W. changed on further application; and business could be Coal Co., 79 Ill. 121, is as follows: "Certain individtransacted only on that footing; and they paid within uals constructed a railroad twelve miles long, extendsixty days. Here the rates were fixed by the defending from a coal mine, belonging to a coal company, to ant, and the shipper must pay or forego shipment, and a station on the Illinois Central Railroad, and on the plaintiffs paid within thirty days. In principle the 30th of April, 1869, they sold the same to a railroad cases are alike.

company, and turned it over to them, and on the same In McGregor v. Erie Ry. Co., 35 N. J. L. 89-113, day the company purchasing it turned it over to anplaintiff recovered back from defendant certain mon- other railroad company. The last-named company opers unlawfully demanded and taken for transporta- erated the road in pursuance of the contract of sale betion of merchandise from Paterson to Jersey City. | tween the first owners and the purchasers from them Bedle, J., said: “In these cases there was no express for three years, complying with the terms of said conrefusal, but I do not consider it necessary that the re- tract as to the rates of freight to be charged to the coal fusal should be express. It is sufficient if the person company for the transportatiou of its coal. The indibas just and reasonable ground to apprehend that un- viduals building and selling the road and the coal comless the money is paid his goods will not be carried, or pany were the same. Held, that the railroad comwill be withheld. Where a corporation or person has pany last purchasing, by taking the road and recog. the power to refuse a right to which a party is entitled, I nizing the rates of freight established by the contract of unless he complies with an unjust demand, they do not sale, adopted the contract, and were bound by its stand on an equal footing.” And the court held: ) terms, and that the coal company could maintain an "But when they are not on an equal footing, and action against them for a breach of it.” money is paid not by compulsion of law, but by com- "In such a case, where the coal company had no pulsion of circumstances--as when it is paid to release other outlet for its coal, and the railroad company exgoods from illegal restraint, which cannot otherwise acted more freight than by the terms of the contract be reasonably effected, or to compel the performance | they were entitled to, the coal company should be of a duty by others in order to enjoy or obtain a rigut considered as under a kind of moral duress, and the -it may be recovered back. Under this head may be payment by them of the freight demanded under such classed moneys paid under color of title or charges ou circumstances could not be considered voluntary, and turupikes and railroads."

they would have the right to sue upon the contract, "Courts will not be illiberal in allowing a person to act and recover back the excess of freight paid over the upon his reasonable apprehension of such refusal, contract rate." where the circumstances fairly show that unless he Mr. Justice Breese said: “It can hardly be said these does so submit to the demand, his right will be with enhanced charges were voluntarily paid by appellees. held.”

It was a case of life or death' with them, as they had In Lafayette & Indianapolis R. Co. v. Pattison, 41 no other means of conveying their coals to the marInd. 312, the excessive charges were recovered back. kets offered by the Illinois Central, and were bound to The syllabus contains the following: “During the re- accede to any terms appellants might impose. They bellion A. bad a contract to furnish the government were under a sort of moral duress by submitting to with a certain number of beef cattle during two which appellants have received money from them months, and for the purpose of filling such contract, which in equity and good conscience they ought not went to Chicago and made a contract with a railroad to retain.' company to ship cattle for him to Indianapolis at $65 In Mobile & Montgomery Ry. Co. v. Steiner, 61 Ala. 559 per car; and leaving an agent to ship, he returned to illegal charges for transporting cotton were recovered Indianapolis to receive the cattle. The cattle of the back. The court held: “The nature of the business first shipment of two car loads were sent to the cattle considered, the shipper does not stand on equal terms yard of A., and after a few days a bill for $201.02 was with the carrier, in contracting for charges for transsent to A., which he refused to pay, and informed the portation; and if the shipper pays the rates established agent of the railroad company that he had a contract in violation of law by the carrier rather than forego for the shipment at $65 per car; the agent denied his services, such payment is not voluntary in the lekuowledge of any such contract, and insisted that the gal sense, and the shipper may maintain his action bills must be paid as presented, and that he would not for money had and received to recover back the illegal deliver any future car loads of cattle until the freight charge.” was paid, as he made it up from the way bills, and

To the objection that the payments were voluntarily that the bills included other things besides freight, made, and therefore could not be recovered back, which he could not itemize. It was agreed that A. Stone, J., said: “Railroads have so expedited and should pay under protest, and also future freight, and cheapened travel and transportation; have so driven the cattle should be delivered as they arrived, and A.

from their domain all competing modes of transportashould reserve the right to recover any sum so paid tion, that the public is left no discretion but to em. onjustly. In pursuance of this agreement the agent ploy them, or suffer irreparable injury in this age of delivered the cattle at the yard of A. as they arrived steam and electricity. They have their established from time to time, and as soon as the bills were pre

rates of charges, and these the shipper must pay or forepared they were paid by A.

go their facilities and benefits. To object or protest Hell, that the payments were not voluntary, and would be an idle waste of words. The law looks to that A. could recover all suins so paid in excess of his the substance of things, and does not require useless contract price.”

forms or ceremonies. The corporation and the shipper And Buskírk, J., says: “We are of opinion that the are in no sense on equal terms, and money thus paid money so paid could be recovered back if there had to obtain a necessary service is not voluntarily paid, been uo valid agreement that it might be. While the as the law interprets that phrase.” appellants were not in the actual possession of the cat- The above citations are sufficient. tle of the appellee, they possessed such power and con- The foregoing principles and authorities show that trol over the sbipment and delivery thereof as gave

the payments made in this case should not be regarded them an oudue advantage over the appellee, and the

as voluntary, and that no principle of equity shown by

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