1. The statutes of this state provide that on railroads leased or united by virtue thereof the rates for fares and freights shall not be increased. P. S., c. 156, s. 42; Laws 1889, c. 5, s. 17; Laws 1883, c. 100, s. 17. The first defence involves the meaning of this provision. It is claimed that the statute does not prohibit the increase of some rates, provided that in the readjustment other rates are reduced to such an extent that there is no increase in the aggregate. I dissent from the decision that this claim is sound.
The two later statutes on this subject (Laws 1889, c. 5, s. 17; P. S., c. 156, s. 42) are merely reenactments of the earlier one (Laws 1883, c. 100, s. 17). State v. Railroad, 75 N.H. 327, 330. It was said in the case just cited that the act of 1883 "was intended to limit the power to increase rates . . . to the maximums stated in the schedules referred to in section 17" (p. 331), and from this the plaintiffs argue that the question has already been settled adversely to the defendants. But it is claimed that this particular question was not involved in that case, because the allegation there was that all rates had been increased. When the case was again before the court, conclusions based upon this construction of the act were stated to be founded upon a concession that this was the meaning of the language used. State v. Railroad, 76 N.H. 146, 158.
The acts of which the language under consideration forms a part marked a new departure in railroad legislation in this state. The *Page 245 earlier policy of protection to the public by competition was abandoned. This result was not brought about until the subject had been thoroughly discussed. There was widespread opposition to the change, and the argument that with competition eliminated there would be added danger of unfair treatment of the public was constantly urged. It was to provide against this danger that the prohibition was enacted. Much of that discussion has been preserved and is to be found in the state library. The three volumes entitled "Railroad Controversy" give some idea of what the people were at that time considering. An examination of this and other collections shows that the thought of the people was frequently directed to specific rates. Counsel who argued before committees of the legislature furnished printed tables showing in detail rates from one point to another. As one witness testified, these tables were prepared so that the individual could see just what the rates from his own town would be under the new law. In the cross-examination of a witness before a committee of the house in 1887, Counsel for the Concord railroad asked: "There is a rate from Manchester to Laconia today?" Being answered affirmatively, he further inquired: "If the law provides that that rate shall not be increased, you will not be injured, will you?" One will search in vain for any suggestion in all that prolonged discussion that any rate was to be raised as a part of a larger readjustment of rates. In the report of the railroad commissioners to the legislature of 1889 (pp. 13, 14), it was stated in terms that the rates on some of the weaker roads were below what would yield any fair return upon the capital invested if they were operated independently; that the stronger roads were willing to agree to keep them there in return for the advantages of consolidation; and it was urged that such offers ought to be accepted by the state.
In view of these facts, it seems highly probable that the legislature in speaking of rates for fares and freights had in mind the specific rates then in force. These rates were definite boundaries. They provided an easily ascertained limit to the power of the railroads. G. L., c. 163, s. 1; P. S., c. 160, s. 3. Remembering that it was with reluctance that the old safeguards were abandoned, and that, whether justly or not, the people of the state were suspicious of every move toward consolidation, there would be every reason to expect that some such definite limitation upon the power to levy tolls would be insisted upon.
It may be conceded that the schedules then in effect were *Page 246 unscientific and discriminatory. But the only remedy then suggested was lowering the higher charges. The people of the state insisted upon assurances against any increase of rates, and the only prospective changes suggested by the representatives of the railroads were reductions. It can readily be surmised what the fate of these proposed statutes would have been if it had been publicly stated that the term "the rates for fares and freights" meant the aggregate of all rates, and that quite likely a good many rates would be raised.
Nor does the other provision of these acts, that the decreased cost of operation, incident to consolidation, shall be met by a decrease of rates for fares and freights, militate against the conclusion that the limitation of maximum charges applies to specific rates. If by reason of decrease in operating expenses it became equitable to reduce rates, the fact that no rate could be increased would not seem to interfere with the just decrease demanded by the new situation.
It is to be borne in mind that these statutes were not enacted by those expert in the present-day science of rate regulation, but by the New Hampshire legislators of thirty years ago. They thought and expressed themselves in the light of the knowledge of this subject then possessed by men in general. Whatever defects in their acts the larger knowledge of the present day and the experience of the intervening time may show were not apparent to them. The thought evidently uppermost in their minds was that the people were to be protected against any increase of rates. This they sought to express; and their intent to make the prohibition specific does not, to my mind, admit of serious doubt.
It is further argued that the provision of the companion act (Laws 1883, c. 101), giving the railroad commissioners power to fix maximum charges on all railroads, conflicts with the conclusion here reached. But there would seem to be no difficulty in making both acts effective. If occasion arose to alter rates within the permitted limit, the commissioners might so act. And as to railroads not leased or united under these statutes, the commissioners were free to act without such limitation. When the commissioners first acted under this law, they made sure that the rates in force in 1883 had not been increased on any lessor or lessee road, before giving their approval to the rate proposed. R. R. Comm'rs' Rep., 1886, pp. 18, 19.
The suggestion that the rates fixed were established for all time *Page 247 is not entitled to very serious consideration. Relief could be granted by any legislature, as indeed it was granted by the last one. Laws 1913, c. 106. The great point in mind was that the state proposed to retain the fullest control of the situation. It intended to have a control which was of practical value, as distinguished from a merely theoretical one. It intended also to reserve to each individual shipper a real weapon of defence against an increase of rates — of his rates, if one chooses to put it that way. This was the consideration given by the roads for the privilege of consolidation. The rates then discussed were the definite, individual sums for individual pieces of service. This is what the railroad commission talked about in its report of 1889, urging the state to close a bargain whereby the rates on the weaker roads would be fixed. There was no suggestion then that this fixing of rates was to be made inefficient by a process of dilution. There was no hint that these rates were to be averaged with all the rates of all the system (no matter how great the system should become) before there could be any determination of how the facts were as to an increase. Rates were thought of and talked about as units.
And this is the fair, sensible, non-technical meaning of the language used. To the mind of the average New Hampshire legislator, the term "the rates for fares and freights" means the table of prices charged by the road. It is believed that no one thought the statute meant anything else until within a very few years. As late as 1909 it was said, in an opinion in which all the justices concurred: "It appears that it was intended to limit the power to increase rates on roads leased or united under the act to the maximums stated in the schedules referred to in section 17." State v. Railroad, 75 N.H. 327, 331.
Much time has been spent, upon both sides, in discussing the mere scholastic question of the fit construction of words. Unquestionably, some logical argument for either conclusion is to be found. But the case ought not to be, and is not, decided upon a nice balancing of fine deductions. What is the central reason urged by the majority in the foregoing opinions? It seems to me to be this: the conclusion reached is held to be the correct one because it gives the best results for the state. In varying forms, the evils to flow from the conclusion that the rates referred to are specific rates are dwelt upon, until they are made to appear so great that the majority deem it impossible to think that the people of the state could have intended such consequences. This was the whole tenor *Page 248 of the last argument for the defendant. It is improbable, they say, that the state could ever have desired or contemplated such a situation. It is somewhat remarkable that such arguments should be made the basis for the decision of this case, in view of the fact that all the while the state appears here as a party and insists that it desires the result which the majority of the court think the state cannot desire.
There is considerable evidence how the state has viewed the question in the past. It is all one way. The first recorded official utterance is the report of the railroad commissioners in 1885. In informing the legislature of what had been done under the act of 1883, they say (pp. 18, 19): "The assurance was given by the Boston Maine, and we have no evidence showing the contrary, that the rates existing on the leased lines and on the roads of the lessee have not been increased. No increase could lawfully take place under the act of 1883." Again, in 1889, the commission advised the legislature in the following significant language (p. 14): "Our state has great advantage of position and circumstance in railroad matters, which it should avail itself of while it can be done. Because the managers of two wealthy corporations desire to extend their power and control by building up railway systems in which our roads must be links, they are willing to take these roads upon terms which make them, for the time being at least, sources of loss instead of profit. Because they want our business and what goes with it, they offer to do it at cost or less, trusting to the indirect benefits that may accrue to them from doing a largely increased traffic upon their own roads to balance the draft upon their treasuries from our northern lines. We should take them at their word." It is certainly fair to presume that the legislature acted upon this advice. It passed the act of 1889 with full information that rates were unequal and that the purpose was to keep them so until the higher ones were reduced. This is what the evidence shows the legislature thought. And as before stated, the position of the state in all the litigation growing out of these acts has been that this is their meaning. If there is any evidence that a different view has ever been expressed by the state, it has not been found.
These considerations seem to me to show that the assumption of the majority has no sufficient foundation. That assumption imputes to the legislatures of 1883 and 1889 a knowledge that a statute applying to specific rates would be fantastic, irrational, and in every way unjust. But the evidence is that all the advice given *Page 249 by the state's railroad experts of those days was to the effect that such a law ought to be adopted. At the same time, counsel for the roads were urging upon the legislators the fairness and equity of the provision they now denounce. There is nothing to show that it was ever suggested to the legislators of 1883 and 1889 that a law applying to specific rates would be unjust. The majority opinions disregard all this evidence and seek to show by abstract reasoning alone the legislators' state of mind.
It is to be assumed, the majority say, that these legislators knew this and that, and, so knowing, must have concluded the law would be impolitic. As before suggested, one sufficient answer to this proposition is that the people of today know the situation well, and yet they are insistent in their demand that the law as to specific rates be retained. This was the sentiment of our recent legislatures. This is the view of our public service commission, whose indictment of the general rate situation is the basis of the last argument here for the defendant. This is the practical answer the theoretical proposition that everybody must understand that the law is undesirable and unjust.
Nor is this the equivalent for a construction of statutes by plebiscite. The question being what certain words mean to certain men, we must know how those men use words. If we would interpret the phrase of the street, we must be wise in the vernacular.
The majority, having become convinced in their own minds that a statute relating to specific rates would be unjust, conclude that other men must be of the same mind. This erroneous conclusion as to the mind of others might not be important in most cases. It is important here because it is the basis upon which the majority conclusion is made to rest. The argument is that since all men must think the law unjust and impolitic, therefore such result could not have been intended. The chain being no stronger than its weakest link, and the error as to the mind of others being one link, the conclusion lacks support.
Herein is the real difference of opinion in this case: The majority believe reasonable men generally must think a law applying to specific rates undesirable. The minority deny that such opinion exists, or has existed in the past, and believe that there is satisfactory evidence of a different public and legislative opinion. Starting with these fundamentally different views, it is almost inevitable that we should arrive at different conclusions in the interpretation of the statutes. *Page 250
2. Another defence here made is that there is no private right of action for a violation of the terms under which leases of railroads are permitted by the state. The statute is in effect an amendment to the railroad charters, which the corporations were at liberty to accept or reject. State v. Railroad, 75 N.H. 327, 330. When they accepted, the whole act became binding upon them. They assented to its terms and cannot now repudiate them while attempting to retain the powers thereby conferred. The rates in question form a part of the agreement. Being so fixed by the legislature, there is at least a prima facie presumption that they are reasonable; and "the defendants, having accepted the benefits of the act, are estopped to show the contrary." State v. Railroad, supra, 336; Robinson v. Harmon,157 Mich. 266. It follows from this, that the complaint here is for charging unreasonable rates. Such an exaction gives rise to a cause of action in behalf of the individual injured thereby, both under the statute (P. S., c. 160, ss. 1, 2) and at common law. McDuffee v. Railroad, 52 N.H. 430; Texas etc. Ry. v. Company, 204 U.S. 426, 436.
There was no occasion to insert in the acts of 1883 and 1889 a specific provision for a right to private redress. The existence of the right must have been well understood after the decision in McDuffee v. Railroad, supra. And section 28 of the act of 1883 furnished further evidence that this was then the legislative understanding. That section provides a penalty for a violation of the long and short haul limitations in the preceding section. It introduces the provision in this language: . . . "in addition to liability for all damages sustained by reason of such violation, shall be liable for each offence to a penalty," etc. The defendant argues that this shows a legislative intent to give a private action for a violation of section 27 and to deny it as to others, as to which the act is silent. But this is not the language ordinarily used to create a right. It is rather that employed to express knowledge of a right already in existence. It was used here to prevent the defence being made that the imposition of the penalty evidenced an intention to take away the existing private right. If it had been the intent to here create a private right, the same language would have been used that was employed the same day in the reenactment of another statute upon the same subject. "Every railroad corporation . . . shall be liable to a penalty . . . and to the party aggrieved in an action of damages." Laws 1883, c. 105. The legislature of 1883 understood how to express the creation of a right in positive *Page 251 terms. They understood equally well how to express a mere acknowledgment that a right existed. They recognized that this act was to be more than a mere private compact between the state and the railroads, and that damages to individual rights would be caused by its violation.
It is not reasonable to suppose that legislators, who were manifestly seeking to provide every safeguard against the possibility of unfair treatment of the people of the state, would give the shipper an action for damages if he could prevail upon the debatable issue of whether a rate was reasonable (P. S., c. 160, ss. 1-3) and deny him relief in a case where the rate charged was in violation of the express terms of an act to which the offender had agreed. The legislature was seeking new safeguards. It was with a view to giving added means of protection that larger powers were given to the railroad commissioners. Laws 1883, c. 101, s. 5. It was not the intent to make those remedies exclusive. State v. Railroad, 75 N.H. 327.
3. The third defence is that the payments here sought to be recovered were made voluntarily and without protest. In answer to this, the plaintiffs say that under the facts in this case the conclusion as to whether the payments were voluntary is one of law, and that the law is against the defendant. It would be of little assistance, in the subsequent trial of the cause, to merely decide that voluntary payments cannot be recovered, while involuntary ones may be. The real question which will present itself at the trial is what does or does not constitute a voluntary payment.
It is the settled law of the state that money voluntarily paid (that is, without coercion of any kind) cannot be recovered back (Keazar v. Bank,75 N.H. 278, 280, and cases cited), and it is equally true that money paid under duress may be. Alexander v. Pierce, 10 N.H. 494; Davis v. Smith,68 N.H. 253. And it has long been held that in an action for money had and received a recovery may be had for coercion which would not amount to the duress necessary to the avoidance of a contract. Keener Quasi-Cont. 426, note 2. "The action for money had and received, in its spirit and objects, has been correctly likened to a bill in equity; and it may in general be maintained whenever the evidence shows that the defendant has received or obtained possession of money belonging to the plaintiff, which in equity and good conscience he ought to refund to him. It lies only for money which, ex oequo et bono, the defendant ought to refund; as for money paid by mistake, or upon a consideration *Page 252 which happens to fail, or for money obtained through imposition, express or implied, or extortion or oppression, or an undue advantage taken of the plaintiff's situation. In one word, the gist of this kind of an action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." Lockwood v. Kelsea, 41 N.H. 185, 187, 188.
"Money paid to one who, because of his position, is under an obligation to discharge certain duties to the public, but who refuses to discharge such duty without the payment of a sum of money, to which he is not entitled, can be recovered as money paid under compulsion." Keener Quasi-Cont. 437. This proposition is fully sustained by the English authorities. Dew v. Parsons, 2 B. Ald. 562; Steele v. Williams, 8 Exch. 625; Parker v. Railway, 7 M. G. 253. In this country the weight of authority seems to be the same way. Chase v. Dwinal, 7 Me. 134; Beckwith v. Frisbie, 32 Vt. 559; Mobile etc. Ry. v. Steiner, 61 Ala. 559; Chicago etc. R. R. v. Company, 79 Ill. 121; Louisville etc. R. R. v. Wilson,132 Ind. 517; Scottish etc. Co. v. Herriott, 109 Ia. 606; Swift Co. v. United States, 111 U.S. 22.
The rule is applicable to common carriers because of the similarity of their position to that of one holding a strictly public office. "A common carrier is a public carrier. He engages in a public employment, takes upon himself a public duty, and exercises a sort of public office." McDuffee v. Railroad, 52 N.H. 430, 447, 448. "Contracts of common carriers, like those of persons occupying a fiduciary character, giving them a position in which they can take undue advantage of the persons with whom they contract, must rest upon their fairness and reasonableness." Railroad Co. v. Lockwood, 17 Wall. 357, 380. In a few jurisdictions a different view has been taken. Killmer v. Railroad, 100 N.Y. 395; Potomac Coal Co. v. Railroad,38 Md. 326; Bernhardt v. Railroad, 135 N.C. 258; Kenneth v. Railroad, 15 Rich. 284; Arnold v. Company, 50 Ga. 304. Several of these cases were disposed of because of rules as to duress which do not prevail in this state, or because of special circumstances which convinced the court that in the particular instance a recovery would be inequitable. In so far as they deny the general principle laid down by Keener, they are contrary not only to the weight of authority, but to the law as it has been declared in this jurisdiction. Ford v. Holden, 39 N.H. 143. In that case the defendant, who was one of the selectmen of Rumney, refused to put the plaintiff's name upon the check-list unless he paid his taxes for years preceding that in which he sought the right to vote, which *Page 253 taxes had been abated. The defendant acted in good faith, and upon receiving the money from the plaintiff paid it to the town. In holding that the plaintiff was entitled to recover, the court say (pp. 147-149): "Upon every view that can be taken of the case, the plaintiff should have his remedy to recover back the money. He did not part with it voluntarily. It was not, indeed, extorted from him literally by duress of person or property, but it was by withholding from him his right. . . . It is the case of the exercise by the selectmen of their official power to obtain money from the plaintiff, which they honestly supposed they were entitled to demand as a condition precedent to their inserting his name upon the list, but to which by law neither they as selectmen nor the town were entitled. . . . It would be strange, indeed, if the party from whom the money was thus extorted could have no remedy at law to recover it back. It was paid into the hands of the defendant, and upon receiving it he held it as money received by him to the plaintiff's use. His liability to account for it as money so received is in no way affected by the fact that he afterward delivered it over to the town treasurer as money belonging to the town." This case was approved in Plymouth v. Andover (Grafton, March term, 1869), 49 N.H. 86, foot-note.
The principles upon which these cases were decided have been applied in this jurisdiction to a variety of situations. The rule here is that excessive payments made under agreements with public officers may be recovered back, even when made "voluntarily." Edgerly v. Hale, 71 N.H. 138,148. Money paid to a pension attorney in excess of the fees allowed by the United States statutes may be recovered back, although the payment is made without demand or undue influence. This is because "the right of the pensioners to recover in such cases as this is necessary for the protection the statute was intended to give them." Ladd v. Barton, 64 N.H. 613. The same rule is applied to the payment of usury. "The law properly regards the lender on usury as the oppressor and the borrower as the oppressed, and therefore will not treat the payment of usurious interest as a voluntary payment, but rather as made under moral duress and through the constraint of a contract wrongfully obtained by taking advantage of the necessities of the borrower, and hence affords him relief." Albany v. Abbott, 61 N.H. 157,158; Cross v. Bell, 34 N.H. 82.
This principle has a general application to statutes prohibiting certain contracts, when the "contracts are prohibited by statute to *Page 254 protect one set of men against another." If "for that reason, or some other of like character, the parties are not par delictum, the law will lend its aid in favor of the innocent party, as in the case of usury." George v. George, 47 N.H. 27, 44; Welsh v. Cutler, 44 N.H. 561. In view of these decisions, there seems to be no doubt that it is the law of the state that payments to a common carrier in excess of what the carrier may legally charge can be recovered back in an action for money had and received, and that it is no defence that the plaintiff might have sought other remedies for the wrongful charges. Chase v. Dwinal, 7 Me. 134.
In some of the cases it appears to have been deemed an important fact that the plaintiff did or did not pay under protest; but this seems largely immaterial in cases of this class. The distinction has not been recognized in the cases in this state; and in each of those where a recovery has been upheld, it appears, either in terms or by necessary inference, that there was no protest. "If, independently of protest, the circumstances in which a payment is made would not justify a recovery thereof, the fact of payment under protest will not render such payment involuntary." Keener Quasi-Cont. 423, note 4.
As stated in the defendant's brief, the sole object of a protest in these cases is that it evidences the plaintiff's state of mind. It gives notice that he intends to claim his right to a repayment. The only cases where such notice would seem to be of importance would be those where the defendant had subsequently changed its position in reliance upon the validity of the payment. There is no suggestion of such a defence in the brief statement filed in this case, and Ford v. Holden, 39 N.H. 143, is an authority against it.
PLUMMER, J., concurred in the foregoing opinion. *Page 255