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competent to impeach this sale, none such | 37, 24 L. ed. 335, it was held that due pro was offered, and it may well be doubted cess of law did not require that a person whether due process of law, within the should have an opportunity to be present meaning of the 14th Amendment, requires when the tax was assessed against him, or a punctilious conformity with the statutory that the tax should be collected by suit; procedure, preceding and accompanying the and in Kelly v. Pittsburgh, 104 U. s. 78, sale. Whether all the steps required by law 26 L. ed. 658, that the general system of were actually taken in a particular case, procedure for the levy and collection of and whether the failure to take such steps taxes, established in this country, is, within would invalidate the sale, would seem to be the meaning of the Constitution, due process a matter for the state courts, rather than of law. In Bell's Gap R. Co. v. Pennsylva for this court, to decide; and it would ap- nia, 134 U. 8.* 232, 239, 33 L. ed. 892, 895, pear that the 14th Amendment would be 10 Sup. Ct. Rep. 533, 535, it was held that satisfied by showing that the usual course the process of taxation did not require the prescribed by the state laws required same kind of notice as is required in a suit notice to the taxpayer and was in con- at law, or even in proceedings for taking formity with natural justice. Exact- private property under the power of emi. ly what due process of law requires in nent domain. "It involves no violation of the assessment and collection of general due process of law when it is executed actaxes has never yet been decided by this cording to customary forms and established court, although we have had frequent occa- usages, or in subordination to the principles sion to hold that, in proceedings for the con- which underlie them.”. demnation of land under the laws of emi. The main objection to $ 25, above quoted, nent domain, or for the imposition of spe- seems to be that it makes the deed conclu. cial taxes for local improvements, notice to sive evidence of the regularity of all prothe owner at some stage of the proceedings, ceedings not appearing of record, and hence as well as an opportunity to defend, is es- that it is obnoxious to the ruling of this sential. Spencer v. Merchant, 125 U. S. court in Maro v. Hanthorn, 148 . 8. 172, 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; 37 L. ed. 410, 13 Sup. Ct. Rep. 508, in which Huling v. Kaw Valley R. & Improv. Co. 130 we held that, as the legislature could not U. S. 559, 32 L. ed. 1045, 9 Sup. Ct. Rep. deprive one of his property by making his 603; Hagar v. Reclamation Dist. No. 108, adversary's claim to it conclusive of its own 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. validity, it could not make a tax deed con. 663; Paulsen' v. Portland, 149 U. s. 30, 37 clusive evidence of the holder's title to land. L ed. 637, 13 Sup. Ct. Rep. 750. But laws But, conceding this to be so, there is an. for the assessment and collection of general other section proper to be considered in this taxes stand upon a somewhat different foot connection, and that is $ 29, which reads as ing, and are construed with the utmost lib follows: erality, sometimes even to the extent of “29. In all cases in which a question shall holding that no notice whatever is neces- arise as to any such sale or deed, or the ef. sary. Due process of law was well defined fect thereof, such deed shall be prima facie by Mr. Justice Field in Hagar v. Reclamar evidence against the owner or owners, legal tion Dist. No. 108, 111 U. 8. 701, 28 L ed. or equitable, of the real estate at the time 569, 4 Sup. Ct. Rep. 663, in the following it was sold, his or their heirs and assigns, words: "It is sufficient to observe here

that the person named in the deed that by 'due process' is meant one which, fol. as clerk of the county court was such, that lowing the forms of law, is appropriate to the sheriff or other officer who made the the case, and just to the parties to be af- salo was such sheriff or officer as stated in fected. It must be pursued in the ordinary such deed, that the material facts therein mode prescribed by the law; it must be recited are true, and that such estate as is adapted to the end to be attained; and mentioned in the 25th section of this chapter wherever it is necessary for the protection vested in the grantee in the deed.” of the parties, it must give them an oppor

Assuming the common-law rule to be, as tunity to be heard respecting the justice of stated by the elementary writers upon tax. the judgment sought. The clause in ques. ation, that the purchaser at a tax sale is tion means, therefore, that there can be no bound to take upon himself the burden of proceeding against life, liberty, or property showing the regularity of all proceedings which may result in the deprivation of prior thereto, it is entirely clear that stateither, without the observance of those gen facie evidence, not only of regularity in the

utes declaring the tax deed to be prima eral rules established in our system of ju: sale, but of 'all prior proceedings and of risprudence for the security of private rights.”

title in the purchaser, are valid, since the It was said in Witherspoon v. Duncan, 4 burden of proof, which rested at common

only effect of such statutes is to change the Wall. 210, 18 L. ed. 339, that the states, as law upon the purchaser, and cast it upon a general rule, had the right to determine the party who contests the sale. Indeed, the manner of levying and collecting, taxes the validity of these acts was*expressly af. • opon private property, and could declare a firmed by this court in Pillor v. Roberts, tract of land chargeable with taxes, irre 13 How. 472, 470, 14 L. ed. 228, 230, and spective of its ownership, or in whose name Williams v. Kirkland, 13 Wall. 306, 20 L i was assessed or advertised; and that an ed. 683. erroneous assessment did not vitiate the

Even if the provisions of 125, making sale. In McMillen v. Anderson, 95 U. S. irregularities of a sale immaterial, were in

valid, it would stil result that under 29 was a failure to perform some step required the facts recited in the deed would be pre by law. To hold a sale invalid upon these sumed to be true, and the burden be thrown allegations might result in upsetting every upon the landowner of disproving them. sale for taxes made in West Virginia for This burden the plaintiff has not assumed, the past twenty years. but he is content to rely, and stake bis We are of the opinion that no case is whole case, upon the fact that the return made by the bill, that the judgment of the of the sheriff did not show a compliance Circuit Court is correct, and it is therefore with the procedure marked out by the stat. affirmed. ute. Even if it were admitted that due process of law required the observance of all

(187 U. S. 63) the steps prescribed by this statute, it does KANSAS CITY SUBURBAN BELT RAIL not demand that they shall be made matter WAY COMPANY, Piff. in Err., of record, much less that they shall be made matter of a particular record, such, for instance, as the return of the 'sheriff of the ANDREW. HERMAN, a Minor, by His sale of the lands. Under the 14th Amend.

Next Friend, Martin Herman, and Union ment the legislature is bound to provide a

Terminal Railway Company. method for the assessment and collection of taxes that shall not be inconsistent with Removal of causes separable controversy natural justice; but it is not bound to pro

-fraudulent joinder. vide that the particular steps of a procedure for the collection of such taxes shall be a second application for removal to a Federal

court raising the issue of fraudulent joinder proved by written evidence; and it may

of defendants, when made after a ruling 818properly impose upon the taxpayer the bur- talning, in favor of one of two defendants, den of showing that in a particular case a demurrer to the evidence, cannot be re the statutory method was not observed. garded as erroneously denied by a state The fact that the return of the sheriff does court, where the evidence demurred to ts not not recite the various steps of the proced

made part of the record, and this issue was ure, when the statute does not contemplate

first raised on the second application, with. that it shall do so, is no evidence whatever

out stating when the petitioner first learned

of the fraud, and the averments of fraud that they were not followed to the letter.

were specifically denied, and, so far as the If the plaintiff had alleged that in the pro- record discloses, the petitioner, who had the ceedings for the sale of these lands the sher. affirmative of the issue, talled to make out iff had failed to comply with the law, and Its case. the defendant had pleaded that by the curative section (25) irregularities not appear.

(No. 321.] ing of record would not vitiate the deed, the constitutionality of that section would submitted October 20, 1902. Decided No properly be raised; but the plaintiff in this

vember 3, 1902. case was content to put his bill upon the ground that the , namely, the sher- ERROR to the Supreme the procedure prescribed by statute, preced. aftirming a judgment of the Kansas Court ing and accompanying the sale, had been of Appeals which had affirmed a judgment followed. This is an effort to test the con- of the Court of Common Pleas of Wyanstitutionality of the law, without showing dotte County in favor of plaintiff in a suit that the plaintiff had been injured by its ap- to recover damages for personal injuries. plication, and, in this particular, the case On motion to dismiss or affirm. Affalls within our ruling in Tyler v. Registra- firmed. tion Court Judges, 179•U. Š. 405, 45 L. ed. See same case below, 68 Pac. 46. 252, 21 Sup. Ct. Rep. 206, wherein we held that the plaintiff was bound to show he had Statement by Mr. Chief Justice Fuller: personally suffered an injury before he This was an action brought by Andrew could institute a bill for relief. In short, Herman, a minor, by his next friend, in the the case made by the plaintiff is purely aca court of common pleas of Wyandotte coundemic. For aught that appears, the pro- ty, Kansas, September 18, 1897, against theo ceedings may have been perfectly regular, Union 'Terminal Railway Company, a corpo and his bill rests solely upon the proposi- ration of Kansas, and the Kansas City tion that there may have been irregulari. Suburban Belt Railway Company, a corpo ties in the sheriff's sale, and that, if there ration of Missouri, to recover damages for were, the statute validating the deed, not injuries inflicted through their joint or withstanding such irregularities, is uncon. concurrent negligence. stitutional and deprives him of his prop- The belt railway company, October 18, erty without due process of law. This 1897, filed a verified petition and bond for proposition contains its own answer. removal, in proper form, on the ground of a

The exact case, then, made by the bill, is separable controversy; which petition and this: The plaintiff seeks to avoid a sale leged the controversy between plaintiff and made twelve years before by an allegation petitioner to be distinct and separable from that the record, namely, the sheriff's re- that between plaintiff and the Union Terturn of the sale, does not show a compliance minal Railway Company, on these grounds: with the statute in certain particulars, "1. Defendant the Union Terminal Rail without also averring that in fact there way Company owns, repairs, and maintains

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the railroad mentioned in plaintiff's peti- Railway Company was joined with this de tion. Your petitioner has no interest there fendant fraudulently, and for the sole purin, except that it has leased same and pays pose of preventing a removal of this cause certain yearly rental for the use of said to the circuit court of the United States, tracks. All of the locomotives, engines, and with no purpose or intent of attempt and cars running over said railroad are the ing to show any cause of action against it property of your petitioner, or subject to "This defendant now here shows to the its control. Defendant terminal company court that there is a separable controversy, has no control over the operation of trains, and that the plaintiff's cause of action ex. and has no employees in train service. ists against the defendant alone, and in Defendant the Union Terminal Railway powise against the said defendant the Un. Company is responsible for the condition of ion Terminal Railway Company. That no the track, and your petitioner, and none cause of action ever existed against the de other, for the acts and doings of all persons fendant the Union Terminal Railway Comoperating trains.

pany, as plaintiff at all times well knew." “2. The plaintiff herein has declared upon In response to this petition plaintiff filed, two distinct causes of action: First, for without objection, an affidavit which stated, maintaining a defective switch; and, sec- among other things, that it was not true ond, for negligent operation of a train of "that plaintiff joined the Union Terminal cars; the first of which, if true, is negli- Railway * Company as defendant therein gence chargeable against defendant the fraudulently, or for the purpose of giving Union Terminal Railway Company, and the this court jurisdiction of the petitioner, second, if true, is negligence chargeable but, on the contrary, plaintiff avers that against your petitioner.

said action was brought in good faith "3. The train of cars mentioned in the against both defendants as joint tortfeas. petition was operated by your petitioner as ors, and that plaintiff believed in good faith averred. All of the parties in charge there that he has a joint cause of action against of were in your petitioner's employ, and both defendants, and had subpænas issued none other.

for witnesses to prove directly the respon"4. By reason of the foregoing, your pe sibilities of the Union Terminal Railway titioner says that whatever cause of action Company for the injuries sustained by plaintiff has for negligent operation of said plaintiff; but that, on account of the re railroad train lies against your petitioner moval of a witness from the state, plaintiff exclusively.”

was, at the last moment, unable to obtain The application for removal was heard certain testimony which, if introduced, February 5, 1898, and, upon argument, de would have tended to prove the joint liabil. nied. The belt company thereupon filed a ity of said defendants. That plaintiff has transcript of the record in the circuit court excepted to the ruling of the court sustain. of the United States for the district of ing a demurrer to the evidence on the part Kansas, and plaintiff made a motion to re of the Union Terminal Railway Company in mand, which was sustained by the circuit the trial of this case, for the purpose of court and the cause remanded to the state preserving his rights in this action against court "on the day of May, 1898." both of said defendants jointly." And it Each of the two railroad companies defend. was further stated that counsel had relied ant then filed its separate demurrer May on the production, on notice which had been 28, 1898, assigning as causes misjoinder of given, of "writings showing the relations parties, and that plaintiff had not stated a existing between the two defendant compacause of action, or facts sufficient to consti- nies in the operation and maintenance of tute a cause of action, against it. These their lines of railroad where the injuries demurrers were severally overruled, and were received," and on an agreement with the defendants severally answered. The counsel for both of the defendants to admit cause came on for trial October 18, 1898, the facts as to the relations between said and on October 20, at the close of the evi. companies, which, when it was too late to dence for plaintiff, each company filed its adduce other testimony, was not fulfilled. separate demurrer to the evidence on the The application for removal was over ground that the same was not sufficient to ruled, and the belt company excepted, but establish a cause of action against it. The took no bill of exceptions embodying the court sustained the demurrer of the termi- evidence to which the demurrers had been nal company, the Kansas corporation, and directed. The trial then proceeded, and entered judgment in its favor, to which resulted in a disagreement of the jury. ruling of the court plaintiff at the time ex- Plaintiff subsequently filed an amended cepted; and the court overruled the demur- petition reducing the damages claimed to rer of the belt company, the Missouri cor-less than $2,000, and the cause was again poration, to which ruling the belt company tried, and resulted in a verdict and judg. excepted. Thereupon, the belt company ment in favor of plaintiff for $1,500. Tho filed a second verified petition for removal, cause was carried to the Kansas court of which, after rehearsing the prior proceed-appeals and the judgment affirmed, and ings, thus continued :

thence to the supreme court of Kansas, with "And the defendant further says that no like result. Kansas City Suburban Belt R. evidence was offered or introduced by plain-Co. v. Herman, 68 Pac. 46. tiff, or attempt made, to show a cause of A writ of error from this court was then action against said Union Terminal Rail- allowed by the chief justice of Kansas, and way Company; that said Union Terminal 'citation issued to and acknowledged on be

case

half of Herman and the Union Terminal while he was serving the Chicago company Railway Company. The case was submit- as a locomotive fireman, in the collision of ted on motions to dismiss or affirm.

the locomotive on which he was at work and

another locomotive operated by Whitcomb Messrs. Gardiner Lathrop, Thomas and Morris as receivers. The Chicago comR. Morrow, Samuel W. Moore, and pany answered the complaint, and the reJohn M. Fow for plaintiff in error.

ceivers filed a petition for the removal of Vessrs. Silas Porter and W. B. Sutton the cause int the circuit court of the for defendants in error.

United States for Minnesota, alleging di.

verse citizenship; that they were officers of Mr. Chief Justice Fuller delivered the the United States court; that the controopinion of the court:

versy was separable, and that the railway The question is whether the state court company was fraudulently made a party to erred in denying the second application for prevent removal. Plaintiff answered the peremoval, and in view of our previors rulings tition, and asserted that the company was in respect of such applications we think made party defendant in good faith, and there was color for the motion to dismiss. not for that purpose. An order of removal And reference to two recent decisions of was entered, and the cause sent to the cir. this court will indicate the reasons for our cuit court, which thereafter remanded it to conclusion that the motion to affirm must the state court. Trial was had, and, after be sustained.

the testimony was closed, counsel for the In Pouers v. Chesapeake & 0. R. Co. 169 Chicago company moved that the jury be inU. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. structed to return a verdict in behalf of 264, the railroad company filed its petition that defendant, which motion was granted. for removal on the grounds of separable The receivers then presented a petition for controversy, and that its codefendants were removal, but the court denied the applicafraudulently and improperly joined in or- tion, and exception was taken. The court der to defeat the company's right of re thereupon instructed the jury to return a moval. The transcript of the record of the verdict in favor of the Chicago company, state court was filed in the circuit court of which was done, and the cause went to the the United States, and a motion to remand jury, which returned a verdict against *the was sustained for want of separable contro receivers and assessed plaintiff's damages. versy. Thereafter, when the was Judgment was entered on the verdict, and called for trial in the state court, plaintiff subsequently affirmed by the supreme court discontinued his action against the code of Minnesota on appeal, and a writ of error fendants, and the company filed a second was sued out from this courte Motions to petition for removal, which was denied. dismiss or affirm were submitted, and we The company then again filed a transcript held that there was color for the motion to of the record of the proceedings in the cir- dismiss, and affirmed the judgment. We cuit court, and plaintiff again moved to re- there said: “The contention here is that mand, and the circuit court, being of opin: when the trial court determined to direct a ion that plaintiff had fraudulently joined verdict in favor of the Chicago Great Westthe codefendants in order to defeat the re- ern Railway Company the result was that moval, and was estopped to deny that the the case stood as if the receivers had been second petition for removal was filed in sole defendants, and that they then acquired time, denied the motion to remand. 65 a right of removal, which was not concluded Fed. 129. Final judgment was afterwards by the previous action of the circuit court. rendered in the company's favor, and a*writ This might have been so if, when the cause of error was sued out from this court on the was called for trial in the state wurty sole ground that the cause had not been plaintiff had discontinued his action against properly removed into the circuit court. the railway company, anu thereby elected The judgment was affirmed, and it was held to prosecute it against the receivers solely, that “when this plaintiff discontinued his instead of prosecuting it on the joint cause action as against the individual defendants of action set up in the complaint against all the case for the first time became such a one the defendants. Powers 0. Chesapeake & as, by the express terms of the statute, the 0. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 defendant railway company was entitled to Sup. Cl. Rep. 264. But that is not this remove; and therefore its petition for re- The joint liability was insisted on moval, filed immediately upon such discon- here to the close of the trial, and the nontinuance, was filed in due time." But we liability of the railway company was ruled did not pass upon the questions of fraudu in invitum.” lent joinder and estoppel, because the ap- It was pointed out that the ruling of the plication was seasonably made and stated trial court "was a ruling on the merits, and sufficient ground for removal apart from not a ruling on the question of jurisdiction. fraud.

It was adverse to plaintiff, and without his In Whitcomb v. Smithson, 175 U. S. 635, assent, and the trial court rightly held that 44 L ed. 303, 20 Sup. Ct. Rep. 248, the ac- it did not operate to make the cause then tion had been brought by Smithson, in a removable, and thereby to enable the other Minnesota court, against the Chicago Great defendants to prevent plaintiff from tak. Western Railway Company, and H. F. ing a verdict against them. The right to Whitcomb and Howard Morris, receivers of remove was not contingent on the aspect the Wisconsin Central Railroad Company, I the case may have assumed on the facts de to recover for personal injuries inflicted, veloped on the merits of the issues tried."

89.

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We held also that the judgment of the cir- | demurrer to the evidence. Here again the cuit court in remanding the cause, when re ruling was on the merits and in invitum. moved on the first application, covered the The first petition in terms raised no issue question of fact as to good faith in the of fraudulent joinder, but the second peti. joinder, and added that, “assuming, with. tion did. Was that issue seasonably raised, out deciding, that that contention could and, if so, ought the case to have been re have been properly renewed under the cir- moved ! The second petition did not stata cumstances, it is sufficient to say that the when petitioner was first informed of the record before us does not sustain it." alleged fraud, but left it to inference that

It will be perceived that, in Powers v. it was not until after plaintiff had introChesapeake & O. R. Co., two applications for duced his evidence, notwithstanding the removal were made; they were severally averments in the first petition. denied, and the record was filed in the cir. But, apart from this, the averments of cuit court of the United States in each in. fraud were specifically denied, and, so far stance. Remand was granted on the first as this record discloses, the petitioner, who removal, and denied as to the second. had the affirmative of the issue, failed to Plaintiff voluntarily discontinued his action make out its case. Plymouth Consol. Gold against the company's codefendants before Min. Co. v. Amador & 8. Canal Co. 118 U. trial, thereby leaving the case pending be S. 270, 30 L. ed. 233, 6. Sup. Ot. Rep. 1034. tween citizens of different states, and no Doubtless the general rule is that issues necessity to dispose of the issue as to fraud of fact raised on petitions for removal ulent joinder arose.

should be tried in the circuit court of the In Smithson y. Whitcomb two applica- United States, but petitioner did not file tions for removal were made, and they were the record in the circuit court, and, as the severally denied, but the record was Åled in issue was correctly disposed of, it would be the circuit court of the United States only absurd to send the case back to be removed on denial of the first application, and the for the purpose of being remanded, and we case was only once remanded. Plaintiff did are obliged to deal with the record as it is. not discontinue his action against either of Nor was the evidence introduced on plain. the defendants, and went to trial against tiff's behalf, and demurred to, made part both, and the trial court directed a verdict of the record, and the bare fact that the in favor of one of them. The ruling was trial court held it insufficient to justify a on the merits and in invitum.

verdict against the terminal company was In the case at bar, two applications for not conclusive of bad faith. The trial remoral were made, and they were severally court may have erred in its ruling, or there denied, but the record was filed in the cir- may have been evidence which, though incuit court of the United States only on the sufficient to sustain a verdict, would have denial of the first application, and the case shown that plaintiff had reasonable ground was only once remanded. Plaintiff did not for a bona fide belief in the liability of both discontinue as to either of the defendants, defendants. In these circumstances, the and went to trial against both, and the trial case comes within Smithson v. Whitcomb, court sustained, in favor of one of them, s'and the judgment must be affirmed

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