when the tax was assessed against him, or that the tax should be collected by suit; and in Kelly v. Pittsburgh, 104 U. S. 78, 26 L. ed. 658, that the general system of procedure for the levy and collection of taxes, established in this country, is, within the meaning of the Constitution, due process of law. In Bell's Gap R. Co. v. Pennsylva The main objection to § 25, above quoted, seems to be that it makes the deed conclu sive evidence of the regularity of all proceedings not appearing of record, and hence that it is obnoxious to the ruling of this court in Mara v. Hanthorn, 148 U. S. 172, 37 L. ed. 410, 13 Sup. Ct. Rep. 508, in which we held that, as the legislature could not deprive one of his property by making his adversary's claim to it conclusive of its own validity, it could not make a tax deed conclusive evidence of the holder's title to land. competent to impeach this sale, none such | 37, 24 L. ed. 335, it was held that due prowas 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 a punctilious conformity with the statutory procedure, preceding and accompanying the sale. Whether all the steps required by law were actually taken in a particular case, and whether the failure to take such steps would invalidate the sale, would seem to be a matter for the state courts, rather than for this court, to decide; and it would ap-nia, _134 U. S.*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 emily 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 ac taxes 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 eminent domain, or for the imposition of special taxes for local improvements, notice to the owner at some stage of the proceedings, as well as an opportunity to defend, is essential. Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921; Huling v. Kaw Valley R. & Improv. Co. 130 U. S. 559, 32 L. ed. 1045, 9 Sup. Ct. Rep. 603; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663; Paulsen v. Portland, 149 U. S. 30, 37 L. ed. 637, 13 Sup. Ct. Rep. 750. But laws for the assessment and collection of general taxes stand upon a somewhat different footing, and are construed with the utmost liberality, 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 efsary. Due process of law was well defined fect thereof, such deed shall be prima facie by Mr. Justice Field in Hagar v. Reclama evidence against the owner or owners, legal tion Dist. No. 108, 111 U. S. 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-sale was such sheriff or officer as stated in fected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. The clause in question means, therefore, that there can be no proceeding against life, liberty, or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights." It was said in Witherspoon v. Duncan, 4 Wall. 210, 18 L. ed. 339, that the states, as a general rule, had the right to determine the manner of levying and collecting taxes upon private property, and could declare a tract of land chargeable with taxes, irre spective of its ownership, or in whose name It was assessed or advertised; and that an erroneous assessment did not vitiate the sale. In McMillen v. Anderson, 95 U. S. But, conceding this to be so, there is another section proper to be considered in this connection, and that is § 29, which reads as follows: such deed, that the material facts therein recited are true, and that such estate as is mentioned in the 25th section of this chapter vested in the grantee in the deed.” Assuming the common-law rule to be, as stated by the elementary writers upon taxation, that the purchaser at a tax sale is bound to take upon himself the burden of showing the regularity of all proceedings prior thereto, it is entirely clear that stat facie evidence, not only of regularity in the utes declaring the tax deed to be prima sale, but of all prior proceedings and of title in the purchaser, are valid, since the only effect of such statutes is to change the law upon the purchaser, and cast it upon burden of proof, which rested at common the party who contests the sale. Indeed, the validity of these acts was expressly af. firmed by this court in Pillow v. Roberts, 13 How. 472, 476, 14 L. ed. 228, 230, and Williams v. Kirkland, 13 Wall. 306, 20 L ed. 683. Even if the provisions of 25, making irregularities of a sale immaterial, were in valid, it would still 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 his 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 the steps prescribed by this statute, it does not demand that they shall be made matter 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 sale of the lands. Under the 14th Amendment the legislature is bound to provide a method for the assessment and collection of taxes that shall not be inconsistent with natural justice; but it is not bound to provide that the particular steps of a procedure (187 U. S. 63) KANSAS CITY SUBURBAN BELT RAIL- บ. ANDREW HERMAN, a Minor, by His Removal of causes-separable controversy— A second application for removal to a Federal court raising the issue of fraudulent joinder of defendants, when made after a ruling sustaining, in favor of one of two defendants, a demurrer to the evidence, cannot be regarded as erroneously denied by a state court, where the evidence demurred to is not made part of the record, and this issue was first raised on the second application, without stating when the petitioner first learned of the fraud, and the averments of fraud were specifically denied, and, so far as the record discloses, the petitioner, who had the affirmative of the issue, failed to make out its case. [No. 321.] vember 3, 1902. for the collection of such taxes shall be proved by written evidence; and it may properly impose upon the taxpayer the burden of showing that in a particular case the statutory method was not observed. The fact that the return of the sheriff does not recite the various steps of the procedure, when the statute does not contemplate that it shall do so, is no evidence whatever that they were not followed to the letter. If the plaintiff had alleged that in the proceedings for the sale of these lands the sheriff had failed to comply with the law, and the defendant had pleaded that by the curative section (25) irregularities not appearing of record would not vitiate the deed, the constitutionality of that section would Submitted October 20, 1902. Decided Noproperly be raised; but the plaintiff in this case was content to put his bill upon the ground that the record, namely, the sheriff's return of sale, did not set forth that the procedure prescribed by statute, preceding and accompanying the sale, had been followed. This is an effort to test the constitutionality of the law, without showing that the plaintiff had been injured by its application, and, in this particular, the case falls within our ruling in Tyler v. Registra-firmed. tion Court Judges, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206, wherein we held that the plaintiff was bound to show he had personally suffered an injury before he could institute a bill for relief. In short, the case made by the plaintiff is purely academic. For aught that appears, the proceedings may have been perfectly regular, and his bill rests solely upon the proposition that there may have been irregularities in the sheriff's sale, and that, if there were, the statute validating the deed, notwithstanding such irregularities, is unconstitutional and deprives him of his property without due process of law. This proposition contains its own answer. ERROR to the Supreme Court of the State of Kansas to review a judgment affirming a judgment of the Kansas Court of Appeals which had affirmed a judgment of the Court of Common Pleas of Wyandotte County in favor of plaintiff in a suit to recover damages for personal injuries. On motion to dismiss or affirm. Af See same case below, 68 Pac. 46. Statement by Mr. Chief Justice Fuller: This was an action brought by Andrew Herman, a minor, by his next friend, in the court of common pleas of Wyandotte county, Kansas, September 18, 1897, against the Union Terminal Railway Company, a corporation of Kansas, and the Kansas City Suburban Belt Railway Company, a corporation of Missouri, to recover damages for injuries inflicted through their joint or concurrent negligence. The belt railway company, October 18, 1897, filed a verified petition and bond for removal, in proper form, on the ground of a The exact case, then, made by the bill, is separable controversy; which petition althis: 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 *65 "2. The plaintiff herein has declared upon two distinct causes of action: First, for maintaining a defective switch; and, second, for negligent operation of a train of cars; the first of which, if true, is negligence chargeable against defendant the Union Terminal Railway Company, and the second, if true, is negligence chargeable against your petitioner. "3. The train of cars mentioned in the petition was operated by your petitioner as averred. All of the parties in charge thereof were in your petitioner's employ, and the railroad mentioned in plaintiff's peti-| Railway Company was joined with this detion. 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 exand has no employees in train service. ists against the defendant alone, and in Defendant the Union Terminal Railway nowise against the said defendant the UnCompany 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 deother, for the acts and doings of all persons fendant the Union Terminal Railway Comoperating trains. pany, as plaintiff at all times well knew." In response to this petition plaintiff filed, without objection, an affidavit which stated, among other things, that it was not true "that plaintiff joined the Union Terminal Railway Company as defendant therein fraudulently, or for the purpose of giving this court jurisdiction of the petitioner, but, on the contrary, plaintiff avers that said action was brought in good faith against both defendants as joint tortfeasors, and that plaintiff believed in good faith that he has a joint cause of action against both defendants, and had subpoenas issued for witnesses to prove directly the responsibilities of the Union Terminal Railway Company for the injuries sustained by plaintiff; but that, on account of the removal of a witness from the state, plaintiff was, at the last moment, unable to obtain certain testimony which, if introduced, would have tended to prove the joint liabil ity of said defendants. That plaintiff has excepted to the ruling of the court sustaining a demurrer to the evidence on the part of the Union Terminal Railway Company in the trial of this case, for the purpose of preserving his rights in this action against both of said defendants jointly." And it was further stated that counsel had relied on the production, on notice which had been given, of "writings showing the relations existing between the two defendant companies in the operation and maintenance of their lines of railroad where the injuries were received," and on an agreement with counsel for both of the defendants to admit the facts as to the relations between said companies, which, when it was too late to adduce other testimony, was not fulfilled. none other. "4. By reason of the foregoing, your petitioner says that whatever cause of action plaintiff has for negligent operation of said railroad train lies against your petitioner exclusively." The application for removal was heard February 5, 1898, and, upon argument, denied. The belt company thereupon filed a transcript of the record in the circuit court of the United States for the district of Kansas, and plaintiff made a motion to re mand, which was sustained by the circuit court and the cause remanded to the state court "on the day of May, 1898." Each of the two railroad companies defendant then filed its separate demurrer May 28, 1898, assigning as causes misjoinder of parties, and that plaintiff had not stated a cause of action, or facts sufficient to constitute a cause of action, against it. These demurrers were severally overruled, and the defendants severally answered. The cause came on for trial October 18, 1898, and on October 20, at the close of the evidence for plaintiff, each company filed its separate demurrer to the evidence on the The application for removal was overground 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. The 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 like result. Kansas City Suburban Belt R. Co. v. Herman, 68 Pac. 46. "And the defendant further says that no evidence was offered or introduced by plaintiff, or attempt made, to show a cause of action against said Union Terminal Railway Company; that said Union Terminal A writ of error from this court was then allowed by the chief justice of Kansas, and citation issued to and acknowledged on be-? 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. Messrs. Gardiner Lathrop, Thomas R. Morrow, Samuel W. Moore, and John M. Fox for plaintiff in error. Messrs. Silas Porter and W. B. Sutton for defendants in error. the locomotive on which he was at work and another locomotive operated by Whitcomb and Morris as receivers. The Chicago company answered the complaint, and the receivers filed a petition for the removal of the cause into the circuit court of the United States for Minnesota, alleging diverse citizenship; that they were officers of Mr. Chief Justice Fuller delivered the the United States court; that the controopinion of the court: The question is whether the state court erred in denying the second application for removal, and in view of our previors rulings in respect of such applications we think there was color for the motion to dismiss. And reference to two recent decisions of this court will indicate the reasons for our conclusion that the motion to affirm must be sustained. versy was separable, and that the railway company was fraudulently made a party to prevent removal. Plaintiff answered the petition, and asserted that the company was made party defendant in good faith, and not for that purpose. An order of removal was entered, and the cause sent to the circuit court, which thereafter remanded it to the state court. Trial was had, and, after the testimony was closed, counsel for the Chicago company moved that the jury be instructed to return a verdict in behalf of that defendant, which motion was granted. The receivers then presented a petition for removal, but the court denied the application, and exception was taken. The court thereupon instructed the jury to return a verdict in favor of the Chicago company, which was done, and the cause went to the jury, which returned a verdict against the receivers and assessed plaintiff's damages. Judgment was entered on the verdict, and In Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264, the railroad company filed its petition for removal on the grounds of separable controversy, and that its codefendants were fraudulently and improperly joined in order to defeat the company's right of removal. The transcript of the record of the state court was filed in the circuit court of the United States, and a motion to remand was sustained for want of separable controversy. Thereafter, when the case was 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 court. 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 court, sole ground that the cause had not been plaintiff had discontinued his action against properly removed into the circuit court. the railway company, and 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 v. Chesapeake & as, by the express terms of the statute, the O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 defendant railway company was entitled to Sup. C. Rep. 264. But that is not this remove; and therefore its petition for re- case. 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 application was seasonably made and stated sufficient ground for removal apart from fraud. In Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303, 20 Sup. Ct. Rep. 248, the action had been brought by Smithson, in a Minnesota court, against the Chicago Great Western Railway Company and H. F. Whitcomb and Howard Morris, receivers of the Wisconsin Central Railroad Company, to recover for personal injuries inflicted, It was pointed out that the ruling of the trial court "was a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent, and the trial court rightly held that it did not operate to make the cause then removable, and thereby to enable the other defendants to prevent plaintiff from tak ing a verdict against them. The right to remove was not contingent on the aspect the case may have assumed on the facts developed on the merits of the issues tried." •70 demurrer to the evidence. Here again the ruling was on the merits and in invitum. The first petition in terms raised no issue of fraudulent joinder, but the second petition did. Was that issue seasonably raised, and, if so, ought the case to have been removed? The second petition did not state when petitioner was first informed of the alleged fraud, but left it to inference that We held also that the judgment of the circuit court in remanding the cause, when removed on the first application, covered the question of fact as to good faith in the joinder, and added that, "assuming, without deciding, that that contention could have been properly renewed under the circumstances, it is sufficient to say that the record before us does not sustain it." It will be perceived that, in Powers v.it was not until after plaintiff had introChesapeake & O. R. Co., two applications for removal were made; they were severally denied, and the record was filed in the circuit court of the United States in each instance. Remand was granted on the first removal, and denied as to the second. Plaintiff voluntarily discontinued his action against the company's codefendants before trial, thereby leaving the case pending be tween citizens of different states, and no necessity to dispose of the issue as to fraudulent joinder arose. In Smithson v. Whitcomb two applications for removal were made, and they were severally denied, but the record was filed in the circuit court of the United States only on denial of the first application, and the case was only once remanded. Plaintiff did not discontinue his action against either of the defendants, and went to trial against both, and the trial court directed a verdict in favor of one of them. The ruling was on the merits and in invitum. In the case at bar, two applications for removal were made, and they were severally denied, but the record was filed in the circuit court of the United States only on the denial of the first application, and the case was only once remanded. Plaintiff did not discontinue as to either of the defendants, and went to trial against both, and the trial court sustained, in favor of one of them, a duced his evidence, notwithstanding the averments in the first petition. But, apart from this, the averments of fraud were specifically denied, and, so far as this record discloses, the petitioner, who had the affirmative of the issue, failed to make out its case. Plymouth Consol. Gold Min. Co. v. Amador & 8. Canal Co. 118 U. S. 270, 30 L. ed. 233, 6 Sup. Ct. Rep. 1034. Doubtless the general rule is that issues of fact raised on petitions for removal should be tried in the circuit court of the United States, but petitioner did not file the record in the circuit court, and, as the issue was correctly disposed of, it would be absurd to send the case back to be removed for the purpose of being remanded, and we are obliged to deal with the record as it is. Nor was the evidence introduced on plaintiff's behalf, and demurred to, made part of the record, and the bare fact that the trial court held it insufficient to justify a verdict against the terminal company was not conclusive of bad faith. The trial court may have erred in its ruling, or there may have been evidence which, though insufficient to sustain a verdict, would have shown that plaintiff had reasonable ground for a bona fide belief in the liability of both defendants. In these circumstances, the case comes within Smithson v. Whitcomb, and the judgment must be affirmed. |