that after the expiration of the year the chaser, notwithstanding any irregularity, [55] purchaser may obtain from the *clerk of the unless such irregularity appears upon the county court of the county in which said face of the proceedings. The inference is sale was made a deed of conveyance for the that there is no irregularity which can viland; and by § 25, when the purchaser shall tiate the sale. This is not entirely accuhave obtained a deed thereof, "and caused rate. It is true that the statute prescribes the same to be admitted to record, a general form of return by the sheriff, such right, title, and interest in and to said which does not set forth in detail the proreal estate as was vested in the person or ceedings prior to and at the sale; but that persons charged with the taxes thereon for there are irregularities which appear of which it was sold, shall be trans- record, and therefore that the exception in ferred to and vested in the grantee in such the curative statute is not without force, is deed, notwithstanding any irregularity in evident from the case of McCallister v. the proceedings under which the same was Cottrille, 24 W. Va. 173, in which it was sold, not herein provided for, unless such held to be the official duty of the clerk of irregularity appear on the face of such pro- the county court to note in his office the ceedings of record in the office of the clerk day on which the sheriff returned his list of the county court, and be such as mate- of the sales of lands sold for delinquent rially to prejudice and mislead the owner of taxes, and if he fails to make such note, the real estate so sold, as to what portion or his office shows that such list was not of his real estate was so sold, and when and returned and filed for more than ten days for what year or years it was sold, or the after the completion of such sales, this, in name of the purchaser thereof; and not either case, is such an omission and irreguthen, unless it be clearly proved to the larity as to materially prejudice the rights court or jury trying the case that but for of the owner of lands sold at such sale, and such irregularity the former owner of such therefore vitiates any deed made to the purreal estate would have redeemed the same chaser by the clerk. The court went furunder the provisions of this chapter." This ther in this case, and held that parol evisame section further declares, in a subse-dence could not be introduced to affect the quent clause, that "no irregularity, error, or mistake in the delinquent list, or the return thereof, or in the affidavit thereto, or in the list of sales filed with the clerk of the county court, or in the affidavit thereto, or in the recordation of such list or affidavit, or as to the manner of laying off any real estate so sold, or in the plat, description, or report thereof made by the surveyor or other person, shall, after the deed is made, invalidate or affect the sale or deed."

validity or invalidity of a tax deed. So, too, in Carrell v. Mitchell, 37 W. Va. 130, 136, 16 S. E. 453, it was said the fact that land was advertised and sold as delinquent under a description in the advertisement, locating it in a different district from that in which the land was situated, was such an irregularity as would void the deed made in pursuance of such sale. In Hays v. Heatherly, 36 W. Va. 613, 15 S. E. 223, the title obtained by a purchaser was held to be deThe substance of this legislation, then, is fective for the reason that the affidavit *did[57] this: That a certain procedure is pre- not comply with the form contained in the scribed for the sheriff in making sales of statute. In that case the deed had not been land for unpaid taxes; but it is not required obtained; but in Phillips v. Minear, 40 W. that he incorporate the various steps of Va. 58, 20 S. E. 924, the same defect was such procedure in his report of sales,-held to be fatal after the deed was obtained, merely that he shall swear that the list of and after the curative section (25) had lands to which his affidavit is appended taken effect. See also Jackson v. Kittle, 34 contains a true account of all the real es- W. Va. 207, 12 S. E. 484: Baxter v. Wade, tate within the county sold by him during | 39 W. Va. 281, 19 S. E. 404. the current year for the nonpayment of That it is competent for the legislature to taxes, and that he is not directly or indi- provide by curative statutes that irregurectly interested in the purchase of any larities in the sales of lands shall not presuch real estate. A year is then allowed judice the purchaser after a certain time for redemption, after the expiration of has elapsed and a deed has been given is enwhich a deed of the land is executed to the tirely clear, although, as observed by Judge [56]purchaser at the sheriff's sale by the clerk Cooley in his work upon Taxation, chap. 10, of the county court, which deed, the statute P. 227, such defective proceedings cannot be cured where there is a lack of jurisdiction provides, shall not be invalidated by reason to take them. "Curative laws may heal irof any irregularity in the proceedings under regularities in action, but they cannot cure which the land was sold, unless such irregu- want of authority to act at all," and that larities appear upon the face of such pro-"whatever the legislature could not have ceedings of record in the office of the clerk, authorized originally, it cannot confirm." and be such as to materially prejudice and It may not be altogether easy in a particu

mislead the owner. lar case to determine whether the defect be Counsel for the plaintiff criticises this jurisdictional or not, but certainly irregulegislation, and particularly § 25, upon the larities in the personal conduct of the ofground that it does not provide for any rec-ficer making the sale would not be so reord of the successive steps of procedure in garded; and it is at least exceedingly advertising and selling lands for the non-doubtful whether the failure to preserve the payment of taxes, and yet declares that the auditor's list of delinquent lands or the evititle to the land shall be vested in the pur- dence of the publication and posting of the

The main objection to § 25, above quoted, seems to be that it makes the deed conclusive evidence of the regularity of all proceedings not appearing of record, and hence that it is obnoxious to the ruling of this court in Marx v. Hunthorn, 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.

statutory notices would vitiate a deed made it was assessed or advertised; and that an by the clerk, after a lapse of twelve years. erroneous assessment did not vitiate the But, even if parol or other evidence were sale. In McMillen v. Anderson, 95 U. S. competent to impeach this sale, none such37, 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 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. 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 [59] 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 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 [58]sion to hold that, in proceedings for the which underlie them." condemnation 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 holding that no notice whatever is necessary. Due process of law was well defined by Mr. Justice Field in Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663, in the following words: "It is sufficient to observe here that by 'due process' is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be af 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, irrespective of its ownership, or in whose name

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:

"29. In all cases in which a question shall arise as to any such sale or deed, or the effeet thereof, such deed shall be prima facie evidence against the owner or owners, legal or equitable, of the real estate at the time it was sold, his or their heirs and assigns,

that the person named in the deed as clerk of the county court was such, that the sheriff or other officer who made the sale was such sheriff or officer as stated in 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 statutes declaring the tax deed to be prima facie evidence, not only of regularity in the 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 burden of proof, which rested at common law upon the purchaser, and cast it upon the party who contests the sale. Indeed. the validity of these acts was expressly af-[60] 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. 693.

that the record, namely, the sheriff's return of the sale, does not show a compliance with the statute in certain particulars, without also averring that in fact there was a failure to perform some step required by law. To hold a sale invalid upon these allegations might result in upsetting every sale for taxes made in West Virginia for the past twenty years.

FRED A. BAKER, Piff. in Err.,

v.

STEPHEN BALDWIN.

Even if the provisions of § 25, making irregularities of a sale immaterial, were invalid, it would still result that under § 29 the facts recited in the deed would be presumed to be true, and the burden be thrown upon the landowner of disproving them. This burden the plaintiff has not assumed, 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 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 sher

Error

(See S. C. Reporter's ed. 61-63.)

to state court-decision sustaining validity of Federal statute.

The judgment of a state court sustaining the validity of the act of Congress of February 28, 1878 (20 Stat. at L. 25, chap. 20), making the silver dollar of 412.5 grains troy of standard silver a full legal tender, cannot be reviewed in the Supreme Court of the United States, since that court has jurisdiction, under U. S. Rev. Stat. § 709, to review the judgment of a state court upon the validity of a Federal statute, only when against its validity.

[No. 4.]

vember 3, 1902.

iff had failed to comply with the law, and Submitted October 14, 1902. Decided Nothe defendant had pleaded that by the curative section (25) irregularities not appearing of record would not vitiate the deed, the

N ERROR to the Supreme Court of the

State of Michigan to review a judgment constitutionality of that section would properly be raised; but the plaintiff in this which affirmed a decree of the Circuit Court case was content to put his bill upon the for Oakland County which granted the reground that the record, namely, the shee-lief sought by a bill to compel the release iff's return of sale, did not set forth that of a mortgage. Dismissed.

W. 36.

The facts are stated in the opinion.

Messrs. Albert B. Hall and Fred A. Baker submitted the cause for plaintiff in

Mr. Timothy E. Tarsney submitted the cause for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

the procedure prescribed by statute, preced- See same case below, 121 Mich. 259, 80 N. ing 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-error. tion Court Judges, 179 U. S. 405, 45 L. ed. [61]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, not withstanding such irregularities, is unconstitutional and deprives him of his property without due process of law. This proposition contains its own answer.

This was a bill filed by Stephen Baldwin in the circuit court for the county of Oakland, Michigan, against Fred A. Baker, to compel the release of a mortgage given to secure payment of a promissory note for $330, dated January 12, 1894, and payable in three years thereafter.

Baldwin had purchased the land subject

NOTE. On writs of error from United States Supreme Court to state courts-see notes to Hamblin v. Western Land Co. 37 L. ed. U. S.

The exact case, then, made by the bill, is 267; Kipley v. Illinois ex rel. Akin, 42 L. ed. this: The plaintiff seeks to avoid a sale. s. 998; and Re Buchanan, 39 L. ed. U. S. made twelve years before by an allegation 884.

187 U. S.

to the mortgage, which had been assigned to Baker, and tendered the amount due thereon in silver dollars coined after 1878. This tender Baker declined to accept on the ground that the legal tender provisions of the act of Congress of February 28, 1878, entitled "An Act to Authorize the Coinage of the Standard Silver Dollar, and to Re- Submitted October 20, 1902. Decided Nostore its Legal Tender Character" (20 Stat. at L. 25, chap. 20), were unconstitutional, and refused to discharge the mortgage as demanded by Baldwin.

plaintiff has for negligent operation of said | plaintiff; but that, on account of the rerailroad train lies against your petitioner inoval of a witness from the state, plaintiff exclusively."

was, at the last moment, unable to obtain certain testimony which, if introduced, would have tended to prove the joint liability 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.

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 [65] Kansas, and plaintiff made a *motion to remand, 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 judgexcepted. 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 Railway Company was joined with this defendant fraudulently, and for the sole purpose of preventing a removal of this cause to the circuit court of the United States, and with no purpose or intent of attempting to show any cause of action against it. "This defendant now here shows to the court that there is a separable controversy, and that the plaintiff's cause of action ex- The railway company was entitled to reists against the defendant alone, and in move this suit from a state to the Federal nowise against the said defendant the Un-court after plaintiff had rested his case, ion Terminal Railway Company. That no cause of action ever existed against the defendant the Union Terminal Railway Company, as plaintiff at all times well knew."

A writ of error from this court was then allowed by the chief justice of Kansas, and citation issued to and acknowledged *on be-[67] half of Herman and the Union Terminal Railway Company. The case was submitted on motions to dismiss or affirm.

Messrs. Gardiner Lathrop, Thomas R. Morrow, and Samuel W. Moore submitted the cause for plaintiff in error. Mr. John M. Fox was with them on the brief.

having failed to offer any evidence whatever against the resident defendant, and after the court had sustained the demurrer of that company and rendered final judg ment in its favor and against the plaintiff. The state court refused the removal. Under these circumstances, this court has jurisdiction to determine whether there was error on the part of the state court in retaining the case.

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 [66] Railway Company *as defendant therein fraudulently, or for the purpose of giving this court jurisdiction of the petitioner, Missouri, K. & T. R. Co. v. Missouri R. but, on the contrary, plaintiff avers that said action was brought in good faith Warehouse Comrs. 183 U. S. 53, sub nom. against both defendants as joint tortfeas- Missouri, K. & T. R. Co. v. Hickman, 46 L. ors, and that plaintiff believed in good faith ed. 78, 22 Sup. Ct. Rep. 18; Removal Cases, that he has a joint cause of action against 100 U. S. 457, 25 L. ed. 593; Stone v. South both defendants, and had subpoenas issued Carolina, 117 U. S. 430, 29 L. ed. 962, 6 for witnesses to prove directly the respon- Sup. Ct. Rep. 799; Missouri P. R. Co. v. sibilities of the Union Terminal Railway Fitzgerald, 160 U. S. 556, 40 L. ed. 536, 16 Company for the injuries sustained by Sup. Ct. Rep. 389.