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.] 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. The circuit court for Oakland county entered a decree in accordance with the prayer of the bill, and Baker carried the cause by appeal to the supreme court of Michigan, which affirmed the decree. Baldwin V. Baker, 121 Mich. 259, 80 N. W. 36. This writ of error was then allowed. The supreme court of Michigan said: "The sole question presented is whether the act in question, making the silver dollar of 412.5 grains troy of standard silver a full legal tender for all debts and dues, public | and private, is constitutional;" and held that it was. That decision is assigned for error, but it was not a decision against the validity of the statute, and, on the contrary, sustained its validity. [63] *As our jurisdiction over the judgments and decrees of state courts in suits in which the validity of statutes of the United States is drawn in question can only be exercised, under 709 of the Revised Statutes, when the decision is against their validity, the writ of error cannot be maintained. Mis souri v. Andriano, 138 U. S. 496, 34 L. ed. 1012, 11 Sup. Ct. Rep. 385; Rae v. Homestead Loan & Guaranty Co. 176 U. S. 121, 44 L. ed. 398, 20 Sup. Ct. Rep. 341. Writ of error dismissed. V. KANSAS CITY SUBURBAN BELT RAIL (See S. C. Reporter's ed. 63-71.) Removal of causes-separable controversy-fraudulent joinder. A second application for removal to a Federal first raised on the second application, with separable controversy-see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valley Anderson, 29 L. ed. U. S. 899; and Merchants' vember 3, 1902. Intro to the Supreview 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. Affirmed. ERROR to the Supreme Court of the 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 cor-[64] poration 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 separable controversy; which petition alpetitioner to be distinct and separable from leged the controversy between plaintiff and that between plaintiff and the Union Terminal Railway Company, on these grounds: "1. Defendant the Union Terminal Railway Company owns, repairs, and maintains the railroad mentioned in plaintiff's petition. Your petitioner has no interest therein, except that it has leased same and pays certain yearly rental for the use of said tracks. All of the locomotives, engines, and cars running over said railroad are the property of your petitioner, or subject to its control. Defendant terminal company has no control over the operation of trains, and has no employees in train service. Defendant the Union Terminal Railway Company is responsible for the condition of the track, and your petitioner, and none other, for the acts and doings of all persons operating trains. "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 neglirence 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 none other. "4. By reason of the foregoing, your petitioner says that whatever cause of action plaintiff has for negligent operation of said | plaintiff; but that, on account of the rerailroad train lies against your petitioner exclusively." moval, 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. 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 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 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 In response to this petition plaintiff filed, ment in its favor and against the plaintiff. without objection, an affidavit which stated, The state court refused the removal. Under among other things, that it was not true these circumstances, this court has jurisdic"that plaintiff joined the Union Terminal tion to determine whether there was error (66) Railway Company as defendant therein on the part of the state court in retaining fraudulently, or for the purpose of giving the case. this court jurisdiction of the petitioner, but, on the contrary, plaintiff avers that& Warehouse Comrs. 183 U. S. 53, sub nom. Missouri, K. & T. R. Co. v. Missouri R. said action was brought in good faith 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. Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264; Northern P. R. Co. v. Austin, 135 U. S. 315, 34 L. ed. 218, 10 Sup. Ct. Rep. 758. An application to remove may be made | called for trial in the state court, plaintiff when the case first becomes removable, even discontinued his action against the codethough made during the trial, if the plain-fendants, and the company filed a second tiff increases the ad damnum so as to bring petition for removal, which was denied. the case within the jurisdiction of the Fed- The company then again filed a transcript eral court, or if the plaintiff voluntarily dis-of the record of the proceedings in the cirmisses the action as to the resident defend-cuit court, and plaintiff again moved to reant, leaving a controversy between citizens mand, and the circuit court, being of opinof different states. ion that plaintiff had fraudulently joined the codefendants in order to defeat the removal, and was estopped to deny that the second petition for removal was filed in time, denied the motion to remand. 65 Fed. 129. Final judgment was afterwards rendered in the company's favor, and a *writ [68] of error was sued out from this court on the sole ground that the cause had not been properly removed into the circuit court. The judgment was affirmed, and it was held that "when this plaintiff discontinued his action as against the individual defendants the case for the first time became such a one as, by the express terms of the statute, the defendant railway company was entitled to remove; and therefore its petition for removal, filed immediately upon such discontinuance, was filed in due time." But we did not pass upon the questions of fraudulent joinder and estoppel, because the application was seasonably made and stated sufficient ground for removal apart from The court should be astute not to permit devices to become successful which are used for the very purpose of destroying the right of removal. Arapahoe County v. Kansas P. R. Co. 4 Dill. 277, Fed. Cas. No. 502. It is not important that the plaintiff afterwards reduced his demand to an amount below the jurisdiction of the Federal court, or that the state court retained the case and proceeded to trial, and that the plaintiff in error participated therein. These events, occurring after the application for removal, do not affect the question of jurisdiction. Powers v. Chesapeake & O. R. Co. 169 U. S. 102, 42 L. ed. 676, 18 Sup. Ct. Rep. 264; Black's Dillon, Removal of Causes, § 192. As, under the practice of this court, the motion cannot be passed upon without referring to the transcript, it should be denied without prejudice, or continued until this cause is heard in its regular assign ment. Callan v. Bransford, 139 U. S. 197, 35 L. ed. 144, 11 Sup. Ct. Rep. 519. Mr. Silas Porter submitted the cause for defendant in error. Mr. W. B. Sutton was with him on the brief: The ruling of the state court upon the demurrer to plaintiff's evidence, being in in vitum, could not make the case removable during the progress of the trial. Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303, 20 Sup. Ct. Rep. 248; Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131, 45 L. ed. 121, 21 Sup. Ct. Rep. 67. Mr. Chief Justice Fuller delivered the opinion of the court: The question is whether the state court erred in denying the second application for removal, and in view of our previous 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. 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 contro versy. Thereafter, when the case was fraud. In Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303, 20 Sup. Ct. Rep. 248, the acMinnesota court, against the Chicago Great tion had been brought by Smithson, in a Western Railway Company and H. F. Whitcomb and Howard Morris, receivers of the Wisconsin Central Railroad Company, while he was serving the Chicago company to recover for personal injuries inflicted, as a locomotive fireman, in the collision of the locomotive on which he was at work and and Morris as receivers. The Chicago comanother locomotive operated by Whitcomb pany answered the complaint, and the rethe cause into the circuit court of the ceivers filed a petition for the removal of United States for Minnesota, alleging diverse citizenship; that they were officers of the United States court; that the controversy 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 [69] receivers and assessed plaintiff's damages. Judgment was entered on the verdict, and subsequently affirmed by the supreme court of Minnesota on appeal, and a writ of error was sued out from this court. Motions to dismiss or affirm were submitted, and we held that there was color for the motion to dismiss, and affirmed the judgment. We there said: "The contention here is that when the trial court determined to direct a verdict in favor of the Chicago Great Western Railway Company the result was that the case stood as if the receivers had been sole defendants, and that they then acquired a right of removal, which was not concluded by the previous action of the circuit court. This might have been so if, when the cause was called for trial in the state court, plaintiff had discontinued his action against the railway company, anu thereby elected to prosecute it against the receivers solely, instead of prosecuting it on the joint cause of action set up in the complaint against all the defendants. Powers v. Chesapeake & 0. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. C. Rep. 264. But that is not this case. The joint liability was insisted on here to the close of the trial, and the nonliability of the railway company was ruled in invitum." 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 taking 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." 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." | 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 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 it was not until after plaintiff had introduced 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 & S. 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[71] 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 ability of both defendants. In these circumstances, the case comes within Smithson v. Whitcomb, and the judgment must be affirmed. EDWARD S. DREYER, Piff. in Err., It will be perceived that, in Powers v. Chesapeake & O. R. Co., two applications for removal were made; they were severally denied, and the record was filed in the cir[70jcuit 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 PEOPLE OF THE STATE OF ILLINOIS. trial, thereby leaving the case pending between 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. v. (See S. C. Reporter's ed. 71-87.) Constitutional law-due process of lawfailure to swear officers in charge of jury -Illinois indeterminate sentence actjudicial power conferred on nonjudicial officers-criminal law-former jeopardy. revenue, bonds, mortgages, coupons, bank bills, notes, warrants, or dues, or other funds or securities belonging to the state or any county, township, incorporated city, town, or village, or any state institution, or any canal, turnpike, railroad, school, or college fund, or the fund of any public improvement that now is or may hereafter be authorized by law to be made, or any other fund now in being or that may hereafter be the jury on a trial for a felony were sworn, as prescribed by statute, when the jury retired, because such question was first raised on a motion for a new trial, infringes no right secured to the accused by the 14th Amendment to the Federal Constitution, even if the swearing of such officers when the jury retire is essential to the due process of law prescribed by that amendment; but such a ruling is simply an adjudication of a question of criminal practice and local law. 2. The right to the due process of law guar-established by law for public purposes, or anteed by the 14th Amendment to the Fed- belonging to any insurance or other comeral Constitution is not infringed by the decision of a state court sustaining the valid any or person required or authorized by Ity of the Illinois Indeterminate sentence act law to be placed in the keeping of any such of 1899, although such statute may confer officer or person, shall fail or refuse to pay or judicial powers upon nonjudicial officers, and, deliver over the same when required by law, in effect, invest them with the pardoning or demand is made by his successor in office power of the Executive. or trust, or the officer or person to whom the same should be paid or delivered over, or his agent or attorney, authorized in writing, he shall be imprisoned in the penitentiary not less than one nor more than ten years: Provided, Such demand need 3. A plea of former jeopardy cannot be based upon the discharge of the jury for their inability to agree on a verdict after consider ing the cause from four o'clock in the afternoon until half past nine in the morning of the succeeding day. [No. 37.] not be made when, from the absence or fault of the offender, the same cannot conveniently be made: And provided, That no person Argued and Submitted April 18, 1902. De- shall be committed to the penitentiary un cided November 10, 1902. N ERROR to the Supreme Court of the State of Illinois to review a judgment which affirmed a judgment of the Criminal Court of Cook County convicting a former treasurer of the West Chicago park commissioners of the offense of having failed to turn over to his successor in office property that came into his hands as such treasurer. Affirmed. See same case below, 188 Ill. 40, 58 N. E. 620, 59 N. E. 424. der this section unless the money not paid A trial was commenced on the 29th day of August, 1899, and a jury was impaneled and evidence heard. The jury, not having agreed upon a verdict, were discharged. A second trial was begun on the 19th day of February, 1900. The defendant filed a plea of once in jeopardy, which in substance averred that it was not true, as recited in the order of court at the previous trial, that the jury were unable to agree upon a verdict; also, that the discharge of the jury was without the defendant's assent, was against his objections made at the time, and was without any moral or physical necessity justifying such a course on the part of the trial court. Statement by Mr. Justice Harlan: [73] *By an indictment returned in the criminal court of Cook county, Illinois, on the 4th day of February, 1899, the plaintiff in error, Dreyer, was charged with the offense of having failed to turn over to his successor in office, as treasurer of the West Chicago park commissioners, revenues, bonds, funds, warrants, and personal property that came to his hands as such treasurer, of the value of $316,013.40,-said commissioners constituting a board of public park commissioners appointed by the governor and confirmed by the senate of Illinois, and, as such, having the supervision of the public parks and boulevards in the town of West There was a second trial, which resulted Chicago, and authority under the law to col-in the defendant being found "guilty of faillect and disburse moneys, bonds, etc., for their maintenance. The indictment was based on § 215 of the Criminal Code of Illinois, which is as follows: "If any state, county, town, municipal, or other officer or person who now is or hereafter may be authorized by law to collect, receive, safely keep, or disburse any money, (N. Y.) 13 L. R. A. 304, and note. notes to People v. O'Brien (N. Y.) 2 L. R. A. 255; Pearson v. Yewdall, 24 L. ed. U. S. 436: and Wilson v. North Carolina ez rel. Caldwell, 42 L. ed U. S. 865. And see On motion of the state the plea of former jeopardy was stricken from the files, the defendant at the time excepting to the action of the court. ure to pay over money to his successor in office, in manner and form as charged in the indictment," the jury stating in the verdict the amount not paid over to be $316,000, and imposing the punishment of confinement in the penitentiary. The defendant, upon written grounds filed, moved for a new trial, and also moved in arrest of judgment. Both motions were On former jeopardy-see notes to Com. v. Fitzpatrick (Pa.) 1 L. R. A. 451; Altenburg v. Com. (Pa.) 4 L. R. A. 543; Ex parte Lange, 21 L. ed. U. S. 872; and United States v. Perez, 6 L. ed. U. S. 165. |