of the City of St. Louis, in that state. Af- , son of this negligence, while engaged in the firmed.

performance of his duties on the 12th of NoThe facts are stated in the opinion. vember, 1902, on the top of the furnace, he

Messrs. Edward C. Kehr, Richard T. lost his balance and fell into one of the Brownrigg, and

and William L. Mason for open, unguarded, and unprotected pots conplaintiff in error.

taining hot and boiling grease and lubri. Messrs. Robert A. Holland, Jr., Charles P. cant, receiving thereby great and painful Wise, George F. McNulty, and James A. injuries. Plaintiff below further charged

. Seddon for defendants in error.

that Schenck and Wettengel were employed

by the corporation and charged by it with Mr. Justice Day delivered the opinion of the superintendence and oversight of the the court:

plaintiff in the performance of his duty, This case is certified here from the cir- and were employed and charged by the cuit court of the United States for the east. corporation with the duty of superintendern district of Missouri under § 5 of the ing and properly planning the construction court of appeals act of March 3, 1891 (26 of a furnace, and with the duty of providStat. at L. 827, chap. 517, U. S. Comp. Stat. ing for said pots reasonably safe and suit1901, p. 549), upon a question of jurisdic-able covering, railing, or other device, and tion.

with the duty of providing and properly Conrad Wecker, the plaintiff below, placing reasonably safe and sufficient hoistbrought his action in the circuit court of ing apparatus for lifting the masses of the city of St. Louis, state of Missouri, grease and lubricant to the top of the furagainst the National Enameling & Stamp- nace, and were further charged by the coring Company, Harry Schenck, and George poration with the duty of instructing the Wettengel, undertaking to recover jointly plaintiff as to the manner of performing against the National Enameling & Stamp- his duties, and charges negligence of ing Company, a corporation of the state of Schenck and Wettengel in planning and diNew Jersey, and Schenck and Wettengel, recting the construction of the furnace residents of the city of St. Louis, state of structure and providing suitable covers or Missouri. The substance of the complaint railings as aforesaid, and providing and is that defendant is a corporation employ- placing reasonably safe and sufficient hoisting the plaintiff in the work of firing, filling, ing apparatus, and in giving instructions as stirring, emptying, and attending certain to the manner of performing plaintiff's metal pots used in the melting of grease and duties, by reason whereof the plaintiff lost lubricant matter in the plant of the de- his balance and fell into one of the pots fendant corporation; that the grease and as aforesaid, to his great injury; and the lubricant matter was delivered by the cor- complaint charges the joint negligence of poration to the plaintiff in barrels of great the corporation and the defendants Schenck weight,--about 600 pounds each,—and it and Wettengel, and avers that his injuries was the plaintiff's duty in the course of his were the result thereof, and prays judgment employment to hoist the same to the top for damages jointly against the three desurface of the furnace structure, into which fendants. the pots were set, and then to dump the The defendant company filed its petition grease and lubricant matter into the pots. for a removal of the cause to the circuit

The negligence charged against the de- court of the United States for the eastern fendant corporation consisted in allowing district of Missouri, which petition conthe pots, which were constantly filled with tained the usual averments as to the charhot and boiling lubricants, to remain open acter of the suit and the right of removal and exposed, without covering, railing, de- and diversity of citizenship between the device, or means of any character to protect fendant corporation and the plaintiff, and the plaintiff from accidentally slipping or averred that Schenck, one of the codefendfalling into the same while engaged in the ants, was also a nonresident of the state service of the corporation in the perform- of Missouri and a citizen of the state of ance of his duties, and negligently failing Illinois, and not served with process; also to provide and properly place safe and suffi- stated that Wettengel was, at the time of cient hoisting apparatus for the use of the the commencement of the suit and since, plaintiff in his employment in lifting said a citizen of the state of Missouri; averred masses of grease and lubricant to the top a separable controversy between it and the of the furnace, and for failing to give the plaintiff as to the alleged negligence and as plaintiff instructions as to the proper manto the assumption of the risk upon the part ner of performing his duty, and thereby un- of the plaintiff

. As to Wettengel, the citi- . reasonably endangering his safety in said zen of Missouri, it was alleged in the reemployment. Plaintiff alleges that, by rea- | moval petition that he was not, at the time of the accident or prior thereto, charged that the question is whether the court had with the superintendence and oversight of jurisdiction of the action. the plaintiff, or with the duty of superin- In the first ruling upon the motion to retending and properly planning the construc- mand, the court, in a written opinion, based tion of the furnace, or providing a reason its refusal upon the ground that the petiably safe and suitable furnace and pots and tion of plaintiff clearly showed that there railings or other device to protect the plain was no joint cause of action against the tiff, and was not charged with the duty of company and the defendant Wettengel. placing reasonably safe and sufficient hoist. Subsequently, the judge filed an opinion in ing apparatus, nor with the duty of in- which he said that in his former opinion he structing the petitioner in respect to his made no allusion to the affidavits tending duties, as charged in the complaint, and, to show the fictitious and fraudulent joinafter stating that Schenck, like the defending of Wettengel, and that, in his opinion, ant corporation, was a nonresident of Mis- the same inevitably showed that the infersouri and a citizen of another state, charged ences drawn from the allegations of the that Wettengel haa been improperly and petition were correct, and that he might fraudulently joined as a defendant for the properly consider these affidavits in deterpurpose of fraudulently and improperly pre- mining the question of removal. venting, or attempting to prevent, the de- It is urged by counsel for defendants in fendant from removing the cause to the error that the writ of error should be disUnited States circuit court, and that the missed because there was no final judgment, plaintiff well knew, at the time of the be- and only in a case where a final judgment ginning of the suit, that Wettengel was not has been rendered can the question of jucharged with the duties aforesaid, and that risdiction be certified from a circuit court he was joined as a party defendant to pre- under § 5 of the court of appeals act. vent the removal of the cause, and not in McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, good faith.

12 Sup. Ct. Rep. 118, is relied upon, in which After removal, plaintiff filed his motion it was held that a writ of error could only to remand the case to the state court, on be taken out after final judgment. the ground that there was not in the case a It is true that, after the circuit court of controversy between citizens of different the United States maintained its jurisdicstates, and no separable controversy be- tion, the plaintiff could have gone on and tween the plaintiff and the company with tried the case on its merits, and, after in the meaning of the removal act. The judgment, had there been reason for doing court, upon hearing the motion, refused to so, taken the case to the circuit court of remand the cause, and afterward, plaintiff appeals; but, upon refusing to recognize the electing to stand upon his motion to remand, jurisdiction of the circuit court, final judgand refusing to recognize the jurisdiction ment in the action was rendered, that the of the United States court or to proceed plaintiff take nothing by the suit and that with the prosecution of his case therein, up- the defendants go hence without day, and on motion of the defendant the court or- recover their costs against the plaintiff. dered the case to be dismissed, and ren- Whether this judgment would be a bar to dered judgment that the plaintiff take noth- another action is not now before us; it is ing by the suit, and that the defendants go final, so far as the case is concerned, and hence without day and recover their costs terminated the action. against the plaintiff. A bill of exceptions Section 5 of the court of appeals act prowas allowed, and the court also certified vides that only the question of jurisdiction that the only question decided by the court shall be brought to this court from the in the cause was that the joining of Wet-circuit court, and that is all that is now be. tengel as a codefendant with the company fore us. was palpably groundless and fictitious, and It is contended that this case should have for the purpose of unlawfully depriving the been remanded upon the authority of Aladefendant company of its right to remove bama Great Southern R. Co. v. Thompson, the cause to the Federal court for trial; 200 U. S. 206, 50 L. ed. 441, 26 Sup. Ct. Rep. that for this reason the motion to remand 161, decided at the last term of this court. was denied; that in deciding the motion In that case it was held that, upon a questhe court took into consideration not only tion of removal, where a plaintiff, in good the complaint and petition for removal, but faith, prosecuted his suit as upon a joint also the affidavits filed in support and op-cause of action, and the removal was sought position to the motion to remand; that when the complaint was the only pleading the plaintiff refused to submit to the juris- in the case, the action as therein stated diction of the court and suffered a dismissal was the test of removability; and if that of the suit for the want of prosecution; was joint in character, and there was no showing of a want of good faith of the as such draftsman, and that he had nothing plaintiff, no separable controversy was pre- to do with selecting plans or approving the sented with a nonresident defendant, joined same, but took the plans and ideas furwith a citizen of the state; in other words, nished him and made the necessary drawif the plaintiff had, in good faith, elected ings for the use of mechanics, and that he to make a joint cause of action, the question had no authority to employ or discharge of proper joinder is not to be tried in the men or superintend work or give instrucremoval proceedings, and that, however that tions to any of the men as to how they might turn out upon the merits, for the should perform their work. Wettengel's purpose of removal the case must be held affidavit was also filed, in which he stated to be that which the plaintiff has stated in that for ten years he had been employed setting forth his cause of action. And in as a draftsman by the defendant company; that case it was said:

that his work was performed in the office “The fact that by answer the defendant of the company; that he had no duties outmay show that the liability is several can- side of the office or with the plaintiff; that not change the character of the case made he had no duty of superintendence in conby the plaintiff in his pleading so as to nection with him; that he was not charged affect the right of removal. It is to be with any duty of planning or constructing remembered that we are not now dealing the apparatus which was used in the dewith joinders which are shown, by the pe- fendant's plant; that the designing and tition for removal or otherwise, to be at- selection thereof was made by other pertempts to sue in the state courts with a sons, and that his sole duty was to atview to defeat Federal jurisdiction. In such tend to the mechanical work of drafting, cases entirely different questions arise, and based upon the ideas and plans of others; the Federal courts may, and should, take that he had no discretion whatever as to such action will defeat attempts to the sort of apparatus to be used in any part wrongfully deprive parties entitled to sue of defendant's plant, nor as to the strucin the Federal courts of the protection of

tures mentioned in plaintiff's petition; that their rights in those tribunals."

And it was further stated in the court's he had nothing to do with the planning opinion that there was nothing in that case

of the pots, no right to determine what to suggest an attempt to commit a fraud they should be, or whether a railing should upon the jurisdiction of the Federal court. be used, nor what sort of hoisting appara

Much discussion is had in this case as tus should be used in connection therewith; to whether the alleged cause of action is that he had no duty in connection with the joint or several in its character, and whether plaintiff as to how or when he should do his the corporation and Wettengel could be work, and no authority to give him injointly held responsible to the plaintiff upon structions; in short, that his position was the allegations of the complaint, but we do merely clerical and his duties confined to not deem it necessary to determine that the making of drawings to enable mechanics question.

to construct work from plans furnished by Upon the authority of the Alabama Great others in the employ of the defendant, and Southern case, supra, and the preceding that he did not know the plaintiff by name, cases in this court which are cited and ap- and did not know what sort of work he was plied in the opinion in that case, if the doing or in what portion of defendant's complaint is filed in good faith, the cause plant he was engaged. of action, for the purposes of removal, may

To these affidavits Wecker, the plaintiff, be deemed to be that which the plaintiff filed a counter affidavit, admitting that Eihas undertaken to make it; but in this senmayer was charged with the general sucase both parties filed affidavits upon the pervision of the work and business of the motion to remand, for and against the company at the place plaintiff was emright to remove.

ployed and received his injury, and stating The petition for removal was sworn to that just prior to the construction of the by an agent of the company, and defend-furnace structure he heard Eisenmayer diant corporation filed the affidavit of one rect Wettengel to prepare plans for a furGeorge Eisenmayer, who testified that he nace to be erected where the one was built was the chief engineer of the company, shortly after, upon which the plaintiff was charged with the planning of new apparatus at work when he received his injuries, and and the construction and repair thereof states his belief that the defendant Wettenfor the company, and that Wettengel was gel planned and directed the construction of employed in the office as a draftsman, with the furnace. several other persons in a similar capaci. Upon these affidavits the court reached ty; that the sole work of Wettengel was the conclusion that, considered with the

V.

complaint, they showed conclusively an at-eral court as to permit the state courts, in tempt to defeat the jurisdiction of the Fed proper cases, to retain their own jurisdic. eral court by wrongfully joining Wettengel. tion.

The consideration of these affidavits clear- Reaching the conclusion that the court ly shows that Wettengel's employment was did not err in holding upon the testimony not that of a superior or superintendent, in this case that the real purpose in joining or one charged with furnishing designs, for Wettengel was to prevent the exercise of it is not contradicted that he was employed the right of removal by the nonresident de. as a draftsman, receiving his instructions fendant, we affirm the action of the Cir. from others; nor is there the slightest at- cuit Court in refusing to remand the case. tempt to sustain the allegations of the pe- Judgment affirmed. tition that Wettengel was a superintendent over the plaintiff, or had any authority to direct his work or to give him instructions as to the manner in which his duty should PEOPLE OF THE STATE OF NEW YORK

EX REL. ALBERT J. HATCH, Piff. in be performed. The testimony certainly

Err., shows no basis for these charges. The affidavit of Wecker, except as to the state- EDWARD REARDON, A Peace Officer of ment of his belief, admits that Eisenmayer

the County of New York. was superintendent, and claims that he heard him direct Wettengel to prepare Constitutional law-equal protection of the plans for a furnace structure. This is not

laws-discrimination-validity of stock

transfer tax. inconsistent with the undisputed testimony as to the nature and character of Wetten- stock imposed by N. Y. Laws 1905, chap.

1. The tax on transfers of corporate gel's employment in the subordinate capac- 241, is not invalid under U. S. Const. 14th ity of a draftsman.

Amend. as making an arbitrary discriminaIn view of this testimony and the ap- tion in favor of sales of other kinds of parent want of basis for the allegations of personal property, such as corporate bonds. the petition as to Wettengel's relations to Constitutional law—due process of lawthe plaintiff, and the uncontradicted evi- validity of stock transfer tax, dence as to his real connection with the

2. Even

as applied to shares of a company, we think the court was right in foreign corporation owned by nonresidents,

the tax on transfers of corporate stock imreaching the conclusion that he was joined posed by N. Y. Laws 1905, chap. 241, is not for the purpose of defeating the right of invalid under U. S. Const. 14th Amend. as the corporation to remove the case to the taking property without due process of law. Federal court.

Constitutional law-due process of lawIt is objected that there was no proof validity of stock transfer tax. that Wecker knew of Wettengel's true rela- 3. The adoption of the face value of the tion to the defendant, and consequently he shares as the basis of the tax on transfers could not be guilty of fraud in joining him; of corporate stock, imposed by N. Y. Laws but even in cases where the direct issue of 1905, chap. 241, does not deprive the owners fraud is involved, knowledge may be im- of their property without' due process of

law. puted where one wilfully closes his eyes

Interstate to information within his reach.

commerce-state regulation

stock transfer tax. It is further objected that the court

4. An unconstitutional interference should not have heard the matter upon affi- with interstate commerce is not made by davits, and should have required testimony, the tax on transfers of corporate stock imwith the privilege to cross-examine; but posed by N. Y. Laws 1905, chap. 241, as apthe plaintiff made no objection to the con- plied to a sale in New York, between two sideration of affidavits in support of the nonresidents, of the stock of foreign railpetition for the removal, and himself filed way corporations. a counter affidavit. In this state of the

[No. 310.) record there certainly can be no valid objection to the manner in which the court heard and considered the testimony.

Argued December 11, 12, 1906. Decided

January 7, 1907. While the plaintiff, in good faith, may proceed in the state courts upon a cause of N ERROR to the Supreme Court of the action which he alleges to be joint, it is State of New York in and for the City equally true that tne Federal courts should and County of New York to review an ornot sanction devices intended to prevent a der denying relief by habeas corpus to one removal to a Federal court where one has charged with a violation of the New York that right, and should be equally vigilant stock transfer tax law, which order was af. to protect the right to proceed in the Fed-firmed successively by the Appellate Divi

I

sion of the Supreme Court, First Depart of the United States, the act of June 13, ment, and by the Court of Appeals of the 1898, chap. 448, § 25, Schedule A, 30 Stat. at state. Affirmed.

L. 448, 458, U. S. Comp. Stat. 1901, p. 2300, See same case below in Appellate Divi-1 was upheld in Thomas v. United States, 192 sion, 110 App. Div. 821, 97 N. Y. Supp. 535; | U. S. 363, 48 L. ed. 481, 24 Sup. Ct. Rep. in Court of Appeals, 184 N. Y. 431, 77 N. 305. But it is argued that different conE. 970.

siderations apply to the states, and the tax The facts are stated in the opinion. is said to be had under the 14th Amendment

Messrs. John G. Milburn, John F. Dillon, for several reasons. In the first place it is and John G. Johnson for plaintiff in error. said to be an arbitrary discrimination. This

Messrs. Julius M. Mayer, E. Crosby Kin-objection to a tax must be approached with dleberger, Horace McGuire, and James C. the greatest caution. The general expresGraham for defendant in error.

sions of the Amendment must not be al

lowed to upset familiar and long-established Mr. Justice Holmes delivered the opinion methods and processes by a formal elaboraof the court:

tion of rules which its words do not imThis is a writ of error to revise an order port. See Michigan C. R. Co. v. Powers, 201 dismissing a writ of habeas corpus and re-U. S. 245, 293, 50 L. ed. 744, 761, 26 Sup. Ct. manding the relator to the custody of the Rep. 459. Stamp acts necessarily are condefendant in error. The order was made by fined to certain classes of transactions, and a single justice and affirmed successively to classes which, considered economically or by the appellate division of the supreme from the legal or other possible points of court (110 App. Div. 821, 97 N. Y. Supp. view, are not very different from other 535), and by the court of appeals (184 N. Y. classes that escape. You cannot have a 431, 77 N. E. 970). The facts are these: stamp act without something that can be The relator, Hatch, a resident of Connecti- stamped conveniently. And it is easy to cut, sold in New York to one Maury, also contend that justice and equality cannot be a resident of Connecticut, but doing business measured by the convenience of the taxing in New York, 100 shares of the stock of the power. Yet the economists do not condemn Southern Railway Company, a Virginia cor- stamp acts, and neither does the Constituporation, and 100 shares of the stock of the tion. Chicago, Milwaukee, & St. Paul Railroad The objection did not take this very Company, a Wisconsin corporation, and on broad form, to be sure. But it was said the same day and in the same place re that there was no basis for the separation ceived payment and delivered the certifi- of sales of stock from sales of other kinds cates, assigned in blank. He made no of personal property; for instance, especial. memorandum of the sale and affixed to no ly, bonds of the same or other companies. document any stamp, and did not other. But bonds in most cases pass by delivery, wise pay the tax on transfers of stock im- and a stamp tax hardly could be enforced. posed by the New York Laws of 1905, chap. See further, Nicol v. Ames, 173 U. S. 509, 241. He was arrested on complaint, and 522, 523, 43 L. ed. 786, 794, 795, 19 Sup. Ct. thereupon petitioned for this writ, alleging Rep. 522. In Otis v. Parker, 187 U. S. 606, that the law was void under the 14th 47 L. ed. 323, 23 Sup. Ct. Rep. 168, practical Amendment of the Constitution of the grounds were recognized as sufficient to United States.

warrant a prohibition, which did not apply The statute in question levies a tax of 2 to sales of other property, of sales of stock cents on each hundred dollars of face value on margin, although this same argument of stock, for every sale or agreement to sell was pressed with great force. A fortiori do the same, etc.; to be paid by affixing and they warrant a tax on sales which is not canceling stamps for the requisite amount intended to discriminate against or to disto the books of the company, the stock courage them, but simply to collect a revecertificate, or a memorandum required in nue for the benefit of the whole community certain cases. Failure to pay the tax is in a convenient way. made a misdemeanor punishable by fine, im- It is urged further that a tax on sales is prisonment, or both. There is also a civil really a tax on property, and that therefore penalty attached. The petition for the writ the act, as applied to the shares of a foreign sets up only the 14th Amendment, as we corporation owned by nonresidents, is a have mentioned, but both sides have argued taking of property without due process of the case under the commerce clause of the law. Union Refrigerator Transit Co. Constitution (art. 1, § 8) as well, and we Kentucky, 199 U. S. 194, 50 L. ed. 150, 26 shall say a few words on that aspect of the Sup. Ct. Rep. 36. This argument presses the question.

expressions in Brown V. Maryland, 12 It is true that. a very similar stamp act / Wheat. 419, 444, 6 L. ed. 678, 687; Fairbank