120 U. S. 630, 636, 30 L. ed. 810, 7 Sup. Ct. Rep. 696; Stuart v. Boulware, 133 U. S. 78, 33 L. ed. 568, 10 Sup. Ct. Rep. 242; Block v. Darling, 140 U. S. 234, 35 L. ed. 478, 11 Sup. Ct. Rep. 832. Those statutes, in a subsequent section, It was argued for the appellee that the de- provide that "if in any judgment rendered cree of the supreme court of the territory in in the district court there shall be an excess her favor for alimony and counsel fees was of damages rendered, and, before the plainnot really for more than the sum of $5,000, tiff has entered a release of the same in such because before that decree was rendered, or court in the manner provided by law, such the case submitted to that court, she had judgment shall be removed to the supreme filed a remittitur of the excess above that court, it shall be lawful for the party in sum, but its final judgment, as actually whose favor such excess of damages has been entered, having been for the sum of $5,250. | rendered to make such release in the supreme the question whether the remittitur was er- court in the same manner as such release is roneously disregarded touched the question required to be made in the district court." what that court should have done, and not what it actually did; in other words, a question of error, and not of jurisdiction. Had there been no local statute on the subject of remittitur, it would have been within the discretion of the court, before rendering judgment, to allow a remittitur reducing the sum recovered below the amount required to sustain an appeal; and, if the court had done so, and had rendered judgment for the reduced sum, the appeal must have been dismissed. Alabama Gold L. Ins. Co. v. Nichols, 109 U. S. 232, 27 L. ed. 915, 3 Sup. Ct. Rep. 120; Pacific Postal Teleg. Cable Co. v. O'Connor, 128 U. S. 394, 32 L. ed. 488, 9 Sup. Ct. Rep. 112; Texas & P. R. Co. v. Horn, 151 U. S. 110, 38 L. ed. 91, 14 Sup. Ct. Rep. 259. The making of a remittitur in this case did not depend upon the discretion of the court, but was authorized and regulated by the statutes of the territory. While the right of appeal to this court from the courts of the territory is governed by the acts of Congress, the proceedings in the territorial courts are regulated by the territorial stat utes. This section again, construed together with the earlier sections, clearly authorizes either party, whether plaintiff or defendant, in whose favor a judgment for a sum of money has been rendered in the district court, and who has made no remittitur or release of part thereof in that court, to make the same in the supreme court of the territory. The section concludes by enacting that, "upon such release *being filed in said su-[171 preme court, the said court, after revising said judgment, shall proceed to give such judgment as the court below ought to have given if the release had been made and filed therein." The only departure from the provisions of these statutes in the case at bar, as appearing by the record transmitted to this court, is that the clerk's attestation upon the defendant's release or remittitur was a blank form without the clerk's signature or the seal of his office. But the appellant in his brief, while contending in general terms that the course prescribed by the statute had not been pursued, made no specific objection to the proceedings except that the right to remit was given to the plaintiff only. And in the material parts of the record, as set forth in the brief of the appellee, the attestation to the release appears to have been signed by the clerk and under seal. It is possible that the signature and seal may have been inadvertently omitted in the record transmitted to this court. But, however 1170] *The Revised Statutes of the territory of Arizona contain full and explicit provisions upon this subject, which have been set forth in the statement prefixed to this opinion. They begin by providing that "any party in whose favor a verdict or judgment has been rendered" in the district court "may in open court remit any part of such verdict or judg-that may have been, the attestation of a rement, and such remitter shall be noted on the docket and entered in the minutes." [§ 817.] This provision clearly includes any party, whether plaintiff or defendant, in whose favor a judgment for a sum of money has been rendered; and is applicable to the case of a wife who has recovered a judgment for alimony and counsel fees. The provision of the next section is equally comprehensive, by which "any party may make such remitter in vacation by executing and filing with the clerk a release in writing signed by him or his attorney of record and attested by the clerk with the seal of his office," and "such release shall constitute a part of the record of the cause." In whichever of those two ways the remittitur is made, it is provided that "any execution thereafter issued shall be for the balance only of the judgment after deducting the amount remitted" [§ 818], and lease filed in vacation, like the noting on the docket and entry in the minutes of a remittitur made in open court, was an act to be done by the clerk, and not by the party; its sole object in either case was to verify the act of the party; and when, as in this case, the release was executed by the party's attorneys of record, and was both filed and recorded in the supreme court of the territory, while the case was pending in that court, we are of opinion that the statute was so substantially and sufficiently complied with as to ender the release of part of the judgment be low valid, and to make it the duty of that court to give effect to the release, and, according to the express terms of the statute, "after revising said judgment," to "proceed to give such judgment as the court below ought to have given if the release had been made and filed therein." If that court had duly given effect to the release, and had rendered in other respects the same decree that it has rendered, the case would not have been appealable. This case is appealable because, and solely because, the deeree rendered by that court is for a sum of more than $5,000. If this court [172]*were to dismiss the appeal, it could not modify the decree appealed from, and the appellee would retain a decree, not only for $5,000, but also for $250 more, which she had legally remitted and released before that decree was rendered. If this court were to re-examine the merits of the case, the appellant would have the full benefit of an appeal which he could not have taken at all, had that court acted rightly in a matter wholly independent of those merits. of Hudson County, New Jersey, to re RROR to the court of Oyer and Terminer view a judgment of conviction in a murder Statement by Mr. Justice Brewer: *The plaintiff in error was, on October 5,[173] The just and appropriate way of disposing of the case appears to this court to be, to 1898, in the court of oyer and terminer of affirm the validity of the release or remitti-Hudson county, New Jersey, found guilty of On March 6, 1899, the tur which the supreme court of the territory the crime of murder. erroneously ignored, to leave the case as if judgment of the court of oyer and terminer was affirmed by the New Jersey court of erthat court had performed its duty in this regard, and, without considering whether there rors and appeals, and the case being remandwas any other error in the decree for ali-ed to the trial court plaintiff in error was, mony and counsel fees, to order that the de- on April 19, 1899, sentenced to be hanged. cree of the Supreme Court of the Territory of Arizona for $5,250 be modified so as to stand as a decree for $5,000, and, as so modi fied, affirmed, with costs. Mr. Justice White and Mr. Justice Peckham dissented. JAMES K. BROWN, Plff. in Err., υ. STATE OF NEW JERSEY. (See S. C. Reporter's ed. 172-177.) Constitutionality of struck-jury law due process of law equal protection of laws. 1. The decision of the highest court of a state, stitution of the state, is conclusive on the that a statute is not in conflict with the Con Federal coarts. 2. The first ten Amendments to the Federal 4. A statute allowing an accused person only late, see notes to Pearson v. Yewdall, 24 L. ed. Caldwell, 42 L. ed. U. S. 865. As to jurisdiction of Federal over state courts; necessity of Federal question,—see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267, and Kipley v. Illinois ex rel. Akin, 42 L. ed. U. S. 998. known to the New Jersey statutes as a "Sec. 75. The supreme court, court of oyer and terminer, and court of quarter sessions, respectively, or any judge thereof, may, on motion in behalf of the state, or defendant in any indictment, order a jury to be struck for the trial thereof, and upon making said order the jury shall be struck, served, and returned in the same manner as in case of struck juries ordered in the trial of civil causes, except as herein otherwise provided. "Sec. 76. When a rule for a struck jury shall be entered in any criminal case, the court granting such rule may, on motion of the prosecutor, or of the defendant, or on its own motion, select from the persons qualified to serve as jurors in and for the county in[174] which any indictment was found, whether the names of such persons appear on the sheriff's book of persons qualified to serve as jurors in and for such county or not, ninetysix names, with their places of abode, from which the prosecutor and the defendant shall each strike twenty-four names in the usual way, and the remaining forty-eight names shall be placed by the sheriff in the box, in the presence of the court, and from the drawn in the usual way." names so placed in the box the jury shall be By §§ 80 and 81 of that statute, where there is no "struck jury" and the party is on trial for murder, he is entitled to twenty and the state peremptory challenges twelve, but in the case of a "struck jury" each party is allowed only five peremptory challenges. to Mr. William D. Daly argued the cause and, with Mr. Joseph M. Noonan, filed a a brief for plaintiff in error: By the common law as recognized and de clared by statute, 3 Geo. II. 25, struck juries Such amendments of the Constitution of King v. Edmonds, 4 Barn. & Ald. 471. *Mr. Justice Brewer delivered the opin-[174} The equal protection of the law guaran-ion of the court: teed by the 14th Amendment of the United That the statutory provisions for a struck States Constitution requires that all persons jury are not in conflict with the Constitusubjected to legislation which is limited tion of New Jersey is for this court foreeither in the object to which it is directed closed by the decision of the highest court or by the territory within which it is to of the state. Louisiana v. Pilsbury, 105 U. operate shall be treated alike under like cir- S. 278, 294, 26 L. ed. 1090, 1095; Hallinger cumstances and conditions, both in the priv-v. Davis, 146 U. S. 314, 319, 36 L. ed. 986, ileges conferred and in the liabilities imposed. Missouri v. Lewis, 101 U. S. 22, 25 L. ed. 989; Hayes v. Missouri, 120 U. S. 68, 30 L. ed. 578, 7 Sup. Ct. Rep. 350; Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570. Mr. James S. Erwin argued the cause and filed a brief for defendant in error: 989, 13 Sup. Ct. Rep. 105; Forsyth v. Ham- The first ten Amendments to the Federal Constitution contain no restrictions on the powers of the state, but were intended to operate solely on the Federal government. Barron v. Baltimore, 7 Pet. 243, 8 L. ed. 672; Fox v. Ohio, 5 How. 410, 12 L. ed. 213; No privilege or immunity of plaintiff in Twitchell v. Pennsylvania, 7 Wall. 321, 19 error as a citizen of the United States is in- L. ed. 223; United States v. Cruikshank, 92 fringed or abridged by a trial by an impar-U. S. 542, 552, 23 L. ed. 588, 591; Spies v. tial jury of twelve men in the state and coun-Illinois, 123 U. S. 131, 31 L. ed. 80, 8 Sup. ty where the crime was committed. Hayes v. Missouri, 120 U. S. 71, 30 L. ed. 580, 7 Sup. Ct. Rep. 350; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. He was tried by due process of law under the laws of the state of New Jersey, and by what is generally understood as due process of law. Pennoyer v. Neff, 95 U. S. 714, 733, 24 L. ed. 565, 572; Hurtado v. California, 110 U. S. 516, 535, 28 L. ed. 232, 238, 4 Sup. Ct. Rep. 111. 292; Caldwell v. Texas, 137 U. S. 692, 697. 34 L. ed. 816, 818, 11 Sup. Ct. Rep. 224. He was tried under the law applicable to all her citizens or those violating her laws as the words "equal protection of the law" are understood in the 14th Amendment. Ct. Rep. 21; Re Sawyer, 124 U. S. 200, 219, *The state has full control over the proced-[175] Missouri v. Lewis, 101 U. S. 22, 31, 25 L. ed. 989, 992; Hayes v. Missouri, 120 U. S. 68, 30 L. ed. 578, 7 Sup. Ct. Rep. 350; Caldwell v. Teras, 136 U. S. 692, 697, 34 L. ed. 816, Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. 818, 11 Sup. Ct. Rep. 224; Re Converse, 137 teenth Amendment does not profess to secure ed. 979, 17 Sup. Ct. Rep. 581. "The FourU. S. 631, 34 L. ed. 799, 11 Sup. Ct. Rep. 191. to all persons in the United States the benThe decision of the New Jersey court of efit of the same laws and the same remedies. errors and appeals construing the statutes Great diversities in these respects may exist in question, and that the same do not violate in two states separated only by an imaginary the Constitution of New Jersey, will be con-line. On one side of this line there may be clusive on this court, even though this court a right of trial by jury, and on the other may differ from the state court. Murdock v. Memphis, 20 Wall. 611, 22 L. ed. 429; Louisiana v. Pilsbury, 105 U. S. 278, 26 L. ed. 1090; McElvaine v. Brush, 142 U. S. 155, 35 L. ed. 971, 12 Sup. Ct. Rep. 156; Hallinger v. Davis, 146 U. S. 319, 36 L. ed. 989. 13 Sup. Ct. Rep. 105; Forsyth v. Hammond, 166 U. S. 506, 41 L. ed. 1095, 17 Sup. Ct. Rep. 665; 14th Amendment, Guthrie, p. 44. side no such right. Each state prescribes The state is not tied down by any provi- tury to make such changes as may be necessary. For instance, while at the common law an indictment by the grand jury was an essential preliminary to trial for felony, it is within the power of a state to abolish the grand jury entirely and proceed by information. Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292. other method, it is certainly a fair and reasonable way of securing an impartial jury, was provided for by the laws of the state, and that is all that due process in this respect requires. It is said that the equal protection of the laws was denied because the defendant was not given the same number of peremptory challenges that he would have had in a trial before an ordinary jury. In the latter case he would have been entitled under the statute to twenty peremptory challenges, but when a struck jury is ordered he is given only five. But that a state may make dif-[177 ferent arrangements for trials under different circumstances of even the same class of offenses, has been already settled by this court. Thus, in Missouri v. Lewis, supra, in certain parts of the state an appeal was given from a final judgment of a trial court to the supreme court of the state, while in other parts this was denied; and it was held that a state might establish one system of law in one portion of its territory and a different system in another, and that in so doing there was no violation of the Fourteenth Amendment. So, in Hayes v. Missouri, supra, it appeared that a certain number of peremptory challenges was allowed in cities of over 100,000 inhabitants, while a less number was permitted in other portions of the state. It was held that that was no denial of the equal protection of the laws, the court saying, page 71, L. ed. 580, Sup. Ct. Rep. 352: "The Fourteenth Amendment to the Consti In providing for a trial by a struck jury, impaneled in ccordance with the provisions of the New Jersey statute, no fundamental right of the defendant is trespassed upon. The manner of selection is one calculated to secure an impartial jury, and the purpose of criminal procedure is not to enable the defendant to select jurors, but to secure an impartial jury. "The accused cannot complain if he is still tried by an impartial jury. He can demand nothing more. Northern P. R. Co. v. Herbert, 116 U. S. 642, 29 L. ed. 755, 6 Sup. Ct. Rep. 590. The right to challenge is the right to reject, not to select, a juror. If from those who remain an impartial jury is obtained, the constitutional right of the accused is maintained." Hayes v. Missouri, 120 U. S. 68, 71, 30 L. ed. 578, 580, 7 Sup. Ct. Rep. 350. [176] *Due process and equal protection of the laws are guaranteed by the Fourteenth Amendment, and this amendment operates to restrict the powers of the state, and if trial by a struck jury conflicts with either of these specific provisions it cannot be sustained. A perfectly satisfactory definition of due process may perhaps not be easily stated. In Hurtado v. California, supra, page 537, L. tution of the United States does not prohibit ed. 239, Sup. Ct. Rep. 121, Mr. Justice legislation which is limited either in the obMatthews, after reviewing previous declara-jects to which it is directed, or by the territions, said: "It follows that any legal pro- tory within which it is to operate. It mereceeding enforced by public authority,ly requires that all persons subjected to such whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." In Leeper v. distribution, but in all cases in which a Texas, 139 Ù. S. 462, 468, 35 L. ed. 225, 227, struck jury is ordered the same number of 11 Sup. Ct. Rep. 577, Chief Justice Fuller de- challenges is permitted, as similarly in all clared "that law in its regular course of ad- cases in which the trial is by an ordinary ministration through courts of justice is due jury. Either party, state or defendant, may process, and when secured by the law of the apply for a struck jury, and the matter is state the constitutional requirement is satis-one which is determined by the court in the fied." Within any and all definitions, trial by a struck jury in the manner prescribed must, when authorized by a statute valid under the Constitution of the state, be adjudged due process. A struck jury was not unknown to the common law, though, as urged by counsel for plaintiff in error, it may never have been resorted to in trials for murder. But if appropriate for and used in criminal trials for certain offenses, it could hardly be deemed essentially bad when applied to other offenses. It gives the defendant a reasonable opportunity to ascertain the qualifications of proposed jurors, and to protect himself against any supposed prejudices in the mind of any particular individual called as a juror. Whether better or no than any legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed." It is true that here there is no territorial exercise of a sound discretion. There is no mere arbitrary power in this respect, any more than in the granting or refusing of a continuance. The fact that in one case the plaintiff or defendant is awarded a continuance and in another is refused does not make in either a denial of the equal protection of the laws. That in any given case the discretion of the court in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for consideration on appeal, but it amounts to nothing more. Perceiving no error in the record, the judgment is affirmed. Mr. Justice Harlan concurs in the result. [178]†CHARLES COUDERT, as Ancillary Execu- | Bank of New Orleans, a special or designated v. UNITED STATES. (See S. C. Reporter's ed. 178-183.) Claim against United States-loss of deposit moneys. depositary of public moneys of the United The proceeds of the sale of a vessel seized as a a [No. 15.] Argued October 10, 1899. Decided Novem ber 20, 1899. N ERROR to the United States Circuit IN ERROR to teal for the Second Circuit See same case below, 38 U. S. App. 515, The facts are stated in the opinion. Assistant Attorney General Pradt argued error. Contentions of counsel sufficiently appear in the opinion. [178] *Mr. Justice McKenna delivered the opinion of the court: The plaintiff bases his right of action on the act of March 3, 1887, known as the Tucker act (24 Stat. at L. 505), and the following facts: In November, 1863, the United States vessel Granite City seized the Spanish bark Teresita, the property of Raphael Madrazo, in the Gulf of Mexico as a blockade runner. Proceedings were instituted for her condemnation and forfeiture in the district court for the eastern district of Louisiana. By order of the court, dated August 23, 1864, she and her cargo were sold by the United States marshal, and the proceeds of the sale, amounting to the sum of $10,359.20, after deducting costs and other charges, were deposited by the marshal in the First National This case originally stood on the docket as gument, the appearance of Fuller, administrator, After the payment of September 28, 1882, the balance of the proceeds of the sale after The circuit court rendered judgment for The contention of plaintiff in error is that the deposit of the proceeds of the sale of the Teresita in the First National Bank of New Orleans, then a depositary of the public moneys of the United States, was a payment into the Treasury of the United States, and hence a receipt thereof by the United States, and "consequently, a sum of money equal to the whole of such net proceeds must be held to have become payable to the claimant by the United States under the decree of restitution, wholly irrespective of any loss of particular assets of the Treasury through the failure of the bank." A similar contention was made upon facts very much the same in Branch v. United States, 100 U. S. 673, 25 L. ed. 759. In that case certain cotton was seized under the confiscation act, and sold during the progress of a suit for its condemnation, by order of the[180] court, and the proceeds deposited by the clerk to await the further order of the court in the First National Bank of Selma, Alabama, upon a notification of the Secretary of the Interior that such bank had been designated by the Secretary of the Treasury as a depositary of public money. The suit was dismissed and judgment entered in favor of the defendants for costs. Pending the suit the bank failed, and in the proceedings for winding up its affairs a dividend upon the depos it was paid to the court, and then by order paid over to the claimants. A suit was brought against the United States for the |