572, 17 Sup. Ct. Rep. 182. The act of March | But those considerations have no applica3, 1891, chap. 517, transferring to the cir- tion to the jurisdiction of the courts of a tercuit courts of appeals the appellate jurisdic-ritory, or to the appellate jurisdiction *of this[168] tion from the supreme courts of the territo- court over those courts. In the territories ries in cases founded on diversity of citizen- of the United States, Congress has the entire ship, or arising under the patent, revenue, dominion and sovereignty, national and loor criminal laws, or in admiralty, has not cal, Federal and state, and has full legisla otherwise affected the appellate jurisdiction tive power over all subjects upon which the of this court from the territorial courts. | legislature of a state might legislate within 26 Stat. at L. 828, 830; Shute v. Keyser, 149 U. S. 649, 37 L. ed. 884, 13 Sup. Ct. Rep. 960; Aztec Min. Co. v. Ripley, 151 U. S. 79, 38 L. ed. 80, 14 Sup. Ct. Rep. 236. the state; and may, at its discretion, intrust that power to the legislative assembly of a territory. Shively v. Bowlby, 152 U. S. 1, 48, 38 L. ed. 331, 349, 14 Sup. Ct. Rep. 548, Under the existing acts of Congress, there- and cases cited; Utter v. Franklin, 172 U. S. fore (except in the cases so transferred to the 416, 423, 43 L. ed. 498, 500, 19 Sup. Ct. Rep. circuit courts of appeals, and in cases of ha- 183. In the exercise of this power, Congress beas corpus, cases involving the validity of has enacted that (with certain restrictions a copyright, and cases depending upon the not affecting this case) "the legislative powConstitution or a statute or treaty of the er of every territory shall extend to all JUnited States-none of which classes *in- rightful subjects of legislation not inconsistcludes the case at bar), the appellate juris-ent with the Constitution and laws of the diction of this court to review and reverse or United States." Rev. Stat. § 1851; act of affirm the final judgments and decrees of the July 30, 1886, chap. 818, 24 Stat. at L. 170. supreme court of a territory includes those The power so conferred upon a territorial ascases, and those cases only, at law or in equi-sembly covers the domestic relations, the setty, in which "the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars." In order to sustain the appellate jurisdiction of this court, under such an enactment, the matter in dispute must have been money, or something the value of which can be estimated in money. Kurtz v. Moffitt, 115 U. S. 487, 495, 496, 29 L. ed. 458, 459, 6 Sup. Ct. Rep. 148, and cases there cited; Durham v. Seymour, 161 U. S. 235, 40 L. ed. 682, 16 Sup. Ct. Rep. 452: Perrine v. Slack, 164 U. 8. 452, 41 L. ed. 510, 17 Sup. Ct. Rep. 79. tlement of estates, and all other matters which, within the limits of a state, are regulated by the laws of the state only. Cope v. Cope, 137 U. S. 682, 684, 34 L. ed. 832, 11 Sup. Ct. Rep. 222. By the territorial statutes of Arizona, the original jurisdiction of suits for divorce is vested in the district courts of the territory; and their final judgments in such suits, as in other civil cases, may be reviewed by the supreme court of the territory on writ of error or appeal. Ariz. Rev. Stat. 1887, title 34, chap. 4; title 15, chap. 20. As already observed, the motion to dismiss, in the case at bar, is made upon the twofold ground that the decree appealed from is one concerning divorce and alimony only, and that it is for no more than $5,000. The decree of the supreme court of the territory in favor of the wife includes the dismissal of the husband's suit for a divorce froin the bond of matrimony, and the award to the wife, upon her motion, of the sum of $5,250 for alimony and counsel fees. In support of the motion to dismiss this appeal because the decree below concerned divorce and alimony only, the appellee relied on Barber v. Barber, 21 How. 582, 16 L. ed. 226. In that case, a majority of this court held that a wife who had obtained against her husband, in the courts of the state of their domicil, a decree divorcing them from bed and board and awarding alimony to her, might sue the husband for such alimony in a circuit court of the United States held in a state in which he had since become domi- So far as the question of divorce was conciled. Mr. Justice Wayne, in delivering cerned, the matter in controversy was the judgment, said: "We disclaim altogether continuance or the dissolution of the status any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board." 21 How. 584, 16 L. ed. 226. And from that proposition there was no dissent. It may therefore be assumed as indubitable that the circuit courts of the United States have no jurisdiction, either of suits for divorce, or of claims for alimony, whether made in a suit for divorce, or by an original proceeding in equity, before a decree for such alimony in a state court. Within the states of the Union, the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the state, and not to the laws of the United States. Re Burrus, 136 U. S. 586, 593, 594, 34 L. ed. 500, 503, 10 Sup. Ct. Rep. 850. or relation of marriage between the parties, The decree for alimony and counsel fees, although in one sense an incident to the suit for divorce, is a distinct and severable final judgment in favor of the defendant for a sum of money of a sufficient jurisdictional amount, and is therefore good ground of appeal, for the same reason that a judgment for or against the defendant upon a counterclaim of like amount would support the appellate jurisdiction. Dushane v. Benedict, 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. It was argued for the appellee that the decree of the supreme court of the territory in her favor for alimony and counsel fees was not really for more than the sum of $5,000, because before that decree was rendered, or the case submitted to that court, she had filed a remittitur of the excess above that sum, but its final judgment, as actually entered, having been for the sum of $5,250. the question whether the remittitur was erroneously disregarded touched the question 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 judg. ment 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 territoria! courts are regulated by the territorial stat utes. [170] *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 judgnient, 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 shall from the that "a remitter Those statutes, in a subsequent section, provide that "if in any judgment rendered in the district court there shall be an excess of damages rendered, and, before the plaintiff has entered a release of the same in such court in the manner provided by law, such judgment shall be removed to the supreme court, it shall be lawful for the party in whose favor such excess of damages has been rendered to make such release in the supreme court in the same manner as such release is required to be made in the district court." 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 that may have been, the attestation of a release 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 ren der the release of part of the judgment below 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 decree 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. Eof Hudson County, New Jersey, to re- RROR to the court of Oyer and Terminer Statement by Mr. Justice Brewer: The just and appropriate way of disposing *The plaintiff in error was, on October 5,[173] 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 the crime of murder. On March 6, 1899, the tur which the supreme court of the territory erroneously ignored, to leave the case as if judgment of the court of oyer and terminer that court had performed its duty in this rewas affirmed by the New Jersey court of ergard, 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 known to the New Jersey statutes as a The jury which tried the case was what is of Arizona for $5,250 be modified so as to stand as a decree for $5,000, and, as so modi-struck jury," authority for which is found in chap. 237, p. 894, Laws of New Jersey fied, affirmed, with costs. (1898). Sections 75 and 76 read as fol Mr. Justice White and Mr. Justice lows: Peckham dissented. JAMES K. BROWN, Plff. in Err., v. 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, that a statute is not in conflict with the Constitution of the state, is conclusive on the Federal courts. "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 2. The first ten Amendments to the Federal to serve as jurors in and for the county in[174] Constitution contain no restrictions on the which any indictment was found, whether powers of the state, but were intended to the names of such persons appear on the operate solely on the Federal government. sheriff's book of persons qualified to serve as 3. Trial by a struck jury in a murder case, in jurors in and for such county or not, ninetyconformity to a state statute which is valid six names, with their places of abode, from under the state Constitution, providing that which the prosecutor and the defendant shall the court may select from the persons quali-each strike twenty-four names in the usual fied to serve as jurors ninety-six names, from which the prosecutor and defendant may each strike twenty-four and the remainder of which shall be put in the jury box, out of which the trial jury shall be drawn in the usual way, does not violate the provision of 4. A statute allowing an accused person only U. S. 436, and Wilson v. North Carolina ex rel. 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. 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 names so placed in the box the jury shall be drawn in the usual way." 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 peremptory challenges and the state to twelve, but in the case of a "struck jury" each party is allowed only five peremptory challenges. 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. The procedure provided by the New Jersey statute for trial by a struck jury in a murder case is not due proces of law. Jones v. Robbins, 8 Gray, 329; Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841. not to the states. Barron v. Baltimore, 7 Pet. 243, 247, 8 L. ed. 672, 674; McElvaine v. Brush, 142 U. S. 158, 35 L. ed. 973, 12 Sup. Ct. Rep. 156; 14th Amendment, Guthrie, 3, 22, 58. *Mr. Justice Brewer delivered the opin-[174] jury are not in conflict with the Constitu- 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 subjected to legislation which is limited either in the object to which it is directed or by the territory within which it is to operate shall be treated alike under like circumstances and conditions, both in the priv-v. Daris, 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: No privilege or immunity of plaintiff in error as a citizen of the United States is infringed or abridged by a trial by an impartial jury of twelve men in the state and county 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. 989, 13 Sup. Ct. Rep. 105; Forsyth v. Ham- The first ten Amendments to the Federal *The state has full control over the proced-[175] ure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not work a denial of fundamental rights, or conflict with specific and applicable provisions of the Federal Constitution. Ex parte Reggel, 114 U. S. Missouri v. Lewis, 101 U. S. 22, 31, 25 L. 642, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148; ed. 989, 992; Hayes v. Missouri, 120 U. S. 68, Iowa C. R. Co. v. Iowa, 160 U. S. 389, 40 30 L. ed. 578, 7 Sup. Ct. Rep. 350; Caldwell L. ed. 467, 16 Sup. Ct. Rep. 344; Chicago, B. v. Texas, 136 U. S. 692, 697, 34 L. ed. 816, ed. 979, 17 Sup. Ct. Rep. 581. "The Four& 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 U. 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 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. a right of trial by jury, and on the other The state is not tied down by any provi tury to make such changes as may be nec- | other method, it is certainly a fair and rea- It is said that the equal protection of the laws was denied because the defendant was not given the same number of peremptory In providing for a trial by a struck jury, challenges that he would have had in a trial impaneled in accordance with the provisions before an ordinary jury. In the latter case of the New Jersey statute, no fundamental he would have been entitled under the statright of the defendant is trespassed upon. ute to twenty peremptory challenges, but The manner of selection is one calculated to when a struck jury is ordered he is given secure an impartial jury, and the purpose of only five. *But that a state may make dif-[177 criminal procedure is not to enable the de- ferent arrangements for trials under differfendant to select jurors, but to secure an im- ent circumstances of even the same class of partial jury. "The accused cannot complain offenses, has been already settled by this if he is still tried by an impartial jury. He court. Thus, in Missouri v. Lewis, supra, can demand nothing more. Northern P. R. in certain parts of the state an appeal was Co. v. Herbert, 116 U. S. 642, 29 L. ed. 755, given from a final judgment of a trial court 6 Sup. Ct. Rep. 590. The right to challenge to the supreme court of the state, while in is the right to reject, not to select, a juror. other parts this was denied; and it was held If from those who remain an impartial jury that a state might establish one system of is obtained, the constitutional right of the law in one portion of its territory and a difaccused is maintained." Hayes v. Missouri, ferent system in another, and that in so do120 U. S. 68, 71, 30 L. ed. 578, 580, 7 Sup. ing there was no violation of the Fourteenth Ct. Rep. 350. Amendment. So, in Hayes v. Missouri, su[176] *Due process and equal protection of the pra, it appeared that a certain number of laws are guaranteed by the Fourteenth peremptory challenges was allowed in cities Amendment, and this amendment operates to of over 100,000 inhabitants, while a less numrestrict the powers of the state, and if trial ber was permitted in other portions of the by a struck jury conflicts with either of these state. It was held that that was no denial specific provisions it cannot be sustained. A of the equal protection of the laws, the court perfectly satisfactory definition of due proc- saying, page 71, L. ed. 580, Sup. Ct. Rep. 352: ess may perhaps not be easily stated. In "The Fourteenth Amendment to the ConstiHurtado 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 proceeding enforced by public authority, 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 It is true that here there is no territorial to be due process of law." In Leeper v. distribution, but in all cases in which a Texas, 139 Ú. 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 administration through courts of justice is due process, and when secured by the law of the state the constitutional requirement is satisfied." 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 tory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed." cases in which the trial is by an ordinary jury. Either party, state or defendant, may apply for a struck jury, and the matter is one which is determined by the court in the 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 judg ment is affirmed. Mr. Justice Harlan concurs in the result. |