Zurrinach sued Aran and Dexter, the one as principal and the other as surety, on a written contract, and recovered judgment, the court having instructed a verdict for the amount claimed, viz., $1,565.72.
When our jurisdiction to review the court below depends upon amount, $5,000 is the criterion. We have hence no jurisdiction on this writ unless there be some basis for it other than the amount involved. Act of April 12, 1900, 31 Stat. at L. 85, chap. 191. The basis relied upon to establish that we have jurisdiction is the action of the court upon certain motions concerning the qualifications of the jury commissioners, and an alleged failure of such commissioners, in making up the panel, to comply with the law of the United States. The proceedings thus relied on are as follows: At the opening of the trial the defendants thus moved:
'Defendants move the court to quash the panel of the jury drawn for service at this term for the reason that the said panel was not drawn from a box containing the names of three hundred qualified jurors; and for the further reason that the present panel was not drawn and the names of the jurors constituting the same were not placed therein as required by the act of Congress, . . . in this: to wit, that the clerk of this court, John L. Gay, is a member of the Democratic party of the United States, but is not a member of any political party of Porto Rico or of the district, nor is he a registered voter in Porto Rico. The jury commissioner of this court, who, together with the said clerk, placed the names of jurors in the jury box, is not a member of any political party of the United States, and is not an American citizen, but is a member of the so-called Republican party of Porto Rico. The principal or majority party in this district is, and was at the time the names of jurors were placed in the said box and drawn therefrom by the said clerk and jury commissioner, the so-called Unionist party, all to the prejudice of defendants.'
On making this motion, the counsel stating that he desired to offer proof, the clerk of the court was called to the stand, but the court refused to hear his testimony, and overruled the motion forthwith, stating 'that it had personal knowledge of the mode and manner in which the jury was drawn and the law with reference to the manner, and regards the same as having been strictly in accordance with the law, and does not regard the question in Porto Rico of the politics of the parties as being applicable to the same extent as it would be in the states.' The motion was 'also denied on the ground that it was not filed within the time required by law, and no five days' notice was given to the other party.'
It is settled that the provisions of the 35th section of the act of April 12, 1900, previously referred to, which give a right to bring to this court from the district court of Porto Rico, by writs of error or appeal, all final decisions of such court in all cases where 'an act of Congress is brought in question and the right claimed thereunder is denied,' do not contemplate that the right to review thus conferred should be confined solely to cases where the validity of an act of Congress is called in question or its interpretation is necessarily involved, but also give power to riview where a right under an act of Congress was asserted and denied in the court below. Crowley v. United States, 194 U.S. 466, 48 L. ed. 1078, 24 Sup. Ct. Rep. 731; Rodriguez v. United States, 198 U.S. 156, 49 L. ed. 994, 25 Sup. Ct. Rep. 617. In the Crowley Case the accused, by a plea in abatement, questioned the competency of certain grand jurors, who participated in the finding of the indictment, on the ground that the grand jury had been selected without any reference to the qualifications prescribed by the local law, when, as the result of an act of Congress, the local law should have been respected and applied. The plea was specific, and set up accurately the particular persons whose qualifications were challenged. Without going into detail in the Rodriguez Case, it is true also to say that the legality of both the grand and petty jury was drawn in question because of a failure to apply the law of the United States governing the same.