ment recites that Sweet had transferred to the other parties a large number of promissory notes, which Sweet had taken for purchase money due on certain town lots previously sold by him. Bogard and his associates by the agreement bound themselves to use due diligence to collect the notes, handing over to Sweet two-thirds of the amount collected on them.

The parties with whom Sweet made this arrangement were members of the Mangum Star Printing and Publishing Association, a partnership located at Mangum. The arrangement, evidenced by the deed and the agreement, had for its object the building up of that town, the parties, as stated, with whom Sweet contracted receiving, as compensation for their services, one-third on the sales of lots and a like proportion of the proceeds of any notes collected by them. There was no other consideration for the arrangement. The absolute title to the lots was put in Bogard and his associates for purposes of convenience, namely, that they might the more easily effect sales of the property. The situation was accurately described by the Supreme Court of the Territory of Oklahoma when it said: "The record discloses that at a date when Greer County was claimed to be a part of and under the jurisdiction of the State of Texas, H. C. Sweet purchased the land in controversy from that State, and while claiming the same under such title, platted it into town lots which became, and were at the time of the action, a part of the townsite of the city of Mangum. H. C. Sweet, desiring to aid in the upbuilding of a newspaper and the town generally, entered into a contract with the defendants in error, and others, to allow the plaintiffs in error to sell his townsite property, and to collect certain notes which he then had, for property by him theretofore sold, the understanding and agreement being that, in order to facilitate the business, the plaintiffs in error were to form a corporation for the purpose of running the newspaper and selling the real estate, it being agreed that the corporation should sell the property and collect the notes and pay to Sweet two-thirds of the amount of the sales and retain one-third thereof as their VOL. CCIX-30

commission. As a matter of convenience, in the carrying out of the contract, a deed was made by Sweet and wife to all of the property. Afterwards an attempt was made to form the corporation. There being no law in Texas under which such a corporation could be formed, that portion of the scheme failed, and, as shown by the record, the project was dropped by almost all, if not entirely all, of the parties connected therewith, and the deed, although recorded, was returned to Sweet, together with the notes."

As already indicated, at the time the above arrangement was made it was supposed by some that Greer County was part of the State of Texas. For many years, indeed, from the time of its admission into the Union, Texas asserted that Greer County was within its recognized limits. But subsequently, in a suit brought in this court by the United States against the State, it was adjudged that Greer County constituted no part of the State of Texas, but was under the exclusive jurisdiction of the United States. United States v. Texas, 162 U. S. (1895), 1, 90.

At a later date, January 18, 1897 (29 Stat. 490), Congress passed an act whereby grants of lands in Greer County could be obtained under the homestead law of the United States as modified by that act. Under that legislation Sweet, on October 13, 1898, obtained a patent from the United States and holds title under it.

The original scheme for the upbuilding of Mangum as outlined in the deed and agreement of 1890 failed and was wholly abandoned by the parties to those instruments, and the present suit was brought by Sweet and wife for the cancellation of the deed made to Bogard, and for a decree removing the cloud created by it upon the title to the property in question. The plaintiffs having died, after the institution of the suit, there was a revivor of the suit in the name of their children and heirs. Notwithstanding some of the parties to the original scheme defended the suit, a decree was rendered in accordance with the prayer of the plaintiffs, and that decree was affirmed

209 U.S.

Argument for Plaintiff in Error.

by the Supreme Court of the Territory of Oklahoma. 17 Oklahoma, 40.

Neither argument nor citation of authorities is necessary to establish the correctness of the decree below, and it is

Affirmed.

LANG v. NEW JERSEY.

ERROR TO THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY.

No. 649. Argued April 6, 1908.-Decided April 27, 1908.

It is within the power of the State to divide accused persons into two classes, those who are, and those who may be, accused, and, if there is no discrimination within the classes,-a person in one of the classes is not denied the cqual protection of the laws because he does not have the same right of challenge of a grand juror as persons in the other class. As construed by the highest court of that State, the statute of New Jersey providing that challenges to grand jurors cannot be made after the juror has been sworn does not deprive a person accused after the grand jury has been impanelled and sworn of the equal protection of the law because one accused prior thereto would have the right of challenge.

68 Atl. Rep. 210, affirmed.

THE facts are stated in the opinion.

Mr. Alan H. Strong for plaintiff in error:

To challenge a grand juror for any ground of disqualification is the right at common law of any one who is under prosecution for any crime whatever. 2 Hawkins P. C., c. 25, § 16; 1 Bishop Crim. Pro. (3d ed.), § 676; 4 Crim. Law Magazine (March, 1883), 171 &c.

If any one of the jurors of the grand jury which finds an indictment is disqualified, he vitiates the whole, though all the other jurors should be unexceptionable. 2 Hawkins, P. C., c. 25, § 28; 1 Bishop Crim. Pro., § 749, § 3884 (3d ed.); 1 Chitty Crim. Law, 307; State v. Rockafellow, 1 Halstead, 332;

Argument for Defendant in Error.

209 U.S.

State v. Hoffman, 42 Vroom, 285; Crowley v. United States, 194 U. S. 461; United States v. Gale, 109 U. S. 65.

Equal protection of the laws requires that no person shall be indicted without having had an opportunity to challenge members of the grand jury who are disqualified. Gulf &c. R. R. v. Ellis, 165 U. S. 150; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560; Ohio ex rel. Lloyd v. Dollison, 194 U. S. 445, 447; 1 Bishop Crim. Pro. (3d ed.), §§ 877-879; United States v. Gale, 109 TT S. 65, 67; Carter v. Texas, 177 U. S. 442, 447.

The construction of the law in question, as expounded by the Court of Errors and Appeals, imposes upon this defendant a constructive waiver of this feature of the protection of the laws, in advance of the exigency which renders the protection desirable. But it is not in the power of the State to do this. Yick Wo v. Hopkins, 118 U. S. 356; Rogers v. Alabama, 192 U. S. 226; Crowley v. United States, 194 U. S. 461, 474; Boyd v. United States, 116 U. S. 616, 635; Carter v. Texas, 177 U. S. 442; State v. Rockafellow, 1 Halstead, 343; Gibbs v. State, 16 Vroom, 379; State v. Hoffman, 42 Vroom, 285.

Mr. George Berdine for defendant in error:

The statute of New Jersey herein in question does not deprive the defendant of any fundamental or all-important right. See Brown v. State, 33 Vroom, 666; Gibbs v. State, 16 Vroom, 382; State v. Hoffman, 42 Vroom, 285.

The forty-seventh section of the jury act does not in the case sub judice violate the Fourteenth Amendment. A state law is not within the amendment if it does not infringe “fundamental and all-important rights," or if it be based on "municipal considerations" alone, if the class upon whom the law operates is not made by an arbitrary and unreasonable classification. First, the right to principal challenge is not a fundamental and all-important right. Hayes v. Missouri, 120 U. S. 68; Proff. Jury Trial, § 106; 12 Ency. Pl. & Prac., 475; 1 Bishop Crim. Pr., 941; Howard v. Kentucky, 200 U. S. 173.

Second, the statute is based on "municipal consideration" alone. Lewis v. Missouri, 101 U. S. 22; McQuellin v. State, 8 S. & M. 587, 597; Kane v. State, 86 Mississippi, 505. Third, if there be a class favored by the statute, it is not an arbitrarily made class. Bachtel v. Wilson, 204 U. S. 41; Lewis v. Missouri, 101 U. S. 22; Brown v. State, 175 U. S. 175; West v. Louisiana, 194 U. S. 263.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Plaintiff in error was convicted in the Court of Oyer and Terminer of Middlesex County, N. J., of the crime of murder. His conviction was successively affirmed by the Supreme Court of the State and the Court of Errors and Appeals. 68 Atl. Rep. 210. He attacks the judgment on the ground that he has been deprived of the equal protection of the laws, in violation of the Fourteenth Amendment of the Constitution of the United States, in that his motion to quash the indictment was denied, a plea in abatement overruled, and that he was required to answer the indictment.

The crime for which plaintiff in error was indicted was committed after the grand jury was impanelled, and two of its members were over the age of sixty-five years. The object of his motion and plea was to avail himself of the limitation of age of grand jurors prescribed by the statutes of the State and avoid that part of the section which provides that the exception on that ground must be taken before the jury is sworn.1

1 That every person summoned as a grand juror in any court of this State, and every petit juror returned for the trial of any action or suit of a civil or criminal nature, shall be a citizen of this State and resident within the county from which he shall be taken, and above the age of twenty-one and under the age of sixty-five years; and if any person, who is not so qualified, shall be summoned as a grand juror, or as a juror on the trial of any such action in any of the courts of this State, or if any person shall be summoned as a petit juror at any stated term of any court of this State, who has served as such at any of the three stated terms next preceding that to which he