delivered the opinion of the Court.
Dismissal of a writ of habeas corpus is аssailed by this appeal. It was issued to review the legality of a conviction upon information and a sentence of imprisonment upon it. In detail of the grounds аnd justification of it, the charge of the petition is that appellant was proceeded against in the District Court upon an information charging him with a violation оf § 21, Title II, of the Act. of Congress of October 28, 1919, c. 85, 41 Stat. 305, 314, the National Prohibition Act, and convicted on the 17th day ■of June, 1920, and sentenced to pay a fine of $500.00, and be imрrisoned for sixty days. In execution of the sentence it is alleged that he was committed to the custody of the appellee, he being the United States marshal for the Eastern District of New York.
The further allegation of the petition is that the court “never acquired jurisdiction of the pretended criminal action upon which, in form, it tried and condemned ” him, “ for the reason that the crime of which ” he “ was charged and for which said Court sought to try and condemn ” him “ is an infamous crime within the meaning of the Fifth Amеndment to the Constitution of the United States and no presentment or indictment of a Grand Jury charging same, was ever filed or presented.”
After hearing, the writ was' discharged and appellant was remanded to the custody of the marshal .to serve his sentence under the commitment, which whs to the county jail of Essex Cotmty, New Jersey.
• Is the cоntention of appellant justified in that his was a conviction and commitment of an infamous crime? It is upon this contention that his petition rests.
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It has been decided that a crime takes on the quality of infamy if it be one punishable by imprisonment at hard labor or in a penitentiary, and must be proceeded against upon presеntment or indictment of a grand jury.
Ex parte Wilson,
Or, to put it as counsel puts it, “ The construction of the Fifth Amendment to the'Constitution is this; An infamous crime is one that carries infamous punishment; the test does not depend upon the punishment that ultimately happens to be inflicted, but upon the punishment the court has power to inflict.”
To show the pertinence of the test and its adaptation. to the casе, it is the contention of the'appellant that the court had’power, and only power, to sentence' him to imprisonment in a penal institution of New York, and thаt'by the law of the State,' by federal statute made-applicable to federal prisoners therein, imprisonment is at hard labor.
. The argument by which the contentiоn is attempted to be sustained is somewhat strained.' It rests upon the power the statutes give to the courts to specify the places', of imprisonment, which began, it is said, in 1789. By a resolution then passed, the state legislatures were recom-. .mended to receive and keep prisoners committed under the authority of the United States “ under the like penalties as in the case of prisoners committed under the authority of such States respectively. ...” 1 Stat. 96.
•The purpose thus expressed was in substance repeated subsequently, and §§ 5537 and 5538, Rev. Stats., reproducing a resolution, adopted in 1821 (3 Stat. 646), §§ 5542 and 5548, .reproducing 4 Stat. 118, and 4 Stat. 777, are *11 cited. Sections 5546' аnd 5541 are also cited, they having their origin in 13 Stat. 74, and 500.
It is provided in §§ 5537 and 5538 that, where a State does not allow the use of its jails to United States prisoners, the marshal under direсtion of the court may hire or procure a temporary jail, and that the marshal'shall make provisions for the safe keeping of prisoners until permanent provision for that purpose is made by law.
By § 5542, where the sentence is imprisonment to hard labor, the court may direct its execution “within the district or State where such court is held.”
Section 5548 provides that where punishment for an offense is by fine or imprisonment it may be executed in any house of correction or house of rеformation for juvenile delinquents “within the State or district where” such court is held.
Section 5546 provides that the place of imprisonment, where there may be no .penitentiary or jail suitable for the confinement of- convicts or available therefor, may be in some suitable jail or penitentiary in a convenient State оr Territory to be designated by the Attorney General. And power to change is given to the Attorney General. .
The provisions- of these sections seem adaptive to all imprisonments and to all grades of crime. In other words, have an adaptive and harmonious relation, .and such'relation they were declared to hаve in
In re Karstendick,
We are not impressed with the contention. The reasoning to sustain it-is that Congress “ could give District Courts the power to sentence short-term convicts to institutions beyond the limits of their ordinаry jurisdiction,’' but it hasn’t.” And further, “ although Congress was willing, when the facts justified, that a long-termer should be sent beyond the borders of his State, they were unwilling that a short-termer should be so dealt with.”
The reasoning does not convince us. We prefer, and accept, the clear and direct power given to the Attorney General (§ 5546), and there is nothing in In re Mills and In re Bonner that militatés against it.
In re Mills deсided that when a statute does not require imprisonment in a penitentiary, a sentence cannot impose it unless the sentence is for a period longer than one year. In re Bonner is to the same effect. In other words, the sentences cannot transcend those of the statutes. In both cases the sentences were convictions upon indictments. They are authorities against, not for, the appellant. His contention changes the penalty of the statuté and therefore repels. The statute provides that, for.the offense here charged, the offender shall be fined not more than $1,000 or imprisoned not exceeding one year, or both. (§21.) Whеre the charge is selling, as in the Wyman Case, post, 14, the punishment, for the first offense, is, a fine not more than $1,000, and imprisonment not exceeding six months. National Prohibition Act, § 29, 41 Stat. 316.
The statute exсludes the imposition of hard labor or imprisonment in a penitentiary. Under the contention . of appellant both would be' imposed. Imprisonment must be-, is the assertion, in a New York penitentiary, and at hard labor, the latter conseouence because of the
*13 Appellant, while particularly insistent upon the New York law and the absence of ^power to imprison elsewhere than in a New York institution, however, contends that\ the. imprisonment in the Essex County jail is at hard labor becаuse the conduct or discipline of that jail requires or permits the imposition of hard labor, and theréby constitutes the crime infamous. If that can be so held it gives the court power to transcend the statute which, as we have said, does not include hard labor in its punishment. But such peremptory requirement cannot be assigned to thе New Jersey law — neither employment at hard labor nor any labor. The law is made adaptive to circumstances, made so by committing its administration^ to the judgment of the freeholders of the county, and it is limited to prescribing suitable employment of prisoners to accomplish the purpose of the law. Laws of New Jersey of 1917, page 888. The law gives no indication that the employment is or may be prescribed as punishment. It proceeds along other lines.
It follows that the sentenсe of the court was not intended to be and could not have been to imprisonment at hard labor.
We 'find no error in the decision of the court in discharging the writ-and its action is
Affirmed.