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decided: April 17, 1922.



Author: Mckenna

[ 258 U.S. Page 434]

 MR. JUSTICE McKENNA delivered the opinion of the court.

The question in the case is what procedure, in the prosecution and conviction for crime, the Fifth Amendment of the Constitution of the United States makes dependent upon the character of punishment assigned to the crime.

The Amendment provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; . . ."

The respondent Moreland was proceeded against in the Juvenile Court of the District of Columbia by information, not by presentment or indictment by a grand jury, for the crime of wilfully neglecting or refusing to provide for the support and maintenance of his minor children. The statute prescribes the punishment to be "a fine of not more than five hundred dollars or by imprisonment in the workhouse of the District of Columbia at hard labor for not more than twelve months, or by both such fine and imprisonment." Act of March 23, 1906, c. 1131, 34 Stat. 86.

He was tried by a jury and found guilty and, after certain proceedings with which we have no concern, he

[ 258 U.S. Page 435]

     was sentenced to the workhouse at hard labor for six months.

The Court of Appeals reversed the judgment and remanded the case to the Juvenile Court with directions to dismiss the complaint. The court considered that it was constrained to decide that the judgment was in violation of the Fifth Amendment, and, therefore, to reverse it on the authority of Wong Wing v. United States, 163 U.S. 228.

The United States resists both the authority and extent of that case by the citation of others, which, it asserts, modify or overrule it. A review of it, therefore, is of initial importance.

Certain statutes of the United States made it unlawful under certain circumstances for a Chinese laborer to be in the United States, and provided for his deportation by certain officers, among others a Commissioner of a United States court. And one of them (Act of 1892) provided that, if a Chinese person or one of that descent was "convicted and adjudged to be not lawfully entitled to be or remain in the United States," he should "be imprisoned at hard labor for a period of not exceeding one year and thereafter removed from the United States."

Wong Wing, a Chinese person (there were others arrested but for the purpose of convenience of reference we treat the case as being against him only), was arrested and taken before a Commissioner of the Circuit Court for the Eastern District of Michigan and adjudged to be unlawfully within the United States and not entitled to remain therein. It was also adjudged that he be imprisoned at hard labor at and in the Detroit House of Correction for the period of sixty days.

The court, considering the statutes, said they operated on two classes -- one which came into the country with its consent, the other which came in without consent and in disregard of law, and that Congress had the constitutional

[ 258 U.S. Page 436]

     power to deport both classes and to commit the enforcement of the law to executive officers.

This power of arrest by the executive officer and the power of deportation were sustained; but the punishment provided for by the act, and which was pronounced against Wong Wing, that is, imprisonment at hard labor, was decided to be a violation of the Fifth Amendment, he not having been proceeded against by presentment or indictment by a grand jury.

The court noted the argument and the cases cited and sustained the power of exclusion, but said that when Congress went further and inflicted punishment at hard labor it "must provide for a judicial trial to establish the guilt of the accused".And this because such punishment was infamous and prohibited by the Fifth Amendment, the conditions prescribed by the Amendment not having been observed. The necessity of their observance was decided, because, to repeat, imprisonment at hard labor was an infamous punishment. In sanction of the decision, Ex parte Wilson, 114 U.S. 417, 428, was cited and quoted from. The citation was in point. Both propositions were presented in that case, and both were decided upon elaborate consideration and estimate of authorities. See also Mackin v. United States, 117 U.S. 348, 350.

The United States urges against the Wong Wing Case that four years after its decision the question of the infamy attached to punishments came up for consideration and decision in Fitzpatrick v. United States, 178 U.S. 304, and that the Wong Wing Case was not referred to. The immediate answer is that a case is not overruled by an omission to mention it. Besides, it was based on Ex parte Wilson and that case was cited. The Wilson Case was elaborate in the exposition of the law -- its evolution and extent. The various punishments or, we may say, the various imprisonments to which infamy had been ascribed were detailed, with citation of cases. In these were included

[ 258 U.S. Page 437]

     as certain, imprisonment in a penitentiary. But it was decided that the quality of infamy could attach to any imprisonment if accompanied by hard labor. It was said, and it was necessary to say, in passing on Wilson's situation, that "imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, 'involuntary servitude for crime,' spoken of in the provision of the Ordinance of 1787, and of the Thirteenth Amendment of the Constitution, by which all other slavery was abolished." In other words, it was declared that if imprisonment was in any other place than a penitentiary and was to be at hard labor, the latter gave it character, that is, made it infamous and brought it within the prohibition of the Constitution.

There is nothing in Fitzpatrick v. United States that gives aid to the contention which counsel make, that it is the place of imprisonment, that is, imprisonment in a penitentiary, which makes the infamy, the accompaniment of hard labor being but an incident. It is true in that case it was said that "the test is not the imprisonment which is imposed, but that which may be imposed under the statute." This manifestly was said to distinguish the character of the crime, as capital, and not to assign a quality to the punishment. To assign a quality to the punishment was a necessity in Wong Wing v. United States and in Ex parte Wilson, and it was responded to by discussions pertinent to it, and by decisions which were required by it. We can add nothing to the fullness of the discussions or their adequacy, and the decisions pronounced as their consequence we are not disposed to overrule. They necessarily determine, therefore, the present case and require the affirmance of the judgment of the Court of Appeals so far as it decides that the sentence upon ...

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