United States v. Moreland/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 willfully 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 $500 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.' 34 Stat. 86.

He was tried by a jury and found guilty, and, after certain proceedings with which we have no concern, he 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, 16 Sup. Ct. 977, 41 L. Ed. 140.

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 [Comp. St. § 4318]) 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 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 60 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 power to deport both classes and to commit the enforcement of the law to executive officers.

This power of arrest by the executive officers 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, 5 Sup. Ct. 935, 29 L. Ed. 89, 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, 6 Sup. Ct. 777, 29 L. Ed. 909.

The United States urges against the Wong Wing Case that 4 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, 20 Sup. Ct. 944, 44 L. Ed. 1078, and that it (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 in cluded, 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, athat—

'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 Moreland was void because of the inclusion therein of the punishment of hard labor; he not having been presented or indicted by a grand jury. And because of their authority we do not review the cases cited by the United States, nor consider that they can be modified in accommodation to the practice that is said to exist of creating workhouses as places of punishment.

Some further comment becomes necessary. An attempt is made to modify the case or to remove it as authority for that at bar. The means and pains taken to accomplish it are somewhat baffling to representation. We have cited the case for the proposition that imprisonment with the accompaniment of hard labor is an infamous punishment, made so by the accompaniment of hard labor, and declared illegal because not upon presentment or indictment by a grand jury.

Doubt is cast upon our right to so cite it, and it is, in effect, asserted that the infamy of the imprisonment to which Wong Wing was sentenced was not constituted by the accompaniment of hard labor, but was the attribute of the imprisonment; the Detroit House of Correction being, it is said, a penitentiary. And this is attempted to be established by the assertion of a fact extraneous to the opinion of the court and the record in the cause. It is true certain isolated sentences used by a justice concurring in part and dissenting in part are referred to as to what the court must have implied.

The assertion calls for reply. We have relied on the case as authority, and, regarding it as authority, we have naturally refrained from the idleness, or, as it may be said, the ostentation, of general reasoning. We might, indeed, leave the case to speak for itself to those who may need to refer to its ruling and the ruling in the present case; but some comment, though it may not be necessary, is justified.

It is to be kept in mind that the case concerned the Constitution of the United States and necessarily had a purpose beyond its incident and time. Its precept became a part of the Constitution, and in realization of this the court took care that the grounds of its decisions were neither obscure nor uncertain. Its opinion demonstrates this, and that there was no misunderstanding of the points of counsel nor ambiguity in passing upon them. What was not in controversy, of course, received no attention, and the infamy of imprisonment in a penitentiary was not in controversy; that was of universal acceptance then, as now, and an intimation of its existence would have been enough to have caused Wong Wing's delivery from custody on the instant; nor would the United States have resisted. There was in controversy, however, the question whether imprisonment in any prison or place, at hard labor, as a sentence for crime, was infamous. Upon that counsel were in opposition, and it was submitted for decision. The court contrasted the contentions.

Wong Wing's was recognized as a claim that his sentence to imprisonment at hard labor inflicted an infamous punishment, and hence conflicted with the Fifth and Sixth Amendments of the Constitution of the United States, he not having been presented or indicted by a grand jury.

'On the other hand,' the court said, 'it is contended by the government that it has never been decided by this court that in all cases where the punishment may be confinement at hard labor, the crime is infamous, and many cases are cited from the reports of the state Supreme Courts, where the constitutionality of statutes providing for summary proceedings, without a jury trial, for the punishment by imprisonment at hard labor of vagrants and disorderly persons has been upheld.

The comment was an anticipation of some things that are urged in this case. At any rate, the contrast of contentions shows unmistakably upon what the court's decision was invoked,  and while it decided, as we have seen, that the commissioner had power under the Act of 1892 to order Wong Wing deported and to sentence him to imprisonment, Congress could not legally invest the commissioner with power to make hard labor an adjunct of the imprisonment. It was, in effect, said that the adjunct made the imprisonment infamous, and beyond the power of legislation to direct, without making provision 'for a judicial trial to establish the guilt of the accused.' Wong Wing was therefore discharged from custody.

That the place of imprisonment was not considered either pertinent or determinative is established by the fact that the Detroit House of Correction was not a penitentiary, nor regarded as such. It was, and is, what its name implies-a place of correction and reformation, not of condemnation to infamy, and it might be to a perpetual criminal career. Howell's Mich. Stats. Anno. (2d Ed.) c. 430, p. 5915 et seq.; Acts Mich. 1861, p. 262, Act. No. 164; Compiled Laws of Mich. 1897, § 2155.

It is an institution of the city of Detroit, and the act creating it designated its use to be 'for the confinement, punishment and reformation of criminals or persons sentenced thereto. * * *' How this use is regulated and its purpose accomplished are detailed in too much legislation to be reproduced. The House of Correction stands in a unique relation to the state prison, and while it may, under circumstances and in the discretion of a condemning court, be a place of imprisonment for offenders that might be committed to the state prison, yet always it is kept distinct from the state prison. It does not, therefore, make its use as a place of confinement for other offenses a penitentiary, with its attachment of infamy. Its purpose is reformation, instruction in conduct, and diversion from a criminal career. To make it, therefore, a penitentiary, would defeat the purpose of its creation.

We have dwelt on this matter at length because we think more is involved than the power to deport aliens, or to punish them for illegal entry into the country-more than to deliver one from punishment who has defied the orders of a court, that enjoined upon him the manifest duty of supporting his minor children. It concerns the recognition and enforcement of a provision of the Constitution of the United States expressing and securing an important right. And the right, at times, must be accorded one whose conduct tempts to a straining of the law against him.

The ultimate contention of the United States is that the provision of the Act of March 23, 1906, for punishment by fine or imprisonment are severable, and that, therefore, it was error in the Court of Appeals in holding the act unconstitutional, and in directing the dismissal of the case, instead of sending it back for further proceedings.

The contention is untenable. It is what sentence can be imposed under the law, not what was imposed, that is the material consideration. When an accused is in danger of an infamous punishment, if convicted, he has a right to insist that he be not put upon trial, except on the accusation of a grand jury. Ex parte Wilson and Mackin v. United States, supra.

Judgment affirmed.

Mr. Justice CLARKE took no part in the consideration and decision of this case.

Mr. Justice BRANDEIS, with whom concurs Mr. Chief Justice TAFT and Mr. Justice HOLMES, dissenting. 

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