Opinion of the Court.

Wabash track from the Burlington was obstructed intermittently until the Wabash track was reached. The two trains did not discover each other, but started on again and collided, killing Frese. The Supreme Court of Missouri held that, as the engine was under the control of the engineer who was killed, the statute of Illinois imposed upon him the imperative duty positively to ascertain that the way was clear before entering upon the crossing; that if he had done so he would not have been killed, and that the plaintiff could not recover. Judgment was ordered for the defendant. 290 Mo. 501.

The plaintiff contends that there was evidence of contributory negligence on the part of the fireman, Savage, and therefore that, even if Frese was negligent, that would not be a bar to this action under the Employers' Liability Act. But the only evidence as to the fireman came from a man who was standing on the ground as the engine passed him. He says that it looked to him that the fireman then was looking through the front window at that time and that he continued in that position up to say fifty or sixty feet from the crossing of the tracks. The fireman was on the left on the side of the other approaching train, the engineer on the right where he could not see so well. But of course the witness could not testify which way the fireman turned his eyes after he saw only his back, and it is a mere speculation to argue that Savage did not do all that he could. Moreover, the statute makes it the personal duty of the engineer positively to ascertain that the train can safely resume its course. Whatever may have been the practice, he could not escape this duty, and it would be a perversion of the Employers' Liability Act, (April 22, 1908, c. 149, § 3; 35 Stat. 65, 66,) to hold that he could recover for an injury primarily due to his failure to act as required, on the ground that possibly the injury might have been prevented if his subordinate had done more. See Great Northern Ry. Co. v. Wiles, 240

U. S. 444, 448. If the engineer could not have recovered for an injury his administratrix can not recover for his death. Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 70. There is no doubt that the statute of Illinois applied to this case.

Judgment affirmed.

BREDE v. POWERS, UNITED STATES MARSHAL FOR THE EASTERN DISTRICT OF NEW YORK.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.

No. 45. Argued October 4, 1923.-Decided October 22, 1923. 1. The sections of the Revised Statutes governing the places in which sentences of imprisonment for crime may be executed are in pari materia and should be construed together. P. 11.

2. The power of the District Court to sentence to imprisonment in another State, in a penal institution designated by the Attorney General under Rev. Stats., § 5546, is not confined to cases in which the imprisonment is for more than a year or at hard labor (§§ 5541, 5542,) but exists also where the sentence is for imprisonment merely, for a year or less. Id.

3. Under § 21 of Title II of the National Prohibition Act, which declares any building, boat, vehicle, place, etc., where intoxicating liquor is manufactured, sold, kept, or bartered in violation of that title, to be a common nuisance, and provides that any person maintaining such nuisance shall be guilty of a misdemeanor and punishable by fine of not more than $1,000, or imprisonment for not more than one year, or both, the imprisonment imposed cannot be at hard labor or in a penitentiary; and, the offense, not being infamous, may be prosecuted by information. P. 12.

66

4. A law of New Jersey (1917, c. 271,) authorizing the board of chosen freeholders of any county to cause to be employed" within the county any or all prisoners in any county jail, construed as not contemplating the requirement of labor as a punishment. P. 13.

279 Fed. 147, affirmed.

4

Argument for Appellant.

APPEAL from an order of the District Court for the Eastern District of New York discharging a writ of habeas corpus which had been sued out by the appellant to try the constitutionality of his sentence and commitment by that court to the Essex County Jail, New Jersey-a place designated by the Attorney General pursuant to Rev. Stats., § 5546. The sentence was based upon a conviction under an information which charged a violation of § 21 of Title II of the National Prohibition Act, 41 Stat. 314.

Mr. Otho S. Bowling, with whom Mr. Robert H. Elder was on the briefs, for appellant.

The order appealed from is erroneous for the reason that appellant was convicted of an infamous crime, that is, a crime for punishment of which the court had power to subject him to an infamous punishment, namely, imprisonment at hard labor, and since there was no indictment or presentment by grand jury, but prosecution on a mere information, the judgment of conviction was void and the writ of habeas corpus should have been sustained.

1. If the crime was infamous, a trial upon a mere information could not give the court jurisdiction, the judgment was void, and subject to collateral attack by habeas

corpus.

2. An infamous crime is one that carries an 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. Ex parte Wilson, 114 U. S. 417; Ex parte Bain, 121 U. S. 1; Parkinson v. United States, 121 U. S. 281; In re Claasen, 140 U.S. 200.

Imprisonment at hard labor is an infamous punishment. Ex parte Wilson, supra; Wong Wing v. United States, 163 U. S. 228; United States v. Moreland, 258 U. S. 433. This is just as true of imprisonment at hard labor in an

Argument for Appellant.

263 U.S.

institution maintained for punishment of minor offenders, such as a house of correction, workhouse, or bridewell, as it is of similar imprisonment in an institution maintained for more serious offenders, such as a state prison or penitentiary. United States v. Moreland, supra.

3. Although the court attempted to sentence appellant to imprisonment in a penal institution in the State of New Jersey, it had no power to do so, and that part of the judgment which specifies such place of imprisonment is void. The court did, however, have power to sentence appellant to imprisonment in a penal institution in the State of New York. Under the New York law, which by federal statute is made applicable to the discipline of federal prisoners in such institutions, imprisonment therein is imprisonment at hard labor.

4. It has been held that Rev. Stats., § 5564, "may be treated as a proviso to §§ 5541 and 5542." In re Karstendick, 93 U. S. 396, 401. It has been decided further that §§ 5541 and 5542 define the only instances in which a United States court can sentence a prisoner to confinement in a "state jail or penitentiary" within the State, that is, when the statute requires hard labor as part of the punishment or when the imprisonment is for more than a year, and that, therefore, when the sentence is in terms to imprisonment merely, for a year or less, the court has no power to sentence the prisoner "to a suitable jail or penitentiary in a convenient State designated by the Attorney General." In re Mills, 135 U. S. 263; In re Bonner, 151 U. S. 242.

This is the only statute which permits a prisoner to be sent out of the State (save when imprisonment is to be one year or more at hard labor" when it may be to a federal prison, 26 Stat. 839); and, except where some statute otherwise provides, the jurisdiction of the United States District Courts is limited to their territory. Toland v. Sprague, 12 Pet. 300, 328; Hernden v. Ridgway, 17 How. 423; 14 Ops. Atty. Gen. 522.

4

Argument for Appellant.

Therefore, unless In re Mills and In re Bonner are to be overruled, it follows that so much of the judgment as pretends to designate an institution in the State of New Jersey as the place of imprisonment is void, as being beyond the power of the court.

To what place did the court have power to sentence appellant? Under Rev. Stats. § 5548, it had the power to sentence him to any "house of correction or house of reformation for juvenile delinquents within the State," providing the state legislature had so authorized (this statute does not apply to juvenile offenders; they are provided for by § 5549), or under §§ 5537-5538, to any other place within the State for which the marshal might make provision, except, of course, that under the decisions in the Mills and Bonner Cases it would have to be some place other than the "state jail or penitentiary."

5. A sentence to any penal institution in the State of New York is a sentence to hard labor. U. S. Rev. Stats., § 5539; Ponzi v. Fessenden, 258 U. S. 254; 8 Ops. Atty. Gen. 289, 291; Act February 23, 1887, c. 213, § 1, 24 Stat. 411; New York Prison Law, c. 47, Laws 1909, §§ 157, 158, 171; New York County Law, c. 16, Laws 1909, §§ 96, 93; New York City Charter, c. 466, Laws 1901, §§ 697, 700, 702; People ex rel. Gainance v. Platt, 148 App. Div. 579; United States v. Pridgeon, 153 U. S. 48.

6. We conclude, therefore, that since the court had power to sentence appellant to certain penal institutions of the State of New York, all of which require hard labor as part of the discipline which would have been required of appellant not only because of the statutes of the State which expressly so provide, but because of the comity between State and United States, of which Rev. Stats., § 5539, is an expression,-a comity limited only by the prohibition against contracting or hiring the labor of the prisoner, and which requires that the United States should not attempt to interfere in the management of the insti