This is an action brought by the United Slates against J. Einclsay Wells Company under section 2 of the act cri june 30, 1906, on the charge of shipping from Memphis, in the <ate of Tennessee, to Attica, in the state of Indiana, 30 tons of cotton -red meal, which article of food at Memphis, il'enn., was adulterated. The suit is brought upon information made by the United States District Attorney. The defendants move to quash the information, upon the ground that the same violates that part of the fifth amendment of th,e Constitution of the United States which provides that no person shall be held to answer for a capital or otherwise infamous crime, unless upon presentment or indictment of a grand jury.

The question presented is whether or not the offense alleged to have been committed by tlie defendant is a capital or otherwise infamous crime. It is, of course, not a capital crime, and, if it is otherwise an infamous crime, the motion to quash must be allowed, since, under the authorities, it is well settled that a prosecution cannot be maintained upon information made by the District Attorney for such a crime. Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89.

[1] As I understand the authorities, they hold that any offense, the punishment for which may he imprisonment in the penitentiary, with or without hard labor, is an infamous crime. Mackin v. U. S., 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909; Parkinson v. U. S., 121 U. S. 281, 7 Sup. Ct 896, 30 L. Ed. 959; In re Claasen, 140 U. S. 204, 11 Sup. Ct. 735, 35 L. Ed. 409. On an examination of the act under which this suit is instituted, I find that the punishment therefor is a fine not exceeding $200 for the first offense, and, upon conviction for each subsequent offense, not exceeding $300, or by imprisonment riot exceeding- one year, or both, in the discretion of the court

[2] Under the authorities above cited, it is held that a defendant cannot be imprisoned in the penitentiary, unless the time for which he is sentenced shall be more than one year. Under the act of June 30, 1906, the imprisonment cannot exceed one year. Therefore the court has no power to sentence the defendant to imprisonment in the penitentiary, because that would be in excess of the maximum time which the court is authorized to imprison a party for such offense. As I un-*250dérstañd the'authorities, they hold in substance that, where the court may imprison the accused for more than one year, the confinement must be in the penitentiary, arid that fact, with or without labor, makes the offense for the commission of which the accused is imprisoned an infamous crime. Upon the other hand, where the period of imprisonment is for one year or less, the court must imprison in a county jail’, .and in such case the crime is not infamous. If the court may imprison for more than one year, the crime is infamous. If for a year or less, it is;not infamous.

Under section 1022, of the Revised Statutes (U. S. Comp. St. 1901, p. 720), it is provided that all crimes and offenses committed against the provisions of chapter 7, entitled “Crimes,” which are not infamous, may be prosecuted either by indictment or by information filed by the district attorney. It appearing from the foregoing that the crime for which the defendant is charged is not infamous, I am of the opinion that .this. suit can be maintained upon the information filed, and the motion tó quash will be disallowed.