to be a felony; and the same section also pro-tained shall extend to any person or persons vides, that all persons advising or participat- fleeing from justice. 1 Stat. at L. 119. ing in such act, being convicted thereof before any court of the United States of competent jurisdiction, shall be punished as therein provided. 9 Stat. at L. 63. Founded on that provision, the indictment in this case contained six counts, charging that the defendant, as paymaster in the army, had in his custody for safe keeping and disbursement, a large sum of public money, intrusted to him in his official character as an additional paymaster in the army, and that he, on the respective days therein alleged, did unlawfully, knowingly, and feloniously embezzle and convert the same to his own use. Such conversion is alleged in the first count, on the 1st of May, 1862; in the second on the 6th of July; in the third on the 16th of October; in the fourth on the 12th of September; in the fifth on the 20th of September; and in the sixth on the 15th of November, all in the same year. Service was made, and the defendant appeared and demurred to the first five counts, showing for cause, that it appears on the face of the indictment, and by the allegations of the said several counts, that the crime charged against him was committed more than two years before the indictment was found, and filed in court. Where a statute defining an offense contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception; but if the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception [*174 is matter of defense and must be shown by the accused. Steel v. Smith, 1 Barn. & Ald. 99; Arch. Cr. Pl. 15th ed. 54. Offenses created by statute, as well as offenses at common law, must be accurately and clearly described in an indictment, and if they cannot be, in any case, without an allegation that the accused is not within an exception contained in the statute defining the offense, it is clear that no indictment founded upon the statute can be a good one which does not condetain such an allegation, as it is universally true that no indictment is sufficient if it does not accurately and clearly allege all the ingredients of which the offense is composed. Rex v. Mason, 2 T. R. 581. Three questions were presented by the murrer for the decision of the court, upon which the opinions of the judges were opposed, in substance and effect as follows: (1) Whether it was competent for the defendant to take exception, by demurrer, to the sufficiency of the first five counts of the indictment for the causes assigned. (2) Whether the said five counts, or either of them, allege or charge, upon their face, any crime or offense against the defendant for which he is liable in law to be put upon trial, convicted, and punished. Both of those questions are presented in the record as one, but inasmuch as the answers to them must be different, it is more convenient to divide the question into two parts. (3) Whether the 32d 173*] section of the crimes *act applies to the case, and limits the time within which an indictment must be found for such an offense. 1 Stat. at L. 119. Forgery of public securities was made a capital felony by that act, as well as treason, piracy, and murder, and the 32d section of the act provides that no person shall be prosecuted, tried or punished for treason or other capital felony, willful murder or forgery excepted, unless the indictment for the same shall be found by the grand jury within three years next after the treason or capital offense shall be done or committed. 1 Stat. at L. 119. With rare exceptions, offenses consist of more than one ingredient, and in some cases of many, and the rule is universal that every ingredient of which the offense is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested, or be reversed on error. Arch. Cr. Pl. Cases, 15th ed. 54. Text writers and courts of justice have sometimes said, that if the exception is in the enacting clause, the party pleading must show that the accused is not within the exception, but where the exception is in a subsequent section or statute, that the matter contained in the exception is matter of defense and must be shown by the accused. Undoubtedly that rule will frequently hold good, and in many cases prove to be a safe guide in pleading, but it is clear that it is not a universal criterion, as the words of the statute defining the offense may be so entirely separable from the exception that all the ingredients constituting the offense may be accurately and clearly alleged without any reference to the exception. Com. v. Hart, 11 Cush. 132. Provision is also made by the succeeding clause of the same section, that no person shall Cases have also arisen, and others may readbe prosecuted, tried, or punished for any of-ily be supposed, "where the exception, [*175 fense not capital, unless the indictment for the though in a subsequent clause or section, or same shall be found within two years from the even in a subsequent statute, is, nevertheless, time of committing the offense. Fines and pen- clothed in such language, and is so incorpo. alties, under any penal statute, were also in-rated as an amendment with the words antecluded in the same limitation, but that part of the clause having been superseded by a subsequent enactment, it is omitted. 5 Stat. at L. 322; Stimpson v. Pond, 2 Curt. 502. Appended to the 32d section, enacting the limitation under consideration, is the following proviso: Provided, that nothing herein con cedently employed to define the offense, that it would be impossible to frame the actual statutory charge in the form of an indictment with accuracy, and the required certainty, without an allegation showing that the accused was not within the exception contained in the subsequent clause, section or statute. Obviously such an exception must be pleaded, as otherwise the indictment would not present the actual statutory accusation, and would also be defective for the want of clearness and certainty. State v. Abbey, 29 Vt. 66; 1 Bish. Cr. Proc. 2d ed. § 639, n. 3. Support to these views is found in many cases where the precise point was well considered. Much consideration was given to the subjeat in the case of Com. v. Hart, 11 Cush. 130, where it is said that the rule of pleading a statute which contains an exception is the same as that applied in pleading a private instrument of contract, that if such an instrument contains in it, first a general clause, and afterwards a separate and distinct clause which has the effect of taking out of the general clause something that otherwise would be included in it, a party relying upon the general clause in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but if the exception itself is incorporated in the general clause, then the party relying on "the general clause must, in pleading, state the general clause together with the exception," which appears to he correct, but the reasons assigned for the alternative branch of the rule are not quite satisfactory, as they appear to overlook the important fact in the supposed case that the exception itself is supposed to be incorporated in the general clause. Where the exception itself is incorporated in the general clause, as is supposed in the alternative rule there laid down, then it is correct to say, whether speaking of a statute or pri176*] *vate contract, that unless the exception in the general clause is negatived in pleading the clause, no offense, or no cause of action will appear in the indictment or declaration when compared with the statute or contract; but when the exception or proviso is in a subsequent substantive clause, the case contemplated in the enacting or general clause may be fully stated without negativing the exception or proviso, as a prima facie case is stated, and it is for the party for whom matter of excuse is furnished by the statute or contract to bring it forward in his defense. Commentators and judges have sometimes been led into error by supposing that the words "enacting clause," as frequently employed, mean the section of the statute defining the offense, as contradistinguished from a subsequent section in the same statute, which is a misapprehension of the term, as the only real question in the case is, whether the exception is so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the acts, omission, or other ingredients which constitute the offense. Such an offense must be accurate ly and clearly described, and if the exception is so incorporated with the clause describing the offense that it becomes in fact a part of the description, then it cannot be omitted in the pleading; but if it is not so incorporated with the clause defining the offense as to become a material part of the definition of the offense, then it is matter of defense and must be shown by the other party, though it be in the same section or even in the succeeding sentence. 2 Lead. Cr. Cas. 2d ed. 12; Vavasour v. Ormrod, 9 Dowl. & Ryl. 599; Spiers v. Parker, 1 T. R. 141; Com. v. Bean, 14 Gray, 53; 1 Stark. Cr. Pl. 246. Both branches of the rule are correctly stated in the case of Steel 7. Smith, 1 Barn. & Ald. 99, which was a suit for a penalty, and may perhaps be regarded as the leading case upon the subject. Separate opinions were given by the judges, but they were unanimous in the conclusion, which is stated as follows by the reporter: where an act of Parliament in the enacting *clause creates an offense and [*177 gives a penalty, and in the same section there follows a proviso containing an exemption which is not incorporated in the enacting clause by any words of reference, it is not necessary for the plaintiff in suing for the penalty to negative such proviso in his declaration. All the judges concurred in that view, and Bayley, J., remarked that where there is an exception so incorporated with the enacting clause that the one cannot be read without the other, there the exception must be negatived. Doubtless there is a technical distinction between an exception and a proviso, as an exception ought to be of that which would otherwise be included in the category from which it is excepted, and the office of a proviso is either to except something from the enacting clause or to qualify or restrain its generality, or to exclude some ground of misinterpretation of it, as extending to cases not intended to be brought within its operation; but there are a great many examples where the distinction is disregarded and where the words are used as if they were of the same signification. Gurly v. Gurly, 8 Cl. & Fin. 764; Minis v. U. S. 15 Pet. 445; Stephen, Pl. 9th Am. ed. 443. Few better guides upon the general subject can be found than the one given at a very early period, by Treby, Ch. J., in Jones v. Axen, 1 Ld. Raym. 120, in which he said, the difference is, that where an exception is incorporated in the body of the clause, he who pleads the clause ought also to plead the exception; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause and leave it to the adversary to show the proviso; which is substantially the same rule in both its branches as that given at a much more recent period in the case of Steel v. Smith, which received the unanimous concurrence of the judges of the court by which it was promulgated. Apply those rules to the case before the court, and all difficulty is removed in answering the questions for decision. Neither an exception nor a proviso of any kind is contained in the *act of Congress defining the offense, [*178 and every ingredient of the offense therein defined is accurately and clearly described in the indictment. Nothing different is pretended by the defendant, but the contention is that the demurrer does not admit the force and effect of these allegations, because another act of Congress provides that no person shall be prosecuted, tried or convicted of the offense unless the indictment for the same shall be found within two years from the time of committing the offense. Argument to show that a demurrer to an indictment admits every matter of fact which is well pleaded is unnecessary, as the proposition is not denied; and inasmuch as the offense is well alleged in each of the counts to which the demurrer applies, it is difficult to see upon what ground it can be contended that the defendant may, by demurrer, set up the statute of limitations as a defense, it appearing beyond all doubt that the act defining the offense contains neither an exception nor a prc iso of any kind. Tested by the principles herein suggested, it is quite clear that such a theory cannot be supported; but it must be admitted that decided cases are referred to which not only countenance that view, but adjudge it to be correct. Some of the cases, however, admit that the judgment cannot be arrested for such a defect, if it appears that the statute of limitations contains any exception, as the presumption in that state of the case would be that evidence was introduced at the trial which brought the defendant within some one of the exceptions. State v. Hobbs, 39 Me. 212; People v. Van Santvoord, 9 Cow. 660; State v. Rust, 8 Black f. 195. Obviously the supposed error, if it be one, could not be corrected by a motion in arrest, for the reason suggested in those cases, and it is quite as difficult to understand the reason of the rule which affirms that a demurrer will work any such result as it cannot be admitted that a demurrer is a proper pleading where it will have the effect to shut out evidence properly admissible under the general issue to 179*] *rebut the presumption of the supposed defect it was filed to correct. Suppose that is so, then it clearly follows that the demurrer ought not to be sustained in this case, as the statute of limitations in question contains an exception, and it may be that the prosecutor, if the defendant is put to trial under the general issue, will be able to introduce evidence to show that he, the defendant, is within that exception. Although the reasons given for that conclusion appear to be persuasive and convincing, still it is true that there are decided cases which support the opposite rule and which affirm that the prosecutor must so frame the indictment as to bring the offense within the period specified in the statute of limitations, or the defendant may demur, move in arrest of judgment, or bring error. State v. Bryan, 19 La. Ann. 435; United States v. Watkins, 3 Cranch, C. C. 550; People v. Miller, 12 Cal. 294; McLane v. State, 4 Ga. 340. Sometimes it is argued that the case of Com. v. Ruffner, 28 Pa. St. 260, and Hatwood v. State, 18 Ind. 492, adopt the same rule, but it is clear that neither of those cases supports any such proposition. Instead of that they both decide that it is not necessary to plead the statute of limitations in criminal cases; that the defendant may give it in evidence under the general issue, which undoubtedly is correct, as it affords the prosecutor an opportunity, where the statute contains exceptions, to introduce rebutting evidence and bring the defendant within one of the exceptions. Accused persons may avail themselves of the statute of limitations by special plea or by evidence under the general issue, but courts of justice, if the statute contains exceptions, will not quash an indictment because it appears up- | on its face that it was not found within the period prescribed in the limitation, as such a proceeding would deprive the prosecutor of the right to reply or give evidence, as the case may be, that the defendant fled from justice and was within the exception. United [*180 States v. White, 5 Cranch, C. C. 60; State v. Howard, 15 Rich. (S. C.) 282. Nor is it admitted that any different rule would apply in the case even if the statute of limitations did not contain any exception, as time is not of the essence of the offense; and also for the reason that the effect of the demurrer, if sustained, would be to preclude the prosecutor from giving evidence, as he would have a right to do, under the general issue, to show that the offense was committed within two years next before the indictment was found and filed. Examples are given by commentators which serve to illustrate the general doctrine even better than some judicial opinions. No mariner, it was enacted, who was serving on board any privateer employed in certain British Colonies, should be liable to be impressed unless it appeared that he had previously deserted from an English ship of war; and the act provided that any officer who should impress such a mariner should be liable to a penalty of $50. Judgment was arrested in an action brought for the penalty there imposed, because the declaration did not allege that the mariner had not previously deserted, as that circumstance entered into the very description of the offense and constituted a part of the transaction made penal by the statute. Spiers v. Parker, 1 T. R. 141. Labor and traveling on the Lord's day, except from necessity and charity, are forbidden in some states by statute, which also furnishes an example where the exception is a constituent part of the offense, as it is not labor and traveling merely, which are prohibited, but unnecessary labor and traveling, or labor and traveling not required for charity. State v. Barker, 18 Vt. 195. Inn-keepers are also prohibited by statute, in some jurisdictions, to entertain on the Lord's day persons, not lodgers in the inn, if resident in the town where the inn is kept, and an indictment founded on that statute was held to be bad, because it did not aver that the persons entertained were not lodgers, as it is [*181 clear that that circumstance was an ingredient of the offense. Com. v. Tuck, 20 Pick. 361. So an English statute made it penal for any person, not employed in the pubiic mint, to make or mend any instrument used for coining, and it was held that the indictment must nega. tive the want of authority, as that clause was a part of the description of the offense. 1 East, P. C. 167; 2 Lead. Cr. Cas. 2d ed. 9. Equally instructive examples are also given by commentators, to show that nothing of the kind is required where the exception is not incorporated with the clause defining the offense, nor connected with it in any manner by words of reference, as in such cases it is not a constituent part of the offense, but is a matter of defense and must be pleaded or given in evidence by the accused. 1 Bish. Cr. Proc. 2d ed. §§ 405, 632, 635, 639; Steel v. Smith, 1 Barn. & Ald. 99; State v. Abbey, 29 Vt. 66; 1 Am. Cr. Law, 6th ed. §§ 378, 379; 1 Wat. Arch. Cr. Pr. ed. 1860, 287; Rex v. Pearce, Russ. & Ry. 174; Rec v. Robinson, Russ. & Ry. 221; Res v. Baxter, 2 East, P. C. 781; S. C. 2 Leach, C. C. 4th ed. 578; 1 Gabbett, Cr. L. 283. should not issue pendente lite against your petitioner, as governor as aforesaid, and directed that restraining orders to the same effect should issue, as prayed for in the bill of complaint. That said restraining order was issued on the same day, whereby your petitioner was enjoined and restrained from the further performance of his duties as governor in the premises. That, Nov. 19, 1872, the said judge of said court granted an order to show cause why your petitioner should not be punished for contempt, for having disobeyed said restraining order by acts meantime as governor, and requiring him to answer interrogatories in regard to what he had done as governor of Louisiana in the premises. That the said motions for injunctions to restrain the official action of petitioner, as gov- THE LEHIGH VALLEY RAILROAD COM. ernor of Louisiana and to punish petitioner for contempt, for having done certain acts as governor of Louisiana, which acts, it is pretended, are in violation of said restraining order, have SAME PANY. SAME V. PI RAILROAD COMPANY. SAME บ. been entertained by the said judge of said cir- THE LAKE SUPERIOR AND MISSISSIPcuit court, and evidence taken, and argument in part had; and your petitioner has reason to fear and does fear, that the said judge will make orders in the said case, to enjoin and imprison your petitioner, and will attempt thus to compel petitioner, as governor, to perform or refrain from performing, official acts. THE PHILADELPHIA AND READING (See S. C. "Barnes v. The Railroads," 17 Wall. for. amended, a railroad company is liable to pay a Now, your petitioner shows that, as to your petitioner, in his capacity of governor, and so Tax on railroads-taxes illegally paid, remedy far as the said proceedings claim to interfere with, control or compel his official action, the said circuit court is wholly without jurisdiction under the Constitution of the United States, and can have no jurisdiction conferred upon it by statute; that such proceedings against your petitioner as governor, are a suit against the state of Louisiana, and if maintainable at all, can only be brought in the honorable the Supreme Court of the United States; that the entertaining of such suit is not only an exceeding of the jurisdiction of the said circuit court, but an infringement upon the jurisdiction of your honorable court, and that your petitioner is entitled to a writ of prohibition to prevent the said judge from further proceeding in the case; that your honorable court has jurisdiction to grant the said writ. [Nos. 15, 16, 17, 18.] Argued Mar. 20, 21, 1872. Decided Dec. 16, ed States for the Eastern District of Pennsylvania. Suit was brought in the supreme court of Pennsylvania by the defendants in error, to recover for certain property seized by the defendants in the collection of a certain tax. The cases were removed by writs of certiorari to the court below, in which judgment was given for the plaintiffs; whereupon the defendants sued out these writs of error. Wherefore, your petitioner prays that yourN ERROR to the Circuit Court of the Unithonorable court will be pleased to grant a rule to show cause why a prohibition or writ of certiorari should not issue to the said circuit court of the United States for the district of Louisiana, and to the Hon. Edward H. Durell, as a judge of said court, forbidding the said judge and the said court from further proceed ing in said cause, or commanding them to send a certified transcript of said proceedings forth with to this honorable court, to be proceeded with here according to law; that, after due proceedings had, the said prohibition or certiorari may be issued and made perpetual; and that in the meantime and until the further order of this honorable court, the said circuit court and the said judge be forbidden to proceed further in the said cause; and for all other and further relief, as law and justice may require. Messrs. H. U. Ogden, Atty. Gen. of La., and P. Phillips, for petitioner. Messrs. C. Cushing and Matt. H. Carpenter, in opposition to the petition. The case is fully stated by the court. At the first argument, Mr. B. H. Bristow, then Solicitor-Gen., appeared for the plaintiffs in error. Messrs. Sam. Hood, James E. Gowen, Chapman, Biddle and Theo. Cuyler, for defendants in error. NOTE.-Injunction to restrain collection of illegal taxes-see note, 22 L. R. A. 699. Mr. Justice Clifford delivered the opinion | the collector, and the other two defendants as of the court: Power to lay and collect taxes for Federal purposes, being vested exclusively in Congress, it becomes necessary, whenever the validity of such a tax is drawn in question, to examine the act imposing the tax, as the question in every case must necessarily depend upon its true construction, unless it appears that the tax is not apportioned as required, or not uniform, or the object taxed is one not taxable for such a purpose. Railroad companies indebted for any money for which bonds or other evidences of indebted ness have been issued, payable in one or more years after date, subject to interest, or with coupons representing interest, are, by the 122d section of the act of the 13th of July, 1866, made liable to the internal revenue tax imposed by that section. his deputies, distrained the goods and chattels mentioned in the declaration to secure and enforce the payment of the tax, penalty and interest, as directed in the warrant from the assessor. Distraint was made in due form, bu the corporation plaintiffs, denying the legality of the tax, brought an action of trespass against the collector and his deputies in the state court to test tha question, and the record shows that the suit, on the petition of the defendants, was regularly removed into the circuit court of the United States for trial. Both parties appeared in the circuit court, and the plaintiffs having filed their declaration, the defendants pleaded the general issue, and also a special plea, in bar of the action, setting up substantially the same matters as those set forth in the preceding statement. Issue was joined upon the first plea, but the plaintiffs demurred to the second, Provisions upon the subject differing essen- insisting that the matters pleaded do not con300*] tially from those contained in that stitute any defense to the action which is the section had previously been enacted; but the principal question in the case. Judgment was Congress, on that day, amended the correspond-rendered for the plaintiffs in the circuit court, ing section in the prior law by striking out all after the enacting clause, and inserting in lieu thereof the section under consideration, which also provides that "Any such company that may have declared any dividend in scrip or money, due or payable to its stockholders, including non-residents, whether citizens or aliens, as part of the earnings, profits, income or gains of such company, and all profits of such company, carried to the account of any fund, or used for construction, shall be subject to and pay a tax of five per centum on the amount of all such interest or coupons, dividends or profits, whenever and wherever the same shall be payable, and to whatsoever party or person the same may be payable, including non-residents, whether citizens or aliens. 14 Stat. at L. 139. and the defendants sued out a writ of error and removed the cause into this court. Questions of importance to the parties, it may be conceded, are presented in the record for the decision of the court, but it must be admitted that they are all mere questions as to the construction of the act imposing the tax, as it is not pretended that the object taxed is one not taxable for Federal purposes, nor that the regulations prescribed for the assessment and collection of the tax are subject to any constitutional objections. Stripped of every difficulty of that kind, as the case confessedly is, the great central question which arises is, what did the law makers mean when they enacted that "Any such company that may have declared any dividend in scrip or money, due or payable to its stockholders, including non-residents whethBy the act incorporating the Railroad Com-er citizens or aliens, as part of the earnings, pany it was provided that the dividends of so profits, income, or gains of such company, and much of the profits of the company as it should all profits of such company carried to the acappear advisable to the managers should be de- count of any fund, or used for construction, clared at least twice in every year, payable to shall be subject to and pay a tax of [*302 the stockholders subsequent to the expiration five per centum on the amount of all such inof ten days from the time it was so declared. terest or coupons, dividends or profits, whenever and wherever the same shall be payable?" Apart from that, it also appears that the Railroad Company, on the 22d of December, 1869, declared a dividend in money amounting in the whole to the sum of $1,527,531.59 on their capital stock, as part of their earnings, profits, incomes and gains made, and which accrued between the 1st of July of that year and the 1st of December of the same year. None of these matters are controverted, but the dividend, though it accrued during the period described and was declared at the date specified, was made payable to the stockholders on the 17th of January following, as appears by the record. Due return of the said dividend, as required by law, was made by the Railroad Company to the assessor of the first collection district, and the proper revenue authorities assessed a tax of five per centum upon the said dividend, amounting to the sum of $76,376.58, which the Railroad Company was required to pay within the period prescribed by law. 301*] *Payment of the tax having been refused, after due notice given and demand made, Congress, it is insisted by the United States, intended to tax that accrued fund in the hands of the Railroad Company, in whatever form it might be; whether it existed as accumulated interest or in coupons representing interest, or in a dividend declared, or in a special fund of any kind, and without respect to the time of payment or the person or persons to whom it was ultimately payable. Every element of that proposition is denied by the plaintiffs, and as an extended and critical review of all the prina means of refuting it they have entered into the collection of internal revenue duties. cipal features of the prior acts providing for Where a section or clause of a statute is am biguous, much aid, it is admitted, may be derived in ascertaining its meaning by comparing the section or clause in question with prior statutes in pari materia, but it cannot be admitted that such a resort is a proper one where the language employed by the legislature is plain and free of all uncertainty, as the true rule |