BROWN, District Judge.
By demurrer to this indictment, which charges the keeping of a house of ill fame within five miles of the naval training station and of Ft. Adams, Newport, R. I., the defendant questions the constitutionality of section 13 of “An act to authorize the President fi> increase temporarily the military establishment of the United States,” known as the “Selective Service Act,” approved May 18, 1917, and also the constitutionality and legal validity of the orders, rules, and regulations made by the President, the Secretary of the Navy, and the Secretary of War in pursuance thereof.
These questions were fully considered in an opinion of the United States District Court for the Southern District of Ohio, Eastern Division, in United States v. Thomas Casey et al., 247 Fed. 362, printed in Bulletin No. 46, Interpretation of War Statutes.
[1, 2] Constitutional power in Congress to enact this legislation is found in article 1, section 8, clause 18; and it is pointed out that the act does not delegate legislative power to the Secretary of War, but empowers him to make a regulation ascertaining and declaring the zone within which the statute, which expresses the will of* Congress, shall take effect.
[3] The suppression in time of war, in districts immediately adjacent to military stations, of sources of contagion likely to affect and impair the efficiency of the officers and enlisted men of the army and navy, violates no constitutional rights of the defendant, and seems properly within the constitutional power of Congress. The demurrer, so far as it asserts grounds of unconstitutionality seems without merit. ' It is only in clear cases that statutes are declared unconstitutional; and this'statute is supported, not only by the presumption of constitutionality, but by good authority and sound reasons.
*363[4] It is further urged that the indictment is defective, in that it contains no allegation that the offense set out is not punishable under the Articles of War. Section 13 contains the clause “unless otherwise punishable under the Articles of War.” Counsel for the defendant points out no Article of War under which, for the acts charged, the defendant, a woman, might, be punishable as a legal possibility; but, even if there be any Article of War comprehensive enough to include this defendant, it would seem unnecessary that the indictment should negative this clause. It. forms no part of the definition of the offense; neither does it exempt any general classes of persons from criminal liability for the acts charged. It sets forth grounds of defense peculiarly within the knowledge and ability to prove of a defendant, if existing, and its purpose is. to avoid a conflict with the jurisdiction of courts-martial rather than to afford immunity to an offender.
In United States v. Cook, 17 Wall. 168, 173 (21 L. Ed. 538) it was said:
“ * * * if fkg 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 is matter of defense and must be shown by the accused.”
The character of tills exemption shows that it is impractical to cast upon the government the burden of negativing it. If the defendant is in fact amenable to and punishable under some Article of War, and thus has what is termed an “excusatory defense” against trial upon the indictment, the burden of alleging and establishing it is upon the defendant, and the indictment need not anticipate nor negative it. 1 Wharton’s Cr. L. 380; United States v. Carney (D. C.) 228 Fed. 163, 169. See, also, State v. Heffernan, 28 R. I. 477, 68 Atl. 364; State v. Flanagan, 25 R. I. 369, 55 Atl. 876; State v. Gallagher, 20 R. I. 266, 38 Atl. 655.
[5] It is further objected to the second and fourth counts that they refer to regulations of July 24, 1917, when in fact the regulations are of the date of July 25, 1917. As the regulations, when promulgated, have the force of law, and in conjunction with the statute are matters of judicial notice, which the pleader is not required to' state, there is no merit in this ground of demurrer.
Demurrer overruled.