never had heard of a ship from Java pursuing that course. It may therefore be concluded that such alternative was contrary to the expectations and understanding of all parties to this contract, or of any other contract for the carriage of sugar from Java." The question that remains is, upon which of the parties the expense of the lighterage should fall. The answer, we think, must be found in a proper construction of the contract between them. It cannot be fairly claimed under the evidence that the expense that would have been occasioned to the owners of the vessel, if they had removed or taken down the mast, would have been trifling or inconsiderable. There was some evidence that, in a few instances, the topmasts of vessels had been taken down in order to permit them to pass under the bridge, and that the expense in each case was small. But those were cases of vessels with wooden masts, so constructed as to permit the topmast to be lowered. The Benlarig's masts were wholly of steel, and the testimony of her master was that if it became absolutely necessary to make the vessel pass beneath some obstruction lower than the top of the masts, the masts would either have to be cut or removed wholly out of the ship. What cost would have been caused by cutting or removing the steel mast does not appear. But the courts below concurred in regarding the mutilation or destruction of the ship's masts as a serious affair. convenient as well for the ship as for the consignees; and, finally, if lighterage is necessary, either to reach the port or to deliver the cargo, the expense thereof is chargeable to the receivers of the goods, regardless of any local port customs. We do not feel constrained to go into an extended consideration of the authorities cited in the briefs of counsel, but shall refer to two or three cases which, in some of their features, seem to be applicable. or as near The case of The Alhambra, L. R. 6 Prob. Div. 68, was where the charter party provided that the vessel should go "to a safe port in the United Kingdom, thereunto as she could safely get, and always lay and discharge afloat. Lighterage (if any) always at the risk and expense of the cargo." The charterers gave orders to the vessel to proceed to Lowestoft and there discharge the cargo. The average high water in that harbor was about 16 feet, and average low water about 11 feet. The master objected to discharging in Lowestoft harbor, notwithstanding that the purchasers of the cargo gave him notice that they were prepared at their own expense to lighter the vessel in Lowestoft roads sufficiently to enable her to lie always afloat in Lowestoft harbor, if necessary, should her draft of water so require. The vessel went to Harwich as the nearest safe port and there discharged the cargo. The owners of the cargo brought suit for breach of contract, and offered evidence to show that it was the custom of ves sels which were too deep to enter the port of Lowestoft to discharge a portion of their cargo in the roads outside, and that it could be done with reasonable safety. The cargo owners recovered a judgment, but the court of appeals reversed, that court holding that Lowestoft was not a safe port for the vessel within the meaning of the charter party, and that the custom shown by the charter In such a condition of affairs we think that resort to lighterage was natural and reasonable and within the obvious and fair import of the terms of the charter party. The clause, which is claimed to give the charterers or their assigns the right to appoint the dock in which to discharge cargo contains conditions that the port must be safe, and that the vessel must discharge, always afloat, either at a safe port or so nearers was inadmissible. the port of discharge as she can safely get. This case was cited with approval by this It would not be a just exercise of the right court in The Gazelle, 128 U. S. 474, 32 L. to select a dock in getting to which the ves-ed. 496, 9 Sup. Ct. Rep. 139, where the charsel could not always be afloat or to which she could not safely get. A ship could not be said to be afloat, whether the obstacle encountered was a shoal or bar in the port over which she could not proceed, or a bridge under or through which she could not pass; nor could she be said to have safely reached a dock if required to mutilate her hull or her permanent masts. ter party provided that the vessel should proceed from Baltimore "to a safe, direct Norwegian or Danish port, as ordered on signing bills of lading, or as near thereunto as she can safely get, and always lie and discharge afloat." The charterers tendered to the master for signature bills of lading, ordering the vessel to the port of Aalborg, in Denmark, as *Any doubt that might be felt as to this the port of discharge, "to be landed at Aalconstruction of the clause will be relieved borg, or as near thereto as the vessel can by the express language of § 4: "All goods safely get." The master refused to sign the to be brought to and taken from alongside bills of lading for the reason that Aalborg of the ship, always afloat, at the said char- was not a safe port. Aalborg is situated in terers' risk and expense, who may direct Denmark on the Limiford inlet, about 17 the same to the most convenient anchor- miles from its mouth. Owing to a bar at age lighterage, if any, to reach the port of the mouth of the inlet, there was a depth of destination, or deliver the cargo at port of water of only 10 or 11 feet. The draft of destination, remains for account of receiv- the Gazelle loaded was about 16 feet. The ers, any custom of the port to the contrary only place of anchorage for a vessel that notwithstanding." Here, again, is recog- cannot cross the bar is off the mouth of the nized the right of the ship to be "always inlet, where vessels were accustomed to disafloat." The anchorage directed must be charge into lighters. Thereafter the mas the "most convenient;" which must mean ter filed a libel for demurrage in the dis *256 trict court of the United States for the dis- ter excepted," was immaterial, inasmuch ast trict of Maryland, whose judgment, sus- Manchester, in any event, was not a "safe taining the libel and dismissing the cross-port" in the sense of the bills of lading, as libel of the charterers, was affirmed by the the ship could not reach it without cutting circuit court. This court said, through off or taking down her masts; and of that Mr. Justice Gray: opinion were the divisional court and the "By the express terms of the charter par- court of appeal (5 Com. Cas. 59), A. L. ty the charterers were bound to order the Smith, L. J., in the latter court saying "it vessel 'to a safe, direct Norwegian or Da- is abundantly proved that Manchester, nish port, or as near thereunto as she can taken by itself, was not a safe port for this safely get and always lay and discharge vessel, because it was found as a fact afloat.' The clear meaning of this is that that it would have been necessary she must be ordered to a port which she to dismantle the ship to enable her to get can safely enter with her cargo, or which, under Runcorn bridge, which is the first at least, has a safe anchorage outside, bridge vessels going up the canal to Manwhere she can lie and discharge afloat. Dahl chester have to pass." Collins, L. J., was v. Nelson, L. R. 6 App. Cas. 38; The Al- of the same opinion. And Vaughn Wilhambra, L. R. 6 Prob. Div. 68. The char-liams, L. J., said: "On the findings of the terers insisted upon ordering her to the last award it is perfectly plain that in a port of Aalborg. The circuit court has commercial sense the port of Manchester found that Aalborg is in a fiord or inlet, was not a safe port for the Vanduara to go having a bar across its mouth, which it to." was impossible for the Gazelle to pass, either in ballast or with cargo; and that the only anchorage outside the bar is not a reasonably safe anchorage, nor a place where it is reasonably safe for a vessel to li and discharge." This case is pertinent as holding that an overhead bridge which prevents access to the place designated for the discharge quite as effectively renders it unsafe for the ship as a sandbar or other obstacle under the water. The view of the circuit court of appeals, The charterers offered evidence to show that the construction put upon the charter that by the custom of trade between Balti-party by the district court was within its more and the Atlantic ports and the ports of Norway and Denmark, Aalborg was recognized as being, and understood to be, a safe, direct port of Denmark, within the meaning of the charter party. In respect to which this court said: "Evidence of a custom to consider as safe a particular port, which in fact is not reasonably safe, would directly contradict the charter party, and would, therefore, be incompetent as matter of law." letter but not within its spirit, because "an application to novel circumstances of clauses intended for a different set of circumstances," we cannot accept. We are unable to see anything in the undisputed facts of the case that warrants any other construction of the language employed than that suggested by its ordinary meaning. The decree of the Court of Appeals is reversed, and the decree of the District Court is affirmed, with interest thereon from the time of its entry. (187 U. S. 153) ED. H. REID, Appt., v. ROBERT J. JONES, Sheriff of the County of Arapahoe, State of Colorado. in state courts. Habeas corpus in favor of a person who has In Re An Arbitration betweer. Goodbody and Balfour, Williamson, & Co. (4 Com. Cas. 119), the facts were that a cargo of wheat per the ship Vanduara had been sold in a contract containing the clause "shipped per Vanduara, sailed, or about to sail, as per bills of lading dated, etc., to any safe port in the United Kingdom of Great Britain and Ireland, or to Havre, or to Dunkirk, or to Antwerp, Habeas corpus-in Federal courts-remedy calling at Queenstown, Falmouth, or Plymouth, for orders as per charter party, vessel to discharge afloat." The vendees declined to take the papers on the ground that by the bills of lading the cargo was stated to have been shipped upon the Vanduara "to discharge at a safe port in the United Kingdom, Manchester excepted," and that such bills of lading did not comply with the contract for delivery in any safe port in the United Kingdom. It was found in the special case stated for the decision of the court that "the Vanduara when loaded with the said cargo would have been unable to go up the Manchester ship canal to the Manchester docks, because the heads of her lower main and mizzenmasts would have been higher than the limit fixed by the canal Argued October 24, 1902. Decided Decemcompany's regulations for passing under the Runcorn bridge." The vendors argued that the addition to been convicted and sentenced in રી state court for an alleged violation of the criminal statutes of the state will not be granted by a Federal court on the ground that he is held in violation of the Federal Constitution, where the case presents no exceptional facts which will take it out of the rule that he must ordinarily first take his case to the highest court of the state in which the judg ment can be reviewed, and if unsuccessful therein, bring it to the Supreme Court of the United States by writ of error. [No. 147.] ber 1, 1902. the bills of lading of the words, "Manches APPEAL from the Circuit Court of the United States for the District of Colo rado to review a judgment dismissing an application for a writ of habeas corpus. Affirmed. The facts are stated in the opinion. Messrs. John H. Denison, William M. Springer, Assistant Attorney General Beck and Messrs. Talbot, Denison, & Wadley for appellant. Messrs. Frederic D. McKenney and Charles C. Post for appellee. declares that such messages are so far confdential as to justify the refusal to disclose their contents, and that the requirement for their production is unreasonable and against public interest. [No. 248.] Argued and Submitted October 29, 1902. *Mr. Justice Harlan delivered the opinion APPEAL from the Court of Claims to re of the court: Af view a judgment which allowed a claim of the secretary of the Interstate Commerce After the appellant Reid had been con- Commission for the cost of telegrams sent victed and sentenced, as shown in the case at the direction of such Commission. just decided, he was arrested upon a mitti-firmed. mus sued out by the state. He immediately obtained a writ of habeas corpus from the circuit court of the United States for the district of Colorado. But that court, upon hearing, remanded the prisoner to the custody of the state authorities, and dismissed his application to be discharged. He thereupon prayed and was allowed an appeal to this court. See same case below, 36 Ct. Cl. 599. Mr. Justice McKenna delivered the opinion of the court: This was a petition in the court of claims to recover the sum of $310.37, disallowed by the auditing officers of the government. The petitioner is secretary of the Interstate Commerce Commission, and the claim disallowed was incurred for telgrams sent at the direction of the Commission. Judgment passed for the petitioner October 28, 1901, and the United States took this appeal. The merits of this case have been fully considered in case No. 269 [Reid v. Colorado, 187 U. S. 137, post, 92, 23 Sup. Ct. Rep. 92. But if this had not been, we should dismiss the present appeal; for one convicted in a state court for an alleged violation of the criminal statutes of the state, and who contends that he is held in viola tion of the Constitution of the United States, must ordinarily first take his case to The findings of fact and the conclusion of the highest court of the state in which the law by the court of claims were as follows: judgment could be reviewed, and thence "I. The claimant herein, a citizen of the bring it, if unsuccessful there, to this court United States, is secretary and disbursing by writ of error; that only in certain ex- agent of the Interstate Commerce Commisceptional cases, of which the present is not sion, and as such agent it becomes his duty one, will a circuit court of the United to disburse the moneys appropriated by States, or this court upon appeal from a Congress from time to time to enable the circuit court, intervene by writ of habeas Commission to carry out the provisions of corpus in advance of the final action by the the act of February 4, 1887, and amendhighest court of the state. Ex parte Roy-ments thereto. The disbursements were all, 117 U. S. 241, 251, 29 L. ed. 868, 871, made under the direction of the Commis6 Sup. Ct. Rep. 734; New York v. Eno, 155 sion; and the accounts therefor, together U. S. 89, 39 L. ed. 80, 15 Sup. Ct. Rep. 30; Minnesota v. Brundage, 180 U. S. 499, 502, 45 L. ed. 639, 640, 21 Sup. Ct. Rep. 455, and authorities cited. The judgment is affirmed. (187 U. S. 322) UNITED STATES, Appt., v. EDWARD A. MOSELEY. Claims-telegrams sent by Interstate Commerce Commission-necessity of disclosure of contents. with itemized vouchers, approved by the chairman of the Commission, were presented to the accounting officers of the Treasury Department for the quarter and year ending June 30, 1899; and also his supplemental accounts, with vouchers so made out and approved, for the same year, among which were the accounts and itemized vouchers for $310.37 for money paid from time to time to the Western Union Telegraph Company and Postal Telegraph Cable Company for sundry despatches sent over their lines under the direction of said Commission. "II. The accounts for money so expended for telegrams were disallowed by the Auditor for the State and other Departments, Substantial compliance with the requirements and on appeal to the Comptroller of the of the Comptroller of the Treasury that the Treasury the decision of the Auditor was original telegrams relating to the business sustained on the ground that the claimant of the Interstate Commerce Commission, or had not complied with the requirement of copies thereof, or certificates that such tele- the Comptroller to furnish the original grams are of a confidential nature, shall ac company telegraph vouchers for which cred- telegrams or copies thereof, or, if of a conit is asked, is made by an order of the Com-fidential nature, to furnish in lieu thereof mission, filed by the secretary with his ac- a certificate to that effect signed by the counts, which directs him to disregard such chairman of the Commission. requirement as to copies of telegrams, and "In response to that ruling the claimant 324 325 presented and filed with his said accounts the following order, issued by the Commission April 27, 1899: ""That so much of the Comptroller's communication as requires copies of telegrams relating to the business of the Commission to accompany telegraph vouchers for which credit is asked be disregarded by the secretary and disbursing agent, the Commission holding that such messages are so far confidential as to justify refusal to disclose their contents, and that the requirement for their production is unreasonable and against public interest.' "And that the Interstate Commerce Commission did, through their secretary, address to the Hon. R. J. Tracewell, Comptroller of the Treasury, a letter dated October 4, 1900, containing an invitation to inspect the books, papers, and other matters relating to the accounts of the disbursing agent, as follows, viz.: "By the act of March 15, 1898 (Acts 1897-99, page 316 [30 Stat at L. chap. 68]), it is provided: "Sec. 5. All books, papers, and other matters relating to the accounts of officers of the government in the District of Columbia shall at all times be subject to inspection and examination by the Comptroller of the Treasury and the Auditor of the Treasury authorized to settle such accounts, or by the duly authorized agents of either of said officers.' "I am authorized by the Commission to extend to the officers and agents referred to in this section the fullest opportunity of making such examination, in the offices of the Commission, of all such books, papers, and other matter relating to the accounts of the disbursing agents as they may see prop er to examine, and among these all such telegrams as are embraced in the accounts of the disbursing agent. By this means the objections which the Commission have made to the undue publicity of their telegrams will, in some measure, be avoided, and the purposes of the auditing officers should be thereby fully attained.' "But the decision of the Comptroller Iwas adhered to.' "III. The accounts and itemized vouchers were presented to the accounting officers in the form prescribed by statute; that is to say, that each telegram sent by the Commission, and the cost thereof, and the dates, number of words, persons from and to whom sent, places from and to which sent, and the charge for each message transmitted, were fully shown in a voucher approved by Martin A. Knapp, chairman, and the defendants concede the correctness of the several amounts so expended. "IV. After the disallowance of the claimant's accounts for the moneys so disbursed to the Western Union Telegraph Company and Postal Telegraph Cable Company, as aforesaid, and to avoid any balance being stated against him, he, under protest, paid into the Treasury of the United States the full amount of the sum so disallowed, to wit, $310.37. "V. That prior to January, 1899, the original telegrams, or copies thereof, or certificates that such telegrams were of a confidential character, were not required by the auditing officers of the Treasury to be produced by the disbursing officers of the Department of State, or the Postoffice Department, or the Navy Department, or the Interstate Commerce Commission, with the vouchers produced by these disbursing officers, for the telegrams sent from such Departments on official business. "VI. The correspondence by official communications between the Comptroller of the Treasury and the claimant appears in the letter of June 15, 1900, from Edward A. Moseley, secretary and disbursing agent, to Hon. R. J. Tracewell, Comptroller; letter of July 23, 1900, from the Acting Comptroller to the claimant; the letter of October 4, 1900, from the claimant to the Comptroller, and the letter of October 6, 1900, to the claimant; which were filed as part of the claimant's petition and exhibits therewith. "Conclusion of law. "From the foregoing findings of fact the court decides, as a conclusion of law, that the claimant is entitled to recover judg ment against the United States, on the authority of the Moseley Case (35 Ct. Cl. 347), in the sum of three hundred and ten dollars and thirty-seven cents ($310.37)." The case is in narrow compass. There is no controversy over the fact of expendi ture of the sum sued for, and the court of claims found that "the accounts and itemized vouchers were presented to the accounting officers in the form prescribed by statute; that is to say, that each telegram sente by the Commission, and the cost thereof, and the dates, number of words, persons* from and to whom sent, places from and to which sent, and the charge for each message transmitted, were fully shown in a voucher approved by Martin A. Knapp, chairman, and the defendants concede the correctness of the several amounts so expended." Relying on a former decision between the same parties (35 Ct. Cl. 347), the court evidently thought that the issue made by the government was not substantial. In that case it was said: "The claimant's statement of account being in the form prescribed by statute i. e., 'itemized vouchers therefor, approved by the chairman of the Commission, is prima facie correct. The defendants do not controvert the fact of the expenditures therein shown to have been made under the direction of the Commission, nor of the money paid into the Treasury; and, as under the circumstances of this case we have no reason to doubt the correctness or legality of such expenditures, the claimant is entitled to recover, and judgment will be entered accordingly." The case comes, therefore, to a very narrow question. The Act to Regulate Commerce, as amended March 2, 1889 (Rev. Stat. Supp. 690, chap. 382, U. S. Comp. Stat. 1901, p. 3168), provides "all of the expenses of the Commission shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chairman of the Commission." The appro priation act of the same date (Rev. Stat. 3. Supp. 698, chap. 411) provides: "That hereafter expenses of the Interstate Commerce Commission shall be audited by the proper accounting officers of the Treasury." The privileges and Immunities of citizens in the several states are not denied by the provisions of Colo. Sess. Laws 1885, p. 335, for the protection of domestic cattle against the communication of disease by cattle from other states, where the statute is equally applicable to citizens of all states. [No. 269.] It is claimed that these provisions can be reconciled and leave unimpaired the first as the only condition of the allowance and payment of the expenses of the Commission. Not passing upon that, but granting the N ERROR to the Supreme Court of the power of the auditing officers to require I State of Colorado to review a judgment something more, we think their requirement which affirmed a conviction in the District was substantially complied with. of a statute of that state for the protection Court of Arapahoe County for a violation of domestic cattle from the communication of disease by cattle from other states. Affirmed. It is to be remembered that the petitioner (appellee) is but the secretary of the Commission. He does not direct its functions, its expenditures, or control its records. He could only submit the requirement of See same case below, 68 Pac. 228. the Comptroller to the Commission and its The facts are stated in the opinion. response to the Comptroller. Its response Messrs. John H. Denison, William was "that so much of the Comptroller's M. Springer, Assistant Attorney General communication as requires copies of tele Beck, and Messrs. Talbot, Denison, & Wadgrams relating to the business of the Com-ley for plaintiff in error. mission to accompany telegraph vouchers for which credit is asked be disregarded by the secretary and disbursing agent, the Commission holding that such messages are so far confidential as to justify refusal to disclose their contents, and that the requirement for their production is unreasonable and against public interest." This was a substantial compliance with the requirement of the Comptroller. Judgment affirmed. (187 U. S. 137) ED. H. REID, Plff. in Err., v. PEOPLE OF THE STATE OF COLORADO. Charles C. Post for defendant in error. Mr. Justice Harlan delivered the opinion of the court: The plaintiff in error was convicted in the district court of Arapahoe county, Colorado, and sentenced to confinement for six months in the county jail for a violation of the 2d section of a statute enacted March 21st, 1885, to prevent the introduction of infectious or contagious diseases among the cattle and horses of that state. Colo. Sess. Laws 1885, p. 335. The judgment was affirmed by the su preme court of the state, and, the case having been brought here, it is insisted that by the final judgment the accused has been deInterstate commerce-state regulation-nied a right specially claimed by him under prior legislation by Congress-live-stock the Constitution of the United States. quarantine privileges and immunities. 1. The subject of transportation of cattle from one state to another is not so far covered by the provisions of the animal industry act of May 29, 1884 (23 Stat. at L. 31, chap. 60; U. S. Comp. Stat. 1901, p. 299), for the investigation and suppression of diseases of This position depends upon the inquiry whether a certain act of Congress, to be presently referred to, has the scope and effect attributed to it by the accused, and, that contention failing, whether the statute under which he was convicted is repugnant to that instrument. After reciting that certain infectious and cattle, or those relating to the exportation contagious diseases, known as the Texas or of diseased cattle to ports in foreign countries, and the transportation between the splenetic fever, Spanish itch, and other disstates of live stock known to be diseased, as eases of a dangerous and contagious nature, to preclude the enactment of Colo. Sess. were prevalent among cattle and horse stock Laws 1885, p. 335, prohibiting the importa- in the states and territories south of the tion of cattle from south of the 36th par- 36th parallel of north latitude, and that it allel of north latitude between April 1st was essential for the protection of the catand November 1st, unless first kept for ninetle and horses of Colorado to prevent the ty days at some place north of that parallel, introduction and spread of all such diseases within that state, the above statute provided: or unless a certificate of freedom from con tagious or infectious disease has been obtained from the state veterinary sanitary board. "§ 1. It shall be unlawful for any person, 2. No unconstitutional burden on Interstate association, or corporation to bring or drive, commerce is made by the provisions of Colo. or cause to be brought or driven, into this Sess. Laws 1885, p. 335, prohibiting the Im-state any cattle or horses having an infec porting of cattle from south of the 36th tious or contagious disease, or which have parallel of north latitude between April 1st been herded, or brought into contact, with and November 1st, unless first kept for ninety days at some place north of that parallel, any other cattle or horses laboring under such disease, at any time within ninety days prior to their importation into this state. or unless a certificate of freedom from con taglous or Infectious disease has been obtained from the state veterinary sanitary board. "§ 2. It shall be unlawful for any person |