28 Land Dec. 412, 420); and in the other it is said to be "an established rule" of that Department "that parts of minor legal subdivisions of surveyed lands cannot be entered, selected, relinquished or surrendered under the Public Land Laws, except in entries of particular kinds" (Re Southern P. R. Co. 46 Land Dec. 279, 281).

In the exceptional instances in which Congress has directed otherwise, the principle of the practice was not disturbed. All that was done was to provide a special mode of segregating and identifying particular lands which were being subjected to special forms of disposal which could not well be adjusted to the lines of the usual survey. The most conspicuous example of this is found in the laws regulating the disposal of mineral lands.

The manner of keeping the land office records, which is according to a system of "tract books," and the mode of checking up and tracing the various land transactions, have long been adjusted to this practice; and, in the judgment of the land officers, adherence to it is of much importance.

The regulation in question adapts and applies this general practice to the selection of indemnity lands under railroad land grants by requiring (a) that the selections be accompanied by a specification, tract for tract, of the losses on which they are based, (b) that the selections be made by legal subdivisions, and (e) that, in specifying the losses, minor legal subdivisions be used in entireties, and not in fragments.

The last part of the regulation is what is challenged here. As applied and enforced by the land officers, it is not directed against using parts of a minor subdivision as [464] bases for two or more selections where the entire subdivision is used in the same selection list, but only against using it in fragments to sustain distinct selections in different lists. To illustrate: Parts of a lost quarter quarter containing 40 acres may be specified as the bases for selecting two or more fractional subdivisions aggregating 40 acres, where the selections are all included in a single list, but not otherwise. And, conversely, the loss of two

or more fractional subdivisions aggregating 40 acres may be made the base for selecting a quarter quarter of 40 acres where the selection is not made piecemeal in different lists. Re Southern P. R. Co. supra. It, however, is not required that the losses and selections be exactly matched in quantity, but only

that they correspond "as nearly as legal
subdivisions will permit." In other
words, reasonable
reasonable approximation is
deemed sufficient, and such minor dif-
ferences as are practically unavoidable
are disregarded. Re Florida, C. & P. R.
Co. 15 Land Dec. 529; Bull v. Northern
P. R. Co. 26 Land Dec. 693; Re North-
ern P. R. Co. 43 Land Dec. 534; Re
Southern P. R. Co. supra.

Thus understood, the regulation is merely an administrative measure designed to facilitate the examination and disposal of the selection lists, and to be fair alike to the claimant and the government. It neither abridges the right of selection nor unreasonably obstructs its exercise; but, on the contrary, leaves the claimant free to select and obtain indemnity for all losses, if only the lands available in the indemnity limits are sufficient for the purpose.

When the manifold losses to be indemnified under these extensive grants are considered, it is apparent that some regulation of the mode of selection is essential. This is recognized in the several granting acts, all of which in substance, or in express terms, as here, provide that the selections shall be made under the direction of the Secretary of the Interior. These provisions, of course, cannot [465] be taken as investing the Secretary with authority to abridge the right to indemnity, or to interpose any unreasonable obstruction to its exercise (Payne v. Central P. R. Co. 255 U. S. 228, 236, 65 L. ed. 598, 602, 41 Sup. Ct. Rep. 314), but, in our opinion, they do enable him, in the interest of an orderly and efficient administration, to prescribe and enforce reasonable regulations respecting the mode in which the selections shall be made and brought to the attention of the land officers.

The regulation in question is of that character. Its evident purpose, as also its material tendency, is to simplify the task of examining and passing on the selections when presented; to avoid repeated searches to ascertain the status of the same minor subdivision, such as would be essential if it were used in fragments as bases for distinct selections made at different times; to guard against the mistakes incident to such a practice; and to conform the mode of selection to the usual procedure in public land transactions.

There is nothing in this granting act with which the regulation conflicts. The grant is of sections and parts of sections, to be identified by the usual urvey, and is accompanied by a provision,

§ 6, for a full survey of all lands with- Argued October 17 and 18, 1921. Decided in its exterior limits. The lands excepted are to be identified in the same

Moore International Law Dig. p. 123; Bradley v. Davidson, 47 App. D. C. 282; Tilt v. Kelsey, 207 U. S. 43, 51, 53, 52 L. ed. 95, 99, 100, 28 Sup. Ct. Rep. 1; Re Tootal, L. R. 23 Ch. Div. 532, 52 L. J. Ch. N. S. 664, 48 L. T. N. S. 816, 31 Week. Rep. 653; Dainese v. Hale, 91 U. S. 13, 16, 23 L. ed. 190, 191; 9 Ops. Atty. Gen. 294; 23 Cyc. 571; Disbrow v. Mills, 62 N. Y. 604; Wheeler v. Barker, 51 Neb. 846, 71 N. Ŵ. 750; State ex rel. Atty. Gen. v. Lazarus, 39 La. Ann. 142, 1 So. 361; Brown v. Rutledge, 20 Ga. App. 118, 92 S. E. 774.

Mr. William C. Herron argued the cause, and former Solicitor General Frierson filed a brief for defendants in

error:

The contention that an American citizen residing in China cannot acquire a domicil there, but that, for the purpose of testacy or intestacy, his domicil of origin remains his domicil, is not sound. Cunningham v. Rodgers, 96 C. C. A. 507, 171 Fed. 836; Mather v. Cunningham, 105 Me. 326, 29 L.R.A. (N.S.) 761, 74 Atl. 809, 18 Ann. Cas. 692.

A judicial officer is not liable in damages for the exercise of a mere excess of jurisdiction or error in judgment.

Dainese v. Hale, 91 U. S. 13, 20, 23 L. ed. 190, 193; Randall v. Brigham, 7 Wall. 523, 530, 536, 19 L. ed. 285, 291; Bradley v. Fisher, 13 Wall. 335, 351, 352, 20 L. ed. 646, 650, 651.

[467] Mr. Justice McReynolds delivered the opinion of the court:

Section 1697, U. S. Revised Statutes, as amended by Act of December 21, 1898, chap. 36, 30 Stat. at L. 770, Comp. Stat. § 3149, 3 Fed. Stat. Anno. 2d ed. |

1 "Sec. 1697. Every consul general, consul, and commercial agent, before he receives his commission, or enters upon the duties of his office, shall give a bond to the United States, with such sureties, who shall be permanent residents of the United States, as the Secretary of State shall approve, in a penal sum not less than one thousand dolfars, and in no case less than the annual compensation allowed to such officer, and not more than ten thousand dollars, and in such form as the President shall prescribe, conditioned for the true and faithful ac

counting for, paying over, and delivering up of all fees, moneys, goods, effects, books, records, papers, and other property which shall come to his hands, or to the hands of any other person, to his use as such consul general, consul, or commercial agent under any law, now or hereafter enacted, or by virtue of his office; and for the true and faithful performance of all other du ties, now or hereafter lawfully imposed

p. 25, requires every consul general, be fore receiving his commission, to ex ecute a bond conditioned for the true and faithful performance of duties lawfully imposed upon him as such offi cer. It is copied in the margin.1

Purporting to proceed under this sec tion, plaintiff in error brought an action in the supreme court, District of Columbia, against James Linn Rodgers, once consul [468] general at Shanghai, China, and the sureties upon his official bond. Process was served upon him, but the sureties were not summoned and did not appear.

The declaration alleges execution of the bond, its breach by Rodgers's failure to discharge his official duties concerning property left by plaintiff's brother, who died in China June 10, 1905, and asks a recovery upon the bond for damages suffered. The trial court sustained a demurrer to the declaration, and, upon appeal, this ac

tion was affirmed.

The court of appeals held that if the consul general's failure to perform his official duties concerning the personal property caused loss, the damage was to the estate, and plaintiff, being a mere possible owner of a distributive share, could not recover in his own right,any possible right of action was in the administrator. This, we think, was clearly right.

The second count of the painfully prolix declaration alleges "that there was left by said decedent certain valuable real property in the Pao Shan district in Shanghai, China, of the value of, to wit, $5,000, which, outstanding in decedent's name in the Land Records of said United States conupon him as such consul general, consul, or commercial agent. The bond herein mentioned shall be deposited with the Secretary of the Treasury. In case of a breach of any such bond, any person thereby injured may institute, in his own name and for his sole use, a suit on said bond, and thereupon recover such damages as shall be legally assessed, with cost of suit, for which execu tion may issue for him in due form; but if such party fails to recover in the suit, judg ment shall be rendered and execution may defendant, and the United States shall, in issue against him for costs in favor of the no case, be liable for the same. bond shall remain, after any judgment rendered thereon, as a security for the benefit of any person injured by a breach of the condition of the same until the whole pen. alty has been recovered; and the proceeding shall always be as directed in this section.

The said

V.

HERMAN F. ROHDE.

(See S. C. Reporter's ed. 469–478.)

Admiralty

Federal jurisdiction

state legislation

-

maritime law.

sulate at Shanghai, China, it was the GRANT SMITH-PORTER SHIP COMPANY duty of the said defendant, James Linn Rodgers, to conserve to said decedent's estate; but, notwithstanding his said duty in this respect, and in utter violation thereof, and in breach of the condition of his said bond and writing obligatory, he, the said defendant, 1. A shipbuilding company and a carJames Linn Rodgers, instructed one E. penter employee having both accepted and H. Dunning to convey and transfer the proceeded under a state workmen's comsame over to a certain Mrs. Green pensation statute by making payments to gratuitously, and without any consid- an industrial accident fund cannot be said eration passing therefor, four days to have contracted consciously with each after he had illegally and improperly tem of admiralty law governing their other in contemplation of the general sysgranted alleged letters testamentary to rights, obligations, and consequent liabilithe said E. H. Dunning ties in case the employee should be accidentally injured while engaged in the work of finishing an incompleted vessel lying on navigable waters within the state. [For other cases, see Admiralty, I. b, 3, in Digest Sup. Ct. 1908.] Admiralty test of Federal jurisdiccontract tort.

that no such real estate was devised or sought to be devised under the paper writing hereinbefore referred to as the pretended last will and testament of the said Henry H. Cunningham, deceased . . . and said [469] assumption of a jurisdiction and power to so instruct the said E. H. Dunning was wholly illegal and void, although having the effect of dissipating a valuable part of plaintiff's deceased brother's estate, to the consequent loss of plaintiff by this, said defendant James Linn Rodgers's violation and breach of the condition of his bond and writing obligatory, so as aforesaid given to insure plaintiff all legal and proper protection of his said interests in and to his deceased brother's estate as aforesaid."

tion

2. In contract matters, admiralty jurisdiction depends upon the nature of the transaction, and, in matters of tort, upon the locality.

[For other cases, see Admiralty, I. d; I. f, 3, în
Digest Sup. Ct. 1908.]
Admiralty Federal jurisdiction

tort.

3. The general admiralty jurisdiction extends to a proceeding to recover damages resulting from a tort committed on a vessel in process of construction when lying on navigable waters within a state. [For other cases, see Admiralty, I. f, 11, in

Digest Sup. Ct. 1908.]

Note. As to admiralty jurisdiction, generally-see notes to Glass v. The Betsey, 1 L. ed. U. S. 489; United States v. Bevans, 4 L. ed. U. S. 404; and The Thomas Jefferson, 6 L. ed. U. S. 358.

To what places jurisdiction of admiralty is confined- -see note to Allen v. Newberry, 16 L. ed. U. S. 111.

On admiralty jurisdiction of contracts -see note to Baltimore Steam Packet Co. v. Patterson, 66 L.R.A. 193.

The plaintiff's whole cause is presented upon the theory that Rodgers had no power to administer the estate of the deceased brother, or to do aught in reference thereto but what the stat utes authorized; "namely, conserve and transmit to the United States for prop er and legal distribution according to the laws of decedent's domicil." No statute is cited which imposes any duty in respect of real estate upon a consul in China. Under such circumstances On power of Congress to permit applimere allegation that defendant unlaw-laws to injuries within admiralty juriscation of state workmen's compensation fully assumed to instruct one holding diction-see note to Knickerbocker Ice void letters testamentary to transfer such property without consideration is wholly insufficient to show an actionable breach of official duty, or adequately to point out personal damage suffered by plaintiff in error. Real es- As to whether the substantive law of tate cannot be dissipated by mere direc- the state may be invoked in an action tion gratuitously to convey it, issued for personal injuries not resulting in without semblance of authority. The death, on waters within the maritime jujudgment below is affirmed. risdiction-see note to Larson v. Alaska S. S. Co. L.R.A.1917F, 678.

Affirmed.

Co. v. Stewart, 11 A.L.R. 1155.

On applicability of state compensation acts to injuries within admiralty jurisdiction-see note to Southern P. Co. v. Jensen, L.R.A.1918C, 474.

Admiralty exclusiveness of Federal, No. 13,902; The Plymouth (Hough v.

jurisdiction

state legislation affecting maritime law-workmen's compensation.

4. The exclusive features of the Oregon Workmen's Compensation Act, which both employer and employee had accepted and proceeded under by making payment to the industrial accident fund, apply to the accidental injury of a carpenter while engaged in the work of finishing an incompleted vessel lying upon the navigable waters of the state, and abrogate the right to recover damages in an admiralty court which otherwise would exist.

[For other cases, see Admiralty, I. b, 3, in

Digest Sup. Ct. 1908.]

Western Transp. Co.) 3 Wall. 20, 18 L. ed. 125; North Pacific S. S. Co. v. Hall U. S. 119, 63 L. ed. 510, 39 Sup. Ct. Rep. Bros. Marine R. & Shipbuilding Co. 249 221.

Negligent operation of vessels, resulting in damage to structures in channels, is cognizable in admiralty if the structure injured is in the channel for purposes of navigation, and not otherwise; and this is true even though the structure is as firmly fixed to the bottom of the channel as are the piers of a railroad bridge.

Philadelphia, W. & B. R. Co. v. Philadelphia & H. de G. Steam Towboat Co. 23 How. 209, 16 L. ed. 433; The BlackDecided Janu- heath (United States v. Evans) 195 U. S. 361, 49 L. ed. 236, 25 Sup. Ct. Rep. 46; Cleveland Terminal & V. R. Co. v. Cleveland S. S. Co. 208 U. S. 316, 52 L. ed.

NA CERTIFICATE from the United

O`States Circuit Court of Appeals for 509, 28 Sup. Ct. Rep. 414, 13 Ann. Cas.

the Ninth Circuit presenting questions as to whether the admiralty jurisdiction extends to a specified tort, and, if so, whether the exclusive features of a state workmen's compensation act could apply. Both questions answered in the affirmative.

The facts are stated in the opinion. Mr. Charles A. Hart argued the cause. and, with Messrs. Charles H. Carey and James Kerr, filed a brief for the Grant Smith-Porter Ship Company:

The work in which Rohde was engaged when injured was ship construction. His contract of employment with the Ship Company required services as a carpenter and joiner in the construction of a ship before and after launching; and neither before nor after launching is such work maritime in character.

People's Ferry Co. v. Beers, 20 How. 393, 15 L. ed. 961; Roach v. Chapman, 22 How. 129, 16 L. ed. 294; The Winnebago (Iroquois Transp. Co. v. De Laney Forge & Iron Co.) 205 U. S. 354, 51 L. ed. 836 27 Sup. Ct. Rep. 509: Graham & M. Transp. Co. v. Craig Shipbuilding Co. 203 U. S. 577, 51 L. ed. 325, 27 Sun. Ct. Rep. 777; Rounds v. Cloverport Foundry & Mach. Co. 237 U. S. 303, 59 L. ed. 966, 35 Sup. Ct. Rep. 596; North Pacific| S. S. Co. v. Hall Bros. Marine R. & Shipbuilding Co. 249 U. S. 119, 63 L. ed. 510. 39 Sup. Ct. Rep. 221; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 58 L. ed. 1208, 51 L.R.A. (N.S.) 1157, 34 Sup. Ct. Rep. 733.

In matters of tort, the jurisdiction of the admiralty is exclusively dependent upon the locality of the act.

Thomas v. Lane, 2 Sumn. 1, Fed. Cas.

1215; Martin v. West, 222 U. S. 191, 56 L. ed. 159, 36 L.R.A. (N.S.) 592, 32 Sup. Ct. Rep. 42; The Raithmoor, 241 U. S. 166, 60 L. ed. 937, 36 Sup. Ct Rep. 514.

There are obvious difficulties in the way of extending admiralty jurisdiction to a tort arising ex contractu when the contract itself is nonmaritime. Persons engaged in building a vessel are doing nonmaritime work. The uncompleted vessel, though subject to limited admiralty jurisdiction after launching (Tucker v. Alexandroff, 183 U. S. 424, 46 L. ed. 264, 22 Sup. Ct. Rep. 195), remains a structure under state control.

The Victorian, 24 Or. 121, 41 Am. St. Rep. 838, 32 Pac. 1040; The Winnebago (Iroquois Transp. Co. v. DeLaney Forge & Iron Co.) 205 U. S. 354, 51 L. ed. 836, 27 Sup. Ct. Rep. 509.

The general maritime law is designed to secure uniformity in respect of maritime affairs.

Southern P. Co. v. Jensen, 244 U. S. 205, 61 L. ed. 1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. A. 596.

State statutes may affect the maritime law to be administered in the admiralty courts.

The Lottawanna (Rodd v. Heartt) 21 Wall. 578, 22 L. ed. 662; Butler v. Boston & S. S. S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612; The Corsair (Barton v. Brown) 145 U. S. 335, 36 L. ed. 727, 12 Sup. Ct. Rep. 949; The Hamilton (Old Dominion S. S. Co. v. Gilmore) 207 U. S. 398, 52 L. ed. 264, 28 Sup. Ct. Rep. 133; United States v. Bevans, 3 Wheat. 336, 388, 4 L. ed. 404, 416; Bowman v. Chicago & N. W. R. Co. 125 U.