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that on August 8 Johnson was notified by the commanding general, headquarters, Northeastern Department, as follows:

By direction of the War Department • * * you are informed that having been appointed subject to examination, and having failed in the subsequent professional examination, you are no longer recognized as an officer and are released from service, and by authority of the President are excused from the draft of the National Guard.

So far as appears, Johnson returned to his home and was there when Special Orders, No. 178, headquarters, Northeastern Department, dated November 23, 1917, were issued purporting to revoke his discharge and directing him to report, when notified, before an examining board at Boston for examination in accordance with section 9 of the act of May 18, 1917, 40 Stat., 82. He was notified to report on December 12 for examination and was discharged on January 22, 1918, by reason of the adverse findings of the board. The claimant, as disbursing officer, paid Johnson $166.67 as the pay of a first lieutenant for the month of December, 1917, and the auditor disallowed the payment in the settlement of his accounts on the ground that the order of revocation was insufficient to reinstate Johnson as a first lieutenant in the Connecticut National Guard.

It is contended that the letter of August 8, informing Johnson that he was no longer recognized as an officer of the National Guard, then in the Federal service by draft, was insufficient to discharge him from his commission as first lieutenant; that the separation could only be effected by a discharge for a physical disability, by order of a courtmartial, by order of the President, or on the approved adverse report of a board of officers; and hence that Johnson was in the military service during the month of December, 1917, and the payment was consequently legal.

Claimant errs in assuming that Johnson was a de jure first lieutenant in the Federal service with his organization by draft. Section 75 of the act of June 3, 1916, 39 Stat., 202, reads:

The provisions of this act shall not apply to any person hereafter appointed an officer of the National Guard unless he first shall have successfully passed such tests as to his physical, moral, and professional fitness as the President shall prescribe. The examination to determine such qualifications for commission shall be conducted by a board of three commissioned officers appointed by the Secretary of War from the Regular Army or the National Guard, or both.

It has been held, Greer v. United States, 3 Ct. Cls., 182, and in the absence of a statute requiring the passing of an examination as a condition precedent to appointment as an officer, that a commission accepted subject to conditions subsequent is terminated when the conditions are not met and when the person who tentatively accepted it is notified thereof. Even assuming, which is not now decided. that Johnson was a de facto first lieutenant from March 16, 1917. date of his appointment subject to examination, to August 8, 1917, when he was notified that he had failed to pass the requisite exam.

ination and was no longer recognized as an officer, the de facto status terminated on that date. Consequently, the revocatory order of November 23, 1917, could not operate to place him in the military service as a first lieutenant for he never held a de jure commission as such; or as a second lieutenant, for the appointment and qualification of his successor terminated his commission as second lieutenant, Blake v. United States, 103 U. S., 227.

The action of the auditor is affirmed.

FEDERAL POWER COMMISSION_DISPOSITION OF CHARGES

COLLECTED FROM LICENSEES.

Funds consisting of charges collected from licensees under authority of sec

tion 10 of the Federal water power act of June 10, 1920, 41 Stat., 1063, are to be distributed in the manner provided by section 17 of the same act, when express provision has been made therefor, otherwise to be covered into the general fund of the Treasury as miscellaneous receipts.

Comptroller General McCarl to the Chairman Federal Power Commission, August 6, 1921:

I have your letter of July 25 requesting a decision relative to the distribution of charges collected from licensees under the Federal water power act of June 10, 1920, 41 Stat., 1063.

The charges to be collected under said act are provided for under paragraphs (e) and (f) of section 10 of the act in the following terms:

(e) That the licensee shall pay to the United States reasonable annual charges in an amount to be fixed by the commission for the purpose of reimbursing the United States for the costs of the administration of this Act; for recompensing it for the use, occupancy, and enjoyment of its lands or other property; and for the expropriation to the Government of excessive profits until the respective States shall make provision for preventing excessive profits or for the expropriation thereof to themselves, or until the period of amortization as herein provided is reached, and in fixing such charges the commission shall seek to avoid increasing the price to the consumers of power by such charges ; and charges for the expropriation of excessive profits may be adjusted from time to time by the commission as conditions may require: Provided, That when licenses are issued involving the use of Government dams or other structures owned by the United States or tribal lands embraced within Indian reservations the commission shall fix a reasonable annual charge for the use thereof, and such charges may be readjusted at the end of twenty years after the beginning of operations and at periods of not less than ten years thereafter in a manner to be described in each license: * * *.

(f) That whenever any licensee hereunder is directly benefited by the construction work of another licensee, a permittee, or of the United States of a storage reservoir or other headwater improvement, the commission shall require as a condition of the license that the licensee so benefited shall reimburse the owner of such reservoir or other improvements for such part of the annual charges for interest, maintenance, and depreciation thereon as the commission may deem equitable. The proportion of such charges to be paid by any licensee shall be determined by the commission.

Whenever such reservoir or other improvement is constructed by the United States the commission shall assess similar charges against any licensee directly benefited thereby, and any amount so assessed shall be paid into the Treasury of the United States, to be reserved and appropriated as a part of the special tund for headwater improvements as provided in section 17 hereof.

The provisions of the act with reference to the distribution of funds collected are set forth in section 17 which reads:

That all proceeds from any Indian reservation shall be placed to the credit of the Indians of such reservation. All other charges arising from licenses hereunder shall be paid into the Treasury of the United States, subject to the following distribution: Twelve and one-half per centum thereof is hereby appropriated to be paid into the Treasury of the United States and credited to “ Miscellaneous receipts "; 50 per centum of the charges arising from licenses hereunder for the occupancy and use of public lands, national monuments, national forests, and national parks shall be paid into, reserved, and appropriated as a part of the reclamation fund created by the act of Congress known as the reclamation act, approved June 17, 1902; and 373 per centum of the charges arising from licenses hereunder for the occupancy and use of national forests, national parks, public lands, and national monuments, from development within the boundaries of any State shall be paid by the Secretary of the Treasury to such State; and 50 per centum of the charges arising from all other licenses hereunder is hereby reserved and appropriated as a special fund in the Treasury to be expended under the direction of the Secretary of War in the maintenance and operation of dams and other navigation structures owned by the United States or in the construction, maintenance, or operation of headwater or other improvements of navigable waters of the United States.

It may be stated here that the authority for licensing in national parks and national monuments was repealed by the act of March 3, 1921, 41 Stat., 1353.

There can be no doubt as to the requirements of the law with respect to the disposition of the charges collected under paragraph (f), that is to say, charges on account of the benefits to licensee accruing directly from reservoirs or other headwater improvements constructed by the United States. All moneys derived from such charges are to be covered into the Treasury to the credit of the special fund created under authority of the last clause of section 17 hereinbefore quoted.

The provisions of paragraph (e) of section 10 have no bearing upon the distribution of the charges provided for thereunder. The provisions therein relative to the basis of the charges are for the purpose of enabling the commission to fix the amount of the charges, and it does not follow that because a certain part of the charge is to be based on the cost of administration of the act that such part of the charge is to be appropriated and applied to pay the cost of said administration. The charges under this paragraph are to be based on (1) the cost of administration of act; (2) the value of the use, occupancy, and enjoyment of the lands and other property of the United States; (3) the excessive profits accruing to the licensee; (4) the use of Government dams or other structures owned by the United States; and (5) the use of tribal lands embraced within Indian reservations. But with reference to the disposition of the funds arising from the collection of charges fixed in accordance with said paragraph recourse must be had to the provisions of sec. tion 17. Said section is clear and specific in its direction as to the disposition of all proceeds from any Indian reservation, to wit, to the credit of the Indians. It then provides that 124 per cent of all other charges shall go into the general fund of the Treasury as miscellaneous receipts; that 50 per cent of the charges arising from licenses for occupancy and use of public lands and national forests (the national monuments and national parks mentioned in that clause being eliminated by the act of March 3, 1921, as stated) shall go to the credit of the reclamation fund; and that 374 per cent of such charges shall be paid to the State within whose boundaries the development is located. This makes a complete distribution of all charges arising from licenses for occupancy and use of public lands and national forests. The only other specific provision in the section with reference to distribution is to the effect that 50 per cent of the charges arising from all other licenses, that is to say, licenses other than for the occupancy and use of public lands and national forests and licenses involving the use of tribal lands embraced within Indian reservations, shall go to a special fund to be expended under the direction of the Secretary of War for the maintenance and operation of dams and other navigation structures owned by the United States or for the construction, maintenance, or operation of headwater or other improvements of navigable waters of the United States. This leaves 374 per cent of the charges arising from these licenses undisposed of. But bearing in mind the provisions of section 3617, Revised Statutes, which require that all moneys received for or on behalf of the United States must be deposited and covered into the general fund of the Treasury as miscellaneous receipts unless otherwise expressly provided by law, and the provision in section 9 of the act of June 30, 1906, 34 Stat., 764, to the effect that no act of Congress shall be construed to make an appropriation unless it shall in specific terms declare an appropriation to be made, it must be held that all funds arising from charges under section 10 (e) of the Federal water power act must be covered into the general fund of the Treasury as miscellaneous receipts except as otherwise expressly provided in section 17 of said act in the specific cases hereinbefore indicated.

It is assumed that all moneys arising from the operations of the act will be placed in the Treasury of the United States to such account as will permit making the distributions authorized by the enactment and proper accounting therefor be rendered.

HONORABLE DISCHARGE GRATUITY-COAST GUARD.

Section 2 of the act of July 12, 1921, 42 Stat., 139, amending the law relative to

payment of honorable-discharge gratuity to enlisted men of the Navy so as to make the amount of the gratuity dependent upon length of the last expiring enlistment as we!l as upon the length of the reenlistment period, is applicable to the enlisted man of the Coast Guard under the assimilating act of May 18, 1920, 41 Stat., 603, and authorizes a gratuity equal to one

month's pay at the rate received when discharged for each year of reenlistment, provided the period of service under one or more enlistments from

which discharged equals or exceeds the number of years of reenlistment. Comptroller General McCarl to the Secretary of the Treasury, August 6,

1921:
I have your letter of July 18, 1921, as follows:

In view of that part of the act of May 18, 1920, 41 Stat., 603, providing that enlisted men of the Coast Guard shall receive the same allowances as enlisted men of the Navy, in view (f your decision of November 16, 1920, 27 Comp. Dec., 457, relative to honorable-discharge gratuities of enlisted men of the Coast Guard, and in view of the provision in the naval appropriation act of July 12, 1921, that no enlisted man of the Navy shall be paid on reenlistment an honorable-discharge gratuity or any proportionate part thereof in excess of an amount equal to one month's pay for each year of service in his last expiring enlistment, the Commandant, United States Coast Guard, has written the inclosed circular letter, dated the 18th instant.

Please return said circular letter to me with your decision as to its legality. Issuance of same to the Coast Guard personnel will be withheld pending the receipt of your decision.

The circular letter to which you refer is as follows: 1. Circular Letter No. 180 is rescinded as of July 1, 1921.

2. An enlisted man of the Coast Guard is entitled to an honorable-discharge gratuity under the following conditions, effective as of July 1, 1921:

(a) When he shall have completed two continuous one-year enlistment periods, having received an honorable discharge at the expiration of each, and reenlists within four months from the date of his last discharge, he is entitled to a gratuity of two months' pay for either a two-year or a three-year reenlistment, computed at the rate of pay he was receiving on the date of his last discharge.

(b) When he shall have completed three continuous one-year enlistment periods, having received an honorable discharge at the expiration of each, and reenlists within four months from the date of his last discharge, he is entitled to a gratuity of three months' pay for a three-year reenlistment, computed at the rate of pay he was receiving on the date of his last discharge.

(c) When he shall have received an honorable discharge from a period-ofthe-war enlistment and reenlists within four months from date of said discharge. he is entitled to a gratuity of two months' pay for a two-year reenlistment, if he shall have served two years or more in his period-of-the-war en. listment, or a gratuity of three months' pay for a three-year reenlistment, if he shall have served three years or more in his period-of-the-war enlistment. computed at the rate of pay he was receiving on the date of his last discharge

(d) When he shall have completed a two-year enlistment, having received an honorable discharge therefrom, and reenlists within four months from the date of said discharge, he is entitled to a gratuity of two months' pay for either a two-year or a three-year reenlistment, computed at the rate of pay he was receiving on the date of bis last discharge.

(e) When he shall have completed a three-year enlistment, having received an honorable discharge therefrom, and reenlists within four months from the date of said discharge, he is entitled to a gratuity of two months' pay for a two-year reenlistment or a gratuity of three months' pay for a three-year reenlistment, computed at the rate of pay he was receiving on the date of his last discharge.

3. Honorable discharge gratuities that have become due or that may be. come due enlisted men in accordance with paragraph 2, above, will be paid in each case in the settlement of the first pay account of the man concerned after his reenlistment, without specific authority from Headquarters.

The Comptroller's decision to which you refer determined the conditions under which enlisted men of the Coast Guard are entitled to honorable discharge gratuity upon the basis of one month's pay for each year of the reenlistment period. The provision of the act

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