offered as reimbursement for his services, nor was there a waiver by competent authority of the necessity for compliance with the requirements of the regulation.

The deserter was apprehended and arrested by soldiers from Fort Snelling and the mere furnishing by claimant of information leading to such apprehension and arrest and accompanying them, does not constitute delivery within the meaning of the law and regulations. The action of the auditor is accordingly affirmed.

TRANSPORTATION-INTERSTATE AND INTRASTATE

SHIPMENTS.

Where interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, the Interstate Commerce Commission has authority to apply its published tariff rates for interstate shipments to shipments within a State.

Decision by Comptroller General McCarl, August 3, 1921:

The Union Pacific Railroad Co. applied May 24, 1921, for revision of the action of the Auditor for the Interior Department in Settlement 3683, April 18, 1921, in disallowing $6.52 on account of transportation per bill of lading I-13254, November 3, 1920, of flour from Omaha, Nebr., to Genoa, Nebr., the auditor having based his allowance on rates published in general order 19 (distance rates) issued by the Nebraska Railroad Commission.

The Interstate Commerce Commission ordered the roads to desist using the Nebraska G. O. 19 rates from jobbing centers on the Missouri River, etc., to local stations in Nebraska, and to apply interstate rates provided in the Iowa-Nebraska scale in order to prevent discriminations to the detriment of Sioux City, Council Bluffs, etc. This order of the commission related to the tariff to and from 13 jobbing centers which were named. The Union Pacific Railroad Co. filed supplements to its tariffs carrying the rates authorized by the Interstate Commerce Commission.

In the cases of Houston East & West Texas Railway Co. v. United States, and T. & P. Railway v. United States, called the Shreveport cases, the Supreme Court, June 8, 1914, 234 U. S., 342, held that wherever interstate and intrastate transactions of carriers are so related that the government of one involves the control of the other it is Congress and not the State that is entitled to prescribe the final and dominant rule, and that while Congress does not possess authority to regulate the internal commerce of the State as such, it does possess power to foster and protect interstate commerce though in doing so it may be necessary to conrol intrastate transactions of interstate carriers, and that the use by a State of an

instrument of interstate commerce in a discriminatory manner so as to inflict injury upon any part of that commerce is ground for Federal intervention; that a State can not authorize that which is forbidden; that Congress is not bound to reduce interstate rates to the level of intrastate rates; and that Congress having power to control intrastate charges of an interstate carrier may provide for its execution through a subordinate body, which it has delegated to the Interstate Commerce Commission by section 3 of the interstate commerce act, 24 Stat., 379, 380.

The rates claimed by the company being regular published rates, under the authority of the Interstate Commerce Commission, are therefore properly allowable, and in accordance there with the sum of $6.52 will be certified for allowance.

NATIONAL GUARD IN FEDERAL SERVICE-TERMINATION OF COMMISSIONS.

The appointment of an officer of the National Guard as an officer in the United States Army subject to examination, when drafted in the Federal service with his organization, terminated upon notice to him of his failure to pass the required examination, and an order of the War Department purporting to revoke such discharge and directing him to report for further examination is insufficient to restore his commission or to federally recognize him as an officer of the National Guard in Federal service so as to entitle him to pay from date of the order to date of final action by the examining board.

Decision by Comptroller General McCarl, August 5, 1921:

Frank Geere, major, C. A. C., disbursing officer, applied May 18, 1921, to the Comptroller of the Treasury, for revision of the action. of the Auditor for the War Department in disallowing in settlement No. 58343, dated June 30, 1920, of his disbursing accounts for the period ending May 31, 1918, a payment of $166.67 to Arthur H. Johnson for the month of December, 1917, the monthly pay of a first lieutenant, First Connecticut Infantry, National Guard.

It appears that the First Connecticut Infantry, National Guard, was called into the Federal service on March 16, 1917, and Arthur H. Johnson, who had theretofore been serving as a second lieutenant, was appointed on that date by the governor of Connecticut as a first lieutenant subject to examination; that one Harris was likewise, subject to examination, appointed to take the commission of second lieutenant and Harris successfully passed the examination on June 20, 1917, and was announced in orders as having been so appointed; that Johnson was examined by a board of officers on June 26, 1917, and by a report approved on July 5 was found disqualified; that the organization was drafted into the Federal service on August 4; and

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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 section 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 fund 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 appropri ated as a part of the reclamation fund created by the act of Congress known as the reclamation act, approved June 17, 1902; and 37 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 section 17. Said section is clear and specific in its direction as to the disposition of all proceeds from any Indian reservation, to wit, to