Wilner v. United States

• Decision Date: 12 January 1934
• Docket Number: No. 5050.,5050.
• Citation: 68 F.2d 442
• Parties: WILNER v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

68 F.2d 442 (1934)

WILNER v. UNITED STATES.

No. 5050.

Circuit Court of Appeals, Seventh Circuit.

January 12, 1934.

Edward H. S. Martin, of Chicago, Ill., for appellant.

Will G. Beardslee, Sp. Asst. to Atty. Gen., and Dwight H. Green, U. S. Atty., and Francis J. Kennedy, Asst. U. S. Atty., both of Chicago, Ill., for the United States.

Before ALSCHULER, SPARKS, and FITZHENRY, Circuit Judges.

FITZHENRY, Circuit Judge.

This is an appeal from a judgment dismissing appellant's suit for want of jurisdiction and for costs, upon sustaining appellee's demurrer to appellant's petition. Suit was brought April 28, 1933, under an alleged disagreement on April 7, 1933, with the Administrator of Veterans' Affairs, to recover permanent disability and death benefits under a war risk insurance certificate issued to the soldier Meyer Wilner.

The petition charges that the soldier died intestate May 15, 1929, at Chicago, Cook county, Ill. Appellant was appointed administrator of his estate May 20, 1929, and qualified. The soldier enlisted in the military service September 19, 1917, and was honorably discharged March 31, 1919; while in the service, the insurance policy in question in the sum of $10,000 was granted him; all premiums on it were deducted from the soldier's pay; appellant, a brother, was named as beneficiary. It was also alleged that the soldier became totally and permanently disabled April 15, 1919. Proof of disability was made by the soldier, and appellant made due proof of death to appellee and demanded payment. The Veterans' Bureau, the Veterans' Administration, and the Administrator of Veterans' Affairs allowed the claim to go for an unreasonable time after making proofs to the Veterans' Bureau, to wit, from November 15, 1928, as to the claim of decedent, and from May 17, 1929, as to the claim of petitioner, to April 17, 1933, without an ultimate decision thereon.

The alleged disagreement is with the Administrator of Veterans' Affairs as to appellant's claims, in having wholly failed and refused to pay the said money or any thereof, reciting the particulars as to the denial of said claims, made in writing April 7, 1933, on the purported authority of section 17 of an act entitled, "An Act to Maintain the Credit of the United States Government," Public No. 2, 73d Congress, approved March 20, 1933 (38 USCA §§ 717, 718), charging that thereby a disagreement existed between appellant and the Administrator of Veterans' Affairs.

The petition charges that the act referred to is unconstitutional, being an attempt to delegate legislative powers to an executive officer, contrary to section 1, article 1, of the Constitution; also for the reason that it amounts to taking from appellant his rights under the contract of insurance without making compensation therefor, and that the act referred to deprives appellant of property without due process of law and takes from him his private property for public use without just compensation, in violation of the Fifth Amendment.

The date originally charged when the soldier became totally and permanently disabled was August 18, 1918; by amendment, the date was changed to April 15, 1919, which brought the cause of action within the ten-year statute of limitations in Illinois (Smith-Hurd Rev. St. Ill. 1933, c. 83, § 17).

Appellant has raised many interesting constitutional questions in his arguments and briefs. Section 17 of An Act to Maintain the Credit of the United States Government (title 38 USCA § 717) repeals "all public laws granting * * * compensation and other allowances, * * * to veterans and the dependents of veterans of * * * the World War. * * *" It also contains the following provision:

"And all laws granting or pertaining to yearly renewable term insurance are hereby repealed. * * * The Administrator of Veterans' Affairs under the general direction of the President shall immediately cause to be reviewed all allowed claims under the above referred to laws and where a person is found entitled under this chapter, to authorize payment or allowance of benefits in accordance with the provisions of this chapter. * * *"

All cases where suit has been commenced prior to the passage of the act, or where payment has been allowed and commenced, or where a judgment has been rendered by a court of competent jurisdiction on a contract for yearly renewable insurance, or which may hereafter be rendered in any such suit now pending, under contracts for yearly renewable term insurance, are excepted from the operation of the above provisions.

Because the act permits the Administrator to re-examine the cases and to make allowances according to regulations prescribed by the President, it is claimed there is an unwarrantable delegation of legislative power.

The material section, so far as the jurisdiction of this court is concerned, is section 5 (title 38 USCA § 705), which makes all decisions of the Administrator of Veterans' Affairs, under the provisions of the act or regulations issued pursuant thereto final and conclusive on all questions of law and fact "and no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision."

The United States Circuit Court of Appeals for the Fifth Circuit very recently had almost the precise questions here involved before it in Margaret Shea Lynch v. United States, 67 F.(2d) 490. In an opinion filed November 3, 1933, the court said:

"We need not discuss in detail the interesting questions raised by appellant. It is elementary that the United States may not be sued without her consent. Section 5 of the Act of March 20, 1933 (38 USCA § 705), is broad enough to deprive the District Court of jurisdiction whether vested by the provisions of the Tucker Act (28 USCA § 41 (20) or under the provisions of the World War Veterans' Act 1924, § 19, as amended (38 US CA § 445). Conceding that the policy of insurance is a contract, it was subject to any provision of law subsequently enacted by Congress and appellant's constitutional rights were not impaired thereby. White v. United States, 270 U. S. 175, 46 S. Ct. 274, 70 L. Ed. 530."

We believe the Circuit Court of Appeals reached the proper decision in the Lynch Case, supra, and that its conclusions are sound. There is no unlawful taking of property without due process of law for the reason there is no vested right conferred upon a beneficiary in a war risk insurance policy. White v. United States, 270 U. S. 175, 46 S. Ct. 274, 70 L. Ed. 530...