DocketNumber： No. 5964
Citation Numbers： 69 F.2d 229
Judges： Hitz
Filed Date： 1/29/1934
Status： Precedential
Modified Date： 7/23/2022
The petitioner below, who is appellant here, appeals from a judgment of the Supreme Court of the District of Columbia in favor of the Administrator of Veterans’ Affairs.
This judgment was entered upon the petitioner’s demurrer to the Administrator’s answer to an application for a writ of mandamus, and tho petitioner electing to stand on his demurrer, the appeal comes here.
The petitioner served in the United States Navy during the World War; duly received an adjusted-service certificate; and thereafter borrowed the entire loan value thereof from the Veterans’ Bureau.
The greater part of that loan was made to him personally upon his own application at a time when he had been adjudicated incompetent, and had a duly qualified guardian, of whose appointment the Veterans’ Bureau had notice.
But prior to the filing of the petition in this ease, he had been relieved from further legal disability by a proper decree.
He thereupon applied to the respondent for a loan equal in amount to that made him while non compos.
This application being denied, he set up the foregoing facts in a petition for mandamus to compel the respondent to lend him for the second time the loan value of his certificate.
The respondent answered that under the law and applicable statutes he was not compellable to lend the petitioner further moneys.
The Adjusted Compensation Act of 1924 provided for the issuance to veterans of the World War of certificates entitling them to additional compensation at a future time.
And it authorized, but did not undertake to require, the banks of the nation, under certain conditions, to' make loans to veterans on their notes secured by their certificates. 43 Stat. 121-120 (38 USCA § 591 et seq.).
If such notes were not paid at maturity, it was further provided that the Director of the Veterans’ Bureau, predecessor of respondent in office and title, might in his discretion pay off the loaning bank and hold the certificate nntil redeemed or payable, and then deduct therefrom the amount previously paid, with interest. 43 Stat. 126, § 592 (c), 38 USCA § 642 (c); 46 Stat. 1016.
Several years later the loan section (502) was amended (subdivision i) to provide that: “The Director of the United States Veterans’ Bureau is authorized * * * to make loans to veterans upon their adjusted service certificates in the same amounts and upon the same terms and conditions as are applicable in tho case of loans made under this section by a bank, and the provisions of this section shall he applicable to' such loans * * Act March 3, 1927, c. 359, par. 1, 44 Stat. 1389 (38 USCA § 642 (i).
The later amendment of February 27, 1931 (46 Stat. 142), 38 USCA § 642 (l), provided that the loan value should not be less than 59 per cent, of the face value of the certificate, but made no other change in the act of interest to this ease.
As interpreting that provision of the statute, the respondent cites U. S. v. Williams, 278 U. S. 255, 49 S. Ct. 97, 98, 73 L. Ed. 314.
While that case sought final payment of a certificate and not a loan thereon, the Supreme Court there said:
“Under the provisions of the act, and in the light of the section just quoted, we are of opinion that exclusive authority is vested in the Director of the Bureau to entertain and pass upon all claims for payment of these certificates.
“It is evident that, when a certificate is presented to the Director by one claiming to be the beneficiary, that officer must, as a necessary prerequisite to the payment, ascertain and determine that the veteran is dead, that the person claiming payment is in fact the beneficiary, and any other matter of fact or law which may affect the right of the claimant in any given case.
“We may assume that the Director performed that duty here.
“The record does not disclose the basis for his action; but, whatever it may have been, his decision is final, at least unless it be wholly without evidential support or wholly dependent upon a question of law or clearly arbitrary or capricious. Silberschein v. U. S., 266 U. S. 221, 225, 45 S. Ct. 69, 69 L. Ed. 256.”*237 property of the corporation now in the hands of the receiver appointed by the District Court of the United States for the Eastern District of Pennsylvania.”
Por the loan section does not direct, but merely authorizes, the Administrator to make loans in eases where prior to the amendment the banks were authorized to make loans, and it is scarcely conceivable that the loosest of our loose banks would make such a duplicate loan.
And the writ of mandamus is always an extraordinary remedy, resting in the grace and discretion of the court, when the act demanded to be done is ministerial by nature, and the obligation to do it is clear, peremptory, and indisputable.
Before the writ may issue the law must not only authorize, but require, the act to be done as demanded.
We are, of course, not called upon to consider the possibility of another conclusion in some other proceeding based upon the same certificate, but are of opinion that the petitioner makes out no sufficient case here for a mandamus requiring the respondent to make him a further loan, and the judgment denying it is therefore affirmed. United States ex rel. International Contracting Co. v. Lamont, 155 U. S. 308, 15 S. Ct. 97, 39 L. Ed. 160; In re Skinner & Eddy Corp., 265 U. S. 93, 44 S. Ct. 446, 68 L. Ed. 912; Interstate Commerce Commission v. U. S. et al., 260 U. S. 30, 43 S. Ct. 6, 67 L. Ed. 112; U. S. ex rel. Barton v. Wilbur, 283 U. S. 414, 51 S. Ct. 502, 75 L. Ed. 1148.