Lawrence v. Yost

¶5STEPHENS, Circuit Judge.

¶6A petition, in habeas corpus for and on behalf of Raymond E. Yost was filed in the district court. An order to show cause issued, and a hearing was had on the issues joined. Thereafter an order issuing the writ was made and a judgment entered, commanding the discharge of Yost from the restraint alleged. The respondent below appeals.

¶7Yost registered under the Selective Training and Service Act of 1940, as amended, 50 U.S. C.A.Appendix, § 301 et seq., and in his questionnaire he claimed exemption as a minister of religion, ordained *45by the sect known as Jehovah’s Witnesses. He was classified as a conscientious object- or, and upon notice thereof he claimed such classification was wrong. The appeal board reclassified him as I-A and he was ordered to the induction center, there to be inducted into the armed forces. After passing his physical test and after obeying each and every administrative step, from registration to presenting himself at the induction center to which the board ordered him, he was accepted by army officials, and the induction ceremonies went forward, with him and about seventy-five other registrants present.

¶8Thereafter the army authorities proceeded to exercise authority and restraint over him. He was given a limited release, subject to keeping his draft board notified of his whereabouts, and later was ordered to report to an army headquarters. After his temporary release and after the order to report had been received, he appears to have continued in his ministerial work. He did not report, as he was ordered to do, and later he was arrested for being absent without leave and taken to an Army camp and held there by army authorities.

¶9Yost, through his petition, contends that he did not submit to induction, that he was not inducted, and is therefore a civilian, and that the military officials are exercising illegal restraint over him.

¶10Prior to the decision by the Supreme Court in the cases of Estep v. United States and Smith v. United States, 66 S.Ct. 423, it was unsettled as to whether or not a registrant under a board’s order to report for induction was under ■ the necessity of submitting to induction before he could defend against a prosecution for disobeying a board’s order, 50 U.S.C.A.Appendix, § 311.

¶11The point is settled in the majority opinion of the cited cases, wherein it is said that “Submission to induction would be satisfaction of the orders of the local boards, not a further step to obtain relief from them.” In those cases each of the defendants was being prosecuted for disobeying a Selective Service Board’s order. The decision of the Supreme Court was that both Smith and Estep could defend against the prosecution, notwithstanding neither of them had submitted to that part of the board’s order directing them to submit to induction. In the instant case the petitioner claims that he did not comply with the board’s order to submit to induction and for that reason he has never become a member of the military forces; hence, the military authorities have no legal authority over him or over his actions.

¶12Of course, it is perfectly clear that since actual induction is not a sine qua non to the registrant’s right to interpose his defense in a prosecution for an alleged offense, induction is not necessary in Yost's case, wherein it is alleged in the petition that by the very reason of the fact that he has never been inducted into the army, the army has no jurisdiction over him.

¶13Had the trial court found that Yost had in fact been inducted, other questions considered by the trial court in the then unsettled condition of the law, would be present. As it is, the question is simplified to this: Does the evidence support the trial court’s conclusion that Yost was not inducted? If that conclusion can be sustained, the army has never had any jurisdiction over him, and the judgment must be affirmed. We turn to the consideration of that question.

¶14The board’s file as to registrant Yost was introduced into evidence, and it shows that he claimed exemption as a minister of religion in his questionnaire. A few days later he claimed exemption as a conscientious objector. [This claim was made on a special form (Form 47), and from a number of cases which we have reviewed, it seems to be a general practice for the boards to require all registrants who claim to be ministers to fill out this form.] There is some inconsistency between the claims in the questionnaire and the statements in Form 47. In the latter there is a request to be classified as a conscientious objector, which entails civilian camp duty on work of national importance, and in the questionnaire the request is for classification IV-D, or as a minister of religion, and therefore exempt from any service. The form is printed and the registrant is required to check the statement he selects. It is *46claimed in both the original questionnaire and the Form 47 that the registrant is exempt from military duty. All of the facts just related were proved at the habeas corpus hearing.

¶15At the hearing the petitioner testified that he told four or more officers and non-commissioned army men about the induction center that he did not intend to take the oath which was a part of the induction ceremonies, and that immediately after the ceremonies he asserted to the desk man who was handling orders that he had not taken the oath. Thereafter petitioner consistently contended that he had not taken the oath and had not been inducted.

¶16It is not contended here that the affirmative taking of the oath is required by the statute or by the regulations under it. What is claimed is that before a registrant becomes a member of the military forces he must have submitted to such induction ceremonies as were currently held. , The ceremonies practiced in the class of around seventy-five selected registrants to which Yost belonged appear to have been quite simple. The registrants were seated in a room, and an army officer gave a short talk upon the subject of soldiers being A.W.O. L., about the conduct of a soldier, and as to a citizen’s duty. The members of the class of registrants were then requested to' stand, raise their right hands and repeat, line by line, an oath which was read to them.1 The registrant’s affirmative voluntary conformance necessary under Billings v. Truesdell, 321 U.S. 542 at 558, 64 S.Ct. 737, 88 L.Ed. 917,2 to this part of the ceremony was the only part of it in which some 'act of acceptance of the induction by the registrant was required. It most certainly was the high light of the proceeding. Yost testified, and the trial court believed' him, that he stood when the class was requested to stand, that he did not conform to the request given the class that each member should raise his hand, and did not conform to a like request to repeat the oath, line after line, as it was read, and that he did not take the oath.

¶17Sometime after the induction ceremonies had been conducted, Yost made a written report to an agent of the Federal Bureau of Investigation, which is entirely consistent with his claim as to the happenings at the induction center. We set it out in full in the margin.3

¶18Yost also informed his draft board in *47terms consistent with his claim, which we quote in the margin.4

¶19Lieutenant Leigh, who conducted the ceremonies, in a statement admitted into evidence by stipulation, says: “ …

¶20that he observed no unusual incident at the time and at that time when prospective inductees refused to take the oath, they were inducted nevertheless if found to be otherwise qualified.” This practice, we understand, was abandoned after decision in Billings v. Truesdell, supra.

¶21While some of the evidence here related may be self-serving in nature, it was received without objection and without limitation of purpose and the court gave it credence. There is no error claimed by appellant on that score.

¶22Of course, it is logical argument to present to a fact finding court that Yost held it in his power to speak out at the time the oath was being read or otherwise to indicate his refusal to conform to the ceremony in such a manner as to make a mistake in the matter quite impossible. His burden, however, was not so great as to require him to do all in his power in that regard. He had already been outspoken that he would not take the oath and in accordance therewith he testifies that he did not take it. The slightest attention on the part of the induction officials would have revealed whether anyone of the class was disregarding the request to hold up his hand or to repeat the oath. No official intimates that he made any effort to observe the conduct of the registrants. Lieutenant Leigh’s negative statement on this point is highly indicative that the induction officials did not consider that the registrants had any volition in the matter. The army was giving commands before the registrant was in the service.

¶23In the circumstances there appears to have been that degree of substantial evidence before the trial court which is required to support its conclusion that Yost did not in fact submit to induction. The restraint complained of is therefore without warrant in law and the judgment must be affirmed.

¶24Affirmed.

¶33DENMAN, Circuit Judge

¶34(concurring).

¶35I concur in the majority opinion and its reasoning, the more so because I am impressed with Yost’s candor and integrity in a situation where it takes a man of intellectual courage not to reshape his memory to suit the occasion. This was *48recognized by Major General Lawrence himself in his frank statement in his brief here that Yost had refused to obey the officer’s order to take the oath.

¶36BONE, Circuit Judge

¶37(dissenting).

¶38I dissent. The testimony and the record present a situation clearly calling for reversal in this case.

¶39Yost did not raise his hand, or “take” the oath in the induction ceremony. However, taking the oath — repeating the words —or not doing so, would not of itself put him in or keep him out of the army. The Army Regulations applicable at that time and having the force and effect of law, say so. Their provisions constitute a solid benchmark that should guide us on that particular point.

¶40To support the judgment of the lower court is to disregard this binding law.

¶41While wholly immaterial, concede for argument’s sake that Yost did “reject” the oath. Even so, one cannot fail to be impressed by his manner in rejecting it. The record is crystal clear that he manifested this oath “rejection” so quietly and unobtrusively (from the place where he was standing in the back row) that he failed to challenge the attention of anyone there. Unless we wholly disregard the record, we must conclude that he was the only one who actually knew he was rejecting it.

¶42Of course the oath was “part” of the induction “ceremony”, but even a casual inspection of the Regulations will indicate that the fact that a man did or did not repeat it is not impressive because the law robs it of a decisive character. This, because the controlling regulation says, in effect, that the oath may be disregarded or rejected by the inductee without affecting his status.

¶43Certainly it cannot be urged that the “ceremony” in the room where the oath was being administered, was not the final step — the room, the final spot where the ultimate and effective decision had to be made which alone could determine the status of Yost. The logic of the cases is to the contrary. Justice Douglas makes this abundantly clear when in Billings v. Truesdell, 321 U.S. 542, at page 559, 64 S.Ct. 746, 88 L.Ed. 917 he says: “These considerations together indicate to us that a selectee becomes ‘actually inducted‘ within the meaning of § 11 of the Act when in obedience to the order of his board and after tibe Army has found him acceptable for service he undergoes whatever ceremony or requirements of admission the War Department has prescribed.” [Emphasis supplied.] At that point, and by the “ceremony”, is he “actually inducted” into the Army. Argument to the contrary merely invokes futile discussion. Since the taking of the oath was not decisive on the final and important question of civilian or military status,1 it necessarily follows that some other affirmative step had to be taken *49by Yost to somehow and in some way indicate then and there that he refused to be inducted. See Mayborn v. Heflebower, 5 Cir., 145 F.2d 864; Hibbs v. Catovolo, 5 Cir., 145 F.2d 866. 2

¶44Unless the Selective Service Act is void of meaning, it is obvious that at some point in this, the final step in the induction process, Yost was required to “speak up” and “refuse to be inducted” — or he was inducted. As a matter of law, the very nature of the process placed a legitimate and logical burden on him to there make known a decisive choice as to whether he would remain a civilian, and be amenable to the penalties of the Selective Service Act, or enter the army. He was the one who (under the law) had to assert his choice and to act, and act affirmatively. Where in the law or Regulations is there authority for us to impose upon the inducting officer the duty of asking each of the assembled men if he was then and there “refusing” to be inducted? The very question invites the only rational answer. But the majority substitutes the undenicd silence and utter passivity of Yost, standing in the back row, for some sort of an “act” which (when added to certain statements made outside the induction ceremony room) it identifies and sanctions as a legal “refusal” to be inducted. The applicable Regulations deny the validity of such an induction ceremony “refusal”. (See footnote 1).

¶45Let it be recalled that if a man claims exemption from service under the Act (as a minister, for example) he is required to act affirmatively by specially making known to draft boards the factual basis of his claim for exemption. The procedure to be employed in the making of such a claim is carefully prescribed and passivity and silence are not a substitute for such procedure. A man is required to act — and act at the proper time and in the prescribed manner if he would secure the classification he desires which would permit him to escape combat service.

¶46Both Yost and his counsel freely concede that one single affirmative act in the form of a brief and gentlemanly statement by Yost to the officer in charge of the ceremony that he “refused to be inducted”,, would have fully preserved his civilian status. The Yost induction proceeding at the ceremony would have abruptly ended right there had he made known to the inducting officer the “intention” he claims he so freely expressed in a number of places outside the induction room. As a matter of fact and law, such a refusal in the induction room would have kept him out of the army if he had never tittered a protest to anyone outside that room. Before the lower court Yost expressed regret that he did not “speak up” and tell the officer in charge of the ceremony that he was then and there refusing to be inducted. Yost thus made plain that he understood that the induction room was the one and only place where his “intentions” could (lawfully) be translated into exemption from military service by the simple act of refusing to be inducted. Having failed to do this, he now seeks to buttress his right to exemp*50tion by introducing into the record, a series of what amounts to self-serving declarations, made at various times outside the ceremony room, regarding his “intention” to refuse to be inducted.

¶47From his testimony it is apparent that Yost was trying to convince the trial court that he, Yost, was so courteous that he could not force himself to wound the feelings of the young officer in charge of the “ceremony” by any sort of an interruption such as asking for permission to make a brief statement. Such an attitude reveals admirable restraint. . But he exercised this restraint at the one and only possible time and place where simple candor and a frank repetition of the protests he had previously made outside the ceremony room, admittedly would have kept him out of the army. We admire courtesy, but even in its most delightful forms, it is not a substitute for law.

¶48The testimony of Yost concerning his silence at the induction room ceremony, is in strange contrast with his frequently voiced objection to entering military service, made to several people before and after the ceremony. If we are to believe his testimony, he took advantage of every possible opportunity (outside the ceremony room) to assert to everyone whom he regarded as being in any way connected with the process of making soldiers, that he was refusing to submit to induction. But the cold, hard fact remains that in so doing, he was then voicing an “intent”, which (measured by the law), was as futile as the vagrant winds of the heavens unless he translated that intent into some understandable form of affirmative action (i. e. refusal to be inducted) at the one and only time and place where such action would or could be effective under the law. So the law and the regulations call upon us to confront the question of where and how this “refusal to be inducted” had to be asserted if it was to be legally effective.

¶49The effective answer lies in the quotations herein from the opinion of Justice Douglas in the Billings case.

¶50I believe the majority is wrong for another reason. Let us assume that prior to and wholly apart from the induction ceremony, Yost had stated to all of those with whom he discussed the within matter, that his greatest desire was to enter the army and that he was irked by official red tape which delayed his induction. When introduced to the (final step) induction room lie suffered a complete change of heart and for some reason decided that he would refuse to become a soldier. When the final induction ceremony got under way he interrupted the ceremony long enough to tell the inducting officer that he then and there absolutely refused to be inducted. (He could not be forcibly inducted. Billings v. Truesdell, supra.) Under such circumstances would the majority say that all of his prior outside statements (introduced into the record, as here) changed in the slightest degree the legal effect of such a point-blank refusal to be inducted? Faced by such a reversal of the facts in this case, the majority would find no difficulty in wholly ignoring his prior outside declarations, regardless of their vigor or import. In the light of the blunt refusal to be inducted (in the ceremony room), these previous expressions of “intention” would become utterly void of legal significance. The conclusion that Yost had violated the Selective Service Act, by this refusal to be inducted, would be inescapable.

¶51The testimony of Yost clearly reveals that he was not awed in the slightest degree by the presence of military men or Selective Service officials, singly or in groups, on the numerous occasions outside the ceremonial room at which time he aggressively voiced his protests against induction. The majority overlooks this more than interesting aspect of the case. Why ignore the obvious and inescapable legal truth that not one of these (outside) persons could exercise a vestige of control over the final and decisive step of actual induction. Whatever may have been the area of their authority over some one or more of the steps leading toward the final act of induction,3 not one of them had *51legal power to actually “induct” Yost. Not one of these persons could have put him into or kept him out of the army. Yet the majority of the court attributes to the self-serving statements Yost made to these people, a legal significance that the law wholly rejects. It sees so much significance in these statements that it decides to add them to the utter silence of Yost in the induction room, and then spell out a legal refusal to be inducted. It endorses the odd view that the “silent treatment” process adopted by Yost at the final ceremony completed a cycle of “refusal”. With the aid of the outside self-serving statements (as colorful background) the majority virtually holds that Yost successfully “thought” himself out of the ^.rmy at the final induction ceremony — a novel and startling legal exploit, to say the least. Small wonder that the trial court was moved to comment on the “prescience” of Yost which (the court says) enabled Yost to clearly understand obscure aspects of the Selective Service Act which were then puzzling learned judges all over the country. Securing exemption from military service in the manner here indicated exemplifies a situation clearly not contemplated or sanctioned by Congress.

¶52The conclusions announced in the majority opinion would appear to rest upon the assumption that these legally ineffective outside declarations relieved Yost of the duty, at the proper time and place, to openly and positively refuse to be inducted. The decision, in effect, holds that Yost owed absolutely no legal duty of any kind to advise the officer who was inducting him, and who had the authority to do it, that he was then and there refusing to be inducted. There is not a line of testimony to prove that the young officer in charge of the induction ceremony had the faintest idea that Yost was refusing to be inducted. Yost did absolutely nothing to call attention to any act of his which would indicate that he was refusing to be inducted. The officer stated (stipulated testimony) that he recalled no unusual circumstances surrounding the induction of Yost and that he was certain he would have recalled them, had any existed. As pointed out above, neither the Selective Service Act nor the Regulations place, nor do I believe they can properly be construed to place, on the inducting officer the legal duty of interrogating each and every man in the ceremony room to ascertain whether any of them is refusing to be inducted. I can see no justification in stretching the laws and the regulations in force at that time to cover the facts of this case.

¶53The prevailing opinion seems out of harmony with the cited holding in the Billings case, supra. Yost was duly and legally inducted and the judgment of the lower court should be' reversed.

¶54MATHEWS, Circuit Judge, joins in this dissent.