Lawrence v. Yost

157 F.2d 44, 1946 U.S. App. LEXIS 2671

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 1946
• Docket: No. 10892
• Status: Published

Opinions

STEPHENS, Circuit Judge.

A 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.

Yost 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 by 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.

Thereafter 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.

Yost, 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.

Prior 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.

The 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.

Of 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.

Had 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.

The 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 claimed 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.

At 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.

It 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.

Sometime 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

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

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

that 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.

While 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.

Of 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.

In 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.

Affirmed.

1 Subsequently the method of induction was changed so as to practically eliminate the possibility of doubt as to the actual induction of any member of an induction class.

2 Billings v. Truesdell, 321 U.S. 542, 558, 64 S.Ct. 737, 746, 88 L.Ed. 917: “Moreover, it should be remembered that he who reports at the induction station is following the procedure outlined in the Falbo case [320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305] for the exhaustion of his administrative remedies. Unless he follows that procedure he may not challenge the legality of his classification in the courts. But we can hardly say that he must report to the military in order to exhaust his administrative remedies and then say that if he does so report he may be forcibly inducted against his will. That would indeed make a trap of the Falbo ease by subjecting those who reported for completion of the Selective Service process to more severe penalties than those who stayed away in defiance of the board’s order to report.”

3 “On December 7, 1943, I reported to my Draft Board at Marshfield, Oregon. It was in the evening. The whole group including myself then were taken by train to Portland, Oregon, arriving there on the morning of December 8, 1943. In Portland, we were taken to the induction station where I was given a physical examination in the morning. After this examination I signed a paper which I believe stated that I have passed the physical examination. After the physical examination, I told some officers, whose names I do not know but who was asking if I wanted to enter the Army, Navy or Marine Corps, that I did not want anything to do with any of them. He said it didn’t matter that I was going anyway.

“After lunch, the whole group numbering about 75, including selectees from-other draft boards and myself, reported-to a room where a short talk was given to us by an army officer who explained about being AWOL and the proper conduct of a soldier. During the talk he told us that we would report at Fort Lewis, Washington, but that it would be in about 3 weeks and that we should contact our own draft boards for the exact time. After this talk the officer told everyone to raise his right hand and repeat the oath after him line by line. I was in the last row. I did not raise my-right hand and I did not repeat the oath or any part of it.

“After the oath was given, we went to another room where our names were called out and we were each given a piece of paper telling us to report at Ft. Lewis, Washington. We all, including myself, initialed a paper on the table. I do not know what was on this paper. I then told the man who was either an officer or an enlisted man in the Army that I was not going to> report and was not going ■into the Army. He told me to shut up and get out of the way, that I was going anyway and that I had passed the physical examination and was in the Army. During the time I was at the induction station, I told one officer and a corporal or a sergeant and one or two others that I was not going to go into the Army and had not taken the oath.

“After this, I then returned to Marsh-field, Oregon, on the train leaving Portland on the night of Dee. 8, 1943, and arriving at Marshfield on the morning of Dec. 9. On my return home, I continued my evangelistic work of Jehovah Witness. On December 28, 1943, I called my Local Draft Board to determine when I was supposed to report at Ft. Lewis. The Clerk told me on Dec. 29, 1943, X was to report. I told the Clerk that I was not going to report and that I had not taken the oath at the induction center. She told me that the draft board reflected that I was already in the army. She asked me where I could he reached and I told her through post office box 1263, Myrtle Point, Oregon.

4 “12-28-43

“Mr. Yost called from Coquille and stated that he does not intend to report to Fort Lewis. Says it would mean ‘Eternal Death’ if he should go to war. Will be available at his address in Myrtle Point. Claimed he has a covenant with his God and that the Consc. Ob. would not be the place for him either. He was told that he would be listed as a deserter and he said he ‘probably would’. Claimed he did not take the oath.” (Report of a conversation with the petitioner given by the Secretary of the Board and in files of the Board under date of December 28, 1943.)