(dissenting).

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

Yost 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.

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

While 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.

Of 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.

Certainly 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 *49 by 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

Unless 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).

Let 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.

Both 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 *50 tion 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.

From 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.

The 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.

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

I 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.

The 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 *51 legal 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.

The 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.

The 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.

MATHEWS, Circuit Judge, joins in this dissent.

At the time of the Yost induction the Army Regulations then in force and effect contained the provisions reading as follows:

“Army Regulations

“No. 615-500

“Section II

“13. Procedure * * *

“(d) Induction. Upon completion of the physical examination and after certification by a medical officer, selectees found to be physically and mentally fit for general military service will be inducted.

“(e) Induction ceremony. •

“(1) The induction will be performed by an officer who, prior to administering the oath, will give the men about to be inducted a short patriotic talk. The ceremony should take place in a setting, preferably a large room, made colorful by the display of flags with guard and display of suitable pictures, and made as impressive as possible. Wherever practicable, martial music will be provided either by a band or in the form of recorded music. For the benefit of any non-declarant aliens about to be inducted the induction officer will explain the difference between the oath of allegiance and the oath of service and obedience. The oath, Article of War 109, will then’ be administered:

**«>**

“(4) They will then be informed that they are now members of the Army of the United States and given an explanation of their obligation and privileges. In the event of refusal to take the oath (or affirmation) of allegiance by a declar-ant alien or citizen he will not be required to receive it, but will be informed that this action does not alter in any respect his obligation to the United States. *49 In the event a nondeclarant alien refuses to take the oath of allegiance or the oath of service and obedience the following statement will be typed under ‘remarks — administrative’ of the service record [Emphasis supplied.]:

“Read the oath of service and obedience for aliens, upon refusal to swear thereto, and was informed that his refusal to so swear to the oath did not in any way alter his obligation as to service and obedience to the United States.”

It clearly appears in the Estep and Smith cases, 66 S.Ct. 423 , that both men were ordered to report, and did report, to the induction station where both were accepted for service. Both men then refused to bo inducted, (i.e. submit to induction). This was the posture of the cases in the Supreme Court. It would require a fantastic stretch of the imagination to assume that the Supreme Court was not passing on the final and positive act of refusing (after acceptance) to be inducted by the lawfully designated officer charged with the duty of “inducting” men in the final inducting "ceremony”. Nor can we logically assume that Estep and Smith stood mute and motionless when the time came for them to be “inducted”. The Supreme Court opinion plainly indicates to the contrary. That a positive refusal to be inducted is necessary when induction is attempted,, seems clearly to be inferred from the quoted language of Justice Douglas, supra, in the Billings case.

“These regulations thus suggest that induction follows acceptance and is a separate process. * * * This makes unambiguous * * * that selectees were inducted Toy the ceremony and not before it.” [Emphasis supplied.] Billings v. Truesdell, supra, 321 U.S. page 554, 64 S.Ct. 744 , 88 L.Ed. 917 .