Lawrence

(concurring).

I 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 *48 recognized 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.

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 *45 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…

(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…