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617 F.Supp. 237
UNITED STATES of America, Plaintiff,
George M. HOUSE and Marion M. House, Defendants.
Nos. G85-23-01 CR, G85-23-02 CR.
United States District Court,
June 7, 1985.
George M. House and Marion M. House, in pro. per.
Lowell H. Becraft, Jr., Huntsville, Ala., for defendants.
David M. Brown and Dana Boente, Dept. of Justice, Washington,
D.C., for plaintiff.
OPINION ON MOTION TO RECONSIDER MOTION TO DISMISS
MILES, Chief Judge.
Defendants were indicted on March 7, 1985 on seven counts of tax evasion
in violation of 26 U.S.C. s 7201, and seven counts of failure to file income
tax returns in violation of 26 U.S.C. s 7203. Defendants filed a motion
dismiss the indictment on April 12, 1985, claiming that the sixteenth amendment
which grants Congress the power to lay taxes was never properly ratified,
and that as a result, all laws that have been passed pursuant to the authority
granted by the sixteenth amendment are null and void.
The Court denied defendants' motion to dismiss on April 30, 1985. On May 21,
1985, the date noticed for jury selection, defendants submitted a motion for
reconsideration of their motion to dismiss on the basis that the Court had
not had the opportunity to consider all the evidence on the subject of the
ratification of the sixteenth amendment. A hearing was held on Saturday, May
25, 1985. At that time defendants introduced the testimony of William Benson,
co-author of the book, The Law That Never Was (1985). Mr. Benson testified
that he had researched the legislative history of the sixteenth amendment and
had discovered that in the ratification process only four states had passed
resolutions that quoted absolutely and accurately the sixteenth amendment as
proposed by Congress. All the other states which had allegedly passed the amendment
had in fact passed resolutions that in one or more ways differed from the language
of the Congressional resolution. It is defendants' contention that Philander
Knox, then Secretary of State, was aware of the differences between the Congressional
and the state versions of the proposed amendment, but that he nevertheless
certified the amendment as having been ratified. This action, defendants contend,
was in violation of the law, and rendered void the certification process.
The matter of the ratification of the sixteenth amendment as set forth by
the defendants is one of first impression. It has never been before any appellate
court of our nation.
In support of their contentions defendants introduced copies of what Mr. Benson
testified were certified documents he had obtained from the National Archives
in Washington, D.C. and copies of certified documents he had obtained from
eight of the forty-eight states he had visited during his research. Over the
objection of the government, which had never had an opportunity to review the
voluminous documents, the Court agreed to provisionally admit the documents
into evidence. The documents illustrate that Secretary of State Philander Knox
was aware in 1913 that the resolutions passed by the various states were not
in every particular identical to the resolution adopted by Congress. Philander
Knox nevertheless certified that thirty-six states had ratified the amendment.
Some of the variances noted by Mr. Benson were the use of the word "sources" instead
of "source," the word "levy" instead of "lay," the
word "income" instead of "incomes," and differences in
capitalization and punctuation. Mr. Benson presented evidence that Minnesota
did not provide a copy of the resolution it passed, even though the state of
Wyoming was specifically required to do so. He also presented evidence that
the state of Kentucky had never properly ratified the sixteenth amendment.
Defendants have not, in either their initial motion or in their motion for
reconsideration, asserted any authority for their contention that state resolutions
are invalid if they do not exactly mirror in every particular the amendment
as proposed by Congress. Mr. Benson testified that he was aware of no constitutional
provision, no statute, and no cases which state that errors in punctuation
render an attempted ratification null and void. Defendants' only authority
for their assertion that the ratification attempts were invalid is found in
a Library of Congress Congressional Research Service publication dated April
18, 1980. That publication, according to defendant, states that the joint resolution
must contain in full the exact language of the proposed amendment, and that
it must contain a clear, unequivocal ratification clause. Defendants have offered
no evidence that such a publication is binding on this Court at the present
time, or on Philander Knox in 1913.
Neither has defendant offered any evidence that the variations of text affected
in any material way the meaning or intent of the sixteenth amendment. Defendants
have not shown the Court any evidence that a resolution containing the word "levy" means
anything different from a resolution containing the word "lay." Neither
have they shown any significance deriving from the addition of the letter "s" to
the word "source" or the deletion of the letter "s" from
the word "incomes." Defendants have not shown that the meaning of
the amendment was altered in any way by the omission of a comma or the failure
to capitalize a word. Defendants have merely pointed to technical variances
which may be of some historical interest, but which have no substantive effect
on the meaning of the sixteenth amendment.
In Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922), the
Supreme Court was faced with the contention that the ratifying resolutions
of Tennessee and West Virginia for the fifteenth amendment were inoperative
because they were adopted in violation of the rules of legislative procedure
prevailing in the respective states. The Court rejected this attack on the
ratification procedure, stating: As the legislatures of Tennessee and of West
Virginia had power to adopt the resolutions of ratification, official notice
to the Secretary, duly authenticated, that they had done so was conclusive
upon him, and, being certified to by his proclamation, is conclusive upon the
courts. Id. at 137, 42 S.Ct. at 218.
Philander Knox, Secretary of State in 1913, certified that the requisite number
of states had ratified the sixteenth amendment. This certification was not
made without knowledge of the minor discrepancies between the proposed amendment
and the resolutions of the various states, as evidenced by the February 15,
1913 memorandum from the Office of the Solicitor. In that memorandum Mr. Knox
was alerted to the errors in the resolutions passed by the legislatures of
the several states ratifying the sixteenth amendment. Nevertheless, the memorandum
recommended that he issue a declaration announcing the adoption of the sixteenth
amendment. The memorandum noted that errors in wording, capitalization and
punctuation had also been made in the resolutions of the states ratifying the
fourteenth and fifteenth amendments, but that those errors had been found to
be immaterial to the adoption of the amendments. The reasoning in this memorandum
from the Office of the Solicitor is as persuasive to this Court as it apparently
was to Secretary Knox: It should, moreover, be observed that it seems clearly
to have been the intention of the legislature in each and every case to accept
and ratify the 16th amendment as proposed by Congress. Again, the incorporation
of the terms of the proposed amendment in the ratifying resolution seems in
every case merely to have been by way of recitation. In no case has any legislature
signified in any way its deliberate intention to change the wording of the
proposed amendment. The errors appear in most cases to have been merely typographical
and incidental to an attempt to make an accurate quotation. Furthermore, under
the provisions of the Constitution a legislature is not authorized to alter
in any way the amendment proposed by Congress, the function of the legislature
consisting merely in the right to approve or disapprove the proposed amendment.
It, therefore, seems a necessary presumption, in the absence of no express
stipulation to the contrary, that a legislature did not intend to do something
that it had not the power to do, but rather that it intended to do something
that it had the power to do, namely, where its action has been affirmative,
to ratify the amendment proposed by Congress. Moreover, it could not be presumed
that by a mere change of wording probably inadvertent, the legislature had
intended to reject the amendment as proposed by Congress where all parts of
the resolution other than those merely reciting the proposed amendment had
set forth an affirmative action by the legislature. For these reasons it is
believed that the Secretary of State should in the present instance include
in his declaration announcing the adoption of the 16th amendment to the Constitution
the States referred to notwithstanding it appears that errors exist in the
certified copies of Resolutions passed by the Legislatures of those States
ratifying such amendment. February 15, 1913 Memorandum from the Office of the
Solicitor, pp. 15-16, quoted in The Law That Never Was, pp. 19-20.
Finally, the Court notes that the sixteenth amendment has been in existence
for over half a century and has been applied by the Supreme Court in hundreds
of cases. As stated in Maryland Petition Committee v. Johnson, 265 F.Supp.
823, 826 (D.Md.1967)), cert. denied, 393 U.S. 835, 89 S.Ct. 109, 21 L.Ed.2d
106 (1968), "While age and usage are not absolute barriers to judicial
inquiry, the courts have recognized them as persuasive indicia of validity."
In upholding the fifteenth amendment against constitutional challenge the
United States Supreme Court noted that it "has been recognized and acted
on for half a century." Leser v. Garnett, 258 U.S. 130, 136, 42 S.Ct.
217, 217, 66 L.Ed. 505 (1922). In United States v. Association of Citizens
Councils, 187 F.Supp. 846, 848 (W.D.La.1960), the constitutionality of the
fourteenth and fifteenth amendments was upheld "In the light of hundreds
of cases in which the United States Supreme Court has applied the amendments." Similarly,
in United States v. Gugel, 119 F.Supp. 897, 900 (E.D.Ky.1954), in rejecting
a constitutional attack on the fourteenth amendment, the Court found legal
significance in the fact that the fourteenth amendment had been recognized
and acted upon by the Supreme Court for more than three-quarters of a century.
The sixteenth amendment and the tax laws passed pursuant to it have been followed
by the courts for over half a century. They represent the recognized law of
Because the sixteenth amendment was duly certified by the Secretary of State,
because defendants have not alleged that the minor variations in capitalization,
punctuation and wording of the various state resolutions are materially different
in purpose or effect from the language of the congressional joint resolution
proposing adoption of the sixteenth amendment, and because the sixteenth amendment
has been recognized and acted upon since 1913, the Court rejects defendants'
argument that the sixteenth amendment is not a part of the United States Constitution.
Plaintiff's motion to dismiss is DENIED.
to Tax Protestor Exhibit