UNITED STATES of America, Plaintiff,
v.
George M. HOUSE and Marion M. House, Defendants.
Nos. G85-23-01 CR, G85-23-02 CR.
United States District Court,
W.D. Michigan.
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.
(some text here omitted- see link for complete text)
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 the land.
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.
