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16TH AMENDMENT

                                  617 F.Supp. 237

                      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.

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 to 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 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.

pdf/Ex00_House_617 F. Supp. 237.pdf
_______________________________________________________

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