63. Admit these facts: the 27th Amendment was proposed by Congress on September 25, 1789. Some of the State legislatures ratifiedthe proposal on these dates: Maryland, on December 19, 1789; North Carolina on December 22, 1789; South Carolina on January 19,1790; Delaware on January 28, 1790; Vermont on November 3, 1791; and Virginia, on December 15, 1791. This number of States wasnot sufficient for ratification of this amendment. Then some 84 years later on May 6, 1873, Ohio ratified this amendment. Interest in thisamendment was rekindled when on March 6, 1978, Wyoming ratified this amendment. After this, other States ratified the amendment: Colorado on April 22, 1984; South Dakota on February 1985; New Hampshire on March 7, 1985; Arizona on April 3, 1985; Tennessee on May 28, 1985; Oklahoma on July 10, 1985; New Mexico on February 14, 1986; Indiana on February 24, 1986; Utah on February 25, 1986; Arkansas on March 13, 1987; Montana on March 17, 1987; Connecticut on May 13, 1987; Wisconsin on July 15, 1987; Georgia on February 2, 1988; West Virginia on March 10, 1988; Louisiana on July 7, 1988; Iowa on February 9, 1989; Idaho on March 23, 1989; Nevada on April 26, 1989; Alaska on May 6, 1989; Oregon on May 19, 1989; Minnesota on May 22, 1989; Texas on May 25, 1989; Kansas on April 5, 1990; Florida on May 31, 1990; North Dakota on May 25, 1991; Alabama on May 5, 1992; Missouri on May 5, 1992; Michigan on May 7, 1992; and New Jersey on May 7, 1992.
64. Admit that in the case of Dillon v. Gloss, 256 U.S. 368, 374-375 (1921), the Supreme Court concluded:
We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three- fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson 'that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.' That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal.
65. Admit that the date of September 25, 1789, when the 27th Amendment was first proposed, is "widely separated in time" from the date of March 6, 1978, when Wyoming ratified this amendment.
66. Admit that pursuant to the United States Constitution, Congress is authorized to impose two different types of taxes: direct taxes and indirect taxes.
67. Admit that the constitutionality of the 1894 income tax act was in question in the case of Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, aff. Re., 158 U.S. 601 (1895), and that in this case, the Supreme Court found that Congress could tax real and personal property only by means of an apportioned, direct tax. Finding that the income from real and personal property was part of the property itself, the Court concluded in this case that a federal income tax could tax such income only by means of an apportioned tax. Further finding that as this particular tax was not apportioned, it was unconstitutional.
68. Admit that for Congress to tax today real or personal property, the tax would have to be apportioned.
69. Admit that for Congress to tax income from real and personal property without the authority of the 16th Amendment, such taxes would have to be apportioned.
70. Admit that in 1913, the following law, Revised Statutes § 205, was in effect:
"Sec. 205. Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate the laws, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States."
71. Admit that Revised Statutes § 205 provided that "official notice" of a State's ratification of an amendment must be received at the State Department.
72. Admit that on or about July 31, 1909, Senate Joint Resolution 40 proposing the ratification of the 16th Amendment was deposited with the Department of State and the same was published at 36 Stat. 184, and that this resolution read as follows:
AMERICA AT THE FIRST SESSION
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which, when ratified by the legislatures of three-fourths of the several states, shall be valid to all intents and purposes as a part of the Constitution: "Article XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
J.C. CANNON, Speaker of the House of Representatives. J.S. SHERMAN, Vice-President of the United States, and President of the Senate.
CONCURRENT RESOLUTION Resolved by the Senate (the House of Representatives concurring), That the President of the United States be requested to transmit forthwith to the executives of the several States of the United States copies of the article of amendment proposed by Congress to the State legislatures to amend the Constitution of the United States, passed July twelfth, nineteen hundred and nine, respecting the power of Congress to lay and collect taxes on incomes, to the end that the said States may proceed to act upon the said article of amendment; and that he request the executive of each State that may ratify said amendment to transmit to the Secretary of State a certified copy of such ratification.
Secretary of the Senate
A. McDowell 74. Admit that not only did this resolution request that certified copies of favorable State ratification resolutions be sent to Washington, D.C., the States were expressly informed to do so by Secretary of State Philander Knox, who sent the following "form" letter to the governors of the 48 States then in the Union:
"Sir: "I have the honor to enclose a certified copy of a Resolution of Congress, entitled 'Joint Resolution Proposing an Amendment to the Constitution of the United States,' with the request that you cause the same to be submitted to the Legislature of your State for such action as may be had, and that a certified copy of such action be communicated to the Secretary of State, as required by Section 205, Revised Statutes of the United States. (See overleaf.)
P. C. Knox"
75. Admit the following facts: a. When California provided uncertified copies of its resolution to Secretary of State Philander Knox, Knox wrote the following to California Secretary of State Frank Jordan: "I have the honor to acknowledge the receipt of your letter of the 27th ultimo, transmitting a copy of the Joint Resolution of the California Legislature ratifying the proposed Amendment to the Constitution of the United States, and in reply thereto I have to request that you furnish a certified copy of the Resolution under the seal of the State, which is necessary in order to carry out the provisions of Section 205 of the Revised Statutes of the United States".
b. When Wyoming Governor Joseph Carey telegraphed Philander Knox news that the Wyoming legislature had ratified the 16th Amendment on February 3, 1913, Philander Knox telegraphed in return as follows: "Replying to your telegram of 3rd you are requested to furnish a certified copy of Wyoming's ratification of Income Tax Amendment so there may be no question as to the compliance with Section 205 of Revised Statutes."
76. Admit that on February 15, 1913, a State department attorney, J. Rueben Clarke, informed Secretary of State Philander Knox, in reference to the State of Minnesota, "the secretary of the Governor merely informed the Department that the state legislature had ratified the proposed amendment."
77. Admit that, in the official records deposited in the Archives of the United States, there is no certified copy of the resolution of the Minnesota legislature ratifying the 16th Amendment.
78. Admit that in the documents possessed by the Archives of the United States, there are no certified copies of the resolutions ratifying the 16th Amendment by California and Kentucky.
79. Admit that Mr. John Ashcroft is currently the Attorney General of the United States.
80. Admit that when Mr. Ashcroft was Governor of Missouri, the Missouri Supreme Court rendered the following decision in a case involving Mr. Ashcroft, that case being Ashcroft v. Blunt, 696 S.W.2d 329 (Mo. banc 1985), where the Missouri Supreme Court held:
The senate and the house must agree on the exact text of any bill before they may send it to the governor. There may not be the slightest variance. The exact bill passed by the houses must be presented to and signed by the governor before it may become law (laying aside as not presently material alternative procedure by which a bill may become law without the governor's signature.) The governor has no authority to sign into law a bill which varies in any respect from the bill passed by the houses.
81. Admit that during hearings regarding the ratification of the 16th Amendment in Massachusetts, Mr. Robert Luce made the following statement to the Massachusetts Committee on Federal Relations: "Question by the committee: Are we able to change it? Mr. Luce: No, you must either accept or reject it."
82. Admit that on February 11, 1910, Kentucky Governor Augustus Willson wrote a letter to the Kentucky House of Representatives wherein he stated as follows:
This resolution was adopted without jurisdiction of the joint resolution of the Congress of the United States which had not been transmitted to and was not before the General Assembly, and in this resolution the words 'on incomes' were left out of the resolution of the Congress, and if transmitted in this form would be void and would subject the Commonwealth to unpleasant comment and for these reasons and because a later resolution correcting the omission is reported to have passed both Houses, this resolution is returned to the House of Representatives without my approval.
83. Admit that no State may change the wording of an amendment proposed by Congress.
84. Admit that on February 15, 1913, J. Reuben Clarke, an attorney employed by the Department of State, drafted a memorandum to Secretary Knox wherein the following statements were made: "The resolutions passed by twenty-two states contain errors only of capitalization or punctuation, while those of eleven states contain errors in the wording" (page 7). "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."
85. Admit that the Sixteenth Amendment reads as follows: "Article XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
86. Admit that the Sixteenth Amendment does not read as follows: "Article 16: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and from any census or enumeration."
87. Admit that the Sixteenth Amendment does not read as follows: "Article XVI. Congress shall have power to lay and collect taxes on incomes from whatever source derived without apportionment among the several states, and without regard to census enumeration."
88. Admit that the Sixteenth Amendment does not read as follows: "Article XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or renumeration."
89. Admit that the Sixteenth Amendment does not read as follows: "Article XVI. The Congress shall have power to lay and collect taxes from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
90. Admit that the Sixteenth Amendment does not read as follows: "The Congress shall have power to levy and collect taxes on income from whatever sources derived without apportionment among the several States, and without regard to any census or enumeration, which amendment was approved on the ---- day of July, 1909."
91. Admit that the Sixteenth Amendment does not read as follows: "Article XVI. The Congress shall have power to lay and collect taxes on incomes from whatever source derived without apportionment among the several states, and without regard to any census of enumeration."
92. Admit that the Sixteenth Amendment does not read as follows: "Article XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, with-out apportionment among the several states, and without regard to any census of enumeration:"
93. Admit that the Sixteenth Amendment does not read as follows: "Article XVI. The congress shall have power to levy and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration, and did submit the same to the legislatures of the several states for ratification;"
94. Admit that state officials who prepare and send "official notice" of ratification of constitutional amendments to federal officials in Washington, D.C., do not have any authority to change the wording of the ratification resolution actually adopted by the State legislature.
95. Admit that the "income" tax at subtitle A of the Internal Revenue Code cannot be lawfully and constitutionally collected if the 16th Amendment is not a valid amendment to the Constitution of the United States.
96. Admit that the income taxes imposed by Subtitle A are not apportioned, so if the 16th Amendment was not ratified, the taxes imposed by Subtitle A are not constitutional under Pollock v. Farmers Loan & Trust, 158 U.S. 601 (1895).
97. Admit that in 1913, Congress passed the following income tax act:
A. Subdivision 1. That there shall be levied, assessed, collected and paid annually upon the entire net income arising or accruing from all sources in the preceding calendar year to every citizen of the United States, whether residing at home or abroad, and to every person residing in the United States, though not a citizen thereof, a tax of 1 per centum . . . and a like tax shall be assessed, levied, collected, and paid annually upon the entire net income from all property owned and of every business, trade, or profession carried on in the United States by persons residing elsewhere.
98. Admit that Mr. Brushaber challenged this income tax as being unconstitutional. (See Brushaber v. Union Pacific R.R. Co., 240 U.S. 1 (1915).)
99. Admit that in the Brushaber decision, the United States Supreme Court held that the tax on income was an excise tax.
100. Admit that in the Brushaber decision, the United States Supreme Court held that the purpose of the 16th Amendment was to prevent the income tax from being taken out of the class of excise taxes where it rightly belonged.
101. Admit that in the Brushaber decision, the United States Supreme Court discarded the notion that a direct tax could be relieved from apportionment, because to so hold would destroy the two great classifications of taxes.
102. Admit that the Union Pacific Railroad was a United States Corporation located in the Utah Territory.
103. Admit that the privilege of operating as a corporation can be taxed as an excise.
104. Admit that in Eisner v. Macomber, 252 U.S. 189, 205-206 (1920), the United States Supreme Court held a tax on income was a direct tax, but could be imposed without apportionment because the 16th Amendment gave Congress the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
105. Admit that the United States Supreme Court stated in Eisner:
a. The Sixteenth Amendment must be construed in connection with the taxing clauses of the original Constitution and the effect attributed to them before the Amendment was adopted. In Pollock v. Farmers' Loan and Trust Co., 158 U.S. 601, under the Act of August 27, 1894, c. 349, section 27, 28 Stat. 509, 553, it was held that taxes upon rents and profits of real property were in effect direct taxes upon the property from which such income arose, imposed by reason of ownership; and that Congress could not impose such taxes without apportioning them among the States according to population, as required by Art. 1, section 2, c1.3, and section 9, cl.4, of the original Constitution.
b. Afterwards, and evidently in recognition of the limitation upon the taxing power of Congress thus determined, the Sixteenth Amendment was adopted, in words lucidly expressing the object to be accomplished: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." As repeatedly held, this did not extend the taxing power to new subjects, but merely removed the necessity which otherwise might exist for an apportionment among the States of taxes laid on income.
c. A proper regard for its genesis, as well as its very clear language, requires also that this Amendment shall not be extended by loose construction, so as to repeal or modify, except as applied to income, those provisions of the Constitution that require an apportionment according to population for direct taxes upon property, real and personal. This limitation still has an appropriate and important function, and is not to be over ridden by Congress or disregarded by the courts.
d. In order, therefore, that the clauses cited from Article I of the Constitution may have proper force and effect, save only as modified by the Amendment, and that the latter also may have proper effect, it becomes essential to distinguish between what is and what is not "income" as the term is there used; and to apply the distinction, as cases arise, according to truth and substance, without regard to form. Congress cannot by any definition it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised.
106. Admit that Judges in the Courts of Appeal for the Second Circuit take the position that the income tax is an indirect tax.
107. Admit that Judges in the Courts of Appeal for the Fifth Circuit take the position that the income tax is a direct tax.
108. (Note: Question to be provided later) 109. Admit that when Supreme Court Justices, Judges of the Courts of Appeals, and Presidents of the United States are unable to determine what a law is, that law is ambiguous.
110. Admit that when a law is ambiguous, it is unconstitutional and cannot be enforced.
111. Admit that in 1894, the United States Constitution recognized two classes of taxes, direct taxes and indirect taxes.
112. Admit that in 1894, the United States Constitution, at Art. 1, Sec. 2, Clause 3 and Art. 1, Sec. 9, Clause 4, required apportionment of all direct taxes.
113. Admit that in 1894, the United States Constitution, at Art. 1, Sec. 8, Clause 1, required all indirect taxes to be uniform.
114. Admit that in 1894, no one doubted that an excise tax was an indirect tax as opposed to a direct tax.
115. Admit that in 1894 Congress passed the following income tax act:
Sec. 27. That from and after the first day of January, eighteen hundred and ninety-five, and until the first day of January, nineteen hundred, there shall be assessed, levied, collected, and paid annually upon the gains, profits, and income received in the preceding calendar year by every citizen of the United States, whether residing at home or abroad, and every person residing therein, whether said gains, profits, or income be derived from any kind of property rents, interest, dividends, or salaries, or from any profession, trade, employment, or vocation carried on in the United States or elsewhere, or from any other source whatever, a tax of two per centum on the amount so derived over and above four thousand dollars, and a like tax shall be levied, collected, and paid annually upon the gains, profits, and income from all property owned and of every business, trade, or profession carried on in the United States. And the tax herein provided for shall be assessed, by the Commissioner of Internal Revenue and collected, and paid upon the gains, profits and income for the year ending the thirty-first day of December next preceding the time for levying, collecting, and paying said Tax.
116. Admit that Mr. Pollock, a citizen of the State of Massachusetts, challenged the 1894 income tax on the grounds that the tax imposed was a direct tax that was not apportioned.
117. Admit that the majority of the justices of the United States Supreme Court found that the 1894 tax at Sec. 27 was a direct tax.
118. Admit that the minority of the justices of the United States Supreme Court in the Pollock case believed the 1894 tax at Sec. 27 was an indirect tax.
119. Admit that the United States Supreme Court held the 1894 income tax was unconstitutional as being in violation of the apportionment requirements for direct taxes.
120. Admit that in 1909, President Taft called a special session of Congress for the purpose of amending the apportionment requirement of income taxes.
121. Admit that during the congressional debate on the income tax amendment, it was stated that the income tax would not touch one hair of a working man's head.
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