DEPARTMENT OF STATE
OFFICE OF THE SOLICITOR
February 20, 1913.
The Department has received information from forty-two States with reference to the action taken by the Legislatures of those States on the Resolution of Congress proposing the 16th Amendment to the Constitution. It appears from this information that four States (Connecticut, New Hampshire, Rhode Island and Utah) have rejected the amendment. The remaining thirty-eight of the forty-two States have taken action purporting to ratify the amendment. However, certain irregularities exist in the action of several of these States to which your attention should be called before you announce the adoption of the 16th amendment.
1. The Legislature of Arkansas first acted adversely upon tho proposed amendment, but subsequently passed a resolution ratifying the same. In tho case of the 14th amendment, three States acted similarly and they were all three included in the declaration of the Secretary of State announcing the adoption of that amendment. For this reason and for the further reasons pointed out in the attached memorandum dated March 21, 1912, it is believed that the previous rejection by the Legislature of Arkansas should not prevent the inclusion of that state in the list of States ratifying the 16th amendment.
2. The Governor of the State of Arkansas attempted to veto the resolution passed by the Legislature of that State ratifying the proposed 16th amendment.
As is quite fully developed in the memorandum of April 20th, attached herewith, the Constitution provides that an amendment to the Constitution shall be ratified by the Legislatures of the States not by the law making body of the states. The latter might include participation by the Governors, whereas the former seems by implication clearly to exclude them. Indeed, it has been the uniform custom since the beginning of our government to regard the gubernatorial approval of legislative action in the matter of ratifying amendments as wholly unnecessary to the validity of the action of the legislatures. If the approval of the Governor is unnecessary to validate an affirmative action of the legislature it must be because the Governor has legally no concern with the performance by the legislature of this constitutional function; and if this be a sound deduction, then it must be that an attempted veto by the Governor of legislative action would likewise be of no effect whatever.
It is submitted that the above conclusion is sound in law and that, therefore, this action on the part of the Governor of Arkansas does not nullify the action of that State and that Arkansas should be included in the list of states ratifying the 16th Amendment.
3. The Kentucky Legislature passed a resolution ratifying the proposed 16th amendment before a copy of the resolution of Congress was transmitted to the Legislature by the Governor of the State. Moreover, when later the Governor received the certified copy of the Joint Resolution of Congress from the Secretary of State of the United States and transmitted the same to the Legislature, the latter body refused to take any further action in the matter. However, since there is no statute or law or Congressional action which might properly be regarded as requiring that
Legislatures should not act upon the Resolution of Congress proposing an amendment to the Constitution until a copy of the Resolution has been sent by the Secretary of State to the Governor and by him received and transmitted to the Legislature, and inasmuch as all the positive and specific requirements of the law governing the Batter are met whan the legislature acts upon the amendment, without regard to the questions of how the fact that an amendment had been proffered or how a knowledge of its terms had reached the legislature (see attached memorandum of March 21, 1912), it is believed that the Legislature of Kentucky has validly ratified the proposed 16th amendment.
4. In the certified copies of Resolutions on file in the Department passed by the Legislatures of the various States ratifying the proposed 16th amendment, it appears that in only four of these Resolutions has the 16th amendment as proposed by Congress been accurately and precisely quoted. The other thirty-three copies of Resolutions all contain errors either of punctuation, capitalization, or wording. The copies of Resolutions passed by twenty-two States contain errors of capitalization or punctuation, or both; copies of eleven others contain errors in wording, some of them substantial as will be seen from the attached memorandum of February 15, 1913, page 7.
On this point it should, however, be noted that a careful examination of the copies of Resolutions of the State Legislatures filed in the Department ratifying the 14th amendment to the Constitution shows in those Resolutions even more errors than those existing in the copies of Resolutions ratifying the proposed 16th amendment, and the errors themselves are equally serious. As, by announcing the ratification of the 14th amendment the Executive Branch of the Government ruled that these errors were immaterial to the adoption of the amendment, and further as this amendment has been repeatedly before the courts, and has been by them enforced, it is clear that the procedure in ratifying that amendment constitutes on this point a precedent which may be properly followed in proclaiming the adoption of the present amendment, - that is to say, that the Secretary of State may disregard the errors contained in the certified copies of the resolutions of legislatures acting affirmatively on the proposed amendment. 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 incident to an attempt to make an accurate quotation.
Furthermore, under the provisions of the Constitution a legislature is not authorised 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 an 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 (and set attached memorandum of February 15, 1913), 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.
5. The Department has not received a copy of the Resolution passed by the State of Minnesota, but the Secretary of the Governor of that State has officially notified the Department that the Legislature of the State has ratified the proposed 16th amendment. It is believed that this meets fully the requirement with reference to the receipt of "official notice" contained in Section 205 Revised Statutes, which provides,
"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 his become valid, to all intents and purposes, as a part of the Constitution of the United States."
and that Minnesota should be numbered with the States ratifying the aforesaid amendment.
6. It is recommended. therefore, that the Secretary issue his declaration announcing the adoption of the 16th amendment to the Constitution and to this end a draft declaration is herewith attached.