Mr. de Azpiroz to Mr. Hay.
Washington, D. C., January 24, 1902.
Most Excellent Sir: In August, 1901, Mr. A. H. d’Alemberte, tax collector of Escambia County, State of Florida, gave notice to Dr. Don Abraham Díaz, consul of Mexico at Pensacola, that he would have to pay poll and other taxes on his personal property for his private use for the year 1900.
The consul applied to this embassy and reported that such taxes had never been demanded of foreign consular officers in that county; that he knew positively that the vice-consuls of England and Norway, and the former’s predecessor who had lived there many years, were exempt therefrom, and that he (the informant) being a Mexican citizen and consul missus, not engaged in manufacture or commerce, considered himself exempt from personal taxation, in the same manner as are those of this country in Mexico placed under similar circumstances.
Upon examining the question I replied to Dr. Díaz that he could claim exemption from personal taxation and taxes on his personal property, and exhibit to the tax collector the exequatur by which His Excellency the President of the United States authorized him to discharge his consular duties, drawing especial attention to the clause by which he was accorded the rights and privileges enjoyed by the consular officers of the most favored nations, among whom I mentioned to him those of Austria-Hungary, Belgium, Italy, Roumania, and Servia. These officers, by virtue of the treaties existing between their respective countries and the United States of America, enjoy the privilege of not paying personal taxes, direct or indirect, Federal, State, or municipal, when they are citizens of the States by which they were appointed and do not engage in manufacturing or trading business. As Dr. Díaz possessed all these qualifications, I advised him to bring forward all the said points, and, if the tax collector should nevertheless insist upon his demand, to pay the taxes under protest and report to me.
Under date of the 3d instant the consul again reported to me that he had followed my instructions, and that upon being a second time requested to pay, after his reclamation had been rejected on the ground that there was no existing treaty between the United States and Mexico [Page 793] to support it, he paid under protest the sum to which the two personal taxes amounted.
While laying the matter before you, together with the grounds for the opinion I gave to the consul of Mexico at Pensacola, I deem it expedient to supplement them with the following remarks:
The lack of a consular convention between Mexico and the United States, similar to those which concede favors to the consular officers of Austria, Belgium, Italy, and other States, affords no valid argument in support of the denial to the Mexican consul at Pensacola of the treatment accorded to the said officers, for the latter being the most favored, the rights and privileges that they enjoy are to be extended to him by virtue of his exequatur, which grants them to him. If it were otherwise, the concession would be without practical effect. It is absolute and for that reason is not open to the interpretation that it is subject to the condition of the existence of a treaty, unless there be the unwarrantable intent to nullify the concession.
But even though it should obtain, this interpretation ought not to come from an official of the State of Florida, but solely from the Chief Magistrate who issued the exequatur, under the exclusive powers conferred upon him by the laws of the Union to authorize the foreign consular officers to discharge their duties.
On the other hand, all consuls, vice-consuls, and public consular agents, subjects of their respective governments, sent and salaried by them, and who do not, in the Mexican Republic, engage, directly or indirectly, in any kind of industrial or commercial pursuit, are exempt from all taxes and assessments. So does prescribe the Mexican act that lays down the law in regard to commercial agents residing in the Territory of the nation, and the consuls of the United States in Mexico receive its benefit without the guaranty of an international treaty. Now, then, reciprocity in this respect is the rule that governs the conduct of your Excellency’s Government, according to the declaration made in 1851 by President Fillmore in his second annual message, as follows:
What is due to our own public functionaries residing in foreign nations is exactly the measure of what is due to the functionaries of other governments residing here.
It is, therefore, indisputable that the Mexican consular agents residing in any of the districts of the United States have a right to claim the exemption from personal taxation granted by the law of my country, without there being required a special convention between the two Republics, and even though there should have been omitted from the exequatur of the commissions by which those officers are accredited the clause conferring upon them the rights and privileges of similar agents of the most favored nations.
This treatment the Mexican consul at Pensacola has asked of the tax collector of Escambia County, and it has been denied to him.
On submitting the point in dispute between the two functionaries to your enlightened examination, I am confident that you will decide in the sense dictated by justice and in the manner befitting the friendly relations happily existing between our two Republics.
I have, etc.,