Untitled Texas Attorney General Opinion ( 1943 )


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  •       OFFICE OF THE ATTORNEY GENERAL OF TEXAS
    AUSTIN
    Honorable George B. Shepparb
    Comptroller of Pub110 Aooounts
    Auatln, Texas
    Dear sirr
    to the Stat
    tares.  ThI
    s not heretofore  been oonaldered
    by this department, we deemed
    ore rintuy rendering our oplnlon
    epartment at WashIngton It there
    between our government and the RepublIo
    s us, however, that property owned by
    our government and used for embassy and oonsular purposea In
    Yexloo City is not taxed by the Mexloaa Government.       With
    his letter  he ha8 kindly submitted copies of oplnlons or the
    Attorneys General from the States of Callfornla,      Miohlgan and
    Massaohusetta oonelderlng   this question,  all hole      property
    or foreign governments In their respeotlve     states used ror
    goveramental purposes free from taxes.     We wish to arrknowledge
    the kindness of Yr. Haohorth    and his valuable aid to us In
    the oonelderatlon  or this questlon.
    Honorable   George R. Sheppard,    Page 2
    0~ inveetigation    has extewled beyond the lawa
    0r our own State,  an&  we  hare not found a oa89 paseing
    dIraotly  upon tha question oontalned In YOU letter.      Re
    belleve,  however, that ruiriqient   analogy oxlets to the
    easea we haye round to support .the OOnOlUlOn we haYe
    reao hod.
    1t may be oonoeded that the language 0r the.
    Coaatltution     is broad eoougb to Inelude all property rlthln
    the jurlsdlotlaa     of this    State as subjeot to taxation unlesr
    lxpramly exsapted br the Constitution          and statutes   of this
    State, and that the provision        In our Constitution    WhIoh
    erempta pub110 property usad ror publlo purpoeea applier
    only to pIWOrty owned by the State or some polltfaal            dIYI-
    aioa thereor.,     Thle being true, the question Is: ‘Did the
    tramers of the Constitution        Intend to tax the property    of
    a ioreign rovereignty        under the oiroumetsnces involved here?
    AII stated In the OaBe of Prenoh Republlo Y. Board
    of Supervisors    or Jeiieraon County et al., by the Court or
    Appeals or Kentuoky, 252 9. W. 124.1
    “In oonetruing the taxation provIsIon      or our
    Constltutioa,    we a;rii   be oareiul not to overlook the
    .:. !: ~,:aaturo or a tar.           an enforosd oontrlbution   or
    money or other property assessed      ln aooordanoe with
    some reasonable rule or apportionment by authority        0r
    the eoverelgn state on persons oi property within its
    jurisdlotioh    for the purpose or defraying the pub110
    expense.”     26 R. C. S.,page  13
    We take the liberty   to quote Word this ease rather
    rullg, aa it more nearly expresses the reaaona for our holding
    than any other ease we hare round.      In this ease the State or
    Kentuoky sought to tax a large quantity of tobaooo that had
    been purahased by the Prenoh Gorernaent for fmbsequrnt export
    to the Republlo of yranoe.     ThO Frezioh Government re.sIsted
    the assersment and oolleotlon    or thle tax by the State or
    Kentuolq-, and the oourt ln passing upon the qulatlon raid:
    *It is oonoeded that the Frenoh Republlo is not
    suable   In our oourts without its oonsent, and that the
    tobaooo lteelt    oannot be subjeoted to the payment or the tax.
    Therefore,    ii the assessment be upheld, we have no way or
    oolleoting    the tax.   We can neither negotiate    nor declare
    war.    All  that we  oan do  Ia  to ask the State  Department   to
    open international     negotiations,   or persuade Congress to
    deolare war, for the purpose ot oolleotiag        the tax, thus
    Honorable   George &Sheppard,   Page 3
    presenting a etate   of hilpleaaneaa  wholly   at varlanoe
    with the sovereign   right oi taxation.
    “Ia the next plaoe,.taxea    are Imposed on the
    theory that the taxpayer should pay a portion or the
    expense Inourred In the proteotion      of hle person or
    property,   and a8 applied to ordinary peraonmr.and
    oorporatlona   this prlnolple    seem8 eminantly fair and
    @at; but aa applied to independent natlona It Is
    olearly oppoeed to the apirlt of InternatIonal       amity,
    whioh should prompt every n&tIon to guard and proteot
    the personal property of all other nations that happens
    to be temporarily within Its jurIadIotIon,      without
    levying a tribute   for that purpose.
    “Another oonalderatlon  not to be overlooked   la
    that the abeolute sovereignty   oi every nation within
    Its own terrltorg  does not alwaya extend to roreign
    natlcne,  but la subjeot to oertain limitations    aano-
    tioned by the law of nations and lmpoaed by its own
    oonaent.   As said by Xr. Chief Yustioe  Marshall In
    the Sohooner Exohange v. MoFaddon et al, 7 Cranoh 116,
    
    3 L. Ed. 287
    :
    *)A nation would justly be oonaidered as violating
    Its ralth,   although that ralth might not be expreealy
    plighted,   which should suddenly and without previous
    notioe exeroIae its terrItorIal   powers In a m6nner not
    oonaonant to the usages and received obllgatbone    of the
    oIrIlIzed   world.’
    *Henoe, Ir one nation enterakthe territory   of
    another with Its oonaent, ior the purpose oi mutual
    Interoourae,   it does so with the Implied understanding
    that it doe8 not intend to degrade Its dignity by plao-
    lag Itself   or Its sovereign rights wlthln the jurladlo-
    tlon of the other, and we know of nothing more oaloulated
    to degrade the dignity or an Independent nation than for
    another to attempt to exeroIae over It the sovereign
    right of taxation.
    Eonorable   George H. Sheppard,   Page   4
    ..
    Woreover’, the provisions  of     our Constitution
    rhould be oonatrued In the light       oi history  and the
    unliorm dealing or one power with       another.   So tar
    aa we are aware, no state and no       nation, at the time
    or the adoption oi our Conrtltutlon,       had ever assumed
    the right to tax the peraoxial property      oi a qorelgn
    power that happened to be temporarl3q wlthIn``lt8
    jurladiotIon.      Indeed, there were ntmeroua treaties
    exempting ordlnaq      oonrula from pareonal taxation,
    unless they were oitlaena      and owned real estate,   or
    were engaged in bualneaa where the ooneulate was
    Ituated.     United States Oonaular Regulations     1696,
    8 63; 7 0~s. Attys.      Gen. 16. Therefore    we are oon-
    etralned to hold that the framers of our Conatltutlon
    did not Intend to inaugurate a policy so opposed to
    International    usage, so lnoompatlble with the dignity
    or Independent nations,      and so likely to result In
    the loss oi the good will or those whose frIendahIp
    we hare always prleed.       As the property was not taxable,
    It should not have been aaaeaaed.
    9. . .”
    It Is true that this oaae Involved perronal property,
    but we do not regard this raot au.rrIoIant to ohaage the reason
    underlying the exemption as expressed in this oaae as It would
    apply to real property.
    It la turthar noted that thla oaae advanaea as one
    reason ror the exemption the lmpraotloablllty   ot oolleotlng
    taxes by one government from another aoverelgn government
    by any legal ~prooeaa. True, this does within itself    afford
    a reason ror the exemption, but we ara lmpreaeed with the
    broader prinolplee   upon whloh the oourt baaed its deolrlon
    namely, the obaervanoe and malatenanoe oi smiabla lnternat i onal
    . relatlona.
    We take  It that regardless   of the various ways anrule
    of Iatematlonal    law may arise,   one of the moat aatIaraotory
    methods would be by the mutual reoognltlon      of Its exIatenoe bp-
    tween the governments oonoemed.        Slnoe the Republlo of Mexico
    has aooorded rreedom from taxation to the property oROur
    government used for fta embaaalea an4 oonaular oiiIoeC~ln
    Kexloo Olty,    t%Ia alone would In our opinion afford the moat
    Ronorablb    George   ii.   Fheppard,   Page   5
    I                                 \
    ,’
    lau4able rosson Par the exemption from tcxatlc,n by our State
    an4 the various politioal   sub4lvlslons   thereof of the property
    or the Yexloan Govera#.nt looate      in our state US44 for 0fri0Q6
    an4 bouslng of its 4Iploaatlo   rapressntatlver.    We should   reoog-
    nlzr this as a binding obligation     upon us under 1aternatlons.l
    usagb an4 international   law.  The Paquets Ravana, 
    175 U. S. 677
    , 700; Sklrlotaa v. State of Plorlda, 
    313 U. S. 69
    ,.
    72 L. Ed. 824
    , 827.
    In the oaee of Hasbn v. Intercolonial  Railway, 197
    Uass. 349, mentlog 1s made of the theory OS Impraotlcablllty
    of one sovereign ‘&bate enrorolng~ the oolleotlon of tares
    ag&Inst another/stating:
    ;
    “. . . Buti the rule upon whioh these decisions              are
    base4 goes muoh deepQr than a refusal to assert mere
    judlolal     jurls4lotIon.      It Involves a waiver of all
    sovereign     power.     Ii a nation   permits a rorelgn sovereign
    or hls orflolal       represertatfves     to enter the territory
    of that nation or to hold property thereln,               it lmplle4ly
    oonsents that all sovereign rights of suoh foreign nation
    shall be recognized.         One or these essential         rights is
    Independenoe of every other sovereign.               For the Coq;lon-
    wealth to Impose a tax upon the property of any sovereign
    within Its borders would not only be exeroislng                 a jurls-
    diotlon     to interfere    wlth the rights of that sovereign
    In suoh property,        but would be taking the further step              .
    of attem.ptIng to Impose an obligation             upon such sovereign
    to oontrlbute       towards the publio expenses of the Com~non-
    wealth.      It would be asserting       s JurIsdiotIoW mcro fmda-
    mantel    in. character,    6ver1,  then  judicial    jurlablotion.
    #        In my julignnent, the tax statutes of the Cosc;onw&alth must
    *_         be read In the light of these prlnolples,              and when so
    read, they roust be oonstrued ae not asserting               any poser
    to tax which Is ct variance with them.”
    We find the following In the case of firin_ya v.’
    Ughtboeta,     11 fillan 157, li%:
    “The jurle4IotIon     of eaoh independent nat Ion is
    neoessarIly.excluslve       and ubcolutc wlthin its own terrl-
    tory.    However, by oommon consent among clvlllzed        nations,
    a oonsent largely      implled from oon%on usaga an4 the neoes-
    sltles   of mutuel lnteroourse,      that absolute jurisdiction
    Honorable George Ht Sheppard,    Page 6
    .
    Is not assQrtQ4 against torrlgn sovereigns      or their
    eorerrlgn rights. Whether this be aalled a rule or
    oomlty or of law, it has beoome a settled prlnolple
    ot International     relations  rhloh has long been reoog-
    nIzQ4 by the SUprQmQCourt or the United States.
    SOhOOn6r Exohan&Q v. fl*Fabdon, 7 Cranoh, ~6.        It Is
    well settled    that the oourts ot one nation will aesert
    no jurlsdlotion     eIthQr against the person ort8hQ..
    property ot a foreign       sovereign. Brlggs v. Lightboats,
    11 Allan, 157, 184.”
    It Is apparent from the roregolng that.wb are
    of the opinion that property situatpd In this StatQ, whioh
    ia owned and used by the Republlo of Mexioo for govern-
    mental purposes, whether real or personal,   Is not subjrot
    to a4 valoren taxes by this State or any polltloal    sub-
    division thQrQOi, and you.are  aooordingly  so advised.
    .   Yours very truly
    ATTORNEY
    GENE!W OF TEXAS
    BY
    

Document Info

Docket Number: O-5031

Judges: Gerald Mann

Filed Date: 7/2/1943

Precedential Status: Precedential

Modified Date: 2/18/2017