The Secretary of State to the German Ambassador.
Washington, December 6, 1905.
Excellency: I have the honor to acknowledge the receipt of your note of the 29th ultimo in regard to a claim advanced by an American consul in Germany to exemption from the payment of the dog tax, under Article III of the convention between the United States and Germany of December 11, 1871. You ask whether a similar exemption is granted to German consuls in the United States.
In reply, I have the honor to say that the Department is disposed to question whether the charge for the issuance of the license to keep a dog is in fact a tax upon the dog (Hundesteuer). An American legal authority upon taxation writes:
Municipal corporations may levy a tax on the privilege of keeping dogs. Such a tax is not assessed by valuation, but is a specific assessment, to be regarded as a license. It can not be regarded as a tax on property within a statute exempting personal property from taxation. It is a special privilege tax; a special and peculiar regulation for the purpose of repressing mischief likely to be done by them to more valauble property and to persons. It is not a charge on property to raise revenue, but is in the nature of a license under a special police regulation, and is a constitutional exercise of the police power. (2 Desty on Taxation, pp. 1403, 1404.)
This view of the matter is backed by judicial decisions in the United States to the same effect.
If, as is generally the case, the so-called tax is in the nature of a license under a police regulation and not a municipal tax on the dog as property it would seem not to come within the exemption defined in the treaty between the United States and the German Empire of 1871.
As the state laws in this regard may vary, I am not able to give you an assurance that, the case arising, exemption from, the payment of the license fee for keeping a dog would be uniformly granted to German consuls in the United States, although it is possible that exemption might be accorded under the laws of some of the states.
If the laws of the constituent German states provide for exemption of foreign consuls from the payment of such a license tax upon evidence of reciprocity by the consul’s government this Department would be pleased to advise the authorities of any particular state or municipality in which the question might be presented as to the liability of a German consul therefor, that reciprocity in this respect would be appropriate; but the result of giving such advice could not be foreseen.
I should be glad to be informed of the decision of the German Government in this matter, in order that the interested consul may be instructed.
Accept, etc.,