
    The People ex rel. The Western Union Telegraph Co., App’lt, v. Michael A. Terney et al., Assessors, Resp’ts.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Taxes — Telegbaph companies — Constitutional law — Laws' of 1886, chap. 659.
    Section 2 of chap. 659, Laws of 1886, anthorizing the assessment of “ the apparatus, instruments or other things connected with or used as part of the (telegraph) line in such town or ward” is not in violation of art. 1, § 8, subd. 3, of the Constitution of the'United States because affecting interstate commerce, at least this cannot be held where no proof is made that the company conducts business in other states and where the only proof of its relations with the United States is that an act of congress, IT. S. R S., fig 5263-5269 has made it possible for a private corporation incorporated in this state to enter, under certain restrictions, into business relations with the federal government.
    3. Same.
    The tax laid not being for a license or upon the right to do business, but being laid upon property within the state, is legal.
    $. Same — Cebtiobabi—Petition.
    If the relator intends to rely upon a defect in the proceedings, e. g., the competency of an officer to take an oath, he must under fi 1, chap. 269, Laws of 1880, state in his petition the grounds of the illegality; otherwise the defect is cured.
    Appeal from judgment dismissing and quashing writ of ■certiorari.
    
    
      King & King ( Wager Swayne and Brown & Wells, of counsel), for app’lt; B. A. Parmenter, for resp’ts.
   Mayham, J.

We have examined the questions of fact relied upon by the relator to establish the over-valuation or inequality in the assessment complained of on certiorari from assessments in Troy for the year 1885, which is substantially like the evidence in this case, and reached the conclusion that the evidence did not justify a reversal of the judgment upon the facts, and we discover no reason for reaching a different conclusion in this case upon the facts on this appeal. People ex rel. Wallkill Valley R. R. Co. v. Keator, 36 Hun, 592.

The question raised by the appeal in this case differs from those arising on the certiorari for 1885 in two particulars, which require consideration.

First. In this case the relator appeared before the assessors on “ grievance day ” and objected to the assessment, which was not done as we held in that case; and

Second. Chapter 659 of the Laws of 1886 modified or changed in some degree the law relating to the assessment of telegraph lines as it had theretofore existed.

On the day fixed by the public notice for hearing complaints by persons and corporations claiming to be aggrieved by the assessment of 1886, the relator appeared before them and presented an affidavit, in substance, that relator’s real property in Troy was worth not to exceed $4,000, and by their attorney requested the assessors to modify such assessment so as to conform to that amount, which they declined to do, and also called attention to the judgment setting aside the assessment of 1883 and ordering a reassessment, but it does not appear that any additional facts were submitted to such assessors on the trial of this case at special term; the same facts were relied upon as in the trial of the certiorari of 1885 upon the question of value and all the other questions except the additional fact of appearance on “ grievance day.”

It appears- that the assessment for 1886 was at $12,000, or for $300 more than for the year 1885; but, as we have held in that case, we see no sufficient reason for reversal for overvaluation.

It is. true that the assessment was slightly increased, but by §2 of chapter 659, of the Laws of 1886, in force at the time of the completion of the assessment for that year, “ the apparatus, instruments, or other things connected with or rised as part of the line in such town or ward ” were made liable to assessment as lands, and the proof shows that the relator had in Troy as apparatus, instruments, consisting of relays, sounders, switch boards, keys, batteries, electric light protectors, and other apparatus connected with their lines, not estimated in the estimate of value of material and cost of construction, which the evidence shows were in use, and which the trial court might well have regarded as sufficient to- justify the small increase in value over the previous year.

Hor were the respondents bound to adopt the statement filed by Brewer with the county treasurer.

It was substantially in the same form as the one filed by Peck in 1883, which was held by Peckham, Judge, not to be in conformity with chapter 597 of the Laws of 1881, under which they purport to have been filed, and that they are, therefore, null and void and of no effect in law.

That certificate, therefore, furnished no evidence upon which the assessors could legally act

But it is insisted by the relator that § 2, of chapter 659 of Laws of 1886, so far as the assessors acted under or by authority of the same, is in violation of article 1, § 8, of the Constitution of the United States, and therefore illegal and void, as it affects interstate commerce, and is therefore subject to the federal" jurisdiction.

It is conceded that relator is a corporation created under the laws of Hew York, and there is no proof in this case that its lines extend beyond the limits of the state of Hew York.

But it is insisted that this court should take judicial notice of the fact that the relator conducts an interstate business, and is the agent of the federal government for certain purposes, under the act of July 24, 1866. U. S. B. S., §§ 5263 to 5269.

We have not been cited to any authority holding that the court on appeal can take judicial notice of the existence or operation of telegraph lines of the relator outside of its territorial jurisdiction without proof of their existence.

While there are certain facts of a public nature of which the ■court may take judicial notice, still we understand the rule to be that they must be of a public nature, such as the political divisions of the country, public statutes, the de facto existence of independent nations and the existence of a state of war between such nations; but the fact that an act of congress has made it possible for a telegraph company, which is purely a private corporation, created under general laws, by which certain restrictions and limitations are imposed, to, under certain restrictions, establish business relations with the federal government, does not we think, without proof that such relations have been formed, justify the ■court in assuming that it extends beyond the limits of the state, and has assumed such relations with the United States as to deprive the state by which it was created and within which it is proved to have property liable to taxation from exercising its taxing powers.

It cannot therefore be claimed under the evidence in this case that the exercise of the taxing power upon the relator’s property in the city of Troy is an interference with the constitutional rights of the federal government to “ regulate commerce among the several states ” within art 1, § 8, subd. 8, of the federal constitution, especially as there was no finding by the court or request by the relator of the court to find thát the telegraph extended into other states and no evidence to establish that proposition.

The case of Leloup v. Port of Mobile, 127 U. S., 645, does not seem to be in point on that question. In that case the proof .showed that a large part of the relator’s business was interstate and international, and the tax imposed seems to be a license tax, and the question propounded by the court was “ can a state prohibit such company from doing such business, unless it will pay a tax and procure a license for such privilege ? ” and the court answers: “ If it can, it can exclude such companies and prohibit the transaction of such business altogether. We are not prepared to say that can be done.” That is not this case ; no license tax is .sought to be imposed.

The tax purports to be a tax upon the relator’s property, and not upon its right to do business, and to hold that a tax upon the pronerty of a corporation within the state, even if we assume that it is connected with lines in other states, was a tax upon interstate commerce, and prohibited by the federal constitution would, it seems to us, exempt from state taxation many of the great railroads and other corporations within this state, and thus practically -exonerate and relieve them from all taxation.

It was entirely competent for the legislature to authorize the taxation of “lines, including the interest inlands on which the poles stand, and all poles, arms, insulators, wires and apparatus, instruments or other things connected with or used as a part of such line in the town or ward.” Chap.- 659, Laws of 1886.

Uor do we think this assessment should be set aside, or this judgment be reversed, because of the official character of the officers before whom, the assessors swore to the assessment rolls either in 1885, or 1886, or 1887.

It is objected that the commissioner of deeds of the city of Troy, and the justice of the justices’ court of Troy, are not officers of the county of Rensselaer authorized by law to administer oaths. These were officers in the county of Rensselaer authorized by law to administer oaths. If this was not a technical compliance with the statute, we think the defect was cured in both instances by the relator failing to make the same one of the grounds of the certiorari, as § 1 of chap. 269 of Laws of 1880 requires the relator in his petition to specify the grounds of the illegality.

No such ground having been specified in the petition, we think the point cannot be made on this appeal.

On the whole case we see no error for which the judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.  