
    The People ex rel. The Western Union Tel. Co., App’lt, v. Edward Dolan et al., Assesssors, etc., of Troy, Resp’ts. The People ex rel. The Western Union Tel. Co., App’lt, v. Michael A. Tierney et al., Assessors, Resp’ts. The Same v. The Same.
    
    
      (Court of Appeals,
    
    
      Filed April 14, 1891.)
    
    Taxes—Telegraph companies—Laws 1886, chap. 659.
    In assessing for taxation under Laws 1886, chap. 659, that part of a telegraph line lying within a certain town, the property is not to be regarded as a part of a whole nor as a complete telegraph line in operation. The amount is to be ascertained by taking the cost of the production of' those articles, such as poles, wires, instruments, arms, etc., which are in their nature personal property and capable of infinite production, and adding thereto such sums as the company may have paid or contracted to pay the owner of land for the privilege of placing its poles thereon.
    Appeals from judgments of the supreme court, general term, third department, affirming judgments of special term quashing writs of certiorari.
    
    
      Wager Swayne and Edwin A. King, for app’lts ; Wm. J. Roche, for resp’ts.
    
      
       Affirming 32 N. Y. State Rep., 599.
    
    
      
       Reversing Id., 605.
    
    
      
       Affirming Id., 608.
    
   Peckham, J.

We have lately held in People ex rel. West Shore Railroad Co. v. Adams, Trustee, etc., 36 N. Y. State Rep., 166, that a person, under the circumstances in which this relator stood, failing to appear before the board of assessors on what is known as grievance day, is guilty of such laches as to warrant the court in refusing to grant him any relief in the premises.

It sufficiently appears in this proceeding that the relator did thus fail to appear in the years 1885 and 1887.

This leaves only the assessment of 1886 open for inspection and review.

In the affidavit made on the part of the relator to procure the certiorari to review the assessment for that year, it is alleged that the assessment is erroneous and illegal by reason of over-valuation, and is unequal because made at a higher proportionate valuation than other real property on the roM. It is also alleged that the actual value of the property of the relator within the limits of the city of Troy, and all fixtures connected therewith, does not exceed $4,000. The writ of certiorari was duly issued, and the defendants made return thereto, and the issues were referred to a referee to take testimony, after which the matter came on for a hearing before the court at special term, which made various findings of fact, and upon the merits quashed the writ. Upon appeal to the general term that court affirmed the order of the special term, and from the affirmance the relator has appealed here. The court at special term found the value of the taxable projDerty of the defendant, and listed on the assessment roll of Troy for the year 1886, was at least $12,000.

If there be any evidence to support the finding, this court is concluded. But if it appear that in coming to that conclusion the courts below have included improper and illegal elements as a basis for valuation, then an error of law has been made which is reviewable here. Upon the hearing before the referee to take testimony, the counsel for the defendants, under the objection of the relator’s counsel, proved that the receipts of the relator’s Troy office were about $30,000. At another time before the court the counsel for the defendants objected to proof as to the cost of setting the ordinary sized pole in Troy, because, as counsel said, the property of the company was real estate, and must be valued as a whole. He also objected to evidence of the cost of freight in transporting relator’s poles to Troy, because it was not competent to reduce the value of the real estate in such manner. He made the same objection to proof of the wages of employes engaged in setting the poles.

The eleventh finding of fact by the court is that “ Except as appears from the assessment rolls in' said city, for the year 1886, there is no sufficient proof of the actual value of the relator's telegraph property as it was then established and in operation in the city of Troy as part of an extensive system for transmitting information and news by telegraph.”

In his opinion, at special term, the learned judge said: “In ascertaining the value of the real estate in question, it must be regarded as a part of a whole, of a complete telegraph line in operation. Its value, not as poles and wires simply, but for telegraph purposes, and its position with its connections and its productive capacity, are important if not controlling considerations.” At the general term in the opinion delivered the learned judge says upon this point: “ The cost of construction was by no means controlling as to the value of the relator’s property in Troy. That was only an integral part of a great system which extended over the entire state, and by itself might be of little value as compared with its value as a part of the entire system.” And in his brief before this court the learned counsel for the defendants, in justifying the valuation placed upon the relator’s property by the assessors and the court at special term, uses this language: “ In ascertaining the actual value of such property the assessors had the right and it was their duty to look beyond the cost of specific material at wholesale prices, and the cost of the labor, and to estimate such property not as an isolated piece of land, but in connection with its position, its incidents, and the business and profits to be derived therefrom.”

It is thus seen that it has been assumed as a fact by the courts below, and it is conceded by counsel, that the defendants pursued the method above mentioned of determining the value of the property of the relator in the city of Troy for purposes of local taxation. The question now to be decided is whether this method or system is valid.

For the purpose of fixing the manner of assessing what the legislature denominated “ certain real estate of telegraph companies,” it passed in the year 1881 an act (chap. 597 of the laws of that year) by which it was provided that telegraph coriipanies in the state should on a certain day in each year make a sworn statement showing the total length of their lines in each county, with the cost of construction and equipment thereof, and the assessors within each county were to assess for purposes of taxation such proportion of the cost of construction as the length of the lines in the district of the assessors bore to the total length of the lines in the county.

The legislature at the same session passsed the act (chap. 361) taxing the corporations therein named in the manner stated. Among such corporations are telegraph companies. The tax is declared to be one upon the corporate franchise or business of the corporation, is payable annually and is computed upo.n the par value of the capital stock, the percentage of tax depending upon the amount of dividends paid by the company, or if no dividends or a less amount than six per cent is paid, then the tax is to bo at the rate named in the statute upon a certain valuation cf the capital stock. In addition to this tax, and by the same act, the companies named therein are to pay to the state treasurer, as a further tax on their corporate franchises or business in this state, a certain tax upon the gross earnings in the state for the business therein. These two acts of the legislature should be construed together as in pari materia,. and in them is provided a system for the taxation of the property of telegraph companies, their franchises and business, exclusive of real estate, in the ordinary acceptation of that term, which might he owned by them. This system continued until 1886, when the legislature passed the act providing for the assessment of telegraph, telephone and electric light lines, and known as chap. 659 of the laws of that year. (This act should also be construed in connection with the act of 1881, chap. 361.) The important sections are one and two, and thev read as follows:

Section 1. The portion of any telegraph, telephone or electric light line in any town or ward in this state shall he assessed in such town or ward to the owner or person or coporation, or association in control thereof, in the manner provided by law for the assessment of lands of resident owners, and the same proceedings may be had upon such assessment and for the collection of any tax levied thereon.
Section 2. The word “ lines ” shall include the interest in the land on which the poles stand, the right or license to erect such poles on land, all poles, arms, insulators, wires and apparatus, instruments, or other thing connected with, or used as a part of such line in such town or ward, and belonging either to the owner of such line or "the person, corporation or association in control thereof.

This act superseded that of 1881, chap. 597.

Of course the land, that is, a house and lot or a vacant lot of ground owned by a telegraph company, is assessed to it in the same way it would be to any other owner. The act of 1886 does not allude to real estate or land strictly so-called. It refers to the telegraph “ line ” in the town or ward, and it is to be assessed in the manner provided by law for the assessment of lands of resident owners.

It being thus necessary to assess the lines as land, in the manner provided by law for the assessment of lands of resident owners, and the statute providing that the word “ lines ” must include among other items of value the interest in the land on which the poles stand and the right or license to erect such poles on land, it becomes necessary to inquire what is the manner provided by law for the assessment of the lands of resident owners. The Revised Statutes provide the manner. 1 R. S., 389, tit. 2, art. 1. The resident is to be assessed in the town or ward of his residence when the assessment is made for the lands owned by him within such town or ward, and the full value of such land is to be set down by the assessors in a separate column in their assessment roll. The assessors are to estimate and assess the land at its full and true value as they would appraise the same in payment of a just debt due from a solvent debtor. This is the manner provided by law for the assessment of lands of a resident owner.

What is the full and true value of this property of a telegraph company and how is it to be arrived at? To enact that certain things shall be regarded as and included in the term “ land ” or “ real estate,” does not in the least alter the essential nature or characteristics of the things which are to be thus called. To say that the word “ land,” when used in the law with reference to taxation, shall include not only the land itself but all telegraph lines, wires, poles, arms, insulators, apparatus and instruments, does not change their essential nature. They remain articles which are manufactured and which can be duplicated and supplied to any required extent at a certain known cost of production. The company may be able to procure the instruments, poles or wires at a less-cost than others, owing to their special advantages, but any one can procure such articles in all the quantities desired. The supply has always kept pace with the demand. The value of the poles, arms, insulators, apparatus, instruments and wires, would, therefore, consist of the cost of production, meaning by that term to include the value of the labor necessary to set them up and place them ready for use. If any of these articles were patented and the company did not own the patent, the price paid therefor would be their value, where they could be furnished indefinitely as desired. To call these things land does not make them land in their nature. As they are capable of indefinite reproduction, at a known cost, that cost must in the nature of the ■subject be their value for the purpose of the statute. And when that cost is shown by evidence which is uncontradicted and in no way doubtful or in fact doubted, then such cost must be deemed the value of those separate articles. But this is not all that shall be taxed under the provisions of the statute.

The interest in the land on which the poles stand and the right or license to erect such poles on land, are also to be included in the assessment of the property of the company. What is the nature oi; the interest in the land on which the poles stand? We have held in American Rapid Telegraph Company v. Hess, 36 N. Y. State Rep., 252, that a telegraph company organized under the act of 1848, and obtaining from it the right to construct its lines of telegraph upon the public streets or highways, acquired no absolute interest in the highway or the land, and that it was subject to the police power of the state, wielded through its municipal agencies, which could direct the lines to be taken down and placed in subways provided for them. This interest in the land in a street is in reality nothing more than a license granted by the state. In the language of the act it is an authon'ty to construct lines along and upon the public roads and highways. This license may also be revoked by legislative enactment. It was so stated in the case heretofore cited, American Rapid Tel. Co. v. Hess, and we feel strengthened in our views in that case by further reflection. - Therefore the value of the interest in the land in which a pole is placed in a public street by a telegraph company must be arrived at in consideration of the important fact that such interest is a mere license, and revocable at the pleasure of the legislature. It must also be observed that any other telegraph company organized under the general law maj- avail itself of the same license to enter upon the public streets. So there is really no title whatever in the company to the land thus used, and its only interest is subject to extinguishment by the legislature at any time. The-cost which the company incurred in obtaining ttie interest in the land in a public street would in this case, taking into consideration all the acts providing for the taxation of the company, be a correct criterion by which to judge of its value. As to the value of the right or license to erect the poles on land, also spoken of in the act, much the same reasoning is to be adopted; This light or license is one which any company may avail itself of if incorporated under the general act, and it costs nothing.

If the company, in placing its poles on the land of any individual, shall have paid' anything to the owner of the land for such use, or incurred any contractual liability to him, the amount paid, or the amount included in such liability, would be good evidence of the value of the right. There might be other elements entering into that question, but in this case all the poles seem to have been placed exclusively in the public streets. If the company should pay an abutting owner on a public street or highway for the use of "the interest, or any part of it, which the owner may have in .such street or highway, such payment would be part of the cost of obtaining the interest in the land and the right to therein erect the poles.

Taking the cost of the production of those articles which are in their nature personal property and capable of infinite production, as above described, and adding to that cost the value of the inter? est in the land on which the poles stand and tire value of the right to erect such poles on the land, upon the principles above indicated, and we have the total elements entering into the full and true value of the property of the company subject to taxation under the act of 1886 above cited. In the assessment for taxation under that act the property is not to be regarded as a part of a whole nor as a complete telegraph line in operation. Its value for telegraph purposes, and its position with its connections, and its productive capacity, are not considerations entering into the value of the property under the act last named. These considerations are foreign to its purpose. They largely enter into the question of the value of the business and the franchises of the company, and the value of such business and franchises is to be assessed under the act of 1881 already quoted. If it were not for that, act and its provisions for assessing the value of the business and franchises of telegraph companies for the purpose of taxation, it may be that courts would strive to give a wider meaning, if possible, to the language of the act of 1886 for the purpose of reaching these subjects of taxation. But when they are already taxed under a separate act, it cannot be supposed that the legislature intended to tax them again proportionately in every tax locality in the state.

It is obvious that the learned courts below, in arriving at their conclusions as to the proper facts to consider in deciding the question of the value of the property of the relator, viewed it as if such property were real estate in the narrow acceptation of the term, such as a piece of ground on which a house was erected or rails laid and which was owned ,by the relator in fee. The authorities cited in support of their proposition relate to railroads or bridges forming part of real estate owned in fee by the companies. In such cases it is held that in determining the value of such real estate its earning capacity is a most important feature, and that in assessing the real estate of a railroad it is to be assessed not as an isolated piece of property, but in connection with its position, its incidents and the business and profits to be derived therefrom; its productive capacity and its earnings are all to be considered, and the cost of the whole road is to be taken into account. People v. Barker, 48 N. Y., 77; People v. Hicks, 40 Hun, 600; 2 N. Y. State Rep., 294; People v. Weaver, 34 Hun, 322.

In this case under the statute of 1886, as to telegraph companies, different language is used and a different kind of property is intended to be reached for assessment. The poles, wires, instruments, arms, insulators and apparatus are included in the word lines in the statute, and they are to be assessed in the manner provided by law for assessing the lands of residents. The statute points out how that is to be done, and the property is to be assessed at its full value, together with the interest in the land on which the poles stand and the right to erect such poles on the land. This interest and this right differ wholly in character and nature from, the real estate owned in fee by the railroad or bridge company, and the rules for the valuation of that species of property are by no means appropriate for the purpose of arriving at the full value of the property of the telegraph company as enumerated in the statute of 1886. Most of this property, it is seen, is personal property and it is called land although the poles are placed in streets which do not belong to the company and in which the company has, as we have seen, no interest of a strictly-legal nature. The railroad or the bridge company on the contrary does own the fee of the real estate upon which it places its superstructure of rails or bridge, and the question arises what is the value of this real estate owned by the company upon which this superstructure has been placed and which is used for railroad or bridge purposes ? That question involves almost necessarily the inquiry as to the profitableness of the superstructure which has been placed thereon and which forms part and parcel of the real estate upon which it is laid, and this can only be answered by regarding the real estate as part of a whole portion of real estate devoted to the railroad or bridge purpose. The land, the portion of the earth on which the rails rest, is owned by the company, and the company to that extent has a monopoly. This land cannot be increased or reproduced. The structure having been placed on it becomes a part of it, and it must all be appraised at its full value as an integral part of a whole or completed instrument created for the purpose of realizing pecuniary profit. The cost of each particular portion of real estate, while one element to be considered for the purpose of determining the question of 'profits, cannot in the nature of the property be regarded as the one important consideration for the purpose of arriving at its full value for taxation.

Without continuing the comparison further it seems to me there is a clear, radical and important difference in the very nature of the propérties to be taxed, and which should lead to a different rule in the assessment of what is in fact real estate or earth in the one case, and personal property in the other, although called land.

A question as to the appealability of this order, as not involving $500, has been made by counsel for defendants. The counsel calls it a judgment of the general term. It is in truth an order, and it has been so held to be by us. People ex rel., etc., v. Keator, 101 N. Y., 601. We think the appeal is provided for by the act which gives the remedy by certiorari, and hence the point made by the counsel for the defendants is not well taken.

The orders of the general and special terms so fár as they relate to the assessment of 1886 should be reversed and that assessment should be set aside, with directions to the assessors to reassess the property of the corporation for the year 1886, in conformity with the principles laid down in this opinion, and the orders of the general term so far as they relate to the assessments of 1885 and 1887, should be affirmed. No costs to either party on any appeal.

All concur, except Finch and Gray, JJ., absent.  