#### People *ex rel.*Western Union Tel. Co. v. Terney *et al.,*Assessors.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

1. Constitutional Law—Taxation ox Telegbaph Lines.

Laws N. Y. 1886, c. 659, authorizing the taxation in the various towns and wards of the state of the portions of telegraph lines located in such towns and wards, including the interest in the land on which the poles stand, and all poles, insulators, wires, apparatus, etc., is not an interference with the right of the federal government to “regulate commerce among the several states,” within Const. U. 8. art. 1, § 8, subd. 8, though such lines extend into other states.

9. Evidence—Judicial Notice.

Judicial notice will not be taken, on appeal, of the existence or operation of telegraph lines of the relator outside of the state, nor that, under authority of an act of congress, such relator, a private corporation, has entered into certain business relations with the United States.

8. Taxation—Objections to Assessment—Waives.

Under Laws N. Y. 1880, o. 269, § 1, requiring relator on *certlora/ri*to a tax assessment to specify in the petition the grounds of the illegality of the tax, the question of whether the assessors swore to the assessment rolls before the right person is waived by failure to make it a ground of the *certiorari.*

Appeal from special term, Bensselaer county.

*Certiorari*on the relation of the Western Union Telegraph Company against Michael A. Terney and others, assessors of the city of Troy, to review an assessment. Erom a judgment for defendants, relator appeals.

Argued before Learned, P. J., and Landon and.MAYHAM, JJ.

*King <& King,*( *Wager Swayne*and *Brown <& Wells,*of counsel,) for relators and appellants. *R. A. Parmenter,*for respondents.

Mayham, J.

We have examined the questions of fact relied upon by the relator to establish the overvaluation or inequality in the assessment com*941plained 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 >ye discover no reason for reaching a different conclusion in this case upon the facts on this appeal. *People*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; (1) In this case the relator appeared before the assessors on “grievance day,’’ and objected to the assessment, which was not done, as we hold, in that case; and (2) 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 its attorn ey 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 18S3, 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 section 2, c. 659, Laws 1886, in force at the time of t e completion of the assessment for that year, “the apparatus, instruments, or other things connected with or used 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.

Nor 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, J., 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 section 2, c. 659, Laws 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 New York, and there is no proof in this case that its lines extend beyond the limits of the state of New 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, (Rev. St. U. S. §§ 5263-5269.) 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 fact's 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 *942nature, 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 article 1, § 8, subd. 3, of the federal constitution, especially as there was no finding by the court, or request by the relator of the court to find, that 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, 8 Sup. Ct. Rep. 1380, does not seem to be in point on this question. In that case the proof showed that a large part of the relator’s business was interstate and international, and the tax imposed seemed 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 property 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 in lands 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. Chapter 659, Laws 1886.

Nor 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 justice’s 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 section 1, c. 269, Laws 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.