
    The People of the State of New York ex rel. The New York and Queens County Railroad Company, Appellant, v. The State Board of Tax Commissioners, Respondent.
    
      Special franchise tax—failure to report within thirty days — it does not create a forfeiture of the right to the statutory writ of certiorari — a petition for the writ need not negative the forfeitu/re.
    
    The provision in section 43 of the Tax Law (Laws of 1896, chap. 908), as amended by chapter 713 of the Laws of 1899, the Special Franchise Tax Law, requiring a written report to the State Board of Tax Commissioners “ within thirty days after this section takes effect, or within thirty days after such special franchise is acquired,” when construed in connection with «the clause imposing a-forfeiture of “ the sum of one hundred dollars for every such failure, and the Additional sum of ten dollars for each day that such failure continues,” does not impose an absolute time limit of thirty days, for a failure to make a report within which time the party in default shall forfeit his right “to review the assessment by certiorari, as provided by section 45 of this chapter,” but permits the report, subject to the pecuniary penalty imposed, to be made at any time before a final assessment is made.
    'The forfeiture, if there has been such forfeiture, of the right to a review by the statutory writ of certiorari, is a matter of defense and need not be negatived in the petition for the writ of certiorari provided for in said section 45.
    Appeal by the relator, The Rew York and Queens County Railroad Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office" of the clerk of' the ■county of Albany on the 10th day of July, 1900, superseding and dismissing a writ of certiorari theretofore issued in the proceeding.
    The relator failed to make to the State Board of Tax Commissioners a written report within thirty days after the so-called Special Franchise Tax Law went into effect, and upon this ground, this writ of certiorari was, on motion at Special Term, dismissed.
    
      George W. Stephens, for the appellant. . .
    
      John C. Dames, Attorney-General, .and Henry B. Goman, Deputy Attorney-General, for the respondent.
   Kellogg, J.:

The disposition of this appeal must depend upon the construction to be placed upon section 43 of the Tax Law (Laws of 1896, chap. 908), as amended by chapter 712 of the Laws of 1899, commonly known as the Special Franchise Tax Law. The section reads as follows:

“ Every person, copartnership, association or corporation subject to taxation on a special franchise, shall, within thirty days after this section takes effect, or within thirty days after such special franchise is acquired, make a written report to the state board of tax commissioners containing a full description of every special franchise possessed or enjoyed by such person, copartnership, association or corporation, a copy of the special law, grant, ordinance or contract under which the same is held, or if possessed or en joyed under a general law, a reference to such law, a statement of any condition, obligation or burden imposed upon such special franchise, or under which the same is enjoyed, together with any other information relating to the value of such special franchise, required by the state board. The state board of tax commissioners may from time to time require a further or supplemental report from any such per-i son, copartnership, association or corporation, containing information and data upon such matters as it may specify. Every report required by this gection shall have annexed thereto the affidavit of the president, vice-president, secretary or' treasurer of the association or corporation, or one of the persons or one of the members of the copartnership making the same, to the effect that the statements contained thérein are true. Such board may prepare blanks to be used in making the reports required by this section. Every person, copartnership, association or corporation failing to make the report required by this section, or failing to make any special report required by the state board of tax commissioners within a reasonable time specified by it, shall forfeit to the people of the state the sum of one hundred dollars for every such failure, and the additional sum of ten dollars for each day that such failure continues, and shall not be entitled to review the assessment by certiorari, as provided by section forty-five of this chapter.”

The defendant contends that the language here used makes a time limit of thirty days in which a report may be furnished, and if not furnished within that time the whole penalty attaches, one part of which penalty is a forfeiture of the right “ to review the assessment by certiorari as provided by section forty-five of this chapter.” If this construction is to prevail, it follows that such right is lost forever. The penalty attaches to each 'annual assessment thereafter as firmly as it does, to the first assessment, for the report called for is not to be made annually like the assessments, but once only, and to-be made before October 1, 1899. I do not think the Legislature intended such a result, nor do 1 think.a reasonable construction of the law leads to that conclusion.

The sole function of the report was to put before the Tax Commissioners the necessary data to base a valuation or assessment upon. It required “a full'description of every special franchise possessed or enjoyed by such person * * * a copy of the special law, grant, ordinance or contract under which the same is held * * * a statement of any condition, obligation, or burden imposed upon such special franchise * * * together with any other information relating to the value of such special framchise required by the state board. * * * Such board may pre’pare blanks to be used in 'making the reports required by this section. Every person * * * failing to make the report required by this section, or failing to make any special report required by the state board of tax commissioners within a reasonable time specified by it, shall forfeit to the people of the state the sum of one hundred dollars for every such failure, and the additional sum of ten dollars for each day that suchfa/ihure co?itinues.”■ In these last lines of this section the intention of the Legislature is clearly manifest to permit the report to be furnished after the thirty days. Why else is this pressure put on of “ ten dollars for each day that such failure continues ? ” . This ten dollars a day does not run forever. It seems to me to be. plain that the Legislature intended to force the owner of a special franchise to furnish the Tax Commissioners the needed information for assessment purposes. It directed it to he furnished within a certain time — “ within thirty days after this section takes effect.” If not furnished within that time the owner is subjected to a penalty of $100, and so long as he continues negligent or contumacious thereafter, is subjected to a further penalty of $10 daily until the' information is given to the tax board, and if not given before the final assessment is made, then the fight-to review that assessment, through the statutory certiorari, is also forfeited. The punishment is not everlasting; the offense is purgative.

The defendant further contends that the furnishing of the report to the tax board before October 1, 1899, was not only a condition precedent to the right to review the assessment by certiorari, but performance of - that condition should have been alleged in the petition.

In this I think the defendant is wrong. The petition sets forth all the necessary facts to give the court jurisdiction and to authorize a writ either at common law or under the statute. The petition complies substantially with all the requirements of article 11 (§ 250) of the Tax Law, and with section 45 of the Special Franchise Law. It is true the petition does not state that the relator has not forfeited the rights those enactments have conferred upon all parties conceiving themselves to be aggrieved by assessments, nor under the rules of practice do I think the relator is required to so state. Section 45 of the Special Franchise Law (Chap. 712, Laws of 1899) provides: “An assessment of a special franchise by the state board of tax commissioners may be reviewed in the manner prescribed by article eleven of this chapter, and that article applies, so far as practicable, to such an assessment, in the same manner and with the same force and effect as if the assessment had been made by local assessors.”.

Article 11 (§ 250 of The Tax Law) provides: “Any person assessed upon any assessment roll, claiming to be aggrieved by. any assessment for property therein, may present to the Supreme Court a petition,” etc. The necessary facts to be alleged in such petition are here prescribed. The remedy is offered without condition- to all. It does not say to “all who shall prove that they have complied with the requirements of section 43 as to reports.” It is plain by the language used that those who have forfeited the right to this- remedy are exceptions, and that any person has forfeited the right cannot be presumed ; no petitioner in such case need allege that he is not the exception. This is not similar to the case of Reining v. City of Buffalo (102 N. Y. 308). There the prohibition as to the bringing of an action ran against every one, and Rugek,' Ch. J., said :

“ It attaches to all actions whatsoever, and by force of the statute becomes an essential part of the cause of action to be alleged and proved as any other material fact.”

In Lukens Iron & Steel Co. v. Payne (13 App. Div. 15) Justice Lardón declares the prosier practice, rising this language: “ We think that as it is necessary for the plaintiff to allege the conditions conferring jurisdiction against foreign- corporations, so it is necéssary for the defendants to allege the exceptions, if the plaintiff does not state them, which exclude foreign corporations from invoking our jurisdiction against their domestic debtors.” •

The forfeiture of an admitted right, if there has been a forfeiture, is clearly a matter of defense. The petition of this relator, instead of admitting a- forfeiture, or stating facts from which a forfeiture can be implied, states facts from which it may properly be presumed that the relator furnished to the tax board prior to the final assessment all the information required to be furnished by section 43, and should the return to the writ establish that the relator had done substantially that, whether it be called a special report or by any other name, I see no reason for confining the relator to the practice in writs at common law,of reviewing the assessment on the return alone. The statutory provisions for this class of cases provide a change in procedure after a return to the writ has been made, giving to the court power to reach facts which the return may not disclose, and giving also an enlarged remedial authority. Wliether the relator has in fact forfeited the right to invoke these statutory provisions can be best determined after a return is made to the writ.

The order of the Special Term superseding and dismissing the writ should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  