
    The People of the State of New York ex rel. Climax Road Machine Company, Respondent, v. The Commissioner of Highways of the Town of Montgomery, Orange County, New York, and Others, Appellants.
    
      Road machine—purchase of,■ upon ike petition of taxpayers — peremptory mandamus directing the highway commissioner and overseers to make a list of persons chargeable with the tax therefor — what defenses are not available 'to them.
    
    Where a road machine is purchased upon the petition of the taxpayers in a highway district pursuant to the Highway Law (Laws of 1890, chap.' 568, as amd. by chap. 155 of the Laws of 1898), the vendor of- the machine is entitled to á peremptory writ of mandamus requiring the commissioner of highways and the overseers of highways in the district to perform the duty imposed upon them by the statute, viz., to make and deliver to the supervisor of the town ten days before the meeting of the hoard of supervisors “ a list of the persons in such district or districts who are named in the last assessment roll of the town and chargeable with the payment of a tax for such machine.”
    On such an application -the defendants cannot raise the question whether the taxpayers upon whose petition the machine was purchased constituted a majority of the taxpayers of the district representing more than one-half of the taxable property therein, where such fact is recited in the petition and is certified to by the town clerk as required by the statute.
    
      Semble, that the defendants cannot defeat the relator’s right to the writ by atilda vits alleging that the relator was guilty of fraudulent misrepresentations and that the machine was not to he purchased except after a trial, and that upon the trial the machine was rejected.
    Appeal by the defendants, the commissioner of highways of the town of Montgomery, Orange county, New York, and others, from an order of the Supreme Court, made at the Dutchess Comity Special Term and entered in the office of the clerk of the county of Orange on the 8th day of November, 1899, and from an order amending said order entered in said clerk’s office on the 17th day of November, 1899, directing the issuing of a peremptory writ of mandamus, directed to the defendants, requiring them to deliver to the supervisor of the town of Montgomery, Orange county, New- York, a list of persons in certain road districts who were named in the last assessment roll' of- said town and chargeable with the payment of a tax for a road machine.
    
      
      Lewis Hasbrouck and A. H. F. Seeger, for the appellants.
    
      W. L. Dickerson, for the respondent.
   Woodward, J. :

The orderly conduct of affairs in the townships must be seriously disturbed if mere ministerial officers are allowed to take upon themselves the responsibility of determining the validity of transactions, valid and regular upon their face, simply by refusing to act. In the matter now before us, a road machine was purchased of the relator upon the petition of the taxpayers of certain' road districts in the town of Montgomery, pursuant to the provisions of chapter 155 of the Laws of 1898, amending section 6 of the Highway Law {Laws of 1890, chap. 568) in reference to the purchase and repair of road machines. The statute makes it the duty of the commissioner of highways, with the assistance of the overseers of highways, “ in any road district which is to be charged with the payment for such machines after the completion of the assessment-roll, and ten days before the meeting of the board of supervisors of the county,” to “ make and deliver to the supervisor of such town a list of the persons in such district or districts who are. named in the last assessment-roll of the town and chargeable with the payment of a tax for such machine.” The defendants have neglected and refused to perform this purely ministerial, act, and upon the petition of the relator this court, at Special Term, has caused to issue a peremptory mandamus to compel them to act. The defendants presented affidavits to the court below, in which they alleged that .there were fraudulent misrepresentations on the part of the relator; that the machine was not to be purchased except after a trial; that upon the trial the machine was rejected, and that the petition required by the statute did not, in fact, contain the names of a majority of the taxpayers of one or more highway districts” in the town, or representing more than one-half of the taxable .property in such district or in each of such districts.

The statute says that this fact is to be ascertained by the last preceding assessment-roll and certified to as such by the town clerk of the town; ” and while it may be that the certificate of the town clerk is not final upon this question (the necessary number. of petitioners being essential to authorize any action on the part of the town officials), we are of opinion that where the petition recites, as in the matter now before us, that The undersigned, constituting a majority of the’taxpayers of highway districts Rq. 75,76,77, 78 of the .town of Montgomery * * * representing more than onedralf of the taxable property of such districts,” and the town clerk certifies that “ the signers of the within petition constitute a majority of the taxpayers in the several road machine districts therein mentioned and represents more than one-half of the taxable property in each of such districts as shown, by the last'preceding assessment roll,” it is not for mere ministerial officers to refuse to obey the provisions of the statute and to deny to the relator an opportunity to collect the amount of his claim represented by the written agreement. (People v. Martin, 58 Barb. 286, 288; Morris v. The People, 3 Den. 381, 395, and cases there cited.) In the former case the town board refused to issue a certificate of indebtedness, authorized by the town to be given as a bounty for soldiers under the provisions of the statute, upon the ground that the person was a non-resident of the United States, etc. The court, after calling attention to the fact that the act of issuing the certificate was merely ministerial, say: Their duty was to obey; not to litigate and qüestion the legality of the acts of the superior body from whom they received the authority and direction to act; their resistance is contumacious, and a mandamus is the proper remedy to enforce obedience.”

The writ flow under review does not direct "payment; it simply directs the defendants to perform the duties pointed out by the statute. If a good defense exists to the demand, it is to. be presumed that the officers of the town will find a way of protecting the taxpayers when the matter is reached, but the present duty of the defendants is to obey the statute and the writ of the court below.

The decision and order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  