Opinion 89-61


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


TOWN SUPERVISOR -- Compensation (salary charged on townwide basis)
SUPERINTENDENT OF HIGHWAYS -- Compensation (salary charged on townwide basis)
TOWN CLERK -- Compensation (salary charged on townwide basis)
BUILDING INSPECTOR -- Compensation (salary in town charged only to area of town outside of villages)
VILLAGE JUSTICE -- Abolition (effect of)
MUNICIPAL FUNDS -- Part-Town charges (salaries of town officers)

TOWN LAW, §§29, 30, 32, 138: The salaries of the town supervisor, town clerk and town highway superintendent are chargeable to the entire area of the town, including villages. The salary of the town building inspector is chargeable only to the area of the town outside of any incorporated villages.
VILLAGE LAW, §3-301(2)(a); UNIFORM JUSTICE COURT ACT, §§201(b), 2001(1), 2101(i)(2); CRIMINAL PROCEDURE LAW, §100.55: A village may abolish the office of village justice by local law or resolution subject to permissive referendum. When the office of village justice does not exist, the town justice court for the town in which the village is located has jurisdiction of matters arising in the village.

You ask whether the salaries of the town supervisor, town clerk, town superintendent of highways and town building inspector are raised by taxes levied on the entire area of the town or only on the area of the town outside of any villages. You also ask whether the village may abolish the office of village justice, and if so, whether the town justice court would then have jurisdiction of matters arising within the village.

As a general rule, all moneys raised by real property taxes for town purposes must be raised by taxes levied on the whole area of the town, including the real property located in villages situated within the town, unless the State Legislature by statute requires or permits moneys raised for any given expenditure to be raised from taxes levied only on an unincorporated area of the town (1980 Opns St Comp No. 80-334, p 98; see Incorporated Village of Ardsley v Town of Greenburgh, 79 AD2d 628, 433 NYS2d 626, mod 55 NY2d 915, 449 NYS2d 27). Accordingly, the amount of money to be raised for town purposes must be levied on all taxable real property in the town, unless there is some provision of law which expressly permits or requires money to be expended for given purposes to be raised by levying taxes on an area encompassing less than the entire area of the town.

Town Law, §138 expressly provides that the salaries of the town building inspector and his or her deputy and assistant "shall be a charge upon the taxable property of that part of the town outside of any incorporated village and shall be assessed, levied and collected therefrom in the same manner as other town charges levied on property outside of villages." There is, however, no similar statutory requirement, nor any statutory authorization to charge the salaries of the town supervisor, clerk or superintendent of highways against only the town outside village area. Therefore, although the salary of the town building inspector is a charge upon the town outside village area only, the salaries of the supervisor, clerk and superintendent of highways are charged to the entire area of the town, including incorporated villages (1972 Opns St Comp No. 72-900, unreported).

With respect to the elimination of the office of village justice, we note that section 3-301(2)(a) of the Village Law provides that the office of village justice is optional. If a village which has established the office of village justice wishes to abolish the office, the board of trustees may abolish such office by local law or resolution subject to a permissive referendum (Village Law, §3-301[2][a]). However, the enactment abolishing the office takes effect only upon the expiration of the then current term of such office (Village Law, §3-301[2]; NY Const, art VI, §17[d]). When the office of village justice does not exist, then the town justice court for the town in which the village is located has jurisdiction of matters arising in the village (Uniform Justice Court Act, §§201[b], 2001[1], 2101[i][2]; Criminal Procedure Law, §100.55[4]). In determining whether to abolish the office of village justice, the village board may wish to consider that, as a general rule, fines imposed by a town justice court for criminal offenses and speeding violations occurring within the village are the property of the town (1987 Opns St Comp No. 87-86, p 127).

January 24, 1990
Ralph Runnalls, Mayor
Village of Otisville