Joseph Klein, Esq. Town Attorney, Babylon

You have asked whether the salaries of the town superintendent of highways and the deputy superintendent of highways are a town-wide charge or a charge against the area of the town outside of any incorporated villages.

The position of town superintendent of highways is a town office (Town Law, § 20). A town board may establish the office of deputy superintendent of highways, and thereafter its occupant is appointed by, and serves at the pleasure of the superintendent of highways (id., § 32[2]). During the absence of the superintendent of highways or if he is unable to act, the deputy is vested with all the powers and duties of the superintendent (ibid.).

Incorporated villages maintaining their own roads and streets are exempt from town taxes levied "for the repair and improvement of highways, including sluices, culverts and bridges having a span of less than five feet" (Highway Law, § 141[1], 277). Additionally, a town board may exempt the property within such a village from town taxes for the purchase and repair of certain machinery, for the removal of obstructions caused by snow and for other miscellaneous purposes (id., §§ 141[3] and [4], 277). However, we have found no authorization for the exemption of real property located in villages from taxes to pay for salaries of a town superintendent of highways or a deputy superintendent of highways (see § 138 of the Town Law, which provides such an exemption in relation to the salary and expenses of the building inspector). Exemptions from taxation may be granted only by the Legislature (NY Const, Art XVI, § 1). The superintendent of highways and the deputy superintendent are town officers, whose compensation is a general town charge to be assessed and levied against all nonexempt real property in the town (Town Law, § 116; Matter of Flike v Strobel, 252 A.D. 35 [4th Dept, 1937]).

We conclude that the salary expenses of the town superintendent of highways and the deputy superintendent are a general town charge to be assessed and levied against all nonexempt real property in the town.