Opn. No. ( 1981 )

William R. Small, Esq. Dupre' and Small, P.C. Ogdensburg, New York

You ask whether a town of the second class with a population of more than 300 people may reduce from two to one the number of justices serving the town.

Section 20(1)(b) of the Town Law provides for towns of the second class to have two justices of the peace. It also provides for a town of the second class having less than 300 inhabitants and having a taxable property valuation of less than $100,000 to have one justice of the peace. Section 60-a (2) of the Town Law authorizes a town by resolution subject to permissive referendum to reduce the number of town justices. We believe that section 60-a authorizes any town to reduce the number of its town justices from two to one (1979 Op Atty Gen [Inf] 248 and 1978 Op Atty Gen [Inf] 153).

You note in your letter that one of your town justices has resigned. The New York Constitution, Article 6, § 17 (d) mandates that town justices be chosen by the electors of the town for a period of four years from and including the first day of January after their election. This requirement precludes your town from eliminating the office of town justice presently vacant until the present four year term expires. The resignation created a vacancy in the office of town justice that must be filled for the balance of the term (Public Officers Law, §§ 30 [1], 42 [1]; Town Law, § 64 [5]).

We conclude that a town having two town justices, upon the expiration of the current four year term of one justice, may eliminate that position in accordance with section 60-a of the Town Law.