ARTICLE IV. Town Superintendent; General Powers and Dutics. Section 40. Election of town superintendent of highways. 41. Submission of proposition for appointment of town superintendent. 42. Term of office of town superintendent. 43. Vacancies; office of highway commissioner abolished. 44. Deputy town superintendent. 45. Compensation of town superintendent and deputy. 45-a. Compensation of town superintendents in certain counties adjoining cities of the first class. 46. Removal of town superintendent. 47. General powers and duties of town superintendent. 48. Contracts for the construction of town highways. 49. Machinery, tools and implements. 50. Town superintendent may hire machinery. 51. Purchase of gravel and stone. 52. Obstructions and their removal. 53 Removal of obstructions caused by snow and ice on state and county highways. 53a. Temporary obstruction of highways. 54. Removal of noxious weeds and brush within the highways, and of obstructions caused by snow. 55. Assessment of cost against owners and occupants. 56. Wire fences to prevent snow blockades. 57. Entry upon lands by town superintendent. 58. Damages to owners of lands. 59. Damages for change of grade. 59a. Interest on damages for change of grade. 60. Drainage, sewer and water pipes, cattle passes or other crossings in highways. 61. Trees and sidewalks. 62. Expenditures for sidewalks. 63. Allowance for shade trees. 64. Custody of shade trees. 65. Compensation for watering troughs. 66. Credit on private road. 67. Neglect or refusal to prosecute. 68. Erection of guide boards. 69. Measurement of highways and report. 70. Application for service of prisoners. 71. Construction and repair of approaches to private lands. 72. Unsafe toll bridge. 73. Actions for injuries to highways. 74. Liability of towns for defective highways. 75. Action by town against superintendent. 76. Audit of damages without action. 77. Closing highways for repair or construction. Section 78. Adoption of labor system for removing snow. 79. Assessment of labor for the removal of snow. 80. Lists of persons assessed for removal of snow. 81. District foremen; return and levy of unworked tax. 82. Appeals by nonresident; certain assessments to be separate; tenant may deduct assessment. § 40. Election of town superintendent of highways. At the biennial town meeting held next after the taking effect of this chapter, there shall be elected in each town a town superintendent of highways. A successor to the town superintendent, so elected, shall be elected at each biennial town meeting held thereafter in such town, unless the town shall have adopted as provided in section 41 a resolution that thereafter the town superintendent shall be appointed by the town board. Every elector of a town is eligible to the office of town superintendent. Town Law, § 80. A tie vote for a town officer creates a vacancy that may be filled by the town board, the incumbent holding until the town board fills the vacancy. A town superintendent must be a resident of the town. A town superintendent is required to take constitutional oath of office. The town clerk is to notify the town hoard of failure of town superintendent to take and file oath of office. The neglect or failure to file oath of office within the required time vacates office. § 41. Submission of proposition for appointment or election of town superintendent. Upon the written request of twenty-five taxpayers of any town, made and filed as provided in the town law, the electors thereof may, at a special or biennial town meeting, vote by ballot upon a proposition providing for the appointment of a town superintendent in such town. Such proposition shall be submitted in the manner provided by law for the submission of questions or propositions at a town meeting. If such proposition be adopted, the town board of the town shall, upon the expiration of the term of office of the elected town superintendent, appoint a town superintendent therefor, who shall take and hold office for the term hereinafter prescribed. Upon like request the electors of any town in which the office of superintendent of highways is appointed may, in like manner, determine that the superintendent of highways for such town shall thereafter be elected, as provided in section forty of the highway law. Amended by L. 1916, ch. 47. § 42. Term of office of town superintendent. The term of office of a town superintendent elected or appointed, as provided in this article, shall be two years. If such town superintendent be elected at a town meeting held at the time of a general election, his term shall begin on the first day of January succeeding his election. If such town superintendent shall have been elected at a town meeting held at any other time, his term of office shall begin on the first Monday succeeding his election. If such town superintendent shall have been appointed pursuant to a proposition adopted, as provided in the preceding section, his term shall begin on the first day of January succeeding his appointment, and the town board shall meet prior to that day for the appointment of such town superintendent. Amended by L. 1917, ch. 562, and L. 1918, ch. 372. 843. Vacancies; office of highway commissioner abolished. Vacancies in the office of town superintendent shall be filled for the balance of the unexpired term. The office of highway commissioner in each town is hereby abolished, to take effect on and after November first, nineteen hundred and nine. Where the office of highway commissioner shall become vacant by expiration of term or otherwise, after the taking effect of this chapter, and prior to the said first day of November, nineteen hundred and nine, such vacancies shall be filled for a term to expire on such date. Highway commissioners in office when this chapter or any section hereof takes effect shall exercise the powers and perform the duties hereby conferred and imposed upon town superintendents until the said first day of November, nineteen hundred and nine, and until their successors shall have duly qualified, whereupon such powers and duties shall cease and determine. 44. Deputy town superintendent. The town board of a town may, in its discretion, upon the written recommendation of the town superintendent, appoint a deputy town superintendent, to be nominated by such town superintendent, to assist him in the performance of his duties. Such deputy superintendent shall act as such during the pleasure of the town superintendent. 45. Compensation of town superintendent and deputy. The town board shall fix the compensation of such superintendent and his deputy, if one be appointed, which shall not be less than two nor more than five dollars per day. Such town superintendent and his deputy, if any, shall be paid the actual and necessary expenses incurred by them in the performance of their duties. Such compensation may be paid by the supervisor monthly, in advance of audit, from moneys levied and collected for such purpose, on accounts duly verified in the same manner as town accounts are required by law to be verified. Such accounts for compensation, together with accounts for expenses incurred by such town superintendent and his deputy, if any, verified as above provided, shall be subject to audit by the town board at its meeting held annually for the audit of accounts of town officers, and the balance due, as finally audited by the town board, shall be paid by the supervisor to such town superintendent, or deputy, if any, from funds avail able therefor. 45-a. Compensation of town superintendents in certain counties adjoining cities of the first class. The town board of any town in a county having a population of two hundred thousand or less, according to the last federal or state census or enumeration, adjoining a city of the first class having a population of one million and upwards, may by resolution provide that the town superintendent of highways shall receive an annual salary of not to exceed twenty-five hundred dollars in lieu of all other compensation. In a town in which such superintendent shall receive a salary as herein provided, the compensation provided for in section one hundred and seventy-five of this chapter for the services of such superintendent shall be paid to the supervisor of the town for the benefit of the town. Added by L. 1917, ch. 662. § 46. Removal of town superintendent. A town superintendent may be removed by the town board upon written charges preferred by the commission, or by the district or county superintendent, for malfeasance or misfeasance in office. Such charges shall be presented in duplicate to the town clerk, one of which shall be filed in his office, and the other shall be served by him personally upon the town superintendent, together with a notice directing him to appear before the town board at a time and place stated therein. Such service shall be made at least five days prior to the time specified in such notice. The town board shall convene for the purpose of considering such charges within ten days after the filing thereof with the town clerk. The town board shall hear evidence in support and in defense of such charges and after such hearing shall enter an order in the office of the town clerk either sustaining or dismissing such charges. The entry of an order sustaining the charges shall operate as a removal and the town board shall appoint another person to fill the vacancy caused thereby. The person so appointed shall hold office for the unexpired term or until the entry of a final order of a court of competent jurisdiction determining that the original town superintendent was wrongfully and illegally removed and directing his reinstatement. If the charges are dismissed, the town board shall notify the commission and the district or county superintendent of such fact. The town board shall also notify the commission and the district or county superintendent of the name of the person appointed to fill the vacancy caused by the removal of such town superintendent. An appeal may be taken by the commission or district or county superintendent, or by the town superintendent, from the order of the town board, to the county court by the filing of a notice of such appeal in the office of the town clerk within thirty days after the entry of such order. A copy of such notice of appeal shall be served personally or by mail upon the adverse party. Upon such appeal the county court shall consider the charges presented to the town board, and may hear evidence in support and in defense thereof. After such hearing the court shall make an order either affirming or reversing the order of the town board. A copy of such order shall be entered in the office of the town clerk. If the order reverse an order dismissing the charges, it shall direct the town board to remove the town superintendent and appoint a person to fill the vacancy caused thereby, within the time specified therein; if it reverse an order sustaining such charges, it shall direct the reinstatement of the town superintendent removed, to take effect upon the filing of the copy in said town clerk's office. The 847. General powers and duties of town superintendent. town superintendent shall, subject to the rules and regulations of the commission, made and adopted as provided in this chapter: 1. Have the care and superintendence of the highways and bridges and board walks or renewals thereof on highways less than two rods in width, in the town, except as otherwise specially |