tractor, dispense with the giving of said bonds; but in any such case twenty per centum of the contract price shall be retained until the entire work has been completed and accepted. The bond, if given, shall also provide against any direct or indirect damages that shall be suffered or claimed on account of such construction or improvement during the time thereof, and until the highway is accepted.

Amended by L. 1919, ch. 623.

8. Payments on contract. The contract may provide for partial payments to an amount not exceeding ninety per centum, or in a case where the bond is dispensed with, eighty per centum, of the value of the work done, which shall be paid in the manner provided by this article, when certified to by the commission. Ten per centum of the contract price, where a bond approved by the commission is given and twenty per centum in case said bond is dispensed with, shall be retained until the entire work has been completed and accepted.

Amended by L. 1919, ch. 623.

9. Contingencies. All contingencies arising during the prosecution of the work shall be provided for to the satisfaction of the commission and as may be agreed upon in the original or by a supplemental contract executed by the commission; the amount to be expended shall not exceed the original estimate, unless such estimate shall have been duly amended by the commission and, in the case of a county highway, submitted to the board of supervisors for its approval. If a supplemental contract be executed by the commission for the performance of work or furnishing of material not provided for in the original contract, the amount to be charged thereunder for any such work or material shall not exceed the rate for which similar work or material was agreed to be performed or furnished under the original bid upon which the contract was awarded. Such supplemental contract shall not be binding unless it be approved by the commission in case of a state highway and in case of a county highway, by the chairman of the board of supervisors and the district or county superintendent.

§ 131. Award of contracts to board of supervisors or town board. A board of supervisors of a county, or a town board of a town, in which any portion of a state or county highway is situ

ated, may present proposals and be awarded a contract for the construction or improvement of such highway, as provided in this article, for and on behalf of such county or town. If such contract be awarded to a board of supervisors or a town board such board shall, by resolution, designate some suitable person or persons to carry into effect, on behalf of such town, such contract, and transact all business in respect thereto as may be necessary. A member of the board of supervisors or town board at the time such contract was awarded or such designation was made, or a person who is a partner of, or a stockholder in the same corporation as that of such member, shall not be so designated. A member of the board of supervisors or town board at the time such designation was made, or a firm, corporation or association of which he is a member or has an interest, shall not be directly or indirectly interested in any such contract nor shall such member, or such firm, corporation or association furnish materials or perform labor or services, either directly or indirectly, under or in connection with the performance of any of the work required in accordance with such contract, nor shall such member, firm or corporation or association be paid for materials furnished or services rendered in respect to such contract. The clerk of the board of supervisors or the town clerk shall transmit a certified copy of the resolution designating the person or persons to carry into effect such contract to the commission prior to the awarding of a contract to the board of supervisors or town board. The person or persons so designated shall, before the contract is executed, give an undertaking to the county or town, with sureties to be approved by the commission and the board of supervisors or town board, for an amount equal to at least twenty-five per centum of the face of the contract. Such undertaking shall be conditioned on the faithful performance of their duties in respect to such contract and for the proper accounting, safe-keeping and lawful disbursement of all moneys that may come into their hands thereunder. Such undertaking shall be filed in the office of the county or town clerk and a copy thereof shall be transmitted to the commission. The person or persons so designated shall thereupon be competent to receive all moneys payable under such contract under the provisions of this article, and they shall account therefor to the county or town. The board of supervisors or town board, after such contract is awarded, shall designate, by resolution, a banking corporation or a trust company wherein the moneys received under

such contract shall be deposited. Such bank or trust company shall, upon the request of the board of supervisors or town board, make a statement of the money so deposited. The commission shall, by rules and regulations, prescribe the manner in which the moneys received under such contract shall be expended and the forms of accounts to be kept by the person or persons designated as above provided; and where convict labor is used, as hereinafter provided, an account shall be kept of the items incurred daily for maintenance of convicts and compensation of other laborers, if any. Reports may be required by the commission from time to time from such person or persons.

When a contract is entered into under the provisions of this section, the board undertaking thereby to construct or improve a highway or section thereof, may, by resolution, direct the person or persons designated for carrying out the contract to apply to the superintendent of state prisons for convict labor, in the construction of such highway or section thereof. The resolution shall specify the maximum number of convicts to be applied for, for such work. Such designated person or persons shall make request, in writing, to the superintendent of state prisons for convict labor, in conformity to the provisions of such resolution, such request to be accompanied with a copy of such resolution. A copy of such resolution and of such request shall also be filed with the commission. The superintendent may detail for labor, pursuant to such resolution and request, such number of convicts as may be available therefor, not exceeding the number applied for. Such convicts shall be in the immediate charge and custody of the officers and guards detailed by the superintendent of state prisons, and at all times subject to the control of such superintendent, except that the work to be done shall be directed by the engineers and foremen of the state highway department. The expense of maintenance of such convicts shall be paid by the county or town entering into such contract from funds due thereon, to such municipality. A county or town may purchase machinery and tools for the construction of a highway or section thereof, under any such contract, out of moneys to be paid thereon, within the estimates for such items contained in the proposals at the time of the letting of the contract, but such machinery and tools shall be the property of the state, and after the completion of the work shall be subject to disposal or to any lawful use by the commission. Moneys realized from selling or renting any such

used machinery or tools shall be paid into the state treasury to the credit of the highway fund. Any such used machinery or tools may be loaned by the commission, if requested, for construction of a highway or section thereof, by a county or town, by contract under this section, to be kept in repair and operated at the expense of the county or town with moneys payable under the contract.

If a county or town shall construct a highway or section thereof, by contract as above provided, for a lesser sum than the contract price, as the same shall appear from the accounts and reports herein provided for, the county or town, as the case may be, shall be paid only the amount of the actual cost of such construction, paid or incurred, and the surplus shall remain in the state treasury and continue available for any state or county highway construction for which the same may have been or shall be appropriated.

Amended by L. 1914, ch. 60, and L. 1918, ch. 328.

PRISON LAW.

The superintendent

§ 179. Employment of convicts on public highways. of state prisons may employ or cause to be employed the convicts confined in the state prisons in the repair, maintenance, construction or improvement of the public highways at any place within the state, outside of an incorporated village or city, upon request or with the consent of the state commission of highways, in the case of state or county highways, or upon the request or with the consent of the officer having charge of such repairs, maintenance, construction or improvement, in the case of any other highway. When engaged in the maintenance and repair of a highway under the jurisdiction of county or town authorities, the county or town receiving the benefit of such labor shall pay such reasonable compensation as may be agreed upon, not exceeding one dollar per day for each prisoner. The local highway authorities of the county or town in which such labor is performed shall report to the superintendent of state prisons, or the agent and warden of the prison from which the convicts are employed, at the end of each week, the number of days' labor each convict has performed, and the prison department shall render a bill to the county or town covering such labor. Upon the payment of such bill, the agent and warden of the prison rendering it shall immediately deposit the money received for such labor in a bank designated by the comptroller as the depository for the maintenance fund of such prison, to the credit of a separate fund to be called the "prison highway labor fund." A statement of such money so received and deposited shall immediately be sent by the agent and warden to the comptroller and the superintendent of state prisons, which statement shall show the date when such money was received, and shall be receipted by the proper officer of such

bank and verified by the oath of the agent and warden of such prison to the effect that the sum so deposited was all the money received since the date of the last deposit, from the labor of convicts on highways as provided by this section.

The money so received and deposited by such agent and warden shall be only available for the maintenance, housing, purchase of food, transportation and guarding of such convicts, and any other necessary expense while engaged in highway work, and shall be subject to the check of the agent and warden of such prison when countersigned by the comptroller in the payment of such accounts. The comptroller shall countersign such checks only when the same are drawn for the payment of vouchers properly chargeable to this fund and approved by the superintendent of state prisons.

On December thirty-first of each year the agent and warden of such prison shall draw his check in favor of the state treasurer for the balance remaining to the credit of the "prison highway labor fund" at that date and forward it to the comptroller, who shall countersign such check and deposit the same with the state treasurer to be added to the general fund.

The expense of maintenance of such convicts while employed in the improvement and repair of town highways under a special appropriation shall not exceed a rate fixed per diem per convict by the superintendent of state prisons at the beginning of the work, and shall be paid by the agent and warden of the prison concerned from the special appropriation made therefor. Any expense exceeding such fixed rate shall be paid by the agent and warden of the prison concerned from the regular prison maintenance appropriation for such prison.

The agent and warden of each prison may make such rules as he may deem necessary for the proper care, custody and control of such prisoners while so employed, subject to the approval of the superintendent of state prisons; but the work shall be performed according to the directions of the state commissioner of highways or of the local highway authorities in charge of such repairs, maintenance, construction or improvement.

A state, county or town highway herein referred to is a state, county or town highway as defined in the highway law.

The superintendent of state prisons is hereby authorized to purchase any machinery, tools and materials necessary in such employment, except employment on a state or county highway.

Amended by L. 1914, ch. 60; L. 1917, ch. 318, and L. 1919, ch. 420.

$132. Responsibility of commissioner of highways for the performance of contracts for construction or improvement of state and county highways; suspension of work under contract; completion by commissioner of highways. The performance of every contract for the construction or improvement of a state or county highway shall be under the supervision and control of the commissioner of highways, and it shall be his duty to see that every such contract is performed in accordance with the provisions of the contract and with the plans and specifications forming a part