Massachusetts Highway Commission of the county commissioners of any county, made at the request of any town of not more than twelve thousand inhabitants within said county, there shall be furnished by said Highway Commission to said county, at the expense of the Commonwealth, one or more steam rollers, portable stone crushers and such other road machines as the said Highway Commission may deem necessary for the construction and maintenance of better roads in the town making such request."

I can see nothing in this sentence, or the rest of the act, which leads me to believe that the duty of furnishing at least one steam roller, whenever a legal application has been made, is not obligatory upon the commission.

Furthermore, I am of the opinion that the number of steam rollers and portable stone crushers needed is to be decided by the applicants, and not by the Highway Commission. The grammatical construction of the sentence, and the purport of the law taken as a whole, coincide in my mind in justifying this construction. The position of the words, and particularly the use of the words "such other road machines," leads me to believe that the discretionary power vested in the Highway Commission applies only to "such other road machines as the said highway commission may deem necessary." Furthermore, the necessity of speed in the construction is essentially of local importance, and is generally guided entirely by local considerations. Taking this into consideration, with the fact that the town is ultimately to pay for the maintenance and management of the machines, I am of the opinion that the commission has no discretion upon any given occasion to decide upon the number of steam rollers and portable stone crushers which shall be required.

In reference to requests for road machines other than steam rollers and portable stone crushers, my opinion is that the commission is vested with discretionary power in the matter of granting or refusing such requests.

In your second question you ask whether your commission has any control over the machines furnished in accordance with St. 1896, c. 513, after they have been delivered to the county

commissioners. In reply to this only a general answer can be given. The machines still remain the property of the Commonwealth, but such control as is necessary for their management and maintenance is vested in the county commissioners. Whether in a given case the control sought to be exercised is one of management and maintenance, or not, is a question that can be answered only when a specific case arises.

To the Auditor. 1896 July 23.

METROPOLITAN PARK ACTS, - · APPROPRIATIONS FOR PARK

PURPOSES.

The Auditor of the Commonwealth is required, under St. 1896, c. 550, to charge to the account of the fund created by the metropolitan park loans heretofore authorized such a sum as will be sufficient to meet the interest and sinking fund requirements up to and including the first day of January, 1900, and also to charge to the said account all amounts heretofore appropriated for the care and maintenance of metropolitan parks.

He is not required under the said statute to set apart any portion of the said fund for the future care and maintenance of the said parks.

Your letter of June 22 requests my opinion as to the construction of St. 1896, c. 550, relative to the metropolitan parks and boulevards. In order to understand the questions raised it is necessary to review the legislation relating to metropolitan parks.

The Metropolitan Park Commission was created, and authorized to lay out and construct parks, by St. 1893, c. 407. By § 9 of that act a loan of one million dollars was authorized for a term not exceeding forty years, "to meet the expenses incurred under the provisions of this act." It was not the purpose of the Legislature, however, to impose the burden of the laying out, construction or maintenance of the metropolitan parks upon the Commonwealth. A policy of reimbursement from the cities embraced within the metropolitan parks was established in the original act, which has never been departed from in any subsequent legislation. The act in question provided that a special commission should be appointed, for the purpose of determining substantially the proportion in which

the expenses of metropolitan parks should be borne by the cities and towns in the metropolitan district. The proportion assessed upon Boston was to be fifty per cent. of the whole. The proportion to be assessed upon the other cities and towns was to be determined by this special commission so constituted. A sinking fund was created by the act authorizing the loan, the annual contributions to which should be sufficient to extinguish the debt at maturity. Section 12 of the act provided that the amount of money required each year from the cities and towns in the district to meet the interest, sinking fund requirements and expenses for each year, should be estimated by the Treasurer in accordance with the proportion established by the special commission, and assessed upon such cities and towns as a portion of their State tax. By the operation of this plan, therefore, although all the moneys required for metropolitan parks was to be raised by the Commonwealth by means of a loan, and advanced when necessary, the whole of the principal and interest of said loan, and the expenses of maintaining the parks, were eventually to be assessed as a tax in the proportion thus ascertained upon the cities and towns in the district.

A special commission was thereupon appointed by the Supreme Judicial Court, which proceeded to hear the parties, and to assess the proportion to be paid by each city and town within the district. This report was ultimately confirmed by the court. From time to time additional authority to expend money in laying out and constructing parks and parkways was granted to the commission, and loans for corresponding amounts authorized to be made by the Treasurer to meet the expenses thereof, the whole amount of loans, so authorized, being $4,300,000. The last loans voted were by St. 1896, cc. 466 and 472. By c. 466 the Park Commission was authorized to "expend the further sum of one million dollars, in addition to all sums heretofore authorized to be expended by it;" and to meet the expenditures so authorized to be incurred the Treasurer was directed to issue a corresponding amount of scrip or certificates of indebtedness. By c. 472 the commission was authorized to expend the further sum of five hundred thousand dollars for roadways and boulevards, and a corresponding loan was au

thorized to be made by the Treasurer. The acts were approved June 4, 1896, and took effect upon their passage.

Under the act creating the Park Commission (St. 1893, c. 407) it was directed to estimate annually the expense of preservation and care of the parks for the ensuing year, and certify the same to the Treasurer, such expenses to be apportioned among the cities and towns in the same manner as the expenses of location and construction. This estimate was limited in the original act at twenty thousand dollars, but the limitation was afterwards removed. In pursuance of this authority, estimates have been made by the commission from time to time, and the legislature has each year appropriated sums of money to be paid out of the ordinary revenue for the care and maintenance of the parks, to wit: 1894, $20,000; 1895, $37,000; 1896, $40,000. Under the statutes of appropriation these sums were not taken from the park loans, but were imposed upon the cities and towns in the district, in addition to the amounts authorized for laying out and construction.

Complaint was made by some cities and towns that the apportionment established by the commission was necessarily premature, being made before the completion of the work of laying out and constructing the parks, and, therefore, possibly unfair. The statute under consideration (St. 1896, c. 550) was undoubtedly passed in recognition of the justice of these complaints. It does not undertake to change or modify the purpose originally declared by the Legislature of assessing the expenses of the laying out, construction and maintenance of metropolitan parks upon the cities and towns within the district, but it abolishes the work of the special commission above referred to. It further directs the Park Commission to lay out and construct all the parks which it is authorized to construct before the first day of January, A.D. 1900; and further provides that during the year 1900 a new special commission shall be appointed to assess the proportions to be paid by the several cities and towns in the district, in the same manner as was provided by the original act. The necessary intent of this law is, not to impose any part of the burden of metropoli

tan parks upon the Commonwealth, but to postpone the time when the cities and towns shall begin to reimburse the Commonwealth for the money advanced by it for that purpose. But, inasmuch as it would be onerous to require the cities and towns in the district to pay in one sum all the interest and fixed charges, and expenses of maintenance incurred from the beginning of the enterprise up to the year 1900, the act provided that all these charges and expenses should be paid by the Treasurer out of the loans authorized. The result of this will be that in the year 1900 the only demand upon the cities and towns will be the bonds then outstanding, the interest, sinking fund requirements and all expenses of care and maintenance accruing prior to that time having been paid out of the loan itself. It follows that the time of beginning reimbursement to the Commonwealth by the cities and towns is thus postponed for four years; but, as a necessary result of this, either the amount to be expended for parks and boulevards must be reduced, or the amount to be paid by the cities and towns must be increased. This is because the whole sum which the cities and towns assume from and after the first day of January, 1900, includes all interest and sinking fund requirements and expenses of maintenance to that date, these sums being necessarily either added to the whole loan, which is thus made greater, or taken from the loans now authorized.

The question stated in your letter is this, substantially: Is it the intent of the act that the loans heretofore authorized shall be increased by the amount of the interest, sinking fund requirements and expenses of maintenance already incurred, and to be incurred between now and the year 1900, or are those expenses to be deducted by you from the fund created by the loans already authorized? The question is one of importance, because the necessary result of deducting all the charges and expenses so imposed upon the loan itself is to cripple seriously the work of the Park Commission by diminishing the amount of money placed at its disposal by previous acts, the last of which was enacted June 4, only five days before the act in question took effect. If you are to reckon only such expenses as already have been authorized, and the interest and sinking fund require