| Mass. | Jan 15, 1874
The new town of Norfolk is in part.taken from Wrentham. The act of incorporation provides that Norfolk shah pay its just and equitable proportion of any debt due from the town of Wrentham, and receive from that town its just and equitable proportion of all corporate property, including the school-houses retained by it. St. 1870, c. 35.
The petitioners insist that the report of the commissioners is to be treated as an award of arbitrators, and that, as the rules of law adopted by them are not by the terms of the act under which they were appointed, or by the terms of the award itself, referred to the court for revision, their judgment is conclusive both as to law and fact, and cannot be impeached except for fraud, or for some mistake which in itself shows that the award does not express the real intention of the arbitrators. Ellicott v. Coffin, 106 Mass. 365" court="Mass." date_filed="1871-03-15" href="https://app.midpage.ai/document/ellicott-v-coffin-6416372?utm_source=webapp" opinion_id="6416372">106 Mass. 365. But all the powers of the commissioners are derived from judicial appointment, and the court will so far supervise their award as to see that they have acted within the scope of the authority with which they are invested, and that they have acted upon all matters submitted to them. Boston & Worcester Railroad Co. v. Western Railroad Co. 14 Gray, 253. Hingham & Quincy Bridge Co. v. Norfolk, 6 Allen, 353. Metropolitan Railroad Co. v. Quincy Railroad Co. 12 Allen, 262.
The duty of the commissioners was here limited to the appor tionment between these towns of corporate debts and corporate property. The question whether the property embraced in or excluded from their award is of this description affects only the subject matter of the submission, and is open to revision without any invasion of the rule on which the petitioners rely.
The respondents object to the action of the commissioners in refusing to charge the town of Wrentham with two descriptions of property as corporate property within the act, namely, the ancient public common or training field within the village of Wrentham, and certain funds held by that town for the support of schools. .
As to the first of these, the court are of opinion that the judgment of the commissioners is sustained by the facts reported. It is apparent from the voes of the original proprietors, and of the town, that the title to the training field or public common became vested in the town, not for its own use in a corporate capae*
But the school funds held by Wrentham are differently situated in this respect. The income of the whole is applied to relieve the town from a burden imposed by general laws, and for which it is obliged to raise money by taxation. A portion was derived from the sale of land given to the town without limitation or restriction, and appropriated only by vote of the town long subsequent to the gift. We are referred to many acts for the division of towns from the earliest times down, from which it appears to have been the common practice to require the division of school lands and school funds in the apportionment of town property, showing that such land and funds have been regarded as corporate property, which alone the Legislature would have power in this way to decide. Yarmouth v. North Yarmouth, 34 Maine, 411. By the terms of this act, all the corporate property, including the school-houses retained by either town, is to be taken into account, and Norfolk is to receive its just and equitable proportion. We cannot interpret the act as showing an intention that the new town should lose by the division its just and equitable proportion of the school funds, to the direct advantage of the old town, while the interest of each in the school-houses is carefully taken into account. The school funds in question must be regarded under this act as corporate property within its meaning.
Report recommitted,