#### Arkansas State Highway Commission v. Kerby.

Opinion delivered December 5, 1927.

*655 II. W. Applegate, Attorney General, for appellant.

Arthur G. Thomas, Browse & McDaniel and Carmichael (& Hendricks, for appellee.

Hart, C. J.,

(after stating the facts). The correctness of the holding of the circuit court depends upon the interpretation to be placed upon the provisions of act 11, approved February 4, 19'27, Acts of 1927, p. 17. Under § 1 it is declared to be the policy of the State to take over, construct, repair, maintain and control all the public roads in the. State comprising the State highways as defined in the act. Section 3 provides for the amount of outstanding bonds to be determined, and for payment each year as they become due. Section 3 reads, in part, as follows:

> “The commission shall, as soon as possible, ascertain the amount of the outstanding valid bonds issued by road improvement districts in this State, the date of the maturities thereof, and the annual interest due thereon, and it shall be the duty of the' circuit clerk of each county to furnish the commission with such information. The commission shall, each year, beginning with the year 1927, allot to each road district in the State having outstanding bond issues an amount equal to its bonds maturing during the year, together with the interest payable by such districts during the year, plus a paying charge of one-eighth of one per cent, of bonds to be paid and one-fourth of one per cent, of interest to be paid, and shall certify to the State Auditor the amount allotted to each road district. ’ ’

The second paragraph of the section is as follows:

> “In case the appropriation of six and á half million dollars allotted to the road improvement districts is insufficient to pay in. full the maturing bonds and interest for the year, the commission shall allot to each district its pro rata of such appropriation.”

The last paragraph of the section is as follows:

> “All of the road districts referred to in this section are hereby taken over by the State, but only such portions *656of such roads which are now or may hereafter he embraced in the State highway -system .shall be maintained by the State.”

The term ‘ ‘bond, ’ ’ as used in the act as labove quoted, evidently refers to the term “bond” as used in acts' creating road improvement districts, and authorizing the commission to borrow money to construct the improved roads, and to' issue negotiable -interest-bearing bonds therefor.

In Davenport v. Dodge County, 105 U. S. 237, 26 L. ed. 1018, a county bond was defined to be an instrument that implies that an obligur is bound to do what it is agreed shall be done. This is substantially what this court has held bridge land highway improvement district bonds to be.

In Arkansas Foundry Co. v. Stanley, 150 Ark. 127, 233 S. W. 922, it was held that, under the special act creating a bridge district and authorizing the commissioners to sell bonds at not less than par, and to pay interest at not more than six per cent., and to pledge the assessments, as security, such commissioners are authorized to- borrow money from banks at the prescribed rate and pledge the 'assessments therefor.

Section 9 of the act provided that, in order to- do the work, the bolard might borrow money at a rate -of interest not exceeding six per cent, per -annum, might issue- negotiable bonds therefor, signed by the chairman and secretary -of the board, and -pledge and mortgage all assessments for the repayment thereof. The .section further provided that the bonds.should not be disposed of at less than par.

It was contended by an owner of real property within -the bridge district, who brought suit, that the act only authorized the commissioners to issue negotiable -bonds, and that the commissioners were about to borrow money from the banks -of the city of Little Rock and to pledge the assessments for the security -of the said loans, in violation of the provisions of the act. The court s-aid the issuance -and sale of the bonds -of the district was nothing. *657more than borrowing money by the commissioners for the purpose of constructing the improvement. The court further said that the bonds of the district would be nothing more than evidence of indebtedness of the district, and it would make no difference whether the commissioners borrowed the money in the city of Little Rock or from banks or other persons elsewhere. Consequently, it was held that the chancery court rightly sustained a demurrer to this paragraph of the complaint. This was tantamount to holding a bond and a certificate of indebtedness such as was issued in the case at bar were substantially one and the same thing, and that to hold otherwise would be to put form above substance.

In the later case of Road Improvement District No. 4 v. Southern Trust Co., 152 Ark. 422, 239 S. W. 8, it was held that, under a statute authorizing the board of commissioners of a road improvement district to borrow money iat a fate of interest not exceeding six per cent., and to issue negotiable bonds therefor, and to pledge, assign and mortgage all assessments for the repayment thereof, the board was. authorized to issue a negotiable note for borrowed money. It was contended that the district was not authorized to execute a negotiable note under the provisions of the act creating it. The court said:

> “While the act does specify that the. board may ‘borrow money’ and may issue ‘negotiable bonds,’ yet the fact that the resolution designated the instrument to be executed for the money borrowed as a ‘note’ instead of a negotiable ‘bond,’ and the fact that the instrument took the form of a ‘note’ instead of a ‘bond,’ can make no difference. Where the indebtedness which the instrument represents is for money bofrowed, a technical compliance with the law as to the form of the instrument evidencing the debt, whether by negotiable note or negotiable bond, is wholly immaterial. Either would be evidence of indebtedness of the district, and, in the eyes of the statute, ‘note’ and ‘bond’ would be but convertible terms.”

*658Our earlier case of Arkansas Foundry Co. v. Stanley, 150 Ark. 127, 233 S. W. 922, was cited in support of the holding. We must presume that the framers of the act under consideration had these oases before them, and used the word “bond” in the sense this court had interpreted it to mean in the acts creating the road districts and authorizing the commissioners thereof to issue bonds for the purpose of securing money with which to construct the improvement. The evident and avowed purpose of the act under consideration was to aid road districts, which had become overburdened with debt, in the construction of the improved roads, and we are of the opinion that the word “bond” as used in the act wias meant to include promissory notes and certificates of indebtedness issued by the district for the purpose of constructing the improved roads;- and that the words “bond,” “note” or “certificate of indebtedness” are but convertible terms. In short, we are of the opinion that the expression “bond,” as used in the act under consideration, was intended to cpver all written obligations for the payment of money legally issued by the commissioners for the purpose of constructing the improved roads under the original acts creating the road districts.

Acts 112 (Acts 1927, p. 312) is supplementary to act 11 (Acts of 1927, p. 17), and there is nothing in its language or within the scope of its purpose to indicate that the Legislature meant to change the meaning of the word “bond.” Hence the meaning of the -word “bond” as used in act 11 is not changed by act 112. Neither do we think that, when the object and purpose of act 112 are considered in connection with act 11, the term “bond” was used in it in any different sense than it wra-s used in act 11. It is agreed that the road in the district under consideration was taken over by the Arkansas State Highway'Commission, and that it is a part of the highway system.

It follows that the judgment of the circuit court was correct, and it will he affirmed.