Houston School District No. 39 of Perry County v. Commercial National Bank of Little Rock

• Decision Date: 15 January 1940
• Docket Number: 4-5877
• Citation: 135 S.W.2d 677,199 Ark. 683
• Parties: HOUSTON SCHOOL DISTRICT NO. 39 OF PERRY COUNTY v. COMMERCIAL NATIONAL BANK OF LITTLE ROCK
• Court: Arkansas Supreme Court

135 S.W.2d 677

199 Ark. 683

HOUSTON SCHOOL DISTRICT NO. 39 OF PERRY COUNTY v. COMMERCIAL NATIONAL BANK OF LITTLE ROCK

4-5877

Supreme Court of Arkansas

January 15, 1940

Appeal from Perry Chancery Court; J. E. Chambers, Chancellor affirmed.

Affirmed.

J M. Willemin, for appellant.

Wallace Townsend and A. E. Townsend, Jr., for appellee.

OPINION

GRIFFIN SMITH, C. J.

The question as stated by counsel for appellants is, Does act 326, approved March 19, 1939, authorize Houston School District No. 39 of Perry county to use for any purpose other than the retirement of bonds moneys arising from a nine-mill tax levy?

The applicable part of act 326 is printed in the margin. ^[1]

We think there is this additional question: Was there a surplus in the bond account?

The school district (hereinafter referred to as the district) and the county treasurer were defendants below. ^[2]

In 1928 the district issued $ 16,000 of 5 per cent. bonds. December 28, 1938, principal and interest in default amounted to $ 4,000. Between 1928 and 1938 assessed valuation of taxable property had decreased to $ 127,704 from $ 180,231.38.

Through Arkansas Municipal Bond Bureau of Little Rock the district consummated a refunding plan whereby $ 16,000 of new bonds bearing 4 per cent. interest would be exchanged for the old securities. The bureau acted as agent for holders of the 1928 issue and was authorized by the district to submit the refunding proposal. It contained the following features:

"The district agrees to vote a continuous and irrevocable tax of 9 mills for debt service, the entire proceeds of which can be used only for payment of the bonded indebtedness under the following provisions: (1) Upon receipts of final settlement of taxes in each year, the trustee ^[3]

will set aside sufficient money to pay interest on refunding bonds due prior to the next tax settlement date. (2) The surplus remaining in the debt fund after payment of interest as above must be used to pay refunding bonds on sealed tenders to be submitted on the 15th day of November in each year, or by call at par and accrued interest, whichever is cheaper. If for any reason the district fails to retire bonds by purchase on tenders or call at par and accrued interest, then outstanding bonds in the aggregate par value of the surplus in the debt fund, after paying interest, will automatically mature on January 1 in numerical order, and the holders thereof can demand payment and will have all the remedies and recourses as if the bonds carried serial maturity dates."

Upon the basis of the proposal of which the quotation is only a part, holders of the 1928 issue surrendered the bonds for those dated January 1, 1939. The district applied to the state board of education for approval of the plan, which was given February 10, 1939.

On the district's petition to the Perry county court, the proposal was submitted to voters at a special election held in May, 1939. The question was whether a continuing building fund tax of nine mills should be approved. On the ballot appeared the explanation shown in the fourth footnote. ^[4]

All votes cast were in favor of the proposal.

Following approval by the electorate the district adopted a resolution creating a building fund. It was provided that all revenues derived from the nine-mill tax should be paid into this fund, . . . "to be kept solely for the payment of refunding bonds, interest thereon, interest accrued on outstanding bonds, and expense of refunding, as set out in the deed of trust." There was a further provision that if in any year revenues from the nine-mill tax were not sufficient ". . . to meet the amount hereinafter appropriated out of said building fund in that year, the amount of the deficit shall be set aside and paid into said building fund from the first moneys coming to the district from any source whatever.

There were additional express pledges that none of the money accruing to the building fund should be applied to any other purpose ". . . until said bonds and coupons are paid."

On the fact of the bonds this language appears:

"The school district may use the available surplus in any year, after providing for the payment of all interest due prior to the following tax settlement date, for the purchase of bonds of this issue on tender at not exceeding par and accrued interest, in the manner more specifically provided for in the deed of trust and pledge securing this bond issue. This bond, and all other bonds of this series, shall be redeemable by the district on January 1st of each year after date hereof, in numerical order, at par and accrued interest. Notice of such call for the redemption shall be published once a week for two weeks before the date fixed for redemption, in a newspaper, . . . and after the date mentioned in said call, this bond, if so called, will cease to bear interest, provided funds for its payment are on deposit with the paying agent at that time."

Various covenants in the deed of trust are copied in the complaint, and were especially pleaded, material parts of which have been referred to.

Appellants call attention to § 11500 of Pope's Digest, and to act 326 of 1939, and say: "The difference in act 326 as it amends: § 11500 seems to be that under the 1939 act, the surplus remaining after payments due for the current year [have been made] may be used for general purposes.

There is this contention by appellants: "In view of the fact that no bonds will mature until January 1, 1964, any sum in the building fund remaining after the payment of interest is a surplus. . . . If effect is given to the deed of trust, notwithstanding the provisions of act 326, . . . then the appellants must fail, because according to the deed of...