OPINION ON REHEARING.
McCulloch, C. J.It is contended by learned counsel for plaintiffs that the fact that there has been a transfer from Mount Carmel Rural Special School District to Paragould Special School District No. 1, if it constituted a defense to this action, should have been pleaded by answer and could not have been reached by a demurrer.
Appellant is invoking an extraordinary remedy, and if the transfer constituted a defense his failure to negative the transfer in the allegations of the complaint constituted an omission which could have been reached by demurrer. In other words, the failure to allege that these three taxpayers who are,named in the complaint were subject to taxation in Mount Carmel School District is an omission which goes to the equity of the complaint.
Again it is very earnestly insisted that under the statute creating the Mount Carmel district the building fund authorized to be levied was pledged to the payment of the bonds issued by the district, and that it is beyond the power of the Legislature to provide for transfers to another district of the taxes pledged for that purpose and the attempt to do so would constitute an impairment of the obligations of the contract evidenced by the bonds. We have decided that the power of the Legislature over that subject is supreme and that the failure to provide by statute for the adjustment of equities does not defeat the legislative action. Special School District No. 2 v. Special School District, 111 Ark. 379. That principle controls in the present controversy and leads to the conclusion announced in the original opinion, that neither of the plaintiffs show facts sufficient to constitute a right of action, in that they did not allege that the transfer of the taxes of the particular parties named was sufficient to deplete the funds of the district to the extent that it endangered the securities held by the bondholders, or that it placed an additional burden on the other taxpayers.
It is now contended that the other taxpayers in the district might complain because the transfer of a part of the taxable property from the district creates a heavier burden on the remaining taxpayers. If this were true, the statute authorizing the transfer of children from one district to another would not be effective at all in any case where there was an indebtedness of the district. But the theory upon which it is allowed to be done is, that those that remain in the district get the benefit of any improvements in the way of buildings in which the borrowed money was invested. If, however, there aré peculiar circumstances which create an additional burden on the remaining property owners by reason of the transfer of the children and taxes of some of them, this must be especially pleaded and proved in order to call for extraordinary equitable relief. The same can be said with respect to the claim of bondholders, for unless the revenues of the district are depleted to such an extent as to impair the securities of the bondholders they are not entitled to ask for extraordinary relief. This is the idea we intended to express in the original opinion in stating the reasons why the decree should be affirmed. We must adhere to those conclusions, and the petition for rehearing is overruled.