From an order restraining the Board of Bond Trustees from delivering to any bidder or purchaser refunding bonds dated 1937, except such an amount thereof as of December 1, 1938, as can not be paid off or retired by the use of funds now on hand and accruing up to December *Page 102 1, 1938, and from directing or requesting the State Board of Administration to pay any refunding fees to the fiscal agents of the district, an appeal has been perfected to this Court to rescind the aforesaid temporary restraining order entered by the Circuit Court of Volusia County, Florida.
It has been made to appear that the resolution dated December 1, 1932, authorizing the issuance of the Highway Refunding Bonds, provides in Section 6:
"That whenever and as often as there is a surplus in the Sinking Fund created for the payment of said Highway Refunding Bonds and interest thereof, of Five Thousand Dollars ($5,000.00) or more, said surplus shall be used by the Board of Bond Trustees of the Ocean Shore Improvement District for the purchase of the Highway Refunding Bonds herein authorized, provided such purchases do not impair the ability of the District to make the interest and principal payments as they become due."
It will be observed that Section 7 of the aforesaid resolution provides the machinery or set up controlling the detailed manner of calling and retiring the said bonds.
Section 8 of the resolution provides:
"That for the purpose of adequately providing for the payment of the interest coupons and for a Sinking Fund for the retirement of all of said Highway Bonds herein authorized, the Board of Bond Trustees of Ocean Shore Improvement District covenants and agrees with the Holders of the Highway Refunding Bonds, that in the annual budget and ad valorem tax levy to be prepared and made in each of the years A.D. 1933 to A.D. 1962, inclusive, there shall be included a levy of an ad valorem tax on all property in the District subject to the levy and collection of such tax in an amount which, together with any other revenue and income applicable or pledged to the payment of the interest and principal requirements of said Highway Refunding Bonds, *Page 103 will aggregate annually not less than One Hundred Five Thousand ($105,000.00) Dollars. Such tax to be levied and computed upon the extended and finally equalized valuation of such taxable property in the District and upon the assumption that the percentage of tax collections for the current year under consideration will not exceed the average percentage of collections of ad valorem taxes for the last past three tax collection years immediately preceding the tax year for which the levy is being made. That in the determination of a levy for an ensuing year's interest and Sinking Fund requirement, a sufficient levy will be made to provide for the interest and principal maturities of the next year succeeding that in which the budget is being made and prepared.
"There is hereby pledged for the payment of the Highway Refunding Bonds herein authorized all revenues and income of the District derived from any and all sources other than ad valorem taxes now appropriated by law for the payment of interest and principal of indebtedness created for Highway purposes, and any and all revenues and incomes of said District now or hereafter derived from sources other than ad valorem taxes, and not otherwise specifically appropriated by law for other purposes, shall be and are hereby pledged to the payment of the Highway Refunding Bonds of said District as herein authorized and that when such incomes or revenues as allocated are made available to said District, such income and revenue will be converted and placed in the Interest and Sinking Fund account for the Highway Refunding Bonds herein authorized and will not be used or appropriated for any purpose other than in the payment of interest to accrue from time to time on said Highway Refunding Bonds and for the retirement of said bonds herein authorized, except, however, any such income or revenues after interest for the current year has been provided for or *Page 104 set aside, shall be used to reimburse the Ocean Shore Improvement District Refunding Agency its expenses incurred and made under the terms of the refunding program for this cause of refunding bonds, dated the 27th day of March, A.D. 1933. After such expense is paid, all of such income and revenue received under any allocation or made available, shall be placed in the Interest and Sinking Fund Account for said Highway Refunding Bonds and shall be used exclusively for the purpose of paying interest and retiring said bonds as herein authorized."
It has been made to appear that the fiscal agents in the refunding program of the district will receive under the terms of the agreement a fee of 3% of the bonds exchanged, and it is contended that the 3% commission should not be had or allowed on the moneys of the district now and as of December 1, 1938, with the State Board of Administration, but that these moneys approximating $35,000.00 should be used as required by law to retire bonds as provided for in the said resolution adopted by the district on December 1, 1932. The moneys on hand, as contended, should be used to pay off and retire outstanding bonds, thereby reducing the total amount of the bond indebtedness as of December 1, 1938, approximating $35,000.00. The contract between the Board of Bond Trustees and the fiscal agents providing for the payment of a commission of 3% should not apply to the moneys with the State Board of Administration because these moneys were fully pledged for the payment of the bonds when the resolution was adopted authorizing their issue.
The case at bar is ruled by Chamberlain v. City of Tampa,40 Fla. 74, 23 So. 572. The fund can be used only for the purpose contemplated by the resolution. The State Board of Administration has not been made a party to this suit and the restraining order enjoins each member of the Board of *Page 105 Bond Trustees of the Ocean Shore Improvement District from directing or requesting the State Board of Administration to use the money now and as of December 1, 1938, for any purpose other than the application of the same to the liquidation, payment or retirement of the bonds issued under the resolution dated December, 1932. We find no error in the record. See State, exrel. Florida National Bank, v. State Board of Administration,115 Fla. 753, 154 So. 876; State, ex rel. Andrews, v. Sholtz,120 Fla. 423, 162 So. 865; Sholtz v. State, ex rel. Chalmers,123 Fla. 100, 166 So. 319.
The order or decree appealed from is hereby affirmed.
TERRELL, C.J., and WHITFIELD, BUFORD, CHAPMAN and THOMAS, J.J., concur.
BROWN, J., dissents.