[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 138 On petition of relator, alternative writ of mandamus was issued from this Court directed to respondents, commanding them to pay from funds in their hands matured bonds and coupons issued by the Everglades Drainage District in the aggregate sum of $9170.00. A return, motion to quash, and a motion for final judgment awarding a peremptory writ, notwithstanding the return, were duly entered and the cause is here for disposition on the issue thus made.
The question for decision is whether or not the "first come, first served" rule is applicable and may be invoked by the holder of Everglades Drainage District bonds against funds of said district in the hands of the State Treasurer as treasurer exofficio thereof.
The "First come, first served" rule was approved by this Court in State, ex rel. Gillespie, v. Carlton, 103 Fla. 810,138 So. 612; Humphreys v. State, ex rel. Palm Beach Co., 108 Fla. 92,145 So. 858; State, ex rel. DuPont Ball, Inc., v. Livingston,104 Fla. 33, 139 So. 360; State, ex rel. N.Y. Life Ins. Co. v. Curry,104 Fla. 242, 139 So. 891; and State, ex rel. Buckwalter, v. City of Lakeland, 112 Fla. 200, 150 So. 508. The underlying philosophy back of these cases is that there must be an inexhaustible fund replenishable by an annually enforceable tax levy, limited but continuing until all the bonds outstanding are redeemed. Equitable considerations would not sustain a rule that *Page 139 would result in bondholders of equal dignity being treated differently.
The ownership of the bonds in question, the fund on hand, and the obligation of the Everglades Drainage District to pay them is not questioned but it is shown by the return of respondents that the district has outstanding bonds aggregating $9,470,000, that $2,530,000 of said bonds are due and unpaid, and that in addition thereto the district is in arrears on the payment of interest coupons on bonds outstanding the sum of $2,347,805.32, that the said bonds are guaranteed by an annual acreage tax imposed on the lands of the district according to benefits, that the lands of the district are very largely wild and unimproved, a large portion of which have been certified to the district for the nonpayment of taxes, and that the funds in the hands of the district are insufficient to pay all the bonds and coupons due and unpaid or even a small percentage of them.
The law in force at the time the bonds were issued constituted a part of the bond contract. It can be enforced only to the extent provided in the law. The bonds in question are supported by nothing but the annual acreage tax based on benefits to the lands. Such a tax is a type of special assessment limited in application and experience has demonstrated in this case that it does not constitute an inexhaustible fund sufficient to redeem the bonds.
The lands and other assets of the district are not bound for the payment of the bonds and the acreage tax being arbitrary and dependent on the increased value of the lands and other factors has been shown to be insufficient to meet the installments on them. It would be inequitable and unjust under the circumstances to apply the "first come, first served" rule to the funds on hand under such circumstances. Moran, et al., v. State, ex rel. Montgomery, *Page 140 111 Fla. 429, 149 So. 477; Norris v. Montezuma Valley Irrigation District, 248 Fed. 369.
The motion for peremptory writ is accordingly denied and the motion to quash is granted.
It is so ordered.
WHITFIELD, and BROWN, J.J., and HOBSON and SHIELDS, Circuit Judges, concur.
ELLIS, C.J., dissents.
BUFORD, and DAVIS, J.J., disqualified.