On Behearing.
Howell, J.A rehearing was granted in this case “for the purpose of explaining the decree,” which is in the following words: “ It is ordered, adjudged and decreed that the judgment appealed from be reversed, and it is further ordered, adjudged and decreed that a writ of mandamus issue, directed to the State Treasurer, Antoine Dubuclet, .commanding him to pay the warrants annexed to the relator’s petition out of any funds in the treasury appropriated for that purpose, without reference to any injunctions to the contrary which may have been isued to him.”
It is contended on behalf of the treasurer that this decree, “compels him to pay the warrants annexed to the petition by preference over all other warrants, when there was no money in the treasury at the time they are presented out of which they could be paid,” which is a contingency in which a mandamus should not be granted, whatever may be the'personal responsibility of the treasurer for his acts. The facts in this connection, as wé find them, are that when the relator presented his warrants there was money in the treasury, but the treasurer paid it out by preference to one Benjamin, or his agent, in obedience, as he asserted, to an injunction from the Eighth District Court for the parish of Orleans. We come to the conclusion, and we are still of the opinion that the said injunction was and is wholly without any legal effect, and did not justify the treasurer in his action in the premises. But we erred in ordering a writ of mandamus to issue when there was no money. Said writ properly issues against the treasurer only when he has money and illegally withholds it from one entitled to be paid. If he refuses to pay one creditor of the State and gives an illegal preference to and pays all the money in his hands to another, he may make himself amenable to the law, which fixes his duty and imposes heavy penalties for dereliction of that duty; but it is not a proper case for a mandamus.
To now order the treasurer in this proceeding to pay, under such circumstances, whenever the treasury may be replenished, is equivalent to a judgment in an ordinary proceeding, and would in effect give a preference to the relator, or to an order in advance to do what he has not refused to do, and what it must be presumed he will do, until *133the contrary be shown, as the presumption is in favor of an officer • doing his duty. We may very well say, that the injunction invoked ’is no legal protection or excuse, but the claim secured by that injunction can not always exist. Indeed the record shows that it was paid or nearly so at the time of the trial of this case in the lower court.
While our opinion of the acts of the treasurer in this whole matter are unchanged, still we are not ourselves authorized under the facts ■ and the law to make the mandamus peremptory. Instead of simply, explaining, we must reverse our former decree.
It is therefore ordered that our decree herein be set aside, and that ■ the judgment of the lower court be affirmed.
State ex rel. John Chapus v. Antoine Dubuclet, State Treasurer.
Howell, J.For the reasons just given in the case of the State ex rel. E. Merle v. Antoine Dubuclet, State Treasurer, it is ordered that the decree heretofore rendered by ns be set aside, and that the judgment appealed from be affirmed.