dissenting. The treasurer complains of the judgment pronounced by us in this case, in this, that ‘ ‘ it compels the treasurer 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 were presented out of which they could be paid.” I do not see how the decree can be so interpreted. Merle, the holder of a number of warrants payable out of a certain fund, was asking for their payment. The treasurer refused payment on the gronnd that he was forced to apply all the money coming into that fund first to the payment of warrants drawn against it, in the hands of one Benjamin, by reason of an injunction to that effect. We simply declared that Benjamin had no greater rights than Merle. The decree is that the treasurer pay the relator’s warrants out of any funds in the treasury appropriated for that purpose, without any reference to any injunction to the contrary which may have been issued to him. The decree, I think, meant that Merle had the same right to be paid out of the fund in question that Benjamin had, and I do not see how it can be tortured into the con- 1 struetion that he should be paid “by preference over all other warrants.”
Neither is the statement in the application for a rehearing that “at the time they were presented there was no money in the treasury out of which they could have been paid,” correct. The contrary is the fact, and it is of this which Merle complains, and it is this whicli we thought he was entitled to complain of. The record shows that while he was being refused payment, upwards of seventy thousand dollars came *134into the fund upon which his warrants were drawn, while the injunction in favor of Benjamin, which the treasurer pleaded as a reason for not paying him, only held a little more than half of that sum. The record also shows that Newman’s warrants were paid under Benjamin's injunction. These facts forced upon us the conviction, at the time the case was argued, that the treasury was being used in the interest of certain favored parties. I am of that opinion still. We thought then that the treasurer had no right thus to administer the trust reposed in him. I still think so. We thought then that we could force the treasurer to perform his duty, and upon this point my mind remains unchanged. We thought then that he had shown a preference where he should have been impartial. I think so still. We ordered him simply to do his duty, that is, to pay the warrants held by Merle precisely as he paid the warrants held by Benjamin and others having the same right against the same fund, and I think still that he should be held to it.
Neither do I think that the reason urged for a rehearing, that if Merle’s warrants are paid ‘‘ they will have to be paid out of money which has since come into the treasury,” a good one. Of course if the treasurer has paid what money there was belonging to a certain fund, he can not pay the same money over. But he can pay when the fund is replenished, and all he was ordered to do was to pay out such funds as he had to those who were equally entitled to it, and not to give it to favorites, or use for excuse an injunction which did not cover the case.
Entertaining these views, I do not think the decree herein pronounced needs any further explanation.