The opinion
Brown, J.
(dissenting). — I hardly think that our previous decisions' have decided the exact point at issue here. I think those decisions, taking them as a whole, are based upon the theory that the first come, first served, rule requires for its application a definitely ascertainable fund on hand legally applicable to the payment of the particular obligation involved, and that funds raised for other purposes' may not be used. It is the contention of the Board of Administration that the funds in the joint consolidated account are trust funds for the benefit of all three issues of bonds, and that it would be inequitable to allow the holder of past due securities of one issue to realize in full, even though, by proration, the moneys to which such issue would be entitled are not sufficient to pay such claim in full; that to require the payment of all the funds on hand to the settlement of the matured obligations of only one of the three issues of bonds would be, in effect, to use tax moneys raised for all three issues to pay on the obligations of one issue; that, as the levies were made for the requirements of all issues, each issue is only entitled to its proportionate part. I think these contentions are well founded, and based upon equitable considerations which would deny mandamus in such a case as
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this, even in jurisdictions which recognize the first come, first served, rule in its general aspects.