dissenting.
That the checks in question were not delivered by appellant to the city comptroller in payment of an amount agreed upon between them as being due from appellant to the city of Chicago, is clear. The comptroller therefore properly, when he indorsed the checks and delivered them to the city treasurer, did not so deliver them as checks received in payment of an indebtedness to the city, and the city treasurer and his successors in office properly treated the money received on said checks, not as money belonging to the city, but as a special fund or trust fund deposited with the city for a special purpose. That purpose was to cover, to make good, to secure the payment by appellant of any difference, any deficiency, between the amount of the fees actually received by him as oil inspector and the amount he had reported to the comptroller that he had received and paid over to the city treasurer. If the checks had been deposited to cover, to make good, to secure the payment of any sum for which it should be determined that appellant was in law liable to the city, a different question would be presented. In making and accepting the deposit, both appellant and the comptroller acted under the belief that the ordinance creating the office of oil inspector was valid. If the ordinance had been valid in law, if the fees received by appellant as oil inspector had belonged to the city, and the amount of such fees withheld by the appellant had been wrongfully withheld, clearly the city might use so much of the fund so deposited as was necessary to cover, to make good, to pay such deficiency, and under the stipulation that the amount of such difference or deficiency exceeds the amount so deposited, might use and apply the entire amount so deposited upon such deficiency.
It now appears that both appellant and the city comptroller acted under a mistake of law; that the ordinance was invalid; that the fees collected by appellant as oil inspector belonged to him and not to the city, and that he was not bound to pay the same over to the city.
But the checks were delivered by appellant to the city comptroller under the belief that the fees he had collected in law belonged to the city, and that he was in law bound to pay all of the fees he had received to the city. The transaction in question was not strictly a voluntary payment of money under a mistake of law, but it was a voluntary deposit of money to cover a specific deficiency which in fact existed, made under the mistaken belief on the part of appellant that he was in law liable to make good and pay such deficiency to the city, and the transaction, in my opinion, so far partakes of the nature of a payment that the rule of law that prevents the recovery of money voluntarily paid under mistake of law should be held to apply to the transaction, and for that reason the bill was properly dismissed.