I think the petition for rehearing filed by the defendant in this case should be granted upon grounds 2, 3, 4, 5 and 6 of the petition for rehearing, which read as follows:

"2. That the question of estoppel was not stated, in the brief of plaintiffs in error, as a question before this Honorable Court, and was not argued by the attorneys for plaintiffs in error, and, from this, the defendant in error was entitled to assume and did assume that no such question was presented for decision, to this Honorable Court, and that the defendant in error was thereby deprived of an opportunity to submit an argument or brief on said question, and that there are numerous decisions of this Honorable Court and of the Courts of other States, on the law of estoppel, which the defendant in error would like to submit to this Honorable Court in support of his contention in this cause."

"3. That this Honorable Court, in rendering its decision herein, overlooked the fact that the deductions from the salary of the defendant in error were the same under the provisions of Chapter 11566, Laws of 1925, as under the provisions of Chapter 8277, Laws of 1919, and that the defendant in error made no payment and did no act, after the passage of Chapter 11566, Laws of 1925, which was not required of him by, and in strict compliance with the terms of his contract, and, therefore, no question of estoppel could arise."

"4. That the defendant in error was bound by the terms of his contract with the City of Jacksonville, to pay into the employees' pension fund, after the 1925 Act became effective, the amounts which he actually paid, and should *Page 866 not be held to be estopped from asserting his rights because he did the things which the law and his contract required him to do. Equitable estoppel being based on actual or constructive fraud, no estoppel can arise from the faithful performance of a duty."

"5. That this Honorable Court overlooked the fact that under the petitioner's contract he covenanted to pay two per centum (2%), of his monthly salary into the Pension Fund as long as he remained in the City's employ and that his mere continued performance of that obligation, in the absence of other circumstances not shown to exist in this case, wholly fails to reveal any justifiable or legal reason or ground to conclude that petitioner thereby became estopped to contend that he did not accept the terms of the Act of 1925."

"6. That this Honorable Court overlooked the fact that its conclusion that an estoppel arose against the petitioner to claim a refund of more than fifty per cent. (50%), of the amount contributed by him subsequent to the Act of 1925, completely nullifies the force and effect of its holding that the contract created by the parties under the original Act of 1919 was a voluntary one which could not be subsequently impaired by legislative enactments."

It seems to me that there is considerable merit in these grounds of the petition and that a rehearing should be granted.