
    *Charles Thomas, late Treasurer of Hamilton County, v. The Auditor of Hamilton County.
    Under the first section of the act of March 14,1853, to enforce the collection .of taxes against banks, etc., the five per cent, penalty therein provided accrues-to the treasurer who made the demand of taxes as fees, and the county has-no interest in, or control over, its receipt or payment. If the successor of such treasurer collects the penalty, and retains it for his own use, he may be liable to an action therefor by his predecessor, for whose use the penalty accrued, but the county can not be compelled, by mandamus, to pay the amount to such predecessor.
    This is an application for a writ of mandamus to compel the auditor of Hamilton county to draw a warrant upon the treasury for money therein alleged to belong to the plaintiff — being the treasurer’s penalty of five per cent, and compensation of five per cent, on the taxes of the Ohio Life Insurance and Trust Company, for 1852 and 1853.
    The plaintiff was elected treasurer of Hamilton county at the fall election of 1851, and entered upon the discharge of the duties of his office in June, 1852.
    On the duplicate of that year he was charged with the collection, from the Ohio Life Insurance and Trust Company, of taxes amounting to over fifty-nine thousand dollars.
    The company had refused to list under the act of April 13,1852, entitled “ An act for the assessment and taxation of all property in-this state, and for levying taxes thereon according to its true value in money.”
    The value of their property was therefore assessed by the proper officer, and the penalty of fifty per cent, added in consequence of the delinquency.
    The taxes thus assessed were not paid within the time limited by 114] law, and tbe plaintiff thereupon filed a bill in ^chancery in the court of common pleas of Hamilton county, as authorized by section 42 of the said act of April 13, 1852, and continued to prosecute the same while he remained in office, and afterward untiL the settlement with the auditor of state. Upon his annual settlement with the county auditor, on January 15, 1853, he made return that the tax was unpaid, and that he had instituted the proceedings aforesaid for its collection.
    On the 14th of March, 1853, the general assembly passed “ an act to enforce the collection of taxes,” etc., the fourth section of which provides: “ That each county treasurer shall report to the auditor of state, on or before the 1st day of April next, and thereafter on or before the 26th day of December, annually, the amount of taxes charged, or which may hereafter be charged upon the duplicate of his county against any corporation, company, or association, .authorized to loan or invest its capital stock, or any part thereof, upon or in bonds, notes, bills, or other obligations bearing interest, and secured by deed, mortgage, or other incumbrance of real estate, in two or more counties of this state, and which taxes, or any part thereof, then remain or may thereafter remain unpaid. And the auditor of state shall, after ascertaining the aggregate amount of all such taxes due by any corporation, company, or association as aforesaid, appoint (by warrant under his hand) some suitable person as commissioner, to proceed forthwith to the principal office, agency, • or place of business within this state of such corporation, company, or association, and demand payment of the whole amount of such taxes, and five per centum penalty thereon (which said penalty shall be for the use of the county treasurers, and in proportion to the amount of the. taxes charged upon their respective duplicates), by leaving a written notice at the principal office, agency, or place 115] of business within this state, of such corporation, *company, or association. And if the taxes and penalty aforesaid, or any part thereof, shall remain unpaid for the space of five days from and after the delivery of such notice, the commissioner shall distrain and seize whatever gold, silver, or copper coin, bullion, bank-bills, promisory notes, bills of exchange, or other securities, or goods, or chattels, the property of such corporation, company, or association, may be sufficient to pay the taxes and penalty so as aforesaid demanded together with five per centum poundage (which said poundage shall be for the use of the commissioner), and all the costs and expenses • of such distress and seizure, and of any sale which may thereafter become requisite.”
    On the 1st of April, 1853, the plaintiff discharged the duty required of him by this section, by reporting to the auditor of state the amount of taxes charged upon the duplicate of 1852 against the Ohio Life Insurance and Trust Company; and the auditor of '•state, on October 24,1853, appointed Francis Link, commissioner, to collect the taxes; and on the 2d of November, 1853, Link demanded payment of the taxes and treasurer’s penalty in proper form, so that all the steps preliminary to a distraint were thus taken.
    Before this, however, the duplicate for 1853 had been furnished to the plaintiff, upon which he was charged with the collection from the Ohio Life Insurance and Trust Company — they again refusing •to list — of taxes amounting to nearly eighty-two thousand dollars.
    Under this state of facts, the commissioner, Link, being on the point of distraining for the taxes and penalty of 1852, and the duplicate of 1853 in the plaintiff’s hands, Samuel E. Foote, a citizen •of Connecticut claiming to be a stockholder and trustee of the company, filed a bill in chancery in the circuit court of the United 'States, for the seventh circuit and district of Ohio, against William *D. Morgan, auditor of state, Francis Link, commissioner as [116 aforesaid, and others, and obtained an injunction restraining the collection of these taxes and penalties, and afterward, upon application to dissolve the injunction, argued by the attorney-general of Ohio, the court refused to grant the motion.
    The taxes assessed upon the duplicate of 1853, remaining unpaid, the plaintiff, upon the 21st of December, 1853, in obedience to the first section of the law in question, demanded payment of that portion assessed upon the banking department, together with his penalty of five per cent.
    On the 26th of December, 1853, the plaintiff rejjorted the delinquency of this company to the auditor of state, as required by the fourth section ; but no further steps were taken by the plaintiff or the auditor of state, at that time, in consequence of the injunction obtained by Foote.
    At his annual settlement with the-county auditor on the 15th of January, 1854, the plaintiff reported these, taxes unpaid, and that their collection had been enjoined.
    The controversy between the state and the Ohio Life Insurance and Trust Company was finally determined, by a decision of the Supreme Court of the United States, adverse to the interests of the-latter. The company then came forward, and adjusted their delinquent taxes, under an agreement with the auditor of state, made-in June, 1855. The result of this settlement was, that the company were permitted to list their property nunc pro tunc, as if no delinquency had occurred, paying only the treasurer’s penalty of five per ■cent, in addition to the taxes, and Link’s claim for poundage was settled by the company. They accordingly paid in addition the taxes of 1851, which were also in arrear, for the taxes of 1852 for state purposes, $8,801.29; for county and other purposes, $30,-186.39 ; and *for the treasurer’s penalty, $1,645.05 ; and for [117 the taxes of 1853, for state purposes, $131,067.37; for county and other purposes, $34,189.27; and for treasurer’s penalty, $2,100.29. Subsequently, to correct an error in estimating the taxes of 185?, they paid for the county and other purposes, $3,425.61, and for treasurer’s penalty, $147.63.
    The amounts payable for state purposes were paid directly into the state treasury, and the remainder, including the amount of the treasurer’s penalty, into the county treasury. Upon making the latter payment, the following receipt was taken in duplicate, from ’Henry P. Bowman, the successor of Thomas, and one of the copies deposited with the county auditor.
    “ $72,171.11. Treasurer’s Oeeioe, Hamilton County, 1
    “ July 2, 1855. J
    “ Beceived of the Ohio Life Insurance and Trust Company its certificate of deposit, No. 1,927, in my favor, for the sum of $72,171.11, being the amount of said company’s delinquent taxes, with interest and treasurer’s penalty for the years 1851,1852, and 1853, as ascertained by the auditor of state to be due this county, after deducting state taxes. H. P. Bowman,
    
      11 Treasurer of said County.”
    On the 29th of December, 1845, the plaintiff submitted to Daniel S. Meeker, the county auditor, a written demand for a warrant upon the county treasury for the amount of said treasurer’s penalty for the years 1852 and 1853, as paid into that treasury, and for the allowance of one per cent, (and the issuing of a warrant therefor) on the amount of taxes for those years so paid by said company.
    To this demand the auditor replied in writing on the 14th of January, 1856, by refusing either to allow or reject it, and thepresent application is designed to compel such action of the county auditor as the plaintiff had demanded.
    *On December 29, 1856, the plaintiff demanded from [US' Jones, the present auditor, the issuing of warrants upon the treas-• ury, similar to those originally claimed at the hands of his predecessor, but received the same answer previously given by Meeker.
    In argument counsel presented three questions: 1. To whom does the treasurer’s penalty of five per cent., paid by the Ohio Life-Insurance and Trust Company, belong? 2. Is the plaintiff entitled to the allowance and payment of the treasurer’s commission of one per cent, on the taxes paid by that company? And, 3. If either-of these propositions be resolved in his favor, is he entitled to relief in the way he seeks it, by a writ of mandamus.
    
      Mills & Hoadly, for the plaintiff.
    
      William B. Caldwell, for the defendant.
   J. R. Swan, J.

It is provided by the first section of the act of' March 14, 1853 (Swan’s Rev. Stat. 928), that if the taxes remain-, unpaid until the 21st day of December, of any year, “ the treasurer of the county wherein such taxes have been or may be assessed shall forthwith demand payment of the amount of such taxes, and five per centum penalty thereon, which penalty shall be for the use-of the treasurer.’’

The five per centum is, as to the delinquent party, a penalty;, but, as to the treasurer, is a fee, which he is entitled to demand and receive for his own use. It accrues to the treasurer at the time he demands the taxes after the 21st of December. The county neither looses nor gains by its collection, or by the treasurer neglecting to collect it. It is not charged on the duplicate; and, on settlement with the county, the treasurer is not bound to account for it as public funds. Hence, when collected,-it may be at once ^appropriated by him to his own use. This per centum ac- [119 crued to Thomas when he made a demand of the taxes, and Bowman received it for the use of Thomas. If Bowman had, on settlement with the county, charged himself with this money, as-county funds, and it had thus found its way into the county treasury, there might be some propriety in treating it as withheld from-Thomas by, and a charge upon, the county. But the facts presumptively show that this mandamus is prosecuted to compel tho- • county to pay money which is, and always has been, in'the pocket •of Bowman; and was never under the control of the county, as •county funds; and was never chargeable to the county as a county •debt.

Thomas is not entitled to the one per centum; that accrued, if at all, to the treasurer who actually collected the money.

The motion for a mandamus is overruled.

Bartley, C. L, and Brinkerhoee, Bowen, and Scott, JJ., eon-curred.  