—The question for consideration is, whether the county treasurer of Cherokee county was entitled to receive a certain per cent, of the amount received by the commissioners appointed to locate the county seat of the county and sell the town lots, it being admitted that no part of the money or securities for which the lots were sold ever passed through his hands.

The' act of 1846, page 65, section 7, provides that the commissioners may sell the lots to the highest bidder on such time as they may determine, the proceeds of which •sale shall be applied to public buildings for the use of the county.

Paschal’s Digest, article 1103, provides, that the county treasurer shall receive and may retain in his hands such commissions, not exceeding five per centum upon the amount received and disbursed by him, as the county court in their discretion may allow.

It is evident from this act that the maximum that can be allowed the treasurer is five per centum of the amount received and paid out, and that it is entirely discretionary with the county court whether the treasurer shall receive that amount. But in no event can the treasurer receive a larger sum.

1 It is further evident that if the treasurer did not receive and pay out he is not entitled to receive anything.

We further consider that the act creating the county contemplated that the commissioners should have the sole management of the fund received for the sale of the lots, and *143appropriate the same for the erection of public buildings, as a preliminary step to the proper organization of the county. The judgment is

Aeeirmed.