No offsets exist for an ex-auditor seeking to offset taxes by law.

AUDITOR OF S'TATE-CERTAIN INSURANCE TAXES RE- TAINED. INS[IIRA NCE TAXES-1P ETAINE 1) BY EX-ATIDITOR OF STATE. December 6, 1906. ]lon. John C. Billheimer, Audilor of State: Dear Sir-Replying to your inquiry of December 3d, in which Von submit a letter from Messers. Taylor, Woods & Wilson, Con- taining certain propositions of law with reference to certain in- surance taxes paid ex-auditor of state James II. Rice, and by hin retained, and now claimed, with interest, from said companies; also, proposing to submit the matters in controversy to the local courts on an agr'eed ease, or iu any other manner that may be a greed upon. You ask my opinion as to the merits of their legal contention, and whether yon should accept the proposition to submit the matter to the courts, as suggested. (1) The first proposition of law suggested is: "That in a civil suit the state is estopped from denying practical eonstruction of the law as evidenced by the acts of its officers and legislatures before and since 1884." This position is untenable. and the law is so well settled that it requires no Citation of authorities to the proposition that "estoppel does not apply to the state as to an individual." (2) "That there has been no unreasonable delay in meeting the demand of the state either for the original payment of these taxes, or for the second payment of same, and that therefore no interest is recoverable against the companies." The statute fixes the time for payment of these taxes into the state treasury; they become due on the date fixed; they were not paid into the treasury at the time fixed, or at any other time, and interest began to run from the time they were due and un- paid. Section 8477 Burns Statutes 190l, provides: "Every insurance company not organized under the laws of this state, and doing business therein, shall, in the months of Ja.!ttary and July of each year, report to the auditor of state under oath of the president and secretary the gross amount of all receipts received in the state of In- diana on account of insurance premiums for the six months last preceding, ending on the last day of December and June of each year next preceding, and shall at the time of making such report pay into the treasury of the state the sum of three dollars on every one hundred dollars of sueh receipts, less losses actually paid within the state, and any such insurance company failing or refusing for more than thirty days to render an accurate (account) of its premium receipts as above provided and pay the required tax there- on shall forfeit one hundred dollars for each additional day such report and payment shall be delayed, to be recovered in an action in the name of the state of Indiana on the re- lation of the auditor of state in any court of competent jurisdiction, and it shall be the duty of the auditor of state to revoke all authority of any sitch defaulting company to do business within this state." It will be observed that there is nothing in this section requir- ing the payment of interest. The question may arise-Is the .penalty of $100 per day in lieu of interest? We think it will be admitted by all that the state is entitled to either interest or penalty, if not both. Surely the insurance companies will not take the position that they are liable for $100 per day penalty for each day's delay in making payment instead of being liable for 6 per cent. annuai interest. (3) "The present demand of the state includes a claim for the second payment of the moneys paid to Auditor Rice, against which the companies are entitled to be subrogated, by way of offset." I have no knowledge of any offset that Rice, or any one else, may have against these claims, and the above statement furnishes me no information on this subject; still, the law is well settled that there can be no offset made to taxes. (1 Cooley on Taxa- tion, p. 20.) I have confined my answer to your letter to the legal questions presented and involved, leaving all questions of policy for your determination as the chief fiscal officer of the state.